U.S. Department of Justice Office of Information Policy • Suite 11050 1425 New York Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 October 5, 2018 Mr. Gabe Roth Fix the Court 1440 G Street NW, Suite 801 Washington, DC 20005 gabe@fixthecourt.com Re: DOJ-2018-007104 (OLP) 18-cv-02091 (D.D.C.) VRB:SJD Dear Mr. Roth: This is an interim response to your Freedom of Information Act (FOIA) request dated and received in this Office on July 24, 2018, for correspondence between the Office of Legal Policy and Brett Kavanaugh from January 20, 2001 to May 30, 2006. This response is made on behalf of the Office of Legal Policy (OLP). Please be advised that initial searches have been conducted on behalf of OLP, and records responsive to your request have been located. At this time, I have determined that seventy-four pages containing records responsive to your request are appropriate for release with excisions made pursuant to Exemption 6 of the FOIA, 5 U.S.C. § 552(b)(6), which pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2012 & Supp. V 2017). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. If you have any questions regarding this response, please contact Laura Hunt of the Department’s Civil Division, Federal Programs Branch at (202) 616-8207. Sincerely, Vanessa R. Brinkmann Senior Counsel Enclosures Willett, Don Willett, Don Wednesday, April 24, 2002 9:53 AM Dinh, Viet; Newstead, Jennifer; 'brett_m._kavanaugh@who.eop.gov'; Bartolomucci (E-mail); Brad Berenson (E-mail); Goodling, Monica; Anne Womack (E-mail); 'tim_goeglein@who.eop.gov'; Heather Wingate (E-mail); Alex Dahl (E-mail); Manuel Miranda (E-mail) CJ Rehnquist Statements from the 2001 Year-End Report re. the Vacancy Crisis Subject: Attachments: TPs -- Chief Justice 2001 Report.wpd From: Sent: To: VERSIGHT Document ID: 0.7.19343.7500 18-2091-A-000001 Quotations by Chief Justice William Rehnquist* Terrorist Attacks · "During times such as these, the role of the courts becomes even more important in order to enforce the rule of law. To continue functioning effectively and efficiently, however, the courts must be appropriately staffed. This means that necessary judgeships must be created and judicial vacancies must be timely filled with well-qualified candidates." (p. 2) Lengthy Confirmation Process Deters Qualified Candidates · "It is becoming increasingly difficult to find qualified candidates for federal judicial vacancies. This is particularly true in the case of lawyers in private practice. There are two reasons for these difficulties: the relatively low pay that federal judges receive, compared to the amount that a successful, experienced practicing lawyer can make, and the often lengthy and unpleasant nature of the confirmation process." (p. 2) · "But for lawyers coming directly from private practice, there is both a strong financial disincentive and the possibility of losing clients in the course of the wait for a confirmation vote." (p. 4) Chief Justice Specifically Urges Prompt Action · "The Senate ought to act with reasonable promptness and to vote each nominee up or down. The Senate is not, of course, obliged to confirm any particular nominee. But it ought to act on each nominee and to do so within a reasonable time. I recognize that the Senate has been faced with many challenges this year, but I urge prompt attention to the challenge of bringing the federal judicial branch closer to full staffing." (p. 3) · "On behalf of the Judiciary, I ask Congress to raise the salaries of the federal judges, and I ask the Senate to schedule up or down votes on judicial nominees within a reasonable time after receiving the nomination." (p. 5) Alarming Number of Judicial Vacancies · "Despite an alarming number of judicial vacancies, our courts continue to serve as a standard of excellence around the world." (p. 17) *Source for all quotations is the Chief Justice’s 2001 Year-End Report on the Federal Judiciary, released on Tuesday, January 1, 2002. VERSIGHT Document ID: 0.7.19343.7500-000001 18-2091-A-000002 Willett , Don From : Willett, Don Sent : Friday, July 12, 2002 3:17 PM To : eefer, Wendy J; Corallo, Mark; Goodling, Monica; Dinh, Viet; Koebele, Steve; Sales, Nathan; Remington, Kristi l; Charnes, Adam; O'Brien, Pat; 'Tim_Goeglein@who.eo . ov'· 'ann e womack@who .eop.gov '; 'b rett_m._kav anaugh@who.eop.gov '; alex_ da hl@judiciary .s enate. ~ nuel Miranda@judiciary.senate.gov '; 'heather_ wingate@who.eop .gov' ;-- Subject : Re: anti-Owen briefing by TPJ at the Nat'I Press Club nex BL, I'm in a mtg right now with GOP counsels on Judiciary, and there 's strong agreement here that there needs to be a strong jam-back in the same new cycle. Having CFJfolks there at the TPJ event to buttonhole media and rebut charges is terrific, but the consensus at this R-side counsel mtg is that there needs to be an immediate and more formal countervailing event , maybe sponsored by CFJ, but featuring strong , articu late folks who can effectively separate fact from fict ion re. Justice Owen and her record. - Sent from my BlackBerry. - Original Message- -From: Barbara Ledeen < To: Keefer, Wendy J ; Willett , Don ; Corallo, Mark ; Goodling, Monica ; Dinh, Viet ; Koebele, Steve ; Sales, Nathan ; Remington, Kristi L ; Charnes, Adam ; O'Brien, Pat ; 'Tim(u}Goeglein(a)who.eop.gov ' ; 'anne(u)womack(a}who.eop .gov' ; 'brett u m. u kavanaugh(a)who.eop.gov ' ;' a lex( u}dahl(a )judiciary.senate.gov ' ; ' Manuel( u) Miran a a ju iciary.senate.gov ' · 'heather u wingate(a)who .eop.gov ' ; Sent: Fri Jul 12 14:00:01 2002 Subject: Re[2): ant i-Owen briefing by TPJ at the Nat'I Press Club nex The tort reform people cannot come to town on Monday--they will be here wed . so i think we will have the members of the coalition for a fair judiciary on monday and the tort reofrm people and the lowye rs on we d. OK? Barbara Ledeen Director of Coalitions 18-2091-A-000003 Document ID: 0.7.19343.8044 _________ l'\t:::f,JIY .;)1::f,Jdl dllll _________ .:>UUJt:::l.l. l'\t:::. dllU-vWt:::11 Ullt:::1111f:> uy TPJ at the Nat'I Press Club next M Author: "Keefe r; Wendy J" Date: 7/12/2002 1:43 PM Great idea, I actually just got a mesage from ATRAthat they are standing by to help on all our judicial nominees. I will send the contact info to Barbara -Original Message-From: Barbara Ledeen To: Willett, Don ; Corallo, Mark ; Goodling, Monica ; Dinh, Viet ; Koebele, Steve ; Sales, Nathan ; Remington, Kristi L ; Keefer, Wendy J ; Chames , Adam ; O'Brien, Pat ; Tim Goeglein (E-mail) ; Anne Womack (E-ma il) ; brett_m._kavanaugh@who.e ; Jennifer Oschal (E-ma i Alex Dahl (E-mail) ; Manuel_Miranda@judiciary.senate.gov ; Heather Wingate (E-mail) ; Kay Daly (E-mail) ..... Sent: Fri Jul 12 11:03:51 2002 Subject: Re:anti-Owen briefing by TPJ at the Nat'I Press Club next Mo I think we should get the American Tort Reform Assocation, the Texas Tort Reform group and any other organizations of that sort to have a counter press conference at the same time. Barbara Ledeen Director of Coalitions _________ Reply Separator _________ Subject: anti-Owen briefing by TPJ at the Nat'I Press Club next Mon. Author: "Willett ; Don" Date: 7/12/2002 9:38 AM July 15, 2002 ORGANIZATION : Texans for Public Justice - holds a briefing to oppose Priscilla Owen's nomination to the Fifth Circuit Court of Appeals. TIME: 10 a.m. LOCATION: National Press Club, 14t h and F Streets NW, Zenger Room, Washington, DC 18-2091-A-000004 Document ID: 0.7.19343.8044 CONTACT:512-472-9770 TYPE:Briefing SUBJECT:Judiciary; LOAD-DATE:July 11, 2002 Received: from mailsimsl.senate.gov {[156.33.203.10]) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13} id 004210A1; Fri, 12 Jul 2002 10:55:31 -0400 Received: from wdcsun022.usdoj.gov (wdcsun4.us doj.gov) by mailsims1.senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23.18.03.pl0) with SMTP id <0GZ5004JVSG8JC@mailsimsl.senate.gov> for ri, 12 Jul 2002 10:55:21 --0400 (EDT) Received: from wt6.usdoj.gov (localhost [127.0.0. 1)) by wdcsun022.usdoj.gov (Netsc a pe Messaging Server 4.15) with ESMTPid GZS5FW00.X1G;Fri, 12 Jul 2002 10:55:08 -0400 Received: (from x400@1ocalhost) by wt6.usdoj.gov (8.9.3 (PHNE_24419)/8.9.3) id KAA16422;Fri, 12 Jul 2002 10:55:07 -0400 (EDT) Received: by TELEMAIL;Fri, 12 Jul 2002 09:38:47 -0400 Date: Fri, 12 Jul 2002 09:38:48 -0400 From: "Willett, Don" Subject: anti-Owen briefing by TPJ at the Nat'I Press Club next Mon. To: "Corallo, Mark" (Receipt Notification Requested) (1PMReturn Requested), "Goodling, Monica" (Receipt Notification Requested) (1PM Return Requested), "Dinh, Viet" (Receipt Notification Requested) (1PM Return Requested), "Koebele, Steve" (Receipt Notification Requested) (1PM Return Requested ), "Sales, Nathan" (Receipt Notification Requested) (1PM Return Requested), "Remington, Kristi L" (Receipt Notification Requested) (1PMRet urn Requested), "Keefer, Wendy J" (Receipt Notification Requested) (1PMReturn Requested) , "Charnes, Adam" (Receipt Notification Requested) (1PMReturn Requested), "O'Brien, Pat" (Receipt Notification Requested) (1PM Return Requested ), ''Tim Goeglein (Email)" (Receipt Notification Requested) (1PMReturn Requested), "Anne Womack (E-mail)" (Receipt Notification Requested) (1PMReturn Requested), "Brett Kavanaugh (E-maiW' (Receipt Notification Requested) (1PM Return Requested), "Manuel Miranda (E-mail)" (Receipt Notification Requested) (1PM Return Requested), "Heather Wingate (E-mail)" Autoforwarded: FALSEContent-i dent ifier: anti-Owen briefi MIME-version: 1.0 X-Mailer: NetJunction {NetJunction 5.1.1-p2)/MIME Content-type: TEXT/PLAIN;CHARSET =US-ASCIIImportance: Normal Original-encoded-information-types: IAS-Text Priority: Normal Precedence: first-class UA-content-id: anti-Owen brie fi X400-MTS-identifier: [/P=USDOJ-JCON/A= /C=US/;JMD0081-020712133847Z-392276] X-Priority: 3 (Normal) Received: from mailsimsl.senate.gov ([156.33.203.10)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00422E45; Fri, 12 Jul 2002 13:43:55 -0400 Received: from wdcsun022 .usdo j.gov (wdcsun4.us doj.gov) by mailsims1.senate.gov {Sun Internet Mail Server sims.3.5.2000.03.23.18.03. 10) with SMTP id for Fri, 12 Jul 2002 13:44:05 --0400 (EDT) Received: from A OVERSIGHT Document ID: 0.7.19343 .8044 18-2091-A-000005 \l\'l.V.\.,,L::)UVJ•bVV \IV"\.ra111v::,t. [ J.. LI .v.v • ..J. .JJ uy V\'Ulw.:)U I JV L L . \,4:)UVJ• b UV \• •t: l..::)~OfJC 1vn:::=:,.::,a _t,III E5 JCI VCI ...... ..J...JJ VYIU J ESMTPid GZS09301.Q51; Fri, 12 Jul 2002 13:43:51 -0400 Received: (from x400@1ocalhost) by wt6.usdoj.gov (8.9.3 (PHNE_ 24419)/8.9.3) id NAA04434; Fri, 12 Jul 2002 13:43:51 -0400 (EDT) Received: by TELEMAIL;Fri, 12 Jul 2002 13:43:09 -0400 Date: Fri, 12 Jul 2002 13:43:10 -0400 From: "Keefer, Wendy J" Subject: Re: anti-Owen briefing by TPJ at the Nat'I Press Club next Mo To: "Willett, Don" , "Corallo, Mark" , "Goodling, Monica" , "Dinh, Viet" , "Koebele, Steve" , "Sales , Nathan " , "Remington, Kristi L" , "Charnes , Adam" , "O'Brien, Pat" , " "'Tim_Goeglein@who.eop.gov ·" , "' anne _ womack@who.eop.gov"' , '"brett _ m._ kavanaugh@who .eop.gov '" , "'alex_dahl@judiciary.senate.gov "' , "' Manuel _ Miranda@judiciary.senate.gov"' , '"heather_ wingate@who.eop.gov '" , _, essage -id: <"JMD0081-020712174309Z -395927*/PRMD =USDOJ-JCON/A DMD= /C=US/"@MHS> Autoforwarded: FALSE Content-identifier: Re: anti-Owen br MIME-version: 1.0 XMailer: NetJunction (NetJunction S.1.1-p2}/MIME Content -type: TEXT/PLAIN;CHARSET =US-ASCII Importance : Normal Original-encoded -information-types: IAS-Te.xt Priority: Normal Precedence : first class UA-content-id: Re: anti-Owen br X400-MTS-identifier: [/P=USDOJ-JCON/A= /C=US/;JMD0081020712174309Z-395927) X-Priority: 3 (Normal) 18-2091-A-000006 Document ID: 0.7.19343 .8044 Sales , Nathan From : Sales, Nathan Sent : Friday, July 12, 2002 6:14 PM To : Scottf inan, Nancy; Willett , Don; Dinh, Viet; O' Brien, Pat; Goodling, Monica ; Corallo, Mark; Charnes , Adam; Koebele, Steve ; Keefer, Wendy J; Remington, Kristi L; 'Anne_ Womack@who.eop.gov '; 'brett_m._ kavanaugh@who .eop.gov '; 'Heather _ Wingate@who.eop .gov'; 'Alex_ Dahl@judiciary.senate .gov'; 'Manuel _ Miranda@j udiciary.senate.gov '; 'Tim_Goeglein@who.eo . ov'· 'Matthew E. Smith who.eo t • I •... .. • I a) I ti I n.senate.gov '; Subje ct : RE: REMINDER- da ily conf. call re. Priscilla Owen nomination - 6:00-6:30 The crack DOJ telecommunications staff screwed it up. - Original Message- From: Scottf inan , Nancy Sent: Frida Jul 12 2002 6:08 PM To: Willett, Don; Dinh, Viet; O'Brien , Pat; Goodling, Monica; Corallo, Mark; Charnes, Adam ; Koebele, Steve ; Keefer, Wendy J; Remington , Kristi L; Sales, Nathan ; 'Anne_ Womack@who.eop.gov '; 'brett_m._kavanaugh@who.eop.gov '; 'Heather_ Wingate@who.eop.gov '; 'Alex_ Dahl@judiciary.senate.gov '; 'Manuel _ Miranda@jud iciary.senate .gov'; 'Tim_Goeglein@who.eop.gov '; 'Ma~~ ~ -gov'; .- .•• '1 • • - .. - •• Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nomination - 6:00-6 :30 Neither can I! I keep getting country music and record ings that the conference is restricted! -- Original Message -From: Jennifer Os chal [mailto Sent: Friday, July 12, 2002 6:06 PM To: Willett , Don; Dinh, Viet; O' Brien, Pat; Scottf inan , Nancy; Goodling, Monica ; Corallo, Mark; Charnes, Adam ; Koebele, Steve ; Keefer, Wendy J; Remington , Kristi l ; Sales, Nathan ; Anne_Womack@who.eop.gov; brett_m._kavanaugh@who.eop.gov; Heather_ Wingate@who.eop.gov; Alex_ Dahl@jud iciary.senate.gov ; Manuel _ Miranda@ judiciary.senate.gov; Tim_Goeg lein@who.eop.gov; Matthew_ E._Smith@who.eop.gov; ·oe ·ac uot@hutch ison.senate. ov Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nominat ion - 6:00-6:30 18-2091-A-000007 Document ID: 0.7.19343.5057 Willett , Don From : Willett, Don Sent : Friday, July 19, 2002 6:41 PM To: Koebele, Steve Cc: Remington, Kristi L; Charnes, Adam; Sales, Nathan; Keefer, Wendy J; Brett Kavanaugh (E-mail}; Anne Womack (E-mail); Goodling, Monica; Dinh, Viet; Anne Womack (E-mail); Manuel Miran da (E-mail); Alex Dahl (E-mail} Subje ct : RE: Here is the final Version great letter; let's get a signed PDF vers ion asap so we can blast aroun d - Original Message-- From: Koebele, Steve Sent : Friday, July 19, 2002 6:38 PM To: Willett , Don Subject: Fw: Here is the final Version --O riginal Message--From: Price, Gwen l. To: Koebele, Steve Sent : Fri Jul 19 18:25:36 2002 Subje ct: Here is the final Version Signatu res in PDF format will be sent to you on Monday . -- Original Message- -From: Shrader, Duane Sent: Friday, July 19, 2002 5:16 PM To: Price, Gwen l. Cc: Gonzalez, Raul A. Subject: PDF Document 5jp604!.pdf «5jp604! .pdf>> 18-2091-A-000008 Document ID: 0.7.19343.8116 Sales, Nathan From: Sent: To: Cc: Subject: Sales, Nathan Sunday, July 21, 2002 6:35 PM Willett, Don; 'Anne Womack (E-mail)'; Goodling, Monica Dinh, Viet; Remington, Kristi L; Koebele, Steve; 'Brett Kavanaugh (E-mail)'; 'Manuel Miranda (E-mail)'; 'Alex Dahl (E-mail)' RE: we've reformatted the John Hill op-ed (which no paper has picked up) into a strong pro-Owen letter Also, we can have a PDF version tomorrow AM. -----Original Message----From: Willett, Don Sunday, July 21, 2002 6:34 PM Sent: To: Anne Womack (E-mail); Goodling, Monica Cc: Dinh, Viet; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Brett Kavanaugh (E-mail); Manuel Miranda (E-mail); Alex Dahl (E-mail) Subject: we've reformatted the John Hill op-ed (which no paper has picked up) into a strong pro-Owen letter Here it is, complete with electronic signature. Please blast around far and wide. << File: John Hill letter.DOC >> VERSIGHT Document ID: 0.7.19343.5098 18-2091-A-000009 Willett , Don From : Willett , Don Sent : Monday, July 22, 2002 12:58 PM To: Anne Womack (E-mail); Goodling, Monica; Manuel Miranda (E-mail); Alex Dahl (E-mail); Dinh, Viet ; Heather Wingate (E-mail); Brett Kavanaugh {E-mail); Sales , Nathan; Remington , Kristi l; Koebe le, Steve; Barbara Ledeen {E-mail); Kay Daly {Email) Subject : new pro-Owen letter from a D Attachments: robinson .pdf Below is a letter from a former Texas Supreme Court law clerk (not one of Owen's). The writer is a D and served on Ann Richards' re-election campa ign (a gainst then -ch allenger Bush} in '94 . Worthy of WIDE circulation. ORW -Or iginal MessageFrom: Sutton , Jason Sent : Monday , July 22, 2002 12:53 PM To: Willett , Don Subject: robinson .pdf robinson.pdf 18-2091-A-000010 Document ID: 0.7.19343.8120 .c'B_RACEWE LL ~1!J:~~~R~L _u____ __________ __ __ _ __ _ _ 500 N. Abrd Street, Suiu 400'.l Dalla. Tuu 7S20I.J387 Pbanc,214.758.lCW Fu,214.758.1010 Iul;y19, 2002 Senator Patrick J. Leahy 433 Russell Senate Offloo Building United State. Senato Washington. DC 20.510 Re: Justice Priscilla R. Oweu Dear Senator Leahy: I am a lawyer at Bracewell & Patterson. L.L.P. in Dallas, Texas. I am writing you because I know Ju,tice Priscilla R. Owenpenonally and am confident that she will ~ an asset to our Fifth Circuit. I bad the privilege to work as a briofing attorney for the SupremeCourt of Texas from 1999-2000. In that capacity, I observed 1usticc Owen on a daily bans. My first impression of her was that lhc was Yery quiet, shy, and would not be very vocal during discussions with her coll~•· I was wrong. Iustice ~ is extremely intelligent, and more importantly, she took her job u a Jmtice aeriously. I.~d no doubt that she mad all of the numerous petmona we had each wcck, and she was preparedto advocate hor position on each one. I admired her for bclq a Soodlistener and fot standing up for her opinions. When I think of Justice Owen, I think of a Judie who is thotougbin her analyail. dedicated to doiq the "right thina"venu1 what makes acme politically, and a prodigious writer. Additionally. I recall durin&oral ar11unoutsthat Justi® Owfn was noc buhful about asking counacl the moat chall=iging qUe1tions. This type of dialogue beneflu the bench and bar. Besjdes her obvio118competencyas a Judge, I also admire JuaticeOwen as a person. She is very humble and lcmd. She takes a particular interest in Women's, children's, and family matters. Each Christmas, tho Court had an auction for a clilldrcn'1charity. Juatice Ow'en wu an enthusiastic aupporteT. I also appreciate how much time she voluntccrl to judge law school moot coun competitions. I have been a competitor and now coach of the Southern Mcthodiat University School ot Law moot court team. In aiy five ycam of participation. l do not recall Jastiee Owai ~ rniMing~ opportwlity to judge the final round at th~ Texas Young La~• Aaociation inoot court compctiuon. ThiJ i.athe first time that l have writtm to a United States \Senator. I grew up in Canton, Ohio, and relocatr:d to Texu wheal I worked on OoveltlOr Arm Ricbaxds' re-election campaip in 1994. Although I identify mysalt u a Dempctat.I will always vote for a VERSIGHT Document ID: 0.7.19343.8120-000001 18-2091-A-000011 CEWELL TTERSON1-u TTOIINl'r i AT 1.4W SenatorPatrick J. Leahy July 19, 2002 Page 2 J>Cl$0lland not fbr a party. 1WiticoOwenis a pcnon I ~o-heartedly endorsebecauaeshe is a womanwithan impeccablechanc:ter. I am confident that &heis the right choice for our Fifth Circuit. Very truly yo~, B~ll ' & Piau.:non, LL.P, Jtit1Lq]2~ Tricia J. Rob~ TJRJjab 111690.1 ** AMR AN OVERSIGHT Document ID: 0.7.19343.8120-000001 TOTAL PAGE.83 18-2091-A-000012 ** Sales, Nathan Sales, Nathan Monday, July 22, 2002 7:13 PM Willett, Don; Remington, Kristi L; Koebele, Steve; Brett Kavanaugh (E-mail); Manuel Miranda (E-mail); Alex Dahl (E-mail) Subject: Fifth Circuit Stats Attachments: Fifth Circuit Statistics.doc From: Sent: To: Per this morning's meeting, here's a one-pager on 5th Cir. stats. VERSIGHT Document ID: 0.7.19343.5138 18-2091-A-000013 Fifth Circuit Statistics  Of the 17 authorized seats on the Fifth Circuit, five judges were appointed by Democrat presidents and ten were appointed by Republicans. There are two vacancies, including the one to which Justice Owen has been nominated.  Prior to the confirmation of Edith Brown Clement on October 4, 2001, the previous four appointees were Democrat appointees. The Fifth Circuit had gone an entire decade without a Republican appointee.   Judge Harold DeMoss, a Bush 41 appointee, began service on December 2, 1991. President Bush subsequently nominated another Fifth Circuit nominee (Sidney Fitzwater), but the candidate never received a hearing. The Fifth Circuit’s decisions have fared quite well before the Supreme Court, especially in comparison to notoriously activist jurisdictions such as the Ninth Circuit.  Between 1985 and 1997, the Supreme Court reversed the Fifth Circuit 61 times, a reversal rate of just 0.16%. During that same period, the Court reversed the Ninth Circuit fully 142 times, a reversal rate nearly three times that of the Fifth Circuit.  Between 1985 and 1997, the Fifth Circuit was summarily reversed just twice. By contrast, the Ninth Circuit was summarily reversed fifteen times over the same period. VERSIGHT Document ID: 0.7.19343.5138-000001 18-2091-A-000014 Brett_M ._Kavanaugh@who.eop .gov From: Brett_ M._Kavanaugh@who .eop.gov Sent : Friday, August 2, 2002 2:30 PM To: Mashburn, John (Lott) Cc: Willett, Don; O' Brien, Pat; Dinh, Viet; mashburn, john (Iott); lincoln oliphant; gre gg willhauck; john abegg; ed_haden@ju diciary.senate.gov; katie_gumerson@aml.senate.gov; makan _ delrahim@judiciary.senate.gov; bob_taylor@aml .senate.gov; manuel miranda at ju diciary (e-mail); alex dahl (e-mail); brian benczkowski (e-mail); ran dy brandt (e-mail); barbara led een (e-mail); joe matal at judici a ry (e-mail) Subject : judges charts Attachments: jud ges chart 8 2 02.doc; jud ges wait more tha n a year 8 2 02.doc some updated charts (See attached file: ju dges chart 8 2 02.doc)(See attached file: judges wait more than a year 8 2 02 .doc) 18-2091-A-000015 Document ID: 0.7.19343 .5254 Judicial Appointments Historical Comparison: First Two Years of a Presidency President G.W. Bush Nominations Submitted Nominees Confirmed Circuit Percentage Of Nominees Court Confirmed Nominations Submitted Circuit Court Nominees Confirmed Circuit Court Percentage of Nominees Confirmed 123 72 59% 32 13 41% Clinton 140 126 90% 22 19 86% George H.W. Bush 74 70 95% 23 22 96% Reagan 88 87 99% 20 19 95% (as of Aug. ’02 Senate recess) VERSIGHT Document ID: 0.7.19343.5254-000001 18-2091-A-000016 Judicial Appointments Historical Comparison: First Two Years of a Presidency President Circuit Court Nominees who waited more than a year for a hearing G.W. Bush 11 (as of August 2002) Clinton George H.W. Bush Reagan VERSIGHT Document ID: 0.7.19343.5254-000002 0 0 0 18-2091-A-000017 Sales, Nathan Sales, Nathan Friday, August 30, 2002 2:03 PM Dinh, Viet; Charnes, Adam; 'Brett_M._Kavanaugh@who.eop.gov'; Willett, Don; Remington, Kristi L; Goodling, Monica; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Heather_Wingate@who.eop.gov'; 'Anne_Womack@who.eop.gov'; 'kay daly (e-mail)'; 'barbara ledeen (e-mail)'; 'leonard leo (e-mail)'; 'jennifer oschal (e-mail)' Subject: Jipping on Owen and Biden Attachments: WT piece on Owen_.doc From: Sent: To: -----Original Message----From: Tom Jipping [mailto:Tjipping@cwfa.org] Sent: Friday, August 30, 2002 1:50 PM To: Sales, Nathan; 'tim(u)goeglein(a)who.eop.gov'; 'ed(u)haden(a)judiciary.senate.gov'; 'manuel(u)miranda(a)judiciary.senate.gov' This will be in the Washington Times on Tuesday 9-3-02 Subject: VERSIGHT Document ID: 0.7.19343.5158 18-2091-A-000018 The Senate Judiciary Committee’s vote on Priscilla Owen’s appeals court nomination will reveal the health of the judicial confirmation process. Qualifications really mattered once. On June 24, 1986, Judiciary Committee member Joseph Biden (D-DE) explained that he would vote for judicial nominees with “the earmarks of excellence, intellectual capability, high achievement, and demonstrated excellence in the law and the requisite judicial temperament.” A member of the Texas Supreme Court since 1994, Justice Owen received a unanimous “Well Qualified” rating from the American Bar Association, once praised by Democrats as the “gold standard.” Democrats once opposed partisanship. On March 19, 1997, Judiciary Committee member Edward Kennedy (D-MA) said it is “time to end the excessive partisanship over judicial nominations.” On June 16, 1997, Judiciary Committee Chairman Patrick Leahy (D-VT) said that “if there is one area where partisan politics should not be allowed, it is in the area of the federal judiciary.” Democrats once opposed litmus tests. On April 14, 1994, then-Chairman Biden condemned as “inappropriate” the fact that some critics of a female appeals court nominee “object to some of her decisions and therefore her confirmation on ideological grounds.” On March 19, 1997, he said if judicial nominees “will be [persons] of their word and follow [precedent], it does not matter to me what their ideology is.” On July 10, 1997, Sen. Leahy said he hoped “that no senator is imposing an ideological litmus test on judicial nominations.” On March 17, 1998, he warned the Senate not to head “down a road toward an ideological litmus test.” Democrats once said that judicial nominees deserve a vote by the full Senate. On March 19, 1997, Sen. Biden said that “everyone who is nominated is entitled to … have a hearing and to have … a vote on the [Senate] floor…. We in the Judiciary Committee have the right to give advice to the Senate, but it is the Senate that gives its advice and consent on judicial nominations.” On September 28, 1998, Judiciary Committee member Richard Durbin (D-IL) said that 150 days was too long for a nominee to wait without a full Senate vote (Justice Owen was nominated 476 days ago). In fact, in the past 60 years, the Senate Judiciary Committee has voted to prevent a judicial nominee from reaching the full Senate just five times. That was then, this is now. Despite Justice Owen’s qualifications, community service, and widespread support in Texas, far-left political interest groups have ordered Democrat senators to oppose her on purely ideological grounds. Abortion extremists, for example, say Justice Owen has a “strong personal bias against the right to choose” based on a few votes in parental notification cases. Yet Justice Owen was in the majority in nine of those 12 cases, dissenting only three times to uphold the decision of two lower courts requiring notification. The liberal Washington Post said on July 24 that these three votes were not “beyond the range of reasonable judicial disagreement.” Will senators once opposed to litmus tests vote against a qualified nominee because of three votes that even a liberal editorial page says are reasonable? AMERICAN PVERSIGHT Document ID: 0.7.19343.5158-000001 18-2091-A-000019 Sen. Biden has outlined the better course. On April 19, 1994, he said he would support nominees who have “the capacity, competence, and temperament,” who are “of good character” and “free of conflict of interest,” and who will “faithfully apply the Constitution and the precedents of the Supreme Court.” According to the ABA, its “well qualified” rating means that Justice Owen is “at the top of the legal profession” and has “outstanding legal ability, breadth of experience,” and “the highest reputation for integrity.” As if he were speaking today about the Owen nomination, Sen. Biden said on June 24, 1986, that a judicial confirmation “is not about right to life, it is not about conservative or liberal, it is not about Democrat or Republican. It is about intellectual and professional competence to serve as a member of the third coequal branch of the govern ment.” And so it should be today. Will senators capitulate to the far-left groups that want them to ignore qualifications and impose ideological litmus tests? Will they vote against Justice Owen because they disagree about the outcome of some cases? Or will they instead use the standard Sen. Biden outlined on September 17, 1986: “[T]he fact that I may disagree with the nominee about the outcome of one or another matter within the legitimate parameters of debate is not enough” to oppose a nominee? The Judiciary Committee’s vote will speak volumes. Thomas L. Jipping, J.D., is Senior Fellow in Legal Studies at Concerned Women for America, the nation’s largest public policy women’s organization. AMERICAN PVERSIGHT Document ID: 0.7.19343.5158-000001 18-2091-A-000020 Koebele, Steve Koebele, Steve Wednesday, September 04, 2002 12:26 PM 'Manuel_Miranda@judiciary.senate.gov b(6) Barbara Ledeen Senate Email '; 'heather_wingate@who.eop.gov'; 'Anne_Womack@who.eop.gov'; Remington, Kristi L b(6) Jennifer Oschal email Cc: 'brett_m._kavanaugh@who.eop.go Dinh, Viet; Charnes, Adam; Willett, Don Subject: Editorial - Owen in DMN - Attached Attachments: Editorial-DMN 09-04-02.pdf From: Sent: To: Attached in PDF form is the Owen confirmation endorsement editorial that was published in today's Dallas Morning News. Thank you, Steve. VERSIGHT Document ID: 0.7.19343.8234 18-2091-A-000021 14A &tal;,luhed Wednesday, October I, 1885 September 4, 2002 EDITORIALS ConfirmHer Senate panel should approve Priscilla Owen T he president has nominated. The Senate Judiciary Committee has re\'iewed. And the moment has arrived for a vote. The committeeshoul~ confirm TexasSupreme C.ourtJustice PriscillaOwen's'nomination t.o 1:he 6th U.S. Cimtit Court of Appealswhen it reconvenes nmrsday. The panel should move speedily to send her nomination to th~Senate floor. Democratic Sens. Dianne Feinstein and Joseph Biden will fee] pressure to join the panel's Democrats in opposing Justice Owen. But we urge the pair to support the justice in light of her strong credentials. Both senators enjoy a reputation for fair-mind~ and they could lead by rising above the gamesmanship that has gripped both parties in approving judicial appointments lately. Priscilla Owen is no_ta judicial lightweight. Sens. Feinstein and Biden may disagree with some of her conclusions, but the Baylor Law School graduate is not outmde the norms of American jurisp111dence. Indeed, the Ameri- can Bar Association has given her a unanimous •well-qualified~ rating. And the ABA has never been accused of being a hideout for conservative extremists . What's mare, Ms. Owen scored higher than any other applicant when she took the Texas bar exam_ She served 17 years as_a lawyer for Andrews &: Kurth, one of Texas' premier law firms. These credentials and her personal integrity explalnwhya bipartisan group ofTexas bar leaders - including former TexasSupreme C.ourt member and Attorney General John Hill. a prominent Democrat - went to Washington in July to support her nomination. Though her opponents have bied to paint Ms. Owen as someone tainted by campaign contributions, her record shows that, to the contraxy, she has been a staunch supporter of judicial reform who has placed voluntary limits on donations to her campaigns. The judicial nomination process has be. come a raw game of power.The party that does not control the pr~idency tries to block nominations until the next elecl.ion.We ,vould understand why Democrats would not want to appoint M~. Owen if she were unftL B\'lt she has the brainpower, experience and tempel"a~ ment to serve ably on an appellate court. By recognizingthose qualities, Sens. Riden and Feinstein could make sure that the Owen nomination moves to the Senate floor ~en the Judicia.Iy Oommittee reconvenes Thursday. The gamesmanship needs to end. 18-2091-A-000022 Document ID: 0.7.19343.8234-000001 Koebele, Steve Koebele, Steve Thursday, September 5, 2002 9:29 AM 'Manuel Miranda@judiciary.senate.gov' b(6) Barbara Ledeen Senate Email b(6) Jennifer Oschal email b(6) Kay Daly email Willett, Don; Remington, Kristi L; Dinh, Viet; Charnes, Adam Cc: 'Ed_Haden@judiciary.senate.gov'; 'heather_wingate@who.eop.gov'; 'brett_m._kavanaugh@who.eop.gov'; 'Anne_Womack@who.eop.gov' Subject: Wall Street Journal - Owen Editorial Attachments: Editorial-WSJ 09-05-02.pdf From: Sent: To: Attached in PDF form is today's WSJ editorial. VERSIGHT Document ID: 0.7.19343.8239 Thank you, Steve. 18-2091-A-000023 A14 THE WALL STREET JOURNAL. OPINION THURSDAY ; SEPTEMBER 5, 2002 Too Smart for the Senate P riscilla Owen isn't exactly a household nominated. That includes legal luminaries name. But what happens to her today in Miguel Estrada, Jeff Sutton, John Roberts and the Senate Judiciary Committee will say Michael McC-Onnell,who, like Judge Owen, are a lot about President Bush's legacy in the fed- potential Supreme Court candidates-which eral courts-to wit, whether the 10 liberal Dem- their real sin in liberal Democratic eyes. ocrats who form the '-'But maybe they're majority will allow I'. [' Sena te D emocra ts prepare to k.ll • Pl the lucky ones. Judge him to have one. t k rln had t . .ud. ial . . ce g o en The Gang of Ten ls ,1 one more J ic nomination. _ dure race-baiting that scheduled to vote on African -Americans in Judge Owen's nomination to the Fifth Circuit his home state deplored . D. Brooks Smith was Court of Appeals, and she ought to be an easy confirmed, amid phony charges of sexism, sale. Currently on the Texas Supreme Court, only because Senator Arlen Specter called in she is one of the best legal minds of her genera• chits for his fellow Pennsylvanian. tion and at age 47 ls potential Supreme Court Judge Owen's fate is to be called "anti-abor -. mater:lal. She's a co1_1s~rvative, but !he ~beral tion" because she's .upheld Texas's parental -noA~erican Bar ~ssoc1ation gave her its highest tlflcation law-a view supported _by more than rating-a unanimous well-qualified. two-thirds of Americans and the U.S. Supreme There was a time that jurists of her intellec- Court. Her . critics . also make the dishonest tual caliber were welcomed by Senators 6f both charge that even the President's own lawyer. parties, but no more. Barring a last-minute Alberto Gonzales, who served with her on the bout of cons<;ience, Democrats seein ready to Texas Supreme Court, thinks she's a judicial pull a Pickering - that is, kill Judge Owen's "activist." Mr. Gonzales has denied this repeatnomination in committee and deny her a vote edly, and as White House counsel had a big say of the full Senate. This was the treatment in her nomination. meted out to Charles Pickering Sr. last March, There 's more at stake here than the fate of when the Mississippi judge's nomination was one accomplished jurist. There's also the Constopped before moderate Demo_crats got a stitutional "advise and consent" process that chance to vote for him. If Judge Owen were to throughout U.S. histocy has meant that the enreach the Senate floor, she too would be con- tire Senate should work its will. The liberal Ju firmed with Democratic support. . diciary 10 are denying to this President a ConPolitical war over judges isn't new, but the stitutiona l right that Presidents Reagan. ClinJudiciary Democrats are taki ng it to an en- ton and ·George H.W. Bush were all granted by tirely new level. Chairman Pat Leahy won't Senates controlled by the opposite party. We even schedule hearing dates for the best ap- hope those Senate Democrats who want to be peals-court nominees; six of Mr. Bush's first 11 President understand that the same thing picks are stiU waiting. 16 months after being could happen to them. is 18-2091-A-000024 Documen t ID: 0.7.19343 .8239-000001 Sales , Nathan From : Sales, Nathan Sent : Thursday, September 12, 2002 12:02 PM To: Charnes, Adam Brown, Jamie E (OLA); Benczkowski, Brian A; Koebele, Steve; Willett, Don; 'Manuel Miranda (E-ma il)'; 'Brett M. Kavanaugh (Email)'; 'robyn@progressforamerica.org ' Subject : RE: Miguel Estrada Conference Call That conflicts with a 6:00 McConnell conference call. Is there any way to have the Estrada call earlier? --Original Message-From: Charnes, Adam Sent: Thursday, Sep~: 01 PM To: Charnes, Adam;rown, Jamie E (OLA); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Willett, Don; 'Manuel Miranda (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforamerica.o rg' Subject: RE: Miguel Estrada Conference Call Importance: High The time for this call today has been chan ged to 6:15 pm. Sorry for any inconvenience. The dial -in info stays the same. -Original Message-From: Charnes, Adam Se~ tember 11, 2002 1:54 PM To:Brown, Jamie E (OLA); Benczkowski, Brian A; Sales , Nathan; Koebele, Steve; Willett , Don; 'Manuel Miranda (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@prog ressforameri ca.org' Subject: RE: Miguel Estrada Conference Call The dial-in info: Dial In: -O riginal Message-From: Jennifer Oschal [mailt Sent: Tuesday, September 10, 2002 11:13 AM To: Charnes, Adam; Brown, Jamie E (OLA};Benczkowski, Brian A; Sales , Nathan; Koebele, Steve; Willett, Don; Manuel Miranda (E-mail); Brett M. Kavanaugh (E-mail) Subject: RE: Miguel Estrada Conference Call A OVERSIGHT Document ID: 0.7.19343.5211 18-2091-A-000025 Sales , Nathan From : Sales, Nathan Sent : Thursday, September 12, 2002 6:03 PM To : Chames, Adam; Brown, Jamie E (OLA);Benczkowski, Brian A; Koebele, Steve; Willett, Don; 'Manuel Miranda (E-mail)'; 'Brett M. Kavanaugh (Email)'; 'robyn@progressforamerica .org'; 'Rena Johnson ' Subject : RE: Miguel Estrada Conference Call Fine by me. -Original Message-From: Charnes, Adam Se~mber 12, 2002 6:02 PM To ....... Brown, Jamie E (OLA); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Willett , Don; 'Manu el Miranda (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforamerica.org '; 'Rena Johnson' Subject: RE: Miguel Estrada Conference Call I am told that 11:00 doesn 't work for the folks on the Hill, whose email isn't working. Can we say 1 :30 pm Friday? -Original Message-From: Charnes, Adam Sent: Thursday , Sep 46 PM To: Charnes, Adam; Brown, Jamie E (OLA); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Willett, Don; 'Manuel Miranda (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforamerica .org'; 'Rena Johnson ' Subject: RE: Miguel Estrada Conference Call Hearing no objections, the call will be 11 am Friday, same call-in info. --Original Message--From: Charnes, Adam Sent: Thursda Se •tember 12, 2002 12:12 PM To Brown, Jamie E (OLA); Benczkowski, Brian A; Sales , Nathan; Koebele, Steve; Willett , Don; 'Manuel Miranda (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforamerica.org' Subject: RE: Miguel Estrada Conference Call I am advised that this call now conflict s with a McConnell call. Any objections to moving this call until 11 am tomorrow morning? AM OVERSIGHT Document ID: 0.7.19343 .5215 18-2091-A-000026 -Original Message--From: Charnes, Adam Sent : Thursday , Se~ :01 PM To: Charnes, AdamBrown, Jamie E (OLA); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Willett, Don; 'Manuel Miranda (E-mail) '; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforame rica.o rg' Subject: RE: Miguel Estrada Conference Call Importance : High The time for this call today has been chan ged to 6:15 pm. Sorry for any inconvenience. The dial-in info stays the same. --Original Message-- From: Charnes, Adam Se-n : Wednes da , Se tember 11, 2002 1:54 PM To Brown, Jamie E (OLA); Benczkowski, Brian A; Sales , a an; oe ele, Steve; Willett , Don; 'Manuel Miranda (E-mail}'; 'Brett M. Kavanaugh (E-mail)'; 'robyn@progressforamerica.org' Subject: RE: Miguel Estrada Conference Call The dial-in info: Dial In: -Original Message-From: Jennifer Oschal [mailto Sent : Tuesday, September 10, 2002 11:13 AM To: Charnes, Adam; Brown, Jamie E (OLA); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Willett, Don; Manuel Miranda (E-mail); Brett M. Kavanaugh (E-mail) Subject: RE: Miguel Estrada Conference Call time wo rks fine. i will let others know and let you know who i've invited ... -Original Message-From: Charnes, Adam (mailto:Adam.Chames@usdoj.gov) Sent: Monday, September 09, 2002 6:11 PM To: Brown, Jamie E (OLA); Benczlcowski, Brian A; Sales , Nathan; Koebele, Steve; Willett., Don; Manuel Miranda (E-mail); Brett M. Kavanaugh {E-mail); Jennifer Oschal (E-mail) Subject: Miguel Estrada Conference Call I think it makes sense for us to have a conference call later this week for everyone to provide a status report on efforts being ma de in preparation for Miguel's hearing . If people are available at 5 pm on Thursday , I will send around a conference number. Please advise. A OVERSIGHT Document ID: 0.7.19343.5215 18-2091-A-000027 Brett, please invite the appropriate White House people, including Hispanic liaison people. Manny , please invite the appropriate individuals on the Hill. Jennifer, please invite any people from outside groups you th ink should participate. Thanks very much. 18-2091-A-000028 Documen t ID: 0.7.19343 .5215 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Wednesday, September 25, 2002 11 :29 AM To : Benczkowski, Brian A; Dinh, Viet; 'l eonard_B ._Rodriguez@who.eop.gov '; Charnes, Adam; Bryant, Dan; Brown, Jam ie E (OLA); Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O' Brien, Pat; Koebele, Steve; Keefer, Wendy J; Hall, William; 'joschal@att .net'; Willett, Don; ' Brett _ M._ Kavanaugh@wno .eop.gov'; 'Rena _Johnson@judiciary.senate.gov' ; 'alafferty@traditionalvalues.org '; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_ Goeglein@who.eo Sam son who.eop .gov'; 'Heather _Wi ngate@who.eo . . ov'· 'Matthe ..v_E._Smith@w ho.eop.gov '; a ex_ a iciary.senate.gov'; 'Manuel _ Miran da@judiciary .senate.gov; ena _Johnson@judiciary.senate.gov '; Charnes , Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject : Estrada confe rence call Tonight at 6 pm. Note ad ditional passcode and number change telephone number passcode - - 18-2091-A-000029 Document ID: 0.7.19343.8450 Brett_M ._Ka vanaugh@ wh o.eop .go v From : Brett_ M._Kavanaugh@who.eop.gov Sent : Wednesday, September 25, 2002 8:06 PM To : Chames, Adam; Benczkowski, Brian A; Bryant, Dan; Willett, Don; Brown, Jamie E (OLA);Goodling, Monica; Scottfinan, Nancy; Sales, Nathan- O'Brien Pat· Koebele, Steve; Dinh, Viet; Keefer, We- d J· Hall William; Leonard_B._Rodriguez@who.eop.gov; rena_johnson@judiciary.senate.gov; alafferty@traditionalvalues.org; e • .. • - a - r,) a e a a • ■ • • • in@who.eop.gov; _ . Matthew _f. _ Smith@who.eop.gov; alex_dahl@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov; Mercedes _ M._ Viana@who.eop.gov II Subject : President 's comments tonight on judges at NRSCdinner And for a stronger America, we nee d good judges. We need people who will not write the law from the benches , but people who strictly interpret the Constitution. I have been appalled at what has taken place in the United States Senate recently . I named two good judges, one from Mississippi and one from my home state of Texas - Charles Pickering, Pricilla Owen. Their re cords were distorted. I don 't think they were given a fair hearing. Special interests got a hold of the committee. It is not right that these two fine , fine people were denied the bench. Soon the Senate will take up the nomination of Miguel Estrada. Miguel Estrada is an excellent lawyer. He's a fine man. He's an American success story. The Senate should not play politics with this nomination , for he will be an outstanding judge. One of the reasons to change the United States Senate is to make sure the good ju dges I nominate get a fair hearing, a swift vote, and approval. (Applause.) 18-2091-A-000030 Document ID: 0.7.19343.5258 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Thursday, September 26, 2002 5:38 PM To : Benczkowski, Brian A; Dinh, Viet; 'leonard _B._Rodriguez@who.eop.gov '; Charnes, Adam ; Bryant, Dan; Brown, Jamie E (OLA); Benedi, Lizette D; Goodling, Monica; Scottfinan, Nan~ O' Brien, Pat; Koebele, Steve; Keefer, Wendy J; Hall, William; IIIIIIIIIIIIIII Willett, Don; ' Brett_ M._ Kavanaugh@wno.eop.gov'; 'Rena _Johnson@judiciary.senate.gov' ; 'alafferty@traditionalvalues.org '; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_ Goeglein@who.eo . ov' · 'K le Sam son who.eop .gov'; 'Heather _Wi ngate@who.eop. ov'; 'Matthe ..v_E._Smith@w ho.eop .gov'; ; ·a1ex_ aani@JuC11c1ary.senate.gov'; 'Manuel _ Miran da@judiciary.senate.gov'; 'Rena_Johnson@judiciary.senate.gov '; Charnes , Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject : Estrada conferen ce call Importance: High Tonight at 6 pm. telephone number passcode- - 18-2091-A-000031 Document ID: 0.7.19343.8467 Brett_M ._Kavanaugh@who.eop .gov From: Brett_ M._ Kavanaugh@who.eop.gov Sent : Wednesday , November 27, 2002 3:03 PM To: Manuel Miranda Cc: Willett , Don; Dinh, Viet; alex dah l; Heathe r_ Wingate@ who.eop.gov Subject : Re:RE: Your help Attachments: pic13064 .pcx I will ask Meh lman today about that date. (Embedded image moved Manue l_Miranda@judiciary.senate.gov to file: Miranda) pic13064.pcx) 11/ 27/ 2002 02:57:08 PM {Manuel Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: Re:RE: Your help We could also hold it at a nearby site such as Heritage , if that solves a prob lem, if there is one . _________ Reply Separator _________ Viet " Date: 11/ 27/ 2002 2:43 PM Subject: RE:Your help Author: "Dinh; Manny, Thanks for your message. I do thin k it would be helpful for us to attend ; whether doing so would be appropr iate for OLP folks as DoJ officia ls is a matter that I will have to consider after proper consultations. Many th a nks, Viet - Original Message- -- AM OVERSIGHT Documen t ID: 0.7.19343 .8726 18-2091-A-000032 From: Manuel Miranda [mailto :Manuel _ Miran da@judiciary.senate.gov] Sent: Wednes day, November 27, 2002 2:38 PM To: Willett, Don; Dinh, Viet; Brett_ M._ Kavanaugh@who.eop .gov; Heather_ Wingate@who.eop.gov; Alex Dahl Subject: Your help Brett, I mentioned to you that Makan thought it would be useful to schedule a visit from Ken Melman and others to do a presentatio n for all Judiciary counsel and staff on the re-suits of the election , particularly if they can extrapolate- any conclusions regarding our issues, especially judges . I thought that we might invite the OLP staff and you all to join us, and perhaps key othe rs. As Grover Norquist did, once-the WH team is scheduled we will invite a couple of other outside groups with polling analysis to do their presentations to follow. All of this will be very helpful as we develop message and strategy in the months to come. The target date and time might be Wednesday, Dec 4 at 3:00, and if not on Thursday afternoon anytime. Please let me know. Thanks, Manny Received: from mailsims1.senate.gov ([156.33.203 .10]) by mailexch .senate.gov with SMTP (IMA Internet Exchange 3.13) id 00066844; Wed, 27 Nov 2002 14:44:23 -0500 Received: from navgw2.senate .gov by mailsims1.senate.gov (Sun Internet Mail Serve r sims.3.5.2000.03.23.18.03.plO ) with SMTP id <0H69003V82YT4Y@mailsims1.senate.gov>; Wed, 27 Nov 2002 14:47 :17 -0500 (EST) Received: from wdcsun022.usdoj.gov ((149.101.1.103]) by navgw2 .senate.gov {SAVSMTP3.0.0.44) with SMTP id M20021127 14414329796; Wed, 27 Nov 2002 14:4 1:43 ~0500 Received : from wt6.usdoj.gov (localhost [127.0.0.1)) by wdcsun022.usdoj.gov (Netscape Messaging Server 4.15) with ESMTPid H692TJ01.86E; Wed, 27 Nov 2002 14:44:07 -0500 Received: (from x400@1ocalhost) by wt6.usdoj.gov (8.9.3 (PHNE_24419)/8.9.3) id OAA14129; Wed, 27 Nov 2002 14:44:06 -0500 (EST) Received: by TELEMAIL;Wed, 27 Nov 2002 14:43:24 -0500 Date: Wed, 27 Nov 2002 14:43:24 -0500 From: "Dinh, Viet" Subject: RE: Your help To: "Willett, Don" (Receipt Notification Requested) , 'Manuel Miranda' (Receipt Notification Requested) (1PM Return Requested), '"Brett_M._Kavanaugh@who.eop.gov"' <8rett_M._Kavanaugh@who.eop.gov> (Receipt Notification Requested), "'Heather _ Wingate@who.eop.gov"' (Receipt Notification Requeste d), 'Alex Dahl' (Receipt Notification Requested) Message -id: <"JMD0081-021127194324Z -108595* /PRMD=USDOJ-JCON/A OMO=/C=US/"@MHS> Autoforwarded: FALSE Content-identifier: RE: Your help MIME-version: 1.0 XMailer: NetJunction (NetJunction S.1.1-p2)/MIME Content -type: TEXT/PLAIN;CHARSET=US-ASCII Importance: Normal Original-encoded-information-types : IAS-Text Priority: Normal Precedence: firstclass UA--content-id: RE: Your help X400-MTS-identifier: (/P=USDOJ-JCON/A=/C=US/;JMD008 1021127 194324Z-108595) X-Priority: 3 (Normal) Message Sent To:__________________________ _ "Dinh; Viet" Alex_Dahl@judiciary.senate.gov (Alex Dahl) 11 \Alillatt• nnn AM OVERSIGHT Document ID: 0.7.19343 .8726 11 <'nnn \r\lillattm),icrtni an\l':,. fQ0,-0int Nntifi,-<>tinn 18-2091-A-000033 .. . IIIC:'l.'1., ...,v , I -....,v • •• • " l lltwderaticmby the JudiciaryCommifflfft.w. mank you iU1dlook fo:wa:d to JuatSce Owen's swift approval, On bahallof fonneT frei,d'Qlts of ca ~k9'Icxa-, Slab Tartt James8 . Sain Hon. Tom B.ltamey,Jr. Lonny D. Moni&On OulrlesR.OlWl ~Ptna Qusr}g cc: l. Smith Juno. Bowmer Travis o . Shelton ·. M. Colleen Mdiugh l.ib«rato G1b,onGayle,Jr. ' David J.Beck Lyiu-.6 . Cullen9mith The Honorable Orrii\ G. Hatch Office of Legal Policy U.S. JusticeDepartment 18-2091-A-000058 Document ID : 0 .7 .19343 .8058-000001 Sutton, Jason Subject: Conference Call Re Priscilla Owen Nomination Start: End: Tuesday, July 16, 2002 6:00 PM Tuesday, July 16, 2002 6:30 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Sutton, Jason O'Brien, Pat; Goodling, Monica; Corallo, Mark; Charnes, Adam; Willett, Don; Koebele, Steve; Keefer, Wendy J; Remington, Kristi L; Sales, Nathan; 'Anne_Womack@who.eop.gov'; 'brett_m._kavanaugh@who.eop.gov'; b(6) Jennifer Oschal email 'Heather_Wingate@who.eop.gov 'Alex_Dahl@judiciary.senate.gov'; 'Manuel_Miranda@judiciary.senate.gov'; 'Tim_Goeglein@who.eop.gov'; 'Matthew_E._Smith@who.eop.gov'; 'joe_jacquot@hutchison.senate.go b(6) Kay Daly email ' b(6) Barbara Ledeen Senate Email Dial In: Passco (b) (6) VERSIGHT Document ID: 0.7.19343.8018 18-2091-A-000059 Sales, Nathan Sales, Nathan Monday, July 22, 2002 10:14 AM Willett, Don; 'Anne Womack (E-mail)'; Goodling, Monica Dinh, Viet; Remington, Kristi L; Koebele, Steve; 'Brett Kavanaugh (E-mail)'; 'Manuel Miranda (E-mail)'; 'Alex Dahl (E-mail)' Subject: RE: we've reformatted the John Hill op-ed (which no paper has picked up) into a strong pro-Owen letter Attachments: John Hill letter.pdf From: Sent: To: Cc: All, here's a PDF version of the same letter. Happy distributing! -----Original Message----From: Willett, Don Sunday, July 21, 2002 6:34 PM Sent: To: Anne Womack (E-mail); Goodling, Monica Dinh, Viet; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Brett Kavanaugh (E-mail); Manuel Miranda Cc: (E-mail); Alex Dahl (E-mail) we've reformatted the John Hill op-ed (which no paper has picked up) into a strong pro-Owen letter Subject: Here it is, complete with electronic signature. Please blast around far and wide. << File: John Hill letter.DOC >> VERSIGHT Document ID: 0.7.19343.5118 18-2091-A-000060 John L. Hill JP Morgan Chase Tower 600 Travis Street, Suite 3400 Houston, Texas 77002 (713) 226-1230 July 19, 2002 Via Facsimile (202) 224-9516 and First Class Mail The Honorable Patrick Leahy Chairman, Committee on the Judiciary United States Senate 224 Russell Senate Office Building Washington, D. C. 20510 Dear Chairman: President Bush honored impeccable integrity, character, and scholarship when he nominated to the U.S. Court of Appeals for the Fifth Circuit a leading voice for reform in the Texas judiciary: Priscilla Owen. I came to know Justice Owen several years ago during her service on the Texas Supreme Court, where I had previously served as Chief Justice. Then and now, Justice Owen has distinguished herself as a forceful advocate for reforming Texas’s system for selecting judges. Under the state Constitution, for more than 125 years, Texas has selected its judges through contested elections, and the law therefore permits judicial candidates to receive campaign contributions. The system has positive aspects, but one of the downsides is that it invites speculation about whether judges should preside in cases where their contributors appear as attorneys or parties. That’s why Justice Owen tirelessly has fought to minimize the influence of campaign contributions in judicial elections. Reflecting her early commitment to the integrity of the courts, Justice Owen signed a judicial reform pledge during her first campaign in 1994. She has championed several proposed constitutional amendments, including an option for judges to run in non-partisan retention elections. She has written to members of the bench and bar, urging them to back reform. She has argued that the judiciary should be above the influence of partisan politics. And in a unique combination of symbolism and substance, Justice Owen returned over a third of her campaign contributions after not drawing a Democrat or Republican opponent during her 2000 re-election campaign. Justice Owen and I would be the first to admit that the Texas judicial-selection system is in need of reform. But some special interest groups confuse flaws in our system with flaws in our judges. These groups insist on denouncing individual members of the judiciary, when reform of the laws they dislike can only come from amending the Texas Constitution, which Justice Owen strongly supports. AMERICAN PVERSIGHT Document ID: 0.7.19343.5118-000001 18-2091-A-000061 The Honorable Patrick Leahy July 19, 2002 Page2 Their attacks on Justice Owen in particular are breathtakingly dishonest, ignoring her long-held commitment to reform and grossly distorting her rulings . Tellingly, the groups make no effort to assess whether her decisions are legally sound, and instead are content to fall back on the canard of an "appearance of impropriety." Nor have they so much as acknowledged Justice Owen's unswerving leadership in seeking reform reforms of which they presumab ly approve. The groups lack credibility when they attack Justice Owen for participating in a system that has been in place longer than a century, is mandated by the Texas Constitution, and is not within her ability to change by herself I know Texas politics and can clearly say that these assaults on Justice Owen's record are false, misleading, and deliberate distortions . After years of closely observing Justice Owen's work, I can assert with confidence that her approach to judicial decision-making is restrained, that her opinions are fair and well reasoned, and that her integrity is beyond reproach. I echo the American Bar Association's unanimous conclusion that she is "well qualified" for the federal bench the highest rating possible. United States Senators from both sides of the aisle have called the ABA's rating the "gold standard" of a nominee's fitness for the federal bench, and I agree with them. I know personally just how impeccable Justice Owen's credentials are. After graduating in 1977 from Baylor Law School with honors at the top of her class, Justice Owen earned the highest score on the Texas bar exam. Her academic excellence foreshadowed the exceptional career to follow. Elected twice by the people of Texas, Justice Owen has served with distinction on the Texas Supreme Court for more than seven years. In 2000, every major Texas newspaper endorsed Justice Owen during her successfu l re-election bid. President Bush and both Senators from Texas strongly support Justice Owen. I join them and many, many others of all political stripes in calling on the U.S. Senate to give this intelligent, ethical, and gifted woman a fair hearing and swift Senate confirmation . Very truly yours, John L. Hill JLH:br cc: AMR Via Facsimile (202) 228-169 8 and First Class Mail The Honorable Orrin Hatch United States Senate 152 Dirksen, Senate Office Building Washington, D. C. 20510 AN OVERSIGHT Document ID: 0.7.19343.5118-000001 18-2091-A-000062 Willett, Don Willett, Don Monday, July 22, 2002 4:23 PM Charnes, Adam; 'alex_dahl@judiciary.senate.gov'; 'anne_womack@who.eop.gov b(6) Barbara Ledeen Senate Email 'brett_m._kavanaugh@who.eop.gov'; 'heather wingate@who.eop.gov'; b(6) Jennifer Oschal email 'joe_jacquot@hutchison.senate.go b(6) Kay Daly email Remington, Kristi b(6) Leonard Leo personal email 'manuel_miranda@judiciary.senate.gov'; Corallo, Mark; 'Matthew_E._Smith@who.eop.gov'; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; Scottfinan, Nancy; Leonard Leo (E-mail); Dinh, Viet; Koebele, Steve; Sales, Nathan; Sutton, Jason Reminder -- 6:00 p.m. Priscilla Owen Conference Call Today... From: Sent: To: Subject: - Dial In: (b) (6) Passcode: -----Original Message----From: Washington, Tracy T Sent: Friday, July 19, 2002 5:51 PM To: Adam Charnes; alex dahl@judiciary.senate.gov; anne womack@who.eop.gov; b(6) Barbara Ledeen Senate Email ; brett m. kavanaugh@who.eop.gov; Don Willett; heather wingate@who.eop.gov; joe jacquot@hutchison.senate.go b(6) Jennifer Oschal email b(6) Kay Daly email Kristi Remington b(6) Leonard Leo personal email ; manuel miranda@judiciary.senate.gov; Mark Corallo; Matthew E. Smith@who.eop.gov; Pat O'Brien; Tim Goeglein@who.eop.gov Subject: Reminder -- 6:00 p.m. Priscilla Owen Conference Call Today... Importance: High --- Friday, July 19 - Dial In: (b) (6) Passcode: Tracy Washington U.S. Department of Justice Office of Legal Policy Room 4640 (202) 514 2737 VERSIGHT Document ID: 0.7.19343.8122 18-2091-A-000063 Sutton, Jason From: Sent: To: Sutton, Jason Tuesday, July 23, 2002 9:47 AM 'alex_dah l@jud iciary.senate .gov'; 'anne _womack@who .eop .gov '; 'brett _ m._kavanaugh@ w ho .eop .gov'; 'heather w in ate@who .eop .gov'; 'joej acq uot@hutch ison .senate .gov'; '·, Subject: Importance: '·, 'man uel_ mi randa@jud iciary .senate .gov'; 'Matthew _ E._Smith@who .eop .gov'; O'Br ien, Pat; Corallo, Mark; Remington, Krist i L; W illett, Don; Charnes, Adam; Dinh, Viet; 'Tim_Goegle in@who .eop .gov '; Sales, Nathan Priscilla Owen Conference Call w ill be at 5:00 tod ay, not 6:00 High Tonight's Priscilla Owen Conference call will be at 5:00 instead of the usual 6:00. Call-in numbers and passcode will remain the same. thank you. Dial In: Passcode: - AMR AN OVERSIGHT DocumentID: 0.7.19343.8130 18-2091-A-000064 Willett, Don From: Sent: To: Cc: Subject: Willett, Don Thursday, September 5, 2002 3:56 PM Willett, Don; Remington, Kristi L; Charnes, Adam; 'alex_dahl@judiciary.senate.gov'; 'anne_womack@who.eop.gov'; 'brett_m._kavanaugh@who.eop.gov'; b(6) Barbara Ledeen Senate Email 'heather_wingate@who.eop.gov'; 'JCartoon@shb.com'; b(6) Jennifer Oschal email 'joe_jacquot@hutchison.senate.go b(6) Kay Daly email b(6) Leonard Leo personal email '; 'manuel_miranda@judiciary.senate.gov'; 'Matthew_E._Smith@who.eop.gov'; Goodling, Monica; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; 'vschwartz@shb.com'; Sales, Nathan; Brown, Jamie E (OLA); 'Leonard Leo (E-mail)'; Dinh, Viet; 'Rena Johnson (E-mail)' Washington, Tracy T BRIEF final Owen Conference Call tonight at 6:00 It'll be short-and-sweet. Dial In: Passcode: VERSIGHT Document ID: 0.7.19343.8247 (b) (6) 18-2091-A-000065 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Monday , September 23, 2002 5:41 PM To : Remington , Kristi L; Chames , Adam; Willett , Don; Keefer, Wendy J; Benedi , Uzette D;Sales , Nathan ; Koebele , Steve; 'Tim_goeglein@who.eop .gov ' ; ' Kyle_Sampson@who.eop.gov '; ' Heather_W i ngate@ e womack@ who.eo . ov' ; Goodl in , Monica Hall, William; Brown, Jam ie E (OLA); ' matth e w_e._sm ith@who.eop.gov '; O' Brien, Pat; 'alex _ dah l@jud iciary.senate.gov ' ; Dinh, Viet; Scottfinan, Nancy ; 'Brett M. Kavanaugh (E-mail) '; ' Manuel Miranda (E-mai l)'; ' Rena Johnson (E-mail)' ; Bryant, Dan; 'e d_ haden@judiciary.senate.gov ' Cc: Sutton, Jason Subject : Reminder. Estrada conferen ce call at 6 pm Importance : High ,n Reminde r Conference call re: Estrada nomination tonight at 6:00 pm; then ente ~ 18-2091-A-000066 Document ID: 0.7.19343.8429 Brett_M ._Ka vanaugh@ wh o.eop .gov From : Brett_ M._ Kavanaugh@who.eop .gov Sent : Friday, February 28, 2003 8:59 AM To: Miranda , Manue l (Frist) Cc: Benczkowsk i, Brian A; Brown, Jamie E (OLA); Corallo, Mark; Good ling, Monica; Dinh, Viet; /ODV=rena _ comisac_johnson@judiciary.senate .gov/ODT=RFC822/0=INETGW/P=GOV+DOJ/A=TELEMAIL/C=US /; duffield, steven (rpc); srushton@cagw.org; a a erty@tra itiona va ues.org; dahl , alex (judiciary); tapia, margarita (judiciary); higgin~ ry); delrahim, makan (judiciary); tewart , don (cornyn); keys, elizabeth (republican-conf) ; wichterman, bill (frist); vogel, alex (frist ); stevenson, bob (frist); jacobso n, paul (frist); Merc edes_M._ Viana@who.eop.gov; Tim_ Goeglein@who.eop.gov; Abel_ Guerra@who .eop.gov; Leonard_ 8._ Rodriguez@who.eop .gov; neil.bradley@mail.house.gov; simmons , kyle (mcconnell); abegg, john (mcconnell); gum erson, katie (rpc}; ma rgaret .hoover@mail.house .gov; omar.franco@mai l.house. gov Subject : CONFERENCECALLINFO re Estrada Phone Conf/ Friday at 11 :15 Attachme nts : ATTACHMENT.TXT; ATTACHMENT.TXT; pic12193.pcx Friday, Feb. 28th 11:1Sam- 12:1Spm Dial in# 18-2091-A-000067 Document ID: 0.7.19343.9245 - (b) (6) (Embedded image moved "Miranda, Manuel (Frist)" to file: pic12193.pcx) 02/27/2003 06:39:27 PM Record Type: To: Record See the distribution list at the bottom of this message cc: margaret.hoover@mail.house.gov, omar.franco@mail.house.gov Subject: Estrada Phone Conf/ Friday at 11:15 18-2091-A-000068 Document ID: 0.7.19343.9245-000001 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who .eop.gov Sent : Thursday, March 6, 2003 10:03 PM To: Comisac, RenaJohnson (Judiciary) Cc: Charnes, Adam; Benczkowski, Brian A; Brown, Jamie E (OLA};Koebele, Steve ; Dinh, Viet; Wen dy_J._Grubbs@who.eop.gov; ho, James (judiciary}; jacquot, joe (hutchison); miranda, manuel (frist}; delrahim, makan (judiciary}; caramanic a, jessica (judiciary); s nell, bethann (judiciary); dahl, alex (judiciary) Subject : Re: Tearn Owen Meeting Attachments : att 1.htm; ATTACHMENT.TXT;pic29570.htm At the risk of causing major problems , can we move this important meeting to 3:15. I have immovable 2:00 meeting here I have to be at. (Embedded imag e moved "Comisac, RenaJohnson (Judiciary)" to file: pic29570 .pcx) 03/06/2003 06:08:24 PM Recor d Type : Reco rd To: See the dist ribution list at the bottom of this message cc: "Delrahim, Makan (Judiciary)" , "Caram a nica, Jessica Judicia " <. , "Snell, BethAnn (Jud iciary)" , "Dahl, Alex {Judiciary)" Subject: Tearn Owen Meeting There will be a meeting tomor row at 2 p.m . in Makan ' s office (SD-147) to discuss strategy for next week's hearing on Priscilla Owen. Please feel free to forward this message to anyone on the team whom I've inadvertently left off the list . Thanks. 18-2091-A-000069 Document ID: 0.7.19343.9279 Washington, Tracy T Washington, Tracy T Monday, March 10, 2003 10:16 AM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; Manuel_Miranda@frist.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Sheila Joy; Steve Koebele; Viet Dinh; Wendy_J._Grubbs@who.eop.gov; William Hall 4:00 p.m. Judicial Working Group Conference Call is Cancelled today. Subject: Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 VERSIGHT Document ID: 0.7.19343.5551 18-2091-A-000070 Brett_M ._Ka vanaugh@ wh o.eop .go v From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday, March 27, 2003 4:46 PM To : Benczkowski, Brian A; Brown, Jamie E (OLA);Dinh, Viet; manuel _miranda@frist.senate.gov; rena _john son_ comisac@judiciary .senate.gov; steven_duffield@rpc.senate.gov; alex_dahl margarita _tapia@judiciary.senate.gov; 11. , .J •• . 1 II • .a: · nate.gov; don_ste wart@cornyn.senat e.gov; bill_wichterman@frist.senate.gov; a lex_vogel@frist.senate.gov; bob_steve.nson@frist.senate.gov; paul_jacobson@frist.senate.gov; Tim_ Goeglein@who.eop.gov; neil.bradley@mail.house.gov; ; katie_gum erso n@rpc.senate.gov; ashley _snee@oa.eop .gov; Wendy_J._ Grubbs@who.eop.gov; Jeanie 5. Mamo@who.eop. ov; Matthew_E._Smith@who.eop.gov; Subjec t: Updated: Status of Circuit Nominees Attachme nts : ATTACHMENT.TXT 108th Congress 18-2091-A-000071 Document ID: 0.7.19343.9588 ? Circuit Nominees Confirmed (1) Jay Bybee (9th Nevada) On Executive Calendar (6) Miguel Estrada (DC) John Roberts (DC) Priscilla Owen (5th Texas) Jeff Sutton (6th Ohio) Deborah Cook (6th Ohio) Tim Tymkovich (10th Colorado) In Judiciary Committee (12) Richard Wesley (2nd New York) Michael Chertoff (3rd New Jersey) Terry Boyle (4th North Carolina) Ed Prado (5th Texas) Charles Pickering (5th Mississippi) David McKeague (6th Michigan) Susan Neilson (6th Michigan) Richard Griffin (6th Michigan) Henry Saad (6th Michigan) Steve Colloton (8th Iowa) Consuelo Callahan (9th California) Carolyn Kuhl (9th California) To be nominated (9) D.C. Circuit D.C. Circuit 3rd Circuit (Pennsylvania) 3rd Circuit (Pennsylvania) 4th Circuit (NC/VA/MD) 4th Circuit (NC/VA/MD) 9th Circuit (Idaho) 9th Circuit (California) 11th Circuit (Alabama) AMERICAN PVERSIGHT Document ID: 0.7.19343.9588-000001 18-2091-A-000072 Dinh, Viet From : Dinh, Viet Sent : Tuesday, April 1, 2003 6:03 PM To : 'Miranda, Manuel (Frist)'; Benczkowski, Brian A; ' Brett _ M._ Kavanaugh@who.eop.gov ' Subject : RE: Principal's Meeting I have testimony on Victims Rights Amendment before SJC next tuesday morning, but am clear thereafter. -Original Message-From: Miranda, Manuel (Frist) (mailto:Manuel_Miranda@frist.senate.gov] Sent: Tuesday, April 01, 2003 3:18 PM To: Benczkowski, Brian A; Dinh, Viet; Brett_ M._ Kavanaugh@who.eop .gov Subject: FW: Principal's Meeting Viet and Brett, Can you tell me what day early next week works for you for a Principal's Meeting? Monday? -Original Message-From: Bainwol, Mitch (Frist) Sent: Tuesday, April 01, 2003 3:09 PM To: Miranda, Manuel (Frist); Voge l, Alex (Frist) Subject: RE: Principal 's Meeting Frist wants to do one next week. Thurs or Fri seem risky, so would do earlier. -Original Message--From: Miranda, Manuel (Frist) Sent: Tuesday, April 01, 2003 2:18 PM To: Bainwol, Mitch (Frist); Vogel, Alex {Frist) Subject: Principal 's Meeting We might want to start the process of identifying a day for a Principal's Meeting by inquiring on day availability for Judge Gonzalez and Viet Dinh. Then pick a time around the Leader's schedule. Also Senator Cornyn has asked to be include d, an d we might do well to include Specter on this one. The old regulars were leadership plus self-selected JC members, but leadership now includes three of these: McConnell, Kylc1nd Sessions. We might consider newly asking other JC members if they want in. 18-2091-A-000073 Documen t ID: 0.7.19343.9601 Dinh, Viet From : Dinh, Viet Sent : Friday, April 25, 2003 2:26 PM To : 'Manuel_Miranda@frist.senate.gov'; Brown, Jamie E (OLA);Benczkowsk i, Brian A; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'wgrubbs@who.eop.gov ' Cc: McNaught , Heather Subject : RE:Scheduler notification from Capitol Correspond Unfortunately , I will then be en route to , but please do not reschedule on my account. The Department will be well represented by Jamie and Brian. - Original Message-- From: Manuel_Miranda@frist.senate.gov [mailto:Manuel _ Miranda@frist.senate.gov] Sent~ Friday, April 25, 2003 2:23 PM To: Brown, Jamie E (OLA};Benczkowski, Brian A; Dinh, Viet; Brett_ M._Kavanaugh@who.eop.gov; wgrubbs@who.eop.gov Subject: FW: Scheduler notification from Capito l Correspond Importance: High Regrettably , we nned to move the Principals ' meeting to Thursday as below. WHF and OGH are clear. Please advise. - Original Message- From: Senator _frist@fr ist.senate-.gov (mailto:Senator _frist@frist.senate.gov) Sent: Thursday , April 24, 2003 6:52 PM To: Vogel, Alex (Frist); Bainwol, Mitch (Frist); Miranda, Manuel (Frist} Subject: Scheduler notification from Capitol Correspond SCHEDULINGNOTIFICATION Description: (tentative) Meeting GOP Judiciary Committee Members with Judge Albert Gonzales, WH legal Counsel and Viet Dinh Status: Approved Start Date: 05/01/2003 Start Time: 04:45 pm End Date: 05/01/2003 End Time: 05 :30 pm Location: S-230 Contact: manny coordinating 18-2091-A-000074 Documen t ID: 0.7.19343.9702 U.S. Department of Justice Office of Information Policy • Suite 11050 1425 New York Avenue, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 October 17, 2018 Mr. Gabe Roth Fix the Court 1440 G Street NW, Suite 801 Washington, DC 20005 gabe@fixthecourt.com Re: DOJ-2018-007104 (OLP) 18-cv-02091 (D.D.C.) VRB:SJD Dear Mr. Roth: This is our second interim response to your Freedom of Information Act (FOIA) request dated and received in this Office on July 24, 2018, for correspondence between the Office of Legal Policy and Brett Kavanaugh from January 20, 2001 to May 30, 2006. This response is made on behalf of the Office of Legal Policy (OLP). In our letter dated October 5, 2018, we provided you with an interim release of seventyfour pages containing records responsive to your request. At this time, I have determined that an additional 619 pages are appropriate for release without excision, and copies are enclosed. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2012 & Supp. V 2017). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. If you have any questions regarding this response, please contact Laura Hunt of the Department’s Civil Division, Federal Programs Branch at (202) 616-8207. Sincerely, Vanessa R. Brinkmann Senior Counsel Enclosures VERSIGHT Schauder, Andrew Schauder, Andrew Wednesday, September 5, 2001 11:28 AM Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; Martinson, Wanda S; 'Ziad_S._Ojakli@who.eop.gov%inetgw' Subject: Judicial Media Review Attachments: Judicial Media Review 9-04-01.wpd From: Sent: To: Attached is the Judicial Media Review from yesterday (9/4) VERSIGHT Document ID: 0.7.19343.5702 18-2091-B-000001 Media Review - Judicial Nominations Tuesday, September 4, 2001 General Judicial Articles "Schumer Says Bush’s Nominees Should Have To Persuade Senators To Give Them Judgeships," Jesse Holland, The Associated Press, September 4, 2001 2 "Bar Questions Bush Nominee About Ethics," Courtney Kinney, The Kentucky Post, August 31, 2001 3 "Hispanic Leaders Rally In Support of Judicial Nominee," The Associated Press, August 31, 2001 5 "Trial Lawyer Blasts Judge Nomination," Maria Titze, The Deseret News, August 31, 2001 6 "Utah Defense Attorneys Oppose Nomination Of Cassell To Federal Court," The Associated Press, August 31, 2001 7 "U. Prof's Bench Nomination Questioned; Cassell 's Road To Federal Bench Full Of Potholes," Greg Burton and Michael Vigh, The Salt Lake Tribune August 31, 2001 8 Op/Eds "AR Joins 'Shake The Nation' Campaign, Says It's Time To Restore Sense To Judiciary; 'The Era Of Judicial Activism And Social Engineering Under The Color Of Law Must End,' Says Richard Lessner, Executive Director," PR Newswire, September 4, 2001 10 "Yes, Litmus-Test For Judges," Joseph Califano, Jr., The Washington Post, August 31, 2001 11 "Too Late For Arguello?" Rocky Mountain News, September 1, 2001 13 "Judges And The Constitution; Everything Is Politics, Nothing Is Principle," Roger Pilon, The National Review, September 4, 2001 14 Transcripts/Members of Congress 1 VERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000002 *NONE* Interest Groups/Press Releases "Judging Terry" Jake Tapper, Salon.com, September 1, 2001 www.salon.com/politics/feature/2001/09/01/wooten/index.html 16 General Judicial Articles Schumer Says Bush’s Nominees Should Have To Persuade Senators To Give Them Judgeships By Jesse Holland The Associated Press Tuesday, September 4, 2001 President Bush's judicial nominees should have to fight to get lifetime federal judgeships instead of senators having to find reasons to keep them off the federal bench once they're nominated, a top Judiciary Committee Democrat said Tuesday. "Given the stakes at hand, it makes sense that the burden should rest with the nominees," said Sen. Charles Schumer, D-N.Y., head of the Senate Judiciary subcommittee on judges. "We require parties who appear before a court to prove their case. It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same." Conservatives immediately accused Schumer of trying to find ways to keep Bush's nominees from being confirmed in the Democrat-controlled Senate by changing the traditional deference senators give most presidential nominees. "Democrats want an excuse to vote against a qualified nominee if he doesn't share their politics," said Thomas Jipping, director of the Free Congress Foundation's Judicial Selection Monitoring Project. "In advocating a shifting of the burden of proof, Democrats want an excuse to vote against a qualified nominee who doesn't answer their political questions." The GOP has been complaining about the pace of approval of judicial nominations under the Democrat-controlled Senate. There are at least 107 vacancies in the federal court system, and there are 44 judicial nominations pending. Only four judges have been confirmed by the Senate this year. Sen. Jeff Sessions, R-Ala., the ranking Republican on the subcommittee said he could see that very thing happening. "The Democrats could say that they would vote against a nominee if he answers a question in a 2 VERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000003 manner that shows he is conservative," he said. "On the other hand, the Democrats could say they would vote against a nominee if he refuses to answer their questions because he hasn't borne his burden." Schumer, who held a hearing to explore whether nominees should have to prove they're worthy to get a lifetime judgeship, said forcing candidates to defend their nominations would net more qualified judges. "Imagine a job interview where you walk in and it's up to the interviewer to either automatically hire you or find something in your past that disqualifies you," Schumer said. "Provided you sit there with your mouth shut, or at the most, voice meaningless platitudes, and as long as there's no major skeleton in your closet, you're a shoo-in for the job. Is that the best way to find the best person for the job? Of course not." Republicans disagreed. "The most significant burden born by a candidate for a judgeship is to convince the president that he or she is the best person for the job," said Sen. Orrin Hatch of Utah, the Judiciary Committee's top Republican. Added Sen. Mitch McConnell, R-Ken.: If nominees "are men and women of integrity, are qualified, have a judicial temperament, and will follow the Constitution and statutes as they are written and intended, then we should confirm them." Bar Questions Bush Nominee About Ethics By Courtney Kinney The Kentucky Post Friday, August 31, 2001 The American Bar Association is asking questions about the ethics of a Lexington lawyer whose nomination for a federal judgeship by President Bush could station him in Covington. Prestonsburg lawyer Ned Pillersdorf said an attorney from the ABA called him earlier this week asking about Danny Reeves, 44, a judicial nominee who defended environmental lawsuits against Ashland Inc. in the 1990s. The ABA caller wanted more information about a letter Pillersdorf wrote to the Senate Judiciary Committee last month saying Reeves negotiated a settlement in 1997 that required several plaintiffs' lawyers to agree not to sue Ashland Inc. in the future with new clients. The cases involved nearly 40 residents of Lawrence and Johnson counties who claimed Ashland harmed their health and property when it dredged up radioactive material in the Martha oil field. Shortly before the cases were to go to trial, a confidential settlement agreement giving residents an undisclosed amount of money was signed. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000004 A Kentucky Supreme Court rule says lawyers can't make part of a settlement any agreement that would keep another lawyer from practicing. ''I don't think this is a trivial ethical violation,'' said Pillersdorf, who is representing a second batch of residents suing Ashland, now based in Covington. ''There's a reason the Supreme Court has that rule.'' Because the settlement was confidential, it is not known whether such a provision was actually in the agreement. But Pillersdorf said the lawyers' deal not to sue again has been common knowledge. ''I'm kind of surprised to see Ashland disputing it. It's not been a secret,'' he said. Shortly after the March 1997 settlement, several dozen more residents of the Martha area filed their own suits against Ashland Inc. No lawyer from the first group of cases is handling cases for the second. ''It's quite odd,'' Pillersdorf said. The ABA will not say whether it is investigating Reeves, said Boston lawyer Roscoe Trimmier Jr., chairman of the ABA standing committee on the federal judiciary. The ABA has been asked by the Senate Judiciary Committee, which confirms appointments, to review all judicial nominations. Ashland spokesman Stan Lampe said Pillerdorf's allegation is bogus and no one at Ashland has been contacted by the ABA regarding Reeves. ''The charge is unwarranted and groundless,'' he said. Reeves did not return calls made to his Lexington office. He is one of three lawyers nominated by Bush to fill judicial vacancies in the Eastern District. One vacancy is in Covington. The other nominees are attorney Karen Caldwell of Lexington and David Bunning, an assistant U.S. attorney in Covington and son of U.S. Sen. Jim Bunning, R-Ky., of Southgate. Hispanic Leaders Rally In Support of Judicial Nominee The Associated Press Friday, August 31, 2001 Area Hispanic leaders are urging Colorado's senators to push for the appointment of Chief Deputy Attorney General Christine Arguello as a U.S. District judge in Denver. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000005 Arguello was appointed to the 10th U.S. Circuit Court of Appeals by President Clinton, but that appointment lapsed because the Senate never held confirmation hearings before Clinton left office. She was among a group of nine people nominated for the federal judgeship by U.S. Sens. Ben Nighthorse Campbell and Wayne Allard, both R-Colo. During a rally Thursday at the state Capitol, about 60 people including leaders of the Hispanic community demanded her appointment to the federal bench. "There has never been a Latino appointed to a federal judgeship in Colorado," said Awilda Marquez, a lawyer and political activist. "One of the country's best and brightest attorneys, Christine Arguello, is a candidate for such a historic opportunity." Allard said there might not be much he and Campbell can do. He said while President Bush has not made an announcement, the two most likely nominees are Robert Blackburn of Las Animas, a former state prosecutor who is now a state district judge; and Marcia Krieger of Littleton, chief judge of the U.S. Bankruptcy Court for Colorado. "It's the president's decision at this point," Allard said. "We've done our part." Allard said he supported Arguello's appointment to the federal appeals court during the Clinton administration. "The bottom line is this president has made it fairly clear to our office that he's interested in putting Republicans in the judiciary," Allard said. Arguello is a Democrat. Marquez said Allard and Campbell still should urge Bush to appoint Arguello. "They have the power to do something about it," she said. "The White House will do whatever the senators want." Arguello, 46, graduated first in her class at the University of Colorado in Boulder and was the first Hispanic woman admitted to Harvard Law School. Trial Lawyer Blasts Judge Nomination Maria Titze The Deseret News Friday, August 31, 2001 In a letter to the chairman of the Senate Judiciary Committee, a Salt Lake City defense attorney is harshly critical of U.S. Sen. Orrin Hatch's latest nomination to the federal bench -- University 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000006 of Utah law professor Paul Cassell. "He's not a practicing Utah lawyer, and I believe that there are lots of trial lawyers in the state who deserve consideration of this judgeship," defense attorney Ron Yengich told the Deseret News. Cassell practiced law in Virginia and Washington, D.C., before joining the faculty at the U. News of Yengich's letter to Vermont Democrat Patrick Leahy came after the American Bar Association made public a mixed review of Cassell's qualifications. While the majority of the 14member ABA rating committee called Cassell "well qualified," a few called him "not qualified." Senior administration officials took the ABA to task Thursday, calling the mixed rating "bizarre," and hinting that the entire rating system was unfair. Roscoe Trimmier Jr., head of the ABA rating committee, insisted the ratings aren't political, but said the committee normally wants a nominee to have been a member of the bar for 12 years. Yengich agrees, but doesn't hold his criticism to Cassell's lack of courtroom experience in Utah. With a growing Hispanic community, Yengich said, "it would be nice to have a little diversity." There is only one minority magistrate -- Samuel Alba -- and no minority judges on Utah's federal bench. Yengich roundly criticized Hatch for making federal judge nominations without more input from local attorneys. "I don't believe that belonging to the Federalist Society and espousing a conservative law-andorder agenda automatically qualifies you to be a federal judge, just because we have a conservative Republican president," Yengich said. But Makan Delrahim, the Republican staff director for the Senate Judiciary committee, said Cassell has bipartisan support in Washington. "This guy's been a litigator, worked at the justice department, and is one of the most prolific (legal) writers," Delrahim said. "And he's a Utahn." Cassell clerked for former Chief Justice of the United States Warren Burger and for current Justice Antonin Scalia when he served on a lower court . Utah Defense Attorneys Oppose Nomination of Cassell To Federal Court The Associated Press Friday, August 31, 2001 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000007 The nomination of University of Utah law professor Paul Cassell to the federal bench is being opposed by a group of Utah defense lawyers. Ron Yengich, one of Utah's most prominent defense attorneys, challenged Cassell's courtroom credentials in a letter this week to the chairman of the Senate Judiciary Committee, Patrick Leahy, D-Vt. "The fact of the matter is that (President) Bush's appointments are being scrutinized more carefully for ideological bent by the people who are now heading the Judiciary Committee," Yengich said Thursday. "And Cassell's ideological stance ... is such that he doesn't deserve to be on the bench - he has never stood up for the rights of the dispossessed or for those charged with a crime," he said. Cassell, an advocate of victims' rights and an opponent of requiring suspects be read their Miranda rights, declined comment, referring questions to the Justice Department. "All of our candidates are highly qualified," said Viet Dinh, assistant attorney general for the Justice Department's Office of Legal Policy. "He has relevant legal experience; I cannot see a reason that anyone would question his ability." Cassell, who practiced law in Virginia and Washington, D.C., before joining the university faculty, never has argued a case in Utah's federal court, according to U.S. District Court records. He has intervened in five cases, arguing each time that defendants' statements should not be suppressed. He is listed as a member of the Salt Lake City law firm of Utah Sen. Orrin Hatch's son, Brent Hatch of Hatch James & Dodge. The U.S. Justice Department held a briefing Thursday on the recently-released American Bar Association rating report on Cassell, in which a majority of the rating committee found him highly qualified. A minority rated him qualified and a small minority rated him not qualified. Dinh called the minority opinion "irrational and bizarre." Dinh and Cassell are both members of the conservative Federalist Society. Salt Lake defense attorney Greg Skordas, a Cassell supporter, said he believes "the inexplicable rating was the result of a somewhat aggressive letter-writing campaign by a minority of defense lawyers in Utah." The nine-member board of directors of the Utah Association of Criminal Defense Lawyers voted unanimously to oppose Cassell's nomination. Skordas, an association member, claims most lawyers in Utah support Cassell. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000008 Mark Moffat, president-elect of the defense lawyers association, said, "Cassell has been at the forefront of limiting or doing away with a whole host of constitutional rights. He's anti-defendant it's a very deep-rooted belief in Professor Cassell's psyche and I'm afraid one he can't divorce himself from when he assumes the bench." U. Prof's Bench Nomination Questioned; Cassell 's Road To Federal Bench Full Of Potholes By Greg Burton and Michael Vigh The Salt Lake Tribune Friday, August 31, 2001 The nomination of University of Utah law professor Paul Cassell to the federal bench, already threatened by the U.S. Senate's political shift, now has been blindsided by a mixed review from the American Bar Association and a negative campaign by a group of Utah defense lawyers. Utah's most prominent defense attorney, Ron Yengich, challenged Cassell's courtroom credentials in a letter this week to the chairman of the Senate Judiciary Committee, Vermont Democrat Patrick Leahy. Leahy seized agenda-setting power from U.S. Sen. Orrin Hatch, R-Utah, on June 6, after Vermont Sen. Jim Jeffords ended his affiliation with the Republican Party and gave Democrats a Senate majority and the right to name committee heads. "The fact of the matter is that Bush's appointments are being scrutinized more carefully for ideological bent by the people who are now heading the Judiciary Committee," Yengich said Thursday. "And Cassell's ideological stance, vis-a-vis John Q. Public, is such that he doesn't deserve to be on the bench -- he has never stood up for the rights of the dispossessed or for those charged with a crime." Cassell, a high-profile advocate of victims' rights and one of the nation's harshest critics of the U.S. Supreme Court's landmark Miranda ruling, declined comment, referring questions to the Justice Department. "All of our candidates are highly qualified," said Viet Dinh, assistant attorney general for the Justice Department's Office of Legal Policy. "He has relevant legal experience; I cannot see a reason that anyone would question his ability." In taking aim at Cassell, Yengich also bemoaned the lack of racial diversity on the federal bench in Utah, which has no minority judges and just one minority magistrate, Samuel Alba. Cassell, who practiced law in Virginia and Washington, D.C., before joining the U. faculty, never has argued a case in Utah's federal court as either a plaintiff or defense attorney, according to U.S. District Court records. He has intervened in five cases, arguing each time that defendants' statements should not be suppressed. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000009 He is, however, listed by the ABA as a member of the Salt Lake City law firm of Sen. Hatch's son, Brent Hatch of Hatch James & Dodge. "This is a Utah seat and it should be filled by a Utah lawyer, someone who is steeped in Utah's history, not somebody who just comes in here and carpetbags into a federal judgeship," Yengich said. "And besides, we already have enough representation from the Scotch-Irish; maybe we should consider somebody whose name ends in a vowel." The U.S. Justice Department held a briefing Thursday on the recently-released ABA rating report on Cassell, in which a majority of the 14-member rating committee found him highly qualified, a minority rated him qualified and a small minority rated him not qualified. Dinh blasted the minority opinion, calling it "irrational and bizarre." The committee, which evaluates litigation, experience and temperament, does not release the numerical breakdown of its votes. Dinh and Cassell are both members of the conservative Federalist Society. Before his appointment to the Justice Department, Dinh investigated Hillary Rodham Clinton, Whitewater and served as a special counsel to U.S. Sen. Pete Domenici during the impeachment trial of President Clinton. Salt Lake City defense attorney Greg Skordas, a Cassell supporter, said he believes "the inexplicable rating was the result of a somewhat aggressive letter-writing campaign by a minority of defense lawyers in Utah." The nine-member board of directors of the Utah Association of Criminal Defense Lawyers voted unanimously to oppose Cassell's nomination. But Skordas, an association member, claims most lawyers in Utah support Cassell. He said Yengich and Cassell once clashed over the latter's intervention in a criminal prosecution against a defendant represented by Yengich. "I'm only trying to make sense of the rating," Skordas said. "He has somehow gotten sideways with Ron." Concern runs much deeper than a single personal quarrel, said Mark Moffat, president-elect of the defense lawyers association. "Cassell has been at the forefront of limiting or doing away with a whole host of constitutional rights," Moffat said. "He's anti-defendant -- it's a very deep-rooted belief in Professor Cassell's psyche and I'm afraid one he can't divorce himself from when he assumes the bench." Cassell has been a law professor at the U. for the past nine years. Before that, he spent three years as an assistant U.S. attorney in Virginia, and he had previously worked for two years as an associate deputy U.S. attorney general in the Justice Department. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000010 In the early 1980s, he clerked for then-U.S. Supreme Court Justice Warren Burger and for Judge Antonin Scalia, who was then in the U.S. Court of Appeals in Washington and now is a Supreme Court justice. Last year, Cassell withdrew his name as one of 14 nominees to the Utah Supreme Court so he could argue a Miranda case before the nation's highest court. As with most of his recent legal experience, Cassell was an intervening attorney for the conservative Washington Legal Foundation on the Miranda case, arguing to weaken certain rights established for the accused by the landmark case. Cassell also represented victims of the Oklahoma City bombing who wanted to attend Timothy McVeigh's Denver trial without jeopardizing their right to later testify about the bombing's impact on their lives. Another U. professor, Michael McConnell, was nominated in May to the 10th U.S. Circuit Court of Appeals in Denver. Given the current Senate makeup and McConnell's controversial views on the separation of church and state, his confirmation is also facing a challenge. Op/Eds AR Joins 'Shake The Nation' Campaign, Says It's Time To Restore Sense To Judiciary; 'The Era Of Judicial Activism And Social Engineering Under The Color Of Law Must End,' Says Richard Lessner, Executive Director The PR Newswire Tuesday, September 4, 2001 For decades Americans effectively have been ruled by an out-of-control federal judiciary run by renegade activist judges who legislate from the bench, said Richard Lessner, Executive Director of American Renewal, the legislative action arm of Family Research Council. Lessner's comments came today at a Washington press conference kicking off a campaign, backed by a broad coalition of conservative organizations, to "Shake the Nation." The campaign is aimed at influencing the U.S. Senate on behalf of President Bush's judicial nominations. "President Bush has promised to nominate jurists who will respect the Constitution's separation of powers doctrine," Lessner said, "and resist the temptation to impose their own political opinions and policy desires upon the law -- often in flagrant disregard for the will of the American people. It is time to restore common sense and respect for the institutions of selfgovernment to the federal judiciary. The era of judicial activism and social engineering under the color of law must end. "For the better part of four decades, a majority of the U.S. Supreme Court has imposed grotesque and fanciful interpretations upon the Constitution, amended the document by judicial fiat, and invented new rights out of whole cloth, the most egregious examples of which are Roe v. Wade, 10 VERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000011 which fabricated a 'right' to abortion, and last year's Stenberg v. Carhart, which threw out 32 state laws against the odious practice of partial-birth abortion. "The Shake the Nation campaign, which American Renewal enthusiastically supports, is meant to demonstrate to the members of the U.S. Senate that millions of Americans want to see fair and impartial jurists, not un-elected and unaccountable oligarchs, appointed to the federal courts and, ultimately, to the Supreme Court." American Renewal, the non-profit legislative action arm of Family Research Council, was founded in 1992 to educate the general public and cultural leaders about traditional American values and to promote the philosophy of America's founding fathers concerning the nature of ordered liberty. Yes, Litmus-Test Judges Joseph Califano, Jr. The Washington Post Friday, August 31, 2001 In considering presidential nominees for district and appellate judgeships, professional qualification alone should no longer be considered a ticket to a seat on the bench. For years partisan gridlock and political pandering for campaign dollars have led to failures of the Congress and White House, whether Democratic or Republican, to legislate and execute laws on a variety of matters of urgent concern to our citizens. As a result, the federal courts have become increasingly powerful architects of public policy, and those who seek such power must be judged in the spotlight of that reality. Years ago battles of the bench were pretty much limited to the Supreme Court: FDR's effort to stack the court with New Dealers, Johnson's attempt to name Abe Fortas chief justice, Nixon's push to seat Clement Haynsworth and Harrold Carswell, and the in-your-face street fights over Robert Bork and Clarence Thomas. Senate scrutiny was painstaking because the nine justices have such a potent voice in setting national policy. In those days, when it came to lower-court nominees, senators deferred to the wishes -- and litmus tests -- of their colleagues from the nominee's state and the president. Until Lyndon Johnson moved into the Oval Office, southern senators such as Mississippi's John Eastland, then Judiciary Committee chairman, insisted that presidents (including John F. Kennedy) nominate segregationist federal judges in their states. LBJ believed Kennedy had made a mistake in bowing to these senators. If there was to be a litmus test, it would be his. As a result, in selecting judicial nominees, those of us who helped check them out and interviewed them nailed down their views on civil rights, desegregation and racial justice. LBJ's insistence on this cost him the friendship of his mentor, Georgia senator Richard Russell, over a federal appellate court seat. The litmus test of recent years has focused on the pro-life or pro-choice views of nominees. It is 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000012 as inconceivable that Ronald Reagan would have sent the Senate a decidedly pro-choice nominee as it was that Bill Clinton would have named a pro-life one. Litmus tests are nothing new. What's new is the growing role of federal courts in crafting national policies once considered the exclusive preserve of the legislature and executive. As gridlock and big money have stymied the House and Senate and shaped the way laws are executed, concerned citizens have gone to court with petitions they once would have taken to legislators and executive appointees. As the federal courts have moved to fill the public policy vacuum, conservatives, liberals and a host of special interests have developed a sharp eye for those nominated to sit on the bench. So should the Senate. The failure of Congress to enact sensible public health policies regarding tobacco to protect our children from nicotine pushers sent anti-smoking advocates to federal court to draft a settlement agreement with provisions that read like sections of a federal statute. While Republican and Democratic administrations and Congresses have been fiddling over a patients' bill of rights, patients have gone to federal court for relief likely to have at least as much impact on health maintenance organizations as anything the politicians at both ends of Pennsylvania Avenue can cobble together. Despairing of more effective legislative or executive action, many cities are asking federal district judges for damages and court orders to restrict the way manufacturers sell handguns and other firearms. Federal District Judge Colleen Kollar-Kotelly's final orders to remedy Microsoft's monopolization may have more to say about the development of the Internet economy that any president, House speaker or Senate majority leader. When the executive does act, say on cigarette marketing or environmental protection, adversely affected businesses rush to court to overturn its actions and regulations. The big bankrollers of drug legalization like George Soros know the difference between a federal judge who can find a way to uphold state medical marijuana laws and one who will find that federal statutes preempt them. Environmentalists, prison reformers and consumer advocates have learned that what can't be won in the legislature or executive may be achievable in a federal district court where a sympathetic judge sits. Federal district judges are the lords of their realms, and unless they open the gates, it can be impossible for the litigating parties to get out once they enter the courtroom kingdom. These judges can hold cases for years, tying up businesses and regulating prisons, cities and schools with detailed court orders. The battle over who fills the record number of judicial vacancies has taken on an importance unimaginable just a generation. Who sits in federal district and appellate courts is more important than the struggle over the budget, the level of defense spending, second-guessing the tax bill and whose fingers are poised to dip into the Social Security and Medicare cookie jars. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000013 President Bush and Republican Sen. Orrin Hatch understand this as surely as Democratic Senate Judiciary Chairman Patrick Leahy and subcommittee Chairman Charles Schumer do. Both sides know that many of the individuals who fill these seats will have more power over tobacco policy, prison reform, control of HMOs, the death penalty, abortion, environmental issues, the constitutionality of redistricting for House elections, gun control and the rights of women and minorities than the president or congressional leaders, and for a longer period of time. That's why professional qualifications should be only the threshold step in the climb of judicial nominees to Senate confirmation. There is not sufficient time to examine each lower federal court nominee with the penetrating policy MRI reserved for Supreme Court justices. But the Senate must take enough time to give these men and women the kind of searching review their sweeping power to make national policies deserves. The writer is president of the National Center on Addiction and Substance Abuse at Columbia University. He was Lyndon Johnson's special assistant for domestic affairs and secretary of health, education and welfare from 1977 to 1979. Too Late For Arguello? Rocky Mountain News Saturday, September 1, 2001 If the Clinton administration had been a little less arrogant, Christine Arguello would probably already be a federal judge. She had not only superb qualifications, but the support of Colorado's two Republican senators, though she's a Democrat. But President Clinton mulishly insisted on pressing other nominations long after it was clear they would never go through, and so by the time he finally nominated Arguello for a vacant seat on the 10th Circuit Court of Appeals, in July 2000, the clock had almost run out on his term and the U.S. Senate never scheduled her confirmation hearings. Now she's among nine candidates for federal judgeships whose names Sens. Wayne Allard and Ben Nighthorse Campbell submitted for President Bush's consideration. But the political reality is that presidents take political philosophy and party affiliation into account when nominating judges, and Arguello's best chance may have been squandered. It's a pity. It would be a bold act for Bush to break from tradition and nominate her. He shouldn't do it. Judges And The Constitution; Everything Is Politics, Nothing Is Principle By Roger Pilon The National Review Tuesday, September 4, 2001 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000014 By Roger Pilon, vice president for legal affairs at the Cato Institute & director of Cato’s Center for Constitutional Studies. Timed nicely for Sen. Charles Schumer's hearings this afternoon on judicial ideology and the Senate confirmation process, Democratic party elder Joseph A. Califano Jr., placed an op-ed in last Friday's Washington Post entitled, "Yes, Litmus-Test Judges." The wraps are now fully off the Democrats' plan to block President Bush's nominees for the federal courts unless they meet a Democratic ideological litmus test. Early in the year, still smarting from the Supreme Court's ruling in Bush v. Gore, academics like Yale Law School's Bruce Ackerman urged Senate Democrats to reject every Bush nominee to the bench until the White House had a legitimate occupant. That was too much, of course. But Senate Democrats, once they regained power, did the next best thing. They've turned the judicial confirmation process into a full-blown ideological affair, with today's only the latest in a series of hearings not on the Bush nominees but on judicial ideology and the Senate's confirmation role. Califano now gives us the rationale for it all. Gridlock and big money, he says, have long kept Congress from legislating on a wide range of urgent matters. As a result, concerned citizens have been plying the courts with petitions they once took to the legislative and executive branches, making the courts "increasingly powerful architects of public policy." Indeed, "who sits in federal district and appellate courts is more important than the struggle over the budget, the level of defense spending," and virtually everything else going on in Washington today. For we've all learned, he continues, "that what can't be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits." Thus, it's time for the Senate to step in, not to legislate but to determine, on explicitly ideological grounds, who the judicial architects will be, who will be "setting national policy" from the bench. What a striking picture. Everything is politics. Nothing is principle. Indeed, it is not a little noteworthy that over the entire article, devoted to our most basic political arrangements, the word "constitution" appears not even once. That's no accident. The Constitution sets forth the principles and the rules under which we're supposed to be governed. It divides and separates power, assigning different tasks to different parts of government. But on Califano's view, judges don't apply law to decide disputes, as the Constitution contemplates. "Sympathetic judges" make law, like so many legislators, "setting national policy" in the process. As for our nominal legislators, the Senate is reduced to vetting and electing our true rulers. One imagines that the word "constitution" doesn't appear in Califano's article because the document is an embarrassing relic, utterly inconsistent with his picture of a thoroughly politicized judiciary. Yet for all that, Califano's picture, unfortunately, is too close to the truth to be ignored. The lesson he and his fellow Democrats have drawn from it is wrong unless, of course, they like the picture. But we are today, in all candor, a very long way from living under constitutional principle. The main origins of the problem are in the Progressive Era of a century ago, when the social 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000015 engineers of the time sought to do through government what the Constitution left to be done in the private sector. Things came to a head during the New Deal when a frustrated Franklin Roosevelt attempted to pack the Supreme Court, an event Califano notes without. The scheme failed, but FDR won the day when a cowed Court began rethinking the Constitution, effectively eviscerating constitutional limits on federal power. Although the Court that emerged, by virtue of its deference to the political branches, was called "restrained," it was, in truth, "activist" finding congressional and executive powers nowhere granted, ignoring individual rights plainly in the Constitution. And the Court's rethinking led ineluctably to the shift of power to the judicial branch. The shift had two aspects. First, with the political branches now free to rule almost every aspect of our lives, it was only a matter of time before their ever-expanding product ended up in the courts, with the courts asked to sort out the mess Congress was making of things. But second, those who had long pushed such programs didn't always win in the political branches. When that happened, they turned increasingly to the courts, trying to win there, from "sympathetic judges," what they had failed to win politically. Regrettably, the Warren and Burger Courts, already deferring to the political pursuit of "social justice," were too often only too willing to step into the fray, imagining themselves to be a legislature of nine. The Rehnquist Court, by contrast, has taken modest steps over the past decade toward resurrecting constitutional principles of limited government. However modest, those steps have alarmed liberal Democrats. They can't imagine anyone thinking that Congress's powers are limited. They can't imagine that if an end is worthy, Congress might still not have the power to pursue it. They can't imagine that James Madison, the principal architect of the Constitution, was serious when he wrote in Federalist #45 that the powers of the new government would be "few and defined." Do we want to ensure the separation of powers and an independent judiciary? Do we want to restore limited constitutional government and, let's be clear, the rule of law? Those are the stakes in the current debate. If Senate Republicans are serious, they cannot pretend otherwise as the confirmation battles unfold. Interest Groups/Press Releases Judging Terry By Jake Tapper Salon.com Saturday, September 1, 2001 Ex-GOP attack dog David Brock charges that Bush judicial nominee Terry Wooten gave him FBI files to discredit a key witness in the Clarence Thomas hearings. Will the Senate investigate? 15 VERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000016 It was the morning of Oct. 10, 1991, and Terry Wooten, the senior counsel to the Republicans on the Senate Judiciary Committee, was one of eight Senate staffers deposing Angela Wright over the telephone after she joined law professor Anita Hill in making allegations against their former boss at the Equal Employment Opportunity Commission, Supreme Court nominee Clarence Thomas. "Now, the term 'boobs' came up," Wooten asked Wright. "Is that a term that he used when he spoke to you?" "No, actually that is a term that I am using," Wright replied. "Actually, what he said was, 'What size are your breasts?'" The question came up, she said, while they were attending a seminar for the EEOC. A decade after the grisly Thomas confirmation circus, Wooten is coming under scrutiny as a federal judge nominee for the U.S. District Court in South Carolina. And his chief accuser is onetime right-wing reporter David Brock, who claims that not only was Wooten busily trying to discredit Wright as a committee lawyer, but to reporters as well -- slipping Wright's FBI files to Brock, who was at work on his 1993 book "The Real Anita Hill." But while Wooten called Brock's charges "absolutely 100 percent not true" during a Senate hearing this week, and Senate Democratic sources confide that the controversial Brock has enough credibility problems to keep his charges from sticking, Brock is standing by his story and welcomes an investigation into the matter. In fact, he tells Salon that he's willing to open his files to the Judiciary Committee -- if anyone on the committee, that is, would call him. If the FBI file is there, it's conceivable, he allows, that Wooten's fingerprints could be on it, which may help settle the issue once and for all. Wooten, like other nominees before him, will not talk to the press before a confirmation vote. The Justice Department did not return a call for comment. Whether or not the Judiciary Committee decides to take Brock up on his offer or not, Wooten's role in the Thomas confirmation hearings -- the modern TV scandal spectacle that all others, from O.J. to Monica to Chandra, followed -- is surely worth consideration. It's certainly not unprecedented to require former political operatives, even ones with J.D.'s, to answer questions about their various partisan machinations before they assume positions of judicial prominence. Such was the case in the solicitor-general nomination of conservative attorney Ted Olson, who played some (though murky) role in the American Spectator magazine's war against all things Clinton (even penning under a pseudonym the article "Criminal Laws Implicated by the Clinton Scandals: A Partial List," February 1994). The solicitor general job, meanwhile, supposedly has the grandiose purpose once described as "not to achieve victory, but to establish justice." During the Thomas scandal, Wooten and Brock were clearly both pursuing victory, not justice. Brock was the Spectator's star reporter, and was all about kicking ass for the GOP, he says now. Wooten, he says, was a big help. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000017 "During the course of my research, I met with Mr. Terry Wooten in a Capitol Hill office," Brock wrote in an affidavit he faxed Aug. 24 to Judiciary Chairman Sen. Patrick Leahy, D-Vt., and ranking Republican Sen. Orrin Hatch of Utah. "Mr. Wooten handed me copies of several pages of Ms. Wright's raw FBI files. This material included FBI interviews of Ms. Wright's former employers and former co-workers. With Mr. Wooten's agreement, I removed the FBI material from his office." In his book "The Real Anita Hill," Brock makes references to "an FBI file" in which Wright is referred to as "vengeful, angry and immature." Asked by Leahy if he gave confidential FBI material to Brock, as alleged both in Brock's affidavit and in a story in the Los Angeles Times, Wooten forcefully asserted "that allegation is absolutely, 100 percent untrue. There is not one scintilla or one iota of truth to that allegation." But the question now has less to do with which person the committee believes -- the imperfect whistleblower Brock, or Wooten, currently a magistrate judge in Florence, S.C.-- than whether or not they'll take Brock's dare, and try to make sure, beyond any measure of doubt, that Wooten wasn't involved in a dirty tricks campaign against Wright. To many who followed the Thomas confirmation hearings, Angela Wright seemed as though she might have been the woman who ultimately could have sunk Thomas' nomination. That was certainly a concern of Wooten's. Anita Hill, who had worked under Thomas at both the EEOC and the Department of Education, had been telling the Judiciary Committee, then chaired by Sen. Joe Biden, D-Del., that Thomas had repeatedly asked her out and, after being rebuffed, began to "use work situations to discuss sex." As she later testified, despite her consistent protestations that such talk made her uncomfortable, Thomas continued to talk about sex, from graphic pornographic films to tales of "his own sexual prowess." "I began to be concerned that Clarence Thomas might take out his anger with me by degrading me or not giving me important assignments," she testified. "I also thought that he might find an excuse for dismissing me." On Oct. 11, 1991, Thomas, infuriated, "categorically denied all of the allegations and denied that I ever attempted to date Anita Hill," saying, "our relationship remained both cordial and professional." "He said/she said" is one thing. "He said/they said" is something else entirely. Wooten recognized the problem posed by Wright, who had never met Anita Hill and who told the committee that Thomas fired her after years of hitting on her and making inappropriate comments to her. As Biden told Thomas during the hearing, "If there's not a pattern, to me, that's," or legally significant. "Any time you had a second allegation, it was going to be a big problem," Wooten later told Mayer and Abramson. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000018 During Wright's Oct. 10 deposition, Wooten took a somewhat aggressive tone with her, six times referring to her as having "come forward," as if politically motivated and eager to enter the fray, when in fact she'd been subpoenaed by the committee. "I am sorry, Terry," she told Wooten at one point, "but I cannot answer, I cannot answer the questions if you are going to that I decided to 'come forward.' Obviously I did not come forward with anything. I am just answering questions that are just being asked of me." Even after that point is made, however, Wooten continued to use the term. After Wright informed the Senate staffers that a friend of hers exists whom she had contemporaneously informed of Thomas' allegedly harassing behavior, Wooten said, "I think it may be helpful if you would check with that friend to see if he or she is willing to come forward." "I will be glad to do that," Wright said. "But you keep using the term 'come forward.' I can pretty much assure you that this person is not going to 'come forward' or want to be very involved in this at all." Wright ultimately told them how Thomas would "consistently pressure me to date him," how he hit on other women in the office, how he "made comments about my anatomy and ... about women's anatomy quite often," and how "at one point, Clarence Thomas came by my apartment at night, unannounced and uninvited." Then, Wooten asked Wright about other employers with whom she's had a problem, citing the name of a former Wright boss whom Wright accused of racism. He then asked Wright, a registered Republican, "who you voted for in the '80, '84 and '88," a question she doesn't answer. Wright was hardly a perfect witness, having been fired by Thomas six years beforehand for being "ineffective" and, Thomas claimed, for calling a fellow employee a "faggot," which Wright denied. Then-Sen. Alan Simpson, R-Wyo., later told the Washington Post that he was ready to put Wright through the wringer she wanted to put Thomas through. "I felt that when you are assassinating someone's character, you bring your own to the fore," Simpson said. "All I know is that if she wanted to expose herself to the committee with damaging information about Clarence Thomas ... I was fully ready to damage her character in the process." In the end, curiously and to this day without a clear explanation, Wright was never called to testify before the Senate. Thus, a vast majority of the Senate remained ignorant of her story when Thomas was confirmed on Oct. 15. Sen. Paul Simon, D-Ill., a member of the committee, told the Washington Post in 1994 that he had no idea Wright existed to offer a similar story to Hill's. Had she been permitted to testify, Simon said, she "could have toppled Thomas." It is unclear what role Wooten played in keeping Wright from the microphone, but it clearly was not in Thomas' best interest to have her testify. And, Wooten has said, he did his part to keep her story under wraps. In an interview for the book "Strange Justice," by Jane Mayer and Jill Abramson, Wooten allowed that he even kept Hill's charges -- which had been privately 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000019 divulged to the Senate Judiciary Committee staffers in August and September 1991 -- from his then-boss Sen. Strom Thurmond, R-S.C., as well as from other Republicans on the committee. "Washington is the rumor mill of the world," he told them. "It didn't look like it was going to develop into any big deal. There was an effort to control the damage." Wooten has admitted to the Judiciary Committee that he had a brief conversation with Brock after Thomas had been confirmed on Oct. 15. "Whether or not Wright's name came up, I can't say that it did or didn't," Wooten said. But if it did, "there was no confidential information that was released or that was made available to him." He had access to the confidential materials about Wright from both FBI and Judiciary Committee files, but it was information he only discussed with his boss, Thurmond, and a committee investigator, Duke Short. Leahy based his questions on the Times story, since at the time of the hearing he hadn't yet even seen Brock's affidavit. Speaking to reporters after the hearing, Leahy seemed to imply that, barring any new information, the "he said/he said" would culminate in a Wooten confirmation. "Mr. Wooten is under oath and he understands very well the importance of being accurate," Leahy said. "I can't believe that he would lie before the committee." Brock disagrees, and thinks the committee should investigate. "The issue is obviously resolvable by the committee if it wants to resolve it," Brock tells Salon. "One of us has already committed perjury." Brock says that the dispute "doesn't have to remain 'he said/he said.' In the context of some kind of investigation there are potential witnesses and potential evidence." Such as? Brock says his lawyers have 10 to 12 boxes of material from his days with the American Spectator. If Wright's FBI file is there, and Brock is telling the truth, Wooten's fingerprints could at least lend his story some credence. But the Judiciary Committee has yet to contact Brock. When the Senate reconvenes on Tuesday, Leahy and Hatch will confer and decide how to proceed with the Wooten nomination, says Leahy spokesman David Carle. Established procedures on the committee would have the chief investigators for both the Democrats and the Republicans working together to get to the bottom of the charges, but Hatch and Leahy would have to agree to such cooperation. In May, before the Senate fell into Democratic hands, then-Chairman Hatch declined to invoke those procedures when Brock raised questions about the role played by Olson in the Spectator's "Arkansas Project," a multi-year, multimillion-dollar investigation into the lives of the Clintons. Despite serious questions about how forthcoming Olson was being before the Senate, he was confirmed on May 25 on a 51-47 vote. Senate insiders predict a similar result with the Wooten nomination. It's not that members of the Judiciary Committee don't take Brock's charges seriously, a Senate Democratic source told Salon. But those who believe Anita Hill shouldn't get their hopes up for a showdown. There doesn't appear to be any evidence or witness who can corroborate Brock's story, the source says, apparently unaware that Brock believes he may have some evidence locked away with his 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000020 lawyers. But so far, only the liberal Alliance for Justice has issued any sort of public position against Wooten, saying in a statement that he's "been accused of a serious ethical impropriety" and calling for the "committee's bipartisan investigative staff (to) ... fully look into these charges before deciding whether to confirm Judge Wooten." Moreover, the Senate source says, the credibility of the contradictory witnesses is at play. Wooten is a judge whom many of the committee members remember from when he worked as chief GOP counsel on the committee. Brock, on the other hand, has since renounced his political alliances and admitted lying in some of his past reporting. In the August Talk magazine excerpt of his forthcoming book "Blinded by the Right," Brock wrote that he "lost my soul" printing things he knew to be untrue, both in favor of Thomas and against Hill, her collaborating witnesses and the rival book, "Strange Justice," by Mayer and Abramson. He also detailed his 1994 intimidation of Kaye Savage, a woman who'd supported Hill and her story, meeting her armed with "unverified embarrassing personal information ... that Thomas claimed had been raised against her in a divorce proceeding." Brock claimed he'd gotten the information from Thomas through an intermediary, former White House assistant counsel Mark Paoletta. "Thomas was playing dirty, and so was I," Brock wrote. But Abramson, the New York Times Washington bureau chief, is quoted in the Washington Post as pointing out that the "problem with Brock's credibility" is that "once you admit you've knowingly written false things, how do you know when to believe what he writes?" Paoletta, now counsel to the House Committee on Energy and Commerce, has denied Brock's charges, while Thomas has refused comment. The Bush administration has already begun to assault Brock's credibility. In the Los Angeles Times story, Justice Department spokeswoman Mindy Tucker ascribed fiduciary motives to Brock's allegation. "I think it would be unfortunate if the desire for book sales promulgated a charge involving a man's integrity, such as this might," Tucker said. Brock insists that "the Wooten thing has no connection to any kind of book publication strategy." Still uncompleted, his book has been pushed back until November at the earliest and more likely January 2002, he says, and "the only relationship at all between Wooten and the book is in the process of writing the book obviously I've revisited this issue. The fact that Wooten was nominated to a judgeship is just a coincidence." What about the fact that the Los Angeles Times apparently knew about Brock's affidavit long before Leahy did? Brock says that reporter David Savage had been contacting him for days, not the other way around, which Savage confirms. Brock hadn't been paying attention to Wooten's nomination, he says, until Savage -- informed by a third party that Brock had said Wooten had leaked him Wright's FBI file -- contacted him. After speaking to Savage, Brock faxed his affidavit to Leahy's Senate office late Friday, after 6:50 p.m. Leahy didn't receive the affidavit until after the Monday hearing. 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000021 Does there exist evidence in those files to prove Brock right and Wooten wrong? That remains to be answered, as do questions about how willing Leahy and the Senate Democrats are to engage in a confirmation fight. 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.5702-000001 18-2091-B-000022 Schauder, Andrew Schauder, Andrew Thursday, September 06, 2001 7:30 PM Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; 'James Carroll'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw' Subject: Judicial Media Review Attachments: Judicial Media Review 9-06-01.wpd From: Sent: To: Please see attached VERSIGHT Document ID: 0.7.19343.5709 18-2091-B-000023 Media Review - Judicial Nominations Thursday, September 6, 2001 General Judicial Articles "Liberal Alliance Forms A Lobbying Arm," Judy Sarasohn, The Washington Post, September 6, 2001 2 "Senate Democrats Say Nominees Could Lose Confirmation Battles," 2 Karen DeYoung and Amy Goldstein, The Washington Post, September 6, 2001 "Hatch Adamant: Demos Tinkering," 3 Lee Davidson, The Deseret News, September 5, 2001 "Showtime At Senate Judiciary," Jonathan Ringel and Jonathan Groner, Legal Times, September 3, 2001 4 "Schumer: Half Of Democrats’ One-Two Punch," Jonathan Groner, Legal Times, September 3, 2001 9 "Coalition Begins ‘Rattle’ Campaign For Pro-Life Justices," 11 Robert Stacy McCain, The Washington Times, September 5, 2001 Op/Eds "Obstructing Justice; Democrats Block Bush’s Judicial Nominees," 12 Thomas Jipping, The Washington Times, September 6, 2001 "Screening The Judges; Not The Senate’s Role To Micromanage," Douglas Kmiec, The National Review, September 5, 2001 14 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases "Attorney General John Ashcroft Installs Right-Wing ‘Dream Team’ At Justice Department" 16 People for the American Way, September 6, 2001 1 VERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000024 Press Release Link: www.pfaw.org/news/press//2001-09-06.319.phtml Report Link: www.pfaw.org/issues/democracy/ash update.shtml General Judicial Articles Liberal Alliance Forms A Lobbying Arm By Judy Sarasohn The Associated Press Thursday, September 6, 2001 The Alliance for Justice, the liberal national association of environmental, civil rights, mental health, women's and other advocacy organizations, recently set up a separate entity that will allow the umbrella group to expand its lobbying efforts on judicial selection and other initiatives "to advance the cause of justice." The Alliance is known nationally for its work on federal judicial appointments. But as a nonprofit, tax-exempt group, its ability to lobby is limited. Through the establishment of a "501(c)(4)" organization under Internal Revenue Service regulations, the Alliance may engage in an unlimited amount of lobbying for -- or against -judicial nominations and legislation. The new entity is known as the Alliance for Justice Action Campaign. And it's clear that the Alliance believes it is going to want to lobby against a bunch of President Bush's judicial nominations. "We are receiving an unprecedented number of calls from people all over the country who want to get involved. Since Bush v. Gore, they understand the threats of the [Bush] administration's judicial selections," said the Alliance's president, Nan Aron. She said there is a greater sense among people around the nation "that lower court [federal] judges really matter," as do Supreme Court justices. The new organization will "add some firepower to our efforts," she said, and allow the group to increase grass-roots involvement in the states. New staff members will be hired for the new organization, Aron said. The Alliance has recruited a new full-time communications director, its first. Julie Bernstein signed on last month as the group's PR chieftain after doing the same job at the Feminist Majority Foundation. Senate Democrats Say Nominees Could Lose Confirmation Battles *EXCERPT* By Karen DeYoung and Amy Goldstein 2 A\t1 f C,/\N pVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000025 The Washington Post Thursday, September 6, 2001 The Bush judicial selection who has attracted the greatest opposition is Jeffrey S. Sutton, appointed to the Ohio-based 6th Circuit Court of Appeals. His nomination has prompted an aggressive campaign by civil rights groups. Several other court appointees -- including Miguel Estrada and John Robert Jr., nominated to the D.C. Circuit -- also face uncertain prospects before the Senate Judiciary Committee. Sensitive to any appearance that he is delaying the confirmation of judges for political purposes -a strategy Democrats accused Republicans of using during the Clinton administration -Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) has said he will move swiftly this fall to confirm as many judges as possible, as long as they are relatively uncontroversial. As a result, congressional aides say, more polarizing figures such as Sutton may not come before the committee this year. Hatch Adamant: Demos Tinkering By Lee Davidson The Deseret News Wednesday, September 5, 2001 Sen. Orrin Hatch is accusing the new Democratic majority of trying to change the rules to make it more difficult to confirm conservative judges. Hatch, R-Utah, said a hearing that Democrats called Tuesday about changes that they seek appears "to be part of a partisan strategy to change the long-standing practice of this committee by injecting partisanship into the judiciary." Sen. Charles Schumer, D-N.Y., chairman of a Judiciary Subcommittee on Administrative Oversight and the Courts, says the Senate should be able to consider the ideology of nominees -and reject them if their views are "out of the mainstream." Hatch submitted a statement saying he worries that "any nominee who disagrees with my Democratic colleagues on various social issues will be labeled as an extremist who is out of the mainstream and who should therefore not be confirmed." "The Senate's responsibility does not include establishing an ideological litmus test to gauge a candidate's fitness based on his or her position on controversial issues," said Hatch, ranking Republican on the Judiciary Committee, who was chairman until Democrats gained a one-vote majority in the Senate. "The hallmark of a good jurist is one who does not allow personal opinion to affect objective legal decision-making." 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000026 But Schumer told the hearing that "openly considering judicial ideology benefits the judiciary itself by helping ensure that our courts remain balanced and moderate, and represent the views and beliefs held by the majority of the American people." Schumer added, "On whose shoulders should the confirmation burden rest? Should the Senate ask itself, 'Why shouldn't we confirm this nominee?' Or should the Senate ask the nominee, 'Why should we confirm you?' "Given the stakes at hand, it makes sense that the burden should rest with the nominee" and not the Senate for or rejection. Hatch said such an approach is vastly different than in the past when the Senate generally tried to give presidents deference their nominees, unless they were shown not to have proper judicial temperament and good character. "I believe the president's power to nominate judges is an essential part of the balance of powers. This is the reason that despite many ideological and political differences, the Judiciary Committee under Republican leadership confirmed 377 of President Clinton's judicial nominees (a near-record number)," Hatch said. "If Republicans had infused ideological litmus tests into the process -- as some Democrats are toying with doing now -- those numbers would be dramatically different." Showtime At Senate Judiciary By Jonathan Ringel and Jonathan Groner Legal Times Monday, September 3, 2001 The White House and Sen. Leahy have set the stage for a battle over the federal bench By almost any measure, August is more pleasant in the Green Mountains than in the swampy heat of the nation's capital. Still, Democratic Sen. Patrick Leahy left his Vermont farm last month to get started on what promises to be a tense season in the judicial confirmation process. The Senate Judiciary Committee chairman called two nominations hearings in the dog days-at the first, he was the only senator present. Leahy used the second hearing to defend himself in the debate over which party is the most slowfooted on judicial nominations. Reeling off dates and numbers, Leahy said the Senate is "ahead of the pace" this year on moving court of appeals judges. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000027 Sen. Mike DeWine (R-Ohio) responded, "I'm not going to get into a statistical battle." With a knowing smile, he added, "I know you and I will have further discussions on this." The exchange was telling. Behind the posturing, the process of confirming judges for the federal bench this year will turn-as ever-on a power struggle between the Democratic majority and the White House and its GOP allies in the Senate. Both the Bush administration and Leahy have moved quickly into position. President George W. Bush has made 48 judicial nominations, and administration officials and GOP senators have called for all to be voted on before the Senate adjourns in a few months. Meanwhile, Leahy has shepherded four nominees to confirmation in the short time he has been committee chair and held hearings on three more. But while moving forward on nominees that have drawn no controversy, Leahy and other players have taken their positions on the nominations that promise a fight. In August, Leahy said the White House should consider offering Senate Democrats the same deference that former GOP Sen. Slade Gorton wrested from President Bill Clinton. Such a move could give Democratic senators greater power to block Bush nominees to several key circuit court seats. In a famous 1997 deal, Gorton, then the senior senator from Washington state, muscled into the usual arrangement that grants senators from the same party as the White House the authority to help select judicial nominees. Though Sen. Patty Murray, a Democrat, nominally had the president's ear, Gorton was able to hold up the nomination of William Fletcher, a Californiabased nominee to the U.S. Court of Appeals for the 9th Circuit, until Clinton also named a 9th Circuit judge in Washington whom Gorton liked. Now, President Bush finds himself in a similar standoff with Michigan's two Democratic senators: Carl Levin and Debbie Stabenow. Levin and Stabenow have asked Leahy to hold up action on all nominees to the 6th Circuit because they want Bush to renominate two former Clinton nominees from Michigan, state Court of Appeals Judge Helene White and Detroit litigator Kathleen McRee Lewis. Originally blocked in a fight between then-Sen. Spencer Abraham and the White House, White waited more than four years without getting a hearing, while Lewis waited more than 18 months. Bush's two 6th Circuit nominees from Ohio-states' rights expert Jeffrey Sutton and state Supreme Court Justice Deborah Cook-have been pending since May. The Cincinnati-based 6th Circuit covers Michigan, Ohio, Kentucky, and Tennessee. Seven of the court's 16 seats are vacant, and another will open up at the end of the year. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000028 Leahy spokesman David Carle says that, despite the entreaty from the Michigan delegation, the chairman won't stop action on any nomination. However, Carle also says the Michigan matter is unresolved. At an Aug. 27 judicial nominations hearing, Leahy said, "We're trying to follow the same rule" suggested by Gorton's deal, which ultimately collapsed when Gorton's hand-picked nominee withdrew for personal reasons. Leahy added, "The White House should consult with senators in the area" covered by a circuit court, not just senators from a nominee's home state. That notion does not please the White House. Administration officials and GOP senators have already been locked in battle with Leahy on the power of home state senators to nix judicial nominees, and White House Counsel Alberto Gonzales says that the disputed power of homestate senators certainly should not be expanded to senators from all states within a circuit. "There's no reason this White House should be expected to do that," says Gonzales. He acknowledges that previous presidents have occasionally consulted with senators from neighboring states in a given circuit when considering appellate nominees, but adds that this has never been the consistent precedent. In an Aug. 17 letter to Leahy, Gonzales argued that granting the Levin-Stabenow request would "distort the Senate's exercise of its advice and consent function by institutionalizing a practice whereby well-qualified nominees may be held hostage to the non-germane demands of individual Senators from other states." Gonzales and Leahy held a previously scheduled meeting in Leahy's office on Aug. 27. Neither would discuss the details of the meeting. Meanwhile, Leahy used the hearings in August, when three Bush judicial nominees experienced very mild, upbeat screenings, as evidence that he is trying in good faith to confirm nominees quickly. "I am attempting to go the extra mile to help fill the vacancies on the federal courts with qualified, consensus nominees," Leahy said. The key word, though, is consensus. Of the four Bush picks confirmed by the Senate this year, three were jointly recommended by Republican and Democratic senators from the nominee's home state. The fourth, Judge Roger Gregory of the 4th Circuit, was originally chosen by Clinton and backed by Virginia's two GOP senators. Likewise, the nominees who had hearings last month-Sharon Prost for the Federal Circuit; Terry Wooten for a district court seat in South Carolina; and Reggie Walton for the District Court in Washington, D.C.-had support from both Democrats and Republicans. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000029 Except for Gregory, Leahy has not scheduled hearings for any of the 11 circuit court nominees Bush unveiled at a White House event in May-several of whom have generated a loud outcry from the left. Among them are Sutton from the 6th Circuit, Michael McConnell from the 10 th Circuit, and D.C. Circuit nominees John Roberts Jr. and Miguel Estrada. Leahy has not announced when the next hearing will be or who will be on the agenda. But on Sept. 4, Judiciary Committee member Sen. Charles Schumer (D-N.Y.) will hold the second of his subcommittee hearings looking at the Senate confirmation process-hearings that Republicans argue merely provide academic cover for blocking nominees and take time away from confirmation hearings. The process of filling seats on the courts has grown increasingly contentious since Robert Bork's nomination to the Supreme Court failed in 1987. Fights over legal ideology, Senate process, and political payback have become routine, even in a year when Bush has pledged to soften the harsh tones of partisanship. Gilbert Merritt, a Nashville-based senior judge on the 6th Circuit, says he hopes Leahy can break the syndrome that has plagued the circuit's nominations. But he's not hopeful. "What they really need between the White House and the Senate Judiciary Committee is a mediator," says Merritt, a 1977 appointee of President Jimmy Carter. The vacancies present a problem for the court, says Merritt, who was the 6th Circuit's chief judge for seven years and took senior status in January. "You obviously have to give the cases shorter shrift," he says. "The quality [of the written decisions] goes down as well." When Michigan nominees White and Lewis were stuck in the Judiciary Committee, then under the control of Sen. Orrin Hatch (R-Utah), Merritt wrote the Senate to ask that the pair get up or down votes so as to either confirm them or open the process to nominees who could get confirmed. He says the same should occur today with Sutton and Cook. "They ought to vote on whoever's up there," says Merritt. Three-Way Split Paul Cassell, the University of Utah law professor who in 2000 led an unsuccessful challenge of the landmark Miranda v. Arizona decision, has received an odd three-way split rating from the American Bar Association's Standing Committee on the Federal Judiciary. Last month, the group announced that a "substantial majority" of the 14-member committee found Cassell "well qualified" for a district court judgeship in Utah. A minority of the committee found Cassell merely "qualified," while another minority found Cassell "not qualified." 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000030 The ABA defines "substantial majority" as 10 or more members of the committee. Since the committee doesn't reveal exact votes, it's not clear how many members registered less than the highest opinion. "The ABA has an obligation to be forthright and explain this decision," says Assistant Attorney General Viet Dinh, who handles judicial nominations for the Justice Department. Of the 28 Bush nominees so far rated by the ABA, Cassell is only the second to get a negative vote. Nonetheless, Dinh says, "the inexplicable inconsistency" of Cassell's evaluation "suggests that something is awry with the committee's ratings process." In March, the Bush administration ended a 50-year tradition of giving the ABA a special role in working closely with the administration in rating potential nominees. But after the Democrats took control of the Senate, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) revived the group's role by saying the committee would look closely at ABA ratings. Roscoe Trimmier Jr. of Boston's Ropes & Gray chairs the ABA committee. He says the process is "inherently subjective," given that they do not use a scorecard when evaluating a nominee's integrity, judicial temperament, and professional competence. "That's why we have a committee," so the evaluation is based on more than one person's view. -Jonathan Ringel Walton's Waltz D.C. Superior Court Judge Reggie Walton had a smooth sail on Aug. 22 during a brief Senate Judiciary Committee hearing on his nomination to a District Court judgeship in Washington, D.C. At the hearing, the committee chairman, Sen. Patrick Leahy (D-Vt.), spent more time berating his Republican counterparts and justifying his own record on judicial nominations than he did querying the 52-year-old jurist. "I have a guess that you're not going to have a lot of trouble [being confirmed] in the U.S. Senate," Leahy said to Walton. "I will urge the committee to move your nomination to the floor as soon as possible." Leahy was the only senator present at the session, which he said was the first judiciary hearing held during the chamber's annual August recess since at least 1980. He said Walton's "prior 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000031 service" had "prepared him abundantly for this position." Leahy asked whether Walton, if confirmed, would feel bound by the precedents set by appeals courts. Walton said he had traveled in Russia a few years ago and had learned to his dismay "that they don't have that process" of adherence to precedent. "It is crucial to apply the rule of law," Walton said. Walton received a glowing introduction from D.C. Democratic Delegate Eleanor Holmes Norton. In addition to family members and friends, Walton was accompanied by a delegation from D.C. Superior Court: Chief Judge Rufus King III and Judges Anita Josey-Herring, Mary Gooden Terrell, and Lee Satterfield. Schumer: Half Of Democrats’ One-Two Punch By Jonathan Groner Legal Times Monday, September 3, 2001 Although he's been in the Senate for less than three years, Charles Schumer of New York is rapidly emerging as one of the Democrats' key assets in the escalating battle over President George W. Bush's judicial nominations. When the Democrats took control of the Senate earlier this summer, Schumer, a plain-spoken first-termer, became chairman of the Judiciary Committee's Subcommittee on Administrative Oversight and the Courts. The panel had been relatively quiet under its previous chairman, Jeff Sessions (R-Ala.), but that was to change quickly. On June 26, Schumer brought blue-ribbon witnesses such as Harvard Law professor Laurence Tribe and former White House Counsel C. Boyden Gray before his subcommittee in a frank discussion of the role of ideology in federal judicial selection. Schumer was open about his views-that ideology should count, and that in reaching their views about judges, senators should acknowledge that ideology matters. This was the first Senate hearing on the broad issues surrounding the confirmation process in at least a decade-and it was also the kickoff of a three-part series that is set to resume now that Congress is back from recess. Part two of the Schumer extravaganza is slated for Sept. 4. Schumer has dubbed this week's hearing "The Senate's Role in the Nomination and Confirmation Process: Whose Burden?" Witnesses set to testify for the Senate majority include former Sen. Paul Simon (D-Ill.), Georgetown University Law Center professor Mark Tushnet, University of Texas School of Law professor Sanford Levinson, and Yale Law School professor Judith Resnik. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000032 Republicans will call University of Illinois College of Law professor Ronald Rotunda, Catholic University Columbus School of Law Dean Douglas Kmiec, and John Schmitz, former deputy White House counsel under the elder Bush. The third installment, which will focus on the current Supreme Court's "conservative judicial activism," is expected to take place late this month. Schumer's motives in deciding to step forward on the complicated nominations issue have sparked a fair amount of speculation in legal circles. Some say the senator, who has never shied from the press, is trying to steal a publicity beat from his state's junior senator, Hillary Rodham Clinton. Some say conservative Bush judges are a politically potent issue in liberal New York. A GOP Senate staffer offers a more nuanced reason: "Our understanding is that [Judiciary Chairman Patrick] Leahy wanted him as his deputy on nominees, much as [former Chairman Joseph] Biden [Jr.] had used Leahy. If you're going to want to get someone out there to punch at nominees, Schumer has built-in credibility, and that way, Leahy can stay above the fray." This staffer explains that Schumer, 50, is good for that attack role because he's considered a moderate rather than an out-and-out partisan-and because he plays well on camera. Schumer spokesman Bradley Tusk downplays this theory. He says the senator is interested in Bush's judges primarily because he wants to improve the federal courts. "This is his passion," Tusk says. "As an attorney who thinks in a legal way, he's very interested in crime issues, for example. He ran the crime subcommittee in the House before he was a senator. All his background and his work to date make this a natural next step. He's been working towards this for 30 years." A Judiciary Committee aide says Schumer and Leahy did not sit down and work out a plan for the first-termer to assume any specific stance on judicial nominations. But an upfront Schumer role "may be something that results" from the personalities and politics of the judiciary panel, this staffer says. "Schumer is a New Yorker who calls it the way it is," says the staffer. "He was very bothered, for example, by the fact that no one ever talked about [a prospective judge's] ideology." "People may perceive him as an attack dog," the staffer continues, "but it will never be personal." Leahy spokesman David Carle says, "As in the past, there is such a big workload involved in judicial nominations that Chairman Leahy, as earlier chairmen have done, is distributing the workload among several senators, and Sen. Schumer has picked up some of it." 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000033 Coalition Begins ‘Rattle’ Campaign For Pro-Life Justices By Robert Stacy McCain The Washington Times Wednesday, September 5, 2001 Pro-life groups yesterday united for an unprecedented campaign to encourage the Senate to confirm pro-life judges for vacancies expected on the Supreme Court in the near future. "Never before have so many pro-life groups joined together to coordinate our efforts to restore protection to children in our lifetime," said Janet Folger of the Center for Reclaiming America. Miss Folger's Fort Lauderdale, Fla.-based pro-life organization, associated with D. James Kennedy's Coral Ridge Ministries, is one of 24 groups behind the "Shake the Nation" campaign. The coalition includes such religious and social conservative groups as the American Family Association, Eagle Forum, Family Research Council, Focus on the Family and the Traditional Values Coalition. Washington area television viewers will witness one element of the campaign, a TV ad that shows babies disappearing as a result of the Supreme Court's 1973 Roe v. Wade decision, which struck down state laws against abortion. "Shake the Nation" is using baby rattles as a symbol, urging supporters to send rattles to senators with an attached note asking them "to confirm pro-life justices to the U.S. Supreme Court and . . . protect children from . . . abortion." The campaign - budgeted at $2 million, Miss Folger said at a press conference yesterday - began the same day the Senate Judiciary Committee held a hearing about the Senate's constitutional role in confirming judicial nominees. President Bush is expected to have the chance to name at least one new member to the court. Three Supreme Court justices are older than 70, and Justice John Paul Stevens, a liberal, is the court's senior member at 81. With the closely divided Senate under Democratic control, pro-life activists are concerned about a tough confirmation battle if Mr. Bush keeps his campaign promise to name conservative "strict constructionist" judges to the federal bench. One liberal leader yesterday signaled just such a strategy. "It's becoming clear that the top priority of the Bush administration is to pack the federal appeals court with . . . right-wing ideologues," Ralph Neas of the People for the American Way said in a statement. Mr. Neas said he "urged senators to reject . . . right-wing ideologues who have not demonstrated a commitment to civil rights, civil liberties, and equal opportunity under the law." Pro-choice groups apparently chose to ignore yesterday's an-announcement of a new pro-life campaign. None issued a press release in response, and officials of the National Abortion and Reproductive Rights Action League (NARAL) did not respond to requests for comment. 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000034 Pro-life speakers at yesterday's event targeted what they called federal "judicial activism." "Abortion was thrust upon us by Supreme Court justices, extended even to include partial-birth abortion," said Wendy Wright, director of communications of Concerned Women for America. "Our country cannot afford any more judges who view the federal bench as their throne." Richard Lessner, executive director of American Renewal, a lobbying group affiliated with the conservative Family Research Council, said, "the era of judicial activism and social engineering under the color of law must end." The campaign also aims to "get the message of truth out" and promote grass-roots pro-life support, Miss Folger said. Op/Eds Obstructing Justice; Democrats Block Bush’s Judicial Nominees By Thomas Jipping The Washington Times Thursday, September 6, 2001 On the Senate's first day back from the August recess, Sen. Charles Schumer chaired another of his hearings designed to change the confirmation rules and stack the deck against President Bush's nominees. At the first hearing, left-wing academics and lawyers told senators to base their votes on a nominee's ideology; that is, the rulings they will likely render once on the bench. At this hearing, left-wing academics and lawyers told senators to base their votes on whether nominees have made the case for confirmation rather than in deference to the president. As Mr. Schumer put it, "the burden should rest with the nominee." This new rule would certainly facilitate Mr. Schumer's goal of defeating nominees; senators need only say that a nominee did not meet his burden. While this may be the system Mr. Schumer prefers, however, it is not the one America's Founders established. In Article II, Section 2, the Constitution gives the president both the power to nominate and, subject to the Senate's "advice and consent," the power to appoint federal judges. As Alexander Hamilton put it in "The Federalist," No.65, "In the business of appointments the executive will be the principal agent." That's why there's not a word about appointments in Article I, which outlines the powers of the legislative branch. The Senate is a check on the president's appointment power, as Hamilton wrote in "The Federalist," No. 76, to "prevent the appointment of unfit characters." A primary power - in this case, appointing judges - carries more weight than a check on that power. Therefore, the Senate must show that a president's nominees are unfit in order to reject them; the burden is on the Senate, not on the nominee. That's the system of checks and balances America's Founders 12 VERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000035 established, the one we all learned about in junior high civics class. At the hearing, Mr. Schumer said America's Founders would be shocked at the state of the confirmation process today. Indeed, they would. Those who crafted the Constitution, who believed that the president would be the "principal agent" in judicial selection, would be shocked at Mr. Schumer insisting that the Senate is a co-equal partner with the president. Those who created the process of presidential nomination and appointment would be shocked at Mr. Schumer insisting that the Senate instead treat nominees as if they were applying for the job. Sen. Strom Thurmond voiced the position America's Founders would recognize. He said the deference owed to a president should not change when the political party controlling the Senate or the White House changes. The Senate's constitutional responsibilities, Mr. Thurmond said, must remain consistent. Consistency requires that Mr. Schumer practice what he has preached. In January 1998, for example, he called on the Senate leadership to "work with the president to confirm more judges." Consistency means he should direct this at leaders such as Sen. Patrick Leahy, chairman of the Judiciary Committee on which Mr. Schumer serves. Mr. Leahy said on July 25, 2000, that it is the Senate's "constitutional responsibility" to "redouble our efforts to work with the president" to confirm more judges. That was when there were just 59 judicial vacancies. With nearly 110 vacancies today, you'd think Mr. Leahy would re-quadruple his efforts to confirm even a few of the 40 nominees currently at his doorstep. Consistency requires that Mr. Schumer direct this at senior Democrats such as Sen. Ted Kennedy, who in September 1999 said it was the Senate's "constitutional responsibility to work with the president" to confirm more judges. That was when there were just 68 vacancies. Perhaps it just depends on the meaning of the word "president." Perhaps the only presidents senators such as Messrs. Schumer, Leahy and Kennedy want to work with are Democrats who nominate the liberal activist judges they need to impose their political agenda on the country. This is all part of the same obstruction campaign Democrats have used in the past. The Sept. 1, 1992, edition of the New York Times reported that "the Democrats who control the Senate have begun to delay confirming some of President Bush's nominees for major judgeships to preserve the vacancies for a Democrat to fill if he is elected president." As Ronald Reagan would say, there they go again. Public presidential leadership is necessary to break this logjam. Judicial vacancies are the highest in more than seven years and confirmations are the slowest in recent memory. Just wait, Senate Majority Leader Tom Daschle will soon say, the press of legislative business leaves no time to consider judicial nominees. The clock is ticking, and Mr. Bush must turn up the heat and tell Americans the truth about the Democrats' obstruction campaign. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000036 Thomas L. Jipping is director of the Free Congress Foundation's Judicial Selection Monitoring Project. Screening Judges; Not The Senate’s Role To Micromanage By Douglas Kmiec The Washington Times Wednesday, September 5, 2001 Douglas W. Kmiec, dean & St. Thomas More Professor of Law, the Catholic University of America, and former Assistant Attorney General, Office of Legal Counsel, in the Reagan administration Yesterday, the Senate again conducted a hearing on the appropriate manner to evaluate judicial nominees. After 200 years of experience, one would have thought this settled. Hamilton explained in the Federalist Papers that the Senate's role would not be to micromanage. Rather, "the necessity of their concurrence would have a powerful, though, in general a silent operation." In other words, since the president would know that his choices could be rejected, it "would be an excellent check upon the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity." The latter remark outlines succinctly the nature of an appropriate Senate inquiry: integrity (to screen out improper cronyism or "family connection" in appointment); fitness (to eliminate those not possessing either the temperament or training); and fidelity to the rule of law (to ensure that rulings are not merely given with "a view to popularity"). So what's the point of belaboring the question today in hearings? None. Or at least none envisioned by the Constitution. Democratic senators, newly energized by their majority status because of a party defection, want to "pay back" the Republicans for supposedly blocking Clinton nominees and a handful of academics have convinced Senator Schumer that partisan screening of judicial nominees is appropriate to bring greater balance to the federal courts. Political rivalry aside, there is nothing to pay back. Mr. Clinton over his two terms appointed virtually the same number of judges as President Reagan (377 vs. 382). So too, the numbers of nominees left unexamined at the end of each term were comparable. And as for the supposed need for balance, no one really has a fixed idea of what that means. A Supreme Court with a composition reflecting five presidential perspectives and yielding 5-4 decisions where the issues (federalism, affirmative action, religious participation in the public square) are sensitive and the people, themselves, rightly cautious is hardly unbalanced. And all the blather about there being too many former judges on the high bench (and not enough former politicians or people with other experience) either stands the Framers criteria for selection on its head or is untrue. Yes, Ruth Bader Ginsburg was an appellate judge, and so were Clarence 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000037 Thomas, Antonin Scalia, and Stephen Breyer, but they also had distinguished careers as advocate for women's rights, senior legislative assistant, executive official, and teacher, respectively. What the cry for balance really disguises is a desire for different outcomes in specific cases dealing with Congress' civil-rights enforcement power, the appropriate scope of federal commerce-clause authority, and the line between was is national and what is local. These are all important issues, but it is neither appropriate nor effective for the Senate to deal with them through the judicial confirmation process. Attempting to do so indulges a host of erroneous suppositions not the least of which is that the courts are merely alternative policymaking venues. In the pages of the Washington Post last week, Joseph Califano Jr. contended for a partisan screening of federal judicial nominees because of Congress's failure to address, among other things, big tobacco and handguns. Whether or not one subscribes to Mr. Califano's take on such matters, it is certainly an odd prescription to try to save us from the "political pandering and gridlock" (Mr. Califano's words) of one branch by manipulating the composition of another. And lest it be forgotten, the other branch the judicial one is intended to be independent. The significance of an independent judiciary is well known to every school child. The point was made plain in the bill of indictment included against the English King in our Declaration of Independence. "He has made Judges dependent upon his Will alone, for the tenure of their offices," our founders complained. Unfortunately, when times get rough we are inclined to forget the significance of judicial independence to the rule of law. FDR forgot it in trying to address the severity of the Depression. Yet, even under those dire circumstances, the idea of attempting to force judges to bend to the political will was overwhelmingly and loudly rejected. Wrote the Senate Judiciary Committee in rebuffing FDR's court-packing plan: "if we may force the hand of the Court to secure our interpretation of the Constitution, then some succeeding Congress may repeat the process to secure another and a different interpretation and one which may not sound so pleasant in our ears as that for which we now contend. . . .[The] initial and ultimate effect [of undermining] the independence of the courts," and [violating] "all precedents in the history of our Government and would in itself be a dangerous precedent for the future." One would think that the significance of an independent judiciary would be reasonably plain to us, less than a year distant from a disputed national election in which it took the courage of seven justices to highlight a fundamental breach of equal protection. However, it is the opposite. It seems that those calling most insistently for the partisan screening of judicial nominees are those wanting to relitigate Bush v. Gore. In his written testimony, one witness at the hearing stated: Bush v. Gore is "a patently illegitimate decision, . . . monumentally unpersuasive; and . . . its illegitimacy taints Mr. Bush's own status as our President." This is not the place to reargue Bush v. Gore. However, it is clear that, unlike some academics, 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000038 the overwhelming percentage of people (and not just a majority of the Supreme Court) accept the proposition that equal protection when applied to ballots means at least this: If you're asked to count votes, you have to know what you're counting. Even when the Florida supreme court reflected upon the matter after the High Court's disputed ruling, five of the state justices who had previously ordered the standardless recount affirmed that "the development of a specific, uniform standard necessary to ensure equal application and to secure the fundamental right to vote throughout the State of Florida should be left to the body we believe best equipped to study and address it, the Legislature." Respect for the lawmaking enterprise, for legislatures especially the Congress is a salutary byproduct of the proper exercise of advice and consent. If the confirmation process reflects that the judicial function is limited to interpreting the Constitution, policymaking is kept in the hands of those who are most accountable to the people. The Senate's power of advice and consent is broad, but a fair interpretation of the qualities required of judicial nominees is legal capacity, personal integrity, and a commitment to abide by the Constitution. The Constitution is not abided, but subverted, when the Senate seeks to obtain commitments for favored policy outcomes from those nominated. Interest Groups/Press Releases Attorney General John Ashcroft Installs Right-Wing "Dream Team" At Justice Department People for the American Way September 6, 2001 www.pfaw.org/issues/democracy/ash update.shtml Direction of U.S. Justice Department in Ashcroft’s First Six Months Signals Grave Threats to Americans’ Fundamental Rights and Liberties, says People For the American Way Foundation Report John Ashcroft’s first six months as U.S. Attorney General have confirmed many of the concerns raised by opponents of his confirmation, according to a report released by People For the American Way Foundation. "John Ashcroft has turned the Justice Department into the radical right’s Dream Team," said People For the American Way Foundation President Ralph G. Neas. "The record in his first six months has been poor and it is likely to get worse. Many of these appointees are just getting 16 VERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000039 started. When they are really up and running, Americans’ fundamental civil rights and civil liberties will be even more severely threatened." The report released highlights some of the appointees to important Justice Department positions, discusses the relevance of the Federalist Society affiliation of many of those officials, considers the impact of John Ashcroft and his legal team on the federal judiciary and thus on American law and society, and reviews Department of Justice action and inaction under Ashcroft in more than a dozen policy areas. Neas said that Ashcroft’s role in the administration’s plans to pack the Supreme Court and federal judiciary with right-wing ideologues could be his most lasting legacy. "If Ashcroft and his allies in the White House and Senate are successful, the federal courts could turn back the clock on 70 years of social justice progress," he said. "If senators don’t take a stand, we’ll find ourselves right back in an era when states’ rights trump civil rights, and we’ll lose First Amendment freedoms, reproductive rights, environmental protection, and so much more." 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.5709-000001 18-2091-B-000040 Schauder, Andrew Schauder, Andrew Monday, September 10, 2001 7:54 PM Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; 'James Carroll'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw' Subject: judicial media review Attachments: Judicial Media Review 9-10-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.5712 18-2091-B-000041 Media Review - Judicial Nominations Monday, September 10, 2001 General Judicial Articles "Bush Pressed on Nominees; GOP Senators Urge Public Push for Judges," Paul Kane, Roll Call, September 10, 2001 1 "District Bench May Lose Another Bush; May Tap Smith for U.S. Appeals Court," 4 Rachel Smolkin and Torsten Ove, The Pittsburgh Post-Gazette, September 8, 2001 "Senators: Bush Intends to Nominate Bankruptcy Judge Julie Robinson," Libby Quaid, The Associated Press, September 7, 2001 6 "White House Meets With Sutton's Foes; Wary about 6th Circuit Nominee and the 7 Administration's ADA Efforts, Disability Rights Groups Air Their Concerns," Jonathan Ringel, Legal Times, September 10, 2001 "Bush to Nominate Mahan for Federal Bench," Steve Tetreault, Las Vegas Review-Journal, September 7, 2001 11 Op/Eds "End the Impasse, Put a Judge in the Federal Courthouse," Donald Russo, The Morning Call, September 8, 2001 12 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Bush Pressed on Nominees; GOP Senators Urge Public Push for Judges By Paul Kane Roll Call Monday, September 10, 2001 Seeking to raise the stakes in the confirmation process, Senate Republicans and some conservative activists are actively encouraging President Bush to mount a more forceful attack 1 VERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000042 against Democrats over the judicial nomination process. At a Thursday meeting between Bush and Congressional GOP leaders, Republican Policy Committee Chairman Larry Craig (Idaho) said he and Minority Whip Don Nickles (Okla.) pointedly raised the judicial nomination issue, along with a list of other "must do's and priorities." Craig said they asked Bush to become more engaged in the process by pressuring Senate Democrats to confirm judges and by accelerating the pace of appointments. "I didn't hear any objection at all," Craig said, adding, "You're going to find the White House increasingly involved. What I heard [from White House officials] was the intent to become increasingly involved." A week before the Craig-Nickles plea on judges, White House press secretary Ari Fleischer signaled that Bush was not yet ready for a full-scale fight with Majority Leader Thomas Daschle (D-S.D.) and Judiciary Chairman Patrick Leahy (D-Vt.) over the thorny issue. "It's only fair to allow the Senate its due deliberation," Fleischer told Roll Call. Fleischer didn't blame Leahy, whom he called "thoughtful" and "fair," for holding up the process, noting that "many of the judicial nominations were made towards the end of July." At the same time, though, Fleischer said Bush would be prepared to fight if Democrats drag their feet. "He'll make the case for his nominees." The debate over how to push for confirmation of judicial nominees has become a central focus in GOP quarters, intertwined with the appropriations process and potentially a major roadblock to the efforts to conclude the Congressional session. Republicans blocked Daschle's effort to move the Commerce, Justice, State and the judiciary appropriations bill last week until Democrats gave an assurance that Leahy would move judicial nominees in a "regular" order. Democrats contend they are moving judges as swiftly as possible, having already confirmed two circuit court judges with another on the verge of passing this week and several more possible before the year ends. In the first year of the Clinton administration, just three circuit court judges were confirmed. In 1989 then President George Bush saw five of his circuit court nominees confirmed. "The Democratic leadership has been very accommodating, very cooperative," Daschle said Friday. And Leahy said more nominees could have been confirmed if not for Bush's decision to remove 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000043 the American Bar Association from the initial rating process for prospective judges, a step that is now handled once the nomination is sent to the panel. Republican delays in the committee reorganization process after Democrats seized the majority took a month out of the committee calendar, Leahy contends. "The Judiciary Committee has made up for lost time," said David Carle, Leahy's spokesman. Carle warned that a rhetorical war from the White House would only hamper the confirmation process, making consensus difficult on some of the most controversial nominees. "The more consensus building there is, more nominees the Senate will be able to confirm," he said. "The polarization that some Republicans seem to be calling for is a prescription for fewer confirmations, not more." However, Republicans countered that they want to see all 44 of the judicial nominees who were sent to Capitol Hill prior to the August recess confirmed before adjournment, a standard they say applied to past administrations in their first year. To date, just four of those 44 nominees have been confirmed, leaving Republicans complaining that there isn't enough time to have hearings on the nominees and confirm them. Senate Minority Leader Trent Lott (R-Miss.) said he had to approach Leahy directly Thursday to ask about the status of U.S. District Judge Charles W. Pickering Sr. of Mississippi, who was nominated to be a United States circuit judge for the Fifth Circuit. Pickering, the father of Rep. Chip Pickering (R-Miss.), received a "well-qualified" rating from the American Bar Association on July 23, but has yet to have his hearing scheduled, according to a GOP source. Lott said he is not happy about the status of Pickering and state Supreme Court Justice Michael P. Mills, up for a district court slot. "I talked to [Leahy Thursday], and he said, 'Well, you hadn't talked to me!' I said, 'First of all, I don't want to ask for preferential treatment for our judges in Mississippi. Secondly, I'd assumed you'd get around to it. But I'm going to notice now that you may not. And I need to know what's going on,'" Lott said. That's why some conservatives are calling for Bush to use the presidential powers of political persuasion on the issue, hoping he will emulate former President Bill Clinton, who often accused Senate Republicans of extremism for moving slow on female and minority nominees. "If this continues to get worse, the White House is going to have to use the bully pulpit to protect their nominees," said Sen. Jeff Sessions (R-Ala.), chairman of the Judiciary subcommittee on the courts. "We're very exited about his nominees. But a president who is very serious about his nominees 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000044 will not only nominate them but he will fight for them," said Thomas L. Jipping, director of the Judicial Selection Monitoring Project of the Free Congress Foundation. Jipping said most conservative activists have little faith in the Senate Republican leadership's ability to, on its own, create enough political pressure to pass the nominees, having seen Daschle and the Democrats win many of the endgame battles of the past few years. "If the President leaves it up to the Republicans in the Senate, he's not going to be successful," Jipping predicted. But Senate Republicans say they are ready to do battle for their nominees, with or without a frontal attack by the White House. Craig said the GOP is ready to block more appropriations bills if Daschle and Leahy don't live up to their agreement to move more nominees. "We don't want to do that, but that certainly is the right of the minority," said. "I believe we have the 41 votes to cause certain actions." District Bench May Lose Another Bush; May Tap Smith for U.S. Appeals Court By Rachel Smolkin and Torsten Ove Pittsburgh Post-Gazette Saturday, September 8, 2001 President Bush is expected to nominate Chief U.S. District Judge D. Brooks Smith to the federal appeals court, a move that could leave the federal bench in the Western District of Pennsylvania even more short-handed. Although the White House made no official comment, Bush's nomination of Smith to the 3rd U.S. Circuit Court of Appeals is anticipated as early as next week. "My hope is that he will be announced shortly," said U.S. Sen. Rick Santorum, R-Pa. "I have been advocating very strongly on his behalf. ... I think he'd be a good addition to the court." State Sen. Robert Jubelirer, R-Altoona, a friend of Smith's, said he didn't know when Bush would make the announcement but confirmed that Smith, 49, also of Altoona, is in line for the job. "I know he's the guy. The FBI has been doing background checks for several months. I think it's coming very, very soon," he said. "The president will never make a better choice than this one," Jubelirer said. "He's very knowledgeable. He's prepared. He truly is someone who is a role model." After his nomination, Smith will have to be confirmed by the U.S. Senate, a process that could require several weeks. Smith became chief judge of the district court in January and sits in Pittsburgh and Johnstown. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000045 He was out of town yesterday and couldn't be reached. Staff members said they knew he was a candidate for the circuit court but said they didn't know he was soon to be nominated. White House spokesman Scott Stanzel declined to confirm that Smith would be nominated but said the administration is moving swiftly to fill judicial vacancies. "The president is moving forward with selecting candidates for judicial slots, selecting candidates who are of high character who have wide experience in the judicial system," Stanzel said. "President Bush has nominated judges at a record pace for a president in his first year." Before the August congressional recess, Bush had nominated 44 federal circuit and district court judges, compared with former President Ronald Reagan's 13 nominations in 1981, the eight nominations in 1989 by Bush's father, and former President Bill Clinton's 13 in 1993, Stanzel said. So far this year, the Senate has confirmed four of Bush's choices. Of the 179 circuit judgeships nationwide, about 31 are vacant. There are 68 seats unfilled in federal district courts, Stanzel said. Santorum said the lengthy background-check process for nominees has slowed the administration's effort to advance nominations. "They're so backed up because they can't get their background checks [completed] in a prompt fashion," he said. "It's just gotten more and more complex as time went on." For years, U.S. District Court here has been handling its caseload with three vacancies in the 10 full-time judgeships it is supposed to have. The problem appears likely to get worse if new judges aren't appointed soon. In addition to Smith's likely departure, Judge Donald Ziegler will go on senior status in October and Judge William Standish has said he'll take senior status in March -- leaving a total of six vacancies. For years, judicial appointments have languished nationwide as nominees were held up in partisan disputes in Washington. Many of Clinton's nominees never even received a hearing. When Bush assumed the presidency, Senate Judiciary Committee Chairman Orrin Hatch, RUtah, seemed poised to offer a smoother ride to Bush's nominees. But James Jeffords, I-Vt., bolted from the Republican Party and handed control of the Senate to the Democrats. "Everything was going swimmingly" until Jeffords' defection, said William J. Green, a GOP consultant based in Pittsburgh. "That plowed up everything." The delay in getting local judgeships filled was rooted in a political dispute between Clinton and Pennsylvania's Republican senators, Santorum and Arlen Specter. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000046 U.S. District Judge Robert Cindrich, a member of the bench in Pittsburgh, was among those nominated by Clinton for the 3rd Circuit. Clinton also nominated then-U.S. Attorney Harry Litman, Allegheny County Common Pleas Judge David Cercone and Downtown attorney Lynette Norton for district judgeships. None of them cleared the Senate. Santorum has complained that the White House violated an agreement that for every three nominations the president made, he and Specter would get one. This spring, a merit selection committee prepared a list of judicial nominees for Bush. Although the list is confidential, these names are believed to be on it: Joy Flowers Conti and Arthur J. Schwab, both attorneys at the Downtown firm Buchanan Ingersoll; Alexander H. Lindsay Jr., a Butler attorney; Allegheny County Solicitor Terry McVerry; and Cercone. Cercone, Schwab and McVerry didn't return calls. Conti and Lindsay said they couldn't comment. Smith, a federal judge since 1988, has served as chief judge since January, replacing Ziegler in that role. By statute, the chief judge serves a seven-year term. Smith started his law career in Altoona with the firm Jubelirer, Carothers, Krier & Halpern, and later became a managing partner there. During his years in private practice, he also served as an assistant district attorney in Blair County and a special assistant attorney general of Pennsylvania. In the early 1980s, he helped lead a grand jury investigation into organized crime in Blair County. After serving as district attorney from 1983 to 1984, he was appointed judge in Common Pleas Court in 1984 and was elected to a full term the next year. In 1987, he was appointed administrative judge of the court. Senators: Bush Intends to Nominate Bankruptcy Judge Julie Robinson By Libby Quaid The Associated Press Friday, September 7, 2001 U.S. bankruptcy Judge Julie A. Robinson is officially President Bush's choice to be the next federal judge in Kansas, the two Kansas senators said. The White House expects to announce Robinson's nomination on Monday, according to GOP Sens. Sam Brownback and Pat Roberts. Bush has appointed several women to serve on federal appellate courts, but Robinson would become his first black female nominee. Robinson, 44, has been a federal bankruptcy judge in Topeka, Kan. since 1994 and is a former assistant U.S. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000047 attorney in Kansas City, Kan. She holds a 1981 law degree from the University of Kansas. "I was deeply impressed with both her professional qualifications and her absolute fitness for elevation to the federal District Court in Kansas," Brownback said Friday. "I have known her to be a person of the highest honor and integrity, as well as a fine lawyer and jurist." The president chooses nominees but tends to follow the wishes of his party's senior senator. That means Brownback named Robinson and two others for the post. The other candidates were Wichita attorney Eric Melgren, a political ally and contributor of Brownback's, and Overland Park attorney Bruce Keplinger. Roberts said Robinson has "a long list of awards and honors." "With her record, not only as a bankruptcy judge but as an individual person, she can certainly avoid a confirmation logjam," the senator said. "I believe very strongly that she's going to be one of the chosen few who we might be able to get confirmed on more of a fast track than all the rest." Both parties have skirmished over judicial nominees since the Democrats' Senate takeover in June. Republicans complain the Senate has not moved fast enough, while Democrats have labeled some nominees as too divisive. The last vacancy in Kansas went in 1999 to U.S. District Judge Carlos Murguia, who had been a Wyandotte County district judge. The current opening came when U.S. District Judge Thomas Van Bebber took senior status. President Clinton tried unsuccessfully last year to name attorney Gary Sebelius, who is married to Democratic state Insurance Commissioner Kathleen Sebelius. But his nomination died because Brownback apparently refused to let it move forward. White House Meets With Sutton's Foes; Wary about 6th Circuit Nominee and the Administration's ADA Efforts, Disability Rights Groups Air Their Concerns By Jonathan Ringel Legal Times Monday, September 10, 2001 In May they marched to the White House in protest. Three months later they were invited inside the gates to air their grievances. So it went for about 10 disability rights advocates who bitterly oppose the nomination of states' rights expert Jeffrey Sutton to the U.S. Court of Appeals for the 6th Circuit. The Aug. 23 meeting was unusual because foes in the judicial nominations battle rarely meet face to face to discuss their differences. The ideological fights usually take place over the 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000048 airwaves and on the Senate floor, and are not taken up in the Indian Treaty Room at the Old Executive Office Building. Sutton has drawn the ire of the disabled community for arguing a series of Supreme Court cases that scaled back civil rights laws, including the landmark Americans With Disabilities Act. Sutton's arguments and the Court's rulings were based on federalism, the principle that the Constitution limits Congress' power over the states. The high court is deeply divided over the subject, splitting 5-4 in case after case, including last term's ADA matter, Board of Trustees of the University of Alabama v. Garrett. From descriptions of the meeting, the disability rights advocates and the Bush administration sound similarly at odds over Sutton, a partner at the Columbus, Ohio, office of Jones, Day, Reavis & Pogue. But neither side expected to change the other's minds. "We weren't going in there for the purpose of convincing the disability rights groups to change their public position on any nominee," says Brad Berenson, the associate White House counsel who argued the administration's point of view. "The agenda was broader than that." The two-hour meeting went beyond judicial selections and into the administration's enforcement of the remaining parts of the ADA and other civil rights laws. Berenson also says that he wanted to explain that while federalist principles may occasionally conflict with acts of Congress-and the policy goals of the disabled rights community-that does not mean that President George W. Bush or his judicial nominees are hostile to disabled people. "It's just a matter of applying the law," says Berenson, who once clerked for Justice Anthony Kennedy. Jim Ward of ADA Watch, an umbrella organization of disabled rights groups, says, "It's great that they're reaching out to us." But, Ward adds, "We can't have these intellectual debates about federalism without putting a human face on how people with disabilities are impacted" by Sutton's victories. For example, Ward notes that Patricia Garrett, the plaintiff in the ADA case, sued the state of Alabama because she lost her job as a nurse at a state hospital after taking work off to get breast cancer treatments. Garrett lost her bid for redress when the high court majority said Congress overstepped the 11th Amendment by subjecting states to ADA lawsuits. Berenson told the group that neither Sutton nor other nominees are picked because they pass any 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000049 litmus test-on anything from abortion to their views on federalism. Responds Ward: "They say ideology is not a factor, but they're putting forth nominees who strongly support federalist views." Other Bush nominees with particularly conservative reputations give the ADA community pause. Ward says he personally is concerned about Judge Terrence Boyle for the 4th Circuit, Judge Carolyn Kuhl for the 9th Circuit, Ohio Supreme Court Justice Deborah Cook for the 6th Circuit, and appellate advocate Miguel Estrada for the D.C. Circuit. None has received a hearing before the Democrat-controlled Senate Judiciary Committee. Sutton and Cook also have a separate problem: a fight over 6th Circuit nominees going on between the White House and the two Democratic senators from Michigan, which is one of the states covered by the 6th Circuit. Andrew Imperato of the American Association of People With Disabilities says he pressed Berenson and Alex Acosta, deputy assistant attorney general for civil rights, for the administration's point of view of the Garrett decision. If Bush views Garrett as wrongly decided, says Imperato, "we can work together to build a fire wall around this decision." However, Imperato says, Berenson and Acosta weren't prepared to discuss the administration's stance on that specific case. Further meetings with Acosta and Ralph Boyd, assistant attorney general for civil rights, are in the works. The contacts between the White House and advocates for disabled people started earlier this summer, when Berenson saw in The Washington Post that Imperato, a fellow alum of Beverly Hills High and Yale University, was a leading ADA advocate. Justin Dart, a longtime disability rights activist who helped get the ADA passed and signed by Bush's father in 1990, calls the meeting "a very good example of democracy in action." Nonetheless, he adds, "I'm deeply concerned about the possible appointment of people like Jeff Sutton and [Justices] Clarence Thomas and Antonin Scalia who don't believe in . . . the authority of the government of the United States to protect the rights of its citizens no matter what state they live in." Rules of the Game Before getting to the business of confirming any more judicial nominees, senators last week argued again over how they should go about doing so. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000050 On Sept. 4, Sen. Charles Schumer (D-N.Y.) held his second judiciary subcommittee hearing on the nominations process and declared that the nominees themselves bear the burden of proving their worthiness for lifetime appointments to the bench. "We require parties who appear before a court to prove their case," said Schumer. "It is not unreasonable to ask those who come before the Senate seeking a lifetime appointment to the federal bench to do the same." Schumer and Sen. Dick Durbin of Illinois represented the Democrats at the hearing, which featured liberal and conservative scholars discussing how the Senate has and should approach confirmations. While the experts addressed the issue, the hearing was instructive mostly as an illustration of the partisan divide among Judiciary Committee members as the nominations process heats up. Five Republicans showed up-Sens. Jeff Sessions of Alabama, Strom Thurmond of South Carolina, Orrin Hatch of Utah, Mitch McConnell of Kentucky, and Jon Kyl of Arizona. Each declared in his own way that the Senate should generally defer to the president's choice of nominees. "The most significant burden borne by a candidate for a judgeship is to convince the president that he or she is the best person for the job," said Hatch. "In other words, the burdens of the judicial nomination process do not begin when the Senate Judiciary Committee receives the official nomination from the White House." Schumer will get a chance to test out his new burden of proof Sept. 13, when he presides over a Judiciary Committee hearing of U.S. District Judge Barrington Parker Jr., who's been nominated for a seat on the 2nd Circuit. In 1994, then-President Bill Clinton nominated Parker to the federal trial court for the Southern District of New York. Bush tapped Parker for the 2nd Circuit in May, a move seen largely to placate Democrats who had been pressing for the White House to moderate his judicial picks. On Sept. 6, the Senate Judiciary Committee moved two Bush nominees-Sharon Prost for the Federal Circuit and Reggie Walton for a district court seat in the District of Columbia-ahead for votes by the full Senate. If confirmed, they would be the fifth and sixth of Bush's 48 nominees approved. One more has had a hearing, not including Parker and any other nominees who get a hearing this week. Bush to Nominate Mahan for Federal Bench By Steve Tetreault Las Vegas Review-Journal 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000051 Friday, September 7, 2001 President Bush today will nominate District Judge James C. Mahan to fill the final vacancy on Nevada's expanded federal court bench, Sen. John Ensign said. Ensign said he was informed Thursday that Mahan, his pick for the post, has passed White House muster. Mahan has been a Clark County District Court judge since February 1999. 'The White House is going to send his name to the Senate Judiciary Committee,' Ensign said. 'This very much pleases us. He will make an incredible federal judge.' Mahan's nomination completes White House activity on Nevada judicial and law enforcement vacancies, Ensign spokesman Traci Scott said. On Wednesday, Bush formally nominated Reno prosecutor Daniel G. Bogden to become U.S. attorney for Nevada. On Aug. 2, Reno attorney Larry Hicks was nominated for a U.S. District Court judgeship. The Senate Judiciary Committee has yet to act on any of the nominees. Chairman Patrick Leahy, D-Vt., has said he expects to move noncontroversial candidates this fall. None of the Nevada picks has drawn controversy, and enjoy support from both Ensign, R-Nev., and Sen. Harry Reid, D-Nev. 'I feel very good about our chances,' Ensign said, predicting the new officers should be in place by November. 'Nothing moves fast in the Senate,' he said. 'Jim Mahan is exceptionally well-qualified to serve as a federal judge,' Reid said. 'I am pleased the president has forwarded his name to the Senate.' Mahan was the local court's highest-rated jurist in the 2000 Judicial Performance Evaluation, conducted by the Las Vegas Review-Journal and the Clark County Bar Association. Ninety-five percent of the participating lawyers said he should be retained. A White House spokesman said he could not confirm Mahan's nomination. 'The White House makes announcements when we have announcements to make,' press officer Ken Lisaius said. Mahan also got the news on Thursday. 'It's a pinnacle for a judge to serve on the federal bench,' Mahan, 57, said from his chambers on Thursday. 'It's a tremendous honor and it's also humbling, because there are a lot of qualified people.' 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000052 As part of the Bush administration's vetting process, Mahan was called to the White House in May to meet with Alberto R. Gonzales, counsel to the president. 'He asked my philosophy about being a judge, how do you reach decisions, how do you use your law clerks,' Mahan recalled. He said he was not asked his opinions on specific cases. 'They didn't ask me about any specifics, and for a judge that would be unethical for me to say,' Mahan said. Op/Eds End the Impasse, Put a Judge in the Federal Courthouse By Donald Russo The Morning Call Saturday, September 8, 2001 After another time-consuming and hair-raising trip to the federal courthouse in Philadelphia, having once again survived the rigors of the Schuylkill Expressway, I had to reflect upon the present state of our beautiful federal courthouse. There it stands, in all its opulence, magnificence and glory, at the corner of Fifth and Hamilton streets in Allentown. Nearly $20 million of taxpayers' money was poured into this striking edifice. Sadly, it now serves only as a monument to the poisonous state of American public affairs. The muted interior of this otherwise awe-inspiring structure reminds us of the price we pay for elevating partisan gamesmanship over constitutional concerns. Unlike the building itself, the behind-the-scenes maneuvering to appoint a judge to work in it has not been pretty. Pennsylvania has two Republican Senators, Arlen Specter and Rick Santorum. Mr. Santorum's fingerprints can be found all over one of the earlier debacles that prevented the Lehigh Valley from getting a replacement for outgoing Chief Judge Edward N. Cahn. Beyond that, President Clinton's pique over former U.S. Rep. Paul McHale's vocal revulsion for his Oval Office antics signaled the second death knell to any follow-up presidential efforts to appoint a federal judge for Allentown. In the midst of all of this, several excellent local jurists remain waiting in the wings. Exactly what, if anything, is really going on down there is somewhat murky to an ordinary citizen such as myself. Perhaps the politically powerful Sen. Specter could inform his Lehigh Valley constituency where this matter now stands in his Judiciary Committee. Are we getting a judge, or not? If so, will it be in my lifetime? Until the recent party switch of Sen. Jim Jeffords of Vermont, Sen. Specter was the chairman of the Senate Judiciary Committee. If anyone is in a position to illuminate us about the current status of this matter, it would be a senator who has his finger on the pulse of the committee that handles judicial appointments. But unless I have missed something over these last few months -12 A\t1 f C,/\N pVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000053 there have been no informative press releases on the subject emanating from Sen. Specter's office. Closer to home, Rep. Pat Toomey claims that this is strictly a Senatorial matter. Amid the silence, however, it is not as if the U.S. Congress is ignoring the Allentown federal courthouse. Legislation will be implemented naming the building after Judge Cahn. This is a fitting tribute to a top-shelf jurist and an all-around gentleman. Judge Cahn was always fair, compassionate, and courteous to the lawyers who appeared in his courtroom. Even when he ruled against one of my clients, I always felt that he had listened to my arguments and had ruled on them according to his own interpretation of the law. Everyone can agree that naming the courthouse after one of the Lehigh Valley's own was a nice touch. After sending out a heartfelt thank you to the politicians in Washington who came up with the idea, though, one is tempted to stop, and say: Excuse me Congress, didn't you forget something? As a result of the continuing impasse, federal cases arising in Lehigh County are being assigned to federal judges sitting in Philadelphia. This burns up time, energy and money, and it is an imposition to litigants. Local witnesses must be transported to Philadelphia, hotel rooms must be rented, and the overall logistics involved in trying a case down there become problematic and attenuated. Local companies involved in federal cases lose more money because their personnel have to spend more time away from the office. And, Lehigh Valley residents who get picked for federal jury duty now have little chance of being selected for an Allentown trial. Last but not least, the judges themselves are not happy with this current state of affairs. More and more cases are being assigned to fewer judges. This is wrong. Try this: do an Internet search under findlaw.com. After reading the average federal court decision, you will get a feel for the hours of research and the extraordinary amount of mental effort a judge and his or her staff will expend to write an opinion. How many opinions can a judge be expected to hand down in a year? And, if a judge is forced by circumstances to start churning them out like cheeseburgers at McDonald's, what is going to happen to the quality of the work? This situation guarantees that everyone comes out a loser. The impasse also forces the court to set aside a specific rule of civil procedure, known as Local Rule 40.1(b). This rule states that parties in Lehigh and Northampton counties must have their cases heard in their home counties. Rule 40.1(b) is not being enforced, and it appears that no one has any good ideas what to do about it. To borrow a term that you are not going to find in any law dictionary, the Lehigh Valley is being dissed. Perhaps this is something to bear in mind when Sens. Specter and Santorum come begging for your votes the next time they are up for re-election. President Bush also must nominate a moderate judge who will be acceptable to Senate Democrats. The President has to realize that he can no longer pay abject homage to the right-wing fringe of his party that wants to impose a 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000054 Jesse Helms-type litmus test on all his judicial appointments. 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.5712-000001 18-2091-B-000055 Schauder, Andrew Schauder, Andrew Tuesday, October 09, 2001 6:39 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 10-09-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6414 18-2091-B-000056 Media Review - Judicial Nominations Tuesday, October 9, 2001 General Judicial Articles "Terrorism May Alter Bush, Court Mood on Federalism," Jonathan Ringel and Jonathan Groner, Fulton County Daily Report, October 5, 2001 1 "Hearings Start for Federal Judge Nominee," 3 Matt Kelley, Omaha World-Herald, October 5, 2001 "Congress Back to Finger-Pointing Normal," 4 James Brosnan, The Commercial Appeal, October 8, 2001 "Officials Propose Federal Judge, U.S. Marshals," The Associated Press, October 5, 2001 5 "Bush Will Name Judge Gibbons to Appeals Bench," 7 James Brosnan, The Commercial Appeal, October 6, 2001 "LA. Court Nominee Quizzed on ‘Junkets’," Joan McKinney, The Advocate, October 8, 2001 8 "State District Judge to be Bush Nominee," The Fort Worth Star-Telegram, October 6, 2001 9 Op/Eds *NONE* Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Terrorism May Alter Bush, Court Mood on Federalism 1 VERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000057 By Jonathan Ringel and Jonathan Groner Fulton County Daily Report Friday, October 5, 2001 *EXCERPT* Judges: Business as Usual While the events of Sept. 11 abruptly altered Washington policy agendas, the politics over the federal judiciary-for better or worse-barely have been affected. On Thursday, the Democrat-controlled Senate Judiciary Committee hosted its second nominations hearing since the attacks. Just as before, Judiciary Chairman Patrick Leahy, D-Vt., favors those nominees who are not mired in controversy, while administration officials continue to grumble that Leahy's pace could be faster. To be sure, putting forth a united front to respond to the terrorist attacks has eclipsed any public bickering among key players at the White House, the Justice Department and the Senate Judiciary Committee. As an example, last week Leahy warmly welcomed John Ashcroft to a hearing on anti-terrorism legislation, despite having been one of 42 Democrats who voted against Ashcroft's confirmation to be attorney general. But the bipartisan spirit in Congress-which has put off debates on hot-button issues such as campaign finance reform, "faith-based" social programs, and changes in Social Security-has not spilled over into judicial politics. Sheldon Goldman, a University of Massachusetts political science professor who has written extensively on judicial politics, says that right now would be a difficult time to deal with a contentious and ideological nomination. "We've got to hope that a Supreme Court justice doesn't die," Goldman says. "A vacancy would make bipartisanship very fragile." Since taking over the Judiciary Committee in June, Leahy has emphasized noncontroversial nominees who enjoy broad support from both Democrats and Republicans. That approach is "all the more important now," says David Carle, Leahy's spokesman. "To take a controversial nomination would suck the oxygen out of the process and reduce the number of nominees we can work on." But one administration official says that Leahy let the administration know back in August that consensus nominees would fare better than controversial picks such as Jeffrey Sutton, whom President George W. Bush has selected for a seat on the 6th U.S. Circuit Court of Appeals, or Michael McConnell, whom Bush tapped for the 10th Circuit. 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000058 President Bush announced both nominees at a White House ceremony in May. "Leahy never had any intention of having hearings on those nominees," says the official. Accordingly, the administration official figures it is highly unlikely that Sutton, vigorously opposed by disability rights groups, and McConnell, opposed by proponents of abortion rights and a church-state separation group, will get a hearing this year. Similarly, D.C. Circuit nominees John Roberts Jr., a Hogan & Hartson partner opposed by abortion rights groups, and Gibson, Dunn & Crutcher's Miguel Estrada may have to wait until next year. Slated for this week's hearing was New Orleans U.S. District Judge Edith Brown Clement, nominated for the 5th Circuit in May, and some district court nominees who had not been scheduled by press time. Clement enjoys the support of both home-state senators, Democrats John Breaux and Mary Landrieu. Under the Democrats' control, the Senate has confirmed three nominees to the courts of appeals and three to district courts. Two of those judges were confirmed by the full Senate after the terrorist attack: Sharon Prost for the U.S. Court of Appeals for the Federal Circuit and Reggie Walton for the U.S. District Court for the District of Columbia. Two more nominees, one each for the trial and appellate courts, are waiting for a vote by the Judiciary Committee. Altogether, 53 Bush nominees are pending. There are 109 judicial vacancies. White House Counsel Alberto Gonzales pledged over the summer that the administration would nominate close to 100 judges by the end of the year. That effort could be hindered by the terrorism crisis as resources at the Federal Bureau of Investigation, which conducts background checks, are diverted to the investigation. One judicial nominee has been affected as well. Nebraska Deputy Attorney General Laurie Smith Camp, nominated for a district court seat, missed her Sept. 13 hearing because flights were grounded and she could not get to Washington. It is not clear when she will be rescheduled. Hearings Start for Federal Judge Nominee By Matt Kelley Omaha World-Herald Friday, October 5, 2001 So far, so good for U.S. District Court judge nominee Laurie Smith Camp, who won bipartisan plaudits Thursday during testimony before a Senate committee. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000059 Camp, nominated by President Bush to become Nebraska's first female federal judge, was introduced to the Senate Judiciary Committee by Nebraska Sens. Chuck Hagel, a Republican, and Ben Nelson, a Democrat. "This is a unique candidate," Hagel told the committee, "a well-qualified candidate." Barring unforeseen problems, Camp's nomination seems headed for Senate approval later this year. Currently, Camp serves as a top aide to Nebraska Attorney General Don Stenberg, a stalwart Republican who has mounted Senate campaigns against both Nelson and Hagel. On Thursday, Nebraska's senators praised Camp's professionalism and legal abilities. Nelson, who ran against Stenberg in his 2000 Senate race, noted that he worked extensively with Camp during his eight years as governor of Nebraska. "I can attest to the quality of her work and the keenness of her intellect," Nelson said. Camp's testimony before the committee was limited mostly to short answers to a few questions regarding privacy rights and congressional efforts to prevent terrorism. Congress Back to Finger-Pointing Normal By James Brosnan The Commercial Appeal Monday, October 8, 2001 *EXCERPT* Congress is returning to normal. Partisan finger-pointing is back, at least on home-front issues. That isn't always unproductive, but it slows the process. Commercial airplanes may be packed again before Congress passes the security measures that are supposed to reassure passengers. For a couple of weeks after the Sept. 11 terrorist attacks, President Bush and congressional leaders were remarkably adept at holding sniping to a minimum while they forged deals on a $40 billion emergency spending bill and a $15 billion airline rescue package. But Atty. Gen. John Ashcroft signaled a return to the old ways last week when he joined Republican senators for their weekly lunch and afterwards complained about the "slow pace" of anti-terrorism legislation in the Senate Judiciary Committee. Senate Minority Leader Trent Lott (R-Miss.) also was upset about what he called the committee's "slow walking" of judicial nominees, so he decided to block votes on appropriations bills. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000060 Part of Lott's pique is personal. Democrats are holding up a final vote on the nomination of Mississippi Supreme Court Justice Mike Mills to the U.S. District Court in North Mississippi because of objections from abortion rights groups. And the Judiciary Committee hasn't even scheduled a hearing on the nomination of U.S. Dist. Judge Charles Pickering of Laurel to the Fifth Circuit Court of Appeals in New Orleans. Republican leaders also objected to a bipartisan plan to make baggage screeners at airports federal employees, as well as Democratic attempts to add benefits for laid-off aviation employees and security upgrades for Amtrak to the airport security bill. So they prevented action on the measure in both the House and Senate. Senate Majority Leader Tom Daschle (D-S.D.) escalated the partisan rhetoric. "I'm disappointed, obviously, that our Republican colleagues have chosen what has been clearly an obstructionist approach," Daschle told reporters. Daschle said he would hold off on moving Ashcroft's anti-terrorism package until Congress acts on the airport security bill. Senate Republican Policy Committee Chairman Larry Craig (R-Idaho) responded: "The reason we are not debating this issue on the floor this afternoon is not a matter of obstruction; it is a matter of getting it right before it is brought to the floor." Officials Propose Federal Judge, U.S. Marshals The Associated Press Friday, October 5 2001 President Bush plans to nominate 327th state district judge Philip Martinez to be a U.S. district judge for Texas' western district. Martinez had been recommended to Bush for the seat by Texas Sens. Phil Gramm and Kay Bailey Hutchison in June. Martinez, 43, has served as the 327th district judge since 1991. He graduated from the University of Texas-El Paso in 1979 and received his law degree from Harvard Law School in 1982. After he is formally nominated by the president, the Senate must approve his nomination. Through the week before the Sept. 11 attacks on the World Trade Center and Pentagon, Republicans had been complaining that the Senate was not moving fast enough on Bush's nominations. The federal bench vacancy opened after U.S. District Judge Harry Hudspeth decided to take senior status. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000061 Also Friday, Gramm and Hutchison, both Republicans, recommended four men to become U.S. marshals for the four judicial districts of Texas. Those recommended are Fort Worth Deputy Police Chief Randy Ely for the northern district; Assistant U.S. Attorney Greg Anderson, western district; deputy U.S. Marshal John Moore, eastern district; and former Drug Enforcement Special Agent Ruben Monzon, southern district. The responsibilities of U.S. marshals include pursuing and capturing federal fugitives, protecting federal witnesses, transporting and holding in custody criminal defendants and convicts, providing courtroom security and seizures and sales of criminal assets. Ely, 49, oversees about 400 personnel and is responsible for administering a $29 million budget. During his career in Fort Worth, Ely has served as a detective, sergeant, lieutenant and captain. Ely earned his bachelor's degree in criminal justice and masters in urban affairs from the University of Texas at Arlington. Anderson, 48, of San Antonio, has been a prosecutor in the western district for 14 years. He also has worked as a special agent of the U.S. Bureau of Alcohol, Tobacco and Firearms, a criminal investigator for the Immigration and Naturalization Service and a highway trooper for the Texas Department of Public Safety. He earned a bachelor's degree from Texas Tech and his law degree from Texas Tech School of Law. Moore, 50, of Tyler, has served in the marshal office in the eastern and northern districts for more than 18 years. A former Texas DPS trooper, he also was a patrol officer with the Amarillo, Plainview and Littlefield police departments and a deputy sheriff in Potter County (Amarillo). He also had a 15-year military career. He earned a bachelor's degree in occupational education and criminal justice from Wayland Baptist University. Monzon, 58, of Houston, worked with the Drug Enforcement Administration for 26 years. He was a DEA chief inspector and agent in charge of the Houston office from 1990-95, when he retired. Recently, he had worked in private security. Monzon earned his bachelor of arts degree from Hardin-Simmons University in Abilene. Bush Will Name Judge Gibbons to Appeals Bench By James Brosnan The Commercial Appeal Saturday, October 6, 2001 President Bush said Friday he will nominate U.S. Dist. Judge Julia Gibbons of Memphis to the Sixth Circuit Court of Appeals in Cincinnati. Her husband, Dist. Atty. Gen. Bill Gibbons, said the nomination would not affect his decision about whether to run for county mayor. The position does not require Judge Gibbons to move. The Sixth Circuit bench is one step below the Supreme Court and hears appeals from Tennessee, 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000062 Kentucky, Ohio and Michigan. Seven of its 16 judgeships are vacant. Judge Gibbons said she was "honored to have been nominated" and then, as the White House requires of nominees, declined further comment until senators have a chance to question her at a confirmation hearing. Bush only announced his "intention" to nominate Gibbons, so it could be days before her paperwork reaches the Senate and many weeks more until she gets a hearing and a vote. This week, GOP senators began holding up action on appropriations bills to protest what they perceive as slow action by the Judiciary Committee on Bush's nominees. Sen. Bill Frist (R-Tenn.) said he and the state's other Republican senator, Fred Thompson, will try to move her nomination quickly through the chamber. "She's an outstanding person and jurist and I'm confident she will serve the court with dignity and distinction," said Thompson. Gibbons, 50, was born in Pulaski, Tenn., and graduated from Vanderbilt University in 1972. She received her law degree from the University of Virginia. In 1983, Gibbons was nominated by then-President Ronald Reagan for the district court seat vacated by Judge Harry Wellford after he went to the Sixth Circuit. As a district judge, she ordered the violence-plagued Shelby County jail system to be put under court supervision in 1989 and in 1990 upheld a local ordinance restricting the locations of topless bars and adult bookstores. She rejected a new trial for convicted cop-killer Philip Workman and gave a life sentence to Auburn Calloway for trying to hijack a FedEx plane. Her service has not been without controversy. The federal Equal Employment Opportunity Commission has asked Gibbons to recuse herself from a case involving accusations of sex and race bias at AutoZone. The EEOC questions whether the judge can be fair because former AutoZone chairman J. R. 'Pitt' Hyde III was finance chairman of Bill Gibbons's campaign for district attorney general in 1998. In Memphis, news of her pending nomination drew praise from legal circles. "She has a keen mind and a good work ethic. I think she would be an excellent nominee," said Pat Arnoult, president of the Memphis Bar Association. Leo Bearman Jr., a prominent Memphis trial lawyer, said Gibbons is a highly respected, experienced trial judge with a great temperament and ability. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000063 The nomination comes as the normal complement of five federal judges in the Western District of Tennessee is down to three: Gibbons, Bernice Donald of Memphis and James D. Todd of Jackson. U.S. Dist. Judge Jon P. McCalla is in the second month of a six-month leave of absence, taken to avoid a hearing on judicial misconduct charges. U.S. Dist. Judge Jerome Turner died on Feb. 12, 2000. Thompson and Frist recommended Memphis lawyer Hardy Mays for Turner's position, but Bush has yet to act. LA. Court Nominee Quizzed on "Junkets" By Joan McKinney The Advocate Monday, October 8, 2001 The question of "judicial junkets" was a tiny little ripple in the very calm waters at the U.S. Senate Judiciary Committee last week, when Louisianan Edith "Joy" Brown Clement was questioned about her nomination to the 5th U.S. Circuit Court of Appeals. Nothing is going to capsize Clement's boat. She'll be approved by the committee and confirmed by the full Senate, probably within a few weeks. However, some Judiciary Committee members are trying to force all judgeship nominees on record as regards travel financed by special interests with cases before the federal courts. The private-property movement, in particular, has been aggressive about inviting federal judges to retreats where people debate the nuances of the U.S. Constitution and its provisions on property ownership and government "compensation" when property is seized for public uses. Clement is a federal district judge based in New Orleans. Democratic Sen. Herb Kohl of Wisconsin noted that, on her disclosure forms submitted to Judiciary Committee, Clement reported "attending a number of these seminars in recent years." The seminars "are one-sided" and are "funded by groups with a stake in the outcome of court cases," Kohl said. So, will Clement keep attending such seminars, he asked. And what does she think about pending legislation, sponsored by Massachusetts Democrat Ted Kennedy and others, "to ban these types of (travel) opportunities" for federal judges? Clement didn't answer regarding the proposed ban, and essentially said that she may continue to accept the subsidized travel. In her experience, Clement said, the seminar speakers are "very diverse" and the discussions are "very broad-based." In the future, "I would evaluate the opportunity if presented with the invitation," she said. U.S. Sen. Mitch McConnell, R-Ky., a leader of Congress' property-rights bloc, said, "I want to compliment you for attending the seminars. I also want to compliment you for not ruling them out in the future." State District Judge to be Bush Nominee 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000064 The Fort Worth Star-Telegram Saturday, October 6, 2001 State District Judge Philip Martinez of El Paso will be nominated by President Bush to a federal judgeship in the Western District of Texas, the White House announced Friday. The U.S. Senate must confirm the nomination. Martinez was out of town on Friday and could not be reached to comment. U.S. District Judge David Briones, currently the only federal judge in El Paso, has been using federal judges from districts in other states to help him chip away at a huge caseload, mostly of drug-smuggling and immigration defendants. Martinez, 44, has served as the state's 327th District judge in El Paso since 1991. "With his experience, he will be able to start right away," Briones said. "We'll have a docket waiting for him." Martinez was recommended for the position by Sens. Phil Gramm and Kay Bailey Hutchison, both Texas Republicans. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6414-000001 18-2091-B-000065 Dinh, Viet From: Sent: To: Subject: Dinh, Viet Thursday, October 11, 2001 4:04 PM Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; 'James Carroll'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw' FW: Hearing, Thursday, October 18 @ 2:00 pm -----Original Message----Joy, Sheila From: Sent: Thursday, October 11, 2001 3:20 PM To: Dinh, Viet; Newstead, Jennifer; Benedi, Lizette D; Suit, Neal; Scottfinan, Nancy Subject: Hearing, Thursday, October 18 @ 2:00 pm Charles Pickering, 5th Cir Larry Hicks, NV Christina Armijo, NM Karon Bowdre, AL,N Stephen Friot, OK,W Don't know who will chair but they are apparently trying to get Schumer VERSIGHT Document ID: 0.7.19343.6439 18-2091-B-000066 Schauder, Andrew Schauder, Andrew Thursday, October 18, 2001 7:33 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 10-18-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6483 18-2091-B-000067 Media Review - Judicial Nominations Thursday, October 18, 2001 General Judicial Articles "Clash Coming on GOP Showdown for Bush Judicial Nominees," CNN.com, October 17, 2001 2 "Republicans, Leahy Continue to Clash," Paul Kane, Roll Call, October 18, 2001 4 "Report Documents Unprecedented Situation with Federal Judiciary, Calls for 7 Unprecedented Bipartisan Solution," U.S. Newswire, October 17, 2001 "Lawyer Quits Country Club After Nomination," The Advocate, October 17, 2001 9 "Republican, Democratic Clash Coming on GOP Slowdown for Bush Judicial Nominees," 10 Jesse Holland, The Associated Press, October 17, 2001 11 "Senate Stalemate Growing More Personal," Congress Daily, October 17, 2001 "GOP 'Hardball' Ploy Aims to Fill Benches; Action Demanded on Bush Nominees," 14 Donald Lambro, The Washington Times, October 17, 2001 "Lawyers' Panel Nixes Bunning," Nancy Zuckerbrod, The Associated Press, October 16, 2001 16 "Judge Nominee Pulls Out of Club; Questions Raised About Racial Bias," Bill Walsh, The Times-Picayune, October 16, 2001 17 "Judicial Fight Stymies Tense Capitol," 18 P. Mitchell Prothero, United Press International, October 16, 2001 "GOP Seeks Action on Bush Nominees," The Washington Post, October 16, 2001 20 "Senate Still Battling Over Bush’s Judicial Nominees," 1 VERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000068 21 Jonathan Ringel, American Lawyer Media, October 18, 2001 "Hispanic National Bar Association Endorses Appointment of Miguel Estrada 23 to the U.S. Court of Appeals for the District of Columbia," U.S. Newswire, October 17, 2001 Op/Eds "Leahy’s War Cover," 23 The Wall Street Journal, October 18, 2001 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases "End the Leahy Stall; 'Sen. Leahy Should Stop Playing Partisan Politics With the Federal Courts,' AR's Richard Lessner," PR Newswire, October 16, 2001 25 "NARAL Opposes Confirmation Of Charles Pickering and Tactic Of Blocking Appropriations Bills For Court- Packing Plan," NARAL Press Release, October 16, 2001 www.naral.com/mediaresources/press/2001/pr101601 pickering.html 26 "Potential Closed-Door Hearing on Judicial Nominees Today "Would be Undemocratic and Unacceptable," Says PFAW’s Neas" People for the American Way, October 18, 2001 Press Release Link: www.pfaw.org/news/press//2001-10-18.331.phtml Report Link: www.pfaw.org/issues/democracy/judicial 10-17.pdf 26 General Judicial Articles Clash Coming on GOP Showdown for Bush Judicial Nominees CNN.com Wednesday, October 17, 2001 A battle over President Bush's judicial nominations is intensifying in the Senate. Republicans have been blocking legislation to call attention to the small number of judges 2 VERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000069 approved by the Senate this year. Senate Majority Leader Tom Daschle, D-South Dakota, planned to force a vote on a foreign aid bill past the Republicans on Wednesday. He says Democrats are doing what they can to get as many judges through as possible. Republicans disagree, and say they have enough votes to continue stalling the Senate until they get a guarantee that senators will accept more judges before leaving for the year. The Senate Judiciary Committee has a hearing Thursday for an U.S. Appeals Court judge and four U.S. District Court judges, Daschle said. "I think we're doing all that we can," he said. "The point is that, as much as our Republican colleagues have complained, their tactic is counterproductive." The Democratic-led Senate has approved eight judges this year, with 52 nominees still pending. There are 110 vacancies in the federal judiciary system, including 39 positions that have been open so long the courts have classified them as "judicial emergencies." "I don't think we're doing the job, and I think the American people are going to suffer because of it," said Sen. Orrin Hatch of Utah, the top Republican on the Senate Judiciary Committee. To call attention to their point, Republicans have been holding up the Senate's consideration of the foreign aid bill. It is one of the 13 spending bills that were supposed to be finished by Oct. 1, the beginning of the government's fiscal year, but were not. "Regretfully, this seems to be the only tool with which we are left to try to advance the president's judicial nominations," said Sen. Mitch McConnell, R-Kentucky. The government is operating in the meantime under the same priorities established by former President Clinton and lawmakers a year ago. Sen. Jon Kyl, R-Arizona, says Democrats claim that they've been too busy taking care of other Senate business to get more judges through. "For those who say we are just so busy doing other things, then I am forced to say, fine," Kyl said. "Then let's stop until we can get some of these nominations to the floor for a vote and acted on." Democrats and Republicans are accusing each other of hurting America's war against terrorists because of the fight over judicial nominees. Democrats say the war effort needs the money in the foreign aid spending bill. "Because of the Republican filibuster, $42 million that would be available to help countries strengthen their borders is not being provided; $175 million to fight infectious diseases, as we fight the war in Afghanistan, is not being provided; $5 billion in direct military assistance to 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000070 those allies in the region is not being provided; and $255 million to assist Afghan refugees is not being provided," Daschle said. Republicans say the anti-terrorist efforts in America need judges to work effectively. The House and Senate are working on an anti-terrorism bill to give law enforcement more power to track down and prosecute suspected terrorists. But "law enforcement can't make cases to empty courtrooms," Hatch said. Republicans, Leahy Continue to Clash By Paul Kane Roll Call Thursday, October 18, 2001 Despite growing anxiety about the threat of anthrax, Senate and House leaders said yesterday that business will continue to proceed as normally as possible and that there will still be serious policy disputes over critical issues in the coming days and weeks. "We will not let this stop the work of the Senate," Majority Leader Thomas Daschle (D-S.D.) said at a press conference in which he announced that 31 individuals, mostly members of his staff, had tested positive for anthrax exposure. As if to prove the point, the Senate went ahead and overwhelmingly approved the Interior appropriations conference report late Wednesday afternoon and is expected to pass the military construction conference report today. And with serious prodding from the White House, House and Senate negotiators were very close to reaching bipartisan consensus on an anti-terrorism package that would reconcile the previously vast differences between the bills passed by the two chambers, aides said. But the Senate remained gridlocked over how to move the remaining appropriations bills it needs to move to House-Senate conferences, as Republicans maintained that they would continue blocking the spending bills because of the slow pace on judicial nominations. If anything, that dispute has grown more bitter and partisan in recent days. Colorado GOP Sens. Wayne Allard and Ben Nighthorse Campbell this week accused Judiciary Chairman Patrick Leahy (D-Vt.) of threatening the future prospects of their home-state judicial nominees. According to Allard, he and Campbell approached Leahy during a cloture vote Monday night on the foreign operations spending bill and asked the Vermont Senator if he could quickly bump up three judicial nominees from their state close to the top of the list of nominees being considered. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000071 At that point Leahy, who also chairs the foreign operations subcommittee, wanted to know if the pair was supporting the GOP blockade on appropriations, according to Allard. "Well, he asked, 'How did you vote on that bill?,'" Allard said. "If I go ahead and vote for cloture, you'd move my judges to the top?" Allard recalled asking Leahy. "He said, 'Yep.'" Campbell stood by that account of events yesterday, adding, "It's just unfortunate that Senator Leahy is holding up these nominations." Leahy did not specifically deny the conversation with Allard and Campbell, but his staff hinted that the Colorado Senators may have misinterpreted comments that were intended to be a joke. "He's one of the senators from the old school who does not discuss conversations with other senators," said David Carle, Leahy's spokesman. "But it's probably fair to say that if Senator Allard approached Senator Leahy right then to talk about any newly received nominations, the opportunity for irony would have been especially high." Leahy plans to hold an executive meeting today in one of the meeting rooms off the Senate floor, since the regular hearing room in the Dirksen building will be closed. He expects the committee to approve five judicial nominations as well as 13 U.S. attorneys and one post related to the Justice Department. After the executive meeting, the Judiciary panel plans to hold a nomination hearing for another four judges. Of those judicial nominees who will be approved or have their hearing, most come from states with Senators who voted against cloture on the spending bill. "That kind of says it all," Carle said. Some GOP Senators, however, said they view Leahy's comments to Allard and Campbell as part of an overall effort to slow the nomination process. "This is too important a process to play that kind of political game," said Sen. Jeff Sessions (R-Ala.), ranking Member on Judiciary's subcommittee overseeing the federal bench. Sen. Larry Craig (Idaho), chairman of the Republican Policy Committee, said Leahy so far had made a "meager effort" in approving judges, eight of whom have been confirmed by the full Senate with almost another 50 awaiting action. Craig said Daschle has "failed to instruct" Leahy to pass more judges out of his committee, noting that the Majority Leader has forced chairmen to pass key bills out of their panels or risk having them brought to the floor without committee approval. "I see that as a disconnect of leadership or at least an inconsistency," Craig said. At Tuesday's GOP luncheon, at least half a dozen Senators stood up to complain in highly 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000072 personal terms about Leahy's handling of the judicial process, according to a GOP aide who was present. Democrats, however, are standing solidly behind the Vermont lawmaker. Daschle said Tuesday he was "very appreciative" of Leahy's work in handling the nomination process, saying any delays were due to paperwork problems and the White House's decision to not first vet nominees through the American Bar Association, a process that now takes place once a nomination arrives on Capitol Hill. "We're doing the best we can," he added. Daschle also said there was nothing to negotiate about with Republicans and Senate Minority Leader Trent Lott (R-Miss.) as far as the pace of judicial nominees is concerned, setting up a potentially lengthy standoff over judges and appropriations. "We talk about it a lot, but there are no negotiations," he said. On the House side, Appropriations Chairman Bill Young (R-Fla.) said his committee would continue to move bills and conference reports on a "regular" basis. He said further delays caused by safety precautions may force Congress to pass another continuing resolution at the end of this month to fund government operations, but said passing an "omnibus" bill with all remaining spending measures was not something he predicted would happen. Daschle had planned to hold another cloture vote on foreign operations yesterday morning, but that was canceled after the revelations about the number of staffers who initially tested for anthrax exposure. This prompted Senate leaders to hold a bipartisan conference in the Senate dining room, the third such extraordinary gathering of all Senators since the Sept. 11 attacks. The Senators received a briefing from top medical experts in the administration on the threats from the deadly chemical. Exiting the meeting, Senators said there was a unanimous feeling of support for Daschle and for maximizing the safety of staffers and others in the Capitol complex. "There's total unity here. There's total support for Daschle," Craig said. "Everybody feels very together now. Whether that applies to other issues, I don't know," said Sen. Paul Wellstone (D-Minn.). The second cloture vote on foreign operations is expected to come early next week. Because of all the distractions that Daschle has faced this week, Craig said it made sense to put off this contentious bill for now and allow less controversial legislation to move this week. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000073 When the more divisive issues are revisited next week, the fighting is expected to resume. Sen. Jon Kyl (R-Ariz.), a senior Judiciary member, said he fully expects the Republicans to block the foreign operations bill. "It'll be the same vote as before," he said. "Nothing has changed." Report Documents Unprecedented Situation with Federal Judiciary, Calls for Unprecedented Bipartisan Solution U.S. Newswire Wednesday, October 17, 2001 People For the American Way Foundation President Ralph G. Neas today called on President Bush and members of the U.S. Senate to engage in an unprecedented bipartisan approach to judicial nominations in order to minimize the number of divisive nomination battles and to prevent a complete takeover of the federal judiciary by right-wing ideologues. In a report released today, he also urged Senators to resist right-wing pressure to confirm nominees without sufficient opportunity to consider their qualifications and judicial philosophy. "President Bush and members of the U.S. Senate must recognize that we face an unprecedented situation in the federal judiciary," said Neas, "one that calls for an unprecedented bipartisan solution." The PFAWF report debunks accusations that Bush administration's nominees are being treated unfairly by the Senate, and documents the unprecedented blockade waged by some Senate Republicans, many of whom now clamor for immediate votes on Bush administration judicial nominees, against highly qualified Clinton administration nominees, especially to the critical federal appeals courts. That campaign set the stage for all thirteen of the federal appeals courts to be dominated by judges appointed by a single political party by the end of the Bush administration, an unprecedented situation. If President Bush follows the urging of right-wing advocates to appoint only far-right ideologues to those positions, the impact on Americans' rights and freedoms could be devastating for decades. People For the American Way Foundation researchers reviewed Congressional Research Service statistics, comparing the Senate record on judicial nominations during 1995-2000, when Republicans controlled the Senate and President Clinton submitted nominees, and 1987-1992, when Republican presidents submitted nominees to a Democratic-majority Senate. The results are stark and clear: -- During the years Republicans controlled the Senate, 45.3 percent of President Clinton's nominations to the courts of appeals were returned to the White House, a rate 72 percent higher than the 26.3 percent return rate for Presidents Reagan and Bush when Democrats controlled the Senate. (None of the returned Clinton appellate court nominees were voted down -- not a single one of them was allowed to come up for a vote.) -- During the final two years of Clinton's term, the blockade was even tighter, with less than half 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000074 of Clinton's appeals courts nominees being confirmed. More specifically, during the 106th Congress, 56 percent of President Clinton's nominations to the courts of appeals were blocked. This failure rate for President Clinton's appeals court nominees was 60 percent higher than for Presidents Reagan or George H.W. Bush, each of whom saw only 35 percent of his appeals court nominees go unconfirmed in the 101st and 102nd Congresses, respectively. If numbers are calculated so as to eliminate the effect of multiple nominations of individual nominees, serious discrepancies remain. Under this analysis, appeals court nominees were blocked during the six years Republicans controlled the Senate under President Clinton at a rate nearly 40 percent higher than during the six years Democrats controlled the Senate under Presidents Reagan and Bush -- 35 percent under Clinton vs. 25 percent under Reagan and Bush. See the full report for a further note on methodology. Neas noted that Senate Minority Leader Trent Lott recently threatened to hold up the appropriations process if Bush judicial nominees were not given swift consideration, and yesterday Senate Republicans blocked action on a foreign aid bill. Neas said such calls for action by Lott and other right-wing leaders, including Attorney General John Ashcroft, showed "remarkable chutzpah, if not outright hypocrisy," given their involvement in the stalling campaign against Clinton administration nominees. Neas also noted that, in the face of pressure from Lott and others, one judicial nominee was recently approved by the Senate Judiciary Committee in closed session and by the full Senate despite pending concerns about his record, and a controversial nominee was scheduled for a hearing with five working days' notice, making it impossible for senators to conduct a thorough review of his record. Neas called such actions "unfortunate and unacceptable." The report calls on both President Bush and the Senate to act in accordance with their constitutional roles and with recognition of the unprecedented situation facing the federal judiciary. Among the report's recommendations: -- President Bush should work closely with Senate Democrats in an attempt to repair the damage done by six years of Republican obstruction, restore the pre-nomination role of the ABA, and seek out nominees who are not right-wing ideologues and who demonstrate an understanding of and commitment to civil and constitutional rights. -- Senate Judiciary Committee Chairman Patrick Leahy should move judicial nominations only when the committee has had time to give them sufficient consideration. -- The Senate should carefully and thoroughly review the President's nominees, particularly for the courts of appeals and the Supreme Court. They should hold out a clear standard of commitment to civil and constitutional rights, as more than 200 law professors have recently suggested. Mainstream nominees that reflect genuine bipartisan consideration should receive priority in processing. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000075 -- The Senate should not hesitate to fulfill its constitutional responsibility of rejecting and withholding its consent from nominees who do not demonstrate qualifications that include a firm commitment to broad principles of equality and individual rights and an abiding respect for the Constitution and for the constitutional authority of the Congress. Lawyer Quits Country Club After Nomination The Advocate Wednesday, October 17, 2001 A Metairie lawyer, nominated by President Bush for a federal judgeship, has withdrawn his family's membership from a Jefferson Parish country club after questions were raised about whether it discriminates against black people. In an Oct. 12 letter to the Metairie Country Club, Jay Zainey said he felt pressured to drop his membership because of media inquiries while he is being considered for U.S. Senate confirmation. He was nominated Oct. 10 for a vacancy on the U.S. District Court in New Orleans after being touted by Republican members of the state's congressional delegation. "Although I know of no discriminatory practices at the club, a fact which reportedly has been confirmed by an FBI background investigation, I feel compelled to resign," Zainey wrote. Officials at the country club say they don't discriminate. They declined to say whether there are any black people among the 1,270 families who belong. Potential members must be invited to join and must be approved by a committee. The FBI recently checked the club as part of its background investigation of Zainey and concluded that the club does not discriminate, an FBI spokesman said. U.S. Rep. Billy Tauzin, R-Chackbay, urged Zainey to drop his membership because of the potential political backlash at a time when the pace of Bush administration judicial nominees being approved by the Democrat-controlled Senate is already slow. A spokesman for Tauzin said Monday that Zainey decided to drop out before Tauzin urged him to do so. "It was a decision he made on his own after sounding out a few close friends," Ken Johnson said. "No one pressured him, absolutely no one." Republican, Democratic Clash Coming on GOP Slowdown for Bush Judicial Nominees By Jesse Holland The Associated Press Wednesday, October 17, 2001 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000076 A battle over President Bush's judicial nominations is intensifying in the Senate. Republicans have been blocking legislation to call attention to the small number of judges approved by the Senate this year. Senate Majority Leader Tom Daschle, D-S.D., planned to force a vote on a foreign aid bill past the Republicans on Wednesday. He says Democrats are doing what they can to get as many judges through as possible. Republicans disagree, and say they have enough votes to continue stalling the Senate until they get a guarantee that senators will accept more judges before leaving for the year. The Senate Judiciary Committee has a hearing Thursday for an U.S. Appeals Court judge and four U.S. District Court judges, Daschle said. "I think we're doing all that we can," he said. "The point is that, as much as our Republican colleagues have complained, their tactic is counterproductive." The Democratic-led Senate has approved eight judges this year, with 52 nominees still pending. There are 110 vacancies in the federal judiciary system, including 39 positions that have been open so long the courts have classified them as "judicial emergencies." "I don't think we're doing the job, and I think the American people are going to suffer because of it," said Sen. Orrin Hatch of Utah, the top Republican on the Senate Judiciary Committee. To call attention to their point, Republicans have been holding up the Senate's consideration of the foreign aid bill. It is one of the 13 spending bills that were supposed to be finished by Oct. 1, the beginning of the government's fiscal year, but were not. "Regretfully, this seems to be the only tool with which we are left to try to advance the president's judicial nominations," said Sen. Mitch McConnell, R-Ky. The government is operating in the meantime under the same priorities established by former President Clinton and lawmakers a year ago. Sen. Jon Kyl, R-Ariz., says Democrats claim that they've been too busy taking care of other Senate business to get more judges through. "For those who say we are just so busy doing other things, then I am forced to say, fine," Kyl said. "Then let's stop until we can get some of these nominations to the floor for a vote and acted on." Democrats and Republicans are accusing each other of hurting America's war against terrorists because of the fight over judicial nominees. Democrats say the war effort needs the money in the foreign aid spending bill. "Because of the Republican filibuster, $42 million that would be available to help countries 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000077 strengthen their borders is not being provided; $175 million to fight infectious diseases, as we fight the war in Afghanistan, is not being provided; $5 billion in direct military assistance to those allies in the region is not being provided; and $255 million to assist Afghan refugees is not being provided," Daschle said. Republicans say the anti-terrorist efforts in America need judges to work effectively. The House and Senate are working on an anti-terrorism bill to give law enforcement more power to track down and prosecute suspected terrorists. But "law enforcement can't make cases to empty courtrooms," Hatch said. Senate Stalemate Growing More Personal Congress Daily Wednesday, October 17, 2001 The Senate remained at a standstill Tuesday, as the battle over judicial nominees took on an increasingly personal tone and threatened not only FY02 appropriations measures but other initiatives of congressional leaders and the Bush administration. The dispute is expected to drag into today, as Majority Leader Daschle again tries to invoke cloture to move to the FY02 Foreign Operations appropriations bill. Senate Republicans vowed to hang tough today and block movement of that bill until they are satisfied that the pace will quicken on processing President Bush's judicial nominations. Several Republican senators have begun to focus their ire on Judiciary Chairman Leahy, whom they fault for holding up the president's nominees. A senior GOP leadership aide said that several senators had "blasted" Leahy at Tuesday's meeting of the GOP Conference. Sen. Wayne Allard, R-Colo., said he took particular offense at Leahy's conduct during a cloture vote Monday on the Foreign Operations bill. Republicans were able to defeat cloture in protest at what they consider a lack of progress on nominations. Allard said he and Sen. Ben Nighthorse Campbell, R-Colo., approached Leahy during the vote to tell him they would like to see three Colorado nominees move. "He indicated that just because of the way both Ben and I voted, that it wasn't going to move," Allard said. Allard, who had already voted against cloture, said he was not swayed. "I'm going to vote my conscience," he said. "I'm not going to be blackmailed. I just think it's bad that we're to the point that people like the chairman of Judiciary aren't moving our nominees.... I'm disappointed that the chairman is being so partisan, at a time when bipartisanship is so 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000078 important." Judiciary ranking member Orrin Hatch, R-Utah, said Leahy "made some threats" Monday, in particular to block nominations. "He has to come off that high-horse approach," Hatch said. "There is a belief [within the GOP Conference] that there is a political lack of good faith here." A spokesman for Leahy unequivocally denied that any threats had been made and said Leahy had personally assured Hatch that he would continue pushing nominations through the committee despite the hang-ups on the floor. The spokesman said the Judiciary Committee would vote on "four or five" nominees Thursday and hold hearings on another four nominees the same day. "Some of those are from states represented by a senator who voted against cloture [on the Foreign Operations bill]," the Leahy spokesman said. "The committee has kept up a brisk pace on nominations." Hatch, the former Judiciary chairman, noted that the GOP- controlled Senate passed nearly as many Clinton administration judicial nominees as a Democratic Senate had passed Reagan nominees. "I bent over backwards to take care of Leahy and every other Democrat on that committee," Hatch said. "It's a tough job and I commiserate with Sen. Leahy, but our Conference doesn't appreciate threats and bullying." Aides and senators said no negotiations were taking place to try to settle the nominations issue and free appropriations. "There's nothing to negotiate," said Daschle. "What we'll do is continue to do our work in the Judiciary Committee." Daschle also said he was "frankly disappointed that the administration has not spoken out," pointing out that the administration shared his interest in moving spending bills. Minority Leader Lott defended the GOP's approach. "This is not some new tactic that is being employed on our side.... When you're majority leader, you can huff and puff and talk about how you're not going to negotiate," he said, but "you are in charge of the agenda." Lott said he and Daschle had tried to resolve the issue. But, Lott said, "The problem is not at the top. It's down the line a little bit, without blaming anybody." "We're going to stick together," a GOP leadership aide said of Republicans going into today's cloture vote. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000079 The source also discounted the idea that blocking action on the Foreign Operations bill could be a political liability for Republicans. "Our connection is to terrorism--we need to have as many judges in place as possible," the aide said. On Tuesday, Daschle vowed to continue filing cloture motions to break the GOP's appropriations filibuster strategy, while holding up key GOP priorities like energy and trade. Daschle blamed the logjam on "the intransigency of our colleagues on the other side." In addition to the $15.5 billion Foreign Operations bill, the Senate also has not yet considered the FY02 Agriculture, Labor-HHS and District of Columbia spending bills. GOP Policy Committee Chairman Larry Craig of Idaho said Republicans were seeking action on "about 40" nominees whom the Judiciary Committee had been considering before the August break. Craig added that Republicans would be "very resolute" in opposing Democratic efforts to invoke cloture on other pending legislation. But Daschle enumerated some of the items funded in the Foreign Operations bill as losses to the nation. "Because of the Republicans' filibuster, $42 million that would have been available to help countries strengthen their borders is not being provided; $175 million to fight infectious diseases ... $5 billion in direct military assistance to allies in the region ... and $255 million to assist Afghan refugees is not being provided." But Craig said the quagmire on the Senate floor would "drag on until there appears to be a systematic resolution" on moving judicial nominees through the process. And Judiciary member Jeff Sessions, R-Ala., defended GOP tactics from the Senatefloor. "What we're saying is that this is serious business. Moving judges is serious business." Leahy, who as chairman of the Foreign Operations Appropriations Subcommittee is the author of the stalled spending bill, told CongressDaily: "I feel sorry for President Bush and Secretary [of State] Powell. Members of their own party are holding the foreign aid bill hostage," while the administration is trying to assemble a broad international coalition to fight terrorism. "I hope they will talk to members of their party," Leahy said. "We could finish it this afternoon if Republicans would let us." Appropriations Chairman Byrd and ranking member Ted Stevens, R-Alaska, both expressed frustration that so many FY02 spending bills are stalled as a result of the nominations impasse-but both endorsed their respective leaders' floor strategy. While Byrd said he believed Daschle "is doing everything he can to move [appropriations bills], Stevens said that despite the delay, "As far as I'm concerned, [the appropriations bills] can wait until they meet us halfway." 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000080 Meanwhile, House and Senate appropriators finished work Tuesday on the second FY02 appropriations measure, approving a $10.5 billion request to improve the military's housing and medical facilities, National Journal News Service reported. The legislation, which would provide $1.5 billion over FY01 amounts and about $529 million over the president's request, should be on the House floor this afternoon, with passage in the Senate to follow. Conferees noted that money to rebuild the section of the Pentagon destroyed in the Sept. 11 terrorist attack would come from the previously enacted supplemental spending bill passed in the wake of the attack. Additional anti-terrorist measures for the Pentagon and other military installations also will be paid for with funds from that supplemental bill, according to conferees. GOP 'Hardball' Ploy Aims to Fill Benches; Action Demanded on Bush Nominees By Donald Lambro The Washington Times Wednesday, October 17, 2001 Senate Republican leaders said yesterday they will block action on the foreign aid bill and other legislation until Democrats agree to end their holdup of President Bush's long-stalled judicial nominations. Their decision to "play hardball" came at yesterday's weekly policy luncheon meeting of Republican senators. Many of them attacked Senate Judiciary Committee Chairman Patrick J. Leahy as a "vindictive" partisan who is trying to slow down or block Republican appointments to the bench. A Senate Republican leadership official said the strategy had "the full backing" of the White House. "They are concerned that the holdup of these nominees threatens the war on terrorism because these judicial vacancies need to be filled as soon as possible to act on law enforcement requests," the official said. Sen. Orrin G. Hatch of Utah, the committee's ranking Republican, led the attack on Mr. Leahy, telling his colleagues that the Vermont Democrat is threatening to get even with Republican members if they follow through on their legislative blocking strategy. "Last night he Leahy was pretty irritated and not in a mood to be helpful. If anything, he was threatening. I've heard payback talk," Mr. Hatch told reporters yesterday. The backroom political struggle over judicial nominees has been simmering ever since the Democrats took control of the Senate in July. That was when Mr. Leahy took over the committee 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000081 and confirmation hearings on Mr. Bush's nominees ground to a halt. The backup now totals 52 nominees, 46 of whom have had no hearings. But the struggle broke into open warfare when Mr. Hatch told his colleagues at yesterday's meeting that Mr. Leahy had told him that any Republican who voted not to take up the foreign operations bill today "would not get the federal judges from their state confirmed." Mr. Leahy denied the charge. "The senator said we will continue to move on judicial nominees as we have been, even though many come from states of obstructionist Republicans," his spokesman said. Calling Mr. Leahy's tactics "purely partisan," Mr. Hatch said, "They're blaming Republicans for holding up the Senate when it seems to me the Democrats have their foot on the brake." Yet the Republicans' pressure tactics may be working. Mr. Leahy's spokesman announced that his committee would be "voting on many more nominees on Thursday and that afternoon there will be a hearing on four more nominees." That may not be enough to mollify Republicans who emerged from their luncheon "united that they will vote against taking up the foreign operations bill until we get an agreement from the Democratic leadership," a Republican official said. Senate Majority Leader Tom Daschle, South Dakota Democrat, insisted that "we're doing all that we can. As much as our Republican colleagues have complained, their tactic is counterproductive." The federal judiciary system has at least 108 vacancies, including 39 posts that have been vacant so long that the courts have classified them as "judicial emergencies." The Senate has approved only eight judges this year. Some Republicans suggested yesterday that the White House should get more actively involved in the fray to break the political logjam. "It would be helpful if the president spoke up, but he shouldn't have to," said Sen. Jon Kyl, Arizona Republican, a member of the committee. Lawyers' Panel Nixes Bunning By Nancy Zuckerbrod The Associated Press Tuesday, October 16, 2001 An American Bar Association panel has told the Senate that the son of Sen. Jim Bunning, R-Ky., is not qualified for the federal bench, an assessment the elder Bunning disagreed with Tuesday. Roscoe Trimmier, chairman of the ABA panel that advises the Senate on judicial nominees, said 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000082 that a majority of the 15-member panel found David Bunning to be unqualified. Trimmier didn't say why, but it may come down to the federal prosecutor's experience. The bar association recommends that nominees have at least 12 years of experience, but Bunning, of Fort Thomas, Ky., has been a lawyer for 10 years. In a letter Tuesday to Judiciary Committee Chairman Patrick Leahy, D-Vt., Sen. Bunning said he was surprised and disappointed to hear about the ABA finding. Sen. Mitch McConnell, R-Ky., also signed the letter. "We strongly believe that a full and fair hearing is necessary for the Judiciary Committee and the full Senate to effectively exercise its constitutional role of 'advise and consent,"' the senators wrote. Committee spokeswoman Mimi Devlin said a decision on a hearing had not been made. "We are considering the senators' request for a hearing at this point," she said. Devlin said Bunning was the only judicial nominee under Senate consideration to receive an unqualified rating. She said it was one of several factors lawmakers would consider. "Sen. Leahy has always said that each senator should weigh the ABA rating in his or her mind," she said. Sen. Bunning said he thought his son still had a good shot at being confirmed. "People have become federal district judges even with unfavorable ratings from the ABA," he said. David Bunning did not return a call seeking comment Tuesday. While the bar association reviews judicial nominees for the Senate, the Bush administration has decided not to rely on the ABA to investigate lawyers before naming them. That ended a practice dating back to the Eisenhower administration. Judge Nominee Pulls Out of Club; Questions Raised About Racial Bias By Bill Walsh The Times-Picayune Tuesday, October 16, 2001 Jay Zainey, a Metairie lawyer nominated by President Bush for a federal judgeship, has withdrawn his family's membership from a Jefferson Parish country club after questions were raised about whether it discriminates against African-Americans. In an Oct. 12 letter to the Metairie Country Club, Zainey said that he felt pressured to drop his 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000083 membership because of media inquiries at a time when he is being considered for the federal appointment. He was nominated Oct. 10 for a vacancy on the U.S. District Court in New Orleans after being touted by Republican members of the state's congressional delegation. "Although I know of no discriminatory practices at the club, a fact which reportedly has been confirmed by an FBI background investigation, I feel compelled to resign," Zainey wrote. He said in the letter, which he authorized be released to the press, that he was dropping out "with great regret." Officials at the country club say they don't discriminate. They declined to say whether there are any African-Americans among the 1,270 families who belong. Potential members must be invited to join and be approved by a committee. A decade ago, the former club president told The Times-Picayune that there were no black members. Three years ago, a group of civic and church leaders in New Orleans complained to the state Judiciary Commission that a local judge violated ethical standards by belonging to the club, which they called "an all-white institution that had repeatedly denied membership to African-Americans." However, when the FBI recently checked the club as part of its background investigation of Zainey, the agency concluded that the club doesn't discriminate in "policy or in practice." Still, Zainey was urged by Rep. Billy Tauzin, R-Chackbay, the dean of the Louisiana delegation, to drop his membership because of the potential political backlash at a time when the pace of Bush administration judicial nominees being approved by the Democratic-controlled Senate is already slow. A spokesman for Tauzin said Monday that Zainey decided to drop out before Tauzin urged him to do so. "It was a decision he made on his own after sounding out a few close friends," Ken Johnson said. "No one pressured him, absolutely no one." A spokesman for Rep. William Jefferson, D-New Orleans, called Zainey "a fair-minded individual," but said "the membership issue needed to be resolved to remove any doubt." Rep. David Vitter, R-Metairie, said Zainey "doesn't have a malicious or racist bone in his body" and said it was "a shame" that The Times-Picayune had raised questions about his membership in the country club. Vitter said Zainey had little choice but to resign because "you would have written a story about it every other day." The Senate Judiciary Committee, which considers all potential judges, has rejected nominees 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000084 because of membership in clubs with reputations for discriminating. Nominees generally have been cleared by the panel if they relinquish their memberships. Judicial Fight Stymies Tense Capitol By P. Mitchell Prothero United Press International Tuesday, October 16, 2001 Republican Senate leaders Tuesday continued their refusal to allow spending bills to be considered until they receive promises from the Democratic majority on the future of Bush administration judicial nominees. Republicans claim that the Democrats have been slow to consider Bush administration nominees for federal judgeships. The fight -- which had been brewing for several weeks -- exploded Monday evening when a Republican filibuster succeeded in stopping debate on a $15 billion foreign aid bill. The 50-to-46 vote, in which Democrats failed to get the 60 votes necessary to defeat a filibuster, set off a debate that strains the bipartisan mode that has characterized the Senate since Sept. 11. "We'll continue to file cloture motions and try to maintain the comity and keep the spirit we've had in place the last five weeks in place," Senate Majority Leader Tom Daschle, D-S.D., said of his party's strategy for dealing with the delays. Besides the Foreign Operations spending bill, Republicans have vowed to block three other major spending bills, including the agriculture bill, a District of Columbia appropriations bill and the Labor-HHS-Education bill until Democrats agree to a hearing and vote schedule for the 108 unfilled federal judgeships that remain open. "I don't remember a log-jam like this one before," said Republican Orrin Hatch of Utah, ranking Republican on the Judiciary Committee, of the vacancies. Sen. Mitch McConnell, R-Ky., spoke from the Senate floor about the responsibilities of the upper chamber. "This is an essential part of our job here in the Senate, the confirming of these judges," he said. "We must use all the time left until adjournment to remedy the vacancies that have been perpetrated on the courts to the detriment of the American people and the administration of justice. That should be a top priority for the Senate for the rest of the year." Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., dismissed the claim that his party has mistreated Bush administration nominees, arguing that current events and the change-over of the majority party in the Senate earlier this year have slow the pace. He also claimed that Bush's nominees would receive fair consideration, particularly compared with the Clinton administration's judges. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000085 "I think that when we're done ... they'll see that President Bush's nominees were treated more fairly that President Clinton's were. Having said that, I wonder what in heaven's name this masochistic attitude (is) that is holding up this bill so they can make political points on Sunday morning talk shows," Leahy said from the Senate floor. "We had 34 months when they didn't even have hearings on judges," he added later. "We've been doing hearings every single month, whether we've been in recess or not." Leahy and Democratic staff have also said that some nominees have been slow to return confirmation information to the committees and that standard background checks have also been delayed. But although Republican senators continue to hold enough votes to maintain a filibuster -- at least for now -- Daschle said that some of their favorite legislation could lose a chance at consideration should the delays continue. When asked by a reporter if he planned to schedule a debate on comprehensive energy legislation -- a topic dear to many prominent Republicans, including the president -- Daschle reminded his GOP colleagues about the power of the majority leader to control the floor. "I am most amused about the question regarding the scheduling of energy legislation given the current tactics by our Republicans on appropriations bills," Daschle said. "As soon as they tell me when they'll stop this counter-productive effort to stop consideration of appropriations bills, I might be able to tell you when we will schedule an energy bill." GOP Seeks Action on Bush Nominees The Washington Post Tuesday, October 16, 2001 Senate Republicans blocked a $ 15.5 billion foreign aid bill yesterday in an effort to force Democrats to step up the pace of confirmations for President Bush's judicial nominees. On a 50 to 46 party-line vote, the Democrats fell 10 votes short of the 60 needed to break a GOP filibuster and force consideration of a relatively noncontroversial foreign aid measure. Republicans said they would continue to block some necessary spending bills until Democrats agreed to hit the accelerator on Bush's pending judicial nominations. "We've got to speed up the process here," said Sen. Jon Kyl (R-Ariz.). "Let's call a timeout, let's go to nominations, and when there are a sufficient number of nominations completed, we'll go back to other priorities." But Democrats questioned why Republicans would hold up a key foreign aid bill at a time Bush was trying to galvanize international support for the war on terrorism. The foreign aid bill includes funds for key Middle East allies the United States is relying on during its military 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000086 operations against Afghanistan. "This is not the time to horse trade on judges," said Democratic Whip Harry M. Reid (Nev.), calling the move "wrong-headed." The Senate has approved eight of Bush's 60 judicial nominations, a rate that Republicans say badly lags behind the first-year confirmation totals of the three previous administrations. "We're way behind. We've got a lot of catching up to do," said Sen. Don Nickles (Okla.), the chamber's second-ranking Republican. But Senate Democrats harshly disputed claims they were deliberately slowing the process, pointing out that Republicans controlled the Senate during the first four months of the administration and never held a confirmation hearing on a judge. Democrats took a one-seat margin of power in the Senate in June when Vermont Republican James M. Jeffords became an independent. "No one is saying we aren't going to confirm judges," said Reid. "Let us do our work here. This is a matter of common sense." Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Appropriations foreign operations subcommittee, was even more harsh, likening Republicans to "petulant children in the schoolyard." The dispute marked another step back into the partisan skirmishing prevalent in the Senate prior to the deadly Sept. 11 attacks on New York and Washington. Kyl said Republicans would not hold up all House-Senate conference reports on completed spending bills. Five spending bills -- foreign aid, agriculture, labor and education, the District of Columbia and defense -- have not been taken up by the full Senate. Senate Still Battling Over Bush’s Judicial Nominees By Jonathan Ringel American Lawyer Media Thursday, October 18, 2001 In between enduring anthrax exposure, passing anti-terrorism bills and considering measures to fund the government, senators still have found time this week to bicker about judicial confirmations. On Monday, Senate Republicans blocked a foreign aid appropriation bill in an effort to force the Democratic majority to confirm dozens of President George W. Bush's nominees. 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000087 Democrats say they are moving as fast as they can-and if the Senate stays in session through November, that as many as 25 to 30 Bush picks could be confirmed. Bush so far has made 60 nominations to the lifetime posts on the federal bench, 25 for the circuit courts and 35 for the district courts. Since the Democrats took over the Senate in June, eight judges have been confirmed, four each for the appeals courts and the district courts. Another five-one circuit nominee and four district nominees-have had hearings and are expected to move through the Judiciary Committee and on to confirmation soon. Yet another circuit nominee and three district nominees were scheduled to have hearings today. Those hearings may be postponed, however, as authorities Wednesday were considering shutting the Capitol complex down to test for anthrax exposure. A spokeswoman to Sen. Patrick Leahy, D-Vt., who chairs the Judiciary Committee, reported that two more hearings - in addition to the one scheduled for today - will occur if the Senate stays in session through November. If five nominees appear at each hearing, that would mean 27 nominees would have had hearings. "The numbers show that the committee's record meets or exceeds the pace of previous years, despite the limited amount of time it has had to consider nominees," said Mimi Devlin, the spokeswoman. Devlin reported that in 1989, the Democrat-controlled Senate confirmed 15 judicial nominees during the first year under President George Bush. In 1993, the Democrat-controlled Senate confirmed 27 of President Bill Clinton's judicial nominees. But in a floor debate last week, Sen. Orrin Hatch, R-Utah, accused Leahy and the Democrats of moving too slowly on Bush's judges. Hatch pointed out that most judges nominated by the time of the August recess in the first year of a presidency usually get confirmed. Bush made 44 nominations before the August recess - far more than any president in recent memory. The confirmation rate of circuit court judges particularly vexed Hatch, who said that Clinton got three of his five circuit court nominees through in his first year. "That is 60 percent," said Hatch, arguing that 60 percent of Bush's 25 circuit court nominees should get through by the end of the year. The Democrats' claim that they're keeping up with recent confirmation paces, he said, "is an unfair comparison when you take into account the fact that President Bush has chosen to nominate 20 more circuit court nominees than President Clinton did in his first year." 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000088 During the last six years of the Clinton administration, Hatch drew fire from Democrats for allowing some Republicans to block nominees, particularly circuit court picks. In 1996, a spat between Hatch and the White House led to no circuit court nominees getting hearings. Nonetheless, Clinton ended up nearly tying Ronald Reagan's all-time record for placing the most judges on the federal bench. During the brief floor debate, which occurred between the Senate's handling aviation security bills and anti-terrorism bills, Minority Leader Trent Lott, R-Miss., acknowledged that this is an old fight. "It is amazing how history repeats itself," he said. "What you were saying last year, we are saying this year. I guess before that, we were saying it or you were saying it." The circuit nominee scheduled for today's hearing is Charles Pickering Sr., a Mississippi federal district judge tapped for the Fifth Circuit. Hispanic National Bar Association Endorses Appointment of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia U.S. Newswire Wednesday, October 17, 2001 The Hispanic National Bar Association, national voice of over 25,000 Hispanic lawyers in the United States, issues its endorsement of President George W. Bush's nominee, Mr. Miguel Estrada, to the U. S. Court of Appeals for the District of Columbia. Estrada would be the first Hispanic to sit in the D.C. Circuit, widely regarded as the second most important appellate court in the nation. Estrada, who emigrated from Honduras at seventeen, is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP. A member of the firm's Appellate and Constitutional Law Practice Group and its Business Crimes and Investigations Practice Group, Estrada clerked for the Honorable Anthony M. Kennedy in the U.S. Supreme Court from 1988-1989, and has argued 15 cases before the U.S. Supreme Court. A 1983 magna cum laude graduate of Columbia College in New York, Estrada received a J.D. degree magna cum laude in 1986 from Harvard Law School, where he was editor of the Harvard Law Review. President Bush nominated Estrada in May of this year. "Mr. Estrada's distinguished and impressive career illustrates the promise and opportunity that America offers to all immigrants, specially Hispanic immigrants. It is encouraging that President Bush has started tapping in the substantial pool of Hispanic legal talent throughout the country. Mr. Estrada's confirmation will break new ground for Hispanics in the judiciary. The time has come to move on Mr. Estrada's nomination. I urge the Senate Committee on the Judiciary to schedule a hearing on Mr. Estrada's nomination and the U.S. Senate to bring this highly qualified nominee to a vote." said Rafael A. Santiago, of Hartford, Connecticut, National President of the Hispanic National Bar Association. 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000089 Op/Eds Leahy's War Cover The Wall Street Journal Thursday, October 18, 2001 Senate Republicans are a tower of babblers, so when nearly all of them agree on something it's news. This week they've been riled into a rare burst of unity by Democrat Pat Leahy's unprecedented stonewalling on judges. Simply put, the Senate Judiciary Chairman is using the war on terrorism as cover to slow roll the confirmation of President Bush's judicial nominees. In normal times, the media might report his delaying tactics and Mr. Bush might make them an issue. But the White House, now in bipartisan war mode, doesn't want to make a fuss over anything outside its anti-terror campaign. Mr. Leahy is exploiting that good will for his own partisan ends. There's really no other way to explain that 10 months into this Administration Mr. Leahy has confirmed a mere eight of the 60 judicial nominations Mr. Bush has made, including 44 by the August recess. With only weeks to go before Congress goes home for the year, only 14 have even had a hearing. This kind of delay typically occurs only in the final year of a Presidency, before an election. It's unheard of in first years, when Ronald Reagan had 41 judges confirmed, George H.W. Bush 15, and Bill Clinton 28. Mr. Leahy knows this, or at least he did when Mr. Clinton was President. In 1999, when the federal courts had a mere 59 unfilled seats, he wailed about a "crisis." Yet now, thanks to his footdragging, there are 109 vacancies, nearly 13% of the entire federal bench. It is true enough that some Republicans abused their advise and consent power under Bill Clinton, but Pat Leahy makes Jesse Helms look like Little Lord Fauntleroy. We might even credit Mr. Leahy's excuse that he's been busy with anti-terror legislation. But then what to make of the fact that, despite GOP objections, he is also changing the long-time questionnaire for judicial nominees? From now on nominees will have to disclose any previous drug charges and whether they have ever been "a party in any civil or administrative hearing." Senators can already see all of this information in confidential FBI files. But Mr. Leahy's revised questionnaire means that the stuff of bad divorces and teenage marijuana busts will be available to Judiciary staff. The chances of this stuff leaking to the press are 110%. Mr. Leahy, a self-styled privacy advocate, is also demanding that nominees itemize "all political contributions." These are the same nominees that Mr. Leahy insists must be non-ideological and non-political. Imagine the uproar if former GOP Judiciary Chairman Orrin Hatch had pulled a stunt like this. In an October 1 letter to Mr. Leahy, White House Counsel Alberto Gonzales wrote that this new 23 VERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000090 questionnaire "may have the likely effect of unnecessarily invading a candidate's personal privacy" without adding any more information for Senators. "If we go down this road, I fear that many qualified people will elect not to participate in this process," Mr. Gonzales added. Which may be exactly what Mr. Leahy intends. If anyone the least bit controversial -- i.e., conservative -is nominated, Mr. Leahy may want them to know they could face public embarrassment and a political torching. By any definition, this is an abuse of Senate power, rendering meaningless the debate over judges in a Presidential election. Which is why fed-up Republicans are fighting back with their own Senate prerogatives. They're uniting to slow down spending bills until Mr. Leahy decides to move more judges. The strategy was invented by current Senate Majority Leader Tom Daschle in the final year of the Clinton Presidency. But Mr. Leahy's calm, adult response this week was to call Republicans "petulant children in the school yard." Well, he ought to know. It's about time someone blew away Mr. Leahy's war-time political cover. Interest Groups/Press Releases End the Leahy Stall; 'Sen. Leahy Should Stop Playing Partisan Politics With the Federal Courts,' AR's Richard Lessner PR Newswire Tuesday, October 16, 2001 American Renewal today issued a statement of support for the effort by Republicans in the U.S. Senate to break the blockade on President Bush's judicial nominations. "Sen. Patrick Leahy is stalling," American Renewal executive director Richard Lessner said, noting that vacancies on the federal bench have increased to 110 from 67 the day President Bush took office. "The chairman of the Judiciary Committee is engaged in a sophisticated slowdown. The vacancy crisis in the federal courts continues to worsen, yet Sen. Leahy refuses to follow long established Senate procedures and move nominees through the confirmation process in an expeditious manner. "When Bill Clinton occupied the White House, Sen. Leahy and other Democrats declared far fewer vacancies to be a national crisis," Lessner said. "But now that George W. Bush is president, Sen. Leahy seems to be in no hurry to confirm judges despite the growing backlog of nominees and increasing number of court vacancies." On Monday, Senate Republicans blocked a vote on a foreign aid bill in an effort to force Majority Leader Tom Daschle to act to break the blockade in the Judiciary Committee. "It is unfortunate that it had to come to this," Lessner said, "but the minority Republicans have 24 VERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000091 few other options under Senate rules to force Sen. Leahy's hand. The pace of confirmations is lagging far behind that in any of the three previous administrations. And it is clear that Sen. Leahy is cherry-picking for hearings those nominees he personally finds politically acceptable, while stalling superbly qualified nominees he opposes for ideological reasons. "Sen. Leahy should stop playing partisan politics with the federal courts and start giving President Bush's judicial nominees the fair hearings they deserve." NARAL Opposes Confirmation Of Charles Pickering and Tactic Of Blocking Appropriations Bills For Court- Packing Plan NARAL Tuesday, October 16, 2001 Lott Leads Anti-Choice Strategy NARAL President Kate Michelman announced today that NARAL opposes the confirmation of Charles Pickering, Sr. to the U.S. Court of Appeals. "Judge Pickering is a staunch opponent of Roe v. Wade and a woman's right to choose. He was a prime architect of the 1976 Republican Party platform plank that protested the Roe decision and called for a constitutional amendment banning abortion," said Michelman. "Judge Pickering is the first demonstrably anti-choice judicial nominee to the Court of Appeals to get a hearing before the Senate Judiciary Committee. He has been nominated for a lifetime position on the bench. If confirmed, the decisions he makes could affect the reproductive rights of women for generations to come. " Anti-choice Senate Minority Leader Trent Lott (R-MS) is holding up the entire congressional appropriations process until Charles Pickering, Sr., a judge from his home state, receives a hearing this Thursday on his nomination to the appellate court. "Even in these trying times, opponents of a woman's right to freedom of choice continue to press their goal of packing the court with anti-choice judges. They are willing to risk funding of our national government in order to short circuit the judicial confirmation process in the U.S. Senate. It is unconscionable that the Senate Republican Leadership would hold up the entire appropriations process to impose their own ideological agenda upon the nation's courts," said Michelman. Potential Closed-Door Hearing on Judicial Nominees Today "Would be Undemocratic and Unacceptable," Says PFAW’s Neas People for the American Way Thursday, October 18, 2001 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000092 There are indications that the Senate Judiciary Committee plans to consider this afternoon several judicial nominees, including a controversial nominee to the 5th Circuit Court of Appeals, Charles Pickering, at a hearing that could be in effect closed to the public due to security measures on Capitol Hill. People For the American Way President Ralph G. Neas today urged Judiciary Committee Chairman Patrick Leahy not to hold closed-door hearings on any judicial nominees. "De facto closed-door hearings on federal judicial nominees are undemocratic and unacceptable," said Neas. "People For the American Way urges Senator Leahy not to establish a precedent that undermines the principles of open and accountable government and shuts the public out of this critically important process." Reportedly the hearing might be inaccessible to the public due to security precautions that have shut Senate office buildings temporarily and put restrictions on public access to the Capitol. Neas said the hearing on nominations to lifetime positions on the federal bench should be postponed if the public cannot be guaranteed access to the hearing. "Considering these judicial nominees is not a matter of national security, or of such great urgency that we must violate fundamental principles of democratic government," said Neas. "In particular, there are many reasons to postpone the hastily scheduled hearing on Judge Pickering so that the public can make sure that senators have time to thoroughly consider the nominee’s record." Neas said that if the hearing goes forward, the Judiciary Committee must hold a second hearing, accessible to the public, after the transcript of the first hearing is made available. "It is particularly important in this time of crisis that we affirm, rather than abandon, the principles of democratic self-governance," said Neas. 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.6483-000001 18-2091-B-000093 Schauder, Andrew Schauder, Andrew Thursday, October 25, 2001 6:15 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 10-25-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6653 18-2091-B-000094 Media Review - Judicial Nominations Thursday, October 25, 2001 General Judicial Articles "Daschle Wins Struggle Over Judicial Nominations," 2 Dave Boyer, The Washington Times, October 24, 2001 "Senate GOP Ends Filibuster Over Judicial Nominations," Helen Dewar, The Washington Post, October 24, 2001 4 "Judicial Nominee Arguments Continue in Senate Amidst Focus on Terrorism," 5 Jonathan Ringel, The Legal Times, October 18, 2001 "Judicial Battle Not Over Yet," 7 Paul Kane, Roll Call, October 25, 2001 "Foreign Aid Bill Held Up Over Judicial Assurances," 10 CNN.com, October 23, 2001 "Senate GOP to Withdraw Hold on Approps," 12 Alexander Bolton, The Hill, October 24, 2001 "Senators OK Judges for State; Two Appointments Pending for Court in City," 13 Chris Casteel, Daily Oklahoman, October 24, 2001 "Camp Gets Senate OK for Federal Bench Spot," Matt Kelley, Omaha World-Herald, October 24, 2001 14 "Partisan Bickering Lives on Over the Approval of Judges; GOP Blocking Bill to Protest Slow Pace," Bill Walsh, The Times-Picayune, October 24, 2001 15 "Tom Daschle’s Stonewall; The Senate Majority Leader tells the President to get Lost," Byron York, The National Review, October 24, 2001 17 Op/Eds 1 VERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000095 "Operations Obstruct Justice; Democrats Continue to Stall Judicial Nominees," 19 Thomas L. Jipping, The Washington Times, October 25, 2001 "Justice Denied; Given the Social Costs of Nomination Gridlock, it's Time for the 20 President to Pull out all the Stops" Victor Williams, New Jersey Law Journal, October 22, 2001 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Daschle Wins Struggle Over Judicial Nominations Dave Boyer The Washington Times Wednesday, October 24, 2001 Senate Majority Leader Tom Daschle won a showdown with President Bush yesterday over judicial nominees as Congress returned to work amid major disruptions from anthrax. Senate Republicans abandoned their strategy of holding up spending bills to force more judicial confirmations after Mr. Daschle told the president in a White House meeting he would not budge on the issue. "There isn't leverage on appropriations bills," Mr. Daschle said later. "I told that again to the president." As lawmakers went back to work yesterday, congressional leaders said some contaminated Capitol Hill office buildings may be closed for weeks and unopened mail may be burned to eradicate the bacteria. Leaders decided last night to reopen the Russell Senate Office Building at 9 a.m. today, but to keep all House buildings closed. "We're dealing with a new threat here," said Senate Minority Leader Trent Lott, Mississippi Republican. "There's a steep learning curve." The House, in its first day in session since leaders closed the chamber one week ago, moved toward passing long-awaited anti-terrorism legislation. A vote is scheduled for today. Under the revised bill, expanded wiretap and search powers for federal agents would expire in four years. 2 VERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000096 Mr. Bush hopes to sign it into law by the week's end. And Senate Democrats promoted a one-year, $70 billion economic stimulus plan, half of which is devoted to spending on displaced workers. The House today will vote on a $100 billion Republican package heavily weighted toward tax relief or businesses. Republicans had been blocking Senate action on appropriations for weeks, trying to force Democrats to confirm more judges. But Democrats have approved only 12 of the more than 40 candidates nominated by Mr. Bush. In a meeting with congressional leaders yesterday, Mr. Bush asked Mr. Daschle pointedly about his view on judges. Senate sources said Mr. Daschle told the president that he would not link judges with spending bills, and that Mr. Bush needed the spending bills more than Senate Democrats did. Said Mr. Lott, "Senator Daschle, frankly, did not offer a lot of encouragement. He basically said 'Mr. President, you want the appropriations bills, so good luck.'" After the meeting, Mr. Lott conferred with Mr. Bush, Vice President Richard B. Cheney and White House Chief of Staff Andrew Card, essentially telling them, "Now you see what I'm dealing with." "I think he was a little surprised," Mr. Lott said of the president. Senate Republicans agreed later at their weekly luncheon to abandon their effort on judges. Several Republican sources said lawmakers did not want to be perceived as playing political games when the nation is in a crisis. "It's time to move on and find another way around this problem," said Sen. Ted Stevens, Alaska Republican. Mr. Daschle called Republicans' change of heart "a positive sign." There are more than 100 vacancies on the federal bench, and Republican sources said they plan to renew their attack on the issue early next year. "We're going to act in good faith," said Mr. Lott. "We're going to do what these times call for. We hope they will do the same when it comes to confirming federal judges." Lawmakers had more-practical logistical problems with which to contend yesterday. With all Capitol office buildings closed for environmental testing, some House members set up temporary offices in a General Accounting Office building downtown and senators crammed in four to an office in the Capitol itself. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000097 Many had no staff. "There's no room for them," said Sen. Peter G. Fitzgerald, Illinois Republican. House Majority Leader Dick Armey said work on an airline security bill might need to wait until the House Transportation and Infrastructure Committee could find a room large enough to accommodate all 75 panel members. Many aides worked from home and others were given the day off. Several hearings were postponed or moved away from the Capitol. Lawmakers worked almost exclusively via cellular phone. The results were frustrating to many. "I was trying to reach a number of senators; I was having a hard time finding them because I couldn't get them at their offices," said Mr. Lott. "So I was scrambling around the Capitol building trying to find their offices here in the Capitol because I didn't have their private phone numbers. "But I'm not going to complain," he said. "There are young men and women who are putting their lives in harm's way today to deal with these terrorists. There are Americans that are working under difficult circumstances, and postal employees under difficult circumstances here in this area and all over America. We don't have room to complain." The lack of mail to Congress, which was halted with the discovery of an anthrax-laden envelope at Mr. Daschle's office on Oct. 15, presented one of the most troubling problems. "Routine casework, constituent work, answering the mail: that's going to be weeks before that gets back to normal, maybe months," said Sen. Rick Santorum, Pennsylvania Republican. "I think the word should go out, 'Don't send any letters to Washington and to members of Congress.' Because we may be a while before we can answer them." Senate GOP Ends Filibuster Over Judicial Nominations By Helen Dewar The Washington Post Wednesday, October 24, 2001 Senate Republicans abandoned yesterday a two-week effort to force speedier confirmation of President Bush's judicial nominees, claiming they had made their point by stalling action on "must-pass" spending bills. The decision, announced by Minority Leader Trent Lott (R-Miss.) after a discussion at the GOP's weekly luncheon, clears the way for passage of a $15.6 billion foreign aid spending bill, along with four other spending bills still pending before the Senate for the fiscal year that began Oct. 1. Senate Republicans "decided that the responsible thing for us to do at this time is to focus on 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000098 those issues that need to be addressed as a result of the events of Sept. 11 and the anthrax attack here in our office buildings," Lott told reporters after the lunch. But Lott and other Republicans vowed to continue pressing for faster action on Bush's judicial nominations. Majority Leader Thomas A. Daschle (D-S.D.) said he has instructed Democrats to act expeditiously on all nominations, although he insisted that this has nothing to do with GOP demands. The Senate approved four more judicial nominations yesterday, bringing the total number of confirmation votes to 12 for the year. The Judiciary Committee is scheduled to act on Thursday on some or all of five others who received hearings last week. Another set of hearings is also scheduled for Thursday. More than 50 nominations were awaiting action in the Senate when the GOP began its stalling tactics earlier this month. Republicans contend that Democrats have been dragging their heels on nominations since they took control of the Senate in early June. Democrats say they are moving as fast as they can and more speedily than Republicans did in processing President Bill Clinton's nominations for the bench. In a procedural vote aimed at forcing action, the Senate began the day yesterday by voting to continue its filibuster against the foreign aid spending bill, with Democrats falling 10 votes short of the required 60 votes to end the filibuster. But Sen. Ted Stevens (Alaska), the ranking Republican on the Appropriations Committee, signaled that the effort was running out of steam by voting "present" instead of voting with his GOP colleagues to continue the delay. "I thought it was time to get on and find a way to resolve this problem," Stevens explained after the vote. A senior Republican aide said it became clear at the congressional leaders' weekly breakfast with Bush yesterday morning that Democrats were not being swayed by the stalling tactics. Bush asked if there was any progress on the judges, and Daschle showed no signs of backing down, the aide said. The aide also said Republicans had concluded that they could do just as well, perhaps better, next year on the assumption that Bush is likely to gain in strength as the war progresses and that there would be a greater sense of urgency because more judicial vacancies would have occurred. Judicial Nominee Arguments Continue in Senate Amidst Focus on Terrorism By Jonathan Ringel Legal Times Thursday, October 18, 2001 In between enduring anthrax exposure, passing anti-terrorism bills, and considering measures to fund the government, senators still have found time this week to bicker about judicial 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000099 confirmations. On Monday, Senate Republicans blocked a foreign aid appropriation bill in an effort to force the Democratic majority to confirm dozens of President George W. Bush's nominees. Democrats say they are moving as fast as they can -- and if the Senate stays in session through November, that as many as 25 to 30 Bush picks could be confirmed. Bush so far has made 60 nominations to the lifetime posts on the federal bench, 25 for the circuit courts and 35 for the district courts. Since the Democrats took over the Senate in June, eight judges have been confirmed, four each for the appeals courts and the district courts. Another five -one circuit nominee and four district nominees -- have had hearings and are expected to move through the Judiciary Committee and on to confirmation soon. Yet another circuit nominee and three district nominees are scheduled to have hearings today. Those hearings may be postponed, however, as authorities Wednesday were considering shutting the Capitol complex down to test for anthrax exposure. A spokeswoman to Sen. Patrick Leahy, D-Vt., who chairs the Judiciary Committee, reported that two more hearings -- in addition to the one scheduled for today -- will occur if the Senate stays in session through November. If five nominees appear at each hearing, that would mean 27 nominees would have had hearings. "The numbers show that the committee's record meets or exceeds the pace of previous years despite the limited amount of time it has had to consider nominees," said Mimi Devlin, the spokeswoman. Devlin reported that in 1989, the Democrat-controlled Senate confirmed 15 judicial nominees during the first year under President George Bush. In 1993, the Democrat-controlled Senate confirmed 27 of President Bill Clinton's judicial nominees. But in a floor debate last week, Sen. Orrin Hatch, R-Utah, accused Leahy and the Democrats of moving too slowly on Bush's judges. Hatch pointed out that most judges nominated by the time of the August recess in the first year of a presidency usually get confirmed. Bush made 44 nominations before the August recess -- far more than any president in recent memory. The confirmation rate of circuit court judges particularly vexed Hatch, who said that Clinton got three of his five circuit court nominees through in his first year. "That is 60 percent," said Hatch, arguing that 60 percent of Bush's 25 circuit court nominees should get through by the end of the year. The Democrats' claim that they're keeping up with recent confirmation paces, he said, "is an unfair comparison when you take into account the fact that President Bush has chosen to nominate 20 more circuit court nominees than President Clinton did in his first year." 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000100 During the last six years of the Clinton administration, Hatch drew fire from Democrats for allowing some Republicans to block nominees, particularly circuit court picks. In 1996, a spat between Hatch and the White House led to no circuit court nominees getting hearings. Nonetheless, Clinton ended up nearly tying Ronald Reagan's all-time record for placing the most judges on the federal bench. During the brief floor debate, which occurred between the Senate's handling aviation security bills and anti-terrorism bills, Minority Leader Trent Lott, R-Miss., acknowledged that this is an old fight. "It is amazing how history repeats itself," he said. "What you were saying last year, we are saying this year. I guess before that, we were saying it or you were saying it." The circuit nominee scheduled for today's hearing is Charles Pickering Sr., a Mississippi federal district judge tapped for the 5th Circuit. Judicial Battle Not Over Yet By Paul Kane Roll Call Thursday, October 25, 2001 Senate Republicans say they called a "cease-fire" on their appropriations blockade after realizing that President Bush would not be able to mount a campaign of public pressure on the Democratic majority over judicial nominations. Vowing to revisit the issue after Christmas, Republicans say Bush's almost singular focus on the war on terrorism forced them to give up the nearly three-week filibuster of Democratic attempts to move appropriations bills without getting a single guarantee or assurance that more judges will be confirmed. Easing the appropriations blockade increases the ability of the House and Senate to wrap up the "must-do" spending bills, but some leaders are still predicting that Congress will remain in session until at least early December. Senate Minority Leader Trent Lott (R-Miss.) noted that Congress still has to complete an economic-stimulus package, the airline security bill and anti-terrorism legislation in addition to finishing the appropriations process. With Thanksgiving falling early this year, Nov. 22, Lott said Congress has little time left to meet the goal of a pre-Thanksgiving adjournment. "You're talking about three weeks to do two or three [major] bills plus appropriations. It would be pretty hard with the agenda we must do. That's a load to get done before Thanksgiving." Asked the same question, Senate Majority Leader Thomas Daschle (D-S.D.) was slightly more 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000101 optimistic but far from definitive about adjournment. "We are still, maybe optimistically and maybe too optimistically, still hopeful that we can complete all of our work before Thanksgiving," he said. House Republican leaders still believe both chambers can wrap up business before Nov. 22, but they are now acknowledging that they will not meet their goal of leaving by Nov. 9, something they believed possible as recently as last week. With the House having passed 12 of the 13 spending bills, and the Senate still having four more to go, House leaders are placing the blame squarely on the upper chamber for not moving fast enough. "We can only control what we can control," said House GOP Conference Chairman J.C. Watts (Okla.). "The November 9 date could be accomplished if it were left up to us." In another sign that the Nov. 9 date was no longer operative, aides said the House was preparing to move a continuing resolution to fund the government through Nov. 16. After a bicameral GOP leadership meeting on appropriations Wednesday, House Appropriations Chairman Bill Young (R-Fla.) privately told Speaker Dennis Hastert (R-Ill.) that the spending process couldn't be completed until the end of November, according to a senior GOP aide. Both Appropriations panels also lost time this week because of the continued shutdown of most of the House and Senate office buildings, leaving staff unable to obtain documents to begin working on conference reports. Previously, the main impediment to speeding along the appropriations process in the Senate had been the roadblock Republicans were using on the spending bills in an attempt to gain the confirmation of more judicial nominees. Since early October, Lott and other GOP leaders had insisted that was the only way they could force Democrats to consider more judicial nominees. But Democrats never gave in, instead arguing that they were moving at a faster clip on judicial nominations than Republicans ever did in the previous six years when they had the majority under a Democratic administration. "I'm not giving any assurances one way or the other," Judiciary Chairman Pat Leahy (D-Vt.) said Tuesday. "I don't make deals, I just do my job." After defeating a second attempt to bring up the foreign operations appropriation bill Tuesday, Lott emerged from the GOP luncheon and announced that Republicans were giving up the strategy of blocking the spending bills. He said the "intractability of the Democrats" and a reworked sense of priorities left them with no choice but to go forward on appropriations. "We're not seeking leverage now. What we're seeking is to get our work done," he said. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000102 But other GOP leaders and aides acknowledged that Bush's focus on the war made it impossible for him to use the presidential bully pulpit to attack Democrats for blocking judicial nominations because of political ideology - a tactic former President Bill Clinton employed often in the relatively peaceful late 1990s. "Right now he's engaged in other issues," said Minority Whip Don Nickles (R-Okla.). At a preSept. 11 White House meeting, Nickles and GOP Policy Committee Chairman Larry Craig (Idaho) personally asked Bush to take a prominent role in going after Democrats on the judicial nominations issue, a request they believed he was ready to honor. That hope fizzled, however, after Sept. 11. The only pressure Bush applied came during the now regular White House meetings with Lott, Daschle and their House counterparts, Speaker Dennis Hastert (R-Ill.) and Minority Leader Richard Gephardt (D-Mo.). On Tuesday, Bush asked Daschle to speed up the judicial nomination process, but the Majority Leader, insisting there was "no connection" between appropriations and nominations, refused to yield. Nickles said he expects Bush will get involved in the issue, probably sometime early next year if the war on terrorism begins to cool off a bit and Republicans still feel nominations are moving slowly. "I think he can turn the heat up at some appropriate time in the future," Nickles said. "It's a cease-fire for the time being based on priorities," said Craig, who added that the judicial battle would resume early next year. "Look for it on the other side of Christmas." Still, the temporary cease-fire hasn't soothed the tempers riled by the judicial nomination process. The rhetoric continues to become less partisan and more personal, with Republican vitriol toward Leahy growing by the day. Launching the appropriation blockade three weeks ago, Republicans chose to begin the effort by blocking foreign operations, which also happens to be the bill that Leahy oversees. Sen. Orrin Hatch (R-Utah), ranking Member on Judiciary, told reporters that the Vermont lawmaker was acting as a one-man obstacle on the issue. "It comes down to whether Leahy wants to do it or not. It comes down to one person," said Hatch, who used to boast of his across-the-aisle friendship with Leahy. Hatch also accused Leahy of "slow-walking" the nomination of U.S. District Judge Charles Pickering Sr., a nominee to the Fifth Circuit Court of Appeals. He charged Leahy caved in to pressure from liberal groups who are now lining up against Pickering's nomination. In the past week, a handful of liberal groups, from the Congressional Black Caucus to the 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000103 Alliance for Justice, have begun to attack Republicans for trying to speed nominees through the process, particularly Pickering. In going after Pickering, the left-leaning organizations have chosen a target interesting both personally and politically: He's the father of Rep. Chip Pickering Jr. (R-Miss.) and a close friend of Lott's. The CBC cited a paper Pickering Sr. wrote during law school that outlined constitutional ways to impose criminal penalties for interracial marriage. Rep. Pickering said the groups' accusations against his father "raises stereotypical questions" about older Southern men who are religiously active. Judiciary Democrats have asked Pickering Sr. to provide hundreds of unpublished opinions he has written for the District Court of the Southern District of Mississippi, and GOP aides said Democrats have hinted that they may want to hold another hearing on Pickering. In the big picture, however, Democrats contend that they should be graded by the number of judges confirmed by year's end. By the end of this week 12 nominees will have been confirmed, and 11 more will have had a hearing and be awaiting committee action. Of those 11, only Pickering and one or two other judges appear to have any problems. If adjournment doesn't come for another month, Judiciary is likely to hold another hearing or two, setting up the likelihood that at least 20 judicial nominees will be confirmed in what has been a very turbulent political year. That would be about average for the first year of a presidency, according to Democrats. Even Craig admitted that between 20 and 30 nominees confirmed would "come closer" to where Republicans wanted to be at the end of this year. Foreign Aid Bill Held Up Over Judicial Assurances CNN.com Tuesday, October 23, 2001 Republicans have again blocked a major appropriations bill, looking for Democratic assurances that more of President Bush's judicial nominees will be confirmed before the end of the year. Senate Majority Leader Thomas Daschle, D-South Dakota, tried to force GOP senators to move forward with the foreign aid appropriation bill Tuesday, but could not find the 60 votes. Democrats hold a 50-49-1 edge in the chamber. 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000104 Republicans say Democrats are deliberately holding up Bush's nominees this year, a charge that Democrats made against the GOP-controlled Senate last year under former President Clinton. The Senate has approved eight judges this year, with more than 50 nominees still pending. There are 110 vacancies in the federal judiciary system, including 39 positions that have been open so long the courts have classified them as "judicial emergencies." To pressure Democrats to approve more judges, Republicans have been holding up the Senate's consideration of the foreign aid bill. It is one of the 13 spending bills that were supposed to be finished by Oct. 1, the beginning of the government's fiscal year, but were not. The government is operating in the meantime under the same priorities established by Clinton and lawmakers a year ago. "We have to fulfill our responsibilities as the United States Senate and take action on these nominees," said Sen. Jon Kyl, R-Arizona, a leader of the Republican blockade. "And until we're able to do that, it is our view that we should call a time-out on other certain portions of the Senate business so that we have the ability to take those nominations up and bring them to the floor." Democrats say they're moving as fast as they can. Four more U.S. District judge nominees were to be voted on Tuesday and two U.S. Appeals Court nominees are pending in the Senate Judiciary Committee. Senior Democrats have criticized Republicans for linking the foreign aid bill to more judicial confirmations. "I don't see why appropriations should be held up because of nominations," said Sen. Robert C. Byrd, D-West Virginia, who chairs the Appropriations Committee. "What does the one have to do with the other?" Democrats say holding up the foreign aid appropriations bill could hurt America's efforts to fight terrorism overseas. The foreign aid bill has "hundreds of millions of dollars to reduce poverty for basic education, housing and other efforts in the poorest countries, which helps eradicate breeding grounds for terrorists," said Sen. Harry Reid, D-Nevada. "For them to tell us that we can do it later is pure poppycock." Senate GOP to Withdraw Hold on Approps By Alexander Bolton The Hill Wednesday, October 24, 2001 In a move that is expected to clear Congress’ road to adjournment, Senate Republicans decided 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000105 Tuesday to allow the appropriations process to continue without further hindrance. The move came after Republicans defeated a Democratic-led effort to force a vote on the foreign operations spending bill. The failed cloture vote marked the second time in the last two weeks that Senate Democratic leaders failed to garner enough votes to proceed on the bill. Republicans had vowed to hold up the appropriations process until the Senate eliminated a backlog of unconfirmed judicial nominees. "We made our point," said a Senate leadership aide who attended the GOP policy luncheon Tuesday. "We should [now] be focusing our priorities on where the country’s priorities are and also combating terrorism." Republicans cited a Congressional Research Service report that shows the Senate has confirmed only 13 percent of the president’s nominees to U.S. district and circuit courts, a far lower percentage than were confirmed in the first year each of the last three presidents took office. "We’re now at a point where there are 110 vacancies on the court. We have a number of nominations the White House has sent over that Sen. [Orrin] Hatch [R-Utah, ranking member of the Senate Judiciary Committee] and the White House would like to see moved as soon as possible," said Chris Roche, spokesman for Hatch. Both parties have claimed that the impasse over judicial nominees threatened the country’s ability to carry on the war against terrorism. But Senate Majority Leader Tom Daschle (D-S.D.) accused Republicans of undermining the war on terrorism by stalling key spending legislation. Senate Democrats say they have not confirmed more judges because they’ve spent time crafting anti-terrorism legislation and passing executive branch nominees that the administration had given the highest priority. "I’ve been trying to follow the president’s priorities. They’ve followed, first and foremost, their partisan political priorities," said Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee. However, the partisan logjam is not limited to judicial nominees. A range of other controversies ranging from regulations on Mexican trucks to stem cell research threaten to engulf those bills that the Republican leadership allows. Sens. John McCain (R-Ariz.) and Phil Gramm (R-Texas) said they will resume their efforts to delay the Transportation appropriations bill because of controversial language restricting the number of Mexican trucks that can cross the border. "They still need to appoint conferees [for the Transportation bill]," said Pia Pialorsi, McCain’s 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000106 spokeswoman on the Commerce Committee. "Sen. McCain has said all along that he would do whatever he could to bring the other side to the table to engage in negotiations. That would include with the appointing of conferees holding votes on the process." Gramm argues that the Mexican trucking language is a violation of the North American Free Trade Agreement. "A deal is a deal," said Larry Neal, Gramm’s spokesman, referring to the trade pact. "We’ve been trying to work out a compromise on this for months. The other side has never had an interest in compromising." President Bush has also vowed to veto the bill if it contains the trucking provisions, setting up a battle with Democrats. Last week, at the Senate Appropriations Committee’s markup of the District of Columbia spending bill, Sen. Ted Stevens (R-Alaska), the committee’s ranking member, vowed to halt the bill on the Senate floor because it allowed the city to use local funds pay benefits to same sex partners. "The District of Columbia receives substantial federal funding, [those funds and local funds] are fungible," he told his colleagues. Republican intransigence on judicial nominees, the Transportation bill, and the D.C. bill, could cause Democrats to force votes on partisan issues, a tactic they’ve avoided for the sake of unity. Last year, Sen. Byron Dorgan (D-N.D.) attached controversial provisions to the Agriculture appropriations bill opening the Cuban market to American farmers and allowing for the reimportation of prescription drugs. Dorgan could be tempted to push those issues again this year if he feels Republicans are playing hardball. Senators OK Judges for State; Two Appointments Pending for Court in City Chris Casteel The Daily Oklahoman Wednesday, October 24, 2001 Prodded by Sen. Don Nickles, the Senate on Tuesday unanimously approved two federal judge nominees for Oklahoma districts. Claire V. Eagan and James P. Payne, both of whom are U.S. magistrates in the northeastern part of the state, were confirmed without debate to lifetime appointments on the federal bench. They are the first judicial nominees from President Bush to be approved for Oklahoma. Two more are pending for the western district, which is based in Oklahoma City. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000107 Senate Republicans have been pushing the Democratic majority to move judicial nominations more quickly. Nickles, R-Ponca City, the Senate's second-ranking Republican, has been pushing the Oklahoma nominees that he and Sen. Jim Inhofe, R-Tulsa, recommended to Bush. Eagan was confirmed to be a U.S. district judge in the northern district, based in Tulsa. She has been a U.S. magistrate three years in that district. Before that, she spent 20 years as a litigation attorney. During her time as magistrate, she has supervised the court's settlement program. Payne was confirmed as a district judge to share time in the northern district and eastern district, based in Muskogee. Payne has been a U.S. magistrate in the eastern district for 12 years. He spent 15 years in private practice, handling civil matters, and also served three years as an assistant U.S. attorney. Stephen Friot, an Oklahoma City attorney who has been nominated for a U.S. judgeship in the western district, appeared before the Senate Judiciary Committee last week but has not been confirmed by the panel. Another nominee for the western district, Joe Heaton, is awaiting a hearing before the committee. Camp Gets Senate OK for Federal Bench Spot By Matt Kelley Omaha World-Herald Wednesday, October 24, 2001 The U.S. Senate on Tuesday approved President Bush's nomination of Laurie Smith Camp to serve on the federal bench in Nebraska. Camp, a senior aide to Nebraska Attorney General Don Stenberg, will serve as judge in the U.S. District Court in Omaha. She will be the first woman to serve as federal judge in the state. Camp's nomination won Senate approval 100 to 0 after a round of sharply partisan sniping related more to Senate procedure than her qualifications. Before Camp's confirmation, Senate Republicans used procedural maneuvers to block consideration of a spending bill for foreign operations in fiscal year 2002. GOP leaders complained that Democrats in control of the Senate aren't moving fast enough to send Bush's judicial nominees to an understaffed federal judiciary. Camp had bipartisan backing from both U.S. Senators from Nebraska - Chuck Hagel, a Republican, and Ben Nelson, a Democrat. Reached at Stenberg's office in Lincoln, Camp said she expects to leave her current job and 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000108 begin presiding over cases almost immediately. District Court officials in Omaha have been eager to fill the vacancy created by the retirement of Judge William Cambridge. "They have been working very hard," Camp said of her soon-to-be colleagues. "And I want to help as much as I can." After 11 years as general counsel for the Nebraska Department of Corrections, Camp joined Stenberg's staff in 1991, where she has worked on civil rights cases and criminal law. She graduated from Stanford University and the University of Nebraska College of Law. Partisan Bickering Lives on Over the Approval of Judges; GOP Blocking Bill to Protest Slow Pace By Bill Walsh The Times-Picayune Wednesday, October 24, 2001 Since the terrorist attacks last month, federal lawmakers have kept partisan sniping to a minimum, except in one arena: approval of federal judges. For the second time in two weeks, Republicans banded together Tuesday to block passage of a $15.6 billion foreign aid bill to protest to what they see as the Democrats' snail-like pace in approving Bush nominees to the federal bench. So far, only 12 of the 60 Bush nominees have been confirmed. Both sides have used the current military hostilities to put a sharper point on their arguments. Republicans charge that the more than 100 vacancies on the federal bench, 39 of which have been vacant for so long they have been deemed "judicial emergencies," will hamper terrorism investigations as law enforcement agencies seek special authority to wiretap terrorist phones, seize money and detain suspects. Democrats say the GOP-organized delay of the foreign operations spending bill is holding up military assistance for Middle East allies and humanitarian aide to Afghan refugees. Republicans refused to go along with a Democratic request Tuesday to shut off debate on the spending bill and bring it up for a vote. Though Democrats have a 50-49-1 edge in the Senate, 60 votes are needed to move the appropriations bill forward. Republican Sen. John Kyl, R-Ariz., who orchestrated the opposition, said it is time to "call a timeout" on Senate business until more Bush judicial nominees are approved. Although the Senate signed off on four more judges Tuesday, raising the total to 12, Republicans complain the pace is still too slow. Bush has nominated 60 district and circuit court judges since taking office, 44 before the August recess. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000109 Others waited longer Democrats, who control the agenda in the Senate and therefore the pace of judicial confirmations, say former President Clinton's nominees waited three times longer for a hearing than Bush's have. They say it took, on average, more than 300 days for a judicial nominee to get a hearing, while Bush's nominees have been receiving a hearing after an average of 100 days. But Sen. Orrin Hatch, R-Utah, the top-ranking Republican on the Senate Judiciary Committee, said the nominees sent to the Senate before the August break usually are approved in the first year of a presidential administration, and given the pace the Senate is moving, that's not likely to happen. Hatch knows something about delay. In 1996, when he was chairman of the committee, he refused to schedule a single hearing on circuit court judges because of a spat he was having with the Clinton administration. By the time Clinton left office, however, Clinton had placed nearly as many judges on the federal bench as had President Reagan, who holds the record. "The debate over judicial hearings has become entirely choreographed and predictable," said Jamin Raskin, a law professor at American University in Washington. "Different parties will speak different lines depending on who's in power." Two Republican senators said committee Chairman Sen. Patrick Leahy, D-Vt., threatened to hold up appointments in their states because of the way they voted last week on the foreign aid bill. Leahy said he was only joking and added that the shutdown of Capitol Hill offices because of an anthrax attack last week has hampered progress. Leahy also is chairman of the Appropriations subcommittee on foreign operations, giving Republicans an added incentive in sticking together to block the legislation. Louisiana nominees Neither of the two Bush nominees for vacancies on the U.S. District Court in New Orleans, Metairie lawyers Kurt Engelhardt and Jay Zainey, has been given a hearing before the Judiciary Committee. It's unclear when the hearings will be scheduled. Edith Brown Clement, a New Orleans district court judge whom Bush wants to elevate to the 5th U.S. Circuit Court of Appeals, has been considered by the committee and is expected to be voted on this week, said Sen. John Breaux, D-La. U.S. Attorney General John Ashcroft is allowing U.S. attorneys nominated by Bush to begin serving while they await Senate approval. The administration has yet to nominate a U.S. attorney for the eastern district of Louisiana, based in New Orleans. The Justice Department and the FBI have reportedly completed their 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000110 background checks of Fred Heebe, the Louisiana delegation's choice for U.S. attorney in New Orleans. "The nomination is now in the hands of the White House counsel's office," said Ken Johnson, spokesman for U.S. Rep. Billy Tauzin, R-Chackbay. Tom Daschle’s Stonewall; The Senate Majority Leader Tells the President to get Lost By Byron York The National Review October 24 2001 On Capitol Hill today, a number of Senate Republicans are demoralized and pessimistic after the failure of their latest attempt to force the Democratic Senate leadership to speed up the confirmation of President Bush's judicial nominees. For more than a week, Republicans held up consideration of a foreign-aid appropriations bill, trying to pressure Majority Leader Tom Daschle to abandon the Democrats' go-slow policy on judges. Daschle did not give in. Yesterday, with no success in sight, the GOP gave up. "The Republican caucus pretty much collapsed," says a senior aide. But that wasn't the worst of it. Far more demoralizing was the hard line Daschle took with Bush Tuesday in a face-to-face White House meeting. The president was consulting with congressional leaders on a variety of topics, most of them related to terrorism, when he raised the issue of judges. The fact that Bush brought up the question at all is a measure of how important the issue is to the White House. By all accounts, Daschle stonewalled. "He said Democrats don't need appropriations bills and don't need judges as much as the White and that was that. After the meeting, Daschle told reporters House does," says a GOP staffer he told the president the Republicans' appropriations strategy simply would not work. "There is no connection [between the appropriations bills and judges]," he said. "I told that again to the president this morning....There isn't any leverage on appropriations bills." So far, the Senate has confirmed 12 of Bush's judicial nominees. Now, after Daschle's statements, Republicans believe their best hope is to win about 20 confirmations by the end of the year. There remain about 110 vacancies on the federal bench, a significantly higher number than existed during the Clinton administration when Democrats accused Republicans of creating a "vacancy crisis." If they ever had any hope that appeals to Democrats might succeed, Republicans on Capitol Hill and in the White House now realize that there simply is no bipartisanship when it comes to the issue of the federal courts and the president's responsibility to choose judges. There was no bipartisanship when Bush first arrived in Washington and tried to make friends with 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000111 congressional leaders of both parties. And there is no bipartisanship in the post-September 11 world in which Republicans and Democrats are working together more closely on a variety of other issues. Indeed, some key Democratic constituencies are arguing that it is more important now than ever before not to compromise on judges, no matter what temporary spirit of comity might prevail in Congress. One example of the depth of liberal feeling is contained in a report, "President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution," issued October 17 by the left-wing advocacy group People for the American Way. The report says that in his "response to the aftermath of the September 11 terrorist attacks," Bush must decide whether he will "provoke intense partisan conflict" by "pushing for votes on predominantly right-wing ideologues" to the federal judiciary. "Right-wing advocates inside and outside of government are urging President Bush to use the bipartisan support he has been given in the wake of the terrorist attacks to complete the campaign for ideological dominance over the entire federal judiciary," the report continues. "Given how much is at stake, senators must...resist pressure from right-wing administration or Senate leaders to speed confirmation of nominees without serious consideration, and refuse to allow the critically important circuit courts of appeal from becoming dominated by right-wing ideologues." Op/Eds Operation Obstruct Justice; Democrats Continue to Stall Judicial Nominees By Thomas L. Jipping The Washington Times Thursday, October 25, 2001 With just a few weeks remaining until the Senate adjourns for the year, Democrats are trying to deflect criticism from their confirmation obstruction campaign against President Bush's judicial nominees with a series of false, and sometimes bizarre, claims. Let's clear away a little of the smoke. More than 100 judicial positions sit vacant across the country, the highest level in more than seven years. In July 1998, when he was in the partisan minority, Judiciary Committee Chairman Patrick Leahy set an important standard: "The Senate has not even kept up with normal attrition . . . let alone taken the type of concerted action needed to end the judicial vacancies crisis." As Don Lambro outlined Oct. 22 in The Washington Times, this situation takes on dangerous new significance since Sept. 11: "Dangerous backlogs and delays that prevent the swift and sure delivery of decisions needed to protect all of us from the threats that now loom over our country." The now-Democrat Senate has failed the Leahy standard; vacancies are more than 29 percent higher than when President Bush took office. Oh, by the way, vacancies are 56 percent 18 VERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000112 higher than when Mr. Leahy set that standard. The Democratic Senate has also failed to meet another of Mr. Leahy's confirmation standards. In January 1998, with just 83 vacancies, he insisted that the Judiciary Committee should hold a nomination hearing at least every two weeks and the Senate should confirm at least three judges per week. Under his leadership, the Judiciary Committee has held hearings on just 19 of those 60 nominees, allowing fewer than half the nominees per hearing as when Republicans processed Bill Clinton's picks. The Senate has confirmed just 12 of 60 nominees this year, less than onethird its average annual rate over the past two decades. To justify this obstruction campaign, or just to confuse everyone, Democrats are making some claims that don't even pass the laugh test. Mr. Leahy claims, for example, that the Senate is "ahead of the pace of confirmations for judicial nominees in the first year of the Clinton administration." This is an outrageous distortion, even for a wad of political propaganda, and an honest evaluation shows just the opposite is true. By the time President Clinton started making nominations in 1993 (Aug. 6), President Bush this year had sent 44 nominations to the Senate. Because of the lengthy evaluation process, nominations made later in the year are less likely to be confirmed. Thus it's no surprise that the Senate in 1993 confirmed two-thirds of its annual total in November. Don't forget that Democrats ran the Senate in 1993; they would gladly have confirmed as many Clinton nominees as possible. Since the Senate cannot confirm nominees who do not exist, they confirmed as fast as they could. Exactly the opposite is true this year. Mr. Bush made more than two-thirds of his nominations before the Senate's August recess. The Senate in 1993 confirmed just nine nominees by Nov. 1 because it had few nominees to consider; the Senate this year has confirmed 12 nominees despite having dozens to choose from. Democrats in 1993 went as fast as they could; Democrats this year are going as slow as they can. Still, the Senate in 1993 confirmed 88 percent of the nominations President Clinton made by November 1. Just to keep pace with 1993, the Senate must confirm at least 41 more nominees. At the Leahy three-per-week rate, this will take 14 weeks to accomplish, into next February. Another way to evaluate the confirmation process goes beyond individual statistics about confirmations and vacancies and measures confirmation progress throughout the year. The Leahy standards, for example, dictate that a high vacancy level should result in a high confirmation rate. Dividing the number of judicial vacancies on a given date (say, Oct. 1) by the number of confirmations that year prior to that date indicates whether the Senate is following this standard. A higher score on this "Confirmation Obstruction Index" indicates few confirmations in the face of high vacancies. Senate Democrats claim they are pure as the driven snow and that Republicans blocked every Clinton nominee in sight. Yet Democrats this year have a confirmation obstruction score more 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000113 than four times the highest score Republicans ever achieved under Mr. Clinton. No matter which way you cut it, the current confirmation obstruction campaign is real, deliberate, and beyond anything America has seen in many years. Very real differences exist between Republicans and Democrats about the kind of judge America needs. Those differences, however, should be thoroughly and openly debated. Democrats once demanded this open process, demanded hearings and votes, arguing that a productive confirmation process was the Senate's constitutional duty. That was then, this is now - when they have the chance to gore some other ox. Rigging the rules and stalling the process perhaps reveal Democrats' fear that they'll lose that debate. Justice Denied; Given the Social Costs of Nomination Gridlock, it's Time for the President to Pull out all the Stops By Victor Williams New Jersey Law Journal Monday, October 22, 2001 I have always been persuaded, that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important, that the judicial system should not only be independent in its operations, but as perfect as possible in its formation. - President George Washington. In the closed chambers of overworked federal trial and appellate judges, it is too often freshly minted J.D.s and law students who actually author the opinions of the court. Chronic judicial vacancy rates, resulting from an ever-escalating game of judicial confirmation hardball, have created a "shadow judiciary" of clerks, law student externs and even undergraduate interns being given unprecedented authority to write the law of the land. Perhaps even more disturbing than reliance on one-year-termed "elbow" clerks and interns is the increased use of "permanent" law clerks in the shadow judiciary. In addition to predetermining decisions for the judge and writing the court's opinion, some permanent clerks serve for years in one chamber, "presiding" over hearings and pretrial and settlement conferences. Early reliance on these too-eager law clerks by a newly benched jurist retards the overworked judge's development of his own judicial voice and, in some cases, his very competence. The late, great Second U.S. Circuit Court of Appeals Judge Learned Hand often described his clerks as his cherished "puny" judges, but he was adamant that they would never be allowed to draft, much less author, even one of his opinions. In times of gridlock, there are few such actual authors on the bench - very few. Seventh Circuit Chief Judge Richard Posner has admitted that a "judgewritten" opinion is now a rare occurrence in America. 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000114 The high rate of judicial vacancies and judicial default threatens judicial integrity and independence, as overworked federal judges continue to take shortcuts and institute various casemanagement coping mechanisms. As of mid-September, there were 107 vacancies on our combined federal trial and appellate bench of 852 active jurists. A score more have announced retirements. With 12 percent of the national judgeships vacant, 40 of the vacancies have been declared judicial emergencies by the U.S. Judicial Conference. Federal court caseloads continue to grow at a record pace, with more federal criminal prosecution filings than at any time since Prohibition. Southwest border jurisdictions face an especially massive increase in cases. "The border courts are beyond their capacity to handle their caseloads," Judge Royal Furgeson of Texas testified to the House Judiciary subcommittee on crime earlier this year. He expressed the untold feeling of many federal judges across the nation: "We are desperately outmanned." In addition to law clerk jurisprudence, federal appellate judges cope with case overload by substantially reducing the percentage of important cases in which oral argument is granted, and by limiting the number of written and published opinions. "Visiting" district court judges, who were not nominated by the president or confirmed by the Senate for appellate court power, frequent circuit court panels. Senior judges, some in their 80s, are literally being used as benchwarmers to make up panels of three. Too often, the appellate panel has only one active appellate judge. Worse still, circuit judges are increasingly relying on unknown institutional "staff attorneys," who are given authority to assign weight to cases, recommend disposition through summary fashion and author dismissive orders. At the trial level, vacancies and resulting case gridlock result in an overreliance on the "subjudiciary" of magistrates who now, tellingly, are formally referred to as "magistrate-judges." No longer relegated just to discovery, jury selection and warrant determinations, these nonappointed judicial employees preside over a significant percentage of both civil and criminal trials. In some jurisdictions, such as the Northern District of California, civil litigants have an affirmative obligation to say "no thanks" to the magistrate who is automatically assigned to conduct trials and who will, in any event, oversee discovery. And all of this is on the verge of worsening - if an obstructionist Senate decides to step up its opposition to the president's judicial nominees. Putting aside the cost to judicial independence and integrity, the human cost of the coming confirmation fights will be borne by litigants who already must wait years for federal court time due to overloaded federal judicial dockets. Only the criminally accused are guaranteed a speedy trial and timely appeal in America. Civil litigants always go to the back of the courthouse queue. Individual Americans with important civil rights, employment, bankruptcy, Social Security and constitutional cases must wait for years for resolution. Some elderly Americans literally die while waiting for their day in court. With 107 empty judgeships, fewer than 750 active federal judges must conduct the national justice business of 275 million residents. This past year, more than 320,194 cases were filed in 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000115 federal district courts, more than 54,600 in the courts of appeals and more than 1,300,000 in the bankruptcy courts. Does prolonged judicial docket gridlock similarly threaten our still struggling economy? George W. Bush returned from Crawford, Texas, in August to face some serious opposition. As a result of late summer procedural maneuvers in the Senate, each of his administration's 164 nominees unconfirmed for executive and judicial positions were formally sent back to the White House. Each nomination made prior to the Labor Day recess was effectively canceled. Seven months into his presidency, Bush is almost back at square one, with only four judges having been confirmed. (And one of the four was the confirmation of a renominated, recess-appointed Clinton Democrat.) Like it or not, Bush, the White House Counsel's Office and Justice Department operatives better go into training for a full fall schedule of appointment hardball. For trial judge nominees, it will be a prolonged waiting game; for circuit benches it will be a closed-room trading game; and for the U.S. Supreme Court vacancies, it will be raw, unchecked blood sport. Just hours after Vermont's Jim Jeffords announced his defection from the GOP, New Jersey Democrat Robert Torricelli boasted: "This isn't about a single Senate seat ... it's about the federal judiciary." Torricelli is right. For the partisan faithful on both sides of the aisle, the 2000 election debate continues. And, after Bush v. Gore, more than ever, it's about the judges. Evidence the call by Yale Law School's Bruce Ackerman (and others of the Clinton-Gore regular gang of 400 Democrat law profs) for a judicial appointment moratorium until "the American people vote again in 2004." Some Democrats promise direct payback, not only for the Florida recount ruling but also for years of Republican confirmation delay tactics during the Clinton administration. Senate Republicans were responsible for prolonged delays of select nominees. Senate Judiciary chair Orrin Hatch focused intense concern on certain Utah-based and 10th Circuit nominees. Although only one Clinton judicial nominee was actually voted down by the Senate, many were subject to months of undue delay. Some literally waited years before receiving a hearing or full Senate vote. In the end, Clinton benched 377 judges, compared to Ronald Reagan's 382. Clinton's two choices for the high court won easy confirmation with the help of an overwhelming number of Republican senators' votes. Even taking account of an increase in the number of benches to fill, Clinton still got his fair share of confirmations. In hindsight, considering the troubles faced by the Reno Justice Department and the rapid burn rate of his White House counsel, Bill Clinton was quite a successful judge-bencher. George W. should do as well. Although Vermont Democrat Patrick Leahy, the new Senate Judiciary chairman, has promised quick action to fill vacancies, some evidence is contradictory. Only four judges out of 44 nominees had been commissioned before summer recess, and Leahy's late August confirmation hearings were conducted in an unusual fashion - just one nominee at a time. (Leahy may have 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000116 held the two hearings during the Senate recess to buffer against recess appointments coming from Bush.) Perhaps the measure of "deliberate speed" still depends on whose ox is being gored. In 1998, when there were 83 empty judgeships and Clinton nominations at stake, Sen. Leahy asserted that, unless at least three judges were confirmed each week, "the Senate [would be] failing to address the vacancy crisis." Now Democratic judiciary member Charles Schumer of New York openly proclaims an ideological litmus test for Bush nominees and demands full ABA evaluations. But who can hold the Senate accountable for a slow ABA process? Bush countered with the so-called California plan, under which Democrat and Republican lawyer committees propose and evaluate trial court nominees. Under this plan, support is elicited from the diverse practicing bar, rather than from a more elite sector of the profession, as is the case with the ABA Standing Committee on Federal Judiciary. For now, the Bush strategy appears to be to keep the pipeline full of judicial nominees, with special emphasis on specific federal appellate circuits. By targeting circuits for which two or three Republican appointments would be determinative of the en banc bench, the Bush administration can set up intercircuit conflicts for which the U.S. Supreme Court will be the last word. Any vacancy on the high court in the coming term, of course, will mobilize all interested parties to join the battle. Perhaps George W. Bush can trade away a few lower court judges to the Democrats, but no David Souter need apply for the high court. Before repeating his father's mistake and losing the conservative re-election base with another Souter, Bush should consider the alternative, but controversial, recess appointment process that brought Earl Warren, William Brennan and Thurgood Marshall to the bench without Senate confirmation. For years, both Republicans and Democrats have misrepresented not only established appointment practice, but also the U.S. Constitution itself regarding appointments. Legitimate "advice and consent" authority by the Senate as an institution has been distorted to demand individual senatorial "choice" of judicial nominees. Senators expect the "courtesy" to choose the president's lower court judges for national court vacancies that occur in their states, while honoring each other's "blue-slip" holds on nominations. (Surprisingly, while Bush was in Texas, his White House counsel and judiciary chair, Leahy, extended the privilege of "senatorial courtesy" and blue-slipping to D.C. delegate Eleanor Holmes Norton.) The text and history of Article II, Section 2, are at odds with such senatorial (or quasi-delegate) choice. The Constitution's Framers explicitly rejected congressional selection of judges. Delegate Edmund Randolph warned the 1787 Constitutional Convention that appointments made by legislative bodies result from "cabal, from personal regard, or some other consideration than 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000117 ... proper qualifications." Alexander Hamilton described the Senate's limited appointment function in "Federalist No. 66": "There will be no exertion of choice on the part of the Senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose -- they can only ratify or reject the choice of the President." In "Federalist No. 76," Hamilton further explained that although the president is given the "sole and undivided responsibility" to select appointees, "the Senate, in contrast, is given the limited power of either accepting or rejecting the President's choice." Senate Democrats should honor the organizational agreement, hammered out midyear with the Republican minority, and guarantee swift hearings and certain full Senate votes on nominees. The legitimate textual charge of "advice and consent" ultimately must be understood as to "ratify or reject" the president's choices. A break in the deadlock is being demanded by left and right. In a recent Washington Post op-ed, academic Sheldon Goldman warned of a genuine "judicial-confirmation crisis," stating that "obstruct and delay has replaced advise and consent." While sympathizing with the Democrats' fear of "stacking the bench with right-wing ideologues incapable of administering justice fairly and impartially and threatening fundamental individual rights," Goldman advocates immediate Senate confirmation reform. Suggested reforms include elimination of "blue-slip" holds, scheduling of regular hearings and guaranteed speedy, full Senate votes. "When Republicans obstructed and delayed the confirmation of President Clinton's nominees, it clearly was wrong," wrote Goldman. "It would be equally wrong for Democrats to reciprocate no matter how justified it might seem." Regardless of reform preferences or ideological biases, however, the consequences of continued confirmation gridlock are unacceptable. It's no rush to judgment to ensure that federal justice is not delayed. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.6653-000001 18-2091-B-000118 Schauder, Andrew Schauder, Andrew Tuesday, November 13, 2001 8:36 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 11-13-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6820 18-2091-B-000119 Media Review - Judicial Nominations Tuesday, November 13, 2001 General Judicial Articles "Senate Judges Glance Numbers Used by Republicans and Democrats in Their Arguments Over Judicial Nominees," The Associated Press, November 12, 2001 2 "Controversial Judicial Picks Wait," Jesse Holland, The Associated Press, November 12, 2001 3 "Specter Once A Long Shot Candidate for High Court Seat," 5 Claude Marx, The Associated Press, November 12, 2001 "Senate Pact on ‘Holds’ Seems to Be a Dead Letter," 7 Helen Dewar, The Washington Post, November 12, 2001 "Judicial Nominee Holdup Criticized," 8 George Edmonson, The Atlanta Journal and Constitution, November 11, 2001 "Santorum Says Delay in Judicial Confirmation Hurts Anti-Terrorism Fight," 10 Claude Marx, The Associated Press, November 9, 2001 "Partisan Wrangling Delays Federal Bench Confirmation Hearings," 11 Jonathan Ringel, Legal Times, November 12, 2001 "3 Nominated By Bush To Appeals Court," David Ashenfelter, Detroit Free Press, November 9, 2001 13 "Wooten Confirmed As Federal Judge," Lee Bandy, The State, November 9, 2001 15 "Clement Confirmed as Appeals Judge," The Associated Press, November 13, 2001 16 "Strange Justice; The Senate Rejects David Brock’s Latest Allegations," Byron York, The National Review, November 9, 2001 16 1 VERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000120 Op/Eds "Court Seats; Compromise Would Give Nominees Fair Hearings" Detroit Free Press, November 10, 2001 18 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Senate Judges Glance Numbers Used by Republicans and Democrats in Their Arguments Over Judicial Nominees The Associated Press Monday, November 12, 2001 There were 101 judicial vacancies in the U.S. District Court and the U.S. Appeals Court as of Friday, Nov. 9, which is a 12 percent vacancy rate. The Senate has confirmed 17 judges, four to the Appeals Court and 13 to the District Court. Republicans say: -Democrats this year have confirmed a smaller percentage of judges than the Senate did for the Reagan administration, the first Bush administration or the Clinton administration. (By Oct. 31, 1981, 100 percent of President Reagan's judicial nominees had been confirmed; by Oct. 31, 1989, 89 percent of President George H.W. Bush's nominees had been confirmed; and by Oct. 31, 1993, 88 percent of President Clinton's nominees had been confirmed. On Nov. 9, 2001, 27 percent of the Bush administration's judges had been confirmed.) -President Clinton had 377 judges confirmed by the end of his eight-year term, which included former Judiciary Chairman Orrin Hatch's six-year chairmanship. That number is second to only Reagan, who had 382 judges confirmed during his two terms. -In the first year of the Reagan and Bush administrations, the Senate confirmed 100 percent of the judicial nominees who were submitted before the August recess. Ninety-three percent of Clinton's nominations made before the August recess were approved. To meet the 100 percent goal this year, 28 more Bush judges would need to be confirmed by the end of the session. - In Clinton's first year, he made five Appeals Court nominations and three were approved by the Senate Judiciary Committee for a nomination rate of 60 percent. Bush has made 29 Appeals 2 VERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000121 Court nominations with five approved by the committee, for a 17 percent approval rate. -There are 21 nominees pending that are slated to fill positions that have been declared "judicial emergencies," meaning the position has been open too long or the workload in that court has become too much for the judges assigned there. Democrats say: -The number of confirmations this year are more than what there were at this time in either the first year of the first Bush administration or the first year of the Clinton administration. (In 1989, the Senate confirmed seven judges, with three going to the Appeals Court. In 1993, the Senate had confirmed eight judges, with two going to the Appeals Court.) -From 1995-2001 when Republicans controlled the Judiciary Committee, they went 34 straight months without holding a single judicial confirmation hearing, they held one in another 30 month period and in another 12 month period they held two hearings involving judicial nominees. -Under Republican control, some judicial nominees waited more than four years without ever being included in a hearing and never got a vote. -Fifty-six percent of President Clinton's Appeals Court nominees in 1999 and 2000 were not confirmed and more than one-fifth of his judicial nominees, 68, never got a committee hearing and committee vote. -The average time between nomination and confirmation for Appeals Court judges this year has been approximately 100 days. The average length of time between nomination and confirmation for Clinton's last Circuit Court nominees was 343 days. Controversial Judicial Picks Wait By Jesse Holland The Associated Press Monday, November 12, 2001 President Bush's most controversial judicial nominees may have to wait until 2002 before they get a confirmation hearing, much less a vote, from the Democrat-controlled Senate. While Democrats say they plan to get as many as 30 of Bush's judges confirmed before the end of the year - 17 of his 64 nominees have been approved so far - none of them will likely be the four nominees who could cause long, drawn out debates among senators. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000122 That means Bush Appeals Court nominees Miguel Estrada, Jeff Sutton, Terrance Boyle and Michael McConnell will likely have to wait until next year before finding out whether the Democrats in control of their destinies will even allow a vote on their nominations. "I'm trying to get the ones who are non-controversial" first, said Senate Judiciary Chairman Patrick Leahy, D-Vt. "We're trying to get through as many as we can." Republicans don't believe him. GOP senators have dropped their blockade of spending bills as a tactic for pressuring Democrats to allow more judges through. But Republicans still accuse those on the other side of the aisle of playing political games with Bush's nominations. "I don't think we're doing the job, and I think the American people are going to suffer because of it," said Sen. Orrin Hatch, R-Utah, the top Republican on the Senate Judiciary Committee and its former chairman. "It's purely partisan politics," said Sen. Jon Kyl, R-Ariz., one of the leaders of the bill blockade. "Be truthful about it. They don't want conservative judges on the court." Thirty-two of Bush's nominees are awaiting a hearing before the Senate Judiciary Committee. Hearings but no committee votes have been held on 10 other nominees and one other has received committee clearance but has yet to be voted on by the full Senate. When President Clinton left office after eight years, 67 of his judicial nominees had never had a hearing in the Senate Judiciary Committee, Democrats say. Sheldon Goldman, a University of Massachusetts professor and author of the book, "Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan," said Leahy has done well in getting 19 judges confirmed since June. Goldman, however, added that all judicial nominees, even the controversial ones, deserve a quick hearing. "I would think a case would have to be made for having it within three months," Goldman said. "Now, of course, September 11 and all that's followed have completely interrupted the whole saga, and then the anthrax cases obviously, so under these circumstances you might want to talk six months, seven months. But within a reasonable time frame, hearings should be held and the Senate Judiciary Committee should vote." Sutton, McConnell, Boyle and Estrada were among the first 11 nominations Bush made on May 9. Along with five other judicial nominees, they have been waiting six months for Senate action. They also still face a rocky road ahead in the Democrat-controlled Senate. McConnell, nominated to the 10th Circuit Court of Appeals, is recognized in legal circles as especially conservative on abortion rights and church-state separation. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000123 Disability activists protest the selection of Sutton, a former Ohio state solicitor, for the 6th Circuit Appeals Court because he successfully argued to the Supreme Court that state employees can't use federal disability rights to collect damages for on-the-job discrimination. Estrada, nominee to the District of Columbia Appeals Court, is a partner in the Washington firm that represented Bush at the Supreme Court during his post-election legal fight with Al Gore. Bush himself made a personal appeal to Democrats for Estrada. "Get him moving before it's too late," the president said. And Boyle, nominated for the 4th Circuit Appeals Court, has been part of a decade-long political tug of war. Bush's father nominated the former aide to Sen. Jesse Helms to the federal bench in 1991. Democrats blocked Boyle then, and Helms, R-N.C., subsequently retaliated by blocking all of Clinton's nominees from North Carolina. Now North Carolina Sen. John Edwards, a Democrat, has yet to complete the paperwork that would allow Boyle's nomination to go to a vote. Leahy might be right to wait on nominees who might cause fights, Goldman said. "You want to get the more confirmable people through," he said. "You don't want to gum up the works with the people who are more controversial. But they should all have hearings. Whether they have them before December or they have them early next year, they should all have hearings." Specter Once A Long Shot Candidate for High Court Seat By Claude Marx The Associated Press Monday, November 12, 2001 If history had turned out differently, Sen. Arlen Specter, a key player in two confirmation battles for U.S. Supreme Court nominees, might have been the one being debated. Specter, R-Pa., was one of 36 people whose names came up during discussions about filling two vacancies that occurred in 1971. According to a new book by John W. Dean, White House counsel to President Nixon, picking Specter would have been an overture to Jews, who were not usually supportive of Nixon. "There was a question of the Jewish seat on the court and Specter was considered and talked about but never got to the final stages," Dean said in an interview about his book "The Rehnquist Choice." Though Specter's name was mentioned in the press at the time, Dean's book and recently released White 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000124 House transcripts offer the first looks at the behind-the-scenes decision making. Specter was serving his fifth year as Philadelphia district attorney at the time. He had become well known in national legal circles for his work as an assistant counsel to the Warren Commission, which investigated the assassination of President Kennedy. In a Sept. 17, 1971 conversation with White House Chief of Staff H.R. Haldeman, Nixon said: "On the Jew side there is only one, Specter. He's strong on law enforcement, and the rest, and I might consider him if we want to play to the Jews." However, three days later in a discussion with Attorney General John Mitchell, Nixon said he had no interest in nominating a Jew. "When are you going to fill that Jewish seat on the Supreme Court?" Mitchell asked. "Well, how about after I die?" Nixon replied. The two vacancies, to succeed Justices Hugo Black and John Marshall Harlan, were eventually filled by Lewis Powell and William Rehnquist. Powell retired from the court in 1987 and died in 1998. In 1987, President Reagan appointed Rehnquist chief justice, a position he still holds. From 1932 to 1968, one seat on the high court had been occupied by a series of Jewish justices: Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg and Abe Fortas. Nixon's third choice to succeed Fortas, Harry Blackmun, was confirmed in 1970 after the first two nominees were rejected by the Senate. Specter's name did not come up during discussions about filling the Fortas seat. Dean, who served 127 days in jail for his involvement in the Watergate scandal and has become one of Nixon's harshest critics, does not think Nixon's comments about Specter meant the late president was anti-Semitic. "He was viewing the choices through the prism of what the political pluses and minuses were," Dean said. In Specter's memoir published last year, he wrote that he would have reluctantly accepted the appointment: "I did not want to be on the Supreme Court at 41 and out of the fray for the rest of my life. But I knew I couldn't turn it down." Though Specter never made it to the high court, he has had a say over w ho did. Since coming to the Senate in 1981, he has served on the Judiciary Committee, which holds confirmation hearings for all judicial nominees. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000125 Eight of the high court's nine current members have been confirmed during Specter's tenure on the panel. His role was especially important in two fights. In 1987, Specter provided a key Republican vote to defeat President Reagan's nominee, U.S. Court of Appeals Judge Robert Bork. Specter thought Bork's views on civil rights issues to be too conservative. In 1991, Specter won national attention for his aggressive questioning of Anita Hill during the confirmation hearings of U.S. Court of Appeals Judge Clarence Thomas, who had been nominated by the first President Bush. Senate Pact on ‘Holds’ Seems to Be a Dead Letter Helen Dewar The Washington Post Monday, November 12, 2001 Two years ago, after relentless prodding by several colleagues from both parties, Senate leaders agreed to end the secrecy with which individual senators could put "holds" on legislation or nominations, effectively blocking action until the holds were released. But it wasn't long before senators began to ignore the agreement, and it now appears to be a dead letter, as Sen. Paul D. Wellstone (D-Minn.) discovered when he tried late last month to bring up a bill to expand programs for homeless veterans, only to run into a steady stream of anonymous objections from Republicans. Day after day, Wellstone tried to bring up his bill, and, day after day, one Republican or another rose to object on behalf of an unidentified colleague. Some, such as Sen. Larry E. Craig (R-Idaho), expressed sympathy for the goal of the legislation and said he hoped it might pass "at some time in the future." But not now, they all said. Infuriated, Wellstone who has never been accused of being a shrinking violet -- has retaliated by vowing to put holds on all Republican-sponsored bills until he gets action on the veterans measure. They will not be secret, he said; they will be loud and clear. "I have made every kind of appeal known to humankind: Why are you doing this, what's the matter, please let it go," Wellstone recalled in an interview. When that didn't work, he simply told them, "If you keep holding up my bill, then none of your stuff is going to go through either." That argument has not had any impact, but Wellstone figures it will when Republicans as well as Democrats start seeking unanimous consent for their pet projects before Congress leaves for the year. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000126 Some Democrats believe Republicans are taking aim at Wellstone's bills because they have made him a prime target in next year's elections and want to deny him bragging rights on a popular issue. Republicans said they had no idea who was doing what and why. Holds started as a courtesy honored by Senate leaders, but over the years came to be a convenient instrument of obstruction. Under the 1999 agreement between Republican leader Trent Lott (Miss.) and Democratic leader Thomas A. Daschle (S.D.), senators could still impose holds but would have to make their actions known to the bill's sponsor, the chairman of the committee of jurisdiction and their party leader. But there was no enforcement mechanism. As it has turned out, the agreement is "not worth the paper it's written on," said a Democratic leadership aide. GOOD TIMING: Minutes before Senate Republican Conference Chairman Rick Santorum (Pa.) was to begin a news conference to suggest a link between national security and confirmation of President Bush's judicial nominations, Senate bells rang for a roll call vote. Democrats had fortuitously scheduled a vote on a judicial nomination, and Santorum had to leave his own news conference briefly to cast his vote. Democrats credited serendipity rather than strategy for the timing of the vote by which Terry L. Wooten was unanimously confirmed for the U.S. District Court in South Carolina. Wooten was the 17th judicial nominee to be confirmed since Democrats took control of the Senate in June. Democrats say this is good progress, while Republicans note that 43 nominations are still pending. Judicial Nominee Holdup Criticized By George Edmonson The Atlanta Journal and Constitution Sunday, November 11, 2001 Washington Georgia Republican Rep. Mac Collins says Sen. Max Cleland (D-Ga.) and his colleagues in the Senate are engaging in "political cowardice" toward President Bush's judicial nominees. "I am writing to make you aware of my growing concern over the political posturing in the Senate which is delaying the confirmation of pending judicial nominations," Collins began a recent letter to Cleland. A subsequent press release from Collins' office said he "expressed concern that Cleland and other members of the Democratic-controlled Senate have been blocking President Bush's nominees in an act of political cowardice." 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000127 The letter and the press release mentioned appointments of both judges and U.S. attorneys. A spokeswoman for Cleland, Patricia Murphy, said the senator had not slowed the procedures for reviewing and making recommendations on appointments in Georgia. "Sen. Cleland is using the same process under the Bush administration as was used under the Clinton administration, namely reviewing the nominees' qualifications and professional experience," Murphy said in an e-mail. Federal judges and U.S. attorneys are among the presidential appointments the Senate must confirm. The two senators from a nominee's state usually are accorded great influence in the process. Nominees are considered by the Judiciary Committee before going to the Senate; neither Georgia senator is a member of that committee. The speed of consideration for Bush's judicial nominees has become one of the most heated issues between Democrats and Republicans in recent weeks. Late last week, for example, Sens. Jon Kyl (R-Ariz.) and Rick Santorum (R-Pa.) held a news conference to excoriate Democrats for what they said was an inexcusable delay in the process. "While they all say it's not about retribution or payback, there is no other excuse," Kyl said. Santorum referred to the "rotting underbelly" of Democrats' talk of bipartisanship. Both parties have cited statistics, timelines and historical precedents to bolster their own arguments. Disagreement over the pace of appointments, with the sides reversed, occurred when Republicans controlled the Senate during the Clinton presidency. Then, Collins did not press his party to act with greater speed on Clinton's nominees, because "Those appointments were not vital to national security, as is the case here," spokesman Dan Kidder said in an e-mail. "These appointments for U.S. attorneys are critical to the successful prosecution of suspected terrorists. The appointment of federal judges is vital to trying those charged with terrorist activities." Sen. Orin Hatch (R-Utah) said last week that nominees were considered quickly when he chaired the Judiciary Committee while Clinton was president. "And I took a lot of abuse from some who felt that I was moving them too fast," Hatch said. "But 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000128 I just believe that whoever is the president deserves support on his choices for the judiciary." The current Judiciary chairman, Sen. Patrick Leahy (D-Vt.), noted that the committee has held nine hearings on judicial nominations since he took over the post July 10. "We have already confirmed more District Court judges this year than were confirmed in the entire first year of the first Bush administration in 1989, and more Court of Appeals judges than were confirmed in the first year of the Clinton administration in 1993," Leahy said in a statement. According to Judiciary Committee data, the two court levels had 99 vacancies and 47 pending nominations, among the 811 judgeships. Seventeen other nominees have received Senate confirmation. For the 94 U.S. attorney positions, Bush had submitted 59 nominations, and 51 of them had been confirmed, the committee said. Last week, two U.S. attorneys for Georgia districts --- William Duffey Jr. and Maxwell Wood --were among 11 confirmed by the Senate. Cleland and Sen. Zell Miller (D-Ga.) also attended a hearing to support the nomination of Clay Land, a former Republican state senator, as a District Court judge in Georgia. Santorum Says Delay in Judicial Confirmation Hurts Anti-Terrorism Fight By Claude Marx The Associated Press Friday, November 9, 2001 One judicial nominee from Pennsylvania is among 45 awaiting confirmation by a Senate committee and Sen. Rick Santorum said Thursday the delay is hurting the fight against terrorism. Judge D. Brooks Smith, who was nominated by President Bush to the U.S. Court of Appeals for the 3rd Circuit on Sept. 10, is awaiting a confirmation hearing by the Senate Judiciary Committee. Santorum, R-Pa., said the delays are the result of "rank partisanship by (Senate Majority Leader) Tom Daschle" that is hurting the judicial system. "These judges try the criminals and interpret what is the law and without getting them approved in a timely fashion you don't get the system working," Santorum said. Daschle said that Democrats "are doing all that we can to see that the nominees are considered 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000129 and confirmed. ... But we wish the Republicans had been as responsive when we made the same argument under President Clinton." Smith, a U.S. District Judge who sits in Altoona and Pittsburgh, was first named to the federal bench in 1988 by President Reagan. Judiciary Committee spokesman David Carle said no hearing has been scheduled for Smith and declined to say when one would take place. There are 23 nominees for district judgeships and 21 nominees for appeals court judgeships awaiting confirmation. The Judiciary Committee holds hearings on nominees, votes on them and then sends them to the Senate where they must be approved by a majority of the 100 members. "There is a litmus test going on," Santorum said. "If you are not an activist judge, (Judiciary Committee Chairman) Pat Leahy doesn't want to see you before his committee." Carle said the committee has been ahead of the confirmation pace for judicial nominations for the first year of both the Clinton administration and the first Bush administration. President Bush has not nominated anyone to fill the 10 district court vacancies and the other appeals court vacancy in Pennsylvania. Santorum and Sen. Arlen Specter, R-Pa., have submitted recommendations for those vacancies. There have been delays in completing FBI background checks because of a backlog of federal appointees and because the agency has devoted extensive resources to investigating the Sept. 11 terrorist attacks, Santorum said. Partisan Wrangling Delays Federal Bench Confirmation Hearings By Jonathan Ringel Legal Times Monday, November 12, 2001 Despite a spate of recent confirmations, new developments in the struggle over the federal bench are showing just how dysfunctional the process can get. On Thursday, President George W. Bush named three Michigan nominees to the 6th U.S. Circuit Court of Appeals. Michigan is among the states covered by the Cincinnati-based appeals court. Within hours, Michigan's two Democratic senators had vowed their opposition, which makes it very unlikely the nominees will come up for confirmation hearings without more wrangling. 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000130 The Michigan problem resembles other circuit court fights that have slowed nominations and confirmations for years. The squabble has its origins in the Clinton administration, when two presidential picks for the circuit waited years without getting hearings from the then-Republican-controlled Senate. Similarly, Bush's nominee to a North Carolina seat on the Richmond, Va.-based 4th Circuit, federal trial judge Terrence Boyle, is stuck because of a feud that dates back to the first Bush administration, when the same nominee couldn't get through a Democrat-controlled Senate. "There's mounting frustration here," says one Bush administration source, who asked not to be named. During the summer, White House Counsel Alberto Gonzales said he hoped the administration would have named nominees for nearly 100 open seats by the end of the year. But protracted negotiations with home-state senators have slowed the process, says the source, who predicts that it will take at least until January to achieve Gonzales' stated goal. The terrorism investigation has added to the problems, as FBI turnaround time on background checks has increased from about 28 days to 45 days, says the source. So far, Bush has named 64 nominees, 17 of whom have been confirmed by the Senate. At least 10 could be confirmed in the coming weeks, which would equal the number of judges confirmed by a friendly Democratic Senate in Clinton's first year. But aides to Senate Judiciary Chairman Patrick Leahy, D-Vt., acknowledge that the confirmed nominees rose to the top of the list because they were largely noncontroversial and supported by both home-state senators, often one Republican and one Democrat. But the list of consensus nominees is running thin, especially for the influential appeals courts. The Michigan situation illustrates the problems that lie ahead. During the Clinton administration, then-Michigan Sen. Spencer Abraham (now secretary of energy) blocked the 6th Circuit nominations of Michigan appeals judge Helene White and Detroit litigator Kathleen McRee Lewis. Clinton officials, Abraham said, had not properly consulted with him. Although the senator released his hold in the spring of 2000, White spent more than four years waiting in vain for a hearing, breaking known Senate records for futility. Michigan Sens. Carl Levin and Debbie Stabenow, both Democrats, have since urged Bush to renominate White and Lewis. Bush officials met with White and Lewis in March, but apparently to no avail. In August, Levin and Stabenow urged Leahy to stop action on all 6th Circuit nominees -- the circuit also includes Ohio, Kentucky and Tennessee -- until the White-Lewis matter was resolved. Gonzales responded then that the Levin-Stabenow block "would distort the Senate's exercise of its advice and consent function by institutionalizing a practice whereby well-qualified nominees 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000131 may be held hostage to the non-germane demands of individual senators from other states." Meanwhile, the 6th Circuit continued to lose judges -- and is now operating with barely half of its usual complement of 16. Four vacancies come from Michigan. The matter simmered until Nov. 1, when Levin and Stabenow publicly asked Bush to appoint a bipartisan commission to choose nominees. The administration rejected that move and, on Thursday, announced that Bush would nominate three jurists for the 6th Circuit seat: U.S. District Judge David McKeague, Michigan Circuit Judge Susan Neilson and Michigan Court of Appeals Judge Henry Saad. Levin and Stabenow released a statement hours later saying they remained committed to addressing "the unfair treatment" of White and Lewis. "Until that resolution is achieved, we cannot in good conscience consider new nominees," they said. A Leahy aide reasserts that the committee policy under both Democrat and Republican control has been that both home-state senators must support a nominee before he or she may move forward. Gonzales could not be reached for comment, but the administration source explains the thinking behind the hard stance. Agreeing to Levin and Stabenow's demands might solve that problem, the source said, but create others. "Nobody's playing for the short term," says the source. Making a deal "will get you held up for circuit seats across the country. We're not in the business of giving away bits of the president's powers." Since Democrats took over the Senate last summer, four court of appeals nominees and 13 district court nominees have won confirmation. Another 11 would-be judges have had hearings, and all but one -- 5th Circuit nominee Charles Pickering -- appear headed for easy confirmation before the Senate adjourns in the coming weeks. But even those nominees are in limbo as Leahy and the White House wrangle over a new committee questionnaire that asks nominees to confess any adult use of illegal drugs and prior arrests and convictions. Some Bush nominees have answered the questions by simply directing senators to their FBI reports. Leahy said at a Nov. 8 meeting that four nominees who had hearings Oct. 25 had not yet been scheduled for committee votes because aides were still waiting for full responses to their questionnaires. An administration official says that the new questions are covered in FBI background checks, and the senate's additional question is a likely source of leaks and attempts to embarrass nominees. A Leahy aide argues the questions are reasonable and similar to what other committees ask 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000132 nominees under their review. 3 Nominated By Bush To Appeals Court By David Ashenfelter Detroit Free Press Friday, November 9, 2001 President George W. Bush has nominated three Michigan judges to the U.S. 6th Circuit Court of Appeals in Cincinnati, including the first Arab American ever nominated to the court. But all three nominees -- Wayne County Circuit Judge Susan Bieke Neilson, Michigan Court of Appeals Judge Henry Saad and U.S. District Judge David McKeague -- could face confirmation difficulties because of fallout from failed judicial confirmations during Bill Clinton's presidency. Michigan Sens. Carl Levin and Debbie Stabenow, both Democrats, said they couldn't support the nominations, which require Senate approval, until the White House deals with how the Republican-controlled Senate foiled the nominations of two Michiganders to the same bench during Clinton's presidency. They want Bush to appoint a bipartisan commission to recommend federal judicial candidates in Michigan. The court handles appeals of federal district court cases from Michigan, Ohio, Kentucky and Tennessee. Bush's nomination of Saad sends a strong message, especially since the Sept. 11 terrorist attacks, one federal judge said. "It conveys an important message to all the citizens and residents of this country that we embrace and welcome diversity and that we are extending the American dream to anyone who is prepared to work hard," said U.S. District Judge George Steeh III of Detroit, who was the first Arab American nominated for any federal judgeship in Michigan in 1997. He took office in 1998. Saad, 53, of Bloomfield Hills, received a business administration degree in 1971 from Wayne State University and graduated with honors from its law school in 1974. He worked at the Detroit law firm Dickinson Wright, representing corporate clients in employment cases. He worked there from 1974 until 1994, when Gov. John Engler appointed him to the Michigan Court of Appeals in December 1994. He was elected to a full term on the court in 1996. Saad could not be reached for comment. Neilson, 45, graduated with honors with a political science degree from the University of Michigan in 1977. She also graduated with honors from Wayne State University Law School in 1980, and joined Dickinson Wright, where she specialized defending companies in product liability cases. Engler appointed her to the Wayne County Circuit Court in 1991. She works in the court's civil division. In 1998, she ran unsuccessfully for the Michigan Court of Appeals. 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000133 "I am of course very honored by the president's confidence in my abilities," Neilson said Thursday from her home in Grosse Pointe Woods. McKeague said he felt the same way. "I am honored to be nominated by President George W. Bush," he said in a statement. McKeague, 55, graduated in 1968 with a bachelor's degree in business administration and a law degree in 1971 from the University of Michigan. He worked from 1971-92 in a Lansing law firm. McKeague was appointed to the federal bench in 1992 by the president's father, George Bush. Wooten Confirmed As Federal Judge By Lee Bandy The State Friday, November 9, 2001 Federal Magistrate Terry Wooten of Florence was confirmed Thursday to be the state's newest U.S. District Court judge. The vote was 98-0, coming just moments after the Senate Judiciary Committee had unanimously recommended the South Carolinian for confirmation. Wooten fills the new federal judgeship created by Congress last year in adopting an omnibus judicial bill. Wooten was recommended for the job by U.S. Sen. Strom Thurmond, senior Republican on the judiciary panel, and was nominated by President Bush earlier this year. "Judge Wooten will be an excellent addition to the district court," Thurmond said in a prepared statement. "He is an individual of character and integrity, and is clearly well qualified for this seat on the district court. I am confident that he will do a fine job in this esteemed position." His nomination was not without controversy. Two days before his confirmation hearing, it was reported in a Los Angeles newspaper that Wooten had leaked confidential FBI documents 10 years ago for a book on the Clarence ThomasAnita Hill hearings. He testified under oath that the allegations were untrue. Writer David Brock, who published "The Real Anita Hill," filed a sworn statement with the committee, saying Wooten gave him FBI documents in 1991. At the time, Wooten was the chief counsel for the Republicans on the committee. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000134 In an interview Thursday, Wooten said, "It was unfortunate that it came up in the first place. It was shown to be the complete lie that I said it was. The unanimous vote by the committee and the Senate confirmed that." Wooten, who once worked for Thurmond, said he looks forward to serving the state as a federal judge. Wooten said he probably will have a private swearing-in so he can start work immediately. He later hopes to have a public ceremony for family and friends. The nomination of U.S. District Court Judge Dennis Shedd of Columbia to be an appellate judge on the 4th November 13, 2001 U.S. Circuit Court of Appeals is still pending in committee. Clement Confirmed as Appeals Judge The Associated Press, Monday, November 13, 2001 The Senate on Tuesday confirmed Edith ``Joy'' Brown Clement as a U.S. Appeals Court judge. Clement, who was made a U.S. District Court judge in 1991 by former President George H.W. Bush, was confirmed by the Senate in a 99-0 vote. President Bush nominated her for the U.S. Appeals Court's 5th circuit in New Orleans earlier this year. The 5th Circuit handles federal appeals from Texas, Louisiana and Mississippi. Before becoming a judge, Clement was a partner in the Jones, Walker, Waechter, Poitevent, Carrere & Denegre law firm in New Orleans. Clement graduated from the University of Alabama in 1969 and from the Tulane University Law School in 1973. She worked as a law clerk for U.S. District Judge Herbert W. Christenberry for two years before joining Jones November 13, 2001 Walker. Strange Justice; The Senate Rejects David Brock’s Latest Allegations By Byron York The National Review Friday, November 9, 2001 After an investigation of charges leveled by former conservative writer David Brock, the Senate Judiciary Committee and later the full Senate yesterday unanimously approved the nomination of Terry Wooten to become a U.S. district-court judge in South Carolina. But the confirmation did not come without one last Democratic attempt to replay the decade-old controversy over Supreme Court Justice Clarence Thomas's nomination. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000135 Wooten, a former top aide on the Judiciary Committee, was nominated in August. On August 24, shortly before Wooten's hearing before the committee, Brock sent chairman Patrick Leahy a letter claiming that in the early 1990s Wooten illegally gave out secret FBI files relating to the Thomas confirmation battle. At that time, Brock was writing a book that was highly critical of Anita Hill, the woman who accused Thomas of sexual harassment. Brock, who later disavowed his own work, said Wooten gave him secret FBI material on Angela Wright, a woman who has said she was harassed by Thomas but did not testify at Thomas's confirmation hearings. At his own hearing in late August, Wooten denied Brock's charge. "There is not one scintilla or one iota of truth to that allegation," he told the committee. Leahy did not challenge Wooten's answers, but on September 17, Leahy sent a letter to the Justice Department requesting an FBI investigation of Brock's charges. "This is a serious allegation," Leahy wrote, asking that the FBI interview Brock and Wooten, along with "any other individuals as the Bureau deems necessary." In the course of the investigation, agents interviewed at least two other people, both of them associated with The American Spectator magazine, which published Brock's original story on the Thomas nomination. The extent of the FBI investigation is not clear, but yesterday, with little comment, Leahy joined Republicans in supporting Wooten's nomination, which passed the committee on a 19 to 0 vote. A few hours later, the Senate approved Wooten 98 to 0. But Wooten's confirmation did not come without one final attempt to reargue the Thomas nomination and, in the process, delay the proceedings. Wednesday, on the eve of the committee's scheduled vote, Illinois Democrat Richard Durbin sent Wooten a list of 17 questions concerning the Thomas confirmation. None of the questions related to David Brock's charges in fact, Brock's name was not mentioned at all). Instead, Durbin's questions were based on the writings of Jane Mayer and Jill Abramson, authors of Strange Justice, an account of the Thomas confirmation that is overwhelmingly hostile to Thomas. Among other things, Durbin asked Wooten whether Wooten discussed the specifics of Anita Hill's allegations with Senator Strom Thurmond, Wooten's boss at the time. Durbin asked Wooten whether other Republicans on the Senate Judiciary Committee knew about Hill's allegations at an early point in the confirmation process. And Durbin asked about a passage in Strange Justice in which Wooten was quoted as saying of the Hill allegation, "Washington is the rumor mill of the world. It didn't look like it was going to develop into a big deal. There was an effort to control the damage." "Why did you think Anita Hill's allegations were not going to develop into a 'big deal'?" Durbin asked Wooten. "Did you believe then and do you believe now that her allegations, if true, call into question Justice Thomas's suitability to serve on the Supreme Court?" they also Not only did Durbin's questions have nothing to do with Brock's accusations involved some issues which had not come up at all in Wooten's confirmation hearing. And they seemed to suggest that a nominee's opinion of Clarence 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000136 Thomas is a litmus test for being confirmed to the federal judiciary. Finally, they meant that Wooten would have to spend more time answering questions. "It's a common tactic," says one GOP aide. "You zap them with some questions right before the hearing and then say, 'Whoops! We still have some questions outstanding.'" All of which can lead to further delay. But Wooten sent back his answers on the same day he received the questions. The next morning, Durbin voted to confirm Wooten. Op/Eds Court Seats; Compromise Would Give Nominees Fair Hearings Detroit Free Press Saturday, November 10, 2001 Yet another proposal has been offered to end the stalemate between the White House and Michigan's U.S. senators over longstanding vacancies on the federal 6th Circuit Court of Appeals. This one holds promise if the parties to it stay mindful of their obligations -- to the Constitution, to the nominees and to the people, who are entitled to more expedient justice than the shorthanded court has been able to provide. The court has seven vacancies and was declared a judicial emergency more than a year ago. The deal would enable President George W. Bush to advance nominees to fill three of the four Michigan vacancies on the court; Sens. Carl Levin and Debbie Stabenow could advance a nominee for the fourth and for a seat on the U.S. District Court in Detroit. The compromise would assure only Senate confirmation hearings for the Republican Bush nominees -- Wayne County Circuit Judge Susan Bieke Neilson, Michigan Court of Appeals Judge Henry Saad, and U.S. District Judge David McKeague. It would also provide a hearing on Michigan Court of Appeals Judge Helene White, a Democrat who has been waiting for one more than four years -- longer than any nominee in Senate history. The senators' choice for the district court would be Detroit attorney Kathleen McCree Lewis. This plan should not mean automatic confirmation for any nominee, just an opportunity to get the process in gear. Senators have a constitutional duty to examine carefully the fitness of the nominees and whether their views are within the mainstream of jurisprudence. The 6th Circuit Court of Appeals has always maintained a close balance between its moderate and conservative judges. The Bush nominees would make it more conservative -- a prospect that should worry civil liberty and civil rights advocates. But like White, the Bush nominees ought to have an opportunity to make a case for themselves. 18 VERSIGHT Document ID: 0.7.19343.6820-000001 18-2091-B-000137 19 18-2091-B-000138 Document ID: 0.7.19343.6820-000001 Schauder, Andrew Schauder, Andrew Thursday, November 15, 2001 5:39 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 11-15-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6824 18-2091-B-000139 Media Review - Judicial Nominations Thursday, November 15, 2001 General Judicial Articles "Bush Nominees Balk at Arrest Query," Audrey Hudson, The Washington Times, November 15, 2001 1 "Federal Judge in N.O. to Take Appeals Seat; She is Among First of Bush Nominees," 3 Bill Walsh, The Times-Picayune, November 14, 2001 Op/Eds "Confirm Judicial Nominees," 4 The Hartford Courant, November 14, 2001 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases "Fairness for Miguel Estrada; Judicial Nominee Would be First Hispanic on D.C. Court of Appeals," Concerned Women For America, November 15, 2001 5 "Alliance for Justice Strongly Criticizes Republican Leadership for Attempting to Take 6 Advantage of National Crisis" Alliance for Justice, November 8, 2001 General Judicial Articles Bush Nominees Balk at Arrest Query By Audrey Hudson The Washington Times Thursday, November 15, 2001 President Bush's judicial nominees are refusing to answer an additional background question that Democrats tacked onto a Senate panel's standard questionnaire. Republicans say the question covering criminal arrest or conviction is already covered in the 1 VERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000140 FBI's background check and could bog down the nominees in paperwork and stall the process. "I'm concerned it could result in delaying nominees. And whenever you have a disagreement, then it's an excuse to stop," said Sen. Jeff Sessions, Alabama Republican and Judiciary Committee member. Sen. Patrick J. Leahy, Vermont Democrat and committee chairman, added the question last month to streamline the background-check process, his spokeswoman said. "What is causing the controversy, so to speak, is a question about prior arrests and is in the public part of the questionnaire," said Mimi Devlin, Judiciary Committee spokeswoman. Miss Devlin said the question is not as "intrusive" as similar questions asked of nominees in other committees, and that the panel is moving the nomination process forward despite the refusals to answer. "It's public information anyway. It just makes the process much more simple. It's much ado about nothing," Miss Devlin said. The 14 nominees were each asked to "please state whether you have ever been arrested for, charged with or convicted of a crime, within 20 years of your nomination, other than a minor traffic violation, that is reflected in a record available to the public. If your answer is 'yes,' please provide the relevant dates of arrest, charge and disposition and then describe the particulars of the offense." Charles W. Pickering Sr., a nominee to the 5th Circuit Court of Appeals, was the first to give the standard answer Democrats say was issued from the White House. "I am informed that the background investigation reports on nominees prepared by the Federal Bureau of Investigation routinely address the type of information called for by this question. Without waiving the confidentiality of the FBI background investigation report prepared on me, I respectfully direct your attention to that report for response to this question," Mr. Pickering said. Mr. Sessions said the standard response is a "perfectly good answer" and that senators already can review the FBI report, but staff cannot. Sen. Orrin G. Hatch of Utah, ranking Republican on the Judiciary Committee, said the issue is privacy. Added Mr. Sessions: "This is a dangerous policy. Right now, these things are confidential. They've always been confidential. And if somebody leaks an FBI report, it can be a criminal offense. To put it out to all staff, it has every opportunity to leak, will leak, and we don't know why they want to change it," he said. 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000141 Previously, if a background check turned up an arrest, the nominee could quietly step down and his privacy would be protected. Sen. Jon Kyl, Arizona Republican, said the decision to include an additional question is normally agreed upon by both sides and not "simply a unilateral decision." "There is a sense this is meant to embarrass rather than to enlighten, because we have the information November 15, 2001otherwise," Mr. Kyl said. Federal Judge in N.O. to Take Appeals Seat; She is Among First of Bush Nominees By Bill Walsh The Times-Picayune Wednesday, November 14, 2001 The U.S. Senate unanimously voted Tuesday to elevate New Orleans U.S. District Judge Edith Brown Clement to the 5th U.S. Circuit Court of Appeals. Clement, 53, was nominated by President Bush in May and is among the first batch of federal judicial nominees of his term. Clement will take a seat on the appeals court, which is based in New Orleans and has jurisdiction over cases in Louisiana, Mississippi and Texas. The court has operated since 1999 in a state of "judicial emergency" because of vacancies. Clement's nomination was one of dozens that Republicans have complained had become bogged down in the Democratic-controlled Senate. Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, said in a floor speech Tuesday that the vote on Clement shows that the Senate is moving faster to approve judges than it did when Republicans were in control. Leahy said that President Clinton had tried repeatedly to fill vacancies in the 5th Circuit, but Republicans refused to schedule the necessary hearings. "Judge Clement is the fifth nominee to the Court of Appeals confirmed by the Senate since July 20," Leahy said. "We have now confirmed as many Court of Appeals nominees as were confirmed during the first year of the first Bush administration and two more than were confirmed during the first year of the Clinton administration." Clement presided last year over the insurance fraud trial of former Gov. Edwin Edwards and Insurance Commissioner Jim Brown. Edwards was acquitted, but Brown was sentenced to six months for lying to an FBI agent during the course of the investigation. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000142 During the trial, Clement fined Edwards $100 per word for making a 17-word statement to the media in violation of a gag order and vowed a second infraction cost of $1,000 per word. She also ruled that Brown could not review notes written by FBI agent Harry Burton after their face-to-face interview, a decision that is part of the former insurance commissioner's appeal. Clement is a member of the conservative Federalist Society, whose members have had a hand in shaping Bush's judicial choices. She has a reputation for meting out tough sentences. A native of Alabama, Clement graduated from Tulane University Law School. She was a partner at the New Orleans law firm of Jones Walker Waechter Poitevant Carrere & Denegre before being appointed by President George H.W. Bush in 1991 to the U.S. district bench. Her nomination to the 5th Circuit was pushed by New Orleans lawyer Donald Ensenat, a former Yale University fraternity brother of President George W. Bush. It was also supported by the state's two Democratic senators. She is married to Rutledge C. Clement, a lawyer and past president of the Louisiana Bar Association, and has a 19-year-old son and a 12-year-old daughter. Op/Eds Confirm Judicial Nominees The Hartford Courant Wednesday, November 14, 2001 Strong whiffs of hypocrisy and demagogy are wafting from Republican demands that Democrats on the Senate Judiciary Committee quit stalling and hasten the process of confirming President Bush's nominations to the federal bench. Timeliness certainly wasn't on Republican minds when they controlled the Senate and conducted a two-year slowdown on President Bill Clinton's judicial appointments. Republican Sen. Orrin G. Hatch's assertion that support for Mr. Bush's nominees will help the president "in the war on terrorism" is preposterous. There has been no problem in getting federal judges to process warrants and subpoenas aimed at terrorists. Mr. Hatch is exploiting a national emergency for partisan gain. That said, Democrats on the Judiciary Committee should move faster on the president's nominees. Committee Chairman Patrick Leahy of Vermont began conducting new hearings on Bush appointees last month. He should quicken the pace. Appointments are a presidential prerogative. 4 VERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000143 It was wrong when the Republicans dragged their feet on Clinton appointments because they didn't like a nominee's ideological bent. It is wrong for Democrats to do the same. If a presidential nominee is qualified in all other ways and is not an extremist, he or she should be confirmed. There are more than 100 vacancies on the federal bench -- about 12 percent of the total. They should be filled. Interest Groups/Press Releases Fairness for Miguel Estrada; Judicial Nominee Would be First Hispanic on D.C. Court of Appeals Concerned Women For America Thursday, November 15, 2001 Washington, D.C. Concerned Women for America is calling on Senate Democrats to put aside their prejudices, end partisan power politics, and appoint Miguel Estrada to the United States Court of Appeals for the District of Columbia Circuit. Qualified and respected, with experience in the public and private sector, Mr. Estrada has proven he is capable through his experience, education and commitment to the rule of law. It appears Senate Democrats are holding his nomination hostage merely because of who nominated him. President George W. Bush stated on May 9, 2001, when he nominated Mr. Estrada, "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase … James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference." Ignoring the constitutionally mandated role of the Senate to "advise and consent" on the qualifications of judicial nominees, Senate Democrats have instead treated nominees as pawns to carry out their agenda and barter for more power. The courts are key among the three branches of government for far-left liberals to impose radical social policies that lack popular support, or to overturn policies that were voted in by Americans. "At last a Hispanic judge of the highest caliber, the first such nominee for this court, and how is he dealt with?" asked Sandy Rios, President of Concerned Women for America. "With utter disrespect for him and the president who appointed him. Would the Senate Democrats care to provide their lofty motives for this obstruction? Miguel Estrada is respected and qualified. Democrats should be celebrating, not sabotaging this appointment. CWA and the American people must insist that the games end and responsible governance begin." 5 VERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000144 Mr. Estrada was Assistant to the Solicitor General (1992-97), Assistant U.S. Attorney for the Southern District of New York (1990-92), and Law clerk to U.S. Supreme Court Justice Anthony Kennedy (1988-89). He graduated magna cum laude from Columbia College and magna cum laude from Harvard Law School. Alliance for Justice Strongly Criticizes Republican Leadership for Attempting to Take Advantage of National Crisis Alliance for Justice Thursday, November 8, 2001 The Alliance for Justice strongly criticized Republican Senate leadership today for attempting to use the events of September 11 and afterwards to justify rushing through judicial nominees. "If Republicans continue to take the position articulated in news reports on Monday," said Alliance for Justice President Nan Aron, "they would be doing nothing less than attempting to take advantage of a national crisis to rush through judicial nominees who haven't been properly vetted and whose records haven't been thoroughly reviewed." Aron was responding to Republican statements linking the recently passed anti-terrorism bill to judicial confirmations: "At a time when it is especially important for Congress to come together and put the interests of our nation first, it is the height of cynicism for the Republican leadership to use the terrorism crisis to serve their own political interests." Noticeably absent from reported complaints by Republicans about judicial nominations is any evidence that a single subpoena has been delayed or that the response to the September 11 attacks has been hindered in any way by the pace of judicial confirmations. Republicans may be hard-pressed to come up with such examples, since magistrate judges-who are not appointed by the president and subject to Senate confirmation-handle most initial criminal matters such as granting search warrants and presiding over an arrestee's initial court hearing. Furthermore, the Senate Judiciary Committee has been particularly diligent in holding hearings on district court nominees, the federal trial judges who would preside over the trials of alleged terrorists. By November 7, the Democrat-led Senate Judiciary Committee will have held hearings on 18 of the 22 district court nominees sent to the Senate before Labor Day. Aron noted that the same Republican senators who are now sounding the alarm on judicial vacancies played a critical role in obstructing President Clinton's nominees, helping to ensure that many did not even get hearings, much less committee or floor consideration. At the end of the Clinton Administration, the Republican-led Senate adjourned with 39 nominees pending. "Republicans were completely unconcerned about filling vacancies during the Clinton Administration, even vacancies that were deemed judicial emergencies," added Aron. "Now, they are trying to justify rushing through nominees to address a situation made much worse by 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000145 their own previous actions. The Senate must ensure that Republicans are not permitted to do thisby taking its co-equal Constitutional role seriously and thoroughly scrutinizing every nominee to the federal bench." 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6824-000001 18-2091-B-000146 Schauder, Andrew Schauder, Andrew Monday, November 19, 2001 4:12 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; Rabjohns, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Tucker, Mindy; Suit, Neal; 'Patrick O'Brien'; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP) Subject: judicial media review Attachments: Judicial Media Review 11-19-01.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6836 18-2091-B-000147 Media Review - Judicial Nominations Monday, November 19, 2001 General Judicial Articles "Edwards Now Holding Up Judicial Nominations," The Associated Press, November 18, 2001 1 "Long Road to 4th Circuit," John Wagner, The News and Observer, November 18, 2001 3 "Cheney Critical of Judicial Delays," 6 Scott Lindlaw, The Associated Press, November 15, 2001 "Gillette Judge Waits for Congress to Act," The Associated Press, November 15, 2001 7 "Republicans, Hispanic Groups Begin Push to Get Hearings for Estrada," Jesse Holland, The Associated Press, November 15, 2001 8 Op/Eds "Senatorial Cherry Picking," Kenneth Connor, The Washington Times, November 19, 2001 10 "Benchmarks of Judicial Choices," Armstrong Williams, The Washington Times, November 17, 2001 12 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Edwards Now Holding Up Judicial Nominations The Associated Press Sunday, November 18, 2001 1 VERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000148 John Edwards is taking over the mantle as North Carolina's "Senator No." During the Clinton administration, Republican U.S. Sen. Jesse Helms blocked the appointments of Democrats nominated to the federal bench. For the past six months, Edwards has followed suit, holding up the appointment of Republicans nominated by President Bush. Bush nominated Judge Terrence Boyle for the U.S. 4th Circuit Court of Appeals in May. Edwards, a Democrat, has been standing in the way ever since. With Edwards using the same privilege as the Helms and with Congress looking to adjourn next month, it is increasingly likely that North Carolina will remain without representation on the panel at least well into next year. The 15-seat court hears federal appeals from five southeastern states and has been without a member from North Carolina since the death of Judge Sam Ervin III in September 1999. The Senate Judiciary Committee, which holds confirmation hearings on the president's nominees, says it won't bring in Boyle or other Bush nominees who lack the support of both home state senators. "Generally speaking, the committee is choosing to act where there is consensus between the two home-state senators," said David Carle, a spokesman for U.S. Sen. Patrick Leahy of Vermont, the Democratic-led panel's chairman. That certainly isn't the case with North Carolina. Edwards and Helms haven't spoken directly about judicial nominations for months. Edwards, who sits on the committee, said he isn't acting as Helms did. "When you block people for eight years and then try to fill positions all at once, it's harder to get the right balance on the court," Edwards said. "I think those openings need to be filled in a way that properly represents the people of North Carolina." In recent months, Edwards has been negotiating with the White House counsel's office in hopes that Bush will nominate a North Carolina judge more to his liking. Edwards said names of possible candidates were exchanged as recently as this week, though he declined to say who's on the list. Jimmy Broughton, Helms' chief of staff, said Helms "absolutely" continues to support Boyle, the chief judge of the U.S. District Court for Eastern North Carolina. The controversy around Boyle has lasted more than 10 years. Bush's father also nominated Boyle for the 4th Circuit in 1990. Senate Democrats controlled the Judiciary Committee at the time and decided against even holding a hearing on Boyle's nomination. 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000149 Helms went on to block every Clinton nominee to the 4th Circuit, including several who are black. Clinton pointedly accused Helms last year of thwarting his efforts to integrate the allwhite panel. Critics of Edwards say his strategy is worse. "Trying to block a nomination happens," said Thomas Jipping of the Free Congress Foundation in Washington, a conservative group that has been critical of the Senate's pace in confirming judges. "But it's almost unprecedented to do so to force another nomination. If John Edwards wants to appoint judges, he ought to get elected president." Long Road to 4th Circuit By John Wagner The News and Observer Sunday, November 18, 2001 Over the course of the Clinton administration, Republican Sen. Jesse Helms steadfastly blocked a parade of the Democratic president's judicial nominees from North Carolina. But for the past six months, the shoe has been firmly planted on the other foot. President Bush, a Republican, nominated Judge Terrence Boyle for the U.S. 4th Circuit Court of Appeals back in May -- and Democratic Sen. John Edwards has been standing in the way ever since. "The president believes Judge Boyle should be confirmed promptly," White House spokeswoman Jeannie Mamo said. But now, with Congress looking to adjourn next month, it seems increasingly likely that North Carolina will remain without representation on the panel at least well into next year. The 15-seat court, which hears federal appeals from five southeastern states, has been without a single Tar Heel member since the death of Judge Sam Ervin III in September 1999. The Senate Judiciary Committee, which holds confirmation hearings on the president's nominees, has no plans to bring in Boyle or several other controversial Bush nominees who lack the support of both home state senators. "Generally speaking, the committee is choosing to act where there is consensus between the two home-state senators," said David Carle, a spokesman for U.S. Sen. Patrick Leahy of Vermont, the Democratic-led panel's chairman. That certainly isn't the case with North Carolina. Edwards and Helms haven't spoken directly about judicial nominations for months. Edwards, who sits on the committee, maintains that his posture has been different than Helms' 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000150 was during the Clinton years. In recent months, Edwards has been negotiating off and on with the White House counsel's office in hopes that Bush will nominate a North Carolina judge more to his liking. Edwards said names of possible candidates were exchanged as recently as this week, though he declined to say who's on the list. "When you block people for eight years and then try to fill positions all at once, it's harder to get the right balance on the court," Edwards said. "I think those openings need to be filled in a way that properly represents the people of North Carolina." Edwards said the issue isn't Boyle, a onetime Helms aide who is currently chief judge of the U.S. District Court for Eastern North Carolina. "I think he has the experience and training to serve on the court," he said. In fact, several prominent Democrats have praised Boyle's qualifications, including Raleigh lawyer Wade Smith, a former chairman of the North Carolina Democratic Party. Everett Thompson, an Elizabeth City lawyer who has appeared before Boyle, said this week that Boyle would be "an excellent addition" to the 4th Circuit. "I'm sure this is aggravating for him," said Thompson, a Democrat. But Thompson was quick to add that he has a lot of respect for Edwards, and said he has no opinions about the politics surrounding Boyle's nomination. Boyle, in a brief interview, said it would be inappropriate to speak about his situation. Under Senate tradition, judicial nominations generally don't move forward unless both homestate senators return a "blue slip" to the Senate Judiciary Committee indicating their support. During the Clinton years, Helms argued that the 4th Circuit didn't need any more judges -- from North Carolina or any other state -- despite as many as four vacancies on the panel. Generally, the qualifications of Clinton's nominees weren't the issue. But Helms, who declined to be interviewed for this report, returned Boyle's blue slip just days after receiving it in late May. Edwards continues to hold onto his. Jimmy Broughton, Helms' chief of staff, said Helms "absolutely" continues to support Boyle's nomination. In previous interviews, Helms has said his view on "judicial economy" hasn't changed, but that he is willing to defer to a Republican president whom he trusts on this issue. The controversy surrounding Boyle is more than a decade old. Acting on Helms' recommendation, the elder President Bush nominated Boyle for the 4th Circuit in 1990. But Senate Democrats, who controlled the Judiciary Committee at the time, decided 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000151 against even holding a hearing on Boyle's nomination. The move incensed Helms, who proceeded when necessary to block every Clinton nominee to the 4th Circuit -- including several who are black. That prompted Clinton to pointedly accuse Helms last year of thwarting his efforts to integrate the all-white panel. Critics of Edwards say his strategy is worse. "Trying to block a nomination happens," said Thomas Jipping of the Free Congress Foundation in Washington, a conservative group that has been critical of the Senate's pace in confirming judges. "But it's almost unprecedented to do so to force another nomination. ... If John Edwards wants to appoint judges, he ought to get elected president." Boyle was among the first 11 federal judicial nominees that Bush unveiled after assuming office. Of those, only three have yet to be confirmed by the Senate. Another four, however, have received the support of both of their home-state senators -- and are far more likely to get a confirmation hearing than Boyle. All told, Bush has now forwarded 68 federal judicial nominees to the Senate. Only 18 of those have been confirmed. Leahy said recently that he hopes to move another dozen before the end of the year. Republicans have accused the judiciary panel of foot-dragging, but Leahy maintains that his committee will approve as many nominees as Senate panels did during the first year of the Clinton and former Bush administrations. Edwards and the White House are both mum on what kind of deal could be in the works. Last May, in an effort to accommodate Edwards, the White House went so far as to interview two of the candidates he preferred: N.C. Court of Appeals Judge James Wynn and Rich Leonard, a federal bankruptcy judge from Raleigh. Those familiar with the process say Wynn's nomination now appears highly unlikely, however, and that Leonard is more likely to get nominated to a lower court than the 4th Circuit. Jipping said he's skeptical that any deal will be worked out anytime soon. Of those involved, Edwards sounds the most optimistic these days. Asked if North Carolina will get a judge on the 4th Circuit before Congress goes home for the year, he said, "I don't know the answer to that question. ... There's a possibility." 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000152 Cheney Critical of Judicial Delays By Scott Lindlaw The Associated Press Thursday, November 15, 2001 Vice President Dick Cheney sharply criticized the Democratic-controlled Senate for delaying confirmation of President Bush's judicial nominees and said the national interest requires that seats on the courts be filled soon. "The deliberate slowing of the confirmation process is unworthy of the United States Senate and an injustice to the men and women whose names have been presented," Cheney told hundreds of lawyers Thursday at a convention of the Federalist Society, a conservative legal group. Seventeen of Bush's 64 nominees have been confirmed by the Senate so far. According to Cheney, more than 100 vacancies exist on the federal bench, more than when Bush took office. The number of openings is growing faster than the confirmations, he said. "This should be unacceptable to anyone concerned about the administration of justice in our country," Cheney said. "In the interest of the nation, I appeal to the Senate Judiciary Committee to proceed without further delay in filling the vacancies on our federal bench." David Carle, spokesman for Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said the panel is moving as quickly as it can. "The committee is outpacing Republicans in the time they controlled the Judiciary Committee, and the numbers speak for themselves," he said. The panel has held nine hearings since midsummer for dozens of nominees, Carle said. "Some Republicans are terrified that Democrats will treat this administration's nominees as poorly as they treated President Clinton's nominees, and the record shows otherwise," he said. Cheney also offered the legal group a forceful defense of President Bush's approval this week of a military tribunal that could try foreign terrorism suspects. Some critics fear such a tribunal would be conducted in secret with looser rules on evidence than civilian courts and limited or nonexistent rights to appeal. "The mass murder of Americans by terrorists, or the planning thereof, is not just another item on the criminal docket," Cheney said. "This is a war against terrorism. Where military justice is called for, military justice will be dispensed." Asked in a BBC interview about civilian deaths during the U.S. military campaign in Afghanistan, Cheney said, "Any loss of life - innocent life - is to be regretted, and certainly we're 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000153 sorry if that happened." But he asked listeners to remember that the conflict began "with nearly 5,000 innocent people ... being murdered." And he defended the northern alliance, which has been accused of executing Taliban soldiers. "As a general proposition, we believe the northern alliance has conducted themselves in a responsible fashion under the extraordinary circumstances that do exist," he said. The Bush administration once eschewed "nation-building" abroad, but Cheney renewed his pledge that the United States will help assemble a new government in Afghanistan. He used the word "representative" five times to describe it. He didn't explain whether he hoped it will be democratically elected or representative of Afghanistan's many ethnic groups. The normally dry vice president used humor Thursday night to warm up his Federalist Society audience, many of them conservative lawyers. "Looking around the room, I'd guess that a year ago, about half of you were down in Florida" helping Bush during the election recount, he said. Cheney poked fun at his periodic disappearance to an undisclosed "secure location." "It's good to see anybody in person these days," he said. He and his wife, Lynne, "don't get many visitors at the cave." Gillette Judge Waits for Congress to Act The Associated Press Thursday, November 15, 2001 Inaction by the U.S. Senate on President Bush's judicial nominees has held up the nomination of Terrence O'Brien of Gillette. O'Brien was nominated Aug. 2 to the 10th U.S. Circuit Court of Appeals. O'Brien said he has received little information from the Senate Judiciary Committee and said the schedule somewhat depends on how long Congress remains in session. "The process is what it is, and I just sit quietly and wait," he said. O'Brien is one of four 10th Circuit nominees. Only one, Harris Hartz of New Mexico, has had a hearing. "I'm trying to get the ones who are non-controversial" first, said Senate Judiciary Chairman 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000154 Patrick Leahy, D-Vt. "We're trying to get through as many as we can." But Republicans accuse Democrats of playing political games with Bush's nominations with the intention of keeping conservative justices off courts. O'Brien, a district judge in the 6th Judicial District Court of Wyoming from 1980 to 2000, is working now as a legal consultant to Kennecott Energy. He said he has received no indication of a possible hearing date. If confirmed, he hopes to assume his judgeship within a month of his confirmation. Former Gillette resident Thomas L. Sansonetti was nominated to be the Assistant Attorney General for the Environment and Natural Resources Division. He underwent a Nov. 6 hearing and is awaiting confirmation. Republicans, Hispanic Groups Begin Push to Get Hearings for Estrada By Jesse Holland The Associated Press Thursday, November 15, 2001 Republican senators and Hispanic groups began lobbying on Thursday to get a confirmation hearing for Miguel Estrada, nominated by President Bush for the federal bench. They accuse Democrats, who control the Senate, of stalling the nomination of a lawyer who would be the first Hispanic on the federal appeals court in Washington, D.C. One of President Bush's first picks for the bench, Estrada has not had a Senate hearing. "We have always been told, especially by the other party, that we ought to be concerned about Hispanics," said Sen. Pete Domenici, R-N.M., one of 49 senators who signed a letter urging Estrada's confirmation. "Now we're saying to Democrats that it's time for you to come up to the bar and indicate that you are not going to discriminate against a Hispanic who is absolutely qualified to become a circuit judge." Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, which handles court nominations, has said nominees with bipartisan support would advance first. "Mr. Estrada does not fit into that category because of his rigid ideological background," said David Carle, spokesman for Leahy, D-Vt. Vice President Dick Cheney told a Washington convention of lawyers Thursday night the Bush administration faces a general problem obtaining confirmation of judges. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000155 "The deliberate slowing of the confirmation process is unworthy of the United States Senate and an injustice to the men and women whose names have been presented," Cheney said in a speech to the Federalist Society, a conservative legal group. "This should be unacceptable to anyone concerned about the administration of justice in our country," he said. Bush has made 28 nominations to federal appeals courts this year, and the Senate has confirmed five of those selections. Estrada came to the United States from Honduras when he was a teen-ager. He taught himself English, graduated from Harvard Law School, and argued cases before the Supreme Court as a deputy in the solicitor general's office. He is a partner in the Washington law firm that represented Bush at the Supreme Court during his election fight with Democrat Al Gore. Bush, too, has urged the Senate to move on Estrada's nomination. "Get him moving before it's too late." Bush said. Harsh feelings from previous judicial battles linger, although accusations of discrimination are "absurd," Carle said. When Democrat Bill Clinton tried to nominate judges to the U.S. Court of Appeals for the District of Columbia Circuit, Republicans said the court had enough judges, Carle said. The last disputed Hispanic nominee, Richard A. Paez, waited four years - longer than any other nominee in history - before being confirmed for the 9th U.S. Circuit Appeals Court by the Republican-controlled Senate. Conservatives complained that Paez, a Mexican-American, was too liberal and activist. Estrada has the support of several Hispanic groups, at least one of which will put public pressure on the Senate to confirm him. "We're saying do it, or we will begin an advertising campaign very quickly on this issue focusing on Senator Daschle and the other senators on the Senate Judiciary Committee," said Roberto De Posada, president of the Latino Coalition. Democrat Tom Daschle of South Dakota is the majority leader. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000156 Op/Eds Senatorial Cherry Picking By Kenneth Connor The Washington Times Sunday, November 18, 2001 If Sen. Patrick Leahy, Vermont Democrat, is really so enamored with cherry picking, then he should retire from the Senate, return to the Green Mountain state, go into the fruit orchard business full-time and turn over the Judiciary Committee to someone who will run it with some semblance of non-partisanship. The climate in Vermont should be very conducive to growing cherries and Mr. Leahy, judging by his present performance, could make a real horticultural success. Mr. Leahy, however, prefers to do his plucking in Washington, where for purely partisan political reasons he is moving some of President Bush's judicial nominees, but not others. It is obvious that a bitterly partisan Mr. Leahy is intent on cherry-picking for confirmation hearings only those judicial nominees that pass a Democrat litmus test. Six months is too long to keep judicial nominees on ice waiting for hearings in the Judiciary Committee, which Mr. Leahy chairs. While Mr. Leahy and his majority leader, Tom Daschle, South Dakota Democrat, have taken to boasting of the recently increased pace of judicial confirmations - the total confirmed still lags far behind the confirmation rate for Bill Clinton's first year in office - the game they are playing is clear. Mr. Leahy is simply refusing to hold hearings on President Bush's "controversial" nominees. By "controversial," of course, Mr. Leahy means conservative. Conservative judges do not make law. They leave that up to legislators. Neither do they find imaginary rights emanating from the "penumbras" of the Constitution. Rather they construct the laws and Constitution in accordance with the intent of the Founders and Framers, resisting the temptation to graft their own philosophy into the law. The cherry-picker is, therefore, moving only those nominees the various Democratic interest groups object to the least, while stalling the president's more conservative judges opposed by the Left. Four of the 11 original nominees the president announced May 9 have yet to been granted committee hearings because of the left's vocal objections. Miguel Estrada, Jeff Sutton, Terry Boyle and Michael McConnell all have been kept cooling their heels for no other reason than the claque of usual liberal suspects - the National Organization for Women, the National Abortion Rights Action League, People for the American Way, and such venomously oppose their confirmations. Once upon a time, when Bill Clinton was still pursuing sexual high jinks in the Oval Office, Sen. Leahy pompously objected to rank partisanship over judges. On March 3, 1998, the senator told the Boston Globe that "Partisan and narrow ideological efforts to impose political litmus tests on judicial nominees and to shut down the judiciary must stop." Mr. Leahy uttered these words, by 10 VERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000157 the way, when there were but 82 vacancies on the federal bench; today there are 102. The celebrated orchardman went on to attack the vast right-wing conspiracy. "The nominations backlog," Mr. Leahy fumed, "is a function of the targeting of the judicial branch . . . Pressure groups within the right wing of the Republican Party have been formed and money is being raised for the goal of 'killing' Clinton judicial nominations." If this were true, then the vast right-wing conspiracy was a pretty feeble force indeed, as it succeeded in "killing" exactly one of President Clinton's 374 judicial appointments. But the senator's puffery is nevertheless instructive and conservatives at least will welcome his rhetorical rejection of political litmus tests and ideological inquisitions. Unfortunately, this represents not the senator's principled position, but mere political clap-trap. "It's purely partisan politics," Sen. Jon Kyl, Arizona Republican, said recently of the Leahy cherry-picking. "Be truthful about it. They don't want conservative judges on the court." All of Mr. Leahy's previous vapors about rejecting political and ideological litmus tests were hypocritical humbuggery. As Mr. Kyl rightly suggested, with Patrick Leahy it's always about partisan politics. The senator only frowns on litmus tests from the right; when it's Sen. Leahy's political cronies on the left imposing ideological requirements on judicial nominees, well, that's OK with the Vermont's ol' cherry-picker. A cursory survey of the left's Internet websites is enough to convince anyone what's really going on here. Everything about the vast conspiracy that Sen. Leahy thundered against in the Clinton era is true today of the left. The partisan and narrowly ideological imposition of political litmus tests is in high gear, as the left demands that any nominee to the federal bench genuflect to Roe vs. Wade, judicial activism, affirmative action, the feminist and radical homosexual agendas, while opposing capital punishment, school vouchers and school prayer - in other words, the whole miasma that issues from the fever swamps of liberaldom. Mr. Leahy might be shocked - yes, shocked - to learn that pressure groups within the left wing of the Democratic Party have been formed and money is being raised for the goal of "killing" Bush judicial nominees. But from Mr. Leahy's perspective, partisanship is what the other guy does; it's never what you or your political friends are doing. Oh no, the Vermont cherry-picker is only serving the best interests of the country, and not doing the bidding of the rabid left. Sen. Leahy's motives are always pure and untainted by partisanship, while the other side is driven by ideology. "We must remove these important matters judicial confirmations from partisan and ideological politics," Sen. Leahy huffed three years ago. But this is just the sort of gaseous rhetoric that some politicians like Mr. Leahy spout when it serves their political purposes. Such a declaration is not meant to be a statement of high principle that guides their legislative actions. If the latter were true, then the senator would not be cherry-picking Bush nominees, but would be moving all of 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000158 them through the confirmation process fairly and expeditiously. Instead, he is playing politics with the federal courts. Yes, President Bush has nominated to the federal courts some conservatives who espouse the philosophy of judicial restraint, as he promised during the 2000 campaign. This should not come as a surprise to Sen. Leahy. Instead of cherry-picking only nominees that pass his liberal litmus test, Sen. Leahy should heed his own advice and treat all of President Bush's appointments with fairness and impartiality. Benchmarks of Judicial Choices By Armstrong Williams The Washington Times Saturday, November 17, 2001 Lurking beneath all of the post-September 11 rhetoric about bipartisan handholding, there resides one single resounding fact: President Bush has nearly 110 federal judgeships to fill. These positions are key because they could play a crucial role in pushing test cases through the federal courts that would impact issues such as abortion rights, civil rights, consumer protection, hate crimes and environmental policies. In an even broader sense, these test cases could help shift the balance of constitutional power from the federal to the state government. In short, these federal judges will be deliberating on the doctrines that most clearly separate Republicans from Democrats. Pre-September 11, the nomination process promised to turn red of tooth and claw. Democrats were preparing to dig in their heels and block many of the nominations. The Republicans were prepared to savage their opponents for stalemating the process. If, at the time, the infighting seemed particularly sloppy, it should be noted that this is exactly what the Founding Fathers had intended. Plainly, the maintenance of our representative democracy was not supposed to be easy. Neat, plausible solutions were the work of highly centralized dictatorships, and inertia. Rather, our Founding Fathers bravely trusted that the friction of a diverse group of legislators would be the better part of this nation's progress. Of course, post September 11, the nomination of some federal judges seemed suddenly inconsequential to a country grappling with the worst terrorist attack ever on American soil. Accordingly, our leaders showed unity. "We're a family, we're Americans," Rep. Edolphus Towns, New York Democrat, told me over 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000159 breakfast shortly following the attack. "Families fall out. But when someone attacks us, we need to stand together." That's sweet. It's also code for: No legislator wanted to provoke the ugly face of partisanship while the nation was still searching for a sense of order. Plainly, a centralized response would signal to the public that the United States would stand strong against a common enemy. Indeed, one would have to be pretty egocentric not to realize this was what the public needed. Over the past couple weeks, though, the mood has again shifted. One hears rumors of partisan bickering. The battle over the judicial nominations has begun to stir again. Both sides of Congress have begun to snipe over the economic stimulus package and airport security. Then: full flown public accusations by both parties that the other side's resistance is hampering the war effort. This brought me joy. Plainly, the partisan infighting is the clearest sign that our representatives are back to doing what they were elected to do - fighting like hell over core beliefs. This is not bad. Rather it is the clearest indication of the nation's well-being. I vote yes to intellectual friction and representative democracy. After all, the friction of diverse viewpoints has always been the defining characteristic of our representative democracy. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.6836-000001 18-2091-B-000160 Schauder, Andrew Schauder, Andrew Monday, January 7, 2002 6:31 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Ullman, Kristen A; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Coniglio, Peter J; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP); O'Brien, Pat; Comstock, Barbara Subject: judicial media review Attachments: Judicial Media Review 1-7-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.6938 18-2091-B-000161 Media Review - Judicial Nominations Monday, January 7, 2002 General Judicial Articles "Rehnquist Decries Low Pay, Shrinking Pool of Judge Candidates," Tony Mauro, Legal Times, January 7, 2002 2 "Hispanic Nominee no Shoo-In; Estrada’s Critics Say He’s an Ideologue Unfit for Powerful Bench," Frank Davies, The Charlotte Observer, January 6, 2002 5 "Collins Accuses Democrats of Stall Tactics," George Edmonson, The Atlanta Journal and Constitution, January 6, 2002 6 "Defense Lawyers Oppose Cassell Nomination," Stephen Hunt, The Salt Lake Tribune, January 5, 2002 7 "Parties Locked in Battle Over Hispanic’s Bid for Court Seat," Frank Davies, The Miami Herald, January 7, 2002 8 Op/Eds "The Chief Justice Speaks," The Washington Post, January 4, 2002 11 "Senate Holdup; Our Position: The U.S. Senate Should Stop Playing Politics With Judicial Nominations," The Orlando Sentinel, January 6, 2002 12 "Order for the Courts," The News and Observer, January 5, 2002 13 "Reluctant Jurists; Problems with Pay and Confirmation Dampen Top Lawyers’ Aspiration to be Federal Judges," Newsday, January 5, 2002 14 "Approval Process, Pay for Jurists Need Reform; Highly Political Vetting Process, Low Salaries Could Cripple Federal Judiciary," Tom Teepen, Dayton Daily News, January 4, 2002 15 "Bush Nominations Delayed," The Herald, January 4, 2002 16 1 VERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000162 "Senate Politics Damage Federal Courts" Wes Haden, The Chattanooga Times, January 4, 2002 17 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles Rehnquist Decries Low Pay, Shrinking Pool of Judge Candidates By Tony Mauro Legal Times Monday, January 7, 2002 The New Year's Day lament from Chief Justice William Rehnquist was familiar: Federal judges are not paid enough, and Congress needs to do something about it. But in describing the negative impact of low judicial salaries, Rehnquist made a fresh and even surprising new argument. He claimed that the pay situation was shifting the pool of potential judges away from private practitioners and more toward bankruptcy judges, magistrates, state court judges and even prosecutors and public defenders -- for whom a district or appellate judgeship would represent a raise in pay. And that, Rehnquist bemoaned, could turn the U.S. judiciary into a less-respected European-style civil bureaucracy, in which lawyers become lifelong judges at the start of their careers, unleavened by private law practice. "We must not drastically shrink the number of judicial nominees who have had substantial experience in private practice," Rehnquist said in his annual year-end report on the judiciary. "We have never had, and should not want, a judiciary composed only of those who are already in the public service." The argument turned heads, especially coming from a man who was himself an assistant attorney general in the Nixon administration before joining the federal bench as an associate justice in 1971. It also raised the question -- a question Rehnquist himself often asks a lawyer who makes a novel argument at the Supreme Court -- namely, what support is there for his proposition? Rehnquist offered only nostalgia as evidence. He waxed poetic about judges and justices through history who had spent most or all of their professional lives in private practice. Rehnquist 2 VERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000163 invoked the names of Louis Brandeis, known as the "people's attorney" before joining the high court in 1916, and Thurgood Marshall, who was a private lawyer and then top lawyer for the NAACP before John F. Kennedy named him to the federal appeals bench. Learned Hand and Byron White were cited as well. Even more powerfully, Rehnquist also said that John Brown, Richard Rives, Elbert Tuttle, and John Minor Wisdom, "well-known for their courage in enforcing this court's civil rights decisions as judges on the Court of Appeals for the 5th Circuit, all served almost exclusively in private practice before their appointments to the bench." DOES MONEY MATTER? Beyond Rehnquist's cavalcade of judicial titans who once hung out a shingle, there does appear to be some statistical evidence backing up his claim. But some judges and academics contacted after Rehnquist's report suggested that the trend is not as strong, lamentable, or salary-driven, as Rehnquist made it out to be. "The observation may be true, but what difference does it make if we have a judiciary full of lower court judges?" says Washington University political science professor Lee Epstein, a longtime student of the federal judicial system. "I'd want to know more before saying it's a bad thing." A. Thomas Small, a bankruptcy judge in North Carolina and former president of the Conference of Bankruptcy Judges, has no doubt on that question. "Experience as a bankruptcy judge is a good thing, and I am sure the chief justice appreciates that. But I would agree with him that you don't want to limit the field of nominees just to bankruptcy or magistrate judges." Sam Joyner, an Oklahoma magistrate judge who also edits the Federal Courts Law Review, adds: "The chief justice is right that the best way to go is for those in private practice to join the judiciary. But a lot of magistrate judges have that experience, plus they have a track record [as judges] that's pretty helpful." Joyner himself was in private practice for 30 years before becoming a magistrate judge in 1995. The salary of magistrate and bankruptcy judges is set at 92 percent of district judges' salary, which was recently boosted to $150,000. Thanks to a 3.4 percent cost-of-living adjustment for all Article III judges, an increase that Rehnquist expressed appreciation for in his report, appeals court judges are now paid $159,100, associate Supreme Court justices get $184,400, and the chief justice is paid $192,600. Joyner, who sits in Tulsa, just lost two fellow magistrate judges -- Claire Eagan and James Payne -to the district court bench in Oklahoma, so he has seen firsthand the trend that Rehnquist spotlighted. Eagan and Payne are among the 64 people nominated to district or circuit judgeships so far by President George W. Bush. Of those 64, nearly half -- 31, to be exact -- were sitting state or 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000164 federal judges or magistrate judges when nominated. Six more were in state or federal legal jobs, and five were academics or self-employed. Only 22 were partners in private law firms when nominated. The Bush record is in line with a trend that Sheldon Goldman has seen over many decades. Goldman, a political science professor at the University of Massachusetts, is the author of "Picking Federal Judges" and is generally regarded as the most reliable keeper of statistics about federal court nominees. Sixty years ago, Goldman says, about one-third of district court appointees were drawn from the ranks of lower court and state court judges. In recent years, that number has grown to nearly onehalf. "There has been a long-term trend toward a professionalization of the judiciary," says Goldman. But he suggests that the trend has been driven as much by other factors as by salary. For one thing, incumbent judges and government lawyers have a track record on issues that might be important to the appointing president. For another, they may have already been through the confirmation process -- though, as Goldman notes, that did not help Robert Bork or Clarence Thomas much when they were nominated to the Supreme Court. The statistics about the jobs that judges held when nominated also obscure the fact that most judges, magistrates, and government attorneys had considerable private practice experience earlier in their careers. Rehnquist, for example, practiced law for 16 years in Phoenix before joining the Justice Department. Bankruptcy and magistrate judges, appointed by district or circuit judges, are required to have practiced law before seeking the jobs. EUROPE'S WAY The European experience that Rehnquist offered as an unenviable contrast is far different. Judges are more like lifelong bureaucrats in many European nations, says American University law professor Herman Schwartz, who has studied several judicial systems abroad. "They cover their asses, they are tightly controlled by appeals courts, and they are low-status and low-income," says Schwartz. "Here, people snap to attention when a federal judge walks into the room." So how much of a factor is low salary in the judicial selection process? Bush administration officials would not comment publicly on that question or on Rehnquist's thesis. But one top official, when asked how often prospective nominees drop out because of money, says, "It has happened on occasion, but is not frequent." The American Bar Association and the Federal Bar Association last year issued a report supporting the chief justice's plea for higher judicial pay, asserting that salary was "the single 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000165 most important factor discouraging potential candidates from seeking appointment," although it offered only anecdotal evidence. Goldman says one piece of tangible evidence that salary is an issue is that those nominated to the federal bench tend to be wealthier than in decades past -- and presumably better able to handle a dip in pay. Roughly 40 percent of Clinton appointees to the federal bench reported net worth of $1 million or more, Goldman calculates. In his 2000 year-end report issued last January, Rehnquist said, "We cannot afford a judiciary made up primarily of the wealthy." A. Raymond Randolph, a judge on the U.S. Court of Appeals for the D.C. Circuit, says a related tax issue also works as a disincentive for potential nominees. "Congress needs to look into the problems caused by the transition that some people face when going from private practice to a judgeship," Randolph says. "Often, in order to avoid frequent recusals, a new judge has to convert his or her investments from stocks into mutual funds. They have to take this big hit in capital gains taxes when they do this. Congress should look into granting an exemption in this circumstance." Those who minimize the salary issue say the honor of a presidential appointment and the prestige of the federal bench -- complete with life tenure, law clerks, and other perks -- still lure top candidates from the private bar. The story is often told of the lighthearted but revealing exchange of letters nearly two years ago between 4th Circuit Judge J. Michael Luttig and John Roberts Jr., partner at Washington, D.C.'s Hogan & Hartson. Hearing that first-year associate salaries were approaching those of federal judges, Luttig "applied" for a first-year position at Hogan. Roberts, who is now a Bush appointee to the appeals bench, whimsically turned Luttig down. "First, our associates are expected to work more than one week each month, and we do not give them the entire summer off," Roberts wrote. "Second, while it is always a possibility, we do not guarantee our associates life tenure. Third, while we offer a wide range of support, few of our associates are assigned three full-time law clerks to assist them. And finally, although we have adopted a 'casual Friday' policy, black robes do not qualify as appropriate attire." Hispanic Nominee No Shoo-In; Estrada’s Critics Say He’s and Ideologue Unfit for Powerful Bench By Frank Davies The Charlotte Observer Sunday, January 6, 2002 To the Bush administration, Miguel Estrada's nomination for a top federal judgeship is a brilliant opportunity. It combines impressive legal credentials, an immigrant success story and a chance to woo Hispanic voters. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000166 Critics, however, view Estrada, a Honduran American who lacks judicial experience, as a Justice Clarence Thomas in the making - a young lawyer thrust toward the Supreme Court as a conservative ideologue, no more representative of Hispanics than Thomas was of blacks. It means the Estrada nomination to the D.C. Circuit Court of Appeals - the nation's second most powerful court - looms as one of this year's most politically charged nomination struggles in the Senate. Estrada left Honduras at 17, joined his mother in New York, learned English in two years, graduated with honors from Harvard Law School, clerked for Supreme Court Justice Anthony Kennedy, served as a prosecutor, and worked in the Justice Department for both the Clinton and first Bush administrations. Now in private practice in Washington, Estrada, 40, is a favorite of conservatives. He worked for GOP legal strategist Theodore Olson, now solicitor general, and has been a member of the Federalist Society, a right-of-center legal network influential in the current Bush administration. Leaders of several Hispanic advocacy groups support him. But a Clinton administration appointee who supervised some of Estrada's work in the Justice Department voiced reservations about him. "Miguel is too much of an ideologue to be an appellate judge - you could not count on him to be fair or neutral," said Paul Bender, former deputy solicitor general. With Congress returning Jan. 23, Republicans and conservative groups are pressing the Senate to act. Democrats who remember how the GOP held up one Hispanic judicial nominee, Richard Paez of California, for four years are in no hurry. "This is a fight where Bush will see a real upside to push for Estrada, but Democratic senators are in no rush - they have long memories," said Michael Gerhardt, author of a recent book on presidential appointments. Collins Accuses Democrats of Stall Tactics By George Edmonson The Atlanta Journal and Constitution Sunday, January 6, 2002 Rep. Mac Collins (R-Ga.) last week renewed his accusation that Senate Democratic leaders are intentionally delaying President Bush's judicial nominations for political reasons. Collins said that Majority Leader Tom Daschle (D-S.D.) and Judiciary Committee Chairman Patrick Leahy (D-Vt.) have been using the process to give Democrats an issue in this year's 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000167 midterm congressional elections and in the 2004 presidential race. "Daschle and Leahy are trying to obstruct the president's appointments so that they can show, in some warped twist of logic, that the president has not been an effective leader," Collins said in a statement. "Daschle has one aim in the process, to lay the groundwork for his 2004 presidential bid and to show ineffective leadership by the Republican Party to increase the Democrats' margin of control in the Senate and to take control of the House," Collins said. "This is unconscionable and endangers our nation." Last year, the congressman accused Sen. Max Cleland (D-Ga.) of helping to delay nominations for political reasons. Cleland said he was only following the procedure the GOP under President Clinton. But in his latest press release, Collins said Cleland had been responsive in helping to get two vacancies filled in the Middle Georgia district Collins' statement said, in part, "I appreciate Senator Cleland's responsiveness to my request that he go to bat for the citizens of Georgia." The Democrats, of course, deny any political skullduggery and, at the same time, say that the Republicans delayed or tried to delay judicial appointments during the Clinton administration. Defense Lawyers Oppose Cassell Nomination By Stephen Hunt The Salt Lake Tribune Saturday, January 5, 2002 Utah defense attorneys are publicly opposing Paul Cassell's nomination by President Bush to become the state's newest federal judge -- claiming he lacks the proper temperament to sit on the bench. Cassell, a University of Utah law professor, is an outspoken champion of crime-victim rights, a death-penalty proponent and recently tried to abolish the long-standing rule that forces police to give crime suspects a so-called "Miranda warning" prior to interrogation. Susanne Gustin, president of the Utah Association of Criminal Defense Lawyers, claims Cassell's "habit of inserting himself into high-profile cases" makes him unfit to be a judge. "We question his ability to provide a fair hearing," Gustin said Friday, the same day her Letter to the Editor about Cassell was published in The Tribune. "He's too much of an advocate and a judge has to be totally in the middle." Gustin said she also planned to write the Senate Judiciary Committee, which must approve Cassell's nomination. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000168 Most recently, Cassell was involved in the Robert Weitzel homicide case, representing the victims' families in their desire to have 2nd District Judge Thomas Kay removed from Weitzel's second trial. Family members and prosecutors accused Kay of bias against them. Kay was removed for "apparent bias." But the judge who ordered Kay's recusal said he had "serious questions concerning the good faith" of Cassell and state prosecutors. Despite similar objections by others, Sen. Orrin Hatch, R-Utah, remains supportive of Cassell, said Hatch's press secretary, Heather Barney. Parties Locked in Battle Over Hispanic’s Bid for Court Seat By Frank Davies The Miami Herald Monday, January 7, 2002 For the Bush administration, the nomination of Miguel Estrada to a top federal judgeship seemed like a sure winner. He possesses impressive legal credentials, his life story offers a dramatic example of success by an immigrant, and Hispanic voters would be favorably impressed by the GOP's selection. But his nomination has languished in the Senate for months, and as more and more critics voice doubts, the fight to put Estrada on the Court of Appeals for the District of Columbia -- the nation's second most powerful court -- is shaping up as one of this year's most contentious, politically charged struggles in the Senate. The controversy reflects the importance of the Hispanic vote and the politics of payback, not to mention an ideological battle to define the middle ground of jurisprudence. Opponents portray Estrada, a Honduran American who lacks judicial experience, as a Clarence Thomas in the making, a young lawyer thrust toward the Supreme Court as a conservative ideologue no more representative of Hispanics than Thomas was of blacks. A former colleague who supervised some of Estrada's work in the Justice Department said he was ``shocked'' by Estrada's nomination. ``Miguel is too much of an ideologue to be an appellate judge -- you could not count on him to be fair or neutral,'' said Paul Bender, who was deputy solicitor general. ``He is a terrific oral advocate, but I could not rely on his written work as a neutral statement of the law.'' Estrada, like other judicial nominees, declined to discuss his career until a hearing on his nomination is held. PRESSURE FOR ACTION 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000169 With Congress returning Jan. 23, Republicans in Congress and conservative groups are pushing for the Senate to act. Democrats who remember how the GOP held up one Hispanic nominee for a judgeship, Richard Paez of California, for four years are in no hurry. ``This is a fight where Bush will see a real upside to push for Estrada, but Democratic senators are in no rush -- they have long memories of how Republicans blocked Clinton's nominees,'' said law professor Michael Gerhardt. ``This nomination shows that ideology does matter, and Estrada's Hispanic background adds an important element and will make a big difference,'' said Gerhardt at The College of William & Mary. But even those who don't like Estrada's politics or his fitness for the job concede that his life story is compelling. He left Honduras at 17, joined his mother in New York, learned English in two years, achieved magna cum laude honors at Harvard Law School, clerked for Supreme Court Justice Anthony Kennedy, served as a prosecutor, and worked in the Justice Department during the Clinton administration and the first Bush administration. RIGHT OF CENTER Now in private practice in Washington, Estrada, 40, is a favorite of conservatives. He worked for GOP legal strategist Theodore Olson, now solicitor general, and has been a member of the Federalist Society, a right-of-center legal network influential in the current Bush administration. ``His life story makes liberals swoon, but his politics make them shudder,'' wrote New Republic editor Peter Beinart, who said President Bush is using ``diversity games'' to disguise a far-right nominee. Estrada, who opposes abortion and has criticized some affirmative action measures, was hailed as a ``star of the conservative legal movement'' by William Buckley's National Review. Columnist Robert Novak described Estrada as part of ``an all-star conservative team of lawyers.'' MINORITY HIRING Estrada was one of the few minority group members to be hired as a law clerk by a Supreme Court justice, an issue that has prompted protests by several legal groups. When USA Today in 1998 reported on the very low percentage of minority clerks, Estrada dismissed the statistics. ``If there was some reason for under-representation, it would be something to look into,'' Estrada told USA Today. ``But I don't have any reason to think it's anything other than a reflection of trends in society.'' Bush nominated Estrada in May to the District of Columbia court, often a springboard to the 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000170 U.S. Supreme Court. Last month, all 49 Republican senators signed a letter urging hearings for Estrada and Washington lawyer John Roberts, another nominee for the same court. Estrada would be the first Hispanic judge on the D.C. court, and friends and foes say he has a chance to be the first Hispanic on the Supreme Court. White House counsel Alberto Gonzales is also seen as a possible nominee to the high court. ``Estrada is young and smart without a long paper trail, so the Bush administration might think his confirmation will be easier,'' said Nan Aron, president of the Alliance for Justice, a coalition of largely liberal advocates opposed to Estrada. Democrats controlling the Senate have moved on other Bush judgeships, with 28 confirmed since they took control in June -- better than the pace of the GOP Senate during the Clinton years. But they haven't scheduled hearings on Estrada or several other nominees. `NO CONSENSUS' ``The Judiciary Committee tried to move as many nominations as possible, and not go to the most difficult ones, where there is no consensus,'' said David Carle, a spokesman for Judiciary Chairman Patrick Leahy, D-Vt. Republicans see foot-dragging and have responded sharply. ``Democrats don't want a Hispanic appointed to this significant court because they understand he could be one of the president's first nominees on the Supreme Court,'' said Sen. Jon Kyl, R-Ariz., last month. ``They are literally racially profiling this nomination.'' Hispanic groups are generally supportive, but not completely. The Latino Coalition and the Hispanic Business Roundtable are backing the nomination. The Mexican American Legal Defense and Education Fund is studying Estrada's record and has not taken a position, said regional counsel Marisa Demeo. ``So often, you hear there are not enough qualified Latinos for these positions, but he is remarkably qualified,'' said Gabriela Lemus, spokeswoman for the League of United Latin American Citizens (LULAC). ``The Senate should give him a chance.'' APPROACH DESCRIBED Estrada has written that he is a strict constructionist who would not ``make law'' as a judge. His backers note that as a lawyer in the solicitor general's office, Estrada strictly followed the provisions of racketeering law in one case, arguing against abortion protesters. And the American Bar Association has given Estrada a rating of ``well-qualified.'' 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000171 But Bender, a Clinton appointee who supervised appellate litigation in several discrimination cases, said he ``could not trust Estrada's judgment'' in following the law. ``He was very, very conservative and outspoken about it -- he felt the law on defendants' right had gone way too far,'' Bender said. Bender, a civil rights advocate, said he sometimes disagreed with Roberts -- Bush's other nominee for the D.C. court -- but would support Roberts ``because he is well-qualified.'' Michael Gerhardt, who has studied confirmation battles over the years, said the Estrada fight is another episode in the ongoing battle to define the ideological middle ground. Each side tries to depict the other as outside the mainstream in such fights, Gerhardt said. ``Defining who is really a moderate, who is too ideological, is at the core of the debate,'' he said. Op/Eds The Chief Justice Speaks The Washington Post Friday, January 4, 2002 CHIEF JUSTICE William Rehnquist is one of the few prominent Republicans with standing to complain about the way the Democratic-controlled Senate is processing judicial nominations. Back in 1997 Mr. Rehnquist courageously chided Senate Republicans in his year-end report on the judiciary for delays in confirming President Clinton's nominees. "Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote," he wrote. "The Senate should act within a reasonable time to confirm or reject them." His principled call then for a fair and expeditious process makes his insistence in this year's report that the Senate "ought to act on each nominee and to do so within a reasonable time" a rarity in the general hypocrisy of the confirmation mess: a consistent position. Unfortunately, Mr. Rehnquist did not content himself with using his unusual moral authority on the question of judicial nominations to give the process a push. Instead, he began his discussion of the vacancy problem by positing a dubious link between the issue and the war on terrorism. He noted that "the federal courts have functioned through wars, natural disasters, and terrorist attacks" but said that for them "to continue to function effectively and efficiently . . . judicial vacancies must be timely filled with well-qualified candidates." This adoption of what has become standard Republican rhetoric on judges is unnecessary, and the argument itself is unconvincing. No matter how short-staffed a court, any judge is going to drop his other work when the FBI comes in with an emergency search warrant request. The highest-priority matters don't tend to be the work that suffers. The reason the Senate should consider judges quickly is exactly the same now as it was before 11 VERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000172 Sept. 11. The institutional needs of the judiciary should not be held hostage to politics. And while the Senate's constitutional duty to advise on and consent to the president's nominees may legitimately involve rejecting his nominations, it is an abdication of that duty simply to refuse to consider them. Lengthy, irrational delays are also unfair to the nominees in question and, along with low judicial pay, are among the serious obstacles to recruiting good judges. Mr. Rehnquist is right to speak up on this issue -- irrespective of which party controls the White House and which party controls the Senate. It is no less important for having nothing to do with terrorism. Senate Holdup; Our Position: The U.S. Senate Should Stop Playing Politics With Judicial Nominations The Orlando Sentinel Sunday, January 6, 2001 The U.S. Senate needs to step up the pace to confirm or reject the people nominated to federal judgeships by President George W. Bush. Prompt action is required because 11 percent -- 94 of the authorized 853 district, trade and appeals-court judgeships -- are vacant. That's the largest number of vacancies since early 1994, when there were 118 empty seats on federal benches. There's one judicial vacancy in Florida's middle district, which includes Orlando. Vacancies increase the back-breaking workload of cases that judges preside over. That workload can contribute to delays throughout the court system. It's not uncommon for individual judges to preside over hundreds of complicated cases during the course of a year. The situation has become so critical that U.S. Chief Justice William Rehnquist issued a Mayday call for help last week in his annual report on the federal judiciary. He noted that the delays and arduous confirmation process is discouraging some qualified people from accepting a nomination to the federal bench. The solution rests in the hands of the Senate, which is charged with confirming judicial nominees. Those nominations sometimes become political soccer balls. When the Republicans held the majority during the Democratic administration of President Bill Clinton, his nominations had a difficult time making it through the confirmation process. Now that the Democrats hold the upper hand in the Senate, nominations made by Mr. Bush, a Republican, are crawling. When the Senate adjourned for the Christmas break, 37 nominees were awaiting action by the Senate. The prompt and smooth administration of justice in the federal system is much more important than partisan muscle-flexing. All presidents are entitled to nominate judges with whom they are politically comfortable. That discretion generally should be respected by senators. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000173 The way to avoid logjams in the nomination process is for senators to avoid getting hung up on political differences they may have with individual nominees. The candidates' fitness to serve in the lifetime judicial positions should be evaluated on the basis of the nominee's integrity, personal background, professional experience, legal knowledge and temperament. Presidents also have an obligation to avoid nominating people who have weak qualifications for the post. Such nominations are needlessly provocative. They are certain to draw political attacks and cause delays in the confirmation process. The ongoing international war against terrorism and increasingly complex issues in technology and the business world are sure to create cases that will make the federal courts more important than ever. Filling the vacancies on the federal bench must be a top priority for senators. Order for the Courts The News and Observer Saturday, January 5, 2002 Anyone watching the bitter nomination and appointment process for federal judgeships has to come away perplexed. Democrats like to point out that President Bush has gotten a higher percentage of his judicial nominees through the Senate grinder at this time than former President Clinton. But that partisan point, legitimate though it may be, doesn't erase the fact that the federal court system is understaffed on the bench. Chief Justice William H. Rehnquist, in his annual report on the courts at the end of 2001, noted that of 853 federal judgeships, 94 are vacant, about 11 percent. That's not as bad as the Clinton years -- when Republicans also dragged their feet on appointments thanks to their ongoing contentious relationship with Clinton -- but it's too many -the most at the start of a year since 1994. Sen. Patrick Leahy of Vermont, chairman of the Judiciary Committee that opens the approval process, blames the tumult in the nation and the Senate, with some justification. Besides Sept. 11, senators suffered through the emptying of Senate offices due to anthrax and political upheaval with a change in leadership after Sen. James Jeffords of Vermont became an independent and gave the majority to Democrats at mid year. President Bush, of course, should expect opposition if he goes to the fringes of conservatism to find nominees. Judgeships, after all, are lifetime appointments. Democrats wouldn't be doing their job if they didn't subject nominees to rigorous debate, a logic that holds when Republicans are the Senate bosses. Federal judges have tremendous power, and those who are granted it must 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000174 be men and women of sound judgment and reason, qualities than need not have a partisan litmus test. Bush does have every right to fill judgeships with candidates who share his conservative philosophy. A well-functioning judiciary is always important. But the war against terrorism has raised a host of basic constitutional issues that the courts likely will have to untangle in the months and years to come. Now more than ever, Rehnquist seems to say, we need a strong, complete federal judiciary. Seeing to that and making sure the process doesn't get skewed by partisanship is a duty shared equally by the president and Congress. Reluctant Jurists; Problems with Pay and Confirmation Dampen Top Lawyers’ Aspirations to be Federal Judges Newsday Saturday, January 5, 2002 Relatively low pay and lengthy confirmation processes have soured many lawyers in private practice on seeking appointment to the federal bench, says the nation's top judge. The Senate and the president should heed the warning of Chief Justice William Rehnquist. If the pool of potential judicial nominees continues to shrink, the current high quality of the federal bench will eventually be eroded. In the interest of justice, Washington should deliver timely confirmation hearings and votes, and a formula for regular judicial pay raises. Highly qualified nominees who are comfortably in the mainstream of political ideology usually win easy confirmation. It is when a president from one party asks a Senate controlled by the other party to confirm nominees with controversial views that the process runs aground. A Democratic Senate, its plate full after the Sept. 11 terrorist attacks, confirmed 28 of Republican President George W. Bush's judicial nominees in 2001. But at year's end there were still 94 vacancies. Between 1998 and 2000, with Democrat Bill Clinton in the White House and a Republican Senate, 32 nominees got no confirmation hearings at all. Presidents impede the process when they try to stack the courts with ideologues. But the acceptable political mainstream must be broad. The courts benefit from ideological diversity and from the presence of judges who follow a variety of career paths to the bench. Nominees in private practice are the ones most affected by delayed confirmation and lower pay. They lose business while awaiting confirmation because they cannot assure prospective clients that they'll be available to complete their work. And for top lawyers, judicial salaries - $150,000 for district court judges, $192,000 for the chief justice - are a pay cut. Lawyers in the nation's top firms earn that much just a few years out of school. Government can't compete with private14 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000175 sector compensation. But judges should get raises at regular intervals that exceed the rate of inflation. Judges perform a demanding, critical public service. Those who do it shouldn't be expected to sacrifice unnecessarily. Approval Process, Pay for Jurists Need Reform; Highly Political Vetting Process, Low Salaries Could Cripple Federal Judiciary By Tom Teepen Dayton Daily News Friday, January 4, 2002 William H. Rehnquist has a point. Two, actually. The Chief Justice of the United States, in his annual year-end report, warned that unless pay is boosted sharply and the political vetting of nominees is streamlined, the nation could wind up with a federal judiciary that is substantially bureaucratized and, virtually by definition then, dehumanized. With a scheduled 3.4 percent cost-of-living increase this year, district judges will make $150,000, courts of appeal judges $159,100 and Supreme Court associate justices $184,400. (Rehnquist will pull in $192,600.) That's big money to most of us, and it would be easy to dismiss Rehnquist's pitch as the bellyaching of the well-to-do. But, in fact, big law firms in major cities are paying salaries close to those of district judges to first-year lawyers, youths with law-review ink still on their fingers. The public can expect federal judges to count the prestige of a judgeship and the opportunity to make an important civic contribution as at least some compensation for lower wages than they could make in private practice. It is unreasonable, however, to expect many of the most able candidates to accept what amounts to financial devastation. As a result of the lagging pay, Rehnquist notes, an increasing number of federal jurists are coming from public rather than private practice - from prosecuting shops, public-defender programs and such - where the pay is so low $150,000 offers a lifestyle change. Attorneys from private practice bring - not universally but typically - a greater real-world understanding of law to the judge's job than do public attorneys who have been practicing stickler's law at the second decimal place. The same can be said, by the way, of many political appointees. In any event, a mix on the federal bench is best. Rehnquist is right, too, in saying the Senate approval process has become a political torture putting off potential nominees. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000176 As he did in scolding GOP Congresses for sidelining President Bill Clinton's judicial nominees, the chief justice now chides the current Democratic Senate for holding up President George W. Bush's picks, but the larger blame has to go to Rehnquist's own party. The Senate isn't breaking any speed records with Bush's choices, but neither is it as balky as recent Republican Congresses were. And where Clinton put forward essentially moderate nominees who should have been speedily approved, Bush has proposed a cohort that is one of the most ideologically vivid - lurid? - ever advanced. Careful, indeed skeptical, hearings are called for. The GOP's right, in an avowed campaign to capture the federal bench, has extended its sly naming game to the judiciary - casting, and dismissing, as 'left-wing' or 'liberal' everyone who is not doctrinally conservative. (And the watchdog media, who bark their fool heads off when some second-tier pol empties the petty-cash drawer, lets the right get away with murdering whole political identities.) The pay matter can be fixed quickly and cheaply with simple legislation, and should be. The confirmation mess won't end until both parties go back to making moderate appointments and the GOP stops being a willing partner in its right's scheming. Bush Nominations Delayed The Herald Friday, January 4, 2002 The nation is ill served by senatorial foot-dragging in approving presidential nominations for various posts. But the delay is nothing new, and the GOP's self-righteous hand-wringing is more than a little hypocritical. Of the more than 500 executive branch positions that require Senate confirmation, about 350 were filled in 2001. But 70 nominees were left unconfirmed when Congress adjourned in late December. Nominees were being rubber-stamped by the Republican-controlled Senate early in Bush's first year. But that came to a screeching halt when Vermont Sen. James Jeffords defected from the GOP, declaring himself an independent, thereby handing control of that body to the Democrats. Some Republicans have advised Bush to use recess appointments while Congress is not in session, which would allow appointees to serve until January 2003 without Senate confirmation. But that tends to cast the nomination in a poor light, indicating the Senate has no confidence in the nominee. It also practically ensures the nominee never will be officially confirmed. Senate Republicans have, predictably, complained about the delay. Sen. Orrin Hatch of Utah, senior Republican on the Judiciary Committee, said Democrats have made a "systematic and calculated effort to confirm the absolute minimum number of President Bush's judicial nominees that they believe will be acceptable to the American public." 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000177 Hatch also asserted that his party "did not play such games when Bill Clinton was president." Oh, really? The record indicates otherwise. The Senate confirmed 28 judicial nominees last year. In 1996, when Hatch was chairman of the Judiciary Committee, the Senate confirmed only 17. In 1999, Hatch froze consideration of all nominees for several months to put pressure on Clinton to nominate an attorney Hatch wanted for a district judgeship in Utah. Under the past six years of Republican control of the Senate, confirmations, judicial nominations in particular, slowed to a crawl. Some nominees languished for years. In fact, some slots are open now because nominees weren't confirmed during the Clinton years. So, to some degree, the Democrats are demonstrating that both parties can play that game. Unfortunately, political games impede smoothly functioning government. The Senate has a responsibility to advise and consent on presidential nominations. And, in some cases, delays may be justified. There are legitimate reasons to be wary of controversial nominations such as Otto Reich, Bush's nominee to be assistant secretary of state for Western Hemisphere affairs, and Eugene Scalia, son of Supreme Court Justice Antonin Scalia and Bush's pick to be the Labor Department's top lawyer. Clearly, however, the process is flawed. Political spite is not a legitimate reason to hold up presidential nominations. Leaders in both parties need to seek common ground. Nonetheless, it's worth noting that Democrats didn't create this mess, and Republican complaints to the contrary are an attempt to rewrite recent history. Senate Politics Damage Federal Courts By Wes Haden The Chattanooga Times Friday, January 4, 2001 In the best tradition of blind justice -- that is a court system that does not take sides -- Chief Justice William Rehnquist once again has appealed to the U.S. Senate to put aside its seemingly endless bickering and attend to the business of approving new federal judges. Though Justice Rehnquist's latest plea is pointedly directed to the sitting Democratic-controlled Senate, it is not a partisan request at all. The chief justice made the same request during the latter part of Bill Clinton's tenure when Republicans controlled the Senate and judicial appointments were, as they are now, caught up in endless political machinations. Justice Rehnquist has sound reason to push recalcitrant legislators. There are nearly 100 vacant federal judgeships around the country, slightly above 10 percent of the total. If federal courts are to provide prompt trials and efficient justice, as they are mandated to do, they must have a full complement of judges. Given the roadblocks put up in the fractious Senate over the past few years, that's unlikely to happen anytime soon. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000178 Warning that the large number of vacancies "were undermining the administration of justice," the chief justice called on the Senate to "act with reasonable promptness" on the president's judicial nominees. The Senate, he correctly implied in his annual report on the federal judiciary, should put the nation's needs ahead of political chicanery. In the past, pleas for assistance in matters of this kind from the judicial branch to the legislative branch have gone pretty much unheeded. The Senate did as it pleased -- and approved nominees only when it saw fit. That is no longer an acceptable way to conduct business. Federal court dockets in many places are clogged because of past intransigence on the part of senators. Their persistent refusal to vote on judicial appointees who ideologies differ with their party's orientation has created a problem that is fast becoming a national scandal. To make matters worse, the new anti-terrorist laws enacted after Sept. 11 are already spawning litigation that will further tax the federal judicial system. Without the swift action sought by the chief justice, the situation is likely to worsen. In recent years, the Senate, regardless of the majority party, has preferred to play partisan politics with judicial nominations rather than responsibly fill its role in approving judges for the trial and appellate courts. It's time for those games to end. America and Americans are living in difficult times and it is more important than ever that the rule of law be paramount. The Senate can assure that it is by voting yea or nay on the judicial nominations when it returns to business on Jan. 23. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.6938-000001 18-2091-B-000179 Schauder, Andrew Schauder, Andrew Friday, January 25, 2002 3:21 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP); O'Brien, Pat; Comstock, Barbara; Koebele, Steve Subject: judicial media review Attachments: Judicial Media Review 1-24-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.7087 18-2091-B-000180 Media Review - Judicial Nominations Thursday, January 24, 2002 General Judicial Articles "Judicial Nominations Battle Resumes," Jesse Holland, Associated Press, January 24, 2002 3 "Bush’s Picks for Courts Under Attack," Tom Brune, Newsday, January 24, 2002 4 "President Picks Local Jurist for New Federal Judgeship," Jon Burstein and Rafael Lorente, Sun-Sentinel, January 24, 2002 5 "Liberals Challenge Judicial Nominee; Argue Bush Would ‘Pack Courts’ With Foes of Civil Rights," Audrey Hudson, The Washington Times, January 24, 2002 6 "Senators Protest Bush Judicial Pick; Murray, Cantwell Miffed at Selection Process, Say 8 They Won’t Back Leighton," Charles Pope, The Seattle Post-Intelligencer, January 24, 2002 "Bush Nominates Tacoma Lawyer to Federal Bench," Katherine Plfeger, The Associated Press, January 24, 2002 10 "Bush Nominates 3 for U.S. District Court," Torsten Ove, The Pittsburgh Post-Gazette, January 24, 3002 11 "Pickering Nomination for Federal Court Under Fire," Jason Straziuso, The Commercial Appeal, January 24, 2002 12 "Judicial Nominee to Face Questions About Enron Contributions," The Associated Press, January 23, 2002 14 "Texas Justice’s Enron Money Draws Criticism," Michelle Mittelstadt, The Dallas Morning News, January 23, 2002 15 "The Fall of Enron; Contributions at Issue in Judge Confirmation," Janet Elliot, The Houston Chronicle, January 23, 2002 16 "U.S. Bench Nomination Expected for Martinez," Jay Weaver, The Miami Herald, January 23, 2002 18 "Mays Tapped to Fill Bench; West Tennessee District Court Short-Handed," 20 1 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000181 James Brosnan, The Commercial Appeal, January, 24, 2002 "Nominations," City News Service, January 24, 2002 21 "Bush Names 2 for Judgeships in L.A. Courts; The President’s Picks Were Also Tapped by His Father, but no Hearings were Held," By Henry Weinstein, The Los Angeles Times, January 24, 2002 21 Op/Eds "Confirm Moderate Judges," Bill Lakin, The Los Angeles Times, January 24, 2002 23 "The Leahy Detainees," The Washington Times, January 24, 2002 23 "Bench Politics: Senate Stalls on Judges Who Would Uphold the Constitution," Roger Pilon, The CATO Institute, January 21, 2002 24 "‘There is a Purpose to Compromise in Judicial Nominations," Evan Schultz, The Fulton County Daily Report, January 23, 2002 27 Transcripts/Members of Congress "Senator Feinstein Statement on Nominations," Senator Feinstein Press Release, January 23, 2002 31 Interest Groups/Press Releases "People’s for Neas, Other Progressive Leaders Urge Senate Judiciary Committee to Reject Appeals Court Nominee Charles Pickering," Ralph Neas, People for the American Way, January 24, 2002 32 "Judicial Nominees Special Report: Our Courts at Risk," National Organization of Women, January 24, 2002 http://www.now.org/issues/legislat/nominees/index.html 35 "Statement of Kate Michelman Announcing Opposition to Judicial Nominee Charles Pickering," NARAL, January 22, 2002 35 "LLCR Opposes Pickering Nomination to Fifth Circuit- Serious Concerns About Nominee’s Civil Rights Record," 37 2 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000182 Leadership Conference on Civil Rights, January 24, 2002 "The Case Against the Confirmation of Charles W. Pickering, Sr." Independent Judiciary, January 24, 2002 39 General Judicial Articles Judicial Nominations Battle Resume By Jesse Holland Associated Press Thursday, January 24, 2002 Judicial nomination politics are back in full swing just two days into a new congressional year. Liberal groups are preparing attacks on one of President Bush's appellate court nominees, U.S. District Judge Charles Pickering of Mississippi, just as Republicans renew pressure on Democratic senators to move the president's nominees into the 101 vacancies in the federal judiciary system. Bush on Wednesday added 24 more U.S. District Court nominees to the 66 U.S. Appeals and District Court nominations that the Senate has not yet decided on. Republicans have complained that Democrats stalled Bush's judicial nominees after taking over the Senate in June, confirming just 28 of the president's first 94 nominations. Democrats say they moved as fast as they could, and that Republicans delayed former President Clinton's judicial nominees during his two terms in office. Republicans say Pickering is a prime example of how Democrats have treated Bush's nominees. "He's a classic case of how the committee has kicked the can down the road: 'Oh well, yes, we've had one hearing; we may need another one. Oh well, he got all his opinions; how about his unpublished opinions? Oh, by the way, how about his secretaries' notes?"' said Senate Republican Leader Trent Lott, R-Miss. "This is unnecessary and ridiculous harassment." Bush nominated Pickering to the Fifth U.S. Circuit Court of Appeals in New Orleans in May. But Democratic senators have been lobbied for months to block or stop the nomination. The nominee, the father of Rep. Chip Pickering, R-Miss., already had one nomination hearing in October, but Democrats have insisted on a second hearing to study his unpublished opinions on civil, reproductive and prisoner rights. L.A. Warren of the Mississippi branch of the National Association for the Advancement of Colored People said his group believes Pickering gave false testimony during his 1990 confirmation hearing to become a U.S. district judge. 3 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000183 According to Senate records reviewed by The Associated Press, Pickering testified he "never had any contact with the Sovereignty Commission," Mississippi's now-defunct segregation watchdog agency. However, a 1972 letter in the commission's files said Pickering, while a state senator, had "requested to be advised" by the commission about a group organizing pulpwood workers. Pickering said it would inappropriate for him to comment until his next hearing before the Senate Judiciary Committee. People for the American Way, the Leadership Conference on Civil Rights, the Alliance for Justice and the National Abortion Rights Action League are among the groups planning to speak out against Pickering in Washington Thursday. John Nowacki, deputy director for the conservative Free Congress Foundation's Center for Law and Democracy, said Pickering is a good choice. "They're trying to find something to latch onto to oppose nominees and they think they can pull this off," he said. "With Pickering, they think that they have something to hang their hats on, but when you look at it and look at it closely, there's really nothing there." Bush’s Picks for Courts Under Attack By Tom Brune Newsday Thursday, January 24, 2002 The fight over President George W. Bush's choices for federal judgeships, waged behind the scenes since the Sept. 11 attacks, will resurface today as liberal groups declare their first open war on a Bush judicial nomination. The liberals' target is Charles Pickering, a conservative Mississippi federal judge nominated to fill a vacancy on the Fifth Circuit Court of Appeals who also is a friend and political ally of Senate Minority Leader Trent Lott (R-Miss.). "This is likely to be the opening round in the judicial nomination battle," said Elliot Mincberg of People for the American Way, one of the liberal groups that will hold a news conference today to urge the Senate to reject Pickering's nomination. Pickering is just one of many of Bush's judicial nominees criticized as too conservative by People for the American Way and its allies; he became the first target because Lott is pushing hard for a hearing and confirmation vote, Mincberg said. Lott yesterday called for Pickering's confirmation by Presidents Day, Feb. 18. "He's eminently qualified, supported by a broad group of individuals in our state, including minorities and women and plaintiff's attorneys and defense attorneys, and Republicans and Democrats," Lott said. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000184 Even though the nation's attention was riveted on the Sept. 11 terrorist attacks and the government's frantic follow-up last fall, the ideological battle over Bush's judicial nominations quietly but heatedly continued in the background in the Senate. Bush has proved to be particularly eager to put his stamp on the federal court, which has more than 100 vacancies, or about 12 percent of the total judgeships. Yesterday, Bush announced 24 new judicial nominations, bringing his total to 90 during his first year in office. That is much faster than most of his recent predecessors. Twenty-eight of the nominees have been confirmed by the Senate, all but four of them since Sept. 11, after passing through the Senate Judiciary Committee controlled by Sen. Patrick Leahy (D-Vt.), according to a tally kept by the Justice Department. The nominations, hearings and confirmations have been fraught with political infighting and dramatic gestures. Last fall, as the U.S. war on terrorism hit high gear, Senate Republicans led by Lott took a break to make speeches condemning Democrats for not moving fast enough on Bush's choices for judges. Republicans even temporarily blocked the foreign appropriations bill sponsored by Leahy to force Democrats to move more quickly. Meanwhile, Leahy attempted to demonstrate his willingness to move ahead by holding a hearing on Pickering even though the Senate office buildings closed that day because of the anthrax scare. The hearing was held in the Capitol. Committee Democrats forced Pickering to provide more information and go through a second hearing because he has published only 95 opinions in 11 years on the bench. That's too few to determine his qualifications, said Sen. Charles Schumer (D-N.Y.). Republicans charged that Democrats were influenced by liberal groups. Pickering should be blocked because he "has a troubling record on civil rights and reproductive choice" that is "emblematic" of Bush nominees, according to Alliance for Justice. Leahy's committee is expected to hold a second hearing on Pickering the first week of February. President Picks Local Jurist for New Federal Judgeship By Jon Burstein and Rafael Lorente Sun-Sentinel Thursday, January 24, 2002 A Palm Beach County Circuit judge is one step closer to taking a seat on the federal bench. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000185 Circuit Judge Kenneth Marra was one of 24 judicial nominees for slots nationwide whose names were forwarded Wednesday by President Bush to Capitol Hill. The president has picked Marra to fill a newly created judgeship for the U.S. District Court for the Southern District of Florida. "I am humbled and honored by President Bush's nomination of me to a position on the United States District Court," Marra said in a statement. "I look forward to completing the nomination process before the United States Senate and to the many challenges that await me as a United States District Judge." Bush also nominated Miami lawyer Jose Martinez to replace Senior U.S. District Judge Edward Davis in Miami. Both nominees went through the 22-member Southern District Judicial Nominating Commission chaired by former Gov. Bob Martinez. They also have been interviewed and approved by Florida's Democratic U.S. Sens. Bob Graham and Bill Nelson. Support from home-state senators is crucial for nominees to successfully navigate the confirmation process. "Given their qualifications and with the support of those two home-state senators, I'm confident they will be confirmed quickly," said Alberto Gonzalez, White House legal counsel. Gonzalez said there is one more empty seat in the southern district that the White House hopes to fill soon. The lifetime appointments pay $150,000 a year. Marra, 50, has been a circuit judge since 1996, serving in the civil, family and criminal divisions. Before that, he spent 12 years practicing commercial litigation with the law firm of Nason, Gildan, Yeager, Gerson & White. The New York City native got an undergraduate degree from State University of New York, Stony Brook in 1973. He graduated first in his class at Stetson University College of Law in St. Petersburg in 1977. Liberals Challenge Judicial Nominee; Argue Bush Would ‘Pack’ Courts With Foes of Civil Rights By Audrey Hudson The Washington Times Thursday, January 24, 2002 Liberal groups today will highlight the record of a conservative judge as part of their campaign to tarnish President Bush's judicial nominees as right-wingers who will "seriously threaten the 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000186 rights of all Americans." Such organizations as People for the American Way, the National Abortion and Reproductive Rights Action League, the Alliance for Justice and the Leadership Conference on Civil Rights plan a press conference on the "problematic record" of Mississippi District Judge Charles W. Pickering. "Many of President Bush's nominees to the appellate courts, recommended by the Federalist Society and other right-wing advocates, have troubling records and could cause serious damage to our rights and liberties," the groups said in press statement. The report is expected to include criticism of the pro-life stance of Judge Pickering, who has been nominated to the 5th U.S. Circuit Court of Appeals. Judge Pickering was chairman of the first national Republican platform committee that called for a constitutional amendment to ban abortion. "The Senate should reject far-right court-packing efforts, and should withhold its consent from right-wing nominees who do not demonstrate a commitment to civil rights and liberties," the groups said. "More moderate, mainstream nominees who reflect genuine bipartisan consultation should receive priority in processing." The criticisms were dismissed by key Senate Republicans who said Judge Pickering had been approved by the American Bar Association. "He's eminently qualified, supported by a broad group of individuals in our state, including minorities and women and plaintiff's attorneys and defense attorneys, and Republicans and Democrats. He's an outstanding individual," said Senate Minority Leader Trent Lott, Mississippi Republican. Judge Pickering was nominated in June, and one hearing was held late last year. Another hearing is expected in the coming weeks, and Republicans are pushing for a vote before the Presidents Day recess next month. Democrats have stalled the vote by asking for additional information and notes, a tactic Mr. Lott describes as "a classic case of how the committee has kicked the can down the road." "This is unnecessary and ridiculous harassment, and I believe that he will get a hearing and he will be confirmed," Mr. Lott said. Mr. Bush nominated 64 judges last year, and 28 were confirmed. Yesterday, Mr. Bush nominated an additional 24 judges, bringing the total number now before the Senate to 60. The groups also are opposing the nominations of Carolyn Kuhl, a California state trial court judge, to the 9th U.S. Circuit Court of Appeals; Jeffrey Sutton to the 6th U.S. Circuit Court of Appeals; and Priscilla Owen, a justice on the Texas Supreme Court, to the 5th U.S. Circuit Court of Appeals. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000187 The chief criticism of these nominees is that all are members of the Federalist Society for Law and Public Policy, a group of conservatives and libertarians. According to the Federalist Web site (www.fed-soc.org), the group's mission "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Sen. Larry E. Craig, Idaho Republican and chairman of the Republican Policy Committee, said Mr. Bush "will appoint exactly who he wants to appoint." "That is the responsibility of the president; that is what happens when you win the presidency," Mr. Craig said. Mr. Craig said the organizations had the right to speak out but cautioned them to stick to the facts. "It's a tragic day in America when you can make political hay by failing to tell the truth," Mr. Craig said. Since December, the liberal groups and other feminist organizations have been plotting a "nasty and contentious fight" against Mr. Bush's judicial nominees who do not support abortion, according to a memo of the groups' meeting obtained by The Washington Times. The other organizations include the Ms. Foundation and the National Organization for Women. Senators Protest Bush Judicial Pick; Murray, Cantwell Miffed at Selection Process, Say They Won’t Back Leighton By Charles Pope The Seattle Post-Intelligencer Thursday, January 24, 2002 President Bush yesterday nominated Tacoma attorney Ronald Leighton to be a federal district judge for Western Washington, ignoring strenuous objections by the state's two senators who complained they weren't adequately consulted. Leighton was selected by an all-Republican selection committee formed with the White House's support by Rep. Jennifer Dunn, R-Wash. That angered Democratic Sens. Patty Murray and Maria Cantwell who said the nominee should be the product of a bipartisan panel. In a letter last month to White House counsel Alberto Gonzales, Murray and Cantwell said "we will not support any nominee for a Washington state federal bench vacancy who has not come through a bipartisan commission process." 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000188 That threat could stop Leighton in his tracks in the Senate, where a single objection is all that's required to derail a nomination. "I'm confident the Senate will not confirm a judicial nominee that does not have the support of the state's senators," Murray said. "This is not about Mr. Leighton. He may well be a good, qualified candidate for judge. I'm sorry he got caught up in the White House's inability to understand that the Senate has a role in confirming judges," Murray said. Murray added that the bipartisan system she used when Republican Slade Gorton served in the Senate would be a good model. That effort produced nominees that were supported by both parties and who enjoyed quick confirmation. That is not likely to happen this time. The nomination intensified a war of wills pitting Murray and Cantwell against Dunn and the White House. Murray insisted that the all-Republican committee broke a well-established practice of using a bipartisan panel to solicit potential nominees. But Dunn said Cantwell and Murray weren't excluded and were given an opportunity to be "equal partners" in the process. Leighton was one of four candidates selected by Dunn's committee. Aides to Dunn said that a complete resume of each candidate was provided to Murray and Cantwell along with an offer to comment. Dunn said neither senator offered any comment. Dunn praised the 50-year-old Leighton as a strong nominee whose ability and accomplishments shouldn't be overshadowed by a dispute over the process used to select him. "Sometimes senators make it sound like there is one system that has to be used," she said. "For the senators to use process as an excuse not to give the president his nominee is unfortunate." If confirmed, Leighton wold would replace Judge Robert Bryan at the federal court in Tacoma. Bryan announced last year he would take "senior status," meaning he no longer would hear a full docket of cases. A senior White House official, who spoke only on the condition he not be named, said the administration rejected a bipartisan commission because it would take too long. "There is a judicial vacancy crisis and the president wants to move rapidly," the official said. "This one has been vacant too long." Murray disputed that claim, saying she, Cantwell and Dunn have been in discussions for a year in an effort to reach agreement on a method for picking judicial nominees. The White House official added that Leighton is "superbly qualified" and urged that the Senate consider his qualifications rather than how he was selected. "We're confident he is of such high quality that no matter what the process, Ron Leighton would have been at the top of the list." 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000189 This latest dustup is not entirely new for Leighton. In 1992 President George Bush nominated him to be a federal judge. That nomination was delayed and ultimately dropped after Bill Clinton was elected president. Bush Nominates Tacoma Lawyer to Federal Bench By Katherine Pfleger The Associated Press Thursday, January 24, 2002 President Bush has nominated Tacoma, Wash., lawyer Ronald Leighton to be a federal district judge in Western Washington, over the protests of the state's U.S. senators who say they were excluded from the selection process. Democratic Sens. Patty Murray and Maria Cantwell have promised to block the nomination with procedural moves unless the White House uses a bipartisan commission to find a replacement for Judge Robert J. Bryan at the U.S. District Court in Tacoma. For instance, Murray has said she will put a "hold" on Leighton's nomination - a maneuver that would prevent the Senate from voting on a judge. Her spokesman Todd Webster said Murray has been "crystal clear" that any nominee must come from a commission made up of Republicans and Democrats. "This is a tradition that has served the people of Washington state in getting even-tempered, qualified, balanced judges for lifetime appointments," Webster said Wednesday. Though the nomination appeared headed for a deadlock, a senior White House official, speaking on condition of anonymity, said the administration is hopeful Leighton will be approved. "We think, in the end, the Senate's job ... is to focus on the qualifications," the official said. "Mr. Leighton is just an absolute A-plus nominee." Murray and Cantwell have been sparring with the White House for nearly a year about how the opening would be filled. At the White House's direction, Rep. Jennifer Dunn, R-Wash., formed a Republican selection committee, even though the senators considered the negotiations ongoing. Dunn said Leighton is a strong candidate who has been vetted twice for federal judicial openings but never approved. She said the senators were invited to appoint people to an evenly divided bipartisan selection commission but the senators didn't want to be bound by the commission's final four candidates. Murray and Cantwell "have chosen to use a process excuse," Dunn said. "Going backward (with a new commission) would not solve the problem." Cantwell is a member of the Judiciary Committee, responsible for screening federal judicial 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000190 nominees. Her spokesman Jed Lewison said she is "in sync" with Murray on the need for a bipartisan commission. Cantwell "will take the necessary actions to make sure that a bipartisan process is the one that is used," Lewison said. Presidents historically have listened to the wishes of home-state senators when filling judicial vacancies. However, three states - Washington, California and Wisconsin - have instead used commissions made up of Republicans and Democrats to fill openings. White House Counsel Alberto Gonzales has called the states "isolated exceptions." He has said Bush is not generally supportive of the commissions, though he would be willing to use them under conditions that Murray and Cantwell found objectionable. Leighton's nomination comes as Bush is working to fill 101 federal judicial openings, including 70 in U.S. district courts. The opening in Tacoma was created a year ago when Bryan took "senior status," a type of semiretirement that allowed him to significantly limit his cases, though he is carrying a full load until a successor is named. In a phone interview, Leighton said he asked to be considered because he would love the job, but was cautious about how his nomination would work out. "The process is a difficult one and fraught with issues that don't involve me," he said. Leighton is a partner with the Seattle-area law firm of Gordon Thomas Honeywell Malanca Peterson & Danheim. Bush Names 3 to U.S. District Court By Torsten Ove The Pittsburgh Post-Gazette Thursday, January 24, 2002 President Bush yesterday nominated three local lawyers to judgeships in U.S. District Court. Bush named Joy Flowers Conti and Art Schwab, both lawyers at the Downtown firm of Buchanan Ingersoll, and Allegheny County Solicitor Terry McVerry to fill long-standing vacancies on the federal bench. The three must be confirmed by the U.S. Senate, a lengthy process that could be dragged out because of a backlog of nearly 70 other nominees for federal judgeships. "I'm expecting it could be months," said Conti, who said she was honored to have been chosen 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000191 and promised to do her best as a federal judge. Schwab said he is eager to serve, too. "My family and I are very joyful," he said. "I'm looking forward to being of service in Western Pennsylvania." McVerry couldn't be reached yesterday. The Western District of Pennsylvania has been short of its full complement of 10 judges for years. Currently there are four vacancies. When U.S. District Judge William Standish takes senior status in March, it will be five. And when U.S. District Judge D. Brooks Smith is confirmed by the Senate for a position on the 3rd U.S. Circuit Court of Appeals, it will be six. The filling of judicial vacancies nationwide has been hindered repeatedly by partisan bickering. The delay in getting local judgeships filled was rooted in a political dispute between former President Clinton and Pennsylvania's Republican senators, Rick Santorum and Arlen Specter. But now the process seems to be moving forward. "It's a real breakthrough," said Schwab. Schwab is chief counsel for complex litigation at Buchanan Ingersoll. A 1968 graduate of Grove City College, he received his law degree from the University of Virginia in 1972. Conti, a 1973 graduate of Duquesne University law school, is a former tenured professor of law at Duquesne and taught courses on corporations, corporate finance, corporate reorganizations and bankruptcy. McVerry, a former state legislator, worked as an assistant district attorney and is a former Allegheny County Common Pleas judge. Pickering Nomination for Federal Court Under Fire By Jason Straziuso The Commercial Appeal Thursday, January 24, 2002 Some advocacy groups are challenging a Bush nominee for a federal appeals court job, claiming the Mississippi judge gave false testimony when he became a district judge a decade ago. Charles Pickering, a former state senator and the father of Rep. Chip Pickering (R-Miss.), also has come under fire for some of his rulings and his votes in the Legislature during the 1970s. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000192 Senate Minority Leader Trent Lott says Pickering has the support of key Senate Democrats and will have a second hearing before the Senate Judiciary Committee in the next two weeks, following an initial hearing in October. Pickering has been nominated for a seat on the Fifth U.S. Circuit Court of Appeals in New Orleans. L. A. Warren of the Mississippi NAACP legal division said his group believes Pickering gave false testimony to the Senate during his 1990 confirmation hearing to become a federal judge. During that hearing, according to Senate records reviewed by The Associated Press, Pickering testified he "never had any contact with the Sovereignty Commission," Mississippi's nowdefunct segregation watchdog agency. However, a 1972 letter in the Sovereignty Commission files includes a reference to three thenstate senators, including Pickering, saying they "requested to be advised" about a group organizing pulpwood workers in the state. The Sovereignty Commission was established in the 1950s to spy on individuals and groups who might threaten the state's official policy of segregation. Its agents also kept tabs on organizations it felt had Communist leanings. The 1972 letter was addressed to the commission's director, W. Webb Burke, from Edgar C. Fortenberry, one of its investigators assigned to southern Mississippi. Fortenberry's letter did not identify to whom Pickering's request was made. There was no other documentation in the files to indicate Pickering had direct contact with the commission, which ceased functioning in 1973. Pickering served in the Mississippi Senate from 1972 to 1980. Pickering, who was given a "well qualified" rating by the American Bar Association, told AP in a telephone interview he was aware of the issues likely to be brought up at his next hearing. "It is not appropriate for me to comment on the Sovereignty Commission issue or any other issue until I appear before the Judiciary Committee," he said. Lott (R-Miss.) said he has received "commitments of support" for Pickering from Sens. Patrick Leahy (D-Vt.) the Judiciary Committee Chairman, and Sen. Tom Daschle, the Senate Majority Leader. "I've been assured they're going to vote on him in early February and he'll be confirmed overwhelmingly," he said. Lott also said Pickering had "broad support" politically. Mimi Devlin, a spokesman for the Senate Judiciary Committee, said "no such promises or confirmations from Senator Leahy" were given to Lott. No date has been set for a second 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000193 hearing, she said. The Alliance for Justice, a Washington-based association of advocacy organizations, has monitored judicial nominees since 1984. The self-described "progressive" group on Thursday plans to highlight Pickering's record, which it calls anti-women and anti-minority. The alliance points to Pickering's political record from the 1970s, including his votes for a Republican Party platform against abortion rights, and his votes as a state senator in the voting rights arena. Judicial Nominee to Face Questions About Enron Contributions The Associated Press Wednesday, January 23, 2002 A federal judicial nominee who wrote a ruling favorable to Enron Corp. after taking campaign money from the now-bankrupt energy trader will get close scrutiny, Vermont Sen. Patrick Leahy said. Texas Supreme Court Justice Priscilla Owen wrote a unanimous ruling that saved Enron $225,000 in taxes, two years after taking $8,600 in campaign contributions from the company, according to the watchdog group Texans for Public Justice. President Bush has tapped Owen to become a member of the 5th U.S. Circuit Court of Appeals in New Orleans. She has been awaiting Senate confirmation. "The Senate will look at Justice Owen's Enron rulings as part of her overall record," Leahy told The Dallas Morning News in Wednesday's editions. "She has a right to take contributions, but any judge - liberal or conservative - faces the legitimate question about whether a contribution influenced their thinking," said Leahy, a Democrat. Owen, a Republican, was the author of a unanimous Texas Supreme Court opinion in 1996 that settled a tax issue in Enron's favor. The opinion rejected the Spring Independent School District's argument that the Enron natural gas inventory should be assessed at a value $15 million higher than stated by the company. That decision spared Enron $225,000 in taxes. It came two years after Owen accepted $8,600 in Enron contributions, according to Texans for Public Justice. The nonprofit group tracks campaign spending. Owen has not fielded questions regarding the Enron contribution or her judicial decisions. Texas Justice’s Enron Money Draws Criticism 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000194 By Michelle Mittelstadt The Dallas Morning News Wednesday, January 23, 2002 An Enron scandal that has proved nettlesome to the executive and legislative branches now is spilling over to the judiciary, with word that a prospect for a prestigious federal appellate court seat received Enron campaign contributions and later authored a Texas Supreme Court opinion favorable to the bankrupt energy trader. Senators "undoubtedly" will examine Texas Supreme Court Justice Priscilla Owen's dealings with Enron when her nomination to the 5th U.S. Circuit Court of Appeals is considered, the Senate Judiciary Committee chairman said Tuesday. "The Senate will look at Justice Owen's Enron rulings as part of her overall record," said Sen. Patrick Leahy, D-Vt. "She has a right to take contributions, but any judge liberal or conservative faces the legitimate question about whether a contribution influenced their thinking." The Republican justice was the author of a unanimous Texas Supreme Court opinion in 1996 that settled an arcane tax issue in Enron's favor, rejecting the Spring Independent School District's argument that the Enron natural gas inventory should be assessed at a value $15 million higher than stated by the company. That ruling, which spared Enron $225,000 in taxes, came two years after she accepted $8,600 in Enron contributions, said Texans for Public Justice, a nonprofit group that tracks campaign spending. Liberal advocacy organizations, which already have been geared up for a fight over the Owen nomination, said her Enron ties raise questions about the conservative jurist's candidacy. "We're talking about a candidate to the second-highest court in the land and for a lifetime appointment," said Nan Aron, president of the Alliance for Justice, which calls Justice Owen and other Bush judicial nominees too extreme. "Already there are several major questions that have been raised concerning her overall bias, as revealed in her opinions in favor of wealthy and powerful interests. "She will have a very, very tough road ahead." The judiciary committee has yet to schedule hearings on Justice Owen's nomination. "I'm not at all saying this is a total disqualification . . . but it is an additional factor that makes her all the more controversial," said Elliot Mincberg, legal director of People for the American Way. Justice Owen was not fielding questions, but her defenders rejected the notion that the donations should disqualify her. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000195 "Absolutely not," said Sen. Phil Gramm, R-Texas. At the White House, the Owen criticism was dismissed as partisan posturing. "Judge Owen is a person of the highest integrity, who is extremely well qualified," said White House spokesman Scott McClellan. Mr. Gramm noted that Enron, once one of Texas' largest companies, gave to many candidates. That's the problem, said Craig McDonald, noting that Texas, unlike most states, elects judges and allows them to take contributions from law firms and other interested parties. A Texans for Public Justice study estimates that 43 percent of Justice Owen's campaign contributions have come from interests that have done business before the state's highest court. Since 1993, Enron has contributed $134,000 to Texas Supreme Court members, the group says. "We're all victims of our times, and the Enron scandal has probably just increased the scrutiny over this practice," McDonald said. While Justice Owen is precluded by judicial ethics from discussing her 1996 opinion, Supreme Court spokesman Osler McCarthy, who spoke for her, said the criticism directed at her was partisan gamemanship. Her ruling, in a 9-0 decision, affirmed the constitutionality of a law passed 171-1 in the Texas House and 30-1 in the state Senate, he said. The Fall of Enron; Contributions at Issue in Judge’s Confirmation By Janet Elliot The Houston Chronicle Wednesday, January 2002 Enron's political contributions have become an issue in the confirmation battle involving a Texas Supreme Court justice who has been nominated to a federal appellate bench. Liberal groups concerned about President Bush's nomination of Justice Priscilla Owen to a vacancy on the 5th U.S. Circuit Court of Appeals have seized on a 1996 opinion that saved Enron hundreds of thousands of dollars in property taxes. Owen took $ 8,700 in contributions from Enron's political action committee and executives during her 1994 election campaign. "Now that the Enron scandal has every politician scrambling to clear their name of Enron contributions, I think that the money absolutely will be a key issue in Owen's confirmation," said Craig McDonald, director of Texans for Public Justice, which monitors campaign contributions. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000196 Owen is one of the most conservative members of the all-Republican Supreme Court. The tax case involved a dispute with Spring Independent School District over the date on which Enron would inventory natural gas stored in a salt dome facility. The inventory volume differed by $ 15 million worth of gas between Sept. 1, 1989, and Jan. 1, 1990. Because Enron elected to use the earlier appraisal, the school district claimed it lost $ 225,000 in tax revenue. Owen wrote the opinion for a unanimous court that reversed a ruling by Houston's 14th Court of Appeals that a law classifying inventory separately from other property was unconstitutional. "The winter months are typically a period of peak demand for natural gas. It is not arbitrary or capricious for the Legislature to permit the taxable value of natural gas inventories to be determined on a date other than January 1, when inventories may be higher than at other times of the year," wrote Owen. Owen's opinion stated that the lost tax revenue was $ 15 million, but she apparently confused the tax loss with the difference in valuation, said Osler McCarthy, a spokesman for the Supreme Court. McCarthy said the case was a "pretty routine tax case soundly decided based on U.S. Supreme Court precedent." The school district and its lawyers declined comment on the case. But a lawyer who represented Enron said he's offended at the suggestion that the court decided the case on anything other than the law. "We won that thing on the merits. That was a clear case of interpretation of legislative ability to give taxpayers the opportunity to reduce their tax burden," said Berry Bowen, a Houston solo practitioner who worked in Enron's legal department from 1990 to 1995. Elliot Mincberg, legal director of People for the American Way, a group that monitors judicial nominations, said Owen's authoring of an opinion after accepting a political contribution "raises an issue about the appearance of impropriety." "It would be equally a problem if it wasn't Enron. It's an issue regardless of who the corporate contributor would be," said Mincberg, whose group has expressed concern but not opposed Owen. Last May, Bush nominated Owen to the New Orleans-based court, which hears appeals from Texas, Louisiana and Mississippi. The Senate Judiciary Committee has not yet scheduled a hearing on her nomination. In another 1996 case involving Enron, Owen recused herself. McCarthy, the court spokesman, said she apparently recused herself because her former law 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000197 firm, Andrews & Kurth, was involved in the case. Justices can legally accept donations from lawyers or parties with cases before the court. Texas has been regularly criticized for its high-dollar Supreme Court races. "Nobody on this court is going to dispute that the system is broken and needs to be corrected. But it's the system we have until the Texas Legislature gives Texas voters the chance to change it," said McCarthy. U.S. Bench Nomination Expected for Martinez By Jay Weaver The Miami Herald Wednesday, January 23, 2002 President Bush is expected to nominate Jose "Joe" Martinez as a Miami federal judge as soon as today, capping his career as a legal Naval officer, U.S. prosecutor, drug-enforcement director and top civil lawyer. The affable Martinez would also bring a sports fanatic's perspective to the bench. Next to the law, his real passion is his alma mater, the University of Miami. He's crazy about UM baseball, and he calls the Canes football games in Spanish on the Archdiocese of Miami's radio station, WACC. Martinez, born in the Dominican Republic and raised in Miami, was the front-runner over Miami-Dade Circuit Judge Jerald Bagley and Miami federal Magistrate Ted Bandstra, according to sources familiar with the nomination. The lifetime appointment to the Miami federal seat, which pays $150,000 a year and had been occupied by U.S. District Judge Edward Davis for 21 years, must be confirmed by the U.S. Senate. "His dedication to this country and this community is incredible," said Thomas D. Wood Sr., a UM trustee. He was Martinez's Naval Reserve commander in 1977 when both went to the U.S. base in Guantanamo Bay to provide legal assistance to military personnel. "I've never heard him say an ugly word about anyone," said Wood. "Liking people is what enables him to help people." Martinez, 60, declined to comment about his imminent nomination, saying it would be "inappropriate." The White House, which has scheduled a press conference for today on federal judicial nominations, wouldn't comment either. Martinez, a Republican, was recommended along with Bagley and Bandstra as finalists last summer for Davis' position by the 22-member Federal Judicial Nominating Commission. The Florida panel's chairman, Roberto Martinez, a former U.S. attorney in Miami, said they were interviewed by the state's Democratic U.S. senators, Bill Nelson and Bob Graham, and then the White House. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000198 Joe Martinez came close to being nominated for the federal bench in 1992, when thenRepublican Sen. Connie Mack recommended him to President George Bush. But when Bill Clinton won the White House, Martinez's bid for the bench came to a halt. This time, his appointment seems certain. Davis, now chairman of Florida litigation for the Miami-based law firm, Akerman Senterfitt, described Martinez as a "real trial lawyer" who would make a popular choice to replace him. "He'll come on well prepared for the federal job," Davis said. "He's well liked by people who do business with him. You can rely on his word." Said past Florida Bar President Herman Russomanno: "He has the virtues of a federal judge integrity, honesty, high moral standards and what I refer to as open-mindedness and impartiality." Martinez's life is an immigrant's success story. His parents left the Dominican Republican with Martinez, his sister and their grandmother at the end of World War II. They first settled in New York City, but relocated to Miami in 1949. His father, though a lawyer in the Dominican Republican, launched an import-export business here. Young Martinez worked his way through the University of Miami, studying marketing. He dreamed of becoming a Naval pilot, but that was dashed. He reset his sights on law school at UM, graduating in 1965, and married his wife, Mary Anne, the following year. His first job was as a Naval officer in the Judge Advocate General Corps in Key West. After he left active duty in 1968, he joined the Reserves and retired decades later as a captain. Martinez quickly made his mark as an assistant U.S. prosecutor in the late 1960s - an era when the nation's war on drugs was in its infancy in Miami. He was tapped to become the regional director of the Office for Drug Abuse Law Enforcement in 1972. "We were looking for an experienced person who was liked by the agents but also one who was tough enough and could not be conned by the agents," said former ODALE Deputy Director John R. Bartels Jr. "Joe was heads and tails above everyone else in Florida. His name kept coming up." Since the mid-1970s, Martinez has still kept his hand in criminal law, from tax evasion to racketeering cases. But he has been more active as a corporate civil lawyer, including major product-liability trials, such as the Florida class-action lawsuit against Philip Morris. Martinez, a father of two grown daughters, lives in Coral Gables. 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000199 Mays Tapped to Fill Bench; West Tennessee District Court Short-Handed By James Brosnan The Commercial Appeal Thursday, January, 24, 2002 President Bush Thursday nominated Memphis lawyer Hardy Mays to the depleted U.S. District Court for West Tennessee. Mays, 54, is a partner at Baker Donelson Bearman and Caldwell, and is a former chief of staff to Gov. Don Sundquist. The Mays nomination came almost two years after the death of Judge Jerome Turner and six months after Mays was recommended for the vacancy by Tennessee's two Republican senators, Fred Thompson and Bill Frist. The district court also has been further short-handed because of the forced six-month leave of absence of Judge Jon McCalla, who last year admitted "improper and intemperate conduct." His absence has created more work for judges Bernice Donald and Julia Gibbons, who is awaiting Senate action on her nomination to the Sixth Circuit Court of Appeals. The other district judge, James Todd, mostly hears cases in Jackson. "I'm grateful the President has confidence in me and I hope to justify that," said Mays. "If and when the Senate sees fit to confirm me, I'm ready to go to work." When the Senate will act is uncertain. Thompson indicated Thursday he would like to press the Gibbons nomination first. "We're going to work on it. We've got a big problem with the Sixth Circuit," said Thompson. The Cincinnati appellate court is down to half its usual complement of 16 judges. None of Bush's nominees has been approved, in part because Michigan's Democratic senators have a "hold" on the Michigan nominees. Nationwide, only one of Bush's 23 circuit court nominees has gotten a hearing from the Judiciary Committee, Sen. Don Nickles) (R-Okla.) noted Thursday. Today, four liberal groups are expected to announce opposition to the nomination of U.S. Dist. Judge Charles Pickering of Laurel, Miss., to the Fifth Circuit Court of Appeals. Nominations City News Service 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000200 Thursday, November 24, 2002 Two lawyers who are former federal prosecutors were nominated by President Bush for positions as U.S. District Court judges. Bush yesterday named Percy Anderson, 52, a partner at Sonnenschein, Nath & Rosenthal, and John Walter, 57, senior partner at Walter, Finestone & Richter, a firm that he founded. They are the president's first nominations for the District Court in Los Angeles, which has six vacancies. There are 21 federal trial judges in Los Angeles. Anderson and Walter were nominated for federal judgeships by Bush's father in 1992, but their nominations died without a hearing as the confirmation process ground to a halt in the closing months of the senior Bush's presidency, the Los Angeles Times reported. Last year, Anderson and Walter were unanimously recommended for the judgeships by a sixmember screening committee of both Democratic and Republican attorneys. Anderson, born and raised in California, graduated from UCLA and UCLA Law School. He worked for two years at San Fernando Valley Legal Assistance before joining the U.S. attorney's office in 1979. Most recently, Anderson has done civil litigation and white-collar criminal defense work. Walter, a native of Buffalo, N.Y., graduated from Loyola University and Loyola Law School. He was a federal prosecutor from 1970 to 1972. After his government service, he joined a large national firm before founding his own firm. Bush Names 2 for Judgeships in L.A. Courts: The President’s Picks Were Also Tapped Bu His Father, but no Hearings were Held By Henry Weinstein The Los Angeles Times Thursday, January 24, 2001 President Bush on Wednesday nominated two Republican attorneys from Los Angeles who are former federal prosecutors for prestigious positions as U.S. District Court judges. Bush tapped Percy Anderson, 52, a partner at Sonnenschein, Nath & Rosenthal, and John F. Walter, 57, senior partner at Walter, Finestone & Richter, a firm that he founded. They are the president's first nominations for the District Court in Los Angeles, which has six vacancies and where judges are carrying heavy caseloads. There are 21 federal trial judges in Los Angeles. Anderson and Walter were nominated for federal judgeships by Bush's father in 1992, but their nominations died without a hearing as the confirmation process ground to a halt in the closing months of his presidency. 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000201 Last year, Anderson and Walter were unanimously recommended for the judgeships by a sixmember screening committee of Democratic and Republican attorneys that was created by representatives of the Bush administration and California's two Democratic senators, Barbara Boxer and Dianne Feinstein. The nominations were among 24 Bush sent to the Senate on Wednesday for judgeships around the country. In recent weeks, Bush has complained about the pace of the confirmation process. When the Senate adjourned Dec. 20, it had confirmed just 28 federal judges. Before Wednesday's action by Bush, there were 23 nominations to federal appeals courts and 14 nominations to District Courts. Both California senators issued statements praising the nominees, which should enhance their prospects for a swift confirmation, said Gerald Parsky, the West Los Angeles attorney who heads Bush's California judicial screening team. "Mr. Walter and Mr. Anderson both demonstrated strong skills and qualifications to the advisory committee and this bodes well for the nomination process in the Senate," Feinstein said. Boxer added: "Both are very well qualified to serve on the federal bench." Walter, a native of Buffalo, N.Y., graduated from Loyola University and Loyola Law School. He was a federal prosecutor from 1970 to 1972 and obtained a conviction in a well-known case involving a group of sophisticated burglars who broke into a Laguna Niguel bank, rifled every safe deposit box and got away with millions of dollars. After his government service, Walter joined a large national law firm and then founded his firm, specializing in complex civil cases. Anderson, born and raised in California, graduated from UCLA and UCLA Law School. He worked for two years at San Fernando Valley Neighborhood Legal Assistance before joining the U.S. attorney's office in 1979. Perhaps his most noteworthy case as a government lawyer was the successful 1985 prosecution of Thomas P. Cavanaugh, an engineer who tried to sell the Soviets information about the U.S. Air Force's stealth technology, which makes airplanes invisible to radar. Cavanaugh received a life sentence. Anderson recently has done civil litigation and white-collar criminal defense work. In addition, he served on the Christopher Commission, which investigated the Los Angeles Police Department in the aftermath of the 1992 riots. Los Angeles attorney Jan L. Handzlik, who knows both nominees, said they deserve swift confirmation. "They were bridesmaids before," Handzlik said. "Hopefully, the ceremony will be completed this time." Op/Eds Confirm Moderate Judges 22 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000202 By Bill Lakin The Los Angeles Times Thursday, January 24, 2002 The current impasse in the Senate approval of federal appellate court judges isn't about payback or politics, and it isn't a "game," as suggested in the headline of your Jan. 21 editorial, "Judgeship Game Cycles On." It's about not confirming judges who would set the country's laws back 200 years. The judicial nominees sent down by President Bush were handpicked by the ultra-right-wing Federalist Society, a group of lawyers so extreme they advocate rolling back the law to the 18th century. I don't believe these kinds of people should be part of our judiciary. The Times recommends bringing all candidates to an immediate Senate confirmation vote. But that's only a short-term solution and won't fix the problem. Bush should no longer rely on advice from his handlers and should stop being the front man for the Federalist Society. He should withdraw these nominations, go back to using the American Bar Assn.'s recommendations (as our past presidents did) and nominate moderates--Democrat or Republican. The Leahy Detainees The Washington Times Thursday, January 24, 2001 President Bush is planning to place still more human beings into that punishing state of incarceration we've been hearing so much about of late, but Amnesty International won't be staging any protests. Nor will Ramsey Clark be filing suit. The shameful fact is that no humanrights group cares enough to speak out on behalf of this newest lot of detainees - judicial detainees, that is - and the Leahy limbo of neglect and stagnation they now prepare to enter. We used to call such people judicial nominees, but that was back when the federal judicial confirmation process had a beginning, a middle and an end. Since Sen. Patrick Leahy, Vermont Democrat, assumed control of the Judiciary Committee gavel, however, the process has undergone a few fundamental changes. The beginning remains reassuringly the same: Mr. Leahy still allows the president to appoint judges to the federal bench, which is really quite accommodating of him when you think about it. But the middle (the committee hearing) is a dicey thing, and the end (the floor vote) is nowhere in sight. Hence the change in terminology from judicial nominee to Leahy detainee. It could be that one day we look back upon the Democratic delaying tactics of the last session and see a game of "Mother, May I" next to the mass obstructionism Senate Democrats seem to have in store for the new Congress. Since the president appointed Otto Reich assistant secretary of state for Western Hemisphere affairs and Eugene Scalia solicitor of the Labor Department earlier this month - after Mr. Reich was "detained" for some nine months by the Senate Foreign Relations Committee without a hearing, and Mr. Scalia was denied a floor vote by Senate Majority Leader Tom Daschle - the rhetoric among Senate Democrats regarding all White House 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000203 appointees, from ambassadors to humanitarian aid workers to judges, has become downright alarming. As Sen. Joseph Biden put it on NBC's "Meet the Press," even before Mr. Bush made the two recess appointments, several Democratic senators came to him and said, "Communicate to the president that if he does this, we will retaliate with regard to the rest of his nominations." Sounds like tough-guy, take-no-prisoners talk. But whose side are the Democrats on? By refusing to confirm assorted key players on Mr. Bush's foreign policy team, and by refusing to move forward on dozens of federal judicial nominees urgently needed to fill a precarious 11 percent (and growing) vacancy rate in the federal judiciary, Senate Democrats cannot be said to be fighting for the American people. They are fighting for themselves and their prerogatives not exactly the noblest causes up for grabs at the moment - and if they win, the country loses. Meanwhile, scores of Americans, willing and able to serve their country, will only be able to serve time. Bench Politics: Senate Stalls on Judges Who Would Uphold the Constitution By Roger Pilon The CATO Institute Monday, January 21, 2002 Should the Senate Judiciary Committee grill nominees for the federal courts about their ideology and then reject those who fail an ideological litmus test? The implications are breathtaking. Yet Senate Democrats appear prepared to do that-or to reject nominees outright, without a hearing, based simply on their perceived "ideology." The roots of this effort are deep, going back a century, but the proximate cause is Bush v. Gore. Just after the decision came down, the legal academy, overwhelmingly Democratic if not leftist, exploded in a torrent of anger. Some 550 professors from 120 law schools ran a full-page ad in The New York Times a year ago claiming that the Court's majority had acted as "political proponents for candidate Bush, not as judges." In op-eds, .articles, books, and TV appearances, the venom poured forth. Yale Law School's Bruce Ackerman went so far as to urge Senate Democrats to reject every judicial nominee that the illegitimate President George W. Bush offered up. They haven't done that, but they're certainly in a confirmation stall. Since Bush took office, there have been 128 vacancies on the 862-member Article III courts. To date, Bush has nominated 65 candidates to fill those vacancies. Only 28 have been confirmed, leaving 100 empty seats, 39 of which are judicial emergency vacancies according to the Administrative Office of the U.S. Courts. On the U.S. Court of Appeals for the 6th Circuit, half the seats today are empty. In fact, the stall is most evident at the circuit level. Only six of Bush's 29 circuit court nominees have been confirmed, and two of those were Clinton holdovers, re-nominated as a gesture to the Democrats. More telling still, 11 of those nominees have been hanging since May, never having had a hearing, much less a vote. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000204 And we're not talking here about political hacks. Miguel Estrada, Michael McConnell, John Roberts Jr., Jeffrey Sutton-those are just some of the stellar appellate nominees whose names have been before the Senate since May. Their problem, it seems, is that they cannot get through the Democrats ideological filter. Those are some of the same Democrats, recall, who condemned Reagan Republicans for their alleged use of a pro-life litmus test, despite having no evidence of the practice. What is plain now is that it's not the use of a litmus test that troubles Democrats, but the content of such a test. And they're not at all reluctant to give evidence of their own test. ‘CORE VALUES’ REVEALED Last June, Sen. Charles Schumer, chairman of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, wrote an op-ed for The New York Times, "Judging by Ideology," which appeared on the same day he held hearings on whether ideology should play a role in the selection and confirmation of judges. He concluded it should, to no one's surprise. In fact, Schumer gave us a three-part test for determining when to invoke ideology: "the extent to which the president himself makes his initial selections on the basis of a particular ideology, the composition of the courts at the time of the nomination and the political climate of the day." One looks in vain for bright lines in that test. Schumer's aim, however, is clear. It is, expressly, to keep conservatives like Justices Antonio Scalia and Clarence Thomas off our courts. "The Supreme Court's recent 5-4 decisions that constrain Congressional power," Schumer wrote, "are probably the best evidence that the court is dominated by conservatives." Thus, "tilting the court further to the right would push our court sharply away from the core values held by most of our country's citizens." Never mind, apparently, what the law might say about the scope of congressional power-or anything else, for that matter. What counts, rather, is our citizens' "core values." That glimpse of the Democratic agenda was embellished two months later, again just prior to another Schumer hearing on ideology, when party elder Joseph Califano Jr. wrote an op-ed for The Washington Post, "Yes, Litmus-Test Judges." Complaining that gridlock and big money have long kept Congress from legislating on a wide range of urgent matters, Califano noted that concerned citizens have been petitioning the courts with matters they once took to the political branches, making the courts "increasingly powerful architects of public policy." Indeed, "who sits in federal district and appellate courts is more important than the struggle over the budget" or virtually anything else today in Washington. For we've all learned, Califano continued, "that what can't be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits." "The Senate, therefore. needs to decide, on explicitly ideological grounds, who will be "setting national policy" from the bench. There you have it. Everything is politics. Nothing is principle. Judges don't simply apply law. Sympathetic judges make law, like so many legislators, setting national policy in the process. 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000205 Meanwhile, our nominal legislators in tile Senate are reduced to vetting our true rulers. Interestingly, the Constitution, which spells out the actual separation of powers. is mentioned not once in Califano's piece. Doubtless, it is an embarrassment, utterly inconsistent with his picture of a thoroughly politicized judiciary. LOSING SIGHT OF LIMITS Yet for all that, Califano’s picture is too close to the truth to be ignored. He's put his finger on just why the confirmation battles today loom so large. What he and his Democratic colleagues have failed to do, however, is explain, much less justify, this flight from constitutional principle. To get at that, we have to go further back. The main origins of the problem lie in the Progressive Era, when the social engineers of the time often sought to do through government what the Constitution plainly left to the private sector. Things came to a head during the New Deal when a frustrated Franklin Roosevelt attempted to pack the Supreme Court. The scheme failed, but FDR won the day when a cowed Court began rethinking the Constitution, effectively eviscerating constitutional limits on federal power. Although the Court that emerged was called "restrained"-by virtue of its deference to the political branches-it was in truth, activist-finding congressional and executive powers nowhere granted, ignoring rights plainly in the Constitution. And the Court's rethinking led ineluctably to a general shift of power to the judicial branch. The shift had two aspects. First, with the political branches now free to rule almost every aspect of our lives, it was only a matter of of time before their ever- expanding product ended up in the courts, with the courts asked to sort out the mess that Congress was making. But those who promoted such schemes didn't always win in the political branches. Thus, second, when they lost, they turned increasingly to the courts, trying to win from sympathetic judges what they had failed to win politically. And the Earl Warren and Warren Burger Courts, already deferring to the political pursuit of "social justice," were only too willing to step into the fray, thinking themselves a legislature of nine. The Rehnquist Court, by contrast, has taken modest steps over the past decade toward resurrecting constitutional principles of limited government. However modest, those steps have alarmed liberal Democrats. They can't imagine anyone thinking that Congress' powers are limited; that if an end is worthy, Congress still might not have the power to pursue it; that James Madison might have meant it when he said that the powers of the new government would be "few and defined." Thus, when Democrats seek today to subject judicial nominees to an ideological litmus test, they're continuing the work of an earlier generation of their party. The test they would impose has little to do with law or with the ideology of the Constitution-a document understood for 150 years as having instituted limited government. Rather, it has to do with whether the nominee subscribes to the version of the Constitution that the 1937-38 Court invented to allow the modem welfare state to bloom. That version, which encourages judges both to ignore limits on power and to find rights nowhere to be found, requires a judge to be sensitive to "evolving social values"- sometimes even before they’ve evolved. 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000206 Having earlier Politicized the Constitution, Democrats are now bent on politicizing the judiciary. If they succeed, it will mark the triumph of ideology and the death of law. There is a Purpose to Compromise in Judicial Nominations By Evan Schultz The Fulton County Daily Report Wednesday, January 23, 2002 Michael McConnell, meet Judith McConnell. Or, as their most venomous critics might say, will the highfalutin homophobe please come on over and give a big "howdy-do" to the pervert-loving home-wrecker? These two lawyers (no relationship, according to Judith) have something in common besides their last names: Both have been put through the wringer after being tapped for federal judgeships. No doubt, it's sad to see distinguished jurists smeared in the name of upholding the Constitution. But maybe there's also something reassuring about it (really). First, a bit more about the unhappy couple. Judith was nominated in 1994 by President Bill Clinton to be a federal district judge in California. Michael was nominated by President George W. Bush last May for a seat on the 10th U.S. Circuit Court of Appeals. Michael is one of the country's pre-eminent constitutional scholars. Now a professor at the University of Utah College of Law, he previously taught law at the University of Chicago, clerked for Justice William Brennan Jr., and has received endorsements from across the ideological spectrum. Judith is a widely respected judge who, at the time of her nomination in 1994, had served on the bench of the state superior court in San Diego for 15 years. She had support from the state's conservative chief justice and was named San Diego's judge of the year by one group of lawyers in 1991. Michael McConnell has drawn fire for advocating a vigorous role for religion in American public life, and for helping the Boy Scouts of America successfully argue in the Supreme Court that they should be allowed to exclude homosexuals. Judith McConnell was savaged for a 1987 opinion in which she agreed with a 16-year-old boy's wish to live with his dead father's gay partner rather than with his mother. Clinton withdrew support for Judith when Senate Republicans opposed her. Bush is still backing Michael, but the Democratic-controlled Senate has not scheduled a hearing for him. These situations should make all thinking people shiver. We've perfected the politics of destruction to the point where we slander the sterling records and distort the complex thinking of those who strive to serve the common good. Shame on us. Right? Not necessarily. The nomination process isn't pretty. But it still serves a crucial purpose: 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000207 ensuring that no one branch of government, political party or ideology dominates the judiciary. Yes, No, No, Yes Since New Year's, the news here in Washington has been drawn back to the fight over judicial nominations between the Senate and the president. Republican senators (Orrin Hatch of Utah leading the charge) have been beating up on the Democrats for stalling by pointing to what Republicans claim is the small percentage of Bush's judicial nominees on whom the Senate has voted and the large number of vacancies on the federal bench. At the same time, Democrats (led by Patrick Leahy of Vermont) have insisted that they confirmed a record number of judges in 2001. All this, of course, follows six years of the reversethe Senate Republicans obstructing while the Democratic president complained. The statistics, though, cloud the real issue. And that, simply put, is whether the administration backs nominees whom the Senate will approve. The Constitution gives the president the role of playing offense ("he shall nominate ... Judges of the supreme court, and ... all other Officers of the United States"). And it gives the Senate the job of defense (giving "Advice and Consent"). The historical argument rages over how much power each side should have. On the one hand, Alexander Hamilton stated in The Federalist No. 66 that "There will, of course, be no exertion of CHOICE on the part of the Senate." On the other hand, the Senate rejected one quarter of presidents' choices for the Supreme Court during the nation's first 100 years, including one of George Washington's nominees for chief justice. At this point, the situation can be summarized pretty simply. The president can nominate whatever geniuses or morons he wants. And the Senate (or at least the party in charge of the Senate) can let them rot. It's a system that demands negotiating-even more so when the two branches are controlled by different parties. That's especially true for this Senate, with its precarious majority, and this president, with his controversial election. Unfortunately for the McConnells, that's where the mudslinging comes in. All senators say they want moderate nominees. Whenever they obstruct, they claim that it's only because the president has sent rabid extremists-or, more often, they simply refuse to move the nominees as others fling the accusations. Listen Up, Mr. President Harsh as it may be, the rhetoric serves an important role-it signals to the president exactly how much leeway he has. It also tells the president when he needs to sit down and talk to the Senate before going forward. As former Clinton Justice Department official Eleanor Acheson says, some presidents can be 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000208 very insistent "that this is the choice of the president, that 'I will reserve to myself the final choice.' " Some presidents have a more soft view of that, namely, they can be pretty easily swayed by a strong pitch made by a senator. And some presidents can do both, depending on who they need to be doing business with when the vacancy arises, and depending on the merits of the candidate. So things can be very varied." Clinton apparently didn't have a tin ear-he withdrew nine nominees in the face of opposition. The result? Despite Bob Dole's claims during the 1996 presidential campaign that Clinton had established a "judicial hall of shame," an academic study of Clinton's judges pegged their rulings from the bench as just a bit more liberal than those of Gerald Ford's judges. And, so far at least, Bush seems to be following suit. Despite the roar of protest that greeted Michael McConnell and a few other Bush nominees (Miguel Estrada and Jeffrey Sutton, in particular), the first batch, at least, of Bush's nominees was called "more eclectic and conciliatory than most people expected" by The New York Times. And, as Leahy likes to point out, the Senate has responded by confirming 28 judges, more than it approved in the first year of either the Clinton or the first Bush administration. So the more the Senate signals the president by accusing a select few nominees of witchcraft, the more the president gets the message that he needs to consult and compromise with the Senate. The upside is that everyone can take credit for appointing "moderate" judges. As Abner Mikva, former chief judge of the D.C. Circuit, said while serving as Clinton's White House counsel, "Get a good judge, and he'll be good for all seasons." The downside, though, is the risk of creating a judiciary that, though competent, doesn't shine. As legal commentator Jeffrey Rosen lamented about Clinton's nominees, "there are few standouts. They are largely a group of soldierly and obscure judges and prosecutors." And the temptation to nominate such people is strong no matter who's in the White House. For instance, look at the 11th Circuit. Clinton's last appointment to that court was Charles Wilson, a former state judge, federal magistrate and U.S. attorney. Bush's first nominee to the same circuit? William Steele, now a federal magistrate in Alabama. There are two ways around this. One is to nominate as many creative, original thinkers as possible who, by consensus, still count as moderates. Clinton's successful choice of former Yale Law School Dean Guido Calabresi for the 2nd Circuit was along these lines. (Calabresi was confirmed by unanimous consent.) The other solution lies in the sort of quiet confirmation vote that took place last November for another controversial Bush nominee-Edith Brown Clement. Clement is a member of the Federalist Society whom the National Abortion and Reproductive Rights Action League has 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000209 criticized. Yet the Senate approved her by a vote of 99-0. And for certain confirmable but controversial nominees, Senate opponents still could make their point by letting the fight spill to the floor. The nominee wins-with bruises. This might happen to Michael McConnell. Moderation in Moderation Which is to say, getting a moderate judiciary does not mean getting a judiciary composed only of moderates. The vote on Clement shows that the Senate knows this. So does a comment by Sen. Charles Schumer, D-N.Y., in hearings he called last year on the role of ideology in judicial selections. He said, "Having one or even two justices like (Antonin) Scalia and (Clarence) Thomas might be legitimate because it provides the (Supreme) Court with a particular view of constitutional jurisprudence. But having four or five or nine justices like them would skew the court." This approach-of approving some novel thinkers mixed in with many more middle-of-the-road judges-has the advantage of keeping the bench stable. At least as important, it respects both the ideological characteristics of judging and the constitutional power of the president. And it opens the way for horse trading: The Senate will approve some Clements if Bush nominates some Clinton choices (as he did with Roger Gregory, whom Clinton had put on the 4th Circuit though a recess appointment) and/or lots of Steeles. Even better, the approach probably makes for good government-at least the best hope for good government we have in this world. As a recent New Yorker profile summarized the views of 7th Circuit Judge Richard Posner on judicial selections, "One individual judge, Posner reasons, will never be able to put aside his personal disgusts and instincts, so the trick is to have lots of different judges whose instincts clash, and hope that, in the end, their views will cancel out in such a way as to approximate fairness." The result, the New Yorker article conceded, may not be fair to any particular litigant. It also might have noted that the result is not fair to any particular judicial nominee. But that's the price of living in a diverse society with a government of checks and balances. And it's the pain of being a McConnell. Transcripts/Members of Congress Senator Feinstein Statement on Nominations Senator Feinstein Press Release Wednesday, January 23, 2002 The nomination by President Bush of Percy Anderson and John Walter to the U.S. District Court for the Central District of California marks the first two nominations to emerge from a bipartisan 30 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000210 screening process to fill open judicial positions in California. These nominees both received 6-0 votes from the Judicial Advisory Committee that was established through an agreement Senator Barbara Boxer and I reached with the White House. In achieving these unanimous votes, Mr. Walter and Mr. Anderson both demonstrated strong skills and qualifications to the Advisory Committee and this bodes well for the nomination process in the Senate. I am hopeful that a hearing will be held by the Judiciary Committee at an early date. I also look forward to early White House action to fill the remaining open seats in California: four more in the Central District and one each in the Eastern and Northern Districts. Percy Anderson is a partner at the national law firm of Sonnenshine, Nath & Rosenthal, in its Los Angeles office. He received his BA and JD degrees from UCLA, graduating from the law school in 1975. He worked as a Staff Attorney and then Directing Attorney for San Fernando Legal Services from 1975 - 1979. He then became an Assistant U.S. Attorney, specializing in criminal litigation. Within that office, he also acted as First Assistant Division Chief and Chief of the Criminal Complaints Unit. In 1985, he left the U.S. Attorney's Office and went into private practice at the Los Angeles office of Bryan, Cave, McPheeters & McRoberts, then at the Sonnenshine firm. John Walter is a name partner at the Los Angeles law firm of Walter, Finestone & Richter. He received his bachelor's and law degrees from Loyola University, graduating from the law school in 1969 and being admitted to the bar in 1970. After graduation, he worked at Kindel & Anderson from 1969-70, then spent two years at an Assistant U.S. Attorney in the criminal division before returning to Kindel & Anderson. He formed his own firm in 1976 and practices civil and criminal litigation. The Judicial Advisory Committee is comprised of four six-member subcommittees -- one for each judicial district in the state. Each subcommittee has one member selected by Senator Boxer, one selected by me and one jointly by both Senator Boxer and myself along with three members named by Gerald Parsky, President Bush's State Chair for judicial appointments. Interest Groups/Press Releases People’s for Neas, Other Progressive Leaders Urge Senate Judiciary Committee to Reject Appeals Court Nominee Charles Pickering By Ralph Neas People for the American Way January 24, 2002 People For the American Way President Ralph G. Neas called on the Senate Judiciary Committee to reject the nomination of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the 5th Circuit and released a detailed report documenting Pickering’s troubling public record on a range of critical issues. At a press conference with other progressive leaders, Neas said PFAW and other groups would launch a grassroots effort against Pickering’s nomination, making this the first major judicial confirmation battle of the Bush administration. 31 VERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000211 "Achieving ideological domination of the federal judiciary is the top goal of right-wing activists inside and outside the Bush administration, and judges like Charles Pickering are the means to that end," said Neas. "Many of our basic rights and freedoms are at risk. The Senate Judiciary Committee should review Judge Pickering’s record and reject his elevation to the appeals court." Neas said Pickering’s record makes him an especially problematic choice for the 5th Circuit, which presides over a three-state area with the largest and most diverse minority population in any Circuit in the country, and which has already decided a number of cases restricting civil and reproductive rights. The PFAW report released today examines Pickering’s public record both before and after he became a judge. Among the report’s conclusions: His record demonstrates insensitivity and even hostility toward key principles and remedies that now safeguard civil rights, and indifference toward the problems caused by laws and institutions that have previously created and perpetuated discrimination. Even conservative appellate court judges have reversed Judge Pickering on a number of occasions for disregarding controlling precedent on constitutional rights and for improperly denying people access to the courts. He has been a staunch opponent of women’s reproductive rights. He has demonstrated a disregard for the separation of church and state by repeatedly using his position on the bench to promote involvement in religious programs. "Elevating Pickering to a powerful appellate court position would give him enormous influence on the interpretation of statutory and constitutional provisions that safeguard the rights of all Americans," concludes the report. Neas noted that the report released today is based on an incomplete record of Judge Pickering’s tenure on the District Court, because Pickering has told the Senate Judiciary Committee that approximately 40 percent of his unpublished opinions as many as 400 are not available. "We don’t know what’s in those missing rulings," said Neas, "but the rulings we do have make it clear that Pickering has opposed basic principles protecting civil rights and has sought to limit their application. He has even denigrated people who have turned to the courts to protect their civil rights." Pickering has, for example, criticized the fundamental "one-person, one-vote" principle recognized by the Supreme Court under the Fourteenth Amendment. He has also criticized or sought to limit important remedies provided by the Voting Rights Act. As a state senator, Pickering supported voting-related measures that helped perpetuate 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000212 discrimination against African Americans, and voted to appropriate money to fund the Mississippi Sovereignty Commission, a notorious agency created by the state in 1956 to resist desegregation. At his 1990 confirmation hearing, Pickering testified that he had never had any contact with the Sovereignty Commission. But PFAW’s report notes that a 1972 memorandum by a Commission investigator to its Director stated that "Senator Charles Pickering" and two other state legislators were "very interested" in a Commission investigation into union activity that had resulted in a strike against a large employer in Pickering’s home town. The report also notes that Pickering did not take the opportunity at his confirmation hearings to repudiate a 1959 article he wrote as a law student advising the state legislature how to fix the state’s law criminalizing interracial marriage in response to a state Supreme Court ruling that had rendered the law unenforceable. The legislature took his advice. The report also cites specific instances in which Pickering was overturned by the 5th Circuit, to which he has been nominated, for violating "well-settled principles of law" involving constitutional issues, civil rights, criminal procedure or labor issues. For example, the conservative 5th Circuit has reversed Pickering’s misuse of "dismissal with prejudice" a severe sanction against an inmate alleging civil rights violations and against a group of plaintiffs in a toxic torts case against a chemical company. The report documents Pickering’s use of his judicial position to promote religion and religious ministries to those coming before his court. It also documents a decades-long hostility to reproductive choice, including his advocacy of a constitutional amendment to ban abortion. Neas said the grassroots effort to defeat Pickering’s nomination would be the first of many unless President Bush engages in genuine bipartisan dialogue with members of the Senate. Neas urged senators, especially members of the Judiciary Committee, to fulfill their constitutional responsibilities to carefully scrutinize judicial nominees and reject those who have not demonstrated a commitment to upholding civil rights. "Right-wing senators perpetuated dozens of appeals court vacancies by carrying out an unprecedented ideological blockade against judges nominated by President Clinton," said Neas. "Now they hope President Bush will take advantage of those vacancies to fill the appeals courts with right-wing nominees like Charles Pickering." Neas noted that 35 percent of President Clinton’s appellate court nominees were blocked from 1995-2000; 45 percent failed to receive a vote in the congressional session during which they were nominated. Republican-nominated judges currently hold a majority on seven of the 13 circuit courts of appeal. If all President Bush’s current nominees are approved, such judges will make up a majority on 11 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals. "A federal judiciary completely dominated by right-wing judges would be a disaster for Americans’ rights and freedoms," said Neas. "Senators must be willing to say no to Judge 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000213 Pickering and they must be willing to say no to right-wing efforts to pack the federal judiciary." Opposing the Confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit People for the American Way January 24, 2002 Click on link below for report: http://www.pfaw.org/issues/democracy/pickering.pdf Judicial Nominees Special Report: Our Courts at Risk National Organization of Women Thursday, January 24, 2002 Click on link below for report: http://www.now.org/issues/legislat/nominees/index.html Statement of Kate Michelman Announcing Opposition to Judicial Nominee Charles Pickering. NARAL Tuesday, January 22, 2002 Good morning, thank you for coming here today. As you know, this coalition has gathered today to announce our opposition to the nomination by President Bush of Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. Charles Pickering's nomination by President Bush is part of a continuing effort to hasten the reversal of Roe and the end of legal abortion. A lifetime appointment to the Court of Appeals for Charles Pickering may lead to a lifetime of disappointment and hardship for women seeking to exercise their constitutional right to choose. Pickering's record on choice is crystal clear -- during his lifetime as a conservative political activist, Pickering has demonstrated open hostility to a woman's right to choose and has sought to reverse Roe through a constitutional amendment to ban abortion. This fact alone must disqualify him from sitting on the Fifth Circuit - a court that has done more than most courts in recent years to limit that fundamental right. 34 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000214 The Fifth Circuit is one of the most critical courts in the United States to the future of reproductive rights for women. This Circuit - consisting of Louisiana, Mississippi, and Texas -reviews legislation from an area of the country that is particularly hostile to a woman's right to choose. It is at the center of attempts by state legislatures to restrict abortion and limit women's ability to exercise their constitutionally protected rights under Roe. Indeed, since 1995, the three states in the Fifth Circuit have introduced nearly 175 measures to restrict abortion rights. The Fifth Circuit has eroded the exercise of choice in prior decisions, and poses a continued threat to these rights in the future. Confirming Pickering would add fuel to the ultra-conservative fire on this court for decades. It's the wrong court for Charles Pickering. And Charles Pickering is the wrong nominee for this court. Close scrutiny of Charles Pickering's record over the last four decades shows someone who should not be confirmed for a circuit court judgeship. Pickering's career has been notable, not for his record as a judge or as a legal scholar, but as a partisan political activist. Pickering has been at the front lines on some of the most divisive political issues of our time, and repeatedly has pursued a far-right conservative agenda that demonstrates hostility toward reproductive choice, individual rights, and disdain for a federal court system that serves as a guardian of those rights. As a Mississippi state legislator, he called for a constitutional convention to propose an amendment banning abortion. As Chairman of the Human Rights and Responsibilities subcommittee of the Republican Platform Committee in 1976, he led the fight to have the Republican Party adopt a constitutional amendment to ban abortion in the party platform. That was a major step in providing anti-choice forces a powerful national vehicle through which to organize a roll back of this core right for American women. And while President of the Mississippi Baptist Convention, the organization adopted a resolution calling for legislation to ban abortion except to save the life of the woman. One hallmark of our free society is the independence of the federal judiciary from politics. This independence allows the federal courts to protect constitutional rights free of political interference - especially important in the area of reproductive choice. Pickering showed little willingness to respect judicial independence - as a Senator, he was eager to amend the Constitution when he disagreed with decisions by the federal courts. In the Mississippi Senate, Pickering co-sponsored legislation calling for a constitutional amendment limiting the tenure of federal judges, and voted for a constitutional amendment to limit federal judges to six-year terms. He also supported holding constitutional conventions to pass amendments to reverse desegregation and separation of church and state court decisions. Clearly, he wishes to create a federal judiciary that responds to ultra-conservative political pressure, rather than one which independently interprets the laws and the constitution. Freed from the limitations of the district court, Pickering would be in a position to use a Fifth Circuit seat as a vehicle for his own judicial activism -- where his disdain for precedent and for plaintiffs with the temerity to assert their own civil rights would have broader ramifications. Pickering's career is marked by conservative political activism, not by thoughtful legal jurisprudence. 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000215 Because of the large caseload in the federal courts, circuit courts are increasingly for most people the courts of last resort. A die-hard conservative activist with strongly held views on critical constitutional issues, Pickering is exactly the wrong kind of person to serve on an appellate court so pivotal to the lives of so many women. The Senate's proper role is to consider a nominee's views, and to reject those judges who would roll back the rights of women. The Constitution provides for this and the American people want their Senators to exercise advice as well as consent. We are issuing a report today to help educate our members on the need to oppose this nomination. We also call on Senators to read our report to understand how critical this nomination is to the future of reproductive freedom and choice. And we trust once they do, they will understand how critical it is for them to reject this nomination. Click here for a link to the full report on Charles Pickering: http://www.naral.com/mediaresources/fact/pdfs/pickering rpt.pdf LCCR Opposes Pickering Nomination to Fifth Circuit- Serious Concerns About Nominee’s Civil Rights Record Leadership Conference on Civil Rights Thursday, January 24, 2002 Wade Henderson, Executive Director, Leadership Conference on Civil Rights (LCCR), issued the following statement today regarding President Bush's nomination of Judge Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit: "Although I am honored to join my colleagues this morning in defending the integrity of the federal courts, I regret that today’s action has been made necessary by the nomination of an individual to the 5th Circuit Court of Appeals whose background, actions and temperament render him unsuitable for elevation to this most important court. As we know, the federal courts often are called the guardians of the Constitution because their rulings protect the rights and liberties guaranteed by this most hallowed of documents. For many Americans, the federal judiciary is the first line of defense against violations of dearly held constitutional principles; for others, it is the last bastion of hope in a system that has marginalized, mistreated or simply ignored them. The Leadership Conference strongly believes that the composition of the federal judiciary is a civil rights issue of profound importance to all Americans, because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for us all. As such, the federal judiciary must be perceived by the public as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness 36 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000216 and impartiality. Our exhaustive and careful review of Judge Charles W. Pickering Sr.’s public record -- from law student to state legislator to judge, as well as the presentations we have heard today, have left us with little alternative but to oppose his nomination because of his extreme views on important civil rights, women’s rights and constitutional issues. When taken together, these immoderate positions ought to disqualify Judge Pickering from serious consideration for any federal Circuit, much less the important 5th Circuit Court of Appeals. It is especially important to note that we are discussing this nominee in the context of the Circuit to which he has been appointed. With Mississippi, Texas and Louisiana, the Fifth Circuit has the largest percentage of people of color of any Circuit Court in the country. Unquestionably, much is at stake when it comes to civil rights. Historically, the Fifth Circuit was the Circuit of "Unlikely Heroes," who in the face of much opposition, issued scores of important opinions that in effect desegregated the South. This is the Circuit of: John Minor Wisdom who ordered that James Meredith to be admitted to the University of Mississippi; Richard Rives who outlawed segregation on the Montgomery city buses; Elbert Tuttle who ordered the integration of the University of Georgia and struck down Louisiana’s segregated pupil placement laws; and finally, John Brown who, in U.S. v. Mississippi, wrote that "no nation can survive if it flagrantly denies its citizens the right to vote." Today, the Fifth Circuit is dramatically different. It is now one of, if not the most hostile appellate courts in the country when it comes to civil rights. The Fifth Circuit is now the Hopwood Court that refused to apply Bakke to college admissions, impacting educational opportunities for black and brown students. The Fifth Circuit is now the Reeves Court that issued an opinion about the "intent" standard in employment discrimination cases so extreme it was overturned by the Supreme Court, 9-0. The Fifth circuit is the LULAC v. Clements court that held that the Voting rights Act does not apply to at-large judicial elections; again, an opinion so extreme, it was reversed by the U.S. Supreme court. After our careful review of Judge Pickering's record -- on and off the bench -- we are forced to conclude that he is the wrong man for the Fifth Circuit. This Circuit requires a jurist who will have a moderating influence on the Court. We urge the Senate to consider all of these circumstances and to exercise its constitutional prerogative to reject this nominee cries out for moderation. And we implore President Bush to nominate a moderate for this critical position. 37 AMERICAN PVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000217 The Case Against the Confirmation of Charles W. Pickering, Sr. Independent Judiciary Thursday, January 24, 2001 Click on link below for full report: http://www.independentjudiciary.com/news/release.cfm?ReleaseID=13 38 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7087-000001 18-2091-B-000218 Schauder, Andrew Schauder, Andrew Tuesday, January 29, 2002 6:35 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; Carroll, James W (OLP); O'Brien, Pat; Comstock, Barbara; Koebele, Steve Subject: judicial media review Attachments: Judicial Media Review 1-28-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.7102 18-2091-B-000219 Media Review - Judicial Nominations Monday, January 28, 2002 General Judicial Articles "Going After the Bush Bench as They Begin to State Their Case, Liberals Target Pickering," Jonathan Groner, Legal Times, January 28, 2002 2 "Judicial Fight Seen as Prelude to ‘Supreme’ War," Paul Kane, Roll Call, January 28, 2002 6 "Leahy Seeks Clout on Judges," Dave Boyer, The Washington Times, January 26, 2002 8 "Pickering Lied About Contacts to Anti-Segregation Commission, Groups Say," Ana Radelat, Gannett News Service, January 25, 2002 10 "Mississippi Judges Is Latest Focus of Confirmation Fights," Helen Dewar, The Washington Post, January 27, 2002 12 "Senate Confirms Judge," Tony Batt, Las Vegas Review-Journal, January 26, 2002 13 "Senators Divided on Judicial Nominations," Susan Roth, Gannett News Service, January 25, 3002 15 "President Names Two District Judges While Top State Law Jobs Are Filled," Michael Booth, New Jersey Law Journal, January 28, 2002 16 "Bush’s Nominations for District Benches Sent to Senate," Shannon Duffy, The Associated Press, January 28, 2002 17 "Palm Beach Circuit Judge, Miami Lawyer Tapped by President for Federal Judgeships," 19 Dan Christensen, Miami Daily Business Review, January 25, 2002 Op/Eds "Vacant Benches; Candidates on the Hit List," 21 Nancy Pfotenhauer and Jennifer Braceras, The Washington Times, January 28, 2002 "Impartial Politicians? Follow the Money," Clay Robison, The Houston Chronicle, January 27, 2002 23 1 VERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000220 "The Crisis in our Courts," Alberto Gonzales, The Wall Street Journal, January 25, 2002 24 "Mr. Leahy and Judges," The Washington Post, January 27, 2002 26 "Letters to the Editor," Dayton Daily News, January 25 ,2002 26 "Judicial Offense; Bush’s Nomination of Pickering Deserves Rejection," Detroit Free Press, January 26, 2002 28 Transcripts/Members of Congress "Leahy Charts ‘The Way Forward’ on Judicial Nominations," Floor Statement of Senator Patrick Leahy, January 25, 2002 28 Interest Groups/Press Releases "Statement of the AFL-CIO in Opposition to the Nomination of Charles W. Pickering, Sr. to the United States Court of Appeals for the Fifth Circuit," AFL-CIO, January 28, 2002 34 "AAUW Strongly Opposes the Nomination of Judge Charles Pickering for the U.S. Fifth Circuit Court of Appeals," American Association of University Women, January 28, 2002 35 "NCJW Opposes Nomination of Judge Charles Pickering to the Fifth Circuit Court of Appeals," National Council of Jewish Women, January 28, 2002 36 General Judicial Articles Going After the Bush Bench as They Begin to State Their Case, Liberals Target Pickering By Jonathan Groner Legal Times Monday, January 28, 2002 The liberals have found their poster boy. His name is Charles Pickering Sr. Almost nine months after President George W. Bush unveiled his first judicial nominees, a broad coalition of liberal civil rights groups gathered Jan. 24 to announce their opposition to Pickering, 2 VERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000221 a nominee for the U.S. Court of Appeals for the 5th Circuit. To the groups, Pickering, a U.S. district judge in Mississippi, is wrong on civil rights and abortion. He is also a close friend of fellow Mississippian Trent Lott, the conservative Senate minority leader who is pushing hard for Pickering. And while other nominees have waited months for a confirmation hearing, Pickering is scheduled to get a second, highly unusual goround before the Senate Judiciary Committee the week of Feb. 4-thanks to Chairman Patrick Leahy, the liberal Democrat from Vermont. Pickering is the first Bush judicial nominee to draw formal, public opposition. But he is unlikely to be the last. In a Jan. 25 speech, Leahy vowed to hold hearings on such controversial nominees as 5th Circuit nominee Priscilla Owen, D.C. Circuit nominee Miguel Estrada, and 10th Circuit pick Michael McConnell. The liberal coalition, which includes such groups as NARAL, the National Women's Law Center, and the Leadership Conference on Civil Rights, has not said much lately about Estrada or McConnell. But Owen, as well as 9th Circuit nominee Carolyn Kuhl and 6th Circuit pick Jeffrey Sutton, seems likely to face formal opposition. At the Jan. 24 press conference, Alliance for Justice President Nan Aron took care to distinguish between "unqualified candidates with controversial records" such as Pickering, and noncontroversial Bush choices. That same day, the Senate Judiciary Committee held hearings for six judicial nominees who have drawn no opposition, including Richard Leon, nominated to the U.S. District Court for the District of Columbia. "The president must understand that when he sends to the Senate experienced, moderate candidates, he will have the support of the Senate and the American people," Aron declared. On the other hand, Aron said, Pickering "represents just the first threat to turn back the clock on rights all Americans rightly enjoy." At the press conference, NARAL President Kate Michelman said Pickering came first simply because "he is the most controversial nominee to date who has received a hearing." That relatively unpublicized event took place Oct. 18 at the height of the anthrax scare on Capitol Hill. Pickering was denounced for a student law review note he wrote in 1959, explaining how Mississippi could strengthen a law then on the books that prohibited interracial marriages. He also drew fire for supporting a constitutional amendment to overrule Roe v. Wade when he was a Mississippi legislator in the 1970s. The civil rights groups also claimed that as a federal trial judge for the last 11 years, Pickering 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000222 has often revealed distaste for the Voting Rights Act and other civil rights laws, and routinely ruled against plaintiffs in discrimination cases. "His positions leave us little alternative but to oppose his nomination," said Wade Henderson, executive director of the broad-based Leadership Conference on Civil Rights, at the press conference. "These positions ought to disqualify him for any federal circuit court, all the more so for the 5th Circuit, which has more people of color than any other." But supporters of Pickering find little merit in the criticisms. "When you look closely at the objections, there's nothing there. He is committed to following the law and Supreme Court precedent," replies John Nowacki, deputy director of the Center for Law and Democracy, a conservative group active on judicial nominations. "The law review article was three and a half pages of academic analysis, and Pickering says he wouldn't support the statute today." Pickering's supporters also note that he has served on the board of directors of the Institute for Racial Reconciliation, a biracial project established in 1999 by the University of Mississippi to come to terms with the state's history of racism. Next in Line? While the liberal activists only targeted Pickering, they suggested another candidate that they may well end up opposing. "One doesn't have to look any further than the other nominee named to fill a second vacancy on the 5th Circuit bench to see how the rights of minorities and women may be threatened," Aron said. That person is Owen, a Texas state judge who, like several other controversial Bush choices, was nominated last May and has not had a hearing. Until now, Owen's selection has not drawn the publicity that has surrounded selections such as Sutton or Estrada. Owen, a partner at Houston's Andrews & Kurth before winning election to the Texas Supreme Court in 1994 and again in 2000, is criticized for repeatedly ruling against permitting minors to have abortions without parental consent. Ten such cases came before the court under a new Texas law in 2000. In one of those cases, she was in the minority, and Alberto Gonzales, then a fellow judge on the court and now White House counsel, said the dissenters' view was "an unconscionable act of judicial activism." The Alliance for Justice Web site says that Owen's record "strongly suggests a strain of conservative judicial activism." A Bush administration lawyer responds that the key criterion for prospective judges is that they 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000223 must be "advocates of judicial restraint, the notion that judges should follow the law. "As far as we're concerned, whether you are pro-choice or pro-life is irrelevant," this lawyer says. "If groups wish to impose a political litmus test on abortion, then we are just talking past each other. We see a person's policy views as completely irrelevant." Owen made the news last week when it was disclosed in The New York Times that in 1996, she wrote the opinion in a 7-0 ruling that saved the Enron Corp. about $220,000, after she had accepted campaign contributions from the now-bankrupt company. In a position paper handed out at the Jan. 24 press conference, People for the American Way singled out two other Bush nominees who "have troubling records and could cause serious damage to our rights and liberties." These were Sutton and Kuhl. Kuhl, a state judge in Los Angeles since 1995 and a former clerk for then-9th Circuit Judge Anthony Kennedy, drew scrutiny for work she had done while in the solicitor general's office from 1981 to 1986, during the Reagan administration. PFAW said Kuhl urged the Supreme Court to overturn Roe v. Wade in Thornburgh v. American College of Obstetricians and Gynecologists, a 1986 Supreme Court case. PFAW also claimed that Kuhl "reportedly played a key role in convincing then-Attorney General [William French] Smith to support tax-exempt status for racially discriminatory Bob Jones University." Charles Cooper of D.C.'s Cooper & Kirk, who worked with Kuhl at the Justice Department, terms these descriptions "unfair" and "grossly incomplete." Cooper says that as a 28-year-old special assistant to the SG, Kuhl "wasn't making policy, she was taking notes-when she and I were even in the room." Besides, says Cooper, whether the Internal Revenue Service had the legal right to deny tax exemption to Bob Jones was in fact a "tough legal issue"-the Supreme Court took it up and ruled 8-1 against the SG's position that the IRS had no such right-and the Reagan administration in any case wanted to amend the tax code to deny the exemption. On abortion, Cooper says, "I don't even know her personal view on abortion. But I hope we haven't come to the point where a nominee is disqualified because they take a certain interpretive approach to the due process clause." Sutton, PFAW said, has worked to "severely limit federal protections against discrimination and injury based on disability, race, age, sex, and religion." In Alabama v. Garrett, a 5-4 Supreme Court ruling last year, the 41-year-old Jones, Day, Reavis & Pogue partner successfully argued on federalism grounds against the application of the Americans With Disabilities Act to the states. Several disability-rights groups have announced opposition to Sutton, and he has tried to mend fences with the disability community. 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000224 Supporters say that Sutton, like other Bush nominees, should not be pilloried for advocating the position of his clients. Says Cooper: "It is the very definition of 'extreme' to focus on a case that involved successful advocacy of a client's cause in the Supreme Court. If that is what the opposition has come to, it is very sad." Judicial Fight Seen as Prelude to ‘Supreme’ War By Paul Kane Roll Call Monday, January 28, 2002 With control of appellate courts appearing to teeter in the balance, both liberal and conservative activists have launched new offensives to heighten the political pressure on the Senate's confirmation process of judicial nominees. While last year's fights on judicial nominations focused on statistical arguments over which administration had more judges confirmed, this year's battles are shaping up to be personalized fights over specific nominees. And the subtext to the battles, particularly over the circuit court nominees, is the political war that's expected when one of the current Supreme Court justices retires. The circuit court fights are a warm-up. "It's definitely getting ratcheted up," said John Nowacki, a judicial expert for the conservative Free Congress Foundation. "This is an attempt to gear up for the next Supreme Court nomination, whenever that is." First up in the judicial battles for the new year is U.S. District Judge Charles Pickering, nominated to take a seat on the Fifth Circuit Court of Appeals. Pickering is expected to have a second hearing before the Judiciary Committee next week. He is the father of Rep. Chip Pickering (R-Miss.) and a close friend of Senate Minority Leader Trent Lott (R-Miss.). Lott has been pushing to get Pickering confirmed, but has run into a wall of opposition from liberal groups and Judiciary Democrats who are demanding to see more of the judge's opinions before allowing the full panel to vote on him. Sen. Dick Durbin (D-Ill.), a Judiciary member, said Lott tried to get Pickering's nomination included on any non-controversial bill that was moving by unanimous consent at the end of last session. "He's been working it like a demon. He wants this man. All roads led to Pickering," said Durbin, an assistant floor leader for Senate Majority Leader Thomas Daschle (D-S.D.). A coalition of liberal groups - led by the Alliance for Justice and People for the American Way launched a campaign to defeat Pickering, accusing him of hostile views toward women and minorities. Unlike the first 30 judicial nominees approved, including two Friday, Pickering is the 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000225 first of the Bush administration nominees to face vigorous opposition. "This will be the first one where the battle will be joined," said Ralph Neas, president of People for the American Way. Nan Aaron, president of Alliance for Justice, said Pickering was the first circuit court nominee to face high-profile opposition from the liberal coalition, and predicted a similar fate for Texas Supreme Court Judge Priscilla Owen, also nominated to the Fifth Circuit, and others. Some Republicans accused Democrats and their liberal allies of singling out Pickering to fire a political shot across the bow at Lott for his own high-profile attacks on Daschle and Leahy over the handling of nominees. "It just sounds to me like they're trying to give the Minority Leader a hard time," said Sen. Orrin Hatch (R-Utah), ranking member on Judiciary. Calling Pickering "eminently qualified," Lott said Democratic demands to read the judge's unpublished opinions were a "classic" delay tactic. "This is unnecessary and ridiculous harassment." Aaron and Neas said they would prefer not to take on Lott. Instead, they suggested that this is part of their wider effort to fight an increasingly conservative tilt on the circuit courts, which are one step below the Supreme Court and hear appeals from the district courts, giving these judges wide power to interpret the law. According to Neas, seven of the 13 appellate courts have a majority of judges who were appointed by a Republican president, four more with a Democratic majority, and two that are evenly split. And the Bush administration has already nominated enough potential judges for circuit court openings to control 11 of the 13 courts by the end of this year, he added. In his first year in office, President Bush nominated 28 individuals for circuit court openings, more than three times as many appellate court nominees as were sent to the Senate by President Ronald Reagan in 1981 and the first President Bush in 1989. And in their attacks on Leahy, Senate Republicans have repeatedly cited the low percentage of circuit court nominees (21 percent) who moved through the Democratic-controlled Senate last year. Like their liberal opponents, however, Republicans, led by Minority Whip Don Nickles (ROkla.), have begun to take a more personalized tack in promoting the nominees. At a press briefing just before the close of last session, Nickles hoisted a chart onto the dais of the Senate Radio-TV Gallery with the picture of every nominee who was being held up by Democrats. Last week, every time Nickles mentioned Miguel Estrada - nominated to the D.C. Circuit - he 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000226 talked about his rise from poverty as "a native from Honduras" who ended up in the Ivy League legal community. One senior GOP aide said the personal touch is an effort to better sell the issue to the public, while another said the campaign for circuit court nominees has taken on the appearance of past battles over Supreme Court nominations. Durbin accused Republicans of an orchestrated plan to block then President Bill Clinton's circuit court nominees when they controlled the Senate. "They know that's where decisions are made that determine policy," he said. Leahy noted that while Republicans controlled the Senate, the Fifth Circuit went seven years without a new judge; the Fourth, three years; and the 10th, six years. Aaron also said that another reason for the new fight over appellate court nominees is that circuit courts have been a "farm team" for the Supreme Court, Aaron said, and any one of these current nominees, if not defeated now, could end up on the High Court in the future. Leahy promised that conservatives such as Estrada and Owen would soon get their hearings, but also added that "consensus will be difficult." He hinted that an admission from Republicans that they obstructed the judicial nomination process in the 1990s would help. "If they did things they now regret, their admissions would go far to helping establish a common basis of understanding and comparison. Taking that step would be a significant gesture,"he said in a floor speech Friday. Leahy Seeks Clout on Judges By Dave Boyer The Washington Times Saturday, January 26, 2002 The chairman of the Senate Judiciary Committee yesterday called on President Bush to nominate more Democrat-friendly judges to speed the contentious confirmation process. "The White House's unilateralism is not the way the process is intended to work," said Sen. Patrick J. Leahy, Vermont Democrat. "The most progress can be made most quickly if the White House would begin working with home-state senators to identify fair-minded, non-ideological, consensus nominees to fill these court vacancies." He said it would help to "repair the damage of the last six years" in confirming federal judges. Republicans controlled the Senate during that time. White House spokeswoman Ann Womack said Mr. Bush "welcomes the senator's pledge to hold prompt hearings." She said the president has worked "extensively" with Democratic home-state senators on nominations. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000227 A conservative analyst who monitors the pace of judicial confirmations said Senate Democrats are "once again changing the rules to highjack the judicial selection process." "Senator Leahy's so-called 'recommendations' boil down to a single directive: Democratic senators will confirm nominees as long as they can pick them in the first place," said Thomas Jipping, director of the Judicial Selection Monitoring Project affiliated with the Free Congress Foundation. The Democratic-led Senate last year confirmed 28 of the 64 judicial candidates nominated by Mr. Bush, the lowest confirmation rate for the first year of each of the past four presidents. This week Mr. Bush nominated an additional 24 judges. Two district court judges were confirmed by the Senate yesterday, leaving 58 judicial candidates still awaiting action. An administration source said Mr. Bush "will continue to select the same kind of well-qualified nominees that he has since taking office." Mr. Leahy also called on the president to "reconsider" his decision not to ask the American Bar Association for peer reviews in vetting judges. The committee does ask for the ABA's input, and Mr. Leahy said delaying that process until the nominations reach the Senate "has needlessly added months to the time required to begin the hearing process." White House counsel Al Gonzales announced early last year that the administration was ending the ABA's 54-year advisory role in nominating federal judges partly because the group takes public positions on "divisive political, legal and social issues that come before the courts." Mr. Leahy, who has led the fight against some Bush nominations, said he will "restore steadiness" in the judicial hearing process. But his pledge essentially was to continue the pace of confirmation hearings since Democrats took control of the panel in July - 12 hearings in seven months. Roger Pilon, a legal specialist at the Cato Institute in Washington, said Democrats last year held hearings "aimed at justifying the use of an ideological litmus test to ignore or disqualify judicial nominees. This year, with elections looming, they appear ready only to intensify the stall." Mr. Leahy said Democrats would hold hearings for "a number of controversial nominees who do not have blue-slip problems," a term for senators raising formal objections to a candidate. Mr. Leahy said the panel will hold a hearing next week for Charles W. Pickering of Mississippi, a candidate for the 5th Circuit Court of Appeals who is opposed by a coalition of liberal groups. Pickering Lied About Contacts to Anti-Segregation Commission, Groups Say By Ana Radelat Gannett News Service 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000228 Friday, January 25, 2002 National groups who oppose the candidacy of Mississippi Judge Charles Pickering intensified their criticisms of his judicial and political career Thursday and circulated a document claiming he lied during 1990 confirmation hearings for his federal judgeship. Wade Henderson, executive director of the Leadership Conference on Civil Rights, called Pickering "the worse nominee" Bush has considered for the federal bench. A friend and political ally of Sen. Trent Lott, R-Miss., Pickering has come under attack from the National Association for the Advancement of Colored People, the Leadership Conference on Civil Rights, People for the American Way, the National Abortion and Reproductive Rights Action League and other interest groups. President Bush selected the U.S. District Court judge, former state senator and former chairman of the Mississippi Republican Party in May to fill an opening on the New Orleans-based appeals court. The groups opposed to his nomination have reached far back into the judge's past to try block his candidacy. They say a law school article Pickering wrote about interracial marriages indicates a contempt for civil rights and have criticized his role as chairman of a subcommittee at the 1976 Republican Party convention that created the GOP's first anti-abortion plank to the party's platform. At a press conference Thursday, they circulated a report that says Pickering gave false testimony during his 1990 confirmation hearing to become a federal judge. At that hearing, Pickering said he "had never had any contact" with the Sovereignty Commission, a now-defunct Mississippi agency formed to fight federal desegregation efforts. "I had disagreement with the purposes and methods and some of the approaches they took," Pickering said a dozen years ago. But the groups' report included copies of a 1972 letter a commission investigator wrote that said Pickering and former state Reps. Liston Shows and R.H. Donald "requested to be advised" by the commission about a group trying to organize pulpwood workers in the state. In 1971, the Gulfport Pulpwood Association organized a successful strike among pulpwood producers, cutters and haulers at the Masonite Corp. in Pickering's hometown of Laurel. The judge, father of Rep. Chip Pickering, R-Miss., said it would be inappropriate for him to comment on the criticisms leveled against him, but he looked forward to responding to questions about the allegations at his next congressional hearing. The interest groups fighting the nominations say they don't want another conservative judge to sit on the 5th U.S. Circuit Court of Appeals, which hears cases from Louisiana, Mississippi and Texas. Republican presidents have appointed nine of the court's judges; Democrats appointed five. 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000229 "Judge Pickering has a record that speaks volumes of his tendency to snatch away the shield of civil-rights protection," said Hilary Shelton, director of the NAACP's Washington bureau. While some former Mississippi NAACP officials have written letters in support of Pickering, Shelton said they do not reflect the organization's position on the issue. NARAL President Kate Michelman said Pickering's stand on abortion is crystal clear. "He has an open hostility to a woman's right to choose," she said. Ralph Neas, head of People for the American Way, complained Lott has put extreme pressure on members of the U.S. Senate to approve an unqualified nominee. Neas and others involved in the anti-Pickering campaign were active in the successful effort to derail Robert Bork's Supreme Court candidacy. But they are unlikely to stall Pickering's candidacy much longer. A hearing on his candidacy that could clear the way for a Senate vote is expected in two weeks. "They're just trying to smear him," Lott said of Pickering's opponents. "He's clearly qualified and deserves to be confirmed." The American Bar Association deemed Pickering's 11-year record as a federal judge "well qualified," the highest ranking given. But during a Senate Judiciary Committee hearing in October, some Democrats said they wanted to see some of the judge's unpublished opinions, especially on civil rights, women's rights and labor law. Pickering had issued more than 1,000 opinions but only 75 were in print. David Carle, press secretary to Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said Pickering submitted roughly 600 opinions. The liberal groups' attacks on Pickering come as Republicans intensified pressure on the Democratic-controlled Senate to move on 90 Bush judicial nominees. The president nominated two dozen Wednesday. GOP senators complain that Democrats are stalling. But Leahy says his committee is moving as fast as it can and has countered that Republicans delayed President Clinton's nominees when the GOP had control of the Senate. Mississippi Judge Is Latest Focus of Confirmation Fight By Helen Dewar The Washington Post Sunday, January 27, 2002 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000230 The Senate, accused by conservatives of dragging its feet on President Bush's judicial nominations, is coming under pressure from liberal groups to reject one of those choices: a Mississippi jurist championed by Minority Leader Trent Lott (R-Miss.). At issue is the record of U.S. District Judge Charles W. Pickering, a friend and ally of Lott whom Bush nominated in May to the 5th U.S. Circuit Court of Appeals, which covers several states in the deep South. Pickering is also the father of Rep. Charles W. "Chip" Pickering Jr. (RMiss.). While conservatives describe the elder Pickering as thoroughly qualified for the appeals court, liberal critics say he has a "troubling record on civil rights and reproductive choice." They say he would tilt the already conservative 5th Circuit even further to the right. The Senate Judiciary Committee held a hearing on Pickering's nomination in October and plans another for next month to examine unresolved questions. They include hundreds of opinions written by Pickering that were not available at the first hearing. The committee is waiting for Pickering to submit several hundred of them, according to Democrats. In a vigorous defense of Pickering last Tuesday, Lott said it was "unnecessary and ridiculous harassment" to subject the judge to a second hearing. "He's a classic case of how the committee has kicked the can down the road." What's next, Lott asked. "How about his unpublished opinions? Oh, by the way, how about his secretary's notes?" Democrats, including Judiciary Committee Chairman Patrick J. Leahy (Vt.), have not indicated how they might vote on the nomination. It is unusual for senators to reject a home-state friend of one of their leaders, regardless of party. The quarrel over Pickering is but the latest example of partisan disputes over the pace of action on Bush's nominations. Including two district court nominees who were approved Friday, the Senate has confirmed 30 of the 65 nominations that Bush submitted last year, most of them for district courts. Bush sent an additional 24 nominations for district courts to the Senate earlier this month. Republicans contend that Democrats are dragging their heels, especially on appellate court nominations, leaving more than 100 vacancies on the federal bench nationwide. Democrats, noting that they took control of the Senate only last June, say they have done far better than Republicans did in processing nominations from President Bill Clinton, especially toward the end of his administration. Leahy and Sen. Orrin G. Hatch (R-Utah) continued the argument Friday with a mix of the old rancor and some new gestures toward conciliation. Leahy promised to schedule hearings "at a pace that will exceed the pace of the last six years." The plans will include hearings for controversial nominees such as Miguel Estrada, whom Bush nominated to the District of Columbia Circuit Court of Appeals and who is among those mentioned as a possible Bush choice for the Supreme Court. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000231 But Leahy also called on Bush to seek "consensus nominees" by consulting widely within the Senate and to resume use of the American Bar Association to screen nominations before they are made. Leahy said he's still waiting for Republicans to "concede any shortcomings in the practices they employed" to stall or block Clinton nominations. Hatch defended GOP treatment of Clinton's nominees, saying the former president won nearly as many confirmations as President Ronald Reagan. He said Bush has been more cooperative than other recent presidents in soliciting advice from senators. The yardstick for measuring the Democrats' performance, Hatch said, will be whether it matches the 100 confirmations that occurred during Clinton's second year in office. But, he added, "I think we're off to a good start." As for Pickering, some interest groups are sharply critical. The Alliance for Justice, one of about 50 liberal groups that announced a drive to defeat Pickering last Thursday, said a study of his record shows it is "characterized by a consistent lack of support for efforts to remedy racial injustice and by a strong opposition to reproductive freedom." The Alliance questioned the veracity of Pickering's claim, at his 1990 district court confirmation hearing, that he never had any contact with Mississippi's now-defunct State Sovereignty Commission, which was created to combat integration. Recently released commission records show that Pickering, as a state senator, asked to be "advised of developments" in a commission probe into union organizing in his hometown of Jackson. John Nowacki, deputy director of the Free Congress Foundation's Center for Law & Democracy, defended Pickering. "Left-wing groups are counting on people listening to their charges without taking a closer look," he said. "The facts show that Judge Pickering has been a supporter of civil rights for five decades, both on the bench and off." Senate Confirms Judge By Tony Batt Las Vegas Review-Journal Saturday, January 26, 2002 After a delay of more than a month, the Senate voted 81-0 Friday to confirm the nomination of Clark County District Judge James Mahan to become the newest federal judge in Nevada. Mahan's confirmation means fast-growing Nevada will meet the national caseload average for federal judges for the first time in 17 years, according to the state's chief U.S. District judge, Howard McKibben of Reno. Mahan will be stationed in Las Vegas with four other federal judges. Two federal judges are based in Reno. McKibben said he believes Mahan will receive his presidential commission and be sworn in within days. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000232 Mahan's confirmation stalled in the Senate last month when an angry Sen. Tom Harkin, D-Iowa, blocked judicial nominations on the final day of the 2001 session after a farm bill he wrote had been forced aside. Speaking on the Senate floor Friday, Harkin, chairman of the Senate Agriculture Committee, said he agreed to lift his hold on the nominees because he has been assured the Senate will take up the farm bill again in two weeks. Mahan, 58, said the delay did not bother him. 'It was politics, and I knew this process was political,' Mahan said. Sen. John Ensign, R-Nev., said the confirmation delay did not hurt Nevada, but he had worried about the toll it might take on Mahan. 'It even showed that much more of Judge Mahan's character the way that he handled the delay,' Ensign said. Mahan said his objective, as a federal judge in Nevada, will be to remember courts are a third branch of government designed to serve U.S. citizens by providing a fair forum for them to seek redress for their grievances. 'It's an honor just to be nominated because of all the people who are considered, and going through the Senate process is a humbling experience,' Mahan said. Sen. Robert Byrd, D-W.Va., serving as acting president of the Senate during the vote on Mahan, mistakenly announced that Mahan had been confirmed to be a federal judge for the District of Columbia. A federal judgeship is a lifetime appointment with an annual salary of $145,100. Despite the delay, Mahan's confirmation was never seriously in doubt after his nomination cleared the Senate Judiciary Committee last month by a vote of 19-0. Senators Divided on Judicial Nomination By Susan Roth Gannett News Service Friday, January 25, 2002 Hawaii's senators appeared divided Thursday on the White House's nomination of Honolulu attorney Frederick W. "Fritz" Rohlfing III for federal district judge. The approval of both senators is required for the nomination to go forward to a hearing in the Senate Judiciary Committee and confirmation in the committee and the full Senate. 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000233 Rohlfing, 45, is the son of former Republican state Sen. Fred Rohlfing, who was also a part-time U.S. magistrate on Maui. For senior Sen. Dan Inouye, who knows the senior Rohlfing and also knew the nominee as a child, the relationship qualifies Rohlfing for the lifetime judgeship. "I know the father very well and I'm certain this appointee is a good man," Inouye said. He said he has requested Rohlfing's FBI background report and the opinion of the Hawaii State Bar Association, but "as soon as I get word from them, I will tell the committee to proceed expeditiously." Sen. Daniel Akaka also knows Rohlfing's father and he is ultimately expected to approve the nomination as well, but he was more reserved than Inouye. "I had a very good meeting with Mr. Rohlfing last October," Akaka said in a statement. "I look forward to reviewing his qualifications when his nomination comes before the Judiciary Committee." Akaka has also requested the FBI report and bar association review. Both senators have been holding up the June nomination of Hawaii Republican Party counsel Richard Clifton to the 9th Circuit Court of Appeals because they disapproved of the way the White House chose him -- without their consultation. Both had been involved in the Clinton administration's 1999 nomination of attorney James Duffy, whom they enthusiastically supported, for the same position. Duffy's appointment was one of many never acted on by the Senate, which was then controlled by Republicans. But Inouye said Thursday that he has given Clifton his nod. He said had been waiting to hear from the White House that the Duffy nomination was officially dead, and he recently received that word. The senator is still angry that Republicans held up Duffy's appointment for two years, but he said he did not ask the White House to consider Duffy for another position. "This is their show. I'm not going to beg," he said. Akaka's spokesman, Paul Cardus, said Akaka is still reviewing Clifton's materials and qualifications but he may be near a decision as well. Akaka has not spoken with Inouye about the matter since December and did not know that Inouye had approved the nomination. President Names Two District Judges While Top State Law Jobs Are Filled By Michael Booth New Jersey Law Journal Monday, January 28, 2002 President Bush will nominate U.S. Magistrate Judge Stanley Chesler and former U.S. Rep. William Martini as U.S. district judges, filling two vacancies in New Jersey, the White House 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000234 announced last Wednesday. If confirmed, Chesler would take the seat vacated by Judge Anne Thompson in Trenton and Martini would take Judge John Lifland's seat in Newark. Thompson and Lifland are on senior status. In Trenton, Gov. James McGreevey continued to build his administration by making with top appointments in the Department of Law and Public Safety. Last Thursday, he made Assistant Attorney General Kathryn Flicker the director of the Office of Counter-Terrorism, which he created by executive order the same day. She is responsible for coordinating anti-terrorism efforts with local, state and federal law enforcement and emergency management agencies. On Jan. 16, Attorney General David Samson appointed Douglas Wolfson, a state Superior Court judge in Middlesex County, to head the 400-attorney Division of Law. Wolfson, assigned at present to the Civil Division, was appointed to the bench during the administration of Gov. James Florio. Before that, he was a partner at Woodbridge's Greenbaum, Rowe, Smith, Ravin, Davis and Himmel. Flicker is a career prosecutor who, since May 2000, has headed the Division of Criminal Justice, which First Assistant Attorney General Peter Harvey will run for the foreseeable future, according to a division spokesman. Flicker was a deputy assistant attorney general from 1971 to 1981. She then joined the Mercer County Prosecutor's Office, serving at various times as deputy first assistant, first assistant and acting prosecutor. She is a 1966 graduate of Indiana University and a 1970 graduate of Rutgers Law School-Camden. The two federal judge nominees have backgrounds in government service. Chesler, 54, has 15 years as a U.S. magistrate judge and 13 years in law enforcement. He was an assistant district attorney in Bronx County, N.Y., from 1974 to 1980. He then became a special attorney in the U.S. Justice Department's New Jersey Organized Crime Task Force, of which he was deputy chief from 1984 to 1986. He was an assistant U.S. attorney in New Jersey from 1986 to 1987, when he went on the bench. Chesler earned his B.A. from the State University of New York at Binghamton in 1968 and graduated from St. John's University School of Law with honors in 1974. Martini, 54, also has a record of government service. After law school, he clerked for Superior Court Judge Joseph Hanrahan and then served as an assistant Hudson County prosecutor and as an assistant U.S. attorney before starting his own law practice in 1978. From 1990 to 1994, he was on the Clifton City Council and from 1991 until 1994 was a member of the Passaic County Board of Chosen Freeholders. In 1994, he was elected to Congress in the Eighth District. A Republican, he served one term and was defeated for re-election by William Pascrell in 1996. He served as commissioner of the Port Authority of New York and New Jersey in 1999. A commercial-litigation and regulatory lawyer at Sills Cummis Radin Tischman Epstein & Gross in Newark, where he is a partner, Martini earned his B.A. degree from Villanova 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000235 University in 1968 and his law degree from Rutgers Law School-Newark in 1976. Although the Office of Counter-Terrorism is part of the Attorney General's Office, the agency will be "separate and distinct" from the department, McGreevey said in his order. It will be Flicker's responsibility to maintain day-to-day contact with the federal Homeland Security Council, run by former Pennsylvania Gov. Tom Ridge, and with the multitude of local, state and federal agencies that deal with terrorism. Bush’s Nominations for District Benches Sent to Senate Shannon Duffy Pennsylvania Law Weekly Monday, January 28, 2002 President Bush last week announced six nominees for the federal bench, three in the Eastern District and three in the Western District. Sen. Arlen Specter made the announcements in Philadelphia last Wednesday. All face Senate confirmation. Nominated to the federal bench in Philadelphia are attorney Michael M. Baylson and Judges, Legrome D. Davis and Cynthia M. Rufe. Nominated to the federal bench in Pittsburgh are two partners at Buchanan Ingersoll, Joy F. Conti and Arthur J. Schwab, and an Allegheny County Common Pleas Judge, Terrence F. McVerry. Specter praised the president for picking the three nominees and to give credit to the 16-member, bipartisan nominating panel of lawyers and laymen that helped choose them. Specter said the Eastern District of Pennsylvania federal bench is already a "very, very distinguished" court and that Baylson, Davis and Rufe "will add extra luster." The chairman of the nominating panel, attorney Thomas R. Kline of Kline & Specter, likewise had strong words of praise for the three nominees and also for Specter, whom he described as "the architect of the Eastern District bench." "I think these three nominations show once again that Senator Specter is really committed to finding the highest caliber nominees - that his interest is in getting the strongest bench possible," Kline said. Kline said he was especially pleased by the re-nomination of Philadelphia Common Pleas Judge Legrome Davis, who was tapped twice before by President Clinton - in 1998 and again in 1999 only to watch the nominations expire before the Senate took any steps to confirm him. If confirmed, Davis will fill the vacancy created when U.S. District Judge Edmund V. Ludwig took senior status. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000236 Davis earned his bachelor's degree at Princeton University in 1973 and his law degree at the Rutgers School of Law in Camden in 1976. His first job was as an assistant district attorney in Philadelphia, from 1977 to 1980, followed by a year as counsel to the Pennsylvania Crime Commission, and a return to the DA's office for another six years. The year 1987 brought rapid change for Davis - a resume hat trick - beginning with a post in the general counsel's office at the University of Pennsylvania, followed by a move to Ballard Spahr Andrews & Ingersoll as an associate, and ending the year with a gubernatorial appointment to the Philadelphia bench. He went on to win the judgeship in an election and earned a second 10year term in a retention election. Rufe is a former high school teacher who earned her law degree in 1977 at the State University of New York at Buffalo and spent the first five years of her legal career in the Bucks County public defender's office. In the decade of private practice that followed, she served four years as solicitor to the Bucks County Children & Youth Social Service Agency. In 1993, Rufe was elected to the Bucks County Common Pleas Court. Known first as Judge Cynthia Weaver, she changed her name after she married Common Pleas Judge John J. Rufe. If she is confirmed by the Senate, she will fill the vacancy created when U.S. District Judge Norma L. Shapiro took senior status. Baylson, a Duane Morris partner, is perhaps the best known of the three nominees because he served as U.S. Attorney from 1988 to 1993. A 1964 graduate of the University of Pennsylvania Law School, Baylson is a longtime friend of Sen. Specter, dating back to 1969 when Specter hired him as a prosecutor in the Philadelphia District Attorney's office. While an assistant district attorney, Baylson served stints as chief in both the homicide and narcotics divisions. Currently, Baylson focuses his practice on the areas of antitrust, commercial and securities litigation, often advising clients on insurance fraud matters, corporate compliance programs and governmental affairs involving environmental and health law issues. If confirmed, Baylson will fill the vacancy created when U.S. District Judge Robert F. Kelly took senior status. Buchanan attorney Conti, a former tenured professor at Duquesne University Law School and a past president of the Allegheny County Bar Association, was nominated to fill the seat vacated by Senior U.S. District Judge Alan N. Bloch. Buchanan lawyer Schwab, who has served as the firm's chief of complex litigation, was named 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000237 to fill Senior U.S. District Judge Maurice B. Cohill Jr.'s vacancy. Allegheny County Judge Terrence F. McVerry, who served 12 years as a Republican state representative, was named to fill Senior U.S. District Judge Donald E. Ziegler's vacancy. Specter confirmed that he and Sen. Rick Santorum are continuing to use a "formula" of choosing nominees to guarantee political diversity. For every three nominees from the political party of the president, he said, there will be one from the other party, regardless of who controls the Senate. But one source said Davis "doesn't really count as the one Democrat" because his nomination was not made at the urging of the Democratic Party leaders. The same source said that attorney Timothy Savage, a Philadelphia Democratic Party ward leader and an administrative law judge, is one of the most likely candidates for one of the two remaining seats on the Eastern District bench. Sources said the final Eastern District vacancy is almost sure to go to a lawyer in the Lehigh Valley - from Lehigh, Berks or Northampton counties - because Specter is intent on finding a judge who will sit in the new federal courthouse in Allentown. Palm Beach Circuit Judge, Miami Lawyer Tapped by President for Federal Judgeships By Dan Christensen Miami Daily Business Review Friday, January 25, 2002 President George W. Bush, pending the completion of FBI background checks, has nominated Palm Beach Circuit Judge Kenneth A. Marra and Miami lawyer Jose E. Martinez to be U.S. District Court judges in South Florida. Meanwhile, big names dot the list of 20 applicants looking to fill a third local federal judgeship one that's been billed as possibly the last to become available for several years. Those candidates include outgoing U.S. Attorney Guy Lewis, U.S. Magistrates Ted E. Bandstra and Barry S. Seltzer, 3rd District Court of Appeal Judge Juan Ramirez, Miami-Dade Circuit Judges Jerald Bagley, Peter Lopez and Cecilia M. Altonaga and Broward Circuit Judges James I. Cohn and Robert A. Rosenberg. Bandstra and Bagley were finalists for the nomination that went to Jose Martinez. Seltzer and Cohn were finalists for the slot that Marra was picked to fill. Other well-known lawyers have applied for the lifetime seat that will open in March when Judge Shelby Highsmith takes senior status. They include U.S. Bankruptcy Trustee Roberto A. Angueira, U.S. Immigration Judge Lilliana Torreh-Bayouth, Miami lawyers Michael A. Hanzman and Linda Osberg-Braun, assistant U.S. attorneys Caroline Heck-Miller and Marvelle McIntyre-Hall, and Frank A. Shepherd, a leader of the conservative Federalist Society and 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000238 managing attorney at the Miami office of the Pacific Legal Foundation. Rounding out the list of applicants are Miami-Dade Legal Aid Society lawyer Peter Sylvester Adrien, Miami lawyer John R. Kelso and West Palm Beach lawyers Diana Lewis and D. Culver Smith. Smith, with Holland & Knight, has represented the Daily Business Review. The White House's announcement late Wednesday that Bush was nominating Marra and Martinez for confirmation by the Senate came more than two months after word of those choices first leaked. Martinez, a 60-year-old native of the Dominican Republic, is a stalwart Republican, former federal prosecutor and name partner in the nine-attorney firm Martinez & Gutierrez. He specializes in liability cases, including tobacco and automotive product liability defense. Martinez was in trial in a tobacco case on Thursday and could not be reached for comment. He will fill the position once occupied by retired Chief Judge Edward B. Davis. Marra, 50, is a Stetson law school graduate who was first appointed to the Palm Beach bench by Gov. Lawton Chiles in 1996. Before that, he worked as a civil trial attorney for the Department of Justice and was a partner and commercial attorney in Palm Beach's Nason Gildan Yeager Gerson & White. The firm is now know as Nason Yeager Gerson White & Lioce. Marra said in a statement released by his office that he was "humbled and honored" by his nomination. "I look forward to completing the nomination process before the United States Senate, and to the many challenges that await me as a United States district judge," said Marra, who will sit in a newly created seat in Fort Lauderdale. The Senate has not yet scheduled confirmation hearings for either man. Op/Eds Vacant Benches; Candidates on the Hit List By Nancy Pfotenhauer and Jennifer Braceras The Washington Times Monday, January 28, 2002 Last week, President George W. Bush nominated 24 men and women to the federal judiciary, bringing to 60 the number of judicial nominations now pending before the Senate. As the Senate's backlog of nominations mounts, the number of vacancies on the federal bench also continues to rise. But, rather than act swiftly to alleviate the logjam, Senate Democrats - under pressure from radical feminist groups - have undertaken a vicious and ideological campaign to stonewall the president's judicial nominees. In so doing, they have increased the pressure on the 20 VERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000239 already overburdened federal courts and jeopardized the independence of our federal judiciary. When Mr. Bush took office, there were 82 federal judicial vacancies. During his first year in office, Mr. Bush nominated 66 men and women to Article III judgeships. Yet, when the Senate adjourned in December, it had confirmed only 28 of these nominees and the number of vacancies had increased to 94. As of today, there are 99 vacancies - meaning that the federal courts are currently operating without 12 percent of the allotted judgeships. Why the Senate intransigence? The delay in processing judicial nominees has nothing to do with the qualifications of the candidates and everything to do with interest-group politics. In December, The Washington Times reported that Democratic senators have been coming under intense pressure from the National Organization for Women (NOW), the Ms. Foundation and other left-wing feminist groups to block the confirmation of nominees whose willingness to strike down all legislative restrictions on abortion procedures is not clearly documented and whose support for other "key issues" on the left's social agenda is in question. On Jan. 22, NOW issued an incendiary press release threatening retribution at the ballot box if senators vote to confirm any of the president's judicial nominees who do not meet the organization's ideological litmus test. On the feminists' hit list are several highly esteemed female nominees, whom the interest groups view as insufficiently committed to the cause of abortion on demand. Take, for example, the nomination of Judge Carolyn B. Kuhl, who currently sits on the Superior Court of California, to a seat on the vastly overburdened U.S. Court of Appeals for the Ninth Circuit (which includes California). Prior to joining the state court bench in 1995, Judge Kuhl - a graduate of Princeton University and Duke Law School - was a partner at Munger Tolles, one of this nation's most prestigious law firms. Judge Kuhl also previously served in the Justice Department as deputy solicitor general, where she argued a number of cases before the U.S. Supreme Court. Despite her obvious qualifications, the radical feminists have targeted Judge Kuhl for defeat. Her crime? As one of the government's top lawyers, she authored briefs on behalf of the United States arguing that certain restrictions on abortion were constitutionally permissible, and questioning the constitutional underpinnings of Roe vs. Wade. Of course, most lawyers understand that it is unfair to criticize (or, indeed, praise) any nominee based the positions adopted by his or her client (in this case, the U.S. government). But the radical feminists view Judge Kuhl's prior representation of a client whose views differ from their own as political apostasy. Another highly qualified woman targeted for defeat by left wing feminists is Justice Deborah L. Cook of the Ohio Supreme Court, whom the president nominated in May to a seat on the U.S. Court of Appeals for the Sixth Circuit (which includes Ohio). Justice Cook has more than 10 years of experience as an appellate judge on the Ohio Supreme Court and Court of Appeals. She was also the first female partner at Akron's oldest law firm, Roderick Linton, where she practiced law from 1976 to 1991. Rather than celebrate Justice Cook as a pathbreaker, NOW has chosen to attack her for being a member of the Federalist Society, a primarily conservative and libertarian group whose mission is to foster intellectual debate on the fundamental principles of individual freedom and limited 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000240 government. Responding to NOW's McCarthy-like tactics, the Senate has refused to schedule a hearing for Justice Cook, even though the Sixth Circuit, to which she was appointed, is currently operating at half-strength and is desperately in need of additional judges. Because of this well-organized and well-funded ideological attack on candidates for the federal bench, nominations such as those of Judge Kuhl and Justice Cook have languished without Senate action for more than seven months. The irony, of course, is that the same radical feminists who have long whined about the need to break the "glass ceiling" in order to allow more women to succeed at the very highest levels of their professions are now trying to prevent certain female nominees from even obtaining a hearing before the Senate Judiciary Committee. Demanding guarantees from judicial nominees that they will vote a certain way on cases that may eventually come before them violates the principle of impartiality that is the cornerstone of an independent judiciary. Moreover, the campaign to derail the Bush judicial nominees does nothing to advance the cause of women's rights. To the contrary, it reveals as utterly disingenuous and hollow the feminists' purported goal of achieving "diversity" and gender equity in federal appointments. Worse still, it further entrenches the backlog in the administration of justice, thus increasing the chance that justice will be denied or that the law will not be enforced a condition which surely cannot benefit women or others seeking protection from our legal system. Recognizing the threat to our system of justice posed by the well-organized and well-funded ideological attack on the president's judicial nominees, the Independent Women's Forum on Jan. 21 delivered to Sen. Thomas Daschle a letter signed by more than 40 prominent women from both sides of the political aisle, urging the Senate to reject political litmus tests as the standard for confirming federal judges. A fully staffed, balanced and independent judiciary is necessary for the protection of every American's safety, freedom and civil rights. If Senate Democrats really want to ensure that women - and, indeed, all Americans - have access to justice, they must act with all deliberate speed to conduct hearings and schedule floor votes on all of the president's judicial nominees. Nancy Pfotenhauer is president of the Independent Women's Forum. Jennifer Braceras is the John M. Olin Fellow in Law at Harvard Law School. Impartial Politicians? Follow the Money By Clay Robison The Houston Chronicle Sunday, January 27, 2001 It would be premature and more than a little naive to predict that the Enron debacle will prompt lawmakers to finally clean up the cesspool of political contributions and special-interest clout in either Austin or Washington. 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000241 Embarrassed at being caught taking generous handouts from Corporate Enemy No. 1, members of the U.S. House finally have moved to force a vote on campaign finance legislation. But there is no guarantee that a meaningful bill will be passed. Back in Texas, meanwhile, Enron and the appearance of unholy influence-peddling at the bar of justice may have claimed its first elected victim, Texas Supreme Court Justice Priscilla Owen. Owen, one of the most conservative members of a conservative court, was nominated by President Bush last May for promotion to the 5th U.S. Circuit Court of Appeals in New Orleans. Even before Enron, her appointment was in jeopardy because of her conservatism. The Democratic-controlled Senate Judiciary Committee hadn't even scheduled a confirmation hearing, a fate suffered by a number of other Bush judicial nominees. Now, Owen's liberal opponents have more ammunition to fire against her. She accepted $ 8,700 in contributions from Enron's political action committee and executives during her 1994 election campaign and, two years later, wrote a unanimous court decision that saved Enron $ 225,000 in a suit over school property taxes. The Enron donations, under Texas law, were legal, as was Owen's participation in a case benefitting political contributors. And if she were commenting, she would say the former didn't influence the latter - and maybe they didn't. In reality, $ 8,700 is peanuts in the high-dollar game of campaign finance in Texas, even in judicial races, which have some limits that campaigns for other state offices don't have. The Enron ruling may have been soundly within the law, but the perception was bad. Reasonable people can certainly assume that officeholders - including judges - can be influenced by their campaign donations because contributions, indeed, are made to influence decisions. In the real world, people spend their money to obtain a product or a service that they want, and motives aren't all that different in the political world. Enron executives didn't give money to Owen's election campaign simply because they thought she was a good judge. They contributed because they thought she was a good judge who favored their general business philosophy and, more often than not, could be expected to rule on their side in contested cases. And part of the price of accepting Enron money, it turns out, is putting up with fallout from the company's spectacular crash. Owen was operating no differently than her colleagues on the high court and untold numbers of lower-court judges throughout Texas. Enron-related contributors gave Supreme Court justices about $ 134,000 for the 1994 through 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000242 1998 election cycles, according to Texans for Public Justice, a group that tracks political contributions. Most Texas judges are elected in partisan races and, with only modest limits on amounts, are free to accept campaign money from lawyers and other donors with interests in cases the judges will later decide. For years, the Legislature has stubbornly refused to change the system, despite repeated criticism from within and without Texas. To their credit, Owen and some other Supreme Court justices have urged lawmakers to scrap the partisan election system, at least for members of the highest state courts. Several alternatives have been suggested, but, for starters, the best approach would be to have the governor appoint members of the two high courts - the Supreme Court and the Court of Criminal Appeals - to six-year terms, subject to Senate confirmation. Selling that change to the voters, who would have to approve an amendment to the Texas Constitution, may be even more difficult than selling it to the Legislature. But, if successful, it could help begin lifting a cloud from at least one branch of state government. And who knows? The idea could become contagious. "Giving large amounts of money to paid public officials is maybe not such a good idea," U.S. Sen. Fred Thompson, R-Tenn., observed in Washington the other day. No fooling. The Crisis in our Courts By Alberto Gonzales The Wall Street Journal Friday, January 25, 2002 Federal courts protect constitutional rights, resolve critical civil cases, and ensure that criminals are punished. But as Chief Justice William Rehnquist cautions, the ability of our courts to perform these functions is in jeopardy due to the "alarming number" of judicial vacancies, 101 as of today. President Bush has responded to the vacancy crisis by nominating a record number of federal judges: 90 since taking office, almost double the nominations that any of the past six presidents submitted in the first year. Despite his decisive action, the Senate has not done enough to meet its constitutional responsibility. It has voted on less than half of the nominees. Indeed, it has voted on only six of the 29 nominees to the courts of appeals. And the Senate has failed even to grant hearings to many nominees, who have languished before the Judiciary Committee for months. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000243 For example, on May 9, 2001, the president announced his first 11 nominees. All were deemed "well qualified" or "qualified" by the American Bar Association, whose rating system Judiciary Committee Chairman Patrick Leahy has called the "gold standard" for evaluating nominees. Yet his committee has held hearings for only three of the 11. Although the Senate did confirm 28 judges last year, its overall record was unsatisfactory, given the number of vacancies and pending nominees. As Congress returns to work, the administration respectfully calls on the Senate to make the vacancy crisis a priority and to ensure prompt hearings and votes for all nominees. The Senate should make this practice permanent, adhering to it well after President Bush leaves office, so as to ensure that every judicial nominee by a president of either party receives a prompt hearing and vote. The federal courts desperately need reinforcements. There are 101 vacancies out of 853 circuit and district court judgeships. The 12 regional circuit courts of appeals have an extraordinary 31 vacancies out of 167 judgeships (19%). The chief justice recently warned of the dangerous impact the vacancies have on the courts and the American people, and the Judicial Conference has classified 39 vacancies as "judicial emergencies." In 1998, when there were many fewer judicial vacancies, Sen. Thomas Daschle, now majority leader, and Mr. Leahy expressed their concern about the "vacancy crisis" -- with the latter explaining that the Senate's failure to vote on nominees was "delaying or preventing the administration of justice." Today's crisis is worse, and is acute in several places. The D.C. Circuit Court of Appeals, which, other than the Supreme Court, is often considered the most important federal court because of the constitutional cases that come before it, has four vacancies on a 12-judge court. The Sixth Circuit Court of Appeals has eight vacancies on a court of 16. In March 2000, when that court had only four vacancies, its chief judge stated that it was "hurting badly and will not be able to keep up with its work load." In the past, senators of both parties have accused each other of illegitimate delays in voting on nominees. The past mistreatment of nominees does not justify today's behavior. Finger-pointing does nothing to put judges on the bench and ease the courts' burdens; it only distracts the Senate from its constitutional obligation to act on the president's judicial nominees. President Bush has encouraged the Senate to act in a bipartisan fashion, both now and in the future. He put it best at the White House last May while announcing his first 11 nominees: "I urge senators of both parties to rise above the bitterness of the past, to provide a fair hearing and a prompt vote to every nominee. That should be the case for no matter who lives in this house, and no matter who controls the Senate. I ask for the return of civility and dignity to the confirmation process." It is time for the Senate to heed his call. 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000244 Mr. Leahy and Judges The Washington Post Sunday, January 27, 2002 SEN. PATRICK Leahy, Democratic chairman of the Senate Judiciary Committee, gave a speech on the Senate floor Friday that, on the surface, seemed like another round of partisan warfare over judges. But embedded within the rhetoric was a significant step toward bringing some comity back to the judicial nominations process. Mr. Leahy promised "steadiness in the hearing process" and "regular hearings" on judges at a pace faster than the Senate has managed in recent years. He promised also that these hearings would not be weighted too heavily toward relatively uncontroversial district judges but would give appeals court judges a fair shake too -- including specifically a number of court of appeals nominees whom liberals oppose. One can quibble about the names the senator left off his list; he did not, for example, promise a hearing for D.C. Circuit nominee John Roberts. But the overall message was positive. If Mr. Leahy sticks to the plans he laid out, this could be a fair and productive year for judicial nominations. Mr. Leahy also asked that President Bush do more to accommodate the concerns of Senate Democrats in making nominations. It is a message that Mr. Bush should take to heart. In two courts of appeals in particular, the 6th and 4th circuits, Republicans blocked President Clinton's nominees for years, keeping seats open that Mr. Bush is now keen to fill. Democratic senators from Michigan and North Carolina want a say in who gets nominated and are blocking Mr. Bush's nominees. Mr. Bush has the right to name whomever he wants, but the Democratic grievance is legitimate, and the process would benefit greatly if these logjams could be broken in a fashion acceptable to both parties. It's hard to imagine that nowhere in these two states are there potential judicial candidates whose records and qualifications stand above politics. Letters to the Editor Dayton Daily News January 25, 2002 Columnist Tom Teepen, in his Jan. 4 column, "Approval process, pay for jurists needs reform" was correct. Teepen wrote, "the confirmation mess will not end until both parties go back to making moderate appointments and the GOP stops being a willing partner in its right's scheming." Support for strong civil rights, reproductive freedom and environmental protections is widespread in this country. However, President George W. Bush insists on nominating individuals who are far from the mainstream. For example, Charles Pickering, Bush's nominee for a vacant seat on the 5th Circuit Court of Appeals, has attempted time and again to undermine civil rights and other majority values. We should applaud the Senate Judiciary Committee for creating a thorough and rigorous confirmation process so conservative ideologues such as Pickering will be exposed for what they 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000245 are: biased, unfair and not likely to be neutral on the bench. Teepen was correct when he said the current nominees are among the most conservative ever put forward and that the larger blame for the current gridlock in federal appointments should be placed on the Republicans. I hope more people will support the Senate Judiciary Committee for endeavoring to create a fair and independent judiciary. Bridget Tracy West Carrollton Teepen should keep focus on GOP's stalling tactics Tom Teepen blamed the Republicans for the current gridlock over judicial confirmations and criticized congressional inaction regarding federal judges' pay ('Approval process, pay for jurists need reform,' Jan. 4). Teepen was right on the first count: President George W. Bush has nominated individuals who can be described as nothing but conservative ideologues ready and willing to roll back civil rights and environmental protections. Furthermore, judicial vacancies exist in part because of former Senate Judiciary Chairman Orrin Hatch's stalling tactics over judicial nominations. He used these tactics successfully for years during the Clinton presidency. But on the second count I cannot agree with Teepen. Most lawyers would drop their current jobs in a heartbeat for the chance to become a federal judge, because sitting on the federal bench is among the highest honors in the legal profession. Teepen should not focus on the smaller details of wages but on the major issues at hand: The Republicans are to blame for the numerous vacancies on the federal bench, and the public should show its support for the Senate Judiciary Committee. It is clearly dedicated to molding a balanced and fair judiciary. Jeffrey M. Silverstein Washington Twp. Judicial Offense; Bush’s Nomination of Pickering Deserves Rejection Detroit Free Press Saturday, January 26, 2002 With his nomination of Mississippi District Court Judge Charles Pickering to the U.S. Court of Appeals, President George W. Bush is substantiating fears that he would attempt to turn the federal judiciary into a right-wing monster. Pickering is an unreconstructed Dixiecrat whose writings, votes and record over the course of a long legal and political career evince a disturbing degree of bias against civil rights, women's rights, civil liberties and black Americans in general. The Senate Judiciary Committee, which 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000246 will consider the nomination next week, should reject Pickering out of hand as an affront to African Americans and to any American who believes in equality and democracy. As a Mississippi legislator, Pickering fought implementation of the 1965 Voting Rights Act, even co-sponsoring a resolution for its repeal. He supported the notorious and secretive Mississippi Sovereignty Commission, a state-funded agency established to oppose integration efforts after the landmark Brown v. Board of Education decision. The commission had close ties to the racist White Citizens Council and spied on civil rights and labor activists. As a District Court judge, Pickering consistently criticized and opposed the one-person-one-vote doctrine and majority black voting districts. He wrote an article in the Mississippi Law Journal in 1959 calling for legislation -- enacted shortly thereafter -- strengthening a Mississippi law banning interracial marriages. His career also is characterized by a relentless hostility toward abortion rights, as well as the rights of habeas corpus and due process. Americans deserve more from their courts than this type of narrow mindedness. The Pickering nomination suggests the Bush administration has a dangerous agenda for the federal judicial system. Transcripts/Members of Congress Leahy Charts ‘The Way Forward’ on Judicial Nominations Floor Statement of Senator Patrick Leahy Friday, January 25, 2002 As we begin this new session I will take a moment to report where we are in the handling of judicial nominations and to outline the road ahead. I will touch on the legacy of the last six years that has left a residue of problems that will take continuing effort to purge. Then I will offer the steps that we in the majority will take, in good faith, to undo the damage of the last six years, and I will call on the White House to take similar steps to help us move this process forward. A GOOD BEGINNING In the span of just six months, and in a year that was tumultuous for the nation and for the Senate, the Judiciary Committee between July and the end of the session in December held hearings on 34 judicial nominees and approved 32, and the Senate confirmed 28. I expect we will be adding to that tally today. Nearly all are conservative Republicans, and nearly all were unanimously approved by Democrats and Republicans and Independents alike, on the Judiciary Committee and by the Senate, by a Democratically controlled Senate. We reported more judicial nominees after the August recess than in any of the preceding six 28 VERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000247 years and more than in any similar period over the preceding six and one-half years. Having not a year but only six months to work with, not only did the Senate confirm almost twice as many judges as were confirmed in the first year of the earlier Bush Administration, we confirmed more judges -- including twice as many judges to the Courts of Appeals -- as in the first year of the Clinton Administration. The Senate confirmed the first new member of the 5th Circuit in seven years, the first new judge on the 4th Circuit in three years, and the first new judge on the 10th Circuit in six years. Of course more than two-thirds of the federal court vacancies continue to be on the District Courts. The Administration has been slow to make nominations to the vacancies on these trial courts. In the last five months of last year, the Senate confirmed a higher percentage of the President's trial court nominees, 22 out of 36, than a Republican majority had allowed the Senate to confirm in the first session of either of the last two Congresses with a Democratic President. Last year the White House did not make nominations to almost 80 percent of the current trial court vacancies. We began this session with 55 out of 69 vacancies without nominees. We have acted to build better practices into the process to make the confirmation process for federal judges more orderly. We made some progress at the end of last year, when after many months the White House and our Republican colleagues finally agreed to limited steps to update and simplify our Committee questionnaire. By the time the Judiciary Committee was reorganized and began its work last summer, the vacancies on the federal courts were peaking at 111. Since then 25 additional vacancies have arisen. Through hard work in the limited time available to us, we were able to outpace this high level of attrition. By contrast, when Republicans took charge of the Senate in January 1995 until the majority shifted last summer, judicial vacancies rose from 65 to more than 100, an increase of almost 60 percent. We also held 16 confirmation hearings in the last five months of last year for Executive Branch nominees, and we sent to the Senate nominees who were confirmed for 77 senior Executive Branch posts including the Director of the FBI, the head of the DEA, the Commissioner of INS, the Director of the U.S. Marshals Service, the Associate Attorney General, the Director of ONDCP, the Director of PTO, seven Assistants Attorney General, and 59 U.S. attorneys. Senators will recall that soon after Judge Gregory's confirmation last July, the White House Counsel said in an interview that he did not expect the Senate to confirm more than five judges before the end of 2001. That was actually a revision up from the initial charges from some on the other side of the aisle after the mid-year change in majority that the Democratic majority would not confirm a single judge. One might have thought from the constant barrage of partisan criticism that 2001 resembled 1996, a year in which a Republican Senate majority confirmed only 17 judges, none of them appellate-level nominees. The worst fear of some, it has been clear, is that Democrats would treat Republican nominees as poorly as Democratic judicial nominees were treated by a Republican Senate. That is not what happened. In just five months, we went on to confirm more than five times the number predicted by the White House Counsel. 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000248 The Committee also has opened up the process as never before. For the first time, the Judiciary Committee is making public the "blue slips" sent to home state Senators. Until last summer, these matters were treated as confidential materials and restricted from public view. We have moved nominees with less time from hearings to the Committee's business meeting agenda, and then out to the floor, where nominees have received timely roll call votes and confirmations. Over the preceding six and one-half years, at least eight judicial nominees who completed a confirmation hearing were never considered by the Committee and simply abandoned, without action. Also, the past practices of extended unexplained anonymous holds on nominees after a hearing were not evident in the last five months of last year as they had been in the recent past. Yesterday, the Judiciary Committee held another hearing for judicial nominees, the twelfth since last July. The Senate can be proud of its record in the First Session of the 107th Congress of beginning to restore steadiness in its handling of judicial nominees, and we are prepared to build on that record in the Second Session. THE LEGACY OF THE LAST SIX YEARS The legacy of the strife over the filling of judicial vacancies that we all must work to overcome began in 1996, when months went by without the Republican Senate acting on judicial nominations from a Democratic president. Later that year outside groups began forming to raise money on their pledge to block action on judicial nominees. As the new session opened in 1997, efforts were launched on the Republican side of the aisle to slow the pace of Judiciary Committee and Senate proceedings on judicial nominations and to erect new obstacles for nominees. The results were soon apparent throughout the process, and they persisted throughout the remainder of President Clinton's Administration. In the six years that a Republican majority was considering President Clinton's judicial nominations, more than 50 nominees never received a hearing and a Committee vote. They included Judge James A. Beaty, Jr. Judge James Wynn, and J. Rich Leonard, nominees to longstanding vacancies on the 4th Circuit; Judge Helene White, Kathleen McCree-Lewis and Professor Kent Markus, nominees to the 6th Circuit; Allen Snyder and Professor Elana Kagan, nominees to vacancies on the D.C. Circuit; James Duffy and Barry Goode, nominees to the 9th Circuit; Bonnie Campbell, the former Attorney General of Iowa and former head of the Violence Against Women Office at the Department of Justice, nominated to the 8th Circuit; Jorge Rangel, H. Alston Johnson and Enrique Moreno, each nominated to the 5th Circuit; Robert Raymar and Robert Cindrich, among the nominees to the 3d Circuit; and District Court nominees like Anabelle Rodriguez, John Bingler, Michael Schattman, Lynette Norton, Legrome Davis, Fred Woocher, Patricia Coan, Dolly Gee, David Fineman, Ricardo Morado, David Cercone, and Clarence Sundram. None of these qualified nominees was given a vote. 30 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000249 Over the course of those years, Senate consideration of nominations was often delayed for not months but years. It took more than four years of work to get the Senate to vote on the nominations of Judge Richard Paez and Judge William Fletcher; almost three years to confirm Judge Hilda Tagle; more than two years to confirm Judge Susan Mollway, Judge Ann Aiken, Judge Timothy Dyk, Judge Marsha Berzon and Judge Ronald Gould; almost two years to confirm judge Margaret McKeown and Judge Margaret Morrow and more than a year to confirm several others during the preceding six and one-half years of Republican control. During those years, the Republican majority in the Senate went entire sessions without confirming a single judge for the Courts of Appeals. As few as three appellate nominees were granted hearings and committee votes in an entire session. During that time, the Republican majority averaged eight hearings a year for judicial nominees and had as few as six during one entire session. One session of Congress, the Republican majority allowed only 17 judges to be confirmed all year, and that included not a single judge to any Court of Appeals. All the while, the judicial vacancy rate continued to worsen. The problems did not end when President Clinton left office. New problems have arisen through unilateral actions taken by the Bush Administration in its handling of judicial nominations. When the new Republican White House decided to summarily end the 50- year practice, by Presidents of both parties, of allowing peer reviews of candidates by the American Bar Association to begin under White House auspices, that change alone added months to the Senate's clock in the handling of each nomination. Similarly, the Bush Administration's unilateral approach in vetting nominees, virtually disregarding the Senate's longstanding practices that encourage consultation with home-state Senators, had needlessly complicated the Senate's handling of several of the President's nominees. Nor has the White House responded to our repeated requests to help the Senate work through residual issues caused by the Republican Senate's earlier actions and inactions relating to several Circuit Courts. These are problems that have grown and festered over time and cannot all be remedied immediately, especially in the absence of White House cooperation. THE WAY FORWARD We have made a good beginning in the first six months of Democratic leadership in the Senate. But the way forward will not be easy, and continued progress will require leadership and cooperation and good will within the Senate and by the White House. These are the steps that the Judiciary Committee will take in good faith: First, we will restore steadiness in the hearing process. The Committee will hold regular hearings at a pace that will exceed the pace of the last six years. Following longstanding committee practice, each hearing typically will involve several nominees -- one Circuit Court nominee and several district court nominees. Since the Senate's reorganization last July, we have convened judicial nominations hearings each and every month. By contrast, in the 72 months that the Republican majority most recently 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000250 controlled scheduling such hearings, in 30 of those months no hearings were held at all and in another 34 months only one was held. Yesterday we held our 12th hearing since July. If we are able to keep to this pace, we will hold more hearings this session than were held in any of the six and one-half years of Republican control and more than twice as many as were held in some of those years. Second, we will include hearings for a number of controversial nominees who do not have blue slip problems. We will convene a hearing the week after next on the nomination of Charles W. Pickering for the Fifth Circuit Court of Appeals. I fully expect that we also will have hearings on other nominations for which consensus will be difficult, including such nominees as Judge Priscilla Owen, Professor Michael McConnell, and Miguel Estrada. And third, we will continue to seek a cooperative and constructive working relationship with our colleagues on the other side of the aisle and with the White House to make the confirmation process more orderly, less antagonistic, and more productive. Finding our way forward out of the legacy of the last six years will also require White House cooperation. Today I ask the President, for his part, to consider several steps, each of which make a tangible improvement in the consideration of judicial nominations. First, the most progress can be made most quickly if the White House would begin working with home state Senators to identify fair-minded, nonideological, consensus nominees to fill these court vacancies. One of the reasons that the Committee and the Senate were able to work as rapidly as we did in confirming 28 judges in the last five months was because those nominations were strongly supported as consensus nominees by people from across the political and legal spectrums. I have heard of too many situations, in too many States, involving too many reasonable and constructive home state Senators, in which the White House has shown no willingness to work to cooperatively find candidates to fill vacancies. The White House's unilateralism is not the way the process is intended to work, and it is not the way the process has worked under past administrations. I urge the White House to show greater inclusiveness and flexibility and to help make this a truly bipartisan enterprise. Logjams persist in several settings, the legacy of the last six years. To make real progress, the White House and the Senate should work together to repair the damage and move forward. The Constitution directs the President to seek the Senate's advice and consent in his appointments to the federal courts. The lack of effort on the advice side of that obligation gives rise to a general impression, heightened by the White House's refusal to work cooperatively with some home state Democratic Senators, and by its unwillingness to listen to suggestions to continue the bipartisan commissions that have been a tradition in many states, that the White House and some in the Senate are intent on an ideological takeover of the courts. With the Circuits so evenly split in so many places, nominees to the Courts of Appeals may have a significant impact on the development of the law for decades to come. Some of us are concerned 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000251 that there not be a roll back in the protections of individual rights, civil rights, workers' rights, consumer rights, privacy rights and environmental protection. Second, I ask the President to reconsider his early decision on peer review vetting, which has needlessly added months to the time required to begin the hearing process for each nominee. For more than 50 years the American Bar Association was able to conduct its peer reviews simultaneously with the FBI background check procedures. This meant that when nominations were sent to the Senate, the FBI report and ABA peer review arrived soon afterward. We had occasions last year when we proceeded with hearings with fewer District Court nominees than I would have liked because recent nominees' files were not yet complete. I fear that same problem will be repeated this year. For example, the FBI and ABA background materials on the 24 District Court nominations being received this week cannot be anticipated before late March or April. That is regrettable, and it is avoidable. Just as no Senator is bound by the recommendations of the ABA, so, too, the White House can make clear that it is restoring this traditional practice not because it intends to be bound by the results of that peer review or even take it into account, but solely to remove an element of delay that it had inadvertently introduced into the confirmation process. The White House can expressly ask the ABA not even to send the results of its peer review to the Executive but proceed only to transmit them to the Committee, if it chooses. Few actions available to either the Senate or the White House can make as constructive a contribution as would the President's resolution of this problem, and I ask him to seriously and thoughtfully consider taking it. CONCLUSION Whether we succeed will depend in large measure on whether those goals are shared by Republican Senators and the White House. We will not have repaired the damage that has been done if we make progress this year and the improvements we are able to make are not institutionalized and continued the next time a Democratic President is the one making judicial nominations. To date, we have yet to hear Republicans concede any shortcomings in the practices they employed over the previous six and one-half years. Since the change in majority last summer, we have been exceeding their pace and productivity over the prior six and one-half years. If their efforts were acceptable, or as praiseworthy as some would argue, I would expect them to commend our better efforts since July. If they did things they now regret, their admissions would go far to helping establish a common basis of understanding and comparison. Taking that step would be a significant gesture. It is something that has not yet occurred. These nominees we are voting on this morning are clear evidence, again, that consensus nominees with widespread and bipartisan support are more easily and more quickly considered by the Committee and confirmed by the Senate. There are still far too many judicial vacancies, and we must work together to fill them. We have finally begun moving the confirmation and vacancy numbers in the right direction. 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000252 The way forward is difficult. Democrats, alone, cannot achieve what should be our common goal of regaining the ground lost over the last six years. But all of us together can achieve that. I invite each with a role in this process to join in that effort. Interest Groups/Press Releases Statement of the AFL-CIO in Opposition to the Nomination of Charles W. Pickering, Sr. to the United States Court of Appeals for the Fifth Circuit AFL-CIO Monday, January 28, 2002 The AFL-CIO joins with the Leadership Conference on Civil Rights and other civil rights organizations in opposing the nomination of Charles W. Pickering, Sr., to the United States Court of Appeals for the Fifth Circuit. At this moment in our history, our nation needs to move forward and build on the progress we have made in enacting and implementing strong civil rights guarantees for all Americans. The federal courts play a crucial role in upholding and enforcing these rights. President Bush should nominate to the courts, and the Senate should confirm, civil rights champions, not nominees with questionable records on civil rights. But Judge Pickering=s record is problematic in many respects, particularly in the area of civil rights. As a law student, Charles Pickering wrote an article suggesting how the state legislature could pass a law criminalizing interracial marriage -- recommendations that the legislature then adopted. During his eight years as a state senator in Mississippi, he cast several votes that denied electoral opportunities to African American voters. Also troubling is Judge Pickering=s apparent involvement with the Sovereignty Commission, a notorious state agency established to resist integration in the wake of the Brown v. Board of Education decision. And, during his tenure as a federal district judge, Judge Pickering has issued a number of questionable rulings in the civil rights area that indicate a lack of appreciation for important civil rights protections. Judge Pickering=s record raises troubling questions about his suitability for a lifetime appointment to the Fifth Circuit. The significance of these questions is heightened given that the Fifth Circuit, which covers Mississippi, Louisiana, and Texas, has one of the highest concentrations of minorities of any circuit court in the country. We urge the Senate to reject this nomination. AAUW Strongly Opposes the Nomination of Judge Charles Pickering for the U.S. Fifth Circuit Court of Appeals American Association of University Women Monday, January 28, 2002 34 VERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000253 Senate Has Responsibility to Reject Candidate Hostile to Civil and Women’s Rights Statement of Nancy Zirkin, AAUW Director of Public Policy and Government Relations The American Association of University Women (AAUW), with 150,000 bipartisan members nationwide, announces its opposition to the nomination of Judge Charles Pickering to the U.S. Fifth Circuit Court of Appeals. Careful examination of Pickering’s record reveals a lack of regard for the protection of civil rights, reproductive rights, women’s rights, and individual liberties. AAUW believes that the Senate has a responsibility to the American people to confirm only jurists who are committed to upholding these ideals. Charles Pickering does not meet this standard. Charles Pickering’s record demonstrates marked hostility to both a woman’s right to reproductive freedom and to civil rights. As a state senator, Pickering voted to call a constitutional convention to outlaw abortion and voted against state funding for family planning programs. Additionally, Pickering chaired the Republican party platform committee that first inserted into the platform a denunciation of the Supreme Court’s decision in Roe v. Wade and called for an amendment to the U.S. Constitution to ban abortion. We have no evidence that he has changed his mind on this issue. Charles Pickering’s documented contempt for civil rights is of particular concern in the circuit to which he has been nominated. With 43 percent of the 5th Circuit made up of people from underrepresented groups, it is crucial that the judges be extremely sensitive to the civil rights and concerns of these populations. However, as a state senator, Pickering voted to resist measures that would expand electoral opportunities for African Americans, even after passage of the Voting Rights Act of 1965. In addition, as a district court judge, Pickering has continued to strongly criticize the protection of voters’ rights by federal courts under the "one person-one vote" doctrine as "obtrusive." Federal judicial appointments lifetime positions are far too important to hastily confirm nominees with extremist or controversial positions. The Senate holds an enormous responsibility in its constitutional role to advise and consent on federal judicial nominations. That power must be wielded with the utmost of care. AAUW reminds the Senate that no nominee is presumptively entitled to confirmation. Nominees must be subject to the highest standard of scrutiny, and protection of the rights of the people should take precedence over the agenda of either political party or the aspirations of any judicial candidate. AAUW strongly urges the Senate to deny Charles Pickering a federal judgeship and instead find another candidate who has a demonstrated record of upholding the rights of all Americans. We deserve no less. NCJW Opposes Nomination of Judge Charles Pickering to the Fifth Circuit Court of Appeals National Council of Jewish Women 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000254 Monday, January 28, 2002 The National Council of Jewish Women (NCJW) will oppose the nomination of federal district court Judge Charles Pickering to the 5 th Circuit Court of Appeals because of his support for overturning Roe v. Wade. In a statement released today, NCJW President Jan Schneiderman said: "NCJW strongly believes that judges who serve on the federal bench must be firm defenders of constitutional rights and liberties, including women’s reproductive rights. Judge Charles Pickering’s record indicates that he is not. As a Mississippi state legislator in 1978, Judge Pickering voted to call a constitutional convention to outlaw abortion. He chaired the subcommittee of the 1976 Republican National Convention's Platform Committee which called for a constitutional amendment overturning Roe. He voted against state funding for family planning programs. Nothing in his record since then leads us to believe that his views have changed. "The 5th Circuit Court of Appeals for which Judge Pickering is nominated covers Mississippi, Louisiana and Texas ‘ states with strong anti-choice state legislatures. It is likely that the 5th Circuit will have to rule on laws passed by those legislatures intended to restrict or overturn Roe. The 5th Circuit may well be the last word on most of those cases, since the Supreme Court considers only 80 to 100 cases each year of the 7,000 or so it receives annually. "In launching BenchMark: NCJW’s Campaign to Save Roe, the NationalCouncil of Jewish Women has made a commitment to act to ensure the confirmation of only those nominees to the federal bench who support fundamental freedoms, including a woman’s right to choose abortion. In addition to his opposition to Roe and the right to privacy on which it is based, Judge Pickering has troublesome views on key civil rights issues, including affirmative action and the principle of ‘one man, one vote.’ NCJW will call on members of the US Senate to vote against his confirmation." NCJW is a volunteer organization, inspired by Jewish values, that works to improve the quality of life for women, children and families and to ensure individual rights and freedoms through research, education, advocacy, and community service programs initiated by its network of 90,000 volunteers, supporters and members nationwide. 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7102-000001 18-2091-B-000255 Schauder, Andrew Schauder, Andrew Thursday, January 31, 2002 7:07 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov' Subject: judicial media review Attachments: Judicial Media Review 1-31-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.7107 18-2091-B-000256 Media Review - Judicial Nominations Thursday, January 31, 2002 General Judicial Articles "A Rocky Milestone for Roe vs. Wade; Activists See Many Routes for Abortion Rights’ Erosion," Beth Kanter, The Chicago Tribune, January 30, 2002 1 "Privacy, Cameras in Court Are Senator’s New Concern," Linda Gasparello, White House Weekly, January 29, 2002," 2 "Private Labor Lawyer Nominated for Spot on U.S. District Court," The Associated Press, January 30, 2002 4 "Second Pickering Hearing Slated; NAACP Questions Record," Jason Straziuso, The Associated Press, January 31, 2001 5 Op/Eds *NONE* Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles A Rocky Milestone for Roe vs. Wade; Activists See Many Routes for Abortion Rights’ Erosion By Beth Kanter The Chicago Tribune Wednesday, January 30, 2002 *EXCERPT* Judicial nominations 1 VERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000257 President George W. Bush likely will nominate at least one U.S. Supreme Court justice--a prospect of paramount concern for those who support the Roe vs. Wade decision. Justices selected by Bush and confirmed by the Senate have the potential to overturn the 1973 Supreme Court ruling. "The Supreme Court is in crisis with the current 5-4 split," said Feminist Majority President Eleanor Smeal, referring to the division among the high court when it comes to upholding abortion as a constitutional right. "But it is not just the Supreme Court we have to worry about but the federal Court of Appeals--eight of the 12 circuit courts are already comprised of antichoice majorities. . . . The worst-case scenario is that we lose all 12 circuit courts and we can't get a case to the Supreme Court." Hearings begin in February for some of the federal court nominees, and NARAL has identified several nominees the group plans to challenge with a national grass-roots campaign. Topping that list is Judge Charles W. Pickering Sr., nominated to the 5th U.S. Circuit Court of Appeals, which covers Mississippi, Louisiana and Texas. "Pickering, among other things, led the rightwing charge for the Republican Party's first call for a constitutional amendment to ban abortion, he fought against choice and family planning as a Mississippi state legislator and he was an open opponent of the Equal Rights Amendment," said Michelman. Privacy, Cameras in Court Are Senator’s New Concern By Linda Gasparello White House Weekly Tuesday, January 29, 2002 A week after a federal judge rejected cable network Court TV's petition to televise the trial of Zacarias Moussaoui, the first person indicted in connection with the Sept 11 attacks, questions about cameras in the courtroom and personal privacy dominated the Senate confirmation hearing for five of President Bush's federal court nominees. Sitting in Thursday for Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, Sen. Maria Cantwell (D-Wash.) asked Richard D. Leon, nominee to he U.S. District Court for the District of Columbia, to comment on cameras in federal courtrooms. Leon has a special appreciation of the issue: he was deputy chief minority counsel for the U.S. Select Iran-Contra Committee the second ranking counsel to Rep. Dick Cheney (R-Wyo.), and the Republican members of the committee from March 1987 to March 1988. Leon said that cameras in the courtroom are a challenging and difficult issue for Congress and federal judges to wrestle. "On the whole," he said, "it is a close-call question." Court TV, which is owned by AOL Time Warner and Liberty Media Corp., had argued in legal papers that the ban on televising federal criminal trials is unconstitutional because the U.S. Constitution gives the public the right to have access to courtroom proceedings. On Jan. 18, U.S. District Judge Leonie M. Brinkema essentially ruled that it is up to Congress to change the law barring cameras in federal courtrooms. 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000258 "Given the growing public consensus and favorable experience in the majority of states that allow cameras in their courtrooms, we are optimistic that the United States Congress will soon pass legislation permitting cameras in our federal courts subject, however, to the sole discretion of the trial judge," Court TV's chairman and chief executive officer Henry Schleiff said in a statement. Leon told Senate Judiciary Committee members that he prefers "not to have cameras in the courtroom, but to provide special access for the press. Part of my concern is for the security of the jury and the witnesses." Noting that prior to Sept. 11, Americans were concerned about the issue of information attainment, Cantwell asked each of the six appointees for their views on how to "balance the need for individual privacy against the issues of information collected by the government, or in other criminal investigations." James Edward Gritzner, nominee to the U.S. District Court for the Southern District of Iowa, said: "There are two issues involved here: One would be a social issue, and the other would be a legal issue. As a social issue, Gritzner said "people have an expectation of privacy, whether that has actually been provided to them by the Constitution or by statute. So they come to Congress and the courts with that expectation." He added: "With regard to the legal expectation of privacy, certainly we know in constitutional law that there have been cases involving the concept of privacy. Whether they would apply to this situation [anti-terrorism] is still not a resolved issue." Americans are looking at certain courts, he said, for "a high degree of vigilance in protecting their privacy the concept of being left alone, being able to maintain your personal records, your own personal lifestyle. "They're looking to both the courts and the Congress for assistance in protecting them not only under the current circumstances, but I think they felt that way on Sept. 10." Having served as a prosecutor on national security matters, Leon said it is going to be an "interesting and difficult challenge to see that privacy interests are weighed fairly." Jay C. Zainey, nominee to the U.S. District Court for the Eastern District of Louisiana, said that the courts and Congress should "look closely at the U.S. Constitution" for guidance on privacy issues. Robert E. Blackburn, who has been appointed to the U.S. District Court for the District of Colorado, said that it will be "exciting and challenging" if he is confirmed as a judge. "The district-court level is going to be the first line of defense, really the first opportunity to balance 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000259 two of our most important concerns: our fundamental right to privacy, perhaps our most cherished civil liberty, and our growing concerns about national security," he said, adding that there is a "well-developed body of law for jurisprudence on both of these issues." There were two other issues that committee members raised at the hearing. Sen. Chuck Grassley (R-Iowa) asked the nominees to comment on their experience with alternative dispute resolution. Calling it an "amazingly successful" process, Gritzner said he used it in his practice, and he would be "encouraged to use it to cut as much court time as possible." Sen. Tom Harkin (D-Iowa), who introduced Gritzner and U.S. District Judge Michael Melloy of Cedar Rapids, nominee to the U.S. Court of Appeals for the 8th Circuit, raised the subject of federal criminal sentencing procedures. Harkin brought up the case of an Iowa man, Dane Allen Yirkovsky, sentenced by Melloy to 15 years in federal prison for possession of a single .22caliber bullet. "What sort of country is this when you can get 15 years for possessing a single bullet?" he asked. Harkin said that when he voted for mandatory-minimum sentencing, he was "trying to give judges the right to judge." But after reading about Yirkovsky's case in an editorial in the Jan. 21 edition of The Des Moines Register, he said: "I was wrong. I think it's turned into a sentencing nightmare." Asked to comment on mandatory-minimum sentencing, Melloy said: "There have been certain cases where mandatory minimums have been imposed and I wished I had more discretion. Cases where I felt somewhat constrained. Yirkovsky is probably one of them, quite frankly." Private Labor Lawyer Nominated for Spot on U.S. District Court The Associated Press Wednesday, January 30, 2002 A private labor lawyer who has never tried a case in federal court but served as a legal and political adviser to U.S. Sen. Lincoln Chafee is being recommended for a spot on the U.S. District Court in Rhode Island. Chafee said Wednesday he has recommended that President Bush nominate William E. Smith, 42, of East Greenwich, to the court to fill a spot being vacated by retiring Judge Ronald Lagueux. Chafee and Smith have known each other for about a decade, when Chafee became mayor of Warwick and Smith's law firm, Edwards & Angell, began doing legal work for the city. Smith served as the city solicitor, heading a team of Edwards & Angell lawyers as the city's counsel. "Right away, we had a number of contentious issues," Chafee said, noting a longstanding labor dispute with local teachers, a scandal that rocked the police department and a spate of disabilityrelated retirements in the city. "Will was there every step of the way, giving advice." 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000260 Chafee, a Republican, recommended Smith to President Bush in a letter sent on Wednesday. The senator said he expected Smith would be interviewed at the White House within the next two weeks. If Bush nominates Smith, Chafee said he hopes it could be approved by the summer. Smith, a native of Idaho where his father was a longtime state judge, received a law degree from Georgetown University in 1987. He is married and has two children. Smith said he felt honored to have been recommended by Chafee. Smith, who served as staff director of Chafee's state office from January 2000 to January 2001, said he'd long harbored an ambition to be involved in public service. "Being a federal judge is the highest form of public service, in my view, that any lawyer could be called to do," he said during a news conference on the steps of the federal courthouse in Providence. "It's the way I grew up." Smith also served as a municipal court judge in West Warwick from 1993 to 1998, presiding over cases involving town ordinances, building codes, zoning and traffic violation complaints. Chafee said he wasn't concern about the possible perception of patronage. He added that he has confidence that Smith has the requisite skills to be a federal judge. "Yes, of course I do, or I wouldn't nominate him," Chafee said. Second Pickering Hearing Slated; NAACP Questions Record By Jason Straziuso The Associated Press Thursday, January 31, 2002 State NAACP leaders say Judge Charles Pickering has shown a "hostile attitude" toward civil rights cases - something the group will attempt to prove at the district judge's second nomination hearing next week. Pickering, the father of Rep. Chip Pickering, R-Miss., has been nominated for a seat on the 5th U.S. Circuit Court of Appeals in New Orleans. He had his first hearing in October. A second hearing has been set for Feb. 7, Senate Judiciary Committee spokeswoman Mimi Devlin said. Democrats insisted on a second hearing to review the Mississippi judge's unpublished opinions. L.A. Warren of the Mississippi branch of the National Association for the Advancement of Colored People said Thursday his organization has forwarded six Pickering decisions to the 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000261 Judiciary Committee for review. Warren said the six cases involve discrimination, labor and women's rights issues and will likely be brought up at next week's hearing. "There's a pattern of a hostile attitude," Warren said. "It's the way he handled those cases by prolonging them. He controls the evidence that gets to the table. In a sense, that affects the outcome of the case." Pickering said Thursday he looked forward to testifying before the committee, but he won't comment on specific issues until then. A spokesman for Sen. Trent Lott, R-Miss., said that Pickering has broad support. "The people in Mississippi that know Judge Pickering know his integrity and understand that he is a well-qualified judicial nominee," Lee Youngblood said. The Judiciary Committee has received 37 support letters for Pickering, including letters from former Democratic Gov. William Winter and 10 former presidents of the Mississippi Bar Association, Senate records show. The committee has received 26 letters in opposition, mainly from women's and civil rights groups, including the Magnolia Bar Association, a mostly black lawyer's group. In highlighting one of the six cases, Warren said Pickering heard a case in 2001 brought by Britton Mosely Sr., a black man, who alleged in a federal lawsuit that he was set up on drug charges and wrongly dismissed by the Mississippi Department of Corrections. The alleged drug setup was caught on tape by Mosely, Warren said. Warren said that Pickering heard the Mosely tape outside the courtroom and then didn't allow the tape into evidence. Another issue that groups opposed to Pickering have raised is his 1990 testimony to become a U.S. district judge. According to Senate records, Pickering testified he "never had any contact with the Sovereignty Commission," Mississippi's now-defunct segregation watchdog agency. However, a 1972 letter in the commission's files said Pickering, while a state senator, had "requested to be advised" by the commission about a group organizing pulpwood workers. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7107-000001 18-2091-B-000262 Schauder, Andrew Schauder, Andrew Monday, February 4, 2002 7:05 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James Subject: judicial media review Attachments: Judicial Media Review 2-4-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.7110 18-2091-B-000263 Media Review - Judicial Nominations Monday, February 4, 2002 General Judicial Articles "NAACP: Tape to Damage Pickering," The Clarion Ledger, February 1, 2002 1 "Judge’s Record: What Was Left Out," Jonathan Groner, Legal Times, February 4, 2002 2 Op/Eds "End the Judicial Logjam. U.S. Senator’s Remarks Indicate Consideration of Appointees May Speed Up," Omaha World-Journal, February 1, 2002 7 "Judge the Judges; Expedite Hearings for Bush’s Nominees" Pittsburgh Post-Gazette, February 1, 2002 8 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases *NONE* General Judicial Articles NAACP: Tape to Damage Pickering The Clarion Ledger Friday, February 1, 2002 NAACP officials said Thursday all the information needed to keep U.S. District Judge Charles Pickering from being appointed to the 5th U.S. Circuit Court of Appeals is on a cassette tape. Only they didn't play the tape, nor did they say what was said on it. Instead, L.A. Warren, chairman of the Mississippi NAACP Legal Redress Committee said, national NAACP officials have decided to let the tape be played for the first time at Pickering's Feb. 7 hearing before the Senate Judiciary Committee during which Democrats are expected to 1 VERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000264 question the judge again. Warren said his organization has forwarded six opinions involving discrimination, labor and women's rights issues to the committee. "There's a pattern of a hostile attitude," he said. "It's the way he handled those cases by prolonging them." Pickering said Thursday he looked forward to testifying to the committee but couldn't comment on specific issues until then. A spokesman for Sen. Trent Lott, R.-Miss., said Pickering has broad support. "The people in Mississippi that know Judge Pickering know his integrity and understand that he is a well qualified judicial nominee," said Lott spokesman Lee Youngblood. The Judiciary Committee has received 37 support letters for Pickering, including letters from former Democratic Gov. William Winter and 10 former presidents of the Mississippi Bar Association, Senate records show. The committee has received 26 letters in opposition, mainly from women's and civil rights groups, including the Magnolia Bar Association. Pickering supporters planned and then cancelled an afternoon news conference to rebut NAACP allegations because they said they felt there was nothing of substance to respond to. In highlighting one of the six cases sent to the Judiciary Committee, Warren said Pickering heard a case in 2001 brought by Britton Mosley Sr., who alleged in a federal lawsuit he was set up on drugs and wrongly dismissed by the state Department of Corrections because of his race. Mosley is black. The alleged setup, Warren said, was caught on tape by Mosley. He said Pickering heard the Mosley tape outside the courtroom and then didn't allow the tape into evidence. After the news conference, Mosley said of the tape, "I think it's going to have a profound effect." Judge’s Record: What Was Left Out By Jonathan Groner Legal Times Monday, February 4, 2002 You won't get the full story on Charles Pickering Sr. from liberals' portrayal of his life and record As a young lawyer in Jones County, Miss., in the 1960s, Charles Pickering Sr. helped put 2 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000265 Klansmen in jail. In the early 1990s, when preservationists and black activists clashed over a "colored only" sign in a county courthouse, Pickering helped craft a compromise that the black community applauded. And as a federal trial judge, Pickering has tried to keep young African-Americans out of the criminal justice system, convening a group of local civic leaders to try to solve the problem. When the Senate Judiciary Committee meets Feb. 7 to consider Pickering's nomination to the U.S. Court of Appeals for the 5th Circuit, his liberal opponents won't be focusing on these aspects of the nominee's record. Liberal activists have combed through the decisions that Pickering has written in 11 years as a U.S. district judge in Hattiesburg, Miss., and have concluded that Pickering's confirmation "poses a grave danger to our rights and liberties." But a Legal Times analysis of Pickering's important rulings, as well as interviews with community leaders in his home state, offers an alternate view to the liberals' conclusions that Pickering is racially insensitive and indifferent to constitutional rights. As a potentially explosive showdown approaches, the record indicates that the judge is a more complicated individual than the foe of civil rights that the liberals have depicted in their position papers. This will be the second go-round on Pickering. A barely noticed Judiciary Committee hearing took place Oct. 18 during the anthrax scare, five months after Pickering's nomination. At the time, hundreds of the judge's unpublished rulings were not available, and Democrats reserved the right to call him back. The campaign against Pickering's nomination has been led by women's rights, civil rights, and abortion rights groups. They have focused on the judge's consistently conservative record on employment discrimination, voting rights, abortion, and criminal law. According to his opponents, Pickering often "injects his personal opinions" and "bias" into cases he handles. On civil rights, the groups regard him, in the words of Alliance for Justice leader Marcia Kuntz, as "a throwback to the days of the segregated South." But a look at the 64-year-old Pickering's record shows that although he has often ruled against civil rights claims, the facts of the cases have often tilted strongly against the litigants claiming discrimination. And although in some voting rights cases he has doubted the correctness of relevant Supreme Court decisions, he has followed the law in making his rulings. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000266 One thing is clear: Pickering often voices his personal views on hot-button social issues in his opinions-even when such discussion isn't strictly necessary. These dicta have made him an easy target for liberal opponents. Between Races Pickering declines comment through a White House spokesman. Several people -- both black and white -- who know Pickering say the nominee has worked to achieve racial harmony in a county that for decades was sorely lacking in that quality. "He's conservative, no question about that," says Susan Vincent, the mayor of Laurel, Miss., a town of 19,000 that is the county seat of Jones County, where Pickering grew up in the 1940s and 1950s. "He is also a very fair person." "All his life he has been a leader in efforts to achieve equity and human rights," says Vincent, who is white and describes herself as a political moderate. "To say that he is in any way racially biased is unjust." Says Johnny Magee, a Laurel bookstore owner and city council member who is AfricanAmerican: "Pickering is not perfect -- no one is -- but he has courage. He was involved as a county prosecutor in fighting against the Ku Klux Klan and helped put Klansmen behind bars. That was something you just didn't do in Jones County in the 1960s." Magee says his own stepson came before Pickering to be sentenced on drug charges. The young man "is currently serving time, and he deserves it," says Magee. "But Pickering dealt with him completely fairly." In fact, Magee says that Pickering, sometime after he took the bench in 1990, called together the county's civic leaders to develop after-school programs "to keep black males from coming into his court on criminal charges." Thaddeus Edmonson, the president of Laurel's city council and a leader of the black community there, says Pickering "is very sensitive on racial issues and always makes sure that they are safeguarded in his court." Edmonson, a newspaper owner who was president of the local chapter of the National Association for the Advancement of Colored People in 1995 and 1996, recalls that about a decade ago, African-American citizens were upset about seeing the words "white" and "colored" engraved next to water fountains at the county courthouse in Ellisville, Miss., near Laurel. Segregation, of course, hadn't existed for a quarter century, but the words were still carved into the courthouse wall. Historians wanted to keep them on the building as a record of bygone times. Pickering along with Edmonson and Vincent -- served on a biracial commission that decided to retain the dual fountains, but cover the offending words with plaques. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000267 "He understood that those things were offensive and had to be removed," Edmonson says. Carey Varnado, a Hattiesburg litigator, says that, as a state senator in the 1960s, Pickering testified in court that a Klansman "was known to have a bad reputation in the community. That required a great deal of personal courage for someone with four young children. "It's unfortunate that some members of my party are making a political football out of this nomination," says Varnado, a white Democrat who thinks liberal groups are deliberately picking a fight with Senate Minority Leader Trent Lott, a Mississippian who is a longtime friend of Pickering's. The Record Speaks The liberal organizations, such as People for the American Way, the Alliance for Justice, and the National Abortion and Reproductive Rights Action League (NARAL), say they are simply reading the record of Pickering's rulings as a district judge. There is little question, based on Pickering's stances as a legislator, that he is personally antiabortion, although he has never been called upon to rule on an abortion case. As a Mississippi state senator in the 1970s, Pickering led the effort to approve an anti-abortion plank in the 1976 Republican platform. The nominee testified at his earlier hearing that he would consider it his "duty as an appellate . . . judge to follow" Roe v. Wade. Pickering has testified that he has been reversed or sharply criticized by the 5th Circuit 28 times, although full information is not yet available about all of Pickering's 1,000 unpublished rulings, and it has not been shown that Pickering was reversed more often than other district judges in his circuit. On the civil rights front, liberals point to several employment discrimination cases that Pickering decided. In Foxworth, et al. v. Merchants Co., an unpublished opinion from 1996, two blacks who owned a grocery store sued a supplier under the civil rights laws because the supplier stopped extending credit to them. Pickering ruled in favor of the supplier. The liberal groups highlighted the "harsh" language that Pickering used: "When an adverse action is taken affecting one covered by [civil rights] laws, there is a tendency on the part of the person affected to spontaneously react that discrimination caused the action. All of us have difficulty accepting the fact that we sometimes create our own problems." What the liberals did not point out is that the supplier canceled the credit terms after both store owners were arrested and indicted for allegedly threatening to murder a federal official. (They were later acquitted.) Pickering found that these serious criminal charges represented a "valid nondiscriminatory reason" for the supplier's 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000268 business judgment to cancel the credit arrangement. The groups also omit from their position paper Pickering's comment in the same case: "America's basic racial problem, if it is to be solved, must be solved by men and women of goodwill, both black and white. There must be understanding and effort on the part of both races and there must be acceptance of responsibility for individual actions." In Seeley v. City of Hattiesburg, a 1998 case, a black firefighter was fired and claimed a civil rights violation. Pickering granted summary judgment against him, finding that he was fired for insubordination and for repeatedly showing up late at work. There was "not one iota" of evidence of racial bias, he ruled. People for the American Way criticized Pickering for writing in Seeley that "the fact that a black employee is terminated does not automatically indicate discrimination. . . . This case has all the hallmarks of a case that is filed simply because an adverse employment decision was made in regard to a protected minority." Pickering also wrote that "cases such as this case make it more difficult to guarantee that no American is discriminated against because of race or color. If employers are confronted with a frivolous lawsuit every time they discharge a person who is a protected minority, they will become calloused and cynical and less likely to be sensitive to real discrimination." Elliot Mincberg, People for the American Way's legal director, replies, "What we are concerned about is not the results in the cases, but the fact that he goes out of his way to disparage the plaintiffs. When he writes that this case is an unwanted effect of the anti-discrimination laws, this reflects a hostile attitude and sends a message to future plaintiffs. That's very troubling to us. "It's insensitivity to civil rights principles, not deliberate racism," says Mincberg. "But that is particularly troubling for an appellate judge. There is not a single smoking gun. This is a mosaic." Mincberg also points out that the national and state NAACP have come out against Pickering, as has the Magnolia Bar Association, a predominantly black Mississippi bar group. In the voting rights area, Pickering's opponents point to his decisions on redistricting and similar issues. Regarding Fairley v. Forrest County, a 1993 ruling, liberals criticize Pickering for including in his opinion a lengthy digression on the history of the one-person/one-vote doctrine in the Supreme Court and for casting doubt on the doctrine, which he said could at times be applied too rigidly. However, Pickering concluded that as a district judge, he was "bound to follow the precedents established by prior controlling judicial decisions." 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000269 The actual holding in the case -- which is supported by considerable precedent was that a Mississippi county did not have to hold special elections to remedy racial deviations in districts used to elect local officials. Adam Shah, a lawyer at the Alliance for Justice, says that when there is a per se violation of the Voting Rights Act, which Pickering found, "the normal remedy is to have special elections, which he refused to order." The case was not appealed to the 5th Circuit. Op/Eds End the Judicial Logjam. U.S. Senator’s Remarks Indicate Consideration of Appointees May Speed Up Omaha World-Journal Friday, February 1, 2002 Democrats and Republicans offer differing explanations about why the U.S. Senate has failed to hold hearings, let alone vote, on dozens of federal judicial nominations put forward by President Bush. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, notes that Democrats gained control of the Senate only last June. Democrats, he says, have approved judicial nominations at a faster clip than Republicans did during the Clinton administration. Alberto Gonzales, counsel to President Bush, describes things another way. Bush nominated a record 90 judicial candidates during his first year in office, Gonzales says, yet the Senate has voted on fewer than half of them. Votes were taken for only six of Bush's 29 nominees for the courts of appeals. Gonzales quotes statements by Leahy from 1998, when the Vermont senator lamented a "vacancy crisis" and argued that the Republican-controlled Senate's slowness in considering Clinton judicial nominees was "delaying or preventing the administration of justice." A vacancy "crisis" could be said to still exist, Gonzales claims, given that 101 of 853 circuit and district court judgeships are vacant, as are 31 of 167 circuit court of appeals positions. The president's attorney notes that Leahy has termed the American Bar Association's evaluation of judicial nominees to be the "gold standard" by which such appointees should be judged. But while the ABA declared Bush's first 11 nominees to be "well qualified" or "qualified," hearings have been held for only three of the nominees, Gonzales says. Last Friday, Leahy spoke to the Senate on this topic. His remarks were encouraging. The Vermont lawmaker promised to schedule nomination hearings at a pace that exceeds that of the past six years. The hearings will include controversial appointees, he said. (Often, such nominations have tended to remain stalled without hearings.) 7 VERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000270 Sen. Orrin Hatch, R-Utah, offered a reasonable goal, saying the Senate should aim to confirm 100 judicial appointees this year, the same number as were confirmed during Clinton's second year in office. The Senate need not rubber-stamp Bush's nominees. Political disagreement is inevitable in considering judicial nominations. But the process can't work unless the way is cleared for the senators to vote. Which is why Senator Leahy's promise of a speeded-up process is welcome. In the months to come, the senator should be held to his word. Judge the Judges; Expedite Hearings for Bush’s Nominees Pittsburgh Post-Gazette Friday, February 1, 2002 For reasons of principle and parochialism, we hope the Democratic-controlled Senate Judiciary Committee will move expeditiously on President Bush's nominations to the vacancies on the U.S. District Court here. Last week Mr. Bush nominated three widely respected Pittsburgh lawyers to the federal trial court: Joy Flowers Conti and Art Schwab, both from the firm of Buchanan Ingersoll, and Allegheny County Solicitor Terry McVerry, a former Common Pleas Court judge. Mr. Bush also has nominated a well-regarded District Court judge, D. Brooks Smith, to the 3rd U.S. Circuit Court of Appeals. There are currently four vacancies on the District Court. When U.S. District Judge William Standish takes senior status in March, that number will grow to five. And if Judge Smith is confirmed for the appeals court, there will be six vacancies. Locally and nationally, the work of federal courts has been held up in recent years by partisan squabbles between the White House and the Senate. First it was the Republican-controlled Senate that balked at acting expeditiously on nominations by Bill Clinton. Now, despite protestations to the contrary, the Democrats who control the Judiciary Committee are showing more deliberation than speed in acting on Mr. Bush's nominations. In one respect, the Bush administration contributed to the delay by abandoning a bipartisan practice of running potential judicial nominees past the American Bar Association. But the ABA will still have its say because the Democrats in charge of the Judiciary Committee have indicated they will invite the bar group's opinion. The Bush administration, echoing long-standing complaints by conservative legal commentators, suggests that the ABA allows political ideology to color what should be a purely professional evaluation of potential federal judges. One of the Western Pennsylvania nominees, Mr. Schwab, is offered as a case study in such bias. He complained several years ago that ABA screeners opposed his candidacy for a federal 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000271 judgeship because of his conservative religious and political views, not because of any problems with his legal preparation. That accusation -- and the Bush administration's more general complaint about bias -- should put the bar group on notice that it will have to justify its judgments about nominees on neutral grounds. If it can do so, its advice can be helpful to the Senate. But in the end it is the Senate that must decide whether to advise and consent to the president's choice. It should do so expeditiously -- and put aside the partisan bickering of the past. 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7110-000001 18-2091-B-000272 Schauder, Andrew Schauder, Andrew Thursday, February 7, 2002 7:41 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James Subject: judicial media review Attachments: Judicial Media Review 2-7-02.wpd From: Sent: To: Please see attached review VERSIGHT Document ID: 0.7.19343.7113 18-2091-B-000273 Media Review - Judicial Nominations Thursday, February 7, 2002 General Judicial Articles "Fight Over Judicial Nominee Resumes," Neil Lewis, The New York Times, February 6, 2002 3 "The Next Big Fight," 6 Byron York, National Review Online, February 6, 2002 "Black Congressmen Urge Rejection of Bush Judicial Nominee," Christopher Lee, The Dallas Morning News, February 7, 2002 11 "Black Lawmakers Oppose Bush Nominee for Federal Appeals Bench," Peter Boylan, Knight Ridder, February 7, 2002 12 "Bush’s Nominee’s Hearing May Start Judicial Battles; Testimonies Today Crucial," Joan Biskupic, USA Today, February 7, 2002 13 "NAACP Chairman Urges U.S. Senate to Reject Pickering Nomination," The Associated Press, February 7, 2002 15 "Committee Approves Bunning’s Son for Judicial Post," The Associated Press, February 7, 2002 16 "Black Caucus Campaigns Against Pickering Day Before Second Hearing," Jason Straziuso, The Associated Press, February 6, 2002 17 "Senate Approves Martinez as Federal Judge," The Associated Press, February 5, 2002 18 "Accusations Stall Jurist Nomination," Jerry Seper, The Washington Times, February 5, 2002 19 "Senate Urged to Oppose Pickering," 20 Ana Radelat, The Clarion Ledger, February 7, 2002 Op/Eds "Say No to This Throwback," 22 1 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000274 The Los Angeles Times, February 6, 2002 "The Left Targets Pickering...Again," John Nowacki, Free Congress, February 5, 2002 23 "Extremist Judge is Unfit to Sit on Appeals Court," The Atlanta Journal Constitution, February 7, 2002 26 "A Judge’s Past," Bob Herbert, The New York Times, February 7, 2002 27 "A Brave Judge’s Name Besmirched," James Charles Evers, The Wall Street Journal, February 7, 2002 29 "Appeals Court Nominee Well-Qualified," John Nowacki, The Atlanta Journal-Constitution, February 7, 2002 30 "Laurel Leader-Call on ‘Judge Pickering Nomination’," The Associated Press, January 29, 2002 31 "Federal Judicial Nominees Lean Too Far Right," Nan Aron, The Fulton County Daily Report, February 5, 2002 32 Transcripts/Members of Congress "Should Pickering Ascend," CNN The Point With Laura Ingram, February 6, 2002 36 "Judge Charles Pickering’s Confirmation Hearing," All Things Considered, NPR, February 6, 2002 40 Interest Groups/Press Releases 43 "Liberals Once Again See Ideology Instead of Credentials When Looking At Bush’s Judicial Nominees; ‘Conservative Judges Do Not Make Law. They Leave That Up to the Legislators,’ Says FRC President Ken Connor," Family Research Council, February 7, 2002 "ACU’s Keene on Pickering Nomination: ‘Left’s Campaign of Character Assassination Twists Record of Qualified Candidates’," The American Conservative Union, February 6, 2002 43 "Oppose the Judicial Nominee Charles Pickering, Sr.," National Organization of Women, February 6, 2002 44 2 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000275 "New NARAL Report: Fifth Circuit States Among the Worst in Protecting Reproductive 46 Rights, Pickering Likely to Hear Case on Abortion if Confirmed," NARAL, February 6, 2002 "Momentum Builds Against Pickering," CivilRights.org, February 6, 2002 46 "Justice Held Hostage: Liberal Slurs Delay Nomination of Charles Pickering," Concerned Women for America, February 7, 2002 48 "Committee for Judicial Independence Opposes Confirmation of Charles Pickering, Sr., 49 Nominee to Fifth Circuit U.S. Court of Appeals; Senate Judiciary Committee Should Reject Pickering Based on His Record on Civil Rights and Abortion Local Groups Say" PR Newswire, February 7, 2002 General Judicial Articles Fight Over Judicial Nominee Resumes By Neil Lewis The New York Times Wednesday, February 6, 2002 The case of Judge Charles W. Pickering of Mississippi, who has been nominated to a federal appeals court post, may be the beginning of the long-expected war over judicial nominations in the Bush presidency. Civil rights and abortion rights groups have selected Judge Pickering, now a federal trial judge, as their first major target for defeat, and some Democratic senators on the Judiciary Committee have suggested they might be inclined to block the nomination. The White House and Senate Republicans have vowed to fight to the end to see Judge Pickering confirmed to the United States Court of Appeals for the Fifth Circuit, based in New Orleans. Judge Pickering, 64, a Mississippi native and longtime friend of Trent Lott, the Senate Republican leader, will appear before the Senate Judiciary Committee on Thursday for an unusual second public hearing to discuss his record. Two competing depictions of Charles Pickering have been put forward. His opponents describe him as "a throwback to the old, segregated South," in the words of Marcia Kuntz from the Alliance for Justice, one of the liberal Washington-based groups opposing the nomination. His supporters have portrayed him almost as a kind of Atticus Finch, the heroic lawyer standing against bigotry in the novel "To Kill a Mockingbird." They say he has been a progressive figure on racial issues in Mississippi, and they praised him for testifying against a Ku Klux Klan leader 3 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000276 at a murder trial in the 1960's. Both sides have lined up rosters of people, especially black Mississippians, to support their version. The case also provides another opportunity to consider the vexing issue of whether there is a moral or political statute of limitations on a Southerner's racial views; whether it is fair to blame someone for ideas held 30 or 40 years ago. Most, but not all, of the evidence marshaled against Judge Pickering involves his behavior as a young man from 1959 to 1964. In 1959, while a student at the University of Mississippi law school, he wrote a three- page note for the law review, pointing out flaws in the state's law prohibiting marriages between blacks and whites. The antimiscegenation law, he said, was vulnerable to attack unless changes were made by the Legislature. They were. L. A. Warren, an official of the Mississippi state conference of the N.A.A.C.P., said the 1959 article should still count in judging the man. "This was a man who wanted to preserve the Southern way of life and that meant racial separatism," Mr. Warren said in explaining his organization's vote to oppose the nomination. Mr. Warren also said that in Judge Pickering's early years as a lawyer in the 1960's, he was a partner of Lt. Gov. Carroll Gartin, a staunch segregationist. Mr. Warren said that he was not bothered that raising the issue of partnership amounted to guilt by association and that the partnership demonstrated Mr. Pickering's sympathies. He also criticized Mr. Pickering's decision in 1964 to bolt the Democratic Party and become a Republican. "You have to understand that the only issue in the Mississippi Democratic Party in 1964 was whether the party was going to open some of its offices to black people," Mr. Warren said. News articles at the time quote Mr. Pickering as attributing his move to a judgment that the national Democratic Party was too liberal for him. James King, a black political consultant affiliated with the Republican Party, who has known Judge Pickering for more than 25 years, said he generally discounted instances of racial rivalry in Mississippi in the early 1960's. "Back then, relations were quite heated," Mr. King said in an interview. "There was lots of hard, strong feelings on all sides." He said he was stunned that anyone would charge that Mr. Pickering was insensitive on the issue of race. When Mr. Pickering was Jones County party chairman in 1976, Mr. King said, he reached out to black Republicans and made him the county's first black party official. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000277 "He has always been my mentor," Mr. King said. The one more recent issue about race involves Judge Pickering's statements about his connection to Mississippi's Sovereignty Commission. The commission was a notorious state agency dedicated to retaining segregation and causing difficulty for civil rights activists, especially those from out of state. When he was first nominated for the trial court in 1990, Mr. Pickering testified before the Judiciary Committee that he had no connection to the agency and knew little of its activities. But he is likely to be challenged at Thursday's hearing about that statement by senators who have since obtained records of the commission that were released in 1998. The records show that Mr. Pickering, then a state senator, asked a senior commission official to keep him informed about a fractious labor dispute at a Masonite plant in Laurel, his hometown. The issue of abortion rights and Judge Pickering is more straightforward but also illuminates a contemporary question about evaluating judicial nominees: Should Judge Pickering's undisputed personal opposition to abortion be considered or is it obviated by his pledge to uphold the law no matter his own views? There is little doubt that Judge Pickering has been an ardent opponent of abortion rights. He was the moving force behind the Republican Party's first platform plank in 1976 calling for a human life amendment. Kate Michelman, the president of the National Abortion Rights Action League, said: "The circuit courts are where the boundaries on the right to choose are being worked out. This man would turn back the clock on progress." Senator Edward M. Kennedy, a Massachusetts Democrat and member of the Judiciary Committee, said through a spokeswoman this week that he had "serious concerns about Judge Pickering's record in upholding civil rights and reproductive rights" and planned to question him closely on Thursday. The committee held a hearing on the Pickering nomination on Oct. 18, but it was little noticed because of the events of Sept. 11. Democrats insisted that another hearing be held after they learned that Judge Pickering had issued more than 1,000 unpublished opinions during his time on the bench. That is highly unusual volume, as unpublished opinions are supposed to be only for routine, noncontroversial matters, and most of the times Judge Pickering has been reversed involved unpublished opinions. Senator Lott has been unrelenting in his support. Judge Pickering's son, Charles W. Pickering Jr., used to work for Mr. Lott and is now a congressman from Mississippi. "Judge Pickering has been an outstanding, effective district court judge who is extremely qualified and supported by a broad group of Republicans and Democrats from our state," Mr. Lott said in a statement. "Unfortunately, he is being subjected to unnecessary partisan 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000278 harassment and obstructionism." The Next Big Fight By Byron York National Review Online Wednesday, February 6, 2002 It hasn't received much attention in the wake of Enron, the president's budget, and the Axis of Evil, but this week Senate Democrats plan to begin the first major judicial-confirmation battle of the Bush administration. At issue will be the nomination of Charles W. Pickering Sr., a 64-yearold federal judge in Mississippi picked by President Bush to be on the Fifth Circuit Court of Appeals. Pickering was first appointed to the U.S. District Court by President George H. W. Bush in 1990. He was unanimously approved by the Senate Judiciary Committee and confirmed unanimously by the Senate as a whole. Now, after amassing a record of more than 11 years on the federal bench, he has received the American Bar Association's highest "well-qualified" rating, but faces intense questioning from Democrats on the committee - including some of the same Democrats who voted to confirm him in 1990. At confirmation hearings scheduled for Thursday, Democrats plan to attack Pickering on a familiar litany of issues: race, religion, and abortion. As in past nomination battles, Democratic opposition has been preceded by a publicity campaign against the nominee coordinated by liberal interest groups. In this case, that campaign is being led by People for the American Way (PFAW), which attacked Pickering's record in a detailed report released January 24. "Achieving ideological domination of the federal judiciary is the top goal of right-wing activists inside and outside the Bush administration," PFAW head Ralph Neas said when the report was released, "and judges like Charles Pickering are the means to that end." In 35 single-spaced pages, the PFAW report levels dozens of accusations against Pickering. They are worth examining in some detail because they suggest the emergence of a new standard of opposition by groups fighting Bush administration judicial nominees. Facing candidates for the bench who have been carefully selected and vetted by the White House - candidates without any obvious professional or personal deficiencies - groups like PFAW have been forced to work more diligently than ever to weave a tapestry of accusations that suggest that a given candidate is "insensitive" or "indifferent" to critical constitutional protections. In Pickering's case, PFAW then argues that such alleged insensitivity constitutes a "troubling pattern" of behavior that disqualifies Pickering for a place on the federal appeals court. While the charge sounds quite ominous, a close look at the case shows that there is little, if any, evidence to support it. Mississippi Burning The PFAW report begins with the issue of civil rights. While Neas does not accuse Pickering of racism, he writes that Pickering's record "does not demonstrate an affirmative commitment to civil rights protections." Indeed, the report continues, Pickering's record "reflects insensitivity and even hostility toward key principles and remedies that now safeguard civil rights, and 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000279 indifference toward the problems caused by laws and institutions that have previously created and perpetuated discrimination." It is a painstakingly worded statement, suggesting that PFAW has delved deep into Pickering's history to discover alleged racial insensitivity. Indeed, a major document in the nomination fight is a three-page law-review article that Pickering wrote in 1959 as a 21-year-old freshman at the University of Mississippi Law School. The article analyzed the language of the state's ban on interracial marriage, but did not express either approval or disapproval of the law itself. (At the time, 24 states, mostly in the south and west, but also including Delaware, had such laws.) Pickering wrote that Mississippi lawmakers made a technical mistake in the wording of the law, which led to the reversal of a 1942 conviction of a black woman who married a white man. Although Pickering wrote that "recent decisions in the fields of education, transportation, and recreation would cause one to wonder how long the Supreme Court will allow any statute to stand which uses the term 'race' to draw a distinction," he concluded that Mississippi state lawmakers should correct the mistake in the wording of the interracial marriage ban, "if [the law] is to serve the purpose that the legislature undoubtedly intended it to serve." The PFAW report criticizes Pickering for failing to take the opportunity to express moral outrage about the law. Pickering later said the topic was suggested to him by a professor in the freshman law class and that he wrote the article as an "academic exercise." In confirmation hearings, Pickering told the Senate flatly that "who one marries is a personal choice and that there should be no legislation on that." Beyond that, it appears Pickering has made just one other public statement on the topic of interracial marriage in the 43 years since the law-review article was published. In a 1991 case, Pickering overturned a damage award given by a jury to a couple who had sued the WalMart company. Pickering said he believed the jury was biased against the couple because they were mixed race- a white man and Asian woman. Saying the bias had led the jury to set the award too low, Pickering ordered a retrial on the issue of damages, which resulted in a larger award for the couple. Another PFAW criticism of Pickering on the issue of race concerns the question of whether he ever had any "contact" with Mississippi's racist Sovereignty Commission. The commission, which received state funds, had been created to resist desegregation in the days immediately following the 1954 Brown v. Board of Education decision. It had its heyday in the 1950s and 1960s, fell into disarray in the early 1970s, and was abolished in 1977. At his confirmation hearings in 1990, Pickering told the Senate that, "I never had any contact with [the commission] and I had disagreement with the purposes and the methods and some of the approaches that they took....This commission had, in effect been abolished for a number of years. During the entire time that I was in the State Senate [Pickering served as a state senator from 1972 until 1978], I do not recall really the commission doing anything. It was already de facto abolished. It was just not functioning." The PFAW report says that in fact Pickering had a brief conversation, in 1972, with a commission staffer, and thus, contrary to his testimony, he had indeed had "contact" with the commission. In the conversation, Pickering is said to have asked the staffer for information about a labor dispute in Jones County, Mississippi. It appears that Pickering had, by the time of his 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000280 1990 confirmation hearings, forgotten about the conversation, but in any event it appears the substance of the conversation concerned not any sort of racial bias on Pickering's part but rather his worries about violence committed by members of the Ku Klux Klan. Chet Dillard, the former district attorney of Jones County, has told the Senate Judiciary Committee that Pickering was worried about a labor dispute at a Masonite plant in which "union members who were also members of the KKK shot into and burned homes in the middle of the night and brutally beat up workers....As a state senator representing Jones County, Charles Pickering had every reason to be concerned about further union violence involving the Masonite plant in Jones County." Pickering's request for information about the labor dispute is apparently the entirety of his "contact" with the Sovereignty Commission. The attacks on Pickering on the issue of race have genuinely baffled his defenders. They cite many actions on the issue of civil rights that contradict the description of Pickering as "insensitive or even hostile to key principles and remedies that now safeguard civil rights." For example, it is widely known that in 1967, as a county prosecutor, Pickering testified against Sam Bowers, an Imperial Wizard of the Ku Klux Klan, in a case in which Bowers was accused of firebombing the home of a civil-rights worker. According to a letter written on Pickering's behalf by Charles Evers, brother of murdered civil-rights activist Medgar Evers, "In 1967, many locally elected prosecutors in Mississippi looked the other way when faced with allegations of violence against African-Americans and those who supported our struggle for equal treatment under the law. Judge Pickering was a locally elected prosecutor who took the stand that year and testified in the criminal trial against the Imperial Wizard of the Ku Klux Klan, who was accused of firebombing a civil rights activist. Judge Pickering later lost his bid for reelection because he dared to defy the Klan, but he gained my respect and the respect of many others as a man who stands up for what is right." The Klan case, although 35 years ago, stands out in many memories. "Pickering is not perfect no one is - but he has courage," Johnny Magee, a black city councilman in Laurel, Mississippi, recently told Legal Times. "He was involved as a county prosecutor in fighting against the Ku Klux Klan and helped put Klansmen behind bars. That was something you just didn't do in Jones County in the 1960s." And Pickering's defenders cite more than just one case. Pickering hired black staffers when few other Republicans or Democrats in Mississippi did. As a private lawyer he defended a young black man accused of robbing a young white woman in a rural grocery store, then stuck with the case through two trials, and finally won the young man's acquittal. He pushed the chancellor of the University of Mississippi to establish the Institute of Racial Reconciliation and then served on its board of directors. And he built a reputation for fairness. Johnny Magee told Legal Times that his stepson, convicted of drug charges, came before Pickering for sentencing. Magee told the paper that his stepson "is currently serving time, and he deserves it. But Pickering dealt with him completely fairly." That Old Time Religion Another issue on which PFAW criticizes Pickering is an alleged "disregard for the separation of 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000281 church and state by repeatedly using his position on the bench to promote involvement in religious programs." In particular, the PFAW report says that Pickering has used the occasion of handing out sentences to convicted offenders as an opportunity to promote his religious beliefs. For example, in 1997, when sentencing a man convicted in a conspiracy case involving murder, Pickering said, It's too late for you not to pay a price for what you've done. However, it is not too late for you to form a new beginning. For yourself and others, I hope you will do that. You have a lot to offer. You can become involved in Chuck Colson's prison fellowship or some other such ministry, and be a benefit to your fellow inmates and to others and to their families. I hope you will have a new beginning, even in prison; that you will make a positive contribution to society. It won't be easy, but it can be done. The PFAW report underlines the phrase "You can become involved in Chuck Colson's prison ministry" as evidence of Pickering's disregard for the separation of church and state. In another case, according to PFAW, Pickering, when sentencing a man convicted of receiving and sending child pornography over the Internet, told the man, "In the penitentiary, there are many ways to become involved. There are many areas of service and ministry that you can engage in in the penitentiary." The PFAW report underlines the words "areas of service and ministry" as evidence of Pickering's disregard for the separation of church and state. And in yet another case, involving a man convicted of conspiracy to commit murder, Pickering told the defendant, ""You will involve yourself in some type of systematic program whereby you will be involved in the study and consideration of effects and consequences of crime and/or inappropriate behavior in a civilized society. This may be a program through your church or some other such agency or organization, so long as it is approved in advance by the probation service." The PFAW report underlines the words "through your church or some other such agency" as evidence of Pickering's disregard for the separation of church and state. Far Right to Life Ralph Neas and PFAW have also charged that Pickering is "a staunch opponent of women's reproductive rights." The PFAW report bases its case mostly on Pickering's service on the Republican platform committee at the party's national convention in 1976. Pickering chaired the Human Rights and Responsibilities subcommittee, which approved a plank calling for the repeal of Roe v. Wade. A few years later, while serving as a Mississippi state senator, Pickering voted for a resolution calling for a constitutional amendment outlawing abortion. The PFAW report cites no evidence of any Pickering actions or public statements on abortion since 1984. While it seems clear that Pickering personally opposes abortion, it is also clear that he has never had an abortion case come before him during his years as a U.S. District Court judge. It is not possible to predict how he would rule in an abortion-related case, but his defenders point out that he has heard a few cases involving issues of sexual privacy. In 1994, for example, he heard a case involving Camp Sister Spirit, a lesbian community then being built in Ovett, Mississippi. A group of local citizens went to court in an attempt to stop the project, but Pickering dismissed the 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000282 case. (Camp Sister Spirit was established and still exists today.) In another case, in 1991, Pickering sharply rebuked an attorney who brought up a plaintiff's homosexuality during a fraud trial. "Homosexuals are as much entitled to be protected from fraud as are any other human beings, but not any more so," Pickering told the jury. "The fact that the alleged victims in this case are homosexuals shall not affect your verdict in any way whatsoever." In still other cases, which did not involve sexual privacy, Pickering has made clear that he has not always agreed with laws which he nevertheless enforced. None of that suggests how Pickering would vote should he ever be faced with an abortion case, but it does suggest, as his defenders say, that Pickering's record "reflects that, as a judge, he has followed the law." Too Good To Pass Up The PFAW report makes other criticisms of Pickering that are not based on race, religion, and abortion. For example, it alleges that Pickering has a "troubling record of reversals in the Court of Appeals." The report says there have been 26 cases in which Pickering decisions have been overturned by the Fifth Circuit Court of Appeals. PFAW compares that unfavorably to Judge Edith Brown Clement (who now sits on the Fifth Circuit), who was overturned "in only" 17 cases. The report does not mention that Pickering's 26 reversals came out of a total of more than 4,000 cases, giving him a reversal rate of well under one percent. Using that standard, Clement's reversal rate is not much different. At most, the difference between Pickering's reversal rate and Clement's is one tenth of a percentage point - hardly evidence of anything, other than the fact that both judges have impressively low reversal rates. Finally, PFAW has criticized Pickering for not publishing many of his opinions in those 4,000plus cases. Legal guidelines discourage judges from publishing opinions which are made on the basis of unquestionably settled law without any extraordinary circumstances - a description that fits most cases. The guidelines do encourage judges to publish opinions that establish precedent or involve particularly instructive circumstances. Pickering has been quite modest about publishing his own opinions, which means that most of his written work is not in law books but in files at the U.S. District Court in Mississippi. The PFAW report suggests there may be damaging information in the "missing" opinions, and demands that they all be brought before the Senate Judiciary Committee. "We don't know what's in those missing rulings," Ralph Neas said on January 24, "but the rulings we do have make it clear that Pickering has opposed basic principles protecting civil rights and has sought to limit their application." Given the paucity of evidence against Pickering, one has to ask why PFAW, along with other liberal interest groups, is attacking him with such energy. Perhaps the urge to label a 64-year-old white man from Mississippi as a racist is just too strong to resist. More likely, though, it appears that PFAW is acting because activist organizations need to act. PFAW and other groups have been promising constituents and donors that they would fight George W. Bush tooth and nail on the issue of judicial nominations. Yet more than a year of the Bush presidency has passed and there still has not been a major nomination battle. Of course, that owes in large part to Democrats' strategy of stalling nominations, but at some point push had to come to shove. Democrats and their interest-group supporters have been wanting a fight, and now, in the 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000283 unlikely case of Charles W. Pickering, they have one. Black Congressmen Urge Rejection of Bush Judicial Nominee By Christopher Lee The Dallas Morning News Thursday, February 7, 2002 The Congressional Black Caucus denounced one of President Bush's judicial picks Wednesday as a conservative ideologue with a record of bias against minorities and women. The Senate Judiciary Committee should reject Charles W. Pickering Sr., a federal judge from Mississippi who is Bush's nominee to the U.S. Fifth Circuit Court of Appeals, said Rep. Eddie Bernice Johnson, D-Texas, the caucus chairwoman. "We simply want judges that can render fair justice, and his record does not indicate that he is capable of doing that," Johnson said. Pickering could not be reached for comment Wednesday. Supporters defended him as experienced and even-handed. "I think he would be totally fair to everyone," said Sen. Thad Cochran, R-Miss. "He has demonstrated his excellent capabilities as a U.S. District Court judge and he deserves this promotion." The committee is scheduled to hold its second hearing on Pickering's nomination Thursday but will not vote on it. The first hearing was Oct. 18. They say he once wrote in favor of a Mississippi state law banning interracial marriages and has consistently opposed abortion rights. They also say he has been hostile to the Voting Rights Act and other civil rights laws in his judicial rulings on discrimination cases. "It's the right thing to do to oppose him," said Rep. Bennie Thompson, D-Miss. "It's about his competence and his lack of sensitivity." Pickering, the father of Rep. Charles W. Pickering Jr., R-Miss., was appointed to the federal bench by President George Bush in 1990. Supporters say his view on race have evolved since the 1950s and claim he is the victim of a political crusade by Democrats against the current President Bush's appointees. "He's being subjected to unnecessary partisan harassment and obstructionism that is becoming typical of the handling of most of President Bush's nominees by the Democrat-controlled Judiciary committee in the Senate," said Ron Bonjean, spokesman for Senate Majority Leader Trent Lott, R-Miss. 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000284 Black Lawmakers Oppose Bush Nominee for Federal Appeals Bench By Peter Boylan Knight Ridder Thursday, February 7, 2002 Representatives of the Congressional Black Caucus on Wednesday opposed confirming President Bush's nominee to the Fifth Circuit Court of Appeals in New Orleans. Members of the caucus contend that Bush's choice, U.S. District Judge Charles W. Pickering Sr., is too conservative on criminal rights, abortion and, especially, civil rights. Pickering, 64, of Jones County, Miss., faces a Senate Judiciary Committee confirmation hearing Thursday afternoon. The fifth circuit encompasses Texas, Louisiana and Mississippi, all states with large minority populations. A three-page law review note that Pickering wrote in 1959 while a student at the University of Mississippi Law School is a key issue for his opponents. The note identified weaknesses in the state law that banned marriages between blacks and whites and suggested ways of strengthening it. The legislature adopted some of Pickering's ideas. Also challenged is Pickering's party switch from Democrat to Republican in 1964, a time when Mississippi Democrats were opening offices to blacks. Pickering's black Mississippi supporters say his views evolved as the South evolved, and no allegations of segregationism are more recent than 1964. The 36-member Black Caucus opposes him unanimously, however. "If we have judges with extremist views, we can't mete out justice in an impartial way," Rep. Donald Payne, D-N.J., said at a news conference to publicize the caucus's opposition. Pickering's Judiciary hearing will be his second. Senators want to recover and review about 1,000 unpublished opinions he issued during his tenure as a federal judge. They learned at Pickering's initial hearing Oct. 18 that those opinions important in appraising a judge's views had never been printed for wide distribution. Since then, about 400 have been provided to the Judiciary panel. "It is very unusual to have a second hearing," said Rep. Bennie G. Thompson, D-Miss. "There are 600 opinions out there in cyberspace, and that tells me that there is trouble." "He has a consistent record of hostility," said Rep. Robert Scott, D-Va. "We have to insist that all his opinions be made available, so that we can get a clearer picture of the man." Pickering, a longtime friend of Senate Minority Leader Trent Lott, R-Miss., also has run afoul of Sen. Edward M. Kennedy, D-Mass., an influential Judiciary Committee member. Kennedy will question Pickering on civil rights and reproductive rights, according to a spokeswoman. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000285 Mississippian Charles Evers, brother of slain civil rights leader Medgar Evers, said the Black Caucus was off base in its reading of Pickering. "There is nothing to show that he has anything against black folks," said Evers, who was on Capitol Hill to lobby for Pickering's confirmation. "He fought against the Ku Klux Klan when no one else in Mississippi would fight them. He was the first Republican Party chairman to reach out to the black folks and bring them into the party." Pickering, a 1961 graduate of the University of Mississippi, is a federal judge in Mississippi's Southern District. He was a Mississippi state senator from 1972 to 1980. His son, Charles Jr., a Republican congressman from Mississippi, declined comment on his father's pending nomination. Bush’s Nominee’s Hearing May Start Judicial Battles; Testimonies Today Crucial By Joan Biskupic USA Today Thursday, February 7, 2002 Mississippi federal trial Judge Charles Pickering testifies today before the Senate Judiciary Committee in his bid for an influential appeals court post, kicking off what likely will be a series of bruising fights over President Bush's judicial nominees. Pickering, 64, a friend of Senate Minority Leader Trent Lott, isn't a typical appeals court nominee of the Bush administration, which for the most part has focused on young, nationally renowned conservative thinkers. To many observers, Pickering is more a symbol of the Old South. He has drawn criticism from civil rights and women's groups that say his 12 years as a trial judge and earlier record in the segregated South suggest a hostility toward racial minorities. On top of all that, though, Pickering's hearings will offer a glimpse of the strategies that the White House, opposing Democrats and interest groups will employ during the battles over Bush's efforts to make the federal bench more conservative. Top administration aides have been coaching Pickering for the hearing. They're trying to make sure the judge successfully addresses the criticism about his record. Democratic senators have been trying to figure out how to effectively probe the nominee's attitudes on key issues such as racial discrimination, while Republicans are focusing on ways to shore up Pickering's reputation. Lott has been lobbying his colleagues to support Pickering and has told reporters that "he will be confirmed." 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000286 Interest groups on the left and right have fired off dozens of statements to the media offering dueling versions of Pickering's record. The Congressional Black Caucus held a news conference Wednesday to declare its opposition to Pickering. At the same time, some black supporters of Pickering from Mississippi -- including Charles Evers, brother of slain civil rights leader Medgar Evers -- were at the U.S. Capitol to endorse Pickering's elevation to the U.S. Court of Appeals for the 5th Circuit. The circuit covers Mississippi, Louisiana and Texas. "The outside interest groups have made clear that the nomination of Judge Pickering and other lower court nominees is warm-up practice for an eventual Supreme Court nominee," says Viet Dinh, assistant attorney general for the Office of Legal Policy. "It is unfortunate that they are trying to co-opt the Senate Judiciary Committee for their own political agenda." Nan Aron, president of the liberal Alliance for Justice, says, "We need to make sure that the American public realizes what's at stake, and that Judge Pickering represents just the first threat to turn back the clock on rights for all Americans." Sen. Dianne Feinstein, D-Calif., who will lead what is expected to be a packed hearing today, said through a spokesman that she will be looking particularly at Pickering's attitudes on race, abortion rights and women's equality. Pickering, a former county prosecutor and member of the Mississippi state Senate, is the father of U.S. Rep. Charles "Chip" Pickering Jr., R-Miss. The elder Pickering was named to the bench by the first President Bush in 1990. Opposition has emerged both to his record as a jurist and his earlier record in times of heated racial tension. As a law student at the University of Mississippi, he wrote a short article about problems with the state's criminal penalties for marriages between whites and blacks. It suggested ways the statute could be legally enforced. His possible connection years later to the infamous Mississippi Sovereignty Commission, which opposed integration and monitored civil rights activists, also is likely to come up during his hearings here. During Pickering's confirmation hearing in 1990 for trial judge, he said he never had any contact with the commission, and he disagreed with its purposes. But recently released records from the commission that have been circulated by Pickering opponents suggest that he was quite interested in its work. 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000287 He has declined to comment, but his White House supporters say his record on race relations should be considered as a whole. They note that Pickering once testified against a Ku Klux Klan leader in a murder trial and has been active in promoting racial relations in many ways in Mississippi. John Nowacki, of the conservative Free Congress Foundation, says, "The left conveniently chooses to ignore that he testified against the imperial wizard of the KKK in Mississippi in 1967, is on the board of directors of the University of Mississippi's Institute for Racial Reconciliation and has broad support among African-Americans who know him well." Pickering's rulings on voting rights and other civil rights issues have been subject to competing interpretations as well. How Pickering explains himself today could be crucial in senators' views of his record. Separately, some women's groups are urging senators to reject Pickering largely because, as a Mississippi state senator, he opposed a woman's right to end a pregnancy and, at the 1976 Republican Convention, he led the drive to add anti-abortion language to the party platform. As a judge, Pickering has never ruled on an abortion case. NAACP Chairman Urges U.S. Senate to Reject Pickering Nomination The Associated Press Thursday, February 7, 2002 NAACP Chairman Julian Bond urged the U.S. Senate on Thursday to reject the nomination of U.S. District Judge Charles Pickering to a federal appeals court seat in Louisiana. "Pickering is absolutely unsuited to be a federal judge... He has supported measures perpetuating voting discrimination against black voters; he has consistently opposed civil rights; he would deny women control of their bodies; and he would deny ordinary Americans access to the courts," Bond said. Bond said the Mississippi judge, while a law student, supported stronger criminal penalties for violating a ban at the time on interracial marriage. "His supporters may have roped in defenders who are willing to betray their own civil rights origins, but Pickering stands so far outside the basic standards we expect on our courts, he must be rejected forthwith," Bond said. Pickering was scheduled to appear Thursday before a Senate committee considering his nomination. The Mississippi judge was nominated by President Bush in May to the New Orleans-based 5th U.S. Circuit Court of Appeals. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000288 He appeared at an initial hearing before the Senate Judiciary Committee in October. Democrats forced Thursday's second hearing after asking to see Pickering's unpublished opinions. Groups opposed to Pickering made one last stand Wednesday. Members of the Congressional Black Caucus spoke out in Washington D.C., while the Mississippi branch of the National Association for the Advancement of Colored People reiterated its opposition to the Hattiesburg, Miss., judge. The caucus opposes Pickering because of what they call his conservative record as a state senator in the 1970s, and his record from the federal bench on voting rights and women's reproductive rights. Committee Approves Bunning’s Son for Judicial Post The Associated Press Thursday, February 7, 2002 The Senate Judiciary Committee unanimously endorsed David Bunning on Thursday to be a federal judge in Kentucky. He is a prosecutor in eastern Kentucky and the son of Sen. Jim Bunning, R-Ky. The nomination now goes to the full Senate for consideration. President Bush nominated the younger Bunning to be a U.S. District Court judge for the Eastern District of Kentucky in August. The American Bar Association subsequently told the Judiciary Committee that it thought Bunning was unqualified for the lifetime post. At a hearing last month, David Weiner, an attorney who investigated Bunning's qualifications on the bar association's behalf, noted that Bunning was two years shy of the 12 years of experience the ABA recommends for federal judges. Weiner said nominees with less than 12 years should have an extraordinary breadth and depth of experience. He said Bunning's civil experience was shallow and his writings "read very much like the work of a young associate." After Weiner completed his review, another bar association lawyer conducted a separate investigation and concluded Bunning was qualified. When the two reports were submitted to the ABA Standing Committee on Federal Judiciary, the panel sided with Weiner. Black Caucus Campaigns Against Pickering Day Before Second Hearing By Jason Straziuso The Associated Press 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000289 Wednesday, February 7, 2002 U.S. District Court Judge Charles Pickering of Mississippi is back in the political hotseat Thursday, returning to the Senate committee that is weighing his federal appeals court nomination. Groups opposed to Pickering made one last stand Wednesday. Members of the Congressional Black Caucus spoke out in Washington D.C., while the Mississippi NAACP reiterated its opposition to the Hattiesburg-based judge. The caucus opposes Pickering because of what they call his conservative record as a state senator in the 1970s, and his record from the federal bench on voting rights and women's reproductive rights, said Caucus spokeswoman Devona Dolliole. After being nominated by President Bush in May to the New Orleans-based 5th U.S. Circuit Court of Appeals, Pickering had an initial hearing before the Senate Judiciary Committee in October. Democrats forced a second hearing, scheduled for Thursday at 2 p.m., after requesting to see Pickering's unpublished opinions. The hearing will likely last one day. "This is sort of an information gathering session," said Judiciary Committee spokeswoman Mimi Devlin. Pickering has strong support from Senate Minority Leader Trent Lott and other state Republicans, who say opposition to the judge is politically motivated. Pickering is rated as well qualified by the American Bar Association. The state NAACP has said it opposes Pickering for his conservative record and for testimony he gave in 1990 concerning contacts he had with the long-defunct state Sovereignty Commission testimony the NAACP has called false. L.A. Warren of the state NAACP's legal division said Wednesday his group also opposes Pickering because he worked in a law firm with Carroll Gartin in the 1960s. Gartin was a lieutenant governor in the 1950s and 1960s who ran his campaigns on a segregationist platform. Warren says that Pickering's association with Gartin taints his record. But former Democratic Gov. William Winter said such a relationship must be put into perspective of the times. "Carroll Gartin was no racist," Winter said Wednesday. "He did, as did every political candidate in those days, give lip service to segregation. But Carroll Gartin was a relatively progressive leader of the time." In a letter of support of Pickering, Winter told the Judiciary Committee that Pickering "has been one of this state's most dedicated and effective voices for breaking down racial barriers." 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000290 Winter also said that he and Pickering have worked closely together as members of the Institute for Racial Reconciliation at the University of Mississippi. Senate Approves Martinez as Federal Judges The Associated Press Tuesday, February 5, 2002 The Senate confirmed Phil Martinez on Tuesday to a federal judgeship in the Western District of Texas. Martinez, 44, is judge of the state' 327th District Court in El Paso. A vote on his nomination was delayed last year by a squabble between the Senate Democrats and the White House over farm legislation. Congress adjourn in late December without approving his nomination. The Democrat with a law degree from Harvard was nominated last year by President Bush and approved by a Senate committee in mid-December. Sens. Kay Bailey Hutchison and Phil Gramm, both Texas Republicans, had recommended Martinez. "I'm just so grateful. I realize every day nobody gets to where they want to go on their own. I had great family support and I'm grateful to the president and the two senators as well," Martinez said. The district's caseload is considered one of the heaviest in the country and Rep. Silvestre Reyes, D-El Paso, said Martinez' confirmation is long awaited. "The Western District of Texas has been in dire need of support for a long time, and I have worked hard to secure this appointment. Martinez is highly qualified and I know he is the best candidate for this position. Now El Paso will receive some relief from its overburdened caseload," said Reyes, who also wrote letters of support to Bush on Martinez's behalf. El Paso has 884 pending cases, which is twice the caseload of either San Antonio or Austin, Reyes said. U.S. District Judge David Briones, currently the only federal judge in El Paso, has been using federal judges from districts in other states to help him chip away at a huge caseload, mostly filled with drug smuggling and immigration offenders. His workload grew larger in June after the departure of Judge Harry Hudspeth who accepted senior status. The confirmation now goes back to Bush to sign Martinez's commission. Martinez will then take an oath of office and start his new job. The final details are expected to be done next week. Accusations Stall Jurist Nomination 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000291 By Jerry Seper The Washington Times Tuesday, February 5, 2002 The nomination of Washington lawyer Miguel Estrada as the first Hispanic jurist on the U.S. Court of Appeals for the D.C. Circuit continues to be delayed by Senate Judiciary Committee Democrats because of what Republicans say are unfounded accusations by a former top aide to Attorney General Janet Reno. Former Deputy Solicitor General Paul Bender has publicly opposed the nomination, criticizing Mr. Estrada's qualifications and judicial temperament. This has become the mantra not only of committee Democrats but also of several liberal groups and others seeking to block the appointment. Mr. Bender, known at the Justice Department as the "political deputy," said during a recent interview that Mr. Estrada was "too much of an ideologue to be an appellate judge you could not count on him to be fair or neutral I could not rely on his written work as a neutral statement of the law." Those comments almost immediately found their way onto Internet sites and into fliers from several liberal groups and others opposed to the Estrada nomination. The Alliance for Justice referred to Mr. Bender on its Web site, saying, "Some who know Mr. Estrada have expressed concern about his ability to hear cases fairly." The National Organization for Women, also citing Mr. Bender, said Mr. Estrada's "ability to listen with an open mind to different points of view" has been questioned. But Mr. Bender's specific concerns over the Estrada nomination and his judicial qualifications remain unclear, although they have been extensively investigated by the American Bar Association and the National Hispanic Bar Association. Democrats have declined to elaborate on why the nomination has been held. Mr. Bender, now a professor at Arizona State University, did not return calls to his office for comment. The American Bar Association, with a membership of 400,000, gave Mr. Estrada its highest rating of "well qualified" after an investigation into his background and experience. A source close to the ABA probe said the inquiry included a "thorough review" of Mr. Bender's concerns. Boston lawyer Roscoe Trimmier Jr., chairman of the ABA's standing committee on the federal judiciary, said the rating was approved by a unanimous vote, but he declined comment on any aspect of the investigation. The National Hispanic Bar Association, with 25,000 members, also voted to ratify the 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000292 nomination. NHBA President Angel Gomez said that while the organization's inquiry was covered by privacy concerns, "I can tell you that after an extensive review of Mr. Estrada's record and his qualifications, he was ratified for endorsement by the board of governors." A source familiar with the NHBA probe said investigators also reviewed Mr. Bender's concerns, but, like the ABA, voted to ratify his nomination. Ronald A. Klain, former Clinton White House associate counsel and Justice Department lawyer who later served as Vice President Al Gore's chief of staff, also has endorsed Mr. Estrada's nomination. In a letter to Sen. Patrick J. Leahy, Vermont Democrat and Judiciary Committee chairman, he called Mr. Estrada "an outstanding candidate who merits confirmation." Mr. Estrada, 40, a partner at the Washington law firm of Gibson Dunn & Crutcher, declined to comment on the nomination. Meanwhile, Mr. Bender has come under fire by Republicans who have described his efforts against Mr. Estrada as a "one-man borking campaign," referring to the defeat by Democrats of Supreme Court nominee Robert Bork. Since that October 1987 vote, the word "borking" has come to mean discrediting someone with false accusations. Mr. Bender, however, is no stranger to issues that incite contentious debate. He was publicly reprimanded by the rebuked over his efforts to overturn the country's child pornography laws Senate in a 100-0 vote and by President Clinton, who blocked his efforts to liberalize anti-smut statutes outlined in the Child Protection Act of 1984. Senate Urged to Oppose Pickering By Ana Radelat The Clarion-Ledger Thursday, February 7, 2002 Rep. Bennie Thompson and other members of the Congressional Black Caucus urged the Senate on Wednesday to oppose the nomination of Mississippi Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals. And Thompson, Mississippi's 2nd District congressman, criticized any black Mississippians who may travel to Washington today to show support for Pickering at the U.S. District judge's second hearing before the Senate Judiciary Committee. "Jesus had 12 disciples; one of them betrayed him," Thompson said. "I'm sure there's a Judas who will come up and support him." Several black Mississippians have written in support of Pickering's nomination, including U.S. District Judge Henry Wingate, a former member of the NAACP. In his letter, Wingate called Pickering "a committed Christian who recognizes that racism is incompatible with God's law, 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000293 who recognizes that racism is destructive and contrary to the lofty principles of our beloved Constitution." Caucus members, however, cited Pickering's "insensitivity" to civil rights and women's issues as a reason he should not sit on the appeals court in New Orleans that hears cases from Mississippi, Louisiana and Texas. "We simply want judges that can render fair justice," said Thompson, a Democrat. President Bush selected Pickering, a U.S. District Court judge for the Hattiesburg-based Southern District, in May to fill an opening at the appeals court. The Senate Judiciary Committee has scheduled a second hearing on his candidacy today. Rep. Donald Payne, D-N.J., accused Pickering of "extremist views" and of opposing federal civil rights laws when the judge served in the Mississippi Senate in the 1970s. Other black lawmakers accused Pickering of withholding hundreds of unpublished opinions. "Without them, we can't get a whole picture of his record," said Rep. Bobby Scott, D-Va. The Senate first considered Pickering's nomination in October. But several Democratic members of the Senate Judiciary Committee said they wanted to review nearly 1,000 of the judge's unpublished opinions Pickering had submitted only 75 opinions to the panel. Since then, the committee has received 939 opinions, 219 of these as recently as Wednesday. Pickering is likely to be asked about some of those opinions that were later reversed by the 5th Circuit Court, including a case brought by a prisoner who said a jail rule prohibiting inmates from receiving magazines by mail violated his First Amendment rights to receive religious materials. Pickering dismissed the case, but the appeals court ruled for the prisoner, finding that Pickering had violated well-settled precedent. Thompson predicted the vote on Pickering's nomination in the Senate Judiciary Committee composed of 10 Democrats and nine Republicans "could go either way." If Pickering, who is supported by Sen. Trent Lott, R-Miss., is approved by the panel, he's likely to be approved by the full Senate. Civil rights and other special interests groups have also strongly opposed Pickering's nomination. Among those arrayed against the judge are the National Association for the Advancement of Colored People, People for the American Way, the National Abortion and Reproductive Rights Action League and the Leadership Conference on Civil Rights. The groups that oppose Pickering are concerned he'll increase the conservative tilt on the 5th Circuit Court of Appeals, which has a majority of Republican-appointed judges. 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000294 They may also view their opposition to Pickering as a test case. If they're able to defeat the Mississippi judge's nomination, they will probably be able to defeat the nominations of other judicial candidates they don't like, including Miguel Estrada, a nominee for the U.S. Court of Appeals for the D.C. Circuit, and Jeffrey Sutton, a nominee for the 6th Circuit Court of Appeals. Pickering has said he won't comment on the criticisms leveled at him, saying he'll answer them if they're raised at his Senate hearing. At his first hearing, he said his actions as a former prosecuting attorney in Jones County in the 1960s prove he's a defender of civil rights. As a prosecutor, Pickering testified against former Ku Klux Klan Imperial Wizard Sam Bowers, who was on trial in Forrest County for the murder of a black civil rights leader, and initiated other cases against Klansmen. But L.A. Warren, an official of the Mississippi state conference of the NAACP, says Pickering only took action against the Klan when it targeted local business interests. "He came out against the Klan because the Klan was bombing white businesses," Warren said. The NAACP official is also critical of Pickering's association with former Lt. Gov. Carroll Gartin, a staunch segregationist. From 1961 to 1971, Pickering was a partner in a law firm with Gartin. Thompson also decried the judge's relationship with Gartin. "I think his association with someone who is an avowed segregationist is reason for concern," he said. Op/Eds Say No to This Throwback The Los Angeles Times Wednesday, February 6, 2002 In 1958, a judge threw out Mississippi's ban on interracial cohabitation, not because he considered it morally repugnant and unconstitutional but because lawmakers had inadvertently mangled the statute's language so badly as to render it nonsensical and unenforceable. The next year, a law student by the name of Charles Pickering penned a law review article suggesting language that would fix the problem. The remedy he urged would let Mississippi authorities bring felony prosecutions against men and women because of whom they married or otherwise lived with. Charles Pickering Sr. now sits on the U.S. District Court in Mississippi, named to it in 1990 by then-President George Bush. Last year, President George W. Bush nominated Pickering for a seat on the powerful 5th Circuit Court of Appeals. Thursday, Pickering is scheduled to appear before the Senate Judiciary Committee to defend his record on the bench and, before that, as a state legislator and the Republican Party state chairman. 22 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000295 We have condemned the years-long partisan stalemate over judicial nominations. We are just as concerned, however, that the men and women who become life-tenured federal judges be committed to the principles of fairness and equality that guide this nation. At his hearing, Pickering will no doubt put the best light on his actions. But the Judiciary Committee should send his nomination back to Bush. Pickering's decisions in voting rights, discrimination and prisoner rights cases display indifference if not hostility to those asking the courts to remedy injustice. In several voting rights cases, he sharply criticized the principle of one person, one vote as upsetting state and local government operations and as costing a "tremendous amount of taxpayer money." Pickering has been no more disposed toward hearing from plaintiffs who claim bias on the job. His tendency to interject his personal opinions, biblical quotations and other extralegal materials into judicial opinions demonstrates that he lacks the open mind and equanimity that Americans require of their judges. Because Pickering served in the Mississippi Senate and as a party chairman, his ideological views are well known, among them his vigorous opposition to abortion rights and homosexuality. Pickering has, as well, been evasive if not misleading about his involvement over a number of years with the Mississippi Sovereignty Commission, a state-funded agency established to oppose integration efforts. Nevertheless, Pickering has a powerful friend in Senate Minority Leader Trent Lott (R-Miss.), and Lott is playing hardball. Lott's colleagues can expect repercussions for "no" votes. Money for their pet projects may disappear. Their bills may bog down. But the American people have the right to expect their judges, especially those on the powerful appeals court, to listen to each case with an open mind and judge it on the law and its merits. Pickering can't do that. The Judiciary Committee should reject his nomination. Left Targets Pickering...Again By John Nowacki Free Congress Tuesday, February 5, 2002 As Judge Charles Pickering’s October 18th nomination hearing began, Senator Charles Schumer took the unusual step of announcing that there would be a second nomination hearing for Judge Pickering. Second hearings are usually reserved for extremely controversial nominees whose answers at their initial hearing raise more questions. In Pickering’s case, Senate Democrats and left-wing groups knew they would want a second shot at attacking the nominee, since they couldn’t come up with any credible charges against him the first time around. With that second hearing scheduled for this Thursday, they still haven’t. Pickering, a federal district judge since 1990, was nominated by President Bush to be U.S. Circuit Judge for the Fifth Circuit on May 25, 2001. For those who are interested in such things, the not-remotely-conservative American Bar Association gave him a majority "well23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000296 qualified"/minority "qualified" rating six months ago. The attacks on Judge Pickering center on race-related civil rights issues, in spite of his exemplary record. The Left conveniently chooses to ignore that he testified against the Imperial Wizard of the KKK in Mississippi in 1967, is on the board of directors of the University of Mississippi’s Institute for Racial Reconciliation, and has broad support among AfricanAmericans who know him well. Instead, left-wing groups have attacked Judge Pickering for writing a brief academic article while a law student in 1959, analyzing how Mississippi’s miscegenation statute differed from similar statutes in other states and explaining what changes would eliminate the difference. His critics fail to mention that this was an academic exercise; that he didn’t advocate or support a ban on interracial marriage at all. They also fail to acknowledge his statement at his 1990 confirmation hearing, reaffirmed at his 2001 hearing: "Marriage between people of different races is a matter of personal choice," he said, adding that it was his personal belief that miscegenation statutes are unconstitutional. Those are more than just words; on the bench, Judge Pickering has followed the Supreme Court’s precedent and application of the Equal Protection Clause. In Adams v. Walmart, for example, Judge Pickering set aside a jury’s damages award because he believed the jury was biased against the plaintiffs -- a white man and his Asian fiancée -- based on their mixed-race relationship. On retrial as to damages, the couple received a larger award. Liberals have also attacked Judge Pickering for "contacts" with the Mississippi Sovereignty Commission, a group active in the 50s and 60s but basically defunct by the 70s. During his 1990 confirmation hearing, Pickering had no recollection of contacting the Commission, and said: "I never had any contact with that agency and I had disagreement with the purposes and the methods and some of the approaches that they took." Pickering did have one contact with the Commission in 1972, but not surprisingly, the Left ignores the real reasons for that contact and Pickering’s having forgotten it. As Chet Dillard, a prosecutor during the 1960s with firsthand knowledge of the matter, explained in a letter to Senators Leahy and Hatch, then-State Senator Pickering was in a group of state legislators who requested to be advised about a group organizing pulpwood workers in the state. In 1972, Jones County was just emerging from a bitter labor dispute at a plant where union members who were also members of the KKK shot into and burned homes in the middle of the night and brutally beat up workers. "As the former District Attorney of Jones County, Mississippi, I knew what Charles Pickering had known in 1972," Dillard wrote. "Indeed, in 1967, I filed a murder charge against reputed Klansman Vander L. ‘Dubie’ Lee, a member of the Woodworkers Union, for a murder at the Masonite plant in Jones County. As a state Senator representing Jones County, Charles Pickering had every reason to be concerned about further union violence involving the Masonite plant in Jones County. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000297 Dillard addressed Pickering’s having forgotten the request as well. "As any long-time resident of Mississippi knows, the mention of the Sovereignty Commission instantly brings to mind its highprofile investigations in the 1950s and 1960s. Thus, by 1990, Charles Pickering could easily have forgotten a 1972 conversation with a Commission investigator that occurred years after the Commission’s heyday and involved no high-profile Commission activity," he wrote. Where did the initial information on this issue come from? The Commission’s files, which Pickering had actually fought to preserve. While a state senator, Pickering voted to shut down the Commission in 1977 and preserve the records under seal instead of supporting the other proposed alternative: burning them. But his Left-wing critics always seem to forget to mention that. Pickering has come under attack from pro-abortion groups for his actions as a political figure, many years before he became a judge. While in the state senate, he expressed his concerns that there was no textual or historical basis for Roe v. Wade, an opinion shared by many liberals, including Justice Byron White (a Kennedy appointee), Watergate prosecutor Archibald Cox, and others. Pickering has not dealt with an abortion case as a judge. Judge Pickering’s critics also attack him for having "criticized or sought to limit important remedies provided by the Voting Rights Act," including the creation of majority black districts. In the relevant quote, what Judge Pickering actually wrote (in its entirety) was as follows: "This Court is still concerned that as white voters are separated into separate districts and black voters are separated into other separate districts there is going to be less and less accommodation, less and less effort to resolve differences by reason and logic and more and more polarization. Candidates elected in majority black districts may well feel little need to accommodate the views of their minority white constituents, and candidates elected from almost exclusively white districts may well feel little responsibility to accommodate the views of their minority black constituents. Constitutional guarantees of equality should bring us together, not divide us." In his rulings from the bench, Judge Pickering has shown he understands that the role of a judge is to interpret the law, not to legislate from the bench. He has followed Supreme Court precedent in voting rights and Miranda cases, and has demonstrated a commitment to being fair, impartial, and dedicated to following the law. That commitment led the Democrat-controlled Judiciary Committee to approve him unanimously in 1990, with Senators Biden, Kennedy, Leahy, and Kohl giving their approval. And that’s why the full Senate confirmed him by unanimous consent shortly thereafter. That same commitment, with his record as a federal judge to support it, should lead to that same support today. But it won’t. Liberals have made it clear that they will fight hard over Court of Appeals nominations, and they are going all-out to block Judge Pickering’s nomination. And by attempting to smear his reputation, they’ve shown once more that they will go to any lengths to do it. 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000298 Left-wingers are counting on people listening to their charges without taking a closer look. But the facts show that Judge Pickering has been a supporter of civil rights for five decades, both on the bench and off, and that’s why Senators should have no reservations about voting for his confirmation. Extremist Judge is Unfit to Sit on Appeals Court The Atlanta Journal Constitution Thursday, February 7, 2002 President Bush is using his widespread popularity, a result of the easy rout of the Taliban, to shore up a domestic agenda that most voters find too conservative. The latest example of that is Bush's nomination of a right-wing extremist, Charles Pickering, for the federal bench in New Orleans. In offering Pickering for the 5th Circuit Court of Appeals, the president is making a mockery of the bipartisan cooperation that he has touted since Sept. 11. Pickering has such a shameful record on civil rights that even moderate Republicans are having second thoughts about his nomination. Pickering has offered no apologies for a law review article he wrote in 1959 suggesting ways to strengthen a Mississippi prohibition on interracial marriage. In addition, he falsely denied any contact with the Sovereignty Commission, a segregationist organization. Records later uncovered from his state Senate days revealed a 1972 letter in which he asked to be kept informed of the commission's activities. He also worked tirelessly against the 1965 Voting Rights Act. His anti-abortion stance is far more extreme than that of Bush or most conservative jurists. Like Attorney General John Ashcroft, Pickering supports a constitutional amendment to prohibit all abortions, regardless of the risk to the mother's life. A former chairman of the Mississippi Republican Party and a federal district judge since 1990, Pickering has powerful GOP political ties. His son is a Republican member of the U.S. House of Representatives from Mississippi, and Senate Minority Leader Trent Lott (R-Miss.) is one of his strongest supporters. Lott claims that Democrats are blocking Bush's judicial appointments, but he is exaggerating the record. So far, 32 of Bush's judicial appointments have already been approved, five more than the Republican-controlled Senate approved in President Clinton's first year. If Bush wants his nominees to move more quickly, he should withdraw Pickering's name and choose a more mainstream candidate. There are plenty of qualified conservative judges whom senators in both parties can support. Harris Hartz, a former New Mexico Court of Appeals judge, a staunch Republican and a Bush contributor, recently received speedy bipartisan approval for appointment to the 10th Circuit Court. And former Georgia legislator Clay Land, a Republican moderate, easily won confirmation last month to the Middle Georgia U.S. District Court. 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000299 This is too important a matter for opponents to back down. All federal judicial appointments are made for life, but the decisions of the 13 circuit courts, especially, have enormous impact on the lives of millions of Americans. If judges like Pickering were appointed, American justice would be skewed beyond recognition. If Bush will not withdraw Pickering's nomination, the Senate Judiciary Committee should recommend against his confirmation. U.S. jurisprudence came too far in the late 20th century to allow it to lapse back into a time when Pickering's prejudices reigned. A Judge’s Past By Bob Herbert The New York Times Thursday, February 7, 2002 "I never had any contact with the Sovereignty Commission." That's what Charles W. Pickering told the Senate Judiciary Committee at a hearing that preceded his appointment to the federal bench in 1990. The problem with that statement is that it doesn't appear to be true. The Mississippi Sovereignty Commission was a grotesque, hateful, virulently anti-black organization established by the state of Mississippi in the mid-1950's to take whatever steps were necessary to maintain segregation and the privileges of white supremacy in the wake of the Brown v. Board of Education ruling outlawing segregation in the public schools. The commission harassed black people, undermined efforts to secure voting rights, spied on civil rights leaders and infiltrated civil rights and labor organizations. Among other things, it helped screen potential trial jurors for Byron De La Beckwith, who murdered the civil rights leader Medgar Evers in 1963. The commission was still doing its dirty work when Mr. Pickering served in the State Senate in the 1970's. But when Mr. Pickering was selected by President George Bush the First to fill a District Court seat in 1990 he not only denied any contact with the commission, he said that when he was a state senator it "had, in effect, been abolished for a number of years." That certainly wasn't true. This is relevant now because Judge Pickering has been nominated by President George Bush the Second to a seat on the U.S. Court of Appeals for the Fifth Circuit. It's a critically important appointment. The Fifth Circuit, based in New Orleans, covers the states of Louisiana, Mississippi and Texas. It's the poorest circuit in the country and more than 40 percent of the inhabitants are ethnic minorities. 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000300 Judge Pickering, a close friend of Senator Trent Lott, is a right-winger whose views over many decades have been insensitive, and frequently hostile, to the rights of minorities, the disenfranchised, the poor and women. Mr. Pickering is to appear today before the Senate Judiciary Committee to discuss his record. Civil rights and abortion rights groups are mobilizing to block his confirmation. Mr. Pickering had a significant effect on his home state's racist past as early as 1959 when he was a student at the University of Mississippi Law School. He felt it was important to bolster Mississippi's anti-miscegenation law. A marriage between a black person and a white person was a felony, punishable by up to 10 years in prison. But Mr. Pickering recognized there was a loophole in the law that could allow some interracial couples to fall in love and marry without being arrested and sent off to prison. He wrote an article in The Mississippi Law Journal explaining how the law could be fixed. The state legislature took his advice, amending the law the very next year. Mr. Pickering's claim that he had had no contact with the notorious Sovereignty Commission seemed pretty dubious when the commission's previously sealed records were released a few years ago. People for the American Way, one of the groups fighting Judge Pickering's nomination, noted that in 1972 and 1973 he voted as a state senator to appropriate money to cover expenses of the commission. The records included memos showing that he had asked to be kept apprized of the commission's information regarding a group promoting workers' rights in Laurel, Judge Pickering's hometown. Throughout his career Judge Pickering has been antagonistic to the voting rights guaranteed by the 14th Amendment and the federal Voting Rights Act. After the debacle in Florida in 2000, one would think that a commitment to the protection of voting rights would be a prerequisite for anyone being considered for appointment to the federal bench. But that idea is quickly trumped by the simple fact that President Bush was the beneficiary of the Florida debacle. Some things never change. Mr. Pickering's nomination is an affront to black people from coast to coast. But in a Bush White House, when civil rights come up against the Republican right, it's not even a close call. Judge Pickering's racist past, his problematic present and his apparent difficulties with the truth have not been enough to persuade the president to reel in this nomination. A Brave Judge’s Name Besmirched By James Charles Evers The Wall Street Journal Thursday, February 7, 2002 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000301 In recent days, I have been saddened and appalled to read many of the allegations that have been put forth about Judge Charles Pickering, whose nomination to the U.S. Court of Appeals for the Fifth Circuit will be the subject of a Senate Judiciary Committee hearing today. These allegations are mostly made by groups with a Washington, D.C., address and a political agenda, not by anyone with real knowledge of Mr. Pickering's long and distinguished record on civil rights. As someone who knows Judge Pickering and is familiar with his commitment on matters of race, I could not sit by and watch these groups' attempts to destroy a good man. Let me tell you about the Charles Pickering many of us in Mississippi have known for well over 30 years. In 1967, many locally elected prosecutors in Mississippi looked the other way when faced with allegations of violence against African-Americans and those who supported our struggle for equal treatment under the law. Mr. Pickering was a locally elected prosecutor who took the stand that year and testified in a criminal trial against the imperial wizard of the Ku Klux Klan, who was accused of firebombing a civil rights activist. Mr. Pickering later lost his bid for re-election because he dared to defy the Klan, but he gained my respect and the respect of many others as a man who stands up for what is right. In 1976, while serving as chairman of the state Republican Party, Mr. Pickering hired its first black political staffer. Mr. Pickering didn't send this person only into the African-American community to look for votes. He felt that the Republican Party's message should be delivered by the same individual to all communities, regardless of skin color. I may not have agreed with the Republican Party's message then or even now, but I certainly admire and agree with Mr. Pickering's inclusive approach to politics. In the 1980s, Mr. Pickering was in private practice as a lawyer, and became known as a person who took on difficult cases. One such case involved an African-American man accused of robbing at knifepoint a 16-year-old white girl while she operated a rural grocery store. Mr. Pickering believed the man was not guilty, and took on his case. Very few others in Mississippi would have believed the same thing. After two trials, the man was acquitted. Since he was selected and confirmed to the federal bench in 1990, Judge Pickering has continued to amass a record of working to improve race relations in Mississippi and throughout the U.S. After President Clinton held a town hall meeting on race at the University of Mississippi in 1998, Mr. Pickering and Gov. William Winter led the effort to encourage Chancellor Robert Khayat to establish the Institute of Racial Reconciliation at Ole Miss. Judge Pickering sat on the executive committee of the institute, whose goal is to promote understanding and goodwill between people of different races. Mr. Khayat also chose Mr. Pickering to serve on the institute's board of directors, not only because of his role in helping to shape its mission, but also because he has led a life which exemplifies the institute's primary objective -- eliminating racism. 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000302 As someone who has spent all my adult life fighting for equal treatment of African-Americans, I can tell you with certainty that Charles Pickering has an admirable record on civil rights issues. He has taken tough stands at tough times in the past, and the treatment he and his record are receiving at the hands of certain interest groups is shameful. In my view, picking judges should be about finding the right person for the job, someone who respects the Constitution, instead of distorting the record of good people for political purposes. I am afraid that is what is happening to Judge Pickering. Those in Washington and New York who criticize Judge Pickering are the same people who have always looked down on Mississippi and its people, and have done very little for our state's residents. I urge the Senate to confirm Judge Pickering. Mr. Evers, the brother of slain civil rights leader Medgar Evers, manages a radio station in Jackson, Miss. Appeals Court Nominee Well-Qualified By John Nowacki The Atlanta Journal-Constitution Thursday, February 7, 2002 Liberal interest groups are doing everything they can to thwart the nomination of federal district Judge Charles Pickering to the Fifth Circuit Court of Appeals, counting on people listening to their charges without taking a closer look. The facts actually show that that Pickering is a fair, qualified judge who has been a supporter of civil rights for five decades, both on the bench and off. As a nominee, he received a majority "well qualified" rating from the American Bar Association and has the support of the current and 13 former presidents of the Mississippi Bar, the Federal Bar Association of Mississippi and others who have practiced before him for years. On the personal side, he is on the board of directors of the University of Mississippi Institute for Racial Reconciliation, was chair of a race relations committee in his home county, helped establish a program for at-risk African-American youth, testified against the Imperial Wizard of the Ku Klux Klan in 1967 despite the risks to himself and his family, and is supported by prominent African-Americans who know him and his commitment to equal protection under the law well. Nevertheless, liberal groups have attacked Pickering's civil rights record. They complain about incidental contacts almost 30 years ago (while he was a state senator) with the Mississippi Sovereignty Commission, a group Pickering voted to shut down. What liberals don't mention is that Pickering requested information about a union infiltrated by KKK members, one of whom had been charged with murder -- with Pickering's signature on the affidavit supporting the indictment. Information about the contact is available thanks to Pickering, who voted to preserve 30 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000303 the commission's records instead of burning them. Liberals point to an academic article Pickering wrote while a law student in 1959, analyzing how Mississippi's miscegenation statute differed from those of other states. They ignore the fact that he didn't advocate or support the statute, just as they ignore his statement during his 1990 hearing -- reaffirmed last year -- that "marriage between people of different races is a matter of personal choice," and that those statutes are unconstitutional. Of course, they also ignore his rulings that follow Supreme Court precedent and put those words into practice. Liberal interest groups have attacked Pickering on voting rights and Miranda issues as well, but a fair-minded examination looking at quotes and rulings in their entirety -- and not in bits and pieces -- shows that he followed the law and Supreme Court precedent. As for criticism related to abortion, even the left has to admit that Pickering has never had an abortion case before him. Most of these issues existed when Pickering was confirmed as a district judge 12 years ago. There wasn't anything to them then, and that's why he was unanimously reported out of the Judiciary Committee, with Sens. Patrick Leahy (D-Vt.), Ted Kennedy (D-Mass.), Joseph Biden (D-Del.) and Herbert Kohl (D-Wis.) giving their approval. And that's why the full Senate confirmed him by unanimous consent shortly thereafter. This is really an attempt to defeat a Bush judicial nominee and rally the left-wing troops for the eventual Supreme Court nomination fight. Pickering is well-qualified for the Court of Appeals, but as long as they can chalk one up on their scorecard, the liberals don't care whose reputation they sully in the process. Laurel Leader-Call on "Judge Pickering’s Nomination" The Associated Press Tuesday, January 29, 2002 It's the devils world. If you don't think so, look at the public thrashing Judge Charles Pickering Sr. is taking as he awaits confirmation for a seat on the 5th Circuit Court of Appeals, based in New Orleans. Those opposing this presidential nomination can't attack Pickering's work for the past 11 years as a U.S. District Court judge. The American Bar Association reports that he is well qualified, the highest ranking it can give. In a tired, monotonous effort to smear Pickering as a racist, the opposition places a great deal of emphasis on a student essay written in another era. They magnify a question he may have asked about a situation in the early 1970s in a weak attempt to brand him as a liar and in league with the Sovereignty Commission. Is this the best they can do? They choose to ignore that as the county prosecuting attorney during the 1960s, Pickering prosecuted the Ku Klux Klan here in Jones County. They fail to mention that his life could have 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000304 been (and probably was) in danger during that time. Charles Pickering has made an outstanding federal judge, and is deserving of this next step in the Federal Court system. He is a fine family man, a successful attorney and farmer, and a strong Christian leader. Is it no surprise in this day and time that his Christian beliefs are what the opposition seem to hate the most? He has been criticized for being the first lay leader of the Mississippi Baptist Convention. Actually, that was an honor, and a tremendous responsibility which he handled very well. During his life, Pickering has received many honors. Just last year, he and his wife, Margaret Ann, shared the honor of being named Alumnus of the Year at Jones Junior College, a great compliment to two native Jones County residents from the people who really know them. And while Pickering truly believes in the Christian faith, his record reflects that he is a judge who follows the rule of law to the letter. Those who know him do not believe he will try to create new laws from the Federal bench as some of the liberal members of the court have, and still try to do. That's what is important in this discussion. Federal Judicial Nominees Lean Too Far Right By Nan Aron The Fulton County Daily Report Tuesday, February 5, 2002 President George W. Bush may criticize the Senate and exhort it to accelerate confirmations or give a thumbnail biography of one or two nominees without any real content regarding their legal views. But it's doubtful he gives the American people much insight into what his nominees stand for. That's bad, because the American people need to know what the battle over judicial nominations is really about. It is not simply a power struggle between the Senate and White House. It is not a childish exercise in payback for President Bill Clinton's troubles with a Republican Senate. It's not about process or procedure. It's about content. And this time the content is the soul of the federal judiciary. This administration understands the strategic importance of judicial appointments in carrying out the president's goals. Borrowing a page from previous Republican presidents, the Bush administration moved quickly to leave its imprint on the federal judiciary. Starting with the swift decision to expel the American Bar Association from the judge-picking process, this administration has moved to take advantage of the goodwill a new president 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000305 normally enjoys early into his tenure. Three and a half months after Bush was sworn in, his first nominees were selected. Now if the Senate were to rubber-stamp those and later nominees, what a sad legacy Bush would leave for the country. The administration is living up to its promise to move the judiciary to the right. With too few exceptions, its appellate court nominees are ideologues far out of the mainstream on issues about which there is broad consensus in this country. Their records exhibit an aggressive hostility to civil and women's rights and to environmental, consumer and workplace protections. Providing pro bono legal services also has not been a big part of their lives. Instead, the Bush nominees' resumes describe the large corporations, wealthy industries and rightwing causes they represent. Several belong to the Federalist Society, a group pledged to overturn hard-fought rights and consumer gains of the last several decades. A Leaning Judge The Senate Judiciary Committee is about to take up one in a series of controversial nominees. Charles Pickering, now a U.S. district judge in Mississippi, has been nominated to the 5th U.S. Circuit Court of Appeals. Interestingly, Pickering, 64, already has received one hearing before the Judiciary Committee-in October 2001. Now the committee is calling him back for another look. The view is not good. Pickering has a record on race issues that demonstrates a consistent lack of support for-and arguably an outright hostility toward-efforts to remedy racial injustice. As a student in 1959, he published a law review article recommending ways to strengthen Mississippi's ban on interracial marriage; shortly thereafter, the legislature amended the law as Pickering had recommended. As a state senator from 1972 to 1980, he cast several votes to impede the full extension of electoral opportunities to African-Americans. As a federal trial judge, Pickering has taken troubling positions on the Voting Rights Act and injected personal views into his opinions that call into question his willingness to deal fairly with race-related cases. In one Voting Rights Act dispute, he wrote, "This case is simply another of those which demonstrates that many citizens have come to view the federal courts as a potential solution for whatever problem comes along." In another, he criticized the creation of majority-black districts because "there is going to be less and less accommodation, less and less effort to resolve differences by reason and logic and more and more polarization." In a constitutional voting rights case, he called the one-person one-vote doctrine "obtrusive." In a racial discrimination case, he remarked, "This case has all the hallmarks of a case that is filed 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000306 simply because an adverse employment decision was made in regard to a protected minority." Through these and similar comments he reveals disdain for the problems of discrimination that continue to plague our society. Pickering's record also suggests a strong opposition to reproductive freedom. As a state senator, he voted for a constitutional convention to overturn Roe v. Wade. As a Mississippi Republican Party official, he chaired the platform subcommittee that called for a constitutional amendment banning abortion. On the bench, Pickering's opinions raise questions about his judicial temperament and commitment to fairness. In 11 of his 99 published opinions, he included extraneous sectionsranging from one paragraph to almost seven pages of an 18-page opinion-criticizing the state of the law, the actions of other unnamed judges, society in general or the losing party. In several habeas corpus cases, he stated that federal courts should grant habeas petitions only if a prisoner could prove actual innocence. In other cases, he criticized federal courts for creating rights or society for being too litigious. Finally, Judge Pickering's 11-year record is one of gaping holes. A major reason for the Judiciary Committee's decision to call him back again is his large number-more than 1,000-of unpublished opinions. When asked at his October hearing why he had chosen to publish fewer than 10 percent of his opinions, Pickering said that while he published more when he first took the bench, "the novelty wears off." He also said that "there is too much being written out there." The senators are understandably determined to get a better sense of what Pickering has been writing. A Tilted Court Even without Pickering, the 5th Circuit today is well known for its bias against civil rights and reproductive rights. Presidents Ronald Reagan and George Bush placed some of the most zealous ideologues in the country on this circuit. (Yet, historically, the court had led great advances in social justice. President Dwight Eisenhower's appointees to the old 5th Circuit left an indelible mark on American law and society.) If confirmed, Pickering surely will prove a reliable ally in moving the 5th Circuit further to the right and far out of step with mainstream Americans. Of course, the circuit's inability to grasp the injustice facing civil rights plaintiffs should not surprise us. Although the three states that make it up-Texas, Louisiana and Mississippi-contain the highest concentration of minorities of all the circuits, the court boasts only one African-American and two Hispanic judges. (Charles Pickering would not add to that total.) 34 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000307 Yet the lack of minority judges certainly has not been due to a lack of 5th Circuit vacancies. Throughout the Clinton presidency, the court experienced severe backlogs due to unfilled seats. In l999, it was declared to be in a state of emergency. Despite the unmet need during the 1990s, Mississippi Sen. Trent Lott (then the majority leader and now the minority leader) went along with efforts by Texas Sens. Phil Gramm and Kay Bailey Hutchinson to block two eminently qualified Hispanic candidates for the 5th Circuit. They were Enrique Moreno, who never received a hearing, and Jorge Rangel, who finally withdrew his name from consideration. Today, Lott is suddenly in a big hurry to address this emergency-and secure a seat for his old friend and political ally Pickering. (Pickering is also the father of Rep. Charles "Chip" Pickering Jr., R-Miss.) We need fair, compassionate, and wise judges. We need judges who are not reluctant to publish opinions because they know their reasons will stand up to scrutiny. And we need a Senate willing to take its constitutional role seriously and to look hard at every nominee to the federal bench. Senate confirmation is our last opportunity to ensure that all federal judges are qualified for their lifetime appointments. Putting judges on the bench who favor big business over little people, who will roll back hardfought civil rights, reproductive freedoms, and consumer, worker and environmental protections, would be an abdication of duty by our officials and a great injury to all Americans. Transcripts/Members of Congress Should Pickering Ascend? CNN The Point with Laura Ingram (guests: Marcia Kuntz, Charles Pickering, Jr., Allan Mayer, Rich Lowry Wednesday, February 6, 2002 *EXCERPT* A few months ago Capitol Hill sounded like this... (SINGING) ... but that wartime unity may become the victim of a political war over judicial nominations. 35 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000308 (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: I'm sure somewhere there's a Judas who will come up in support of Charles Pickering. (END VIDEO CLIP) ANNOUNCER: Flashpoint: Confirmation wars. He fought with the Taliban. He's not getting out of jail. But can anything get him a little sympathy? Tonight, scandalous behavior: from John Walker to Ken Lay, to Bill Clinton, to Paula Poundstone. (BEGIN VIDEO CLIP) UNIDENTIFIED MALE: When you get in trouble, the access increases, the attention on you increases. And if you handle it successfully, your celebrity increases. (END VIDEO CLIP) ANNOUNCER: Flashpoint: reputation rescue. Now, from Washington, Laura Ingraham. LAURA INGRAHAM, HOST: If you thought the Enron hearings were getting partisan, you ain't seen nothing yet. The mean season gets underway on Capitol Hill tomorrow, as a Senate Judiciary Committee takes up for the second time, the nomination of Judge Charles Pickering, President Bush's choice for the fifth circuit court of appeals.. Today, the Congressional Black Caucus gave us a taste of what we can expect to hear from the Democrats. (BEGIN VIDEO CLIP) REP. BENNIE THOMPSON (D), MISSISSIPPI: Ever since Charles Pickering was in law school, he's demonstrated an insensitivity to minorities and to women and to people of color. His nomination is an affront to the good people who make up the fifth circuit court of appeals. His record is replete with all the innuendos that we do not need in a court. (END VIDEO CLIP) INGRAHAM: Believe it or not, Judge Pickering is lucky. At least he's getting a hearing. Of the 90 judicial picks President Bush has sent to the Democrat-controlled Senate, only 32 have been confirmed. And only 8 of the 58 still awaiting consideration have even had hearings. Activists are vowing that candidates like Judge Pickering won't get through. Republicans are charging obstructionism. Flashpoint: judicial gridlock. Joining us to discuss the war over judgeships is Marcia Kuntz from the Alliance for Justice, and Congressman Chip Pickering, son of Judge Charles Pickering. And he is a Republican from 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000309 Mississippi. Welcome to both of you. MARCIA KUNTZ, ALLIANCE FOR JUSTICE: Thank you. INGRAHAM: Marshal, let's start with you because I find what is happening to Judge Pickering to be kind of an outrage. Let's put that right on the table. First of all he has received the highest rating from the American Bar Association. Second of all, he's been a federal district judge for anout 12 years. Third, he testified against the KKK back in 1967. And it seems what's going on here is the beginning of a new Bourking season. Is that's what's happening? KUNTZ: Absolutely not, Laura. The fact of the matter is that no nominee is presumptivelyy entitled to a seat on the federal bench. You mentioned his ABA rating. The ABA has undertaken a limited review of his record. Just as an example, the ABA did not get the opportunity to review Judge Pickering's some 1000 unpublished opinions out of 1,100 that he has issued. With regard to the KKK, a close examination of his record over the last 40 years indicates a very different person from the civil rights proponent that Judge Pickering supporters are attempting to invent. Judge Pickering's entire legal career is characterized by a hostility to progress made on civil rights... INGRAHAM: What does that mean though, Marcia? What does that mean? People throw around these charges and I think they're dangerous charges. What specifically does that mean? What evidence do you have that Judge Pickering is not sensitive to issues of racial injustice. KUNTZ: We can take a march through history, starting with his law school career. Unfortunately, his history is rather long in this regard. Starting in law school, he wrote an article recommending changes the Mississippi legislature called make to beef up its criminal prohibitions on interracial marges. Just an example. Immediately after law school, he chose to join a three-person law partnership with a former Lieutenant Governor who ran for governor as an avowed segregationist. In the '70s, he appropriated money to the notorious sovereignty commission. He requested to be kept informed of the sovereignty's investigations of labor union activities in his home town. INGRAHAM: We'll divide it up. We'll divide the time up here. Congressman Pickering, those are tough words about your father, and obviously you are not an unbiased observer. He's your dad. Does it feel like, to you, guilt by association here, or is your father trying to hide something in this confirmation process? REP. CHARLES PICKERING JR. (R), MISSISSIPPI: This is the worst case of character assassination and political McCarthyism you can see in Washington. It's really a sad example. If you look at my father's life -- the day I was born in August 1963, he was elected as county attorney in Jones County, Mississippi. This was a time, in our county, my community's history, 37 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000310 which was wracked by violence. The civil rights movement was coming and the KKK were in thousands of cases, trying to intimidate African-Americans who were trying to register to vote. My father took a principled stand that risked his personal safety, his family's safety and his political career. He lost the next election because he worked to prosecute, break the Klan, testfied against the imperial wizard of the KKK in 1967. Throughout his 40 (sic) decades in political, religious, community and civic roles and responsibilities, he's always worked to improve race relations, recial reconciliation. That's why the former governor of Mississippi, a Democrat William Winter, who headed up the president's race initiative, has strongly endorsed him. The ABA gave him the highest rating. African American and civil rights leaders from across the state have testified to his fairness, his decency and his sensitivity and his long-standing efforts to improve racial relations in my state. INGRAHAM: Marcia, I don't think anyone wants to put anyone on a Federal court of appeals who is going to stand at the school house door and prevent black children from getting equal opportunity and education. But to listen to some of the criticism of Judge Pickering, despite the letters and there's a stack of them from African-Americans across the country, former board members of the NAACP, it just doesn't sound in sync with your descruptions of him. He is a conservative, but does that make him out of the judicial mainstream. That is the question poeple have. KUNTZ: Laura, you have to look at his record. And I have to respond to a couple of things that Congressman Pickering said. First of all, with record to his testifying on against the KKK, he was subpoenaed to do that. Secondly, as I pointed out. All you have to do is look at his record in the '60s. He partnered with an avowed segregationist. INGRAHAM: But that's guilt by association. KUNTZ: That is incosistent. It is not guilt by association. INGRAHAM: That's a dangerous road to go down, in politics or the law. KUNTZ: It is indicative of where Judge Pickering was at the time in terms of the civil rights movement. But that's just the '60s. Let's move into... INGRAHAM: Let's get into the last decade. KUNTZ: Let's get into the last decade. He has issued decisions that demonstrate a hostility to civil rights plaintiffs. INGRAHAM: Which one? KUNTZ: Several of them. Both voting rights decisions and... 38 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000311 INGRAHAM: He is not a liberal on issues... KUNTZ: Employment discrim -- I'm not talking... INGRAHAM: He is not a liberal -- a judicial liberal. He's pro- life. He's a traditionalist. No doubt about it. But does that make him unqualified for the federal bench? KUNTZ: Laura, it does make him unqualified for the Federal Bench, although I would not characterize his record in the way you have. His record is one of a demonstrated hostility to federal protections to progress made in the federal courts in furtherance of civil rights, of women's reproductive freedoms. He has expressed a hostility to federal government's involvement... INGRAHAM: Congressman Pickering, is your father is the type of person who will enforce and see the administration of justice as it exists on the books today? Is he capable of doing that? Has he been doing that? PICKERING: His record as a judge has been to administer the law, to follow the precedence, to follow the law, the constitution, even if he disagrees with it personally. And time after time there are cases -- one great example that the liberals would not like to talk about, he disagreed with Arissa (ph) and he talked about how we needed to make sure that we had accountability to ensure health care access and benefits. And Senator Kennedy and Congressman Ganskey, many others that were pushing patient bill of rights to the Congress, sited my father's opinion in which he laid out what was wrong with the current state of our nation's health care laws. That is an example where he disagreed, but he upheld the current law, the precedent and there are numerous others. Looking at my personal family background, in 1969 that was my first grade class. That was the first grade that was integrated in Mississippi. My father supported the integration of public schools. We had three sisters... INGRAHAM: He was the first person in the Republican Party to actually hire a black staffer. Hadn't happened before. He left the Democrat Party at a time when an avowed racist, segregationist was a leading figure in Mississippi Democrat politics. KUNTZ: He left Democratic Party explaining in a letter that he was doing so because the Democratic Party had become too socialistic. That is not consistent with your assertion that he left the Democratic party because it was headed by racists. PICKERING: This is the reality. My father risked his personal life, his family's, his career to stand up for equal access and protection and he fought against the Klan, he prosecute worked with the FBI, testified against them. He has worked in bi-racial community coalitions to solve problems at the local level and at the state level. 39 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000312 He has tremendous support because of his commitment of seeing all of God's children as equal, and that any hostility or any type of effort to take away those rights had to be defended. (CROSSTALK) INGRAHAM: We got to leave it there, guys. KUNTZ: Congressman Pickering mentions the broad support. Congressman Pickerman mentioned the broad support that his father has garnered. In fact, there is no institutional support and there is much institutional opposition. The local NAACP... INGRAHAM: We'll see what happens. Tomorrow's hearings are going to be something. PICKERING: This is a smear because he has a good record. They're afraid of a man who is compassionate and conservative, being progressive in this. INGRAHAM: All right. We have got to get out of this. Marcia Kuntz, we appreciate you joining us. Congressman Chip Pickering, it's going to be a heated hearing tomorrow and more to come, no doubt. And up next: bad boys and bad girls and the image doctors who bring them back from the brink. (COMMERCIAL BREAK) Judge Charles Pickering’s Confirmation Hearing All Things Considered, NPR Wednesday, February 6, 2002 LIANE HANSEN, host: With the economic stimulus debate barely over, another battle in the Senate is just beginning, this one over President Bush's most controversial judicial appointments. Tomorrow the Senate Judiciary Committee holds a hearing on the nomination of Judge Charles Pickering for a seat on the US Court of Appeals for the 5th Circuit. NPR's legal affairs correspondent Nina Totenberg reports. NINA TOTENBERG reporting: It is no accident that the Pickering nomination is the first in line. The politics of the Senate are the politics of clout, and Charles Pickering's patron and promoter is none other than Senate Minority Leader Trent Lott. In fact, the judge's first hearing was in October. Unanswered questions then, however, forced a second hearing now, and in the interim, civil rights, abortion rights, consumer and environmental groups have moved into high gear to oppose the nomination. Pro-choice activists have been at the forefront of the fight because of Pickering's undisputed 40 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000313 records against abortion rights before he became a trial judge in 1990. In his 10 years on the bench, he has not ruled on an abortion case, and he said in October that as a lower-court judge he would have to follow the law as laid down by the Supreme Court in Roe vs. Wade. But as a state senator, he sought to convene a federal constitutional convention to overrule Roe. And at the 1976 Republican Convention he played a key role in getting the national party to abandon its neutrality on the issue in favor of an anti-abortion platform. Kate Michelman is president of the National Abortion Rights Action League. Ms. KATE MICHELMAN (President, National Abortion Rights Action League): Pickering's career has been notable not for his record as a judge or as a legal scholar, but as a partisan political activist. Pickering has been at the front lines on some of the most divisive political issues of our time and repeatedly has pursued a far-right conservative agenda. TOTENBERG: Race, too, will be on the agenda tomorrow, particularly what role Pickering played in the troubled racial history of Mississippi. Both the national and local NAACP organizations are strongly opposing his nomination. Wade Henderson is director of the Leadership Conference on Civil Rights. Mr. WADE HENDERSON (Director, Leadership Conference on Civil Rights): Who are we to turn our back on the record of Charles Pickering, on what we know about his temperament, the actions that he took prior to coming to the court and since being on the court? It would be a betrayal of our responsibility and principles. TOTENBERG: Pickering formally left the Democratic Party and joined the GOP in 1964, citing the Democratic National Convention's decision to seat a multiracial delegation instead of an allwhite state party delegation. And his critics point to a record that they say moved from overt hostility to blacks when he was a state legislator to insensitivity to minorities as a judge. That's a characterization hotly disputed by his supporters, including some minorities at home and in Washington. Viet Dinh is an assistant attorney general in the Bush Justice Department. Mr. VIET DINH (Assistant Attorney General): I think that Judge Pickering has expressed his commitment to civil rights through five consecutive decades of action. For example, he testified against an imperial wizard of the KKK for a fire bombing in a civil rights demonstration in 1967. He hired the first African-American political worker in Mississippi in 1976. He represented, in a personal capacity, an African-American gentleman falsely accused of robbing a young white woman. TOTENBERG: But tracking Pickering's judicial record has been uncommonly difficult. At his October hearing, Pickering estimated he'd written 1,100 opinions. Of those, however, only 92 were published and initially available for the committee to review, prompting a second hearing and considerable exasperation from Senator Lott. Senator TRENT LOTT (Minority Leader): He's a classic case of how the committee has kicked the can down the road. 'Oh, well, yes, we had one hearing. We may need another one. Oh, well, 41 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000314 we've got all his opinions. How about his unpublished opinions?' This is unnecessary and ridiculous harassment. TOTENBERG: A word of explanation here. Everything a judge writes is public unless it's formally sealed. But only those opinions a judge deems of some legal importance are published online or in legal books, and this is the first time in memory that an appeals court nominee has had so much of his work unpublished. Pickering has testified that he made a concerted decision not to burden lawyers with excessive publication, and his defenders in the administration say the judge followed the rules for publication set down by the Judicial Conference, rules that give judges wide latitude. The Senate Judiciary Committee as of this week, however, had still not received some 300 unpublished opinions. The judge has said he's having difficulty locating some because of a changeover in the court's computer system. But that answer may not appease the Democrats. NYU law professor Stephen Gillers, one of the nation's leading ethics experts, says it shouldn't. To have so many unpublished opinions, he says, is odd. Professor STEPHEN GILLERS (NYU): I don't think the Senate or the Senate Judiciary Committee will do the job the Constitution assigns to it if it doesn't get to review, beforehand, nearly all of the judge's work as a judge. I think that's its task, its duty to the American people. TOTENBERG: In the end, though, the fate of Charles Pickering could well be determined by back-room politics. His critics concede that their only chance of beating him is in the committee, with all the Democrats voting no. But Trent Lott is no ordinary senator and no ordinary opponent. To cite just one critical example, there's the case of Wisconsin Senator Herb Kohl, a Judiciary Committee member who's devoted much of his time in recent months haunting Trent Lott's office in an attempt to kill a New England dairy compact that is anathema to the dairy farmers in Wisconsin. It is in this way that Lott has leverage, and not just with Kohl. As the Republican leader put it in an interview with the Associated Press last month, quote, "In the end, he's going to get a vote and he's going to pass overwhelmingly, or else." Nina Totenberg, NPR News, Washington. Interest Groups/Press Releases Liberals Once Again See Ideology Instead of Credentials When Looking At Bush’s Judicial Nominees; ‘Conservative Judges Do Not Make Law. They Leave That Up to the Legislators,’ Says FRC President Ken Connor Family Research Council Thursday, February 7, 2002 In yet another sign that the post- September 11th congeniality on Capitol Hill has come to a screeching halt, the Democrat-controlled Senate has once again resorted to attempting to block President Bush's judicial nominations based on politics instead of credentials. 42 VERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000315 In a hearing before the Senate Judiciary Committee today, liberal senators will seek to make Bush's nominee for the Fifth Circuit Court of Appeals, Charles Pickering, their latest example of how conservative nominees to the federal bench can expect to be treated. Pickering is now facing a second go- around with the committee, where he will likely be grilled on his conservative political beliefs rather than his many years of distinguished service to the legal community. Pickering's resume includes: * Served as U.S. District Court Judge since 1990. * Twice elected as Mississippi State Senator. * Currently serves on the Board of Directors for the Institute for Racial Reconciliation, University of Mississippi. * Served four years on the Board of Directors for the Federal Judges Association. "Employing the 'politics of personal destruction' to block judicial nominees makes a mockery of the judiciary," FRC President Ken Connor said. "Judicial philosophy, not political ideology, ought to be a touchstone for confirmation." "Conservative judges do not make law," Connor said. "Rather they construe the laws and Constitution in accordance with the intent of the Founders and Framers, resisting the temptation to graft their own philosophy into the law." ACU’s Keene on Pickering Nomination: "Left’s Campaign of Character Assassination Twists Record of Qualified Candidates" The American Conservative Union Wednesday, February 6, 2002 American Conservative Union Chairman David A. Keene today released the following statement on the nomination of Judge Charles W. Pickering to the Fifth Circuit Court of Appeals: "It seems to me that Senate Democrats, under the leadership of Majority Leader Tom Daschle (DSD) and Judiciary Chairman Patrick Leahy (D-VT) are activating the usual cast of liberal characters in an attempt to cover up their unfair and bitterly partisan treatment of President Bush’s judicial nominees. This time they are targeting Mississippi Federal District Court Judge Charles W. Pickering, Sr., who has been nominated by the President to fill a vacancy on the U. S. Court of Appeals for the Fifth Circuit. "By all accounts Judge Pickering is more than qualified for a seat on the Court of Appeals. He graduated at the top of his class at the University of Mississippi in 1961, and has shown a commitment to public service by serving as a Municipal Court Judge, prosecuting attorney and two terms in the Mississippi State Senate. He has also served as the county head of the March of Dimes campaign and county chairman of the American Red Cross. "Judge Pickering was unanimously confirmed by the United States Senate served with distinction as a U.S. District Court Judge in Mississippi, a position he has held since 1990; 43 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000316 additionally, he was the recipient of a "well qualified" rating from the American Bar Association. "Judge Pickering is supported by numerous past Presidents of the Mississippi Bar Association, former Democratic Governor of Mississippi William Winter as well as prominent African Americans such as federal District Court Judge Henry Wingate, Sixth Circuit Court of Appeals Judge Damion Kieth, Deborah Gambrell, a civil rights attorney who has practiced before Judge Pickering and Reverened Nathan Jordan, a former President of an NAACP chapter in the Southern District of Mississippi. "Although well-qualified for the position for which he has been nominated, he is being vilified by Democrats and liberal organizations such as the National Organization of Women, NARAL, People for the American Way and the National Women’s Law Center because he is committed to following controlling precedent of the Supreme Court, even when he may not personally agree with it. The concept of a judge following precedent and interpreting law rather than interposing personal bias in the decision making process is contrary to the liberal philosophy. Therefore, the liberals are out to get him. "To accomplish this task the left has brought up issues addressed 11 years ago when he was confirmed by the Senate and have inappropriately twisted his record in an attempt to demonize him. It’s clear that they are mischaracterizing his efforts on race relations and other issues as they mount their opposition: all because he understands the proper role of the judiciary under our Constitution. "ACU supports the Nomination of Judge Pickering and demands that Democrats stop their unfair political posturing and campaign of character assassination," concluded Keene. Oppose the Judicial Nominee Charles Pickering, Sr. National Organization of Women Wednesday, February 6, 2002 Please contact your U.S. Senators immediately to urge them to oppose the nomination of Charles Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit. Pickering is an avowed opponent of women’s reproductive rights and civil rights for all. As a Republican party activist, he has long supported a constitutional amendment to ban abortion rights. His confirmation to the already very conservative Fifth Circuit (Louisiana, Texas, Mississippi) would provide a direct pathway for anti-Roe cases to move up to the U.S. Supreme Court. Please contact all senators -especially members of the Senate Judiciary Committee - as soon as possible. The hearing on Pickering is scheduled for Thursday, Feb. 7 at 2 p.m., but a committee 44 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000317 vote on this nomination has not been scheduled. So please send a message even if you read this alert after Feb. 7. It is crucial to contact your senators if they are on the Senate Judiciary Committee as soon as possible. The Democratic members on the committee are Sen. Patrick Leahy, chair (Vt.), Sen. Ted Kennedy (Ma.), Sen. Joseph Biden, Jr. (De.), Sen. Herb Kohl (Wi.), Sen. Dianne Feinstein (Ca.), Sen. Russ Feingold (Wi.), Sen. Charles Schumer (NY), Sen. Richard Durbin (Il.), Sen. Maria Cantwell (Wa.) and Sen. John Edwards (NC). The Republican members on the committee are Sen. Orrin Hatch, ranking (Ut.), Sen. Strom Thurmond (SC), Sen. Charles Grassley (Ia.), Sen. Arlen Specter (Pa.), Sen. Jon Kyl (Az.), Sen. Mike DeWine (Oh.), Sen. Jeff Sessions (Al.), Sen. Sam Brownback (Ks.) and Sen. Mitch McConnell (Ky.) Background: The nomination of Charles Pickering, a district court judge in the Southern District of Mississippi, to the U.S. Court of Appeals for the Fifth Circuit, is the most controversial yet to the federal courts. If confirmed, Pickering would be one of the most heinous of Bush’s appointments because of his history of sustained activism against civil rights and women’s reproductive rights. A review of Pickering’s four decades in public life shows that his career has been notable not for his record as a judge or legal scholar, but as a partisan political activist. Pickering’s writings, votes and record show repeated bias against women’s rights, civil rights, civil liberties, the lesbian, gay, bisexual, transgender and intersex community, and people of color. He includes personal opinions, biblical quotations and other extralegal materials in his judicial opinions and habitually disregards the separation of church and state by using his position to promote religious programs. As an outspoken opponent of reproductive rights, Pickering helped the conservative wing of the Republican party add the first-ever anti-reproductive rights plank to the national party platform in 1976. As president of the Mississippi Baptist Convention, Pickering presided over the passage of a resolution calling for legislation to ban abortion except to save the life of a woman. While serving as Mississippi state senator, Pickering voted for a resolution calling for a constitutional convention to propose an amendment to ban abortion. He also voted against state funding for family planning programs. As a law student, Pickering wrote a law review article suggesting ways to amend the state's law criminalizing interracial marriage to ensure it would be found constitutional. Nine years later, the Mississippi legislature followed Pickering's recommendations and amended the statute. When given the opportunity at recent confirmation hearings to repudiate the article, Pickering chose not to do so. 45 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000318 There is no place for Pickering’s narrow-mindedness and bigotry on the federal appellate courts. Please enter your zip code in the box above to send a message to your senators. Tell them you will watch their votes on the nomination of Charles Pickering, Sr., and you will remember in November if they vote to confirm him. New NARAL Report: Fifth Circuit States Among the Worst in Protecting Reproductive Rights, Pickering Likely to Hear Case on Abortion if Confirmed NARAL Tuesday, February 6, 2002 A new report released today by NARAL highlights the stakes involved in the nomination of Charles Pickering to the Fifth Circuit Court of Appeals by President Bush by illustrating the obstacles women already face to the exercise of reproductive rights in Louisiana, Texas and Mississippi. The state legislatures in Louisiana, Texas, and Mississippi are among the most aggressive in the country in seeking to restrict a woman's right to choose, greatly increasing the likelihood that Charles Pickering will hear cases challenging state restrictions on reproductive choice if confirmed to the Fifth Circuit. "The states of the Fifth Circuit have moved aggressively to restrict women's reproductive rights in recent years. In the face of this assault, the Fifth Circuit Court of Appeals is often the court of last resort for women seeking to exercise their right to choose in Louisiana, Mississippi and Texas," said NARAL President Kate Michelman. "The confirmation of Charles Pickering, a longstanding and vocal opponent of the right to choose, to the Fifth Circuit by the U.S. Senate may mean the door of justice, first opened by Roe, will now slam shut for millions of women." The report details how women in Louisiana, Mississippi, and Texas must navigate a patchwork of legal obstacles if they wish to exercise their right to choose. These include waiting periods, parental involvement laws, public funding bans, and informed consent regulations. State legislatures in those states continue to push the envelope, adding layer upon layer of restrictions in an attempt to restrict access to abortion and curtail the right to choose for women women who are more likely than residents of any other circuit to live in of the Fifth Circuit poverty, and who, according the report, have limited access of abortion providers. Momentum Builds Against Pickering CivilRights.org Wednesday, February 7, 2002 Opposition to judicial nominee, Charles Pickering, Sr., to the Fifth Circuit Court of Appeals 46 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000319 continues to mount as the second round of his Senate confirmation hearing begins Thursday, February 7th. In addition to the national civil rights organizations that voiced their protests to the nomination of Judge Pickering in a press conference January 24, over twenty organizations have joined the mounting opposition to this controversial nomination including the Human Rights Campaign, the National Association of Social Workers, and the National Council of Women’s Organizations and the opposition continues to grow. Full Story: WASHINGTON, D.C., Feb. 6- Opposition to judicial nominee, Charles Pickering, Sr., to the Fifth Circuit Court of Appeals continues to mount as the second round of his Senate confirmation hearing begins Thursday, February 7th. In addition to the national civil rights organizations that voiced their protests to the nomination of Judge Pickering in a press conference January 24, over twenty organizations have joined the mounting opposition to this controversial nomination including the Human Rights Campaign, the National Association of Social Workers, and the National Council of Women’s Organizations and the opposition continues to grow. Press all across the nation have been a major source of opposition to the nomination of Charles Pickering, Sr. The Los Angeles Times on February 6th included an editorial opposing the nomination of Pickering, calling for the nomination to be put down: "Pickering's decisions in voting rights, discrimination and prisoner rights cases display indifference if not hostility to those asking the courts to remedy injustice… the American people have the right to expect their judges, especially those on the powerful appeals court, to listen to each case with an open mind and judge it on the law and its merits. Pickering can't do that." The Detroit Free Press, in a January 26 editorial against the nomination, vehemently opposed the nomination and pointedly called the Senate Judiciary Committee to reject the district court judge: "Pickering is an unreconstructed Dixiecrat whose writings, votes, and record over the course of a long legal and political career evince a disturbing degree of bias against civil rights, women’s rights, civil liberties and black Americans in general." Other major news organizations have also covered the opposition against Pickering, including ABC News, the Washington Post, and the New York Times. Pickering’s home state of Mississippi has also covered the growing opposition to the judicial nominee, such as the ClarionLedger, the Laurel Leader, and the Picayune Item. Grassroots activists across the nation are organizing and taking action to help the cause against Pickering as well. Activists from Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Washington, Wisconsin, and even Pickering’s home state Mississippi have all been active, and effective, on the grassroots level to oppose the nominee. In addition, radio personalities Tavis Smiley and Tom Joyner voiced their opposition to the nomination of Charles Pickering on their syndicated morning talk show. Smiley had harsh words for the Pickering nomination and what he called the President’s plan to pack the courts with 47 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000320 "judges that are hostile to civil rights." Moreover, he urged his listeners to contact their senators to voice their protests and to attend the Senate confirmation hearing February 7th. Finally, the Congressional Black Caucus (CBC) scheduled a press conference on Capitol Hill to voice their opposition to the nomination of Judge Pickering. The CBC opposes Pickering’s nomination based on his conservative record throughout his career. The CBC has raised concerns over Pickering’s views on voting rights, equal pay, criminal rights, women’s reproductive rights, and criminal penalties for interracial marriages. Justice Held Hostage: Liberal Slurs Delay Nomination of Charles Pickering Concerned Women for America Thursday, February 7, 2002 Liberal groups are ratcheting up the distasteful tactic of "borking," using slurs to destroy a respected nominee, Judge Charles Pickering. Sandy Rios, President of Concerned Women for America, spoke today at a press conference supporting Judge Pickering, President Bush's nominee to the U.S. Court of Appeals for the Fifth Circuit. "Left-leaning groups are decrying the qualifications of Judge Charles Pickering. We feel it is absolutely essential for rational people of both genders and all colors to hear the truth about this man and his record on the issues. "The gauntlet thrown down by abortion proponents, that any judge chosen must be able to 'listen to each case with an open mind and judge it on the law and its merits,' is at odds with their stated intention to make sure that any nominee chosen by this president is an abortion enthusiast. In other words, any nominee chosen by the president must reflect their viewpoint and not his. Any feigned interest in an open mind on this issue is a folly of words, a game of semantics. "The record is clear that Judge Pickering has never been called upon to rule on any case relating to the abortion issue. Any speculation that he would render a ruling that would not uphold the law is simply that, pure speculation. "Feminists are raising the issue of the Equal Rights Amendment. CWA would not champion someone who did not believe in the principles of equal pay for equal work and equal treatment for women, but the fight over ERA was much deeper. Because the American people did not want women drafted into combat or sharing restrooms with men or losing some of their protections as mothers and wives, the amendment failed. Not only was Judge Charles Pickering opposed to it, so were the American people. "We at CWA would passionately, fervently oppose any candidate for any office who did not understand that all men are created equal. We have examined Judge Pickering's record and are confident that thinking people of all colors will find it to show a champion of the advancement of blacks and reconciliation of both races in his own state." 48 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000321 Committee for Judicial Independence Opposes Confirmation of Charles Pickering, Sr., Nominee to Fifth Circuit U.S. Court of Appeals; Senate Judiciary Committee Should Reject Pickering Based on His Record on Civil Rights and Abortion Local Groups Say PR Newswire Thursday, February 7, 2002 The Committee for Judicial Independence today called on Senate Judiciary Committee members, including California Senator Dianne Feinstein, to reject the nomination of Charles Pickering, Jr. to the Fifth Circuit U.S. Circuit Court of Appeals. Pickering's nomination is the subject of an unprecedented second hearing before the Senate Judiciary Committee today. The Committee cites comments made by Pickering in judicial decisions criticizing and seeking to limit remedies for violations of the Voting Rights Act of 1965, condemning access to the federal courts by plaintiffs alleging gender, disability, and race discrimination, and his life-long opposition to abortion rights as important aspects of his record. "Throughout his career as a leader of the Republican Party in Mississippi, a Mississippi State Senator, and a sitting U.S. District Court judge, Pickering has shown a marked hostility to civil, women's and reproductive rights," said Susan Lerner, founder and chair of the Committee for Judicial Independence. "I know that the Senators on the Judiciary Committee face tremendous pressure from Trent Lott and the Republican leaders in the Senate to report the nomination out of committee," said Lerner, "but Pickering's record, as today's hearing will show, does not warrant elevating him to the appellate court. To send a strong message to this Administration that the Senate will not confirm nominees who are hostile to civil, women's and reproductive rights to our federal appellate courts, we urge Senator Feinstein to be a leader in the Senate's 'advise and consent' role in closely questioning Charles Pickering at today's hearing, which she will chair, and in voting against sending this nomination to the floor of the Senate. Senators should avoid a nasty and unnecessary floor fight, and the process should not be unduly extended, in fairness to Judge Pickering." The Fifth Circuit has one of the highest percentages of minorities and the highest poverty rate of any circuit court in the nation and is one of the nation's most conservative courts. "The Fifth Circuit needs balance, not another ultra-conservative judge," Lerner pointed out. Fifth Circuit rulings which impede progress in fighting racial and gender discrimination will set a damaging precedent that would have negative consequences here in California and throughout the nation. The Committee for Judicial Independence seeks to educate and activate Americans to the threat posed by the Extreme Right's concerted effort to take over the judiciary. It is spearheading a coalition of environment, civil rights, feminist and minority groups to challenge the Extreme Right's control over the nomination of federal judges by the Bush administration. 49 AMERICAN PVERSIGHT Document ID: 0.7.19343.7113-000001 18-2091-B-000322 Schauder, Andrew Schauder, Andrew Tuesday, February 12, 2002 6:38 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James Subject: judicial media review Attachments: Judicial Media Review 2-11-02.wpd From: Sent: To: Please see attached review 18-2091-B-000323 Document ID: 0.7.19343.7128 Media Review - Judicial Nominations Monday, February 11, 2002 General Judicial Articles "Questions Still Surround Judicial Nomination; Controversy May Turn Into Partisan Battle as Senate Panel Considers Pick for Appeals Bench," Joan Biskupic, USA Today, February 11, 2002 3 "Appeals Court Nominee Targeted; Groups Oppose Pick for 3 rd Circuit Seat," Ann McFeatters, Pittsburgh Post-Gazette, February 9, 2002 6 "Pickering’s Fate Could Take Several Paths After Charged Senate Hearing," Jason Straziuso, The Associated Press, February 8, 2002 7 "Democrats Challenge Choice of Miss. Judge; Bush Appellate Nominee Stirs Senators’ Concerns Over Verdicts on Rights Issues," Amy Goldstein and Helen Dewar, The Washington Post, February 8, 2002 8 "Judge Defends Past in Appeals Court Bid," Tom Brune, Newsday, February 8, 2002 10 "Panel OKs Bunning for Judgeship; Confirmation By Senate Expected Despite ABA’s Rejection," Frank Lockwood, The Lexington Herald Leader, February 8, 2002 11 "Senate Democrats Balk at Mississippi Judge Trying to Get on U.S. Appeals," Jesse Holland, The Associated Press, February 8, 2002 12 "Judicial Confirmation Hearing Evokes Civil Rights Struggle," Neil Lewis, The New York Times, February 8, 2002 13 "Controversial Nominee to Federal Bench Testifies Before Senate Committee," Ben Bryant, The Sun Herald, February 8, 2002 15 "Appeals Court Nominee Faces Trouble Over Cross-Burning Case; Senate: Mississippi Judge Lobbied Justice Dept. for a Lighter Sentence for One Defendant in the 1994 incident, Panel Finds," David Savage, The Los Angeles Times, February 8, 2002 18 "Senator Aims New Charge at Pickering," James Brosnan, The Commercial Appeal, February 8, 2002 20 "Daschle Says He’d Likely Oppose Bush Judicial Pick," 21 1 18-2091-B-000324 Document ID: 0.7.19343.7128-000001 Reuters, February 10, 2002 "Judicial Nominee Accused of Ethics Violation," Thomas Ferraro, Reuters, February 7, 2002 22 "Senate Scrutinizes Pickering, Mississippi’s Segregationist Past," Ana Radelat, Gannett News Service, February 8, 2002 24 "Behind the Democrats’ Attack," Byron York, National Review, February 11, 2002 26 "Momentum Building Against Bush Nomination of Charles Pickering, Sr., to U.S. 33 Circuit Court of Appeals," AScribe Newswire, February 11, 2002 "Democrats Blast Bush Judicial Nominee," Susan Jones, CNSNews, February 8, 2002 36 "New Line of Questioning at Pickering Hearing," Jonathan Groner, Legal Times, February 11, 2002 37 "Senate Confirms Iowa Judge to 8th Circuit Court of Appeals," The Associated Press, February 11, 2002 41 "Preview of the Court Fight," Eleanor Clift, Newsweek, February 11, 2002 41 "Borking Judge Pickering," Terry Eastland, The Weekly Standard, February 11, 2002 42 Op/Eds "The Left Roughs Up Pickering," Thomas Jipping, The Washington Times, February 11, 2002 44 "Stop the Payback; Senate Needs to Move on Judicial Nominees," The Dallas Morning News, February 10, 2002 45 "Chairman Neas," The Wall Street Journal, February 8, 2002 46 "Smearing Bush’s Nominees," Thomas Jipping, The World Net Daily, February 7, 2002 48 2 18-2091-B-000325 Document ID: 0.7.19343.7128-000001 "What’s the Rush With Appointing Federal Judges?," Laura Dickinson, The Hartford Courant, February 11, 2002 49 "We Like Mike: An Open Letter to Senator Patrick Leahy in Support of Judicial Nominee Michael McConnell," Akhil Reed Amar and Vikram David Amar, Find Law, February 7, 2002 51 "Pickering Represents A Civil Rights Setback," Eugene Bryant, The Associated Press, February 11, 2002 55 "Judge Pickering’s Past," The Boston Globe, February 9, 2002 56 Transcripts/Members of Congress "Confirmation Hearing of Judge Charles Pickering of Mississippi," 58 Morning Edition, National Public Radio, February 8, 2002 "Fox News Sunday with Tony Snow," Fox News Sunday, February 10, 2002 61 Interest Groups/Press Releases "Planned Parenthood Opposes Judicial Nominee Charles Pickering, Urges 62 Administration to Select Fair-Minded Candidates Who Share America’s Values," Planned Parenthood Federation of America, February 7, 2002 "Charles Pickering’s Record on Civil Rights, Other Key Issues Calls for Rejection By Senate Judiciary Committee," People for the American Way, February 7, 2002 63 General Judicial Articles Questions Still Surround Judicial Nomination; Controversy May Turn Into Partisan Battle as Senate Panel Considers Pick for Appeals Bench By Joan Biskupic USA Today Monday, February 11, 2002 U.S. District Judge Charles Pickering's bid for a powerful appeals court post depends largely on how he addresses Democrats' lingering questions this week. Another key factor: how senators in both parties calculate the political stakes involved with a judicial nominee who is a friend of 3 18-2091-B-000326 Document ID: 0.7.19343.7128-000001 Senate Minority Leader Trent Lott. Senate Majority Leader Tom Daschle, D-S.D., told CNN on Sunday he probably would oppose Pickering, setting up what could be a fierce partisan battle over the nomination. One sticking point for the Mississippi judge concerns his effort in 1994 to obtain a lighter prison sentence for a man convicted of burning an 8-foot-high cross at the home of a mixed-race couple. Civil rights groups have urged senators to reject the nominee. They say Pickering, 64, has been hostile to the concerns of blacks since his early days as a lawyer and state senator. Senate Judiciary Committee members have until Thursday to send Pickering follow-up questions from his confirmation hearing last week. Pickering's responses will give him a chance to defend his record and try to save a bid that is embroiled in the remnants of a racially divided South and the larger politics of President Bush's nominations to the bench. The administration has been carefully screening candidates for lifetime appointments, looking for influential conservatives who could affect the bench for years to come. People for the American Way, other liberal interest groups and some Democrats have been trying to derail this agenda. A defeat for Pickering would likely embolden these groups and make it harder on subsequent Bush nominees. An overriding factor in this fight -- the first of Bush's tenure -- is Pickering's longtime friendship with Lott, R-Miss. "I think it's going to be close," Lott said Sunday on Fox News Sunday. Activists on both sides agree that the tone and strategies of the Pickering fight could influence future, more consequential nominations. But the current controversy over a seat on the U.S. Court of Appeals for the 5th Circuit, covering Mississippi, Louisiana and Texas, presents a political dilemma for senators. If a majority of the Senate Judiciary Committee is seriously troubled by Pickering's record, it could mean crossing Lott and, for individual senators, risking support for their own interests. There are 10 Democrats and nine Republicans on the committee. Democrats say that as a young lawyer, Pickering appeared to have resisted integration efforts in the South; that as a state senator he fought abortion rights and spearheaded the GOP plank opposing abortion in 1976; and that as a trial judge since 1990 he has been insensitive to claims of racial and other discrimination. Pickering has responded by trying to emphasize the stands he took against racism, including testifying against a Ku Klux Klan leader in 1967. He said that as a judge he must follow the law on abortion rights. The cross-burning case has become a focal point for protests over Pickering's attitudes as a judge. In 1994, he urged the Justice Department to reduce federal civil rights counts against 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000327 Daniel Swan, who helped erect a cross on the lawn of a mixed-race couple, douse it with gasoline and set it ablaze. Some senators say he violated judicial ethics by intervening. Pickering said the two other men involved in burning the cross had struck plea agreements and gotten minimal sentences. He called Swan's situation "the worst case of disparate sentencing that had come before me." Appeals Court Nominee Targeted; Groups Oppose Pick for 3rd Circuit Seat By Ann McFeatters Pittsburgh Post-Gazette Saturday, February 9, 2002 A Washington-based coalition of 27 national environmental, women's, civil rights and disability rights groups is mounting a campaign against President Bush's nomination of Western Pennsylvania's Chief U.S. District Judge D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals. Smith, 50, of Altoona, who was nominated Sept. 10, is being criticized for past rulings and comments, for taking trips paid for by companies and interest groups, and for being overruled on appeal in a number of high-profile cases. The coalition, called the Community Rights Counsel, has stated its concerns in letters to Senate Judiciary Committee members, who are preparing for a hearing on Smith's nomination. The coalition represents groups such as The Wilderness Society, the American Association of People with Disabilities, People for the American Way, the Coal Alliance, the Alliance for Justice, the National Abortion Rights League, Defenders of Wildlife, Physicians for Social Responsibility, Friends of the Earth, the Feminist Majority, the Public Interest Law Center and the Natural Resources Defense Council. Smith's staff said he would not respond to the coalition's criticisms. The coalition charged that between 1999 and 2000, he spent "nearly three months at luxury resorts and dude ranches on trips funded by corporations and special interests with a stake in federal court litigation." It said Smith's trips were worth "well over $30,000" and permitted him to "play golf and take horseback rides through Yellowstone Park with corporate CEOs, right-wing ideologues and freemarket legal theorists." After studying federal judges' financial disclosure forms filed between 1992 and 2000, the coalition asserted that Smith "has attended more corporate-sponsored seminars than almost any other federal judge in America." It said he took 12 trips sponsored by the Foundation for Research on Economics and the Environment and George Mason's Law and Economics Center held at places such as Amelia Island, Fla., Westward Look Resort in Tucson, Ariz., and Gallatin 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000328 Gateway Inn in Bozeman, Mont. Such trips are legal but controversial. Two Democratic senators, John Kerry of Massachusetts and Russ Feingold of Wisconsin, have introduced a bill to ban sponsored trips for federal judges. Supporting such legislation, The Washington Post editorialized that when judges take education vacations "on the dime of private groups, they do so at the expense of the Judiciary's reputation for impartiality, even if not the impartiality itself." The coalition also criticized some of Smith's rulings. In Metzgar vs. Playskool, Smith dismissed a lawsuit by parents of a 15-month-old child who died choking on a Playskool block. He noted that the toy carried a warning label and that other children had choked on similar toys, so there was no reason to fault Playskool. A 3rd Circuit appeal panel ruled that Smith was wrong on all counts and returned the case to him for trial. The coalition also criticized Smith for accepting a plea bargain in U.S. vs. Action Mining that limited damages the company had to pay for sending mine waste through a pipe that polluted the Casselman River in Maryland. It said the $50,000 penalty accepted was too low, representing "one-tenth the maximum [fine] and just 1 percent of the profit realized by Action." The coalition also cited a June 29, 1993, speech Smith made to the Pittsburgh Federalist Society, in which he denounced the so-called "principled federalism" expounded by Senate Judiciary Committee member Joe Biden, D-Del. Smith called Biden's theory on federal courts' jurisdictional limits "nothing more than another euphemism for the political expediency that has animated the politics of both liberals and conservatives, Republicans and Democrats, for the last two decades." Smith criticized the then-pending Violence Against Women Act, passed in 1994, which bars anyone under a restraining order from owning a gun. Biden, a key sponsor, said on July 26, 2000, that "securing its passage had been my highest priority for three sessions of Congress." But Smith argued that the law was beyond Congress' scope. "Domestic violence, of course, deserves our strongest reprehension, but what special quality makes it an important federal interest?" he asked. In 2000, the U.S. Supreme Court, in a 5-4 decision, voided a provision of the law that had given women the right to sue their attackers in federal court. Biden called the high court's decision "wrongheaded" and part of a trend "in which this Supreme Court is seizing the power to make important social decisions that, under our constitutional system of government, are properly made by elected representatives who answer to the people, unlike the court." The Senate Judiciary Committee is in the middle of several acrimonious debates over judicial nominees. Mississippi U.S. District Judge Charles Pickering, 64, a friend of Senate GOP leader Trent Lott of Mississippi who has been nominated for the 5th Circuit Court of Appeals, is drawing fire from some of the same civil rights and women's groups that are criticizing Smith. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000329 Pickering’s Fate Could Take Several Paths After Charged Senate Hearing By Jason Straziuso The Associated Press Friday, February 8, 2002 Judge Charles Pickering's confirmation to the appellate court, shaken by renewed assaults on his civil rights record, may rest more with perceptions of his home state than his qualifications, a historian says. The Hattiesburg-based U.S. District Court judge had a second hearing before the Senate Judiciary Committee Thursday to fill a vacancy on the 5th U.S. Circuit Court of Appeals in New Orleans - the first major test of a President Bush judicial nominee. University of Mississippi history professor David Sansing says the treatment Pickering got during the Senate hearing says little about what Judiciary Committee members think of Pickering's record and a lot about how they view Mississippi's turbulent past. "William Faulkner said you can never really outlive your history, and this is a perfect example of it right now," Sansing said. "For all the great progress and advancement we've made - it's like Sen. Durbin (Dick Durbin, D-Ill.) said - this is a painful recollection of Mississippi's past." Pickering answered questions on his 1960s relationship with a politician who ran on a segregationist platform and his efforts in a 1994 case to reduce the sentence of a man convicted for putting a burning cross on an interracial couple's lawn. He was also questioned on his stances against abortion as a Republican politician in the 1970s. Republican supporters tried during Thursday's hearing to highlight a case from 1967 when Pickering testified against the Ku Klux Klan, although his detractors attempted to portray even that in a negative light. "People are saying Judge Pickering didn't fight the Klan until it started attacking white businessmen," Sansing said. "Well, listen, anytime you attacked the Klan for any reason in the 1950s and '60s you had to be a man of character and courage." Pickering, through a spokeswoman, said Friday he could not comment on his testimony because his nomination is still in committee. The judge's son, Rep. Chip Pickering, R-Miss., said Friday his father's treatment had little to do with his record. "I'm afraid it's politics at its worst," Chip Pickering said. Chip Pickering said that Mississippi has moved far ahead of its racist past. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000330 "But sadly for the rest of the country who have not witnessed or seen the change, they in many ways continue to refight those issues," Pickering said. The Judiciary Committee now has several options. Senators can submit follow-up questions to Pickering, which he can respond to. If his answers satisfy their queries, an executive session of the Judiciary Committee would then likely vote to recommend Pickering favorably or unfavorably to the full Senate. They could also send Pickering's nomination to the Senate floor with no recommendation. Another scenario, though rarely used, would have the Senate make a motion to discharge the Judiciary Committee - bypass the committee - and bring Pickering to a full Senate vote. Chip Pickering said he thinks senators will examine his father's record closely, taking into account the conditions that existed at that time. Observers close to the nomination hearing say the Judiciary Committee's vote will likely take place in the next month. Democrats Challenge Choice of Miss. Judge; Bush Appellate Nominee Stirs Senators’ Concerns Over Verdicts on Rights Issues By Amy Goldstein and Helen Dewar The Washington Post Friday, February 8, 2002 Senate Democrats yesterday challenged the record of a Mississippi judge on the rights of minorities, women, voters and workers, as the Senate Judiciary Committee broke into a partisan dispute over the most contentious nomination President Bush has made to a federal appeals court. In a rare second hearing into a judicial nomination, committee Democrats said Charles W. Pickering displayed a troubling habit in his dozen years as a U.S. district judge of supplanting the law with his conservative views. Republicans disagreed. They said Pickering had, as a lawyer and a former politician, demonstrated "moral courage" in coaxing a southern state beyond its segregationist past. Democrats targeted Pickering's intervention as a judge in 1994 on behalf of a man convicted of burning a cross on the lawn of an interracial couple, resulting in a shorter sentence than federal guidelines require. Among other things, the judge contacted a high-level Justice Department official to say he was frustrated that the man would get a far longer sentence than co-defendants who had pleaded guilty. Sen. John Edwards (D-N.C.) questioned whether Pickering had violated judicial ethics in the case. The judge replied he had been concerned about the "tremendous disparity" in the 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000331 punishments. Sen. Orrin G. Hatch (Utah), ranking committee Republican, said other judges had done the same kind of thing. Pickering, the father of a sitting House member and a friend of Senate Minority Leader Trent Lott (R-Miss.), is the most controversial judicial nominee the committee has considered as the Bush administration seeks to give the federal bench a more conservative cast. His nomination to the 5th Circuit Court of Appeals poses the first test of how far Democrats, who control the Senate by a single vote, will go in weighing ideology as they consider Bush's nominations. The nomination has galvanized opposition from a large coalition of liberal advocacy groups. Since taking over the Senate last June, Democrats have primarily taken up Bush nominations that drew little opposition -- many of them for the nation's lower, district courts. Earlier yesterday, the committee continued that pattern, endorsing another circuit court nominee and a half-dozen candidates for U.S. district judgeships. They included David Bunning, son of Sen. Jim Bunning (R-Ky.), who received an unfavorable rating from an American Bar Association committee. Pickering's confirmation would make the 5th Circuit bench solidly conservative. The appeals court covers a large swath of the South that is home to more minority residents than any other federal circuit's territory. The committee, composed of 10 Democrats and nine Republicans, has not scheduled a confirmation vote. Pickering's confirmation would require at least two Democrats' votes if all Republicans back him. Yesterday's hearing was a sequel to an October session. There, Democrats complained they could not understand Pickering's history because they had access to few of his roughly 1,000 rulings as a district judge. Sen. Mitch McConnell (R-Ky.), one of several committee Republicans who praised Pickering, said the nominee's actions on race relations during the civil rights era and afterward showed "resounding virtue and moral courage." Sen. Dianne Feinstein (D-Calif.) challenged Pickering's views on abortion, gun control and civil rights. The nominee replied, "I know the difference between a personal view and a political position and a judicial decision." He said he has demonstrated an ability to apply legal precedents, even if he disagreed with them. Sen. Edward M. Kennedy (D-Mass.) said he was troubled that Pickering had "professed profound skepticism" about the merits of employment discrimination cases. The judge responded that most sound discrimination claims were resolved through mediation and that most cases that are filed in courts nationwide eventually are dismissed. Hatch sought to discredit the organizations opposing Pickering. He called them "left-wing interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint this administration's nominees as extremist." 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000332 Judge Defends Past in Appeals Court Bid By Tom Brune Newsday Friday, February 8, 2002 In a bid to spend his future on the appeals court, federal Judge Charles Pickering yesterday had to defend his past actions as a prosecutor and politician in violent and segregated Jones County, Miss. of the 1960s and 1970s. This hearing has become "a painful recollection of the past" of race relations in the segregated South, said Sen. Richard Durbin (D-Ill.) as the Senate Judiciary Committee held its second hearing on the nomination of Pickering to the Fifth Circuit Court of Appeals, and the first open partisan fight over a Bush administration judicial nominee. In his opening statement, Pickering, 64, and a close friend of Senate Minority Leader Trent Lott (R-Miss.), recounted the violent, racist past of his hometown of Laurel in Jones County, but said he had always fought the racists. "I took a stand. I condemned Klan activity. I prosecuted Klansmen, and I testified against Sam Bowers, the Imperial Wizard of the White Knights of the Ku Klux Klan," Pickering said. Bowers was being tried for the murder of civil rights activist Vernon Dahmer. Pickering said he received threats against his family and lost his re-election bid as Jones County prosecutor as a result. But Pickering also had to distance himself from his old law partners, former Mississippi governors who had run for office on a platform of segregation and antagonism to federal efforts to break down the racial barriers of the 1960s. And Pickering had to concede that he had misled senators in 1990 in his earlier Senate Judiciary Committee hearing on his nomination as a federal district court judge, in which he said he had never had contact with the Sovereignty Commission, a state agency dedicated to retaining segregation in Mississippi law and practice. "I have a vague recollection of being introduced to an employee of the commission who advised me along with several others he had information about people doing some union organizing relative to Masonite Corporation," he said. Pickering said it was because he feared the Klan had infiltrated the union, but Durbin pointed out a memo by the commission at the time, in 1972, which said the commission was concerned about infiltration by communists. If he were to make that decision to have contact with the commission over again, Pickering told the senators, "I would not make the same decision today." The interest in Pickering's nomination is so great that the committee moved its hearing to a larger room to accommodate a standing-room-only crowd yesterday. 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000333 The committee set no date for a vote on Pickering. Panel OKs Bunning for Judgeship; Confirmation By Senate Expected Despite ABA’s Rejection By Frank Lockwood The Lexington Herald Leader Friday, February 8 2002 The Senate Judiciary Committee voted unanimously yesterday to confirm the nomination of David Bunning as U.S. district judge for Kentucky's Eastern District, rejecting claims that the son of U.S. Sen. Jim Bunning is unfit for the job. Bunning and a dozen other judicial nominees were quickly approved. Confirmation by the full Senate is expected. U.S. Sen. Mitch McConnell, who voted for Bunning's nomination, said committee members were impressed with the long list of witnesses who vouched for the nominee's integrity, intelligence and work ethic. The recommendations of a divided American Bar Association panel, which had rated Bunning "not qualified," carried less weight than three U.S. district court judges and a former U.S. district attorney who predicted Bunning would do a fine job. "Obviously, I'm thoroughly convinced he'll be an outstanding judge and I'm confident the Senate will confirm him," said McConnell, R-Louisville. The ABA recommends that district judges have minimum of 12 years legal experience. Bunning has been a lawyer for a decade. Of President Bush's first 64 judicial nominees, Bunning was the only one to receive a "not qualified" rating from the ABA. Bunning, 35, is an assistant U.S. attorney, working in Covington. A graduate of the University of Kentucky College of Law, he lives in Fort Thomas. The only thing that threatened Bunning's confirmation yesterday was the lack of a quorum: the committee waited about 20 minutes for a majority of the lawmakers to straggle in. Yesterday's vote pleased Bunning's father. "I am gratified by the Judiciary Committee's confirmation of David today," said Sen. Bunning. "He is well-qualified and will make a fine federal judge for Kentucky." 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000334 Senate Democrats Balk at Mississippi Judge Trying to Get on U.S. Appeals Court By Jesse Holland The Associated Press Friday, February 8, 2002 Senate Democrats challenged a Mississippi judge nominated to the U.S. Appeals Court, suggesting he is too far off center on minority and women's rights. A Republican said Democrats treated the judge like a criminal. The grilling of U.S. District Judge Charles Pickering went on for more than four hours Thursday and was the most politically charged since John Ashcroft appeared for his nomination as attorney general. "This particular seat is as important to us as a Supreme Court seat," said Sen. Dianne Feinstein, D-Calif., who chaired the hearing. She called the 5th Circuit of the U.S. Appeals Court covering Mississippi, Louisiana and Texas a trailblazer on desegregation and voting rights in the past. Feinstein said putting a judge on the bench "outside the mainstream" would set back those rights. Pickering objected to the characterization. "I do not think that my activities in all of the things I've done in my life are outside the mainstream," he said. "They indicate someone who has been concerned about these rights and I have taken actions to protect these rights." Republicans brought forward character witnesses for Pickering, touted his records as a judge and his courage for testifying against the Ku Klux Klan in Mississippi in 1967. Sen. Jon Kyl, R-Ariz., said Pickering was unanimously supported by the committee and the Senate when he became a federal district judge. Now, he is being "cross-examined here as if he is almost a criminal." Liberal groups call Pickering undeserving because of his conservative votes as a Mississippi state lawmaker, his attempts to get a lighter sentence for a man convicted of cross-burning, and his record from the federal bench on voting rights and abortion. "Pickering stands so far outside the basic standards we expect on our courts, he must be rejected forthwith," NAACP Chairman Julian Bond said Thursday. The Congressional Black Caucus called Pickering hostile to minority and women's rights, but stopped short of alleging he was racist. "I don't want to paint that kind of brush on him, but we could do better," said Rep. Thompson, D-Miss. Pickering talked about his work with the Institute of Racial Reconciliation at the University of Mississippi and his attempts to integrate the Mississippi Republican Party. He also recalled his son, Rep. Charles "Chip" Pickering, R-Miss., bringing home black friends in high school. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000335 "We integrated the schools," he said. "And we integrated the dinner table." Sen. Maria Cantwell, D-Wash., said Pickering tried to get abortion outlawed when he was a state senator. "Senator, I know the difference between a political decision and a judicial decision," Pickering said. "I would follow the law," "Do you mean you would uphold Roe v. Wade?" Feinstein asked. "I would have no choice but to uphold it," Pickering said. "The Supreme Court has decided it and that's the law." While Pickering's fate remained unsettled, the Senate Judiciary Committee approved its first judges of 2002, sending the nomination of Michael Melloy of Iowa for the U.S. Court of Appeals for the 8th Circuit to the full Senate for approval. Melloy was approved on a 19-0 vote. The committee also approved a block of U.S. District Court nominations by a 19-0 vote, including the nomination of David L. Bunning of Kentucky. Bunning is the son of Sen. Jim Bunning, R-Ky., and was the only Bush judicial nomination so far rated unqualified by the American Bar Association. Judicial Confirmation Hearing Evokes Civil Rights Struggle By Neil Lewis The New York Times Friday, February 8, 2002 A Senate Judiciary Committee hearing on the nomination of Charles W. Pickering to be a federal appeals court judge turned quickly today into a pained retrospective of the turbulent civil rights era in Mississippi, his home state, and an examination of his behavior in those days. Judge Pickering, who sits as a federal trial judge in Hattiesburg, Miss., has been nominated by President Bush to a seat on the United States Court of Appeals for the Fifth Circuit, which covers Mississippi, Texas and Louisiana. Civil rights groups and abortion rights advocates have lined up against the nomination, and the committee's Democrats today questioned the judge's record on the bench for the last 11 years and, with more reserve, his actions as a state senator and county attorney before then. Committee Republicans, energized at the beginning of the hearing by a visit from Senator Trent Lott, the Senate minority leader and Judge Pickering's principal patron, mounted a vigorous defense. The Pickering confirmation fight is the first full-scale battle over a judicial nomination in the Bush administration. Many at today's hearing -- senators, liberal and conservative lobbyists and 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000336 even reporters -- took it as a warm-up for more serious confirmation fights to come. There is a wide expectation that one or more Supreme Court justices will retire while Mr. Bush is in office, and all the weapons that are deployed in such modern political combat were being hauled out, including negative research, arranging for sympathetic character witnesses and indignant statements. Judge Pickering tried to pre-empt his critics with an opening statement in which he defended his behavior both on the bench and off. Because he had been criticized for a 1959 law review article seemingly encouraging strengthening the state antimiscegenation law, he said he had never opposed mixed-race marriages. As a county attorney, he said, he testified in 1967 against Sam Bowers, a Klan leader who was being tried for the firebombing death of Vernon Dahmers, a civil rights leader, "who was doing nothing more than helping African-Americans obtain their constitutional right to vote." He said the Federal Bureau of Investigation warned him he could be harmed by the Klan. "This was a sobering moment," he said, as he had two small children at the time. Senator Mitch McConnell, Republican of Kentucky, repeated the story and depicted the young Pickering as one of the courageous figures of the civil rights era in Mississippi. "The Klan threatened to have County Attorney Pickering whipped," Mr. McConnell said. "While it is easy in Washington, in 2002, to make a speech or sign a bill in favor of civil rights after decades have changed racial attitudes in schools, society and the press, who among us would have had the courage of Charles Pickering in Laurel, Mississippi in 1967?" William Taylor, a civil rights lawyer in Washington who served on the Civil Rights Commission at the time, said, however, that the situation in Mississippi was not so clear-cut by 1967. Mr. Taylor, who opposes the Pickering nomination, said in an interview that by that time, the white establishment opposed the Klan for economic and other reasons. Senator Russell D. Feingold, Democrat of Wisconsin, questioned Judge Pickering about his decision to quit the state Democratic Party in 1964 when the principal dispute was its insistence on fielding an all-white delegation to the national convention. Mr. Pickering said at the time that the national party had "humiliated " the state's delegation, the language used by segregationists then. Judge Pickering defended his behavior by saying that "we're looking back to a time, back to 1964." He said his actions "had to do with the perspective of that time." Asked if he regretted his remarks about the state's being humiliated, he said, "I certainly would not make them today." "Do you regret them?" Mr. Feingold asked. 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000337 "I do," he replied. Judge Pickering was also questioned by Senator Richard J. Durbin, Democrat of Illinois, about his contact with the Sovereignty Commission, which was devoted to retaining segregation and opposing civil rights organizers. Judge Pickering testified in 1990 that he had no contact with the commission but a document disclosed in 1998 showed that, as a state senator, he had asked a commission official in the 1970's to be informed of labor unrest in Jones County. "It doesn't seem like the right place to turn," Mr. Durbin said. "If I were making that decision today, I would not do it," the judge replied. Judge Pickering seemed to wither visibly under the questioning of Senator John Edwards, Democrat of North Carolina, about a more recent issue. Mr. Edwards asked about a 1994 trial Judge Pickering presided over in which a man was convicted of burning a cross on the lawn of an interracial couple with a 2-year-old child. Judge Pickering had opposed the Justice Department's efforts to have the man sentenced to five years as required by the law. He also called a senior official in the Justice Department to complain. Senator Edwards read the canons of judicial ethics prohibiting a judge from making contact with one side and suggested that Judge Pickering had violated it. The judge, who seemed taken aback by the line of questioning, said, "I don't consider it to be a violation of judicial ethics" because he was not looking to achieve anything by his call. Asked why he had called, he said he was looking to express frustration. The committee is expected to vote on the nomination later this month, and staff aides said the outcome was uncertain. Controversial Nominee to Federal Bench Testifies Before Senate Committee By Ben Bryant The Sun Herald Friday, February 8, 2002 Republicans and Democrats on the Senate Judiciary Committee sparred Thursday over the political record and personal history of Charles W. Pickering Sr., the federal judge from South Mississippi who President Bush has nominated to the U.S. Court of Appeals for the Fifth Circuit. Sitting at the front of a hearing room packed with representatives of liberal groups that oppose the judge, several Democratic senators aired allegations that Pickering, 64, who was making his second appearance before the panel, has been insensitive to the rights of minorities and women throughout his career. In response, Republicans on the 19-member committee pointed to Pickering's role in prosecuting 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000338 the Ku Klux Klan in Jones County in the late 1960s. One Republican senator, Orrin Hatch of Utah, accused his Democratic colleagues of working hand-in-hand with "leftist groups that want to inject political litmus tests into the confirmation process." "I don’t mean to malign anyone here," Hatch said to Pickering, drawing guffaws from the liberal activists on hand, "but I don’t want you to be maligned either. Frankly, I get a little sick of these things that seem to happen here every time we get a Republican president (making judicial nominations)." The fight over Pickering is the first clash between Republicans and Democrats over a Bush nominee to the federal bench. Liberal groups that oppose Pickering issued a statement that said the judge has "a 40-year record of insensitivity to the rights of minorities and women" that disqualifies him for a seat on the 5 th Circuit, which is based in New Orleans and covers Mississippi, Louisiana and Texas. Sen. Russ Feingold, D-Wis., questioned Pickering about his switch to the Republican Party in 1964, a conversion that Pickering at the time said was motivated by the "humiliation and embarrassment that was heaped on (Mississippi) at the (1964 Democratic National Convention)." The Mississippi delegation walked out of the 1964 convention when then-President Johnson asked the delegates to cede two of their seats to blacks from the Mississippi Freedom Democratic Party, an organization set up in 1963 as a rival to the all-white regular party. "I said that in the context of 1964," Pickering said of his words. "I certainly would not have said that today." Asked by Feingold if he regretted making the statement, the judge softly said, "Yes." Also drawing concern from Democratic senators were contacts Pickering made in the early 1970s with the Mississippi Sovereignty Commission, a state-funded agency set up to undermine the civil rights movement. Pickering said in 1990 that he had never been involved with the commission, but records show that he asked the agency in 1972 to keep him informed of union activity in Jones County. Pickering said Thursday that he had "a brief conversation" with a commission investigator and simply forgot about it. Besides, he said, he wanted to know about labor unions in Jones, the county he represented from 1970 to 1980 in the state Legislature, because some of them had been infiltrated by the KKK. Democratic senators also questioned Pickering about his statement that federal civil rights legislation forces judges to play "obtrusive" roles in state redistricting processes. "A lot of other judges have said similar things," Pickering said. Pickering repeatedly told the Judiciary panel that he "knows the difference between personal and political feelings and the law," answering liberal critics who have called him too conservative on abortion. But Sen. Arlen Specter, R-Pa., said he detected a "curious ambivalence" in written 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000339 opinions Pickering has issued in cases that involved issues of abortion rights and sexual privacy. Specter, one of the most liberal Republicans in the Senate, has been identified by Democratic staffers as a potential Pickering opponent. The rest of the Republicans present for the hearings defended Pickering as a champion of equal rights who risked his life in the 1960s to help drive Klansmen out of South Mississippi. They highlighted his testimony in 1967 against KKK Imperial Wizard Sam Bowers in a murder trial, as well as the support Pickering has received from black Mississippians. Charles Evers, the brother of slain Mississippi civil rights leader Medgar Evers, sat behind Pickering at the hearing. "He was standing up for blacks in Mississippi when no other white man would," said Evers, a former Fayette mayor who has run for office in the state as a Democrat, Republican and independent. U.S. Sen. Jeff Sessions, R-Ala., said the endorsements of Evers and other Mississippi blacks should override liberal groups' claims that he is a foe of civil rights. The Judiciary Committee has received more than 100 letters of support for Pickering from a "diverse array of Mississippians," Sessions said. "The people who know you from your home state are to be trusted over all these groups that are trying to make a show of this nomination," said Sessions, jerking his head toward the rows of representatives from People for the American Way, the National Abortion Rights Action League, the Alliance for Justice and other liberal organizations. Sen. Mitch McConnell, R-Ky., called Pickering courageous. "It's pretty easy to make a statement for equal rights in Washington in 2002 before a crowd of people who will be pleased by it," McConnell said. "It's quite another thing to do that in Laurel, Miss., in 1967, when your life was on the line. Who who? among us would have done that?" The Judiciary Committee is expected to vote on Pickering in about four weeks, a committee spokesman said. Appeals Court Nominee Faces Trouble Over Cross-Burning Case; Senate: Mississippi Judge Lobbied Justice Dept. for a Lighter Sentence for One Defendant in the1994 incident, Panel Finds By David Savage The Los Angeles Times Friday, February 8, 2002 President Bush's nomination of a Mississippi trial judge to the U.S. Court of Appeals ran into trouble Thursday when Senate Democrats revealed that the judge took unusual steps to win a lighter sentence for a man convicted of burning a cross at the home of a mixed-race couple. It also was revealed that the nominee, U.S. District Judge Charles Pickering, an ally of Sen. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000340 Trent Lott (R-Miss.), organized a letter-writing campaign on his own behalf in October. The judge acknowledged that he asked local lawyers, including those who appeared before him, to write letters to the Senate in support of his nomination. The judge said he collected the letters in his chambers and faxed them to Washington. "I didn't tell them what to say," Pickering said when asked about the letters during a contentious hearing Thursday before the Senate Judiciary Committee. "It's quite an impressive outpouring of support," said Sen. Russell D. Feingold (D-Wis.). But it "creates an appearance of coercion," he added, to have a powerful trial judge solicit support from local lawyers. In recent weeks, Pickering's nomination has emerged as the first judicial confirmation battle of the Bush administration. In a closely divided Senate, a series of ideological disagreements over judges is likely this year. Pickering was nominated to move up to the U.S. 5th Circuit Court of Appeals in New Orleans. Senate Democrats still are chafing over the makeup of that court, as Republicans had refused to hold hearings on three of President Clinton's nominees to the 5th Circuit. Two were prominent Latino lawyers and one was African American. Civil rights and women's rights activists say Pickering, 64, is a staunch opponent of abortion and has made skeptical comments about federal laws concerning job discrimination. In 1976, Pickering played a key role in getting the Republican National Convention to adopt a strong anti-abortion stand. But Pickering said his personal and political views would not affect his judicial decisions. Thursday's hearing focused instead on the issue of race. Sen. Mitch McConnell (R-Ky.) praised Pickering for his "moral courage" during the 1960s. As a young lawyer, Pickering testified against an imperial wizard of the Ku Klux Klan and worked with the FBI to arrest Klansmen. "In the mid-1960s, in rural Mississippi, this took courage," McConnell said. James Charles Evers, the brother of slain civil rights leader Medgar Evers, appeared with several African American leaders from Mississippi to show their support for Pickering. However, in a surprise development, committee Democrats turned their attention to the judge's handling of a 1994 cross-burning case. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000341 Minutes before the hearing began, the Justice Department turned over files compiled during the Clinton administration. They showed that Pickering was upset about the seven-year sentence proposed for Daniel Swan, then 20, who drove his pickup to the home of a mixed-race couple and joined two other men in burning an 8-foot-tall cross. The men also shouted racial epithets and fired shots into the house. One of the bullets narrowly missed the couple's baby. Pickering spoke of Swan's action as a "drunken prank," but he also called it a "despicable act" that deserved jail time. But the judge clashed with a Justice Department civil rights lawyer about whether Swan deserved the seven-year prison term called for by federal sentencing guidelines. "I thought there was a tremendous disparity," the judge said, because Swan's co-defendant had pleaded guilty and obtained a minimal sentence. But he did not stop with expressing his opinion in the courtroom. According to the files, Pickering met privately with the prosecutors and threatened to order a new trial unless they agreed to a lesser sentence. When they refused, Pickering contacted a top Justice Department official in Washington and said that Atty. Gen. Janet Reno should intervene. In pointed questioning, Sen. John Edwards (D-N.C.) suggested that the judge appeared to have violated the judicial code of conduct, first by meeting privately with one side of the case and then by intervening at the Justice Department. "This is very much outside the ordinary," Edwards said, based on his 20 years in law practice. Pickering admitted he had met privately with the lawyers in the case but said he "had no recollection" of threatening to order a new trial. "I did not minimize the seriousness of cross-burning," the judge replied. He finally sentenced Swan to 27 months in prison. Senator Aims New Charge at Pickering By James Brosnan The Commercial Appeal Friday, February 8, 2002 U.S. Dist. Judge Charles Pickering was hit Thursday with a new charge of inappropriate conduct in a civil rights case even as he defended his record as a politician and judge in Mississippi for 40 years. The charges raise new doubts about whether the Democrat-controlled Senate will approve President Bush's nomination of Pickering, 64, to the Fifth U.S. Circuit Court of Appeals, which handles appeals from Mississippi, Louisiana and Texas. Pickering hails from Laurel, Miss. At a 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000342 rare second hearing Thursday before the Senate Judiciary Committee, Sen. John Edwards (DN.C.) said Pickering may have violated judicial ethics rules by trying to pressure the Justice Department to seek a lighter sentence for a defendant and dismissing the offense as a "drunken prank." The defendant was convicted with two others in 1995 of burning a cross on a the lawn of a mixed-race couple in Jones County, Miss. Pickering admitted telephoning Frank Hunger, then assistant attorney general for the civil division, to express his frustration with the prosecutors, but noted that Hunger had no authority in the case. He denied telling the prosecutors he would order a new trial if they didn't lower the sentence. The Justice Department sought a sentence of 7 ½ years, and Pickering gave the defendant 27 months. Pickering said the requested sentence was too heavy because the most "racist" and "culpable" of the trio was let off with home confinement after he agreed to plead guilty. "I thought it was the worst case of disparate sentencing I had ever seen. I would not say that in any way to diminish the act of cross-burning," said Pickering, adding that he described the defendant's action in court as "heinous." Wade Henderson, executive director of the Leadership Conference on Civil Rights, said the cross-burning case confirms that while Pickering is "not a racist," his views have not evolved as far as Pickering suggests. Liberal groups, including People for the American Way and the National Abortion Rights Action League (NARAL), have targeted the Pickering nomination in part because the Fifth Circuit has changed from a bastion of civil rights in the 1960s and '70s to one of the nation's most conservative courts. Kate Michelman, president of NARAL, said the Fifth has been the "most aggressive of the circuits in trying to chip away at Roe vs. Wade," the Supreme Court ruling legalizing abortion in all states. Sen. Orrin Hatch (R-Utah) charged that "intolerant left-wing special interest groups" are trying to use Pickering's nomination "as a way to paint this administration's nominees as extremist." But Democratic senators noted that three of President Clinton's nominees to the Fifth Circuit one African-American and two Latinos - never even got a hearing when Republicans controlled the Judiciary Committee. Pickering had a shortened hearing in October, but Thursday's lasted more than four hours. His wife, Margaret, and son, Rep. Chip Pickering (R-Miss.), sat behind him throughout the afternoon. 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000343 Pickering said that as the attorney for Jones County in the 1960s, he prosecuted Klansmen and testified once against Klan leader Sam Bowers. "I narrowly lost my next election. My stand against the Klan was one of the reasons," Pickering said. But he conceded that he erred in his 1990 confirmation hearing for district judge when he said he had no contact with the infamous Mississippi Sovereignty Commission as a state senator. Commission documents released since then show he asked a commission employee to keep him informed on the activities of a pulpwood haulers' union in Jones County. In his written opinions, Pickering has at times voiced discontent with the law in voting rights and discrimination cases, but Pickering said he has followed precedents no matter his personal opinion. "I do not think all of my positions are out of the mainstream," he said. Daschle Says He’d Likely Oppose Bush Judicial Pick Reuters Sunday, February 10, 2002 Senate Leader Tom Daschle on Sunday joined several of his Democratic colleagues in opposing a controversial judicial nomination put forth by President Bush. Daschle said in an interview on CNN's "Late Edition" that if the nomination of Charles Pickering to the 5th U.S. Circuit Court of Appeals in New Orleans came before the full Senate, he would be inclined to vote against the candidate. "If it reaches the Senate floor, in all likelihood I will oppose Mr. Pickering," Daschle said. Pickering is opposed by many Democrats who see him as too far to the right on issues such as abortion and civil rights. Daschle noted that before the Pickering nomination could ever reach the Senate floor, his selection would need to be approved by the Senate Judiciary Committee. The Judiciary panel is now weighing the appointment. Pickering faced a tough grilling on Thursday, when he appeared in a second day of hearings on his nomination. Democrats challenged and attacked his record, both as a U.S. district judge since 1990 in Jackson, Mississippi, and earlier as a Mississippi state senator. Representatives of a number of largely liberal groups opposed to the nomination were at the hearing. 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000344 Republicans on the Judiciary Committee defended Pickering and cited his opposition to the Ku Klux Klan in Mississippi in the 1960s. They noted he has the support of many minorities in his home state, including James Evers, the brother of slain civil rights leader Medgar Evers. In the CNN interview Daschle said: "There are some very serious questions about Mr. Pickering. Women's groups, civil rights organizations, a number of people have called attention to the facts that have been coming out in the last several days, and we're trying to make that judgement." Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, has given no indication when his panel would vote on whether to send Pickering's nomination to the Senate. On Thursday, he gave committee members a week to submit further written questions to Pickering. Judicial Nominee Accused of Ethics Violation By Thomas Ferraro Reuters Friday, February 8, 2002 President Bush's most embattled judicial nominee was accused on Thursday of improper conduct in presiding over a 1994 cross-burning case in Mississippi. Appearing at a Senate Judiciary Committee confirmation hearing, U.S. District Judge Charles Pickering was told by one Democratic lawmaker that his call to a Justice Department official complaining of what he called excessively harsh treatment for a defendant in the case amounted to a violation of the judicial code of ethics. "I had not considered it a violation," Pickering replied, explaining he telephoned a high-ranking Justice Department official merely to "vent frustration." Sen. John Edwards, a North Carolina Democrat, read the judicial code of ethics that he said showed such a one-on-one call between a judge and the Justice Department was forbidden. "Did you call?" Edwards asked Pickering, nominated by Bush to serve on the 5th U.S. Circuit Court of Appeals in New Orleans. "Yes, I called," replied Pickering. He added he had also condemned the cross burning as a "heinous act," but felt the government's recommended sentence of seven and a half years for one defendant was excessive. Pickering ended up imposing a 27-month sentence after the government agreed to drop one of three charges. During more than four hours of testimony on Thursday, Pickering endured the toughest grilling yet of any Bush's nearly 100 judicial nominees, only a third of whom have been confirmed so far by the Democratic-led Senate. 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000345 In fact, Pickering became the first judicial nominee to face a second day of hearings. He was first questioned by the panel in October. Democrats challenged and attacked his record, primarily on civil rights and abortion rights, both as a U.S. District judge since 1990 in Jackson, Mississippi, and earlier as a Mississippi state senator. Representatives of a number of largely liberal groups opposed to the nomination were at the hearing. They included People for the American Way, Alliance for Justice and the National Association for the Advancement of Colored People. REPUBLICANS DEFEND RECORD Republicans on the Judiciary Committee defended Pickering and noted he actively opposed the Ku Klux Klan in Mississippi in the 1960s and has the support of many minorities in his home state, including James Evers, the brother of slain civil rights leader Medgar Evers. "I'm here to set the record straight," Pickering said in beginning his testimony. "I have a record of standing up for equal protection, respecting the rule of law and making efforts to promote racial harmony for more than four decades." Sen. Orrin Hatch of Utah, the panel's ranking Republican, said, "I am troubled by what appears to be a national agenda by a coalition of left-wing interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint the administration's nominees as extremist." "Though I am concerned about the underlying agenda, I believe they have picked the wrong nominee," Hatch told the hearing. During a brief recess, Hatch brushed off Edward's charge that Pickering had violated the judicial code of ethics, saying, "To be honest with you, judges make these calls all the time if they think attorneys are not acting properly," said Hatch, a former prosecutor. Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat, gave no indication when his panel would vote on whether to send the nomination to the Senate. He gave committee members a week to submit additional written questions to Pickering. Senate Scrutinizes Pickering, Mississippi’s Segregationist Past By Ana Radelat Gannett News Service Friday, February 8, 2002 Judge Charles Pickering's career, and Mississippi's segregationist past, were under scrutiny 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000346 Thursday by a Senate panel in the most contentious hearing held on any of President Bush's judicial nominees. Senate Judiciary Committee members reached back more than 40 years to try to determine whether Pickering is a fair judge who defended civil rights during some of Mississippi's darkest days -- placing himself and his family in danger -- or a willing associate of known racists who only battled the Ku Klux Klan when it threatened white businesses. "This hearing is a painful recollection of America's civil rights history," said Sen. Dick Durbin, D-Ill., one of the Pickering's toughest questioners during the more than four-hour hearing. Pickering said that during his 11 years as a judge, he had "done his best to be fair and impartial and follow the law." Pickering told the panel that he sent his children to integrated schools and that his son, now Rep. Chip Pickering, R-3rd, regularly brought home a black friend after school. "We integrated the schools and we integrated the dinner table," he said. "And my sons were part of the integrating process." But Durbin grilled Pickering about his relationship with former Mississippi Lt. Gov. Carroll Gartin, who was the judge's law partner from 1961 to 1971. Pickering initially decried descriptions of Gartin as a segregationist. But Pickering admitted his former law partner had made "racist statements" after Durbin waved copies of an old campaign ad that showed Gartin waving a pen that he said he had used to sign Mississippi's segregation laws. "And with this pen I will veto any effort to weaken our defenses around our Southern way of life," the ad showed Gartin declaring. Pickering said he believed Gartin was "trying to move the state forward and still stay in politics." Perhaps more damaging to Pickering was the revelation of a much more recent incident: that he had called a former top Justice Department official in 1995 to seek a reduction in the sentence of Daniel Swan, who had been convicted of burning a cross in front of the Jones County home of an interracial couple in 1994. According to a letter he wrote to the Judiciary Committee, Pickering said he didn't get help from Frank Hunger, a Mississippian who is the brother-in-law of former Vice President Al Gore. But federal prosecutors agreed to drop one charge against Swan that carried a five-year mandatory sentence. Pickering said he sought a reduction in Swan's sentence because the two other men involved in 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000347 the crime pleaded guilty and received much lighter sentences. Pickering said he was convinced that one of them -- a minor who bragged about shooting into the couple's house -- was the group's real ringleader. A U.S. District judge in Hattiesburg, Pickering was selected by Bush in May to fill an opening on the 5th Circuit Court of Appeals in New Orleans. But his candidacy has been under fire since October by a 60-member coalition of civil rights and other interest groups that include the National Association for the Advancement of Colored People, People for the American Way, the National Abortion and Reproductive Rights Action League and the Leadership Conference on Civil Rights. The groups have been critical of Pickering's stance on women's issues and civil and workers rights and accuse him of violating the Constitution and imposing his personal beliefs in his rulings. But most Republican members of the Judiciary Committee -- composed of nine Republicans and 10 Democrats -- strongly supported Pickering. Sen. Orrin Hatch, R-Utah, said the effort to derail Pickering's nomination was part of "a national agenda of a coalition of leftist interest groups" who want to keep conservative judges off the federal bench. Sen. Jon Kyl, R-Ariz., complained that Democrats had cross-examined Pickering "as if he's some sort of criminal." "This is politics as usual," Kyl said. Many Republicans, including Sen. Jeff Sessions of Alabama, pointed to Pickering's record in the 1960s as a Jones County prosecutor who went after the Klan as proof that the nominee "was on the right side." But William Taylor, a former attorney with the U.S. Council of Civil Rights who attended the hearing, said that by 1965, many segregationists had become alarmed by Klan violence because it was harming white-owned businesses. Taylor, who worked for the council in Mississippi, said Jones County was notorious for its racial violence 40 years ago. "White people (in the county) were not often prosecuted for it, but a group of blacks were prosecuted when violence broke out when they were seeking service in a restaurant," Taylor said. Several Mississippians who support Pickering's candidacy also attended the hearing, including James King, the first black organizer in the Mississippi Republican Party who was hired when 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000348 Pickering headed the organization in 1976. Frank Montague, a former president of the Mississippi Bar Association from Hattiesburg, said he was there to show his respect for the "sincerity and dignity" of Pickering and his decisions. A committee vote on Pickering's nomination may not occur right away. Many senators are likely to submit new questions in writing to the candidate who has become Bush's most controversial choice for the federal bench. Behind the Democrats’ Attack By Byron York National Review Monday, February 11, 2002 Senate Republicans will likely learn this week whether Charles Pickering, the Mississippi judge nominated by President Bush to be on the Fifth Circuit Court of Appeals, will be able to survive the attacks leveled at him by Democrats who have made his case the first judicial nomination battle of the Bush administration. Some of Pickering's supporters are becoming increasingly pessimistic, discouraged by the intensity of the Democratic attack and the uninspiring performance of both Senate Republicans and the White House in Pickering's defense. Democrats have based much of their anti-Pickering strategy on the issue of race, accusing him of being "insensitive" and "indifferent" to critical constitutional guarantees of equal rights. It's a plan that has worked in the past against Republican nominees - it was employed most recently against Attorney General John Ashcroft in part because it places the nominee in the defensive posture of trying to prove he is not a racist, whether or not there is any evidence to suggest that he is. Indeed, while some in the GOP have rushed to Pickering's defense, others, perhaps sensing the difficulty of the situation and not wanting to get involved, have done little to help him. The dynamic was on full display late last Thursday afternoon when Democratic senator and presidential aspirant John Edwards, using the skills that made him a multimillionaire trial lawyer, subjected Pickering to a harsh crossexamination in which Edwards accused Pickering of being lenient on racist criminals and unethical as well. Edwards based his attack on a case which came before Pickering in 1994 in which three men were accused of burning a cross in the front yard of a mixed-race couple in southern Mississippi. While Edwards's charges sounded quite serious, a close examination of the case suggests that they were not only not accurate, but appeared designed to mislead listeners to the conclusion that Pickering is unqualified to sit on the federal bench. Cross Purposes The crime happened on January 9, 1994. Three men - 20-year-old Daniel Swan, 25-year-old Mickey Herbert Thomas, and a 17 year old whose name was not released because he was a juvenile - were drinking together when one of them came up with the idea that they should construct a cross and burn it in front of a house in which a white man and his black wife lived in 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000349 rural Walthall County. While it is not clear who originally suggested the plan, it is known that the 17 year old appeared to harbor some sort of hostility toward the couple; on an earlier occasion, he had fired a gun into the house (no one was hit). Neither Swan nor Thomas was involved in the shooting incident. On January 9, the men got into Swan's pickup truck, went to his barn, and gathered wood to built an eight-foot cross. They then drove to the couple's house, put up the cross, doused it with gasoline, and set it on fire. Because the case involved a cross burning covered under the federal hate-crimes statute, local authorities immediately brought in investigators from the Clinton Justice Department's Office of Civil Rights. After the three suspects were arrested in late February, 1994, lawyers for the civilrights office made the major decisions in prosecuting the case. In a move that baffled and later angered Judge Pickering, Civil Rights Division prosecutors early on decided to make a plea bargain with two of the three suspects. The first, Mickey Thomas, had an unusually low IQ, and prosecutors decided to reduce charges against him based on that fact. The second bargain was with the 17 year old. Civil Rights Division lawyers allowed both men to plead guilty to misdemeanors in the cross-burning case (the juvenile also pleaded guilty to felony charges in the shooting incident). The Civil Rights Division recommended no jail time for either man. The situation was different for the third defendant, Daniel Swan, who, like the others, faced charges under the hate-crime statute. The law requires that the government prove the accused acted out of racial animus, and Swan, whose defense consisted mainly of the contention that he was very drunk on the night of the cross burning, maintained that he simply did not have the racial animus necessary to be guilty of a hate crime under federal law. The case went to trial in Pickering's courtroom. During the course of testimony, it appears that Pickering came to suspect the Civil Rights Division had made a plea bargain with the wrong defendant. No one questioned the Justice Department's decision to go easy on the low-IQ Thomas, but the 17 year old was a different case. "It was established to the satisfaction of this court that although the juvenile was younger than the defendant Daniel Swan, that nevertheless the juvenile was the ring leader in the burning of the cross involved in this crime," Pickering wrote in a memorandum after the verdict. "It was clearly established that the juvenile had racial animus....The court expressed both to the government and to counsel for the juvenile serious reservations about not imposing time in the Bureau of Prisons for the juvenile defendant." In addition to the 17 year old's role as leader, there was significant evidence, including the fact that he had shot into the mixed-race couple's home, suggesting that he had a history of violent hostility to blacks that far outweighed any racial animosity felt by Daniel Swan. Swan had no criminal record, and seven witnesses testified that they were not aware of any racial animus he might have held against black people. On the other hand, one witness testified that he believed Swan did not like blacks, and Swan admitted under questioning that he had used the "N" word in the past. In the end, Swan was found guilty - there was no doubt that he had taken an active role 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000350 in the cross burning - and the Justice Department recommended that he be sentenced to seven and a half years in jail. At that point, the Justice Department had already made a no-jail deal with the 17 year old. When it came time to sentence Swan, Pickering questioned whether it made sense that the most guilty defendant got off with a misdemeanor and no jail time, while a less guilty defendant would be sentenced to seven and a half years in prison. "The recommendation of the government in this instance is clearly the most egregious instance of disproportionate sentencing recommended by the government in any case pending before this court," Pickering wrote. "The defendant [Swan] clearly had less racial animosity than the juvenile." Compounding Pickering's concern was a conflict between two federal appeals court rulings over the applicability of a statutory mandatory minimum sentence to the case. The Justice Department insisted that Swan be sentenced to a minimum of five years under one statute and two and a half years under a separate law. Pickering doubted whether both were applicable to the case and asked Civil Rights Division lawyers whether the same sentencing standards were used in cases in other federal circuits. The prosecutors said they would check with Washington for an answer. Pickering set a sentencing date of January 3, 1995. As the date approached, he waited for an answer from the Justice Department. He asked in November, 1994 and received no response. He asked again in December and received no response. He asked again on January 2, the day before the sentencing, and still received no response. He delayed sentencing, and on January 4 wrote a strongly-worded order to prosecutors demanding not only that they respond to his questions but that they take the issue up personally with Attorney General Janet Reno and report back within ten days. Shortly after issuing the order, Pickering called assistant attorney general Frank Hunger, a Mississippian and friend of Pickering's who headed the Justice Department's Civil Division at the time (Hunger was also well known as the brother-in-law of vice president Al Gore). Pickering says he called Hunger to express "my frustration with the gross disparity in sentence recommended by the government, and my inability to get a response from the Justice Department in Washington." Hunger told Pickering that the case wasn't within his area of responsibility. It appears that Hunger took no action as a result of the call. Finally, Pickering got word from Civil Rights Division prosecutors, who said they had decided to drop the demand that Swan be given the five-year minimum portion of the recommended sentence. Pickering then sentenced Swan to 27 months in jail. At the sentencing hearing, Pickering told Swan, "You're going to the penitentiary because of what you did. And it's an area that we've got to stamp out; that we've got to learn to live, races among each other. And the type of conduct that you exhibited cannot and will not be tolerated....You did that which does hinder good race relations and was a despicable act....I would suggest to you that during the time you're in the prison that you do some reading on race relations and maintaining good race relations and how that can be done." So Swan went to jail, for a bit more than two years rather than seven. Every lawyer in the case 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000351 the defense attorneys, the prosecutors, and the judge - faced the difficulty of dealing with an ugly situation and determining the appropriate punishment for a bad guy and a somewhat less-bad guy. Pickering, who believed the Civil Rights Division went too easy on the 17-year-old bad guy, worked out what he believed was the best sentence for Daniel Swan. It was a real-world solution to the kind of real-world problem that the justice system deals with every day. And it was the end of the cross-burning case - until now. Edwards on the Attack At Pickering's confirmation hearing last Thursday, Democratic questioning focused mostly on issues that had been raised in a report by the liberal interest group People for the American Way. Democratic senators questioned Pickering about a law review article he wrote in the 1950s about Mississippi's interracial-marriage ban. They questioned Pickering about statements he made in the 1960s when he left the Democratic Party. And they questioned Pickering about whether he had any contact with the racist Mississippi Sovereignty Commission in the 1970s. That's the way it went until the questioning came to John Edwards. Edwards told Pickering he wasn't going to ask questions about events that happened decades ago. "This issue is something that happened in 1994, something that's not in the distant past," Edwards said, "a case involving a cross burning that you were the trial judge for. As I understand it there were three defendants in that case, two who pled guilty and one who went to trial before you?" "Yes, that's correct," Pickering said. "The two who pled guilty admitted their guilt and took responsibility for their actions, is that correct?" "Yes." "And it is customary in criminal cases in both federal and state court to provide some leniency to those who plead guilty, participate in a plea agreement, take responsibility for their actions, as opposed to someone who denies their guilt and goes to trial, is that fair?" "Well, the guidelines provide, senator - " Edwards did not want to discuss sentencing guidelines. First, he suggested that during the sentencing dispute, Pickering had told one of the lawyers involved that he, Pickering, would order a new trial based on the disparity of sentences. Pickering testified that he did not say that, and Edwards did not present any evidence to support his accusation. Instead, Edwards moved on to Pickering's call to Frank Hunger, suggesting that Pickering had gone to extraordinary and unethical lengths in an effort to win leniency for Swan. "You made a telephone call to a high ranking Justice Department official, according to the information that we have, and you are familiar, are you not, judge, with the Code of Judicial 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000352 Ethics that applies to you? You are familiar with that, are you not?" "I am," Pickering said. "And are you familiar with Canon 3(a)(4) of that Code which says, 'except as authorized by law, a judge should neither initiate nor consider ex parte communications on the merits of a pending or impending proceeding.' [The ex parte rule forbids judges from having substantive one-party conversations with either side in a case in order to prevent judges from making secret deals or otherwise favoring one side over the other.] Did you make a phone call to a high ranking Justice Department official on your own initiative?" "We had had - " Pickering began to answer. "Not 'we,'" Edwards interrupted. "You. Did you make this phone call?" "I've indicated I called Mr. Hunger and discussed the fact that I was frustrated I could not got a response back from the Justice Department, and I thought there was a tremendous amount of disparity in this sentence." "Were the government prosecutors on the phone when you made that call?" "No, they were not." "So that would be what we lawyers and judges would call an ex parte communication, would it not?" "Well, whether the government attorneys had been on the phone or not, it would have been a question of whether the defense counsel had been on the phone," Pickering said. "Was the defense counselor on the phone?" Edwards asked. "No, we had discussed that with them, and this was a follow-up conversation as to what we had discussed with defense counsel present," Pickering said. "Were any of the lawyers in the case on the phone when you called Mr. Hunger?" Edwards asked. "No, they were not." "So that was an ex parte communication, was it not?" "It was." "In violation of the Code of Judicial Conduct." 30 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000353 Pickering paused. "I did not consider it to be in violation of the Code of Judicial Conduct." "Well, could you explain that to me?" Edwards pressed. "The Code says you should 'neither initiate nor consider ex parte communications in a pending or impending proceeding.' The case was still pending at that time, was it not?" "It was pending," Pickering said. "You made an ex parte communication, did you not?" "I talked with Mr. Hunger." "Didn't you just tell me that was an ex parte communication?" "Well, it was ex parte from the standpoint that I was talking to him. He did not have the responsibility to make decisions in this case." "Did you also direct the Justice Department lawyers, the line prosecutors, to take your complaints personally to the Attorney General of the United States?" "In the order, yes," Pickering said. "Can you tell me, judge, in how many other cases, and if you can tell me the names of the cases, where you have, after a conviction and prior to sentencing, or subsequent to sentencing, told the lawyers in a private meeting that you would order a new trial on your own motion; contacted, on your own initiative, contrary to the Code of Judicial Conduct, a high ranking Justice Department official about a case pending before you; and third, directed line prosecutors to take your complaints personally to the Attorney General of the United States. Can I just ask you, have you ever done that in any other case?" "May I explain my answer?" Pickering asked. "No, I have never had a case where the disparate treatment was so great as it was in this case." Pickering tried to explain the plea bargain, the 17year-old ring leader, the seven-and-a-half-year sentence recommended for Swan, and the rest. But by that time the damage was done. As Edwards must have known, virtually no one in the audience knew the details of the cross burning case, and few, if any, would take the time to look into the matter. All they knew was that it looked like Pickering had violated the judicial code of ethics to protect a young cross-burner in Mississippi. Lost Cause? This week, some Republicans are making a belated effort to defend Pickering against Edwards's charges. They maintain, correctly, that Pickering's communications with the Justice Department were a normal effort to get an answer to a question which the judge wanted answered before sentencing. Similar calls - whether ex parte or not - are an everyday feature of the justice system, and not a violation of the Code of Judicial Conduct. In addition, Republicans have gathered more 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000354 testimonials to Pickering's ethical standards. But Pickering's blood is in the water. Although no Democrat on the Judiciary Committee has said how he or she will vote on the nomination, on Sunday Senate Majority Leader Tom Daschle made it clear that Pickering is in trouble. "There are some very serious questions about Mr. Pickering," Daschle told CNN. "Women's groups, civil rights organizations, a number of people have called attention to the facts that have been coming out in the last several days, and we're trying to make that judgment." Have you made up your mind? Daschle was asked. "This is a matter that first comes before the Judiciary Committee, and they will have to make their judgment," Daschle said. "If it reaches the Senate floor, in all likelihood, I will oppose Mr. Pickering." Now that Daschle - whose party holds a 10 to 8 majority on the Judiciary Committee - has voiced his own opposition to Pickering, it is entirely possible that the Republican defense effort will run out of steam sooner rather than later. There may be no extended battle over Pickering because Republicans are simply not in the mood to fight. Pickering is, after all, a 64-year-old man who at most will serve a few years on the bench; some GOP senators, uncomfortable at being forced into the position of discussing racial issues, are simply not inclined to go to the mat to save him. In addition, the White House, which nominated Pickering not of its own initiative but rather at the insistence of Senate Minority Leader (and Pickering friend) Trent Lott, may not be willing to fight, either. But not defending Pickering will have its costs. If the Pickering nomination goes down, GOP insiders fear, Democrats and their supporting groups like People for the American Way will not be satisfied with a victory but will rather become emboldened for future battles, which will almost certainly include a nomination to the Supreme Court. "If they beat Pickering, that will make them more aggressive the next time, when it counts more," says one GOP aide. "Their caucus is unified, and their interest groups are unified." At least for now, Republicans are not unified, which allows charges like those made by John Edwards to go unanswered Momentum Building Against Bush Nomination of Charles Pickering, Sr., to U.S. Circuit Court of Appeals AScribe Newswire Monday, February 11, 2002 Following is an advisory from Wade Henderson, Executive Director of the Leadership Council on Civil Rights, and Nan Aron, Executive Director of the Alliance for Justice, on the nomination of Judge Charles Pickering, Sr., to the U.S. Circuit Court of Appeals: On January 24th, a group of national organizations convened a press conference to announce their opposition to the nomination of Judge Charles Pickering, Sr., President Bush's nominee to the U.S. Circuit Court of Appeals for the Fifth District. In less than two weeks, opposition to 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000355 Judge Pickering's nomination has mounted from all across the nation. Among the most recent highlights are: -- Editorial board statements, op-eds, and radio segments -- Official opposition by additional national organizations and the Congressional Black Caucus -- Grassroots events and activities All of this momentum demonstrates that after a careful review of Judge Charles W. Pickering Sr.'s public record, the overwhelming majority of Americans are left with little alternative but to oppose this nomination because of his extreme views on important civil rights, women's rights and constitutional issues. The Senate should exercise its constitutional prerogative to reject this nominee. Editorial board statements, op-eds, and radio segments A variety of editorial boards from all across the nation have voiced opposition to this nomination [see attached]. For instance: -- On February 9th, The Boston Globe said, "Trace Pickering's legal roots to 1959 and one finds an article he wrote as a law student advising the Mississippi Legislature how to close a loophole so the state could better punish people in interracial marriages. Sadly, even if this article is dismissed as old or just an academic exercise, there are still decades of legal thinking that make Pickering the wrong choice for circuit court judge." Text can be found at http://www.boston.com/dailyglobe2/040/editorials/Judge Pickering s past+ .shtml . -- On February 7th, The Atlanta Journal Constitution said, "In offering Pickering for the 5th Circuit Court of Appeals, the president is making a mockery of the bipartisan cooperation that he has touted since Sept. 11. Pickering has such a shameful record on civil rights that even moderate Republicans are having second thoughts about his nomination." Text can be found at http://www.accessatlanta.com/ajc/opinion/0202/0207judges.html . -- On February 6th, The Los Angeles Times said, "Pickering's decisions in voting rights, discrimination and prisoner rights cases display indifference if not hostility to those asking the courts to remedy injustice... the American people have the right to expect their judges, especially those on the powerful appeals court, to listen to each case with an open mind and judge it on the law and its merits. Pickering can't do that." Text can be found at 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000356 http://www.latimes.com/news/printedition/opinion/la-000009218feb06.story . -- On January 26th, The Detroit Free Press said, "Pickering is an unreconstructed Dixiecrat whose writings, votes, and record over the course of a long legal and political career evince a disturbing degree of bias against civil rights, women's rights, civil liberties and black Americans in general." Text can be found at http://www.freep.com/voices/editorials/ejudge26 20020126.htm . -- On February 7th, Bob Herbert wrote in The New York Times, "But when Mr. Pickering was selected by President George Bush the First to fill a District Court seat in 1990 he not only denied any contact with the commission, he said that when he was a state senator it "had, in effect, been abolished for a number of years." That certainly wasn't true." Text can be found at http://www.nytimes.com/2002/02/07/opinion/07HERB.html . News about the Pickering nomination has spread to the airwaves as well. -- On February 6th and 8th, National Public Radio aired segments on the Pickering nomination during the award-winning, All Things Considered program. The program can be found at http://www.npr.org/ramfiles/atc/20020206.atc.16.ram . And on the nationally-syndicated and award-winning Tom Joyner Morning Show, radio personality Tavis Smiley issued a call to arms against the President's plan to pack the courts with "judges that are hostile to civil rights." Text can be found at http://play.rbn.com/?url=abcradio/joyner/g2demand/020502/TAVISSMILEY.rm& proto=rtsp [approximately 3 minutes into the clip]. Official opposition by national organizations and the Congressional Black Caucus In the last two weeks, over twenty national organizations have officially opposed this controversial nomination. Among the new organizations are: the National Association of Social Workers, Planned Parenthood, National Council of Women's Organizations, and the Human Rights Campaign. 34 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000357 -- In noting the NAACP's opposition to this nomination, Julian Bond, Chairman of the NAACP, said, "A vote for Pickering is a vote against civil rights - and a vote that will not be forgotten." -- In announcing their opposition to Judge Pickering, the Human Rights Campaign noted Pickering's handling of a 1994 Justice Department hate crime incident involving three men who burned an eight-foot tall cross on the lawn of an interracial family while using racial epithets. The family had been a frequent target of harassment in their small rural town, including having bullets fired into their home and "KKK" painted nearby on the street. Nonetheless, when sentencing one of the defendants, Pickering gave a "lenient" sentence for the cross-burning, in order to "make the punishment commensurate with the drunken prank that I think it was, even though it did have racial overtones." [Pickering's words]. -- On February 6th, the Congressional Black Caucus [CBC] held a press conference on Capitol Hill to voice their opposition to the nomination of Judge Pickering. The CBC raised concerns over Pickering's views on voting rights, equal pay, criminal rights, women's reproductive rights, and criminal penalties for interracial marriages. Grassroots events and activities Since the press conference less than two weeks ago, grassroots activists across the nation are organizing and taking action to oppose the Pickering nomination. Grassroots activity -- including press events, issue forums, call-in days -- have been held in Mississippi, Louisiana, Texas, and California. In addition, activists from California, Connecticut, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Maine, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Dakota, Texas, Washington, Wisconsin, and especially Pickering's home state Mississippi, are actively opposing the nominee. Democrats Blast Bush Judicial Nominee By Susan Jones CNSNews Friday, February 8, 2002 Republicans accuse Democrats of demonizing another one of President Bush's judicial appointees - U.S. District Judge Charles Pickering, who's been asked by President Bush to serve on the 5th U.S. Circuit Court of Appeals in New Orleans. In an unusual move, the Senate Judiciary Committee asked Pickering to appear for a second confirmation hearing on Thursday. His first hearing took place in October. At Thursday's hearing, Democrats on the Senate Judiciary Committee accused Pickering of ethical lapses and questioned his record on civil rights and abortion. Liberal interest groups strenuously oppose the nomination of Pickering because of his conservative positions, and one Republican Senator accused his fellow Democrats of serving as 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000358 the mud-flinging tools of those liberal groups. Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee, said Thursday, "I am troubled by what appears to be a national agenda by a coalition of left-wing interest groups who have spent months hunting around for an excuse to use the Pickering nomination as a way to attempt to paint the administration's nominees as extremist." Press reports note that representatives of those liberal interest groups - including People for the American Way, the Alliance for Justice, and the National Association for the Advancement of Colored People - were present at Thursday's hearing. As Sen. Hatch indicated, the issue is larger than Pickering. Analysts say that by demonizing all of President Bush's judicial nominees as "conservative extremists," liberal groups are sharpening their claws for the real battle - the future direction of the U.S. Supreme Court. Although there are no vacancies on the court, that could change at any time, giving President Bush the opportunity to appoint another conservative to the bench. In the meantime, Republicans accuse Democrats of foot-dragging in getting Bush's judicial nominees confirmed. So far, the Democrat-led Senate has approved only one-third of President Bush's judicial nominees. On Thursday, Pickering told the Judiciary Committee he was there to set the record straight: "I have a record of standing up for equal protection, respecting the rule of law and making efforts to promote racial harmony for more than four decades." His supporters say Pickering's record speaks for itself, but they worry that liberal efforts to distort the facts will sully his "exemplary" record. Sen. Patrick Leahy (D-Vt.), the chairman of the Judiciary Committee, did not say when his panel might vote on sending Pickering's nomination to the full Senate. However, he did give committee members another week to submit additional questions to Pickering - this time in writing. New Line of Questioning at Pickering Hearing By Jonathan Groner Legal Times Monday, February 11, 2002 Race and civil rights have emerged as the flashpoints in the nomination of Mississippi's Charles Pickering Sr. for a federal appeals judgeship, but they were not the only subjects of a grueling four-and-a-half hour Senate hearing last week. On two occasions, senators raised issues of judicial ethics that may end up posing unexpected 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000359 difficulties for Pickering, even though the more volatile questions are what prompted senators to screen Pickering for a second time. The first ethics issue arose more than halfway through the session in a packed Senate hearing room on Feb. 7. Judiciary Committee members and the 5th Circuit Court of Appeals nominee had been delving into the history of race relations in Mississippi in the 1960s and 1970s when Sen. John Edwards (D-N.C.) shifted the topic to a more recent event. He brought up a 1994 case in which three young men were charged with burning a cross in the yard of a mixed-race couple. Pickering, the federal trial judge presiding over the case, went out of his way to seek a more lenient sentence for one of the three, even contacting Frank Hunger, a friend who then held a high post at Main Justice. Before trial, prosecutors reached plea agreements with two of the defendants, Mickey Herbert Thomas, 25, and a 17-year-old who was charged as a juvenile. Both received sentences of supervised release without prison time. Daniel Swan, 20, alone went to trial and was convicted on three counts. The government sought a prison term under the U.S. Sentencing Guidelines of 71/2 years. Before he sentenced Swan, Pickering wrote a sharply worded order directing prosecutors to file a response detailing the sentence meted out in all cross-burning prosecutions across the nation and to call the case to the attention of then-Attorney General Janet Reno. Many federal judges have bristled at the guidelines or questioned prosecutors' acceptance of plea bargains in order to secure the conviction of other, arguably less culpable, defendants. But Pickering did more than that. Frustrated with the "gross disparity in sentence recommended by the government," he called Hunger, a Mississippian and a personal friend, to try to get the attention of Main Justice. Hunger was then assistant attorney general for the Civil Division. At the hearing, Edwards questioned both Pickering's sensitivity to crimes of racial bias and the propriety of the judge's efforts to intervene. "Why did you take this action?" the senator asked. "And what authority did you have to do it as a judge?" Pickering replied that during the trial, he learned that the juvenile was the ringleader in the crime, had been known to harbor racist views, and had previously fired a shot into the couple's home. Accordingly, the sentence facing Swan, Pickering believed, "was the most serious sentencing disparity I had ever seen." In a Feb. 6, 2002, letter to Judiciary Chairman Patrick Leahy (D-Vt.), Pickering said Hunger 37 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000360 turned down his entreaty because he didn't supervise the Civil Rights Division, which brought the case. Prosecutors did end up dropping one count, and Pickering sentenced Swan to 27 months. The incident triggered considerable discussion at the Senate hearing. "Cross burning is very much of concern to all of us on this panel," said Sen. Charles Schumer (DN.Y.). "It is a dagger at the heart of our nation. When someone burns a cross, it's aimed at all of America." Pickering responded that he "did not minimize the significance of cross burning. It is a heinous crime." In fact, he said, he was "outraged" that the juvenile, who had taken the lead in the cross burning, had not gotten a single day in prison. Edwards also asked Pickering whether the contact with Hunger, made without the knowledge of the line prosecutors or Swan's lawyer, was an improper ex parte communication. Canon 3 (a) (4) of the Code of Conduct for United States Judges provides that a federal judge should "neither initiate nor consider ex parte communications on the merits . . . of a pending or impending proceeding." Pickering said that he did not think his contact was ex parte since Hunger "was not a lawyer on the case, and my contact did not benefit either side." However, judicial ethics expert Steven Lubet of Northwestern University School of Law says that while it is not necessarily a major infraction, a judge "just shouldn't talk to outside expertswitnesses, relatives, anyone." Hunger, now a partner at Covington & Burling, did not respond to calls seeking comment. Another ethics issue that arose at the hearing was brought up by Sen. Russ Feingold (D-Wis.) "You have an impressive outpouring of support from Mississippians," Feingold told Pickering, pointing out that 18 supportive letters were faxed to the committee from Pickering's chambers on Oct. 25 or 26, 2001, just a week after the judiciary panel held its first hearing on Pickering's nomination. Feingold asked whether Pickering had skirted an ethical line by soliciting endorsements from lawyers who had appeared before him or might do so in the future. Pickering replied that he learned just before his first hearing of brewing opposition to his nomination. Afterward, he realized he needed support, so he quickly "contacted some people and asked them to write, if they were so inclined." He said he put no pressure on anyone to boost his candidacy and "forwarded all the letters I 38 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000361 received." Lubet says that although there's no direct precedent, this conduct could involve the problem of "unintentional coercion" that arises when judges solicit lawyers for charitable contributions. Sovereign State Much was said, before and during the hearing, about Pickering's contact in the early 1970s with the Mississippi State Sovereignty Commission, a notorious state government body set up in 1956 to preserve segregation and infiltrate civil rights groups. The commission's files, which were opened to the public in 1998, include one document with one reference to Pickering. It is a three-page memorandum from investigator Edgar Fortenberry to W. Webb Burke, head of the commission. Pickering, then a state senator, was quoted as saying he was "very interested" in alleged infiltration of a labor union at the Masonite Corp. plant in Laurel, Miss., in his district. Pickering "requested to be advised of developments" regarding the union. Liberal groups have made much of the fact that Pickering is mentioned in the files of the racist group and that he was evidently seeking its cooperation in monitoring labor unrest. Pickering's supporters have replied that in view of the nominee's known opposition to Ku Klux Klan involvement in union activity in Laurel, the KKK was presumably the subject of the memo. The document itself tells a slightly different story. The alleged infiltration that the Sovereignty Commission was concerned about was not from the Klan-that would be an unlikely subject of the commission's concern-but from the Southern Conference Educational Fund Inc. The SCEF was a pro-civil rights group that organized blacks and whites in the South from 1948 through 1974. It was viewed by some as a radical left group. In his appearance before the Senate panel, Pickering did not mention the SCEF. He explained he contacted the commission because in view of the union's history of Klan involvement, "if anyone had mentioned the possibility of there being more union organizing which might bring violence . . . I would have requested to have been kept apprised of any information that would indicate that violence might erupt again." In their written materials, the liberal groups did not mention the SCEF. Bench Postures The atmosphere at the Pickering hearings was in many ways reminiscent of a battle over a Supreme Court nomination. There was a line of citizens snaking out the door on the second floor of the Hart building, staffers for members and interest groups busily passing out documents, and 39 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000362 an unusually full complement of reporters. The hearing also featured the sweeping rhetoric that senators use in framing a single legislative battle as a fight for the future of the country. "The record of Charles Pickering can be expressed in two words: moral courage," Sen. Mitch McConnell of Kentucky said in his opening statement for the Republican minority. "When victims of racial injustice looked for justice, they found it in one man, Jones County Attorney Charles Pickering." Sen. Orrin Hatch (R-Utah) accused liberal activists of "an apparent vicious strategy of Borking any judicial nominee who happens to disagree" with them. Sen. Dianne Feinstein (D-Calif.) was not to be outdone. "For many of us, this 5th Circuit seat is as important as a Supreme Court seat," Feinstein said. "The 5th Circuit once served as a trailblazer for the protection of individual rights-voting rights, employment discrimination. So this becomes a pivotal position for people who have fought for these rights for decades." Until there is a Supreme Court nomination, which is not in the offing, that will have to do. Senate Confirms Iowa Judge to 8th Circuit Court of Appeals The Associated Press Monday, February 11, 2002 The Senate on Monday approved the nomination of Michael Melloy to the 8th U.S. Circuit Court of Appeals, the chamber's first approval of a circuit judge this year. Melloy was approved on a 91-0 vote. The 11-member appeals court is based in St. Louis. The vacancy was created when Judge George Fagg of Des Moines, Iowa, took senior judge status. Melloy, 53, a Republican, is a native of Dubuque, Iowa, who has served on the U.S. District Court for the Northern District of Iowa in Cedar Rapids since 1992. He previously served six years as a U.S. bankruptcy judge. He received a bachelor's degree from Loras College in 1970 and graduated from the University of Iowa College of Law in 1974 before entering private practice in Dubuque. The Senate also confirmed Jay Zainey of Louisiana to be a U.S. District Court judge in Louisiana. He was approved on a 92-0 vote. 40 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000363 Zainey received a bachelor's degree from the University of New Orleans in 1973 and a law degree from LSU in 1975. He served as president of the Louisiana state bar from 1995-96. Zainey has served as an ad hoc judge in the first parish court and juvenile court in Jefferson Parish. He was also a campaign aide to ex-Gov. David Treen. After his nomination, the Metairie lawyer withdrew his family's membership from a Jefferson Parish country club after questions were raised about whether it discriminates against blacks. There are currently 97 vacancies in the federal judiciary. There are 56 nominations pending before the Senate. Preview of the Court Fight By Eleanor Clift Newsweek Monday, February 11, 2002 The fight over president George W. Bush’s first high-profile court nomination is shaping up as a test run for future battles over likely Supreme Court nominees. Liberal groups have mounted an all-out campaign against conservative Mississippi trial Judge Charles Pickering, hoping to stop his bid for the federal appeals court in Senate committee. "We’re looking to send a message to Bush," says Nan Aron of the Alliance for Justice. But Pickering is a favorite of fellow Mississippian Trent Lott, who says the judge will win confirmation "or else." Meaning what? "He leaves that to every senator’s imagination," says an aide. Democrats have a single-seat majority on the committee. Opponents think all 10 Dems will oppose Pickering on the merits, but they worry that one or two might fold under the majority leader’s pressure and forward the nomination to the floor. The White House says the fight is "Lott’s to win or lose." Borking Judge Pickering By Terry Eastland The Weekly Standard Monday, February 11, 2002 WHEN JIM JEFFORDS left the Republican party last May and became an independent, Democrats gained control of the Senate. By a single vote, yes, but what a difference that margin makes, especially when it comes to appointing judges. Consider the case of Charles Pickering, for twelve years a U.S. District Judge in Hattiesburg, Mississippi. Last year George W. Bush designated him for the Fifth U.S. Circuit Court of Appeals. On October 18, Pickering (rated "well qualified" by the American Bar Association) went before the Senate Judiciary Committee. Had Republicans still controlled the Senate, he would have been easily confirmed. But the one hearing wasn't enough for Judiciary Committee 41 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000364 Democrats. Pickering returned last week for a second hearing--more nearly an inquisition. Whether Pickering is ultimately confirmed or not, the Democrats made clear how they intend to deal with Bush nominees they target for possible defeat. Attack their life, attack their work, attack both if you can, and don't let evidence get in the way. Last week's hearing moved back and forth between Pickering's career before he became a judge and his tenure on the bench. Pickering was in private practice before becoming a county prosecutor and then a state senator. The Democrats' inquiry into statements and actions of his during those distant days sought to paint him as unsympathetic to claims of black equality, even a segregationist at heart. The Democrats read more into some events than the facts could reasonably bear. Yet Pickering found himself repenting of his 1964 statement that the national Democratic party had "humiliated" the people of Mississippi in the way it had treated the state party, then insistently segregationist. Asked whether he regretted saying that, Pickering, who became a Republican that year, replied, "I do." On another matter--a seemingly innocuous contact in 1973 with the prosegregationist Mississippi Sovereignty Commission--Pickering also wished that it was not on his record: "If I were making that decision today, I would not do it," he said. Those acts of repentance didn't seem to impress the Democrats. Nor did evidence portraying Pickering as an exemplary figure during Mississippi's stormy civil rights era. Republican senators reviewed how in 1967 Pickering, a locally elected prosecutor, testified in open court against Sam Bowers, the imperial wizard of the Ku Klux Klan, who was being tried for the firebombing death of civil rights leader Vernon Dahmers. Later, Pickering was turned out of office. During his testimony Pickering attributed that outcome at least in part to the fact he had taken the stand against Bowers. Citing Pickering's testimony against Bowers and other actions he had taken that helped move Mississippi away from its discriminatory past, Sen. Mitch McConnell lauded Pickering for his "moral courage." But that was a point no Democrat was heard to second. The Democrats expressed apparent interest in Pickering's approach to judging. Pickering distinguished between his personal and political views and the law, stating that as a judge he was duty-bound to follow the latter. He added that as a district judge he was bound by the decisions of the Fifth Circuit and the Supreme Court, whether he agreed with them or not. He further added that as an appellate judge he would be similarly bound. These routine positions didn't satisfy the Democrats. Nor does it seem possible that they could have. At times the Democrats said they wanted judges who adhered to decisions by courts above. At other times they implied they wanted judges who would dissent from such decisions. Dianne Feinstein, for example, described the Fifth Circuit as "a trailblazer in protecting individual rights." But she lamented that it was no longer that, a point more bluntly made by Democratic colleagues who called it a "very conservative" court. Did she mean to say that the decisions of such a court shouldn't be followed? Likewise, Charles Schumer decried an "era of unprecedented judicial activism" wrought, though he did not say so, by Supreme Court appointees of Republican presidents. Did he mean to say that judges on the courts of appeals 42 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000365 should defy the Supreme Court's decisions? To his credit, Pickering declined to embrace the lawless approach to judging suggested by his Democratic interrogators. During her turn, Maria Cantwell inquired about Pickering's views on the "right of privacy," by which she really meant the abortion right. Pickering said that he "would follow what the Court has said" about the privacy right, which was first announced in a 1965 case, Griswold v. Connecticut. Cantwell noted that he, Pickering, didn't say that he personally believed that. Pickering replied that he would follow the Court's precedents. To which Cantwell responded: "Do you recognize it in the Constitution?" Said Pickering, "I see it because the Court has said it is there." Cantwell was unsatisfied, as were other Democrats. It appears that they want judges who personally believe not merely that the Constitution contains an unenumerated right of privacy but that this right encompasses the abortion right declared by the Court in the 1973 case of Roe v. Wade. Judges nominated by a Democratic president would doubtless personally believe all of these things--and more. Pickering's confirmation chances seemed slim at week's close. Thanks to Jeffords, the committee now has 10 Democrats and 9 Republicans, and it takes 10 votes to get out of committee. Herb Kohl was the one Democrat who failed to make it to the hearing, and there was some speculation after the hearing that Pickering's friend and sponsor, Trent Lott, had struck some sort of deal with Kohl in which the Wisconsin Democrat would vote for Pickering in committee and also on the floor. If so, Pickering just might make it onto the Fifth Circuit. In any case, his hearing is a reliable indicator of the nasty confirmation battles that lie ahead. Op/Eds The Left Roughs Up Pickering By Thomas Jipping The Washington Times Monday, February 11, 2002 The far-left is flexing its muscles, roughing up a distinguished appeals court nominee just to show the Bush administration that they can. A year ago, left-wing senators savaged attorney general nominee John Ashcroft as a "shot across the bow" on a future Supreme Court vacancy. Today, by beating up Judge Charles Pickering, the shots are getting closer. Judge Pickering has been a U.S. District judge since 1990 and his legal career spans more than four decades. Nearly 20 past presidents of the Mississippi Bar Association support his nomination to the U.S. Court of Appeals for the Fifth Circuit. In their drive-by Borking, Judge Pickering's attackers insist that the nominee is "insensitive" to civil rights. On Feb. 6, Rep. Bennie Thompson said Judge Pickering is actually "hostile to minorities and women." These, of course, are the far-left's code words. Anyone who does not share their particular view of the world, their specific political agenda, anyone who is not like 43 18-2091-B-000366 Document ID: 0.7.19343.7128-000001 them, is insensitive and hostile. So much for tolerance and diversity. Yet this picture bears no resemblance to the nominee, who initiated and serves on the board of the University of Mississippi's Institute for Racial Reconciliation. He has chaired a county racerelations committee, helped establish a local program for at-risk black youth, and both testified against and prosecuted Ku Klux Klan members despite risk to himself and his family. He once lost a bid for re-election as county prosecutor because he defied the Klan. James Evers, brother of slain civil-rights leader Medgar Evers, wrote in the Feb. 7 Wall Street Journal that "I can tell you with certainty that Charles Pickering has an admirable record on civil rights issues." The sensitivity cops in the judicial selection process are the liberal American Bar Association (ABA). Their published guidelines define the criterion of "judicial temperament" as including a nominee's "compassion . . . freedom from bias, and commitment to equal justice under the law." The ABA said Judge Pickering had those qualities in 1990 when first appointed to the federal bench. The Democrat-led Judiciary Committee and Senate unanimously approved him them, including current committee Chairman Patrick Leahy and Democrat members Ted Kennedy and Joe Biden. The ABA apparently believes Judge Pickering is even more committed to equal justice today, giving him their highest "well-qualified" rating for appointment to the appeals court. Some of the attackers' tactics are really underhanded. The Alliance for Justice, for example, claims on its web site that Judge Pickering "decided not to publish" most of his 1,100 written opinions. The truth is that the Judicial Conference of the United States, which sets the rules for federal judges, since 1964 has said judges should limit publication of their opinion. Rule 47.5 of the U.S. Court of Appeals for the Fifth Circuit, which includes Judge Pickering's jurisdiction, echoes the same policy. The Federal Judicial Center's Judicial Writing Manual states that because decisions of district judges (such as Judge Pickering) are "merely persuasive authority" and not "binding precedent . . . publication should be the exception." More than 80 percent of appealscourt decisions are unpublished, and district judges should publish even less. Turns out Judge Pickering was just following the rules. But then, that's what the debate over the judiciary is all about, whether judges must just follow the law or can (and even should) make it up to achieve particular results. It's about whether judges or the people should run the country and define the culture. The far-left finds it tough going in the ordinary political process, so they turn from the statehouse to the courthouse to force their agenda on us anyway. Our freedom, however, requires that judges follow the law and leave the politics to the people. Judge Pickering knows the difference. At his Judiciary Committee hearing on Feb. 7, he repeatedly said that "I will follow the law even when I disagree with it." He told Sen. Dianne Feinstein that "I know the difference between a political decision and a judicial decision." That is precisely the kind of judge America needs. In fact, it's the oath judges take to be impartial. 44 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000367 In the completely political world of the far-left, even judges exist simply to further the revolution, to deliver the political goods. That world does not contain something called the rule of law that does not change and that can protect everyone's rights. It's their way or the highway. The ends justify the means. It's not how you play the game, but whether they win or lose. The kind of judge America needs remains the primary issue in judicial selection. It's no wonder the far-left can't stand Judge Pickering. With more like him, especially on the Supreme Court, they would have to convince the American people instead of a few elitist judges. That's a debate they cannot win. Stop the Payback; Senate Needs to Move on Judicial Nominees The Dallas Morning News Sunday, February 10, 2002 Same song, different verse. Senate Republicans confirmed only 14 of President Bill Clinton's 34 appellate judge nominees in his last Congress. Now, with Democrats controlling the Senate, they have confirmed only six of President Bush's remaining 29 appellate judge nominees. (Nine appointees withdrew.) With an election year upon us, some believe Democratic feet will drag even slower. What a shame. For both parties. Politics always has surrounded presidential nominees. But the Senate seems to have increasingly moved away from the constitutional "advise and consent" role to outright power plays, especially with judicial nominees. If a court appointee doesn't fit one party's philosophy, then the traps come out. That's true for Republicans as well as Democrats. One trap being laid now is for Priscilla Owen, a Texas Supreme Court justice whom Mr. Bush nominated for the Fifth Circuit Court of Appeals last year. Opponents raise questions about Justice Owen because she accepted a 1994 campaign contribution from Enron, today's leper colony of donors. Two years later, she authored a court opinion on an arcane tax matter that directly benefitted Enron. But here's the other part of the equation. Every Texas Supreme Court justice agreed with her about the constitutionality of the law. The Texas House and Senate also passed the measure with only one dissenting vote. The position she took was in concert with her colleagues and the Legislature. Besides, Justice Owen's lifelong record is one of accomplishment and integrity. She is one of the few judicial nominees to receive a unanimous "well qualified" rating from the American Bar Association. 45 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000368 If the Senate wants to have a debate about Ms. Owen's conservative philosophy, then say so. But even there, a president deserves the edge in getting his judges appointed. The gamesmanship could go on forever. But enough with the traps. The Senate needs to move speedily in approving the president's judicial nominees. Stop the payback. Chairman Neas The Wall Street Journal Friday, February 8, 2002 By all normal appearances Senate Democrats were in charge of yesterday's hearing before the Senate Judiciary Committee. But anyone who knows anything about modern legal politics knows that the real chairman was the talkative fellow holding court with the press corps in the hallway nearby. That man is Ralph Neas, president of People for the American Way and ringleader of what promise to be years of attacks on President Bush's judicial nominees. Politically speaking, he's Edgar Bergen and Senate liberals are his Charlie McCarthys. He gives them their attack themes, and they then repeat them to skewer some hapless nominee who thinks a judgeship is going to be the capstone of his career. Yesterday Democrats sang Mr. Neas's tune while pounding appeals-court nominee Charles Pickering Sr. as some kind of 1950s racist. For Mr. Neas, this is like old times. His main contribution to American politics is the verb "to bork," defined as vilifying a judicial nominee in order to block his confirmation. He orchestrated the original borking, against Robert Bork in the late Reagan era, but has also lent his expertise to the trashing of Clarence Thomas and a host of other conservative nominees. Now, after eight years in hibernation, Mr. Neas is back, this time giving attack orders to Judiciary Chairman Pat Leahy. And he hasn't lost his touch. All the hallmarks of the Neas method are on display in the borking of Mr. Pickering, a federal district judge since 1990 and Mr. Bush's nominee for a seat on the Fifth Circuit: The phalanx of liberal interest groups, the press leaks and shameless appeals on race and abortion. And, of course, the Senators themselves, all lip-synching lines from Mr. Neas's anti-Pickering position paper. The document is so full of half-truths and deliberate omissions that even Legal Times, no friend of conservatives, felt compelled to report that "You won't get the full story on Charles Pickering Sr. from liberals' portrayal of his life and record." To play the race card, Mr. Neas dug back more than 40 years to condemn Judge Pickering for expressing "no moral outrage" in an article he wrote as a first- year law student about Mississippi's law against interracial marriage. Setting aside the fact that as a student Mr. Pickering was supposed to be presenting a neutral analysis of the law, if the new standard for judicial confirmation is to have perfect judgment at the age of 21, the nation will soon be bereft of judges. 46 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000369 The real Pickering record on race was reported on these pages yesterday by James Charles Evers, brother of slain civil rights leader Medgar Evers. He outlined Judge Pickering's courageous personal history on race, including taking a stand against the imperial wizard of the Ku Klux Klan in 1967, an action that cost him his re-election as county prosecutor. Another Neas attack line is to portray him as a religious proselyte, not to say bigot. He scores the judge, a devout Baptist, for telling one defendant during a sentencing that "You can become involved in Chuck Colson's prison ministry or some other such ministry and be a benefit to your fellow inmates." Sounds like good, compassionate advice to us. Mr. Neas's paper also condemns Judge Pickering for the sin of not publishing many of his judicial decisions. He neglects to mention that there is no requirement for district judges to publish their rulings, which are usually delivered orally. Some judges do so anyway, by sending in transcripts to Westlaw or Lexis; circuit court judges, who understand that lower court rulings are rarely significant doctrinally, jokingly call this the "vanity press." In other words, Judge Pickering is not hiding anything; he's simply a modest man, a concept apparently beyond Mr. Neas's experience. In one political sense, of course, Mr. Pickering should consider himself fortunate. At least he's had a hearing, and he'll probably get a vote too, with Mr. Neas granting both because he figures he has the votes to bury him in committee. But of the 23 circuit court nominations pending before the Judiciary Committee, 21 have received no hearing at all. This includes every one of Mr. Bush's nominees for the half-empty Sixth Circuit. Mr. Leahy keeps sending us letters telling us that he's a fair man, he's not stalling anything, we've got him all wrong. But he's blown away even the pretense of fairness by making the first big political hearing of 2002 his assault on Mr. Pickering. And all of this merely to defeat a circuit court nominee. Imagine the venom that will be on display the first time there's a Supreme Court vacancy. In his hearing yesterday, Judge Pickering offered a dignified statement of his judicial philosophy: "I recognize and know the difference between a personal opinion or view, a political position or view and a judicial opinion. I will obey the Constitution." Too bad that's not a Constitution that Chairman Neas and his Democratic followers even recognize. Smearing Bush’s Nominees By Thomas Jipping World Net Daily Thursday, February 7, 2002 Some smears are smearier than others, and the far-left has launched their smeariest so far against one of President Bush's best judicial nominees. 47 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000370 The president nominated Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit nearly 1 year ago. Mr. Estrada came to America from Honduras as a teenager speaking no English. In no time, he had graduated from Harvard Law School and has experience both in government as assistant to the solicitor general during the Clinton administration and now in a partnership in one of America's premier private law firms. The far-left, however, cannot afford to let slip that individuals from anywhere can do anything they choose here in America. No, minorities must toe the liberal line or face the consequences. Mr. Estrada's number is apparently up because the attack has begun. We now hear that Paul Bender, deputy solicitor general during the Clinton years, claims Mr. Estrada is an "ideologue" who cannot be counted on to be "fair and neutral" or provide a "neutral statement of the law" on legal issues. This smear is particularly outrageous for two reasons. First, Mr. Bender is the real ideologue making legal arguments denounced by the U.S. Senate, his own boss Mr. Clinton, the U.S. House of Representatives, and the U.S. Court of Appeals. In 1993, Mr. Bender engineered the Clinton Department Of Justice's effort to weaken enforcement of the federal child pornography statute. In a case titled United States vs. Knox, DOJ not only changed its predecessor's position in the same case, but repeatedly changed its own position in successive appearances before the U.S. Court of Appeals. In fact, DOJ's position would weaken the child porn statute more than even the convicted child pornographer in this case had sought. Between Nov. 1993 and June 1994, the Senate voted 100-0 to denounce this move President Clinton wrote Attorney General Janet Reno to agree with the Senate; the House of Representatives voted 426-3 to reject this Bender-inspired stunt; and the U.S. Court of Appeals rejected his legal arguments. Mr. Bender is the ideologue. He was chief counsel to the 1970 Commission on Obscenity and Pornography that recommended abolishing all state and federal obscenity laws. In this case, he tried to further that crusade by twisting the statute and replacing a "neutral statement of the law" with what he personally wanted the law to be. Second, in some high-profile cases, Mr. Estrada was fair and neutral even when the result upset conservatives. In NOW vs. Scheidler, he argued that the federal racketeering statute could be used against pro-life protesters. He was right. The statute contains no limitation or exception to distinguish between social protesters and the Mafia. Maybe it should but it doesn't and a "neutral statement of the law" requires saying so. Mr. Estrada did and the Supreme Court unanimously agreed. We've seen this before. Someone appearing to have credibility makes an accusation about a minority nominee. It's general enough to make checking the facts difficult and it's first spread behind the scenes to undermine the nomination. When that fails, the smear is released to spread wherever it will. Yes, you got it. That's exactly what these very same people People for the 48 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000371 American Way, the Alliance for Justice, and their ilk did to Clarence Thomas in 1991. And, now, it's Mr. Estrada's turn. Maybe they're afraid he too will end up on the Supreme Court one day. Both the liberal American Bar Association and the National Hispanic Bar Association investigated Mr. Bender's smear and rejected it. They both endorsed Mr. Estrada's nomination and the U.S. Senate should immediately approve it. Whether senators support the nomination or not, they should all insist on a fair and responsible confirmation process. And they should all denounce the unfair and irresponsible tactics being used against Mr. Estrada. What’s the Rush With Appointing Federal Judges By Laura Dickinson The Hartford Courant Monday, February 11, 2002 Last week, the Senate Judiciary Committee held a confirmation hearing on Charles Pickering, whom President Bush has nominated for a seat on the U.S. 5th Circuit Court of Appeals. Like many of the administration's judicial appointees, Pickering is strongly partisan and far outside the American mainstream in his views. For example, he once wrote an article calling on the Mississippi legislature to strengthen its then-existing laws banning interracial marriage, and he repeatedly fought the enactment of the 1964 Voting Rights Act, which opened the door for African Americans to vote. Senate Democrats must resist calls to expedite the confirmation process and instead make sure there is adequate time to review the record of Pickering and appointees like him, confirming only those who are truly qualified. Although administration officials and Republicans on Capitol Hill have trumpeted the need for bipartisanship in recent months, they have seriously flouted the spirit of bipartisanship in the appointment of federal judges. They have sought to exploit the terrorism crisis to push for speedy Senate confirmation of judicial nominees. And they claim that such appointments are desperately needed, even after they spent years blocking President Clinton's efforts to appoint judges to the federal bench. The quality of the federal judiciary affects the everyday lives of Americans. The scope of civil rights, the extent to which the government may oversee environmental protection or food safety or drug labeling, even the appropriate role of the federal government in combating terrorism -all of these issues (and many more) fall within the purview of the federal judiciary. Moreover, because these judges are appointed to lifetime tenure, they will influence the interpretation of the law for decades to come. Especially given the closeness of the presidential election that brought President Bush to power (and of course, the judiciary played a role there as well), it is incumbent on the administration to appoint highly qualified judges whose views reflect those of mainstream American society. And 49 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000372 it is equally incumbent upon the Senate to ensure that the president acts within his limited electoral mandate. Unfortunately, many of the nominations put forward so far fail this test. In addition to Pickering, one of Bush's appointments, Carolyn Kuhl, fought hard to grant tax-exempt status to Bob Jones University. She also advocated the total exclusion of women from the publicly funded Virginia Military Institute, a position ultimately rejected by all but one of the U.S. Supreme Court justices who addressed the question. Another nominee, Timothy Tymkovich, defended a state prohibition against using federal Medicaid funds for victims of rape and incest to obtain abortions. Whether one agrees with these positions or not, it is difficult to argue that they are mainstream positions within American society. Ironically, though Republican leaders now call for expedited confirmations, Republicans spent the eight years of the Clinton administration repeatedly attempting to block appointments. Indeed, the Republican-controlled Senate went so far as to devise rules to prevent many appointees from even receiving a hearing. The result of this effort has been high vacancy rates in the federal courts. Although some have argued that the Senate should now aim to block Bush nominees as aggressively as the Republicans blocked Clinton appointees, the Democratic-controlled Senate has wisely resisted this call. Instead, if the Senate Judiciary Committee keeps up its current pace, it will hold more hearings in this session alone than the committee held in any of the last 6 ½ years of Republican control. It appears that Senate Democrats are fulfilling their constitutional obligation to scrutinize judicial nominees without resorting to the obstructionist policies of recent years. This is precisely as it should be. The shape of the federal judiciary is so important that the Senate must not rush to confirm unqualified or overly ideological judges simply out of the patriotic desire to support the president in a time of national crisis. We Like Mike: An Open Letter to Senator Patrick Leahy in Support of Judicial Nominee Michael McConnell By Akhil Reed Amar and Vikram David Amar Find Law Friday, February 8, 2002 Dear Senator Leahy, We write this open letter in strong support of Professor Michael McConnell, who has been nominated by President Bush to sit on the U.S. Court of Appeals for the Tenth Circuit. By way of introduction, we are registered Democrats who voted for Al Gore and Joe Lieberman. We have not hesitated to publicly oppose the Bush Administration where we think its policies endanger constitutional liberty. In a previous column, we sharply criticized Attorney General 50 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000373 Ashcroft for issuing a constitutionally troubling eavesdropping regulation. In that column, we directed our readers to your website, which raised similar questions about this regulation. (We have also worked with your staff on a variety of other post 9-11 issues.) This week, we have filed a pro bono amicus brief in the Supreme Court opposing an intrusive and ill-justified high school drug-testing policy in Tecumseh, Oklahoma; the Bush Administration has filed an amicus brief on the other side. But on the subject of the McConnell nomination, we applaud the Bush Administration. Here is an issue where thoughtful Democrats and Republicans, liberals and conservatives, should come together. A Uniter, Not a Divider We begin with a few observations about Michael McConnell, the man. Character counts, and nowhere does it matter more than for judicial appointments for life. We know McConnell well, and admire him. He is soft-spoken, modest, and generous towards others, both personally and intellectually. These qualities are all the more striking because McConnell is a truly gifted legal scholar. (Brilliance and humility do not often coincide, especially in the legal academy.) McConnell is a man of moderation, balance, and judgment. In short, he has an ideal "judicial temperament." We are hardly alone in this assessment. In early July, over 300 law professors sent you a letter "enthusiastically" endorsing McConnell's nomination. This letter included many of McConnell's past and current colleagues-men and women who have seen him up close over many years. Its signatories included the past and present deans of many distinguished law schools, including Yale, Harvard, Chicago, Stanford, Michigan, and Cal-Berkeley. Perhaps most strikingly, the list was genuinely bipartisan and cross-sectional, featuring dozens of leading "liberal" as well as "conservative" scholars, including Al Alschuler, Jack Balkin, Randy Barnett, Robert W. Bennett, Lillian BeVier, Vince Blasi, Steve Calabresi, Evan Caminker, Stephen Carter, Ron Cass, Jesse Choper, Bob Clark, Michael Dorf, John Hart Ely, Richard Epstein, Sam Estreicher, Dan Farber, Charles Fried, John Garvey, Mary Ann Glendon, Carole Goldberg, Kent Greenawalt, Sam Issacharoff, Elena Kagan, Yale Kamisar, Doug Kmiec, Anthony Kronman, Doug Laycock, Jeff Lehman, Lawrence Lessig, Sanford Levinson, Saul Levmore, Dan Lowenstein, Cal Massey, Tracey Meares, Robert Nagel, Mike Paulsen, Scot Powe, H. Jefferson Powell, David Shapiro, Suzanna Sherry, Ann-Marie Slaughter, Kate Stith, David Strauss, Peter Strauss, Bill Stuntz, Cass Sunstein, and Jeremy Waldron, to name just a few. Rarely do law professors-by nature a contentious lot, rewarded for strong opinions-come to such universal consensus. It is hard to imagine many other things that the above-named professors (to say nothing of the broader list of 300) could all agree on. A Legal Eagle 51 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000374 Competence counts alongside character; and here too McConnell is off the charts. After clerking for Judge J. Skelly Wright and Justice William Brennan, McConnell has gone on to be a leading public servant, private lawyer, and legal academic. In an earlier column, we argued that courts should bring together lawyers with varied legal backgrounds and pre-judicial careers. McConnell brings this desired balance together in a single person, who has excelled at very different legal jobs, and who has synthesized the distinctive virtues of each. McConnell is a scholar's scholar AND a lawyer's lawyer. Each side of his resume is dazzling, but what is most remarkable is that a single person has excelled at both. (Only Larry Tribe, Walter Dellinger and a few others may claim comparable achievements both as a constitutional scholar AND as a constitutional practitioner.) As a scholar, McConnell has published over fifty law review articles, many of which appeared in leading law reviews and are now considered classics. As a practitioner, he has served in various high-level governmental positions and has practiced law on his own. All told, he has argued eleven cases before the U.S. Supreme Court. Being an outstanding scholar has made McConnell a better lawyer, and being an outstanding lawyer has made him a better scholar. To overstate: great scholars sometimes lack judgment, and good lawyers sometimes lack ideas. But McConnell sees both the big picture and the details; he has both vision and prudence. In his scholarship and his briefs, he has deftly woven legal tapestries respectful both of constitutional text and of the sometimes competing considerations of tradition, precedent, and established practice. We give McConnell special credit for the way he has pursued private practice. He has taken on many pro bono cases, rather than simply selling himself to the highest bidder. He has worked well in partnership with other lawyers on his cases, who praise his collegiality. Collegiality is a special requirement for appellate judges, who do their work in panels; and the lack of it is sometimes a weakness of pure academics, who do most of their work alone. The Vision Thing As we have explained in an earlier column, Senators may properly and openly consider nominees' overall legal philosophies and likely judicial rulings. Given McConnell's scholarly writings and practice experience, we highlight two areas that will likely be of particular interest in his hearings. McConnell is perhaps America's pre-eminent scholar of religious liberty. Although we do not agree with everything he has written on the subject, we find his general views carefully argued and normatively congenial. A couple of media pieces have misstated McConnell's general views, so it's useful to set the record straight. McConnell generally champions the idea of governmental "neutrality"government ordinarily should not favor any specific religion or religion generally; but neither should government single out religion for unique disfavor and disadvantage. Government 52 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000375 shouldn't discriminate against religion. For example, if a veteran can use his GI loan to help finance his education at a nonreligious college, he should likewise be allowed to use the loan at Notre Dame or BYU-otherwise, the government is discriminating against religion. This is a generally attractive vision, and it has real bite from a civil libertarian perspective, connecting the religion clauses to the Constitution's grand theme of equal citizenship. McConnell opposed state-sponsored graduation prayers at public school commencements even before the Supreme Court struck down this practice, 6-3, in the 1992 case of Lee v. Weisman. McConnell has likewise publicly endorsed the result of the more recent Santa Fe Independent School District v. Doe case, which invalidated (by a similar 6-3 vote) government-sponsored prayer at high school football games. In both situations, government flunked the neutrality/equality test. McConnell has also championed the idea that courts should treat congressional statutes with deference, and should not lightly strike them down. This is a principled position of judicial restraint, and it stands in stark contrast to more virulent forms of conservative ideology now prominent in federal courts generally and in the Supreme Court in particular. In the almost eighty years between the Founding and Reconstruction, the Supreme Court invalidated acts of Congress on only two occasions, Marbury v. Madison in 1803 and Dred Scott v. Sanford in 1857. By the mid 1920s, this number had risen to about fifty-less than one case a year. Overall, the Warren Court invalidated acts of Congress in about twenty cases over a sixteen year span. By contrast, the Rehnquist Court in the last six years alone has struck down congressional laws (most of them constitutionally sound laws, in our view) in almost 30 casesfar more than in any prior six-year period. This is a trend that should disturb Congress-and the confirmation process is one place for Congress to begin to fight back for its rightful place in the Constitution's scheme-co-ordinate with courts rather than below them. One of the worst trends on the current Supreme Court has been its willingness to invalidate Congressional civil rights laws enacted pursuant to congressional power under the Reconstruction Amendments, from the Religious Freedom Restoration Act to the Violence Against Women Act and the Americans With Disabilities Act. McConnell has been a leading critic of this trend toward judicial imperialism. Put differently, McConnell has been a principled champion of Congress's right to implement its broad vision of civil rights even when Congress seeks to protect rights more generously than the Supreme Court has chosen to do on its own. If Not McConnell, Who? McConnell's nomination to the Tenth Circuit draws additional support from the fact that he is strongly supported by his home-state Senators, one of whom, Orrin Hatch, is the ranking member and former chair of the Judiciary Committee. Indeed, McConnell is supported by virtually all the Senators from the entire circuit. And if the Senate is to play anything close to an equal role with the president in the appointments game, it is important-and consistent with Senate traditions of courtesy and deference-for the Senate as a whole to pay particular respect to 53 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000376 the views of Senators with a special stake in a given nomination. We realize that in the mid 1990s, when the political situation was reversed-a Democratic President confronting a Republican Senate-some of President Clinton's judicial nominees were obliged to wait far too long to be confirmed. In particular, we were saddened that our friend Willy Fletcher, then a Professor at Cal-Berkeley, waited several years before finally winning confirmation to the Ninth Circuit. We strongly supported Fletcher then-for many of the same reasons we support McConnell now. Both are outstanding scholars with superb judicial temperaments. It may be tempting to play tit for tat-Republicans stalled Fletcher so now Democrats obstruct McConnell. But we urge our fellow Democrats to resist this temptation. At some point, someone needs to take a huge step away from an endless cycle of reprisal that works to the long-term disadvantage of both parties, and of the country. We were thus heartened to read your recent comments in the Congressional Record promising to hold hearings soon on McConnell's nomination. But perhaps it's naive to think that moderate payback can be eliminated altogether from the appointments game. So here is a realpolitik point: President Bush is nominating and probably will continue to nominate several other judicial candidates who deserve very close scrutiny. Some of these candidates may have less prominent paper trails than McConnell. But many are likely inferior to McConnell in almost every way-less smart, less open, less humble, less lawyerly, less respectful of Congress, less knowledgeable about the Constitution. If there must be payback, please pick on someone else. We like Mike-as does virtually everyone who knows him well-and we think that if you give him a chance, you will, too. Pickering Represents A Civil Rights Setback By Eugene Bryant Legal Times Monday, February 11, 2002 In his article "Judge's Record: What Was Left Out" on Feb. 4, 2002 [Page 1], Jonathan Groner went to great lengths to praise U.S. District Judge Charles Pickering for his apparent overtures to the African-American community in Mississippi. By doing so, Mr. Groner ignored the real and legitimate concerns that have led the 106 chartered membership units of the Mississippi State Conference of the National Association for the Advancement of Colored People (NAACP) to vigorously and unanimously oppose Judge Pickering's nomination to the U.S. Court of Appeals for the 5th Circuit. This is, in fact, the second time that the NAACP local branch in Laurel, Miss. Judge Pickering's hometown-has opposed his nomination to a federal judgeship. In 1990, we opposed Judge Pickering's to the U.S. District Court for the Southern District of Mississippi. 54 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000377 It is not enough for a sitting judge to locate a few token African-Americans and local officials to vouch for his character and judicial temperament. It is almost understandable that such designees can be found, especially considering the fact that, even if Pickering's 5th Circuit nomination is unsuccessful, he will still continue to serve on the District Court. Instead, Judge Pickering's words and actions over the stretch of 40-plus years, as raised by courageous NAACP members, should not be brushed aside. For example, In 1959, as a law student, Judge Pickering wrote an article about how the Mississippi legislature could change state law to criminalize interracial marriage. In the 1970s, as a state senator, Judge Pickering voted to deny full opportunity to AfricanAmericans, fighting against the implementation of the 1965 Voting Rights Act and, as a result, keeping the Mississippi Legislature all white until the end of the decade. In the 1970s, Judge Pickering also voted to support the Sovereignty Commission, a state-funded agency established to thwart desegregation efforts resulting from the landmark Brown v. Board of Education. In the 1990s, Judge Pickering has continued his assault on voting rights, criticizing the fundamental "one-person, one-vote" principle as obtrusive. He has also criticized the creation of majority-black districts as "affirmative segregation." Judge Pickering is unnecessarily hostile and abusive to plaintiffs in race discrimination cases. For example, he wrote, "plaintiffs fail to recognize that whatever your race-black, white or othernatural consequences flow from one's actions. The fact that one happens to be protected from discrimination does not give one insulation from one's own action." To overlook this record is to maintain that a nominee for a lifetime judgeship should not be judged by his life's work. Specifically, to give Judge Pickering a "pass," despite his demonstrated record of hostility to civil and voting rights, is to maintain that he need not fully support equal rights and protections for all Americans and his past actions and present disposition will have no bearing on future conduct. As Mississippians, we experienced the harsh realities of post-slavery and modern day Jim Crow and have vowed to never repeat it. Judge Pickering's elevation to the 5th Circuit Court of Appeals would represent a major setback to the hard-fought struggle of African-Americans and other racial and ethnic minority people in Mississippi-a state with a notorious record on civil rights. Eugene Bryant President NAACP Mississippi State Conference 55 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000378 Judge Pickering’s Past The Boston Globe Saturday, February 9, 2002 THE COUNTRY STUMBLES when a president points to a relic of a man and says he should be a high-court judge. Nonetheless, President Bush nominated US District Judge Charles Pickering of Mississippi to join the US Court of Appeals for the Fifth Circuit in New Orleans. Trace Pickering's legal roots to 1959 and one finds an article he wrote as a law student advising the Mississippi Legislature how to close a loophole so the state could better punish people in interracial marriages. Sadly, even if this article is dismissed as old or just an academic exercise, there are still decades of legal thinking that make Pickering the wrong choice for circuit court judge. In the 1970s, when the country was putting the Voting Rights Act to work to empower black voters, Pickering was a state senator who voted for redistricting plans that diluted the power of black votes. During the 1990s, when he was a district court judge, Pickering seemed annoyed by the doctrine of one person, one vote, which calls for election districts to have roughly equal populations. One person, one vote helps groups of voters have all the political power to which they're entitled. The Supreme Court had ruled that deviations of more than 16.4 percent are unconstitutional. But when Pickering was faced with a deviation of 25 percent, he seemed unconcerned. Commenting in "dicta" - editorial comments from judges that set no legal precedent - Pickering called the high percentage "relatively minor." Pickering's decisions were reversed 15 times by the Court of Appeals because he violated settled principles of law. He has scolded plaintiffs, repeatedly saying that employees can be too quick to cry discrimination when they have simply failed to do their jobs well. This is a problem, but the caseload of the Equal Employment Opportunity Commission shows that workplace discrimination is the more corrosive issue. Unfortunately, hundreds of Pickering's opinions are no longer available, so the Senate can only review an incomplete record. Pickering does have supporters. Henry Naylor - a black city councilor in Hattiesburg, Miss. wrote to Senator Patrick Leahy, chairman of the Judiciary Committee, and said: "Judge Pickering has received much praise from local and state African-American leaders who can attest to his commitment to being fair toward all citizens." Pickering is also a member of the executive committee of the Institute for Racial Reconciliation 56 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000379 at the University of Mississippi. It's nice to be reassured that Pickering and black people can get along. What's missing is reassurance that Pickering is the kind of judge who will move America's great progress on equality forward. That's why the Senate Judiciary Committee should not approve him. Transcripts/Members of Congress Confirmation Hearing of Judge Charles Pickering of Mississippi Morning Edition National Public Radio Friday, February 8, 2002 BOB EDWARDS, host: President Bush's most embattled judicial nominee made his second appearance before the Senate Judiciary Committee yesterday. Judge Charles Pickering of Mississippi first testified in October at the height of the anthrax crisis. At that time, he was unable to produce some 1,000 legal opinions he had written, and few members of the public were able to attend because of heightened security measures. That helped to set the stage for yesterday's showdown. NPR legal affairs correspondent Nina Totenberg was there. NINA TOTENBERG reporting: This time the questioning took place in a large hearing room. This time the front rows were filled with Pickering's opponents, representatives of civil rights and women's groups. And this time those groups had spent week campaigning against the nominee, portraying him as a relic of the Old South, a man who'd started out in life overtly opposed to political and civil rights for blacks, and ended up as a judge insensitive to the rights of minorities. But Republicans were not cowed. They pointed to actions Pickering had taken throughout his life that they said show he was a man of courage, conviction and dedication to racial reconciliation. He had sent his children to public schools in Mississippi at a time when most whites were abandoning those schools. He had worked with the FBI to quell racial violence. And as Kentucky Senator Mitch McConnell put it, he had 'demonstrated uncommon moral courage' in the 1960s in agreeing to testify against the grand wizard of the Ku Klux Klan in a racial killing case. Senator MITCH McCONNELL (Kentucky): A 27-year-old Charles Pickering stared in the face his political future, and chose to do his duty of enforcing the law against the men who committed such violence. TOTENBERG: Democrats pressed Pickering, though, about other actions he took in the 1960s. Yes, he said, he had quit the Democratic Party in 1964 right after the national convention had decided to seat a multi-racial delegation instead of the all-white delegation the state party wanted. At the time, Pickering said, the national party's decision was so embarrassing and 57 18-2091-B-000380 Document ID: 0.7.19343.7128-000001 humiliating he was going to jump to the GOP. But yesterday, for the first time, he said he now regrets making that statement. Democrats then moved on to Pickering's law partner and close friend in the '60s, a man who'd openly campaigned in newspaper ads as an ardent segregationist. Pickering seemed surprised when confronted with the ad, but continued to maintain his partner was a progressive. That prompted this exchange with Senator Richard Durbin of Illinois. Senator RICHARD DURBIN (Democrat, Illinois): I don't doubt the fact that life had changed in America and life has changed in Mississippi, but can you sit there today and tell us that these are the words of a man that would you characterize either as not a racist or as a progressive leader. Judge CHARLES PICKERING: There was no politician in the South during the '50s and the early '60s that held office. It's not right, no, but it recognizes the reality of where they were at that particular time. TOTENBERG: The judge fielded all such questions with quiet, if somewhat grudging, aplomb, until Senator John Edwards of North Carolina began questioning him about a cross-burning case he handled as a trial judgein 1994. In that case, a juvenile and a mentally challenged defendant had both agreed to plead guilty and gotten lenient sentences in exchange for their testimony. But the third defendant, an adult, had refused a guilty plea and a 15-month sentence. He'd gone to trial and been convicted, whereupon the Justice Department asked for the longer mandatory minimum. Justice Department memoranda written by prosecutors in the case at the time report that Pickering threatened to order a new trial if the Justice Department did not reduce the sentence it was asking for. Pickering at first denied making any such threat, but then softened his denial. Senator JOHN EDWARDS (North Carolina): You deny having said that. Judge PICKERING: No, I did not say that. Sen. EDWARDS: If the lawyers who were involved in that have said that that's the statement that you made to them, that would be a lie? Judge PICKERING: Senator, on the record... Sen. EDWARDS: According to the documents that we were provided, this took place in a private meeting that you had with the lawyers where you told the lawyers you would order a new trial on your own motion, and when they ask you, and I'm quoting now, "what would be the basis for such a motion for a new trial, you said that any basis you choose." Do you deny having said that? Judge PICKERING: Senator, I have no recollection of having said that. 58 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000381 TOTENBERG: Senator Edwards then moved on to questions about whether Pickering had violated the judicial code of conduct, which forbids a judge to engage in what's called ex parte contact, that is contact with either side in the case without the lawyers being present. Sen. EDWARDS: Did you make a phone call to a high-ranking Justice Department official on your own initiative? Judge PICKERING: We had... Sen. EDWARDS: Not 'we,' you. Did you make such a phone call? Judge PICKERING: I've indicated I called Mr. Unger(ph) and discussed the fact I was frustrated that I could not get a response back from the Justice Department and I thought there was a tremendous amount of disparity in this sentence. Sen. EDWARDS: Were any of the lawyers in the case on the phone when you called Mr. Unger. Judge PICKERING: No, they were not. Sen. EDWARDS: So that was an ex parte communication, was it not? Judge PICKERING: It was. Sen. EDWARDS: OK. In violation of the Code of Judicial Conduct. Judge PICKERING: I do not consider it to be a violation of the code of conduct. TOTENBERG: And finally Edwards asked Pickering if he'd issued an order forcing the matter to go directly to the attorney general. Sen. EDWARDS: Did you also direct the Justice Department lawyers, the line prosecutors, to take your complaints personally to the attorney general of the United States? Judge PICKERING: In the order, yes, sir. TOTENBERG: The reason he'd taken such extraordinary steps to get the sentence reduced in the cross-burning case, said Pickering, was that he thought seven and a half years was unjust compared with the home confinement doled out to the other two defendants. Judge PICKERING: I have never had a case where the disparate treatment was so great as it was in this case. TOTENBERG: That explanation, said Senator Chuck Schumer of New York, simply did not wash with him. 59 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000382 Senator CHUCK SCHUMER (Democrat, New York): But I know case after case where someone is the state's evidence and gets a year or two in a murder case, and someone else gets life in prison. This happens regularly. TOTENBERG: Senator Durbin chimed in as well. Sen. DURBIN: The thing that I find troubling here, the lengths that you went to try to protect this defendant. TOTENBERG: But Pickering noted in the end he'd sentenced the defendant to two years in prison. Judge PICKERING: I described the cross burning as a despicable act. I observed that the act was drunk, young men doing a dastardly deed that they should not have had in their heart. I further stated, 'Cross burning is a heinous crime, so I don't have any feeling what you did should be swept under the rug, or what you did that you are an innocent person.' TOTENBERG: Pickering ended a grueling afternoon of testimony after more than four hours on the witness stand. He has the strongest of allies in his fight for conformation, Senate Minority Leader Trent Lott. And Democrats have only a one-vote majority on the Judiciary Committee. Whether they are unanimously willing to shed blood to defeat Lott's personal choice remains to be seen. The Mississippi senator has said that Pickering will be confirmed, quote, "or else." On the other hand, the Democrats are still smarting from the way Lott and the GOP treated President Clinton's nominees to the same appeals court. Three out of four never came to a vote. Nina Totenberg, NPR News, Washington. Fox News Sunday with Tony Snow Fox News Sunday, February 10, 2002 *EXCERPT* SNOW: Charles Pickering has been nominated to a judgeship on the fifth U.S. circuit court of appeals. He's had hearings. Democrats are saying they think that he has -- his background, especially on issues of race, is going to disqualify him. The White House says it's now up to you, Trent Lott, to make sure. Do you think the White House is washing its hands of its nominee? LOTT: I don't think they are. Judge Pickering is eminently qualified. He's a sitting district court judge, formerly approved by the Senate. Has been moderate on racial issues all his life. In fact was active in efforts to try, you know, get the Klu Klux Klan under control in the area that he lived in. 60 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000383 It's not about, you know, him really. It's about the administration's judges. It's a pattern of circuit judges. They picked him to take a shot at because he's one of the first ones that really was going to be moving through. I think they have considered maybe two or three circuit judges out of 23, so it's bigger than this one individual, who, by the way, who has an excellent, highly qualified rating by ABA. SNOW: So... LOTT: It's just that he was the first one where they thought, well, we'll show the administration, we'll show the Republicans what we're going to do to their conservative nominees. And this is really about the Supreme Court. This is a shot at the president saying, you know, if you come up with a basically a conservative Republican who is pro-life, we're going to take him down. SNOW: Will he make it or not? LOTT: I think it's going to be close, but I certainly hope he does. He deserves it. This is a very unfair besmirching of a good man's record. Interest Groups/Press Releases Planned Parenthood Opposes Judicial Nominee Charles Pickering, Urges Administration to Select Fair-Minded Candidates Who Share America’s Values Planned Parenthood Federation of America Thursday, February 7, 2002 Planned Parenthood Federation of America (PPFA) today announced its vehement opposition to the Bush Administration's nomination of Charles F. Pickering, Sr., for appointment to the Fifth Circuit Court of Appeals. The announcement followed the Mississippi federal district court judge's second hearing in front of the Senate Judiciary Committee. "President Bush's judicial nominees should come with a warning label: 'Beware...May Be Hazardous to Women's Health and Civil Rights.' Judge Pickering is no exception," PPFA President Gloria Feldt said. "Judge Pickering's testimony today failed to assure the American people that he will protect their basic freedoms," Feldt said. "His record reveals deep-rooted opposition to reproductive rights and hostility toward other civil rights. Judge Pickering poses a clear and present danger to all 61 18-2091-B-000384 Document ID: 0.7.19343.7128-000001 people's participation in the economic, social and political life of our nation. The Senate Judiciary Committee should vote down his nomination. Further, we urge the Bush Administration to select fair-minded nominees who respect the rights of women and share America's values about reproductive freedom." Because the overwhelming majority of cases are decided by the lower federal courts, PPFA is concerned that judges appointed to these courts be committed to safeguarding the rights to privacy and reproductive choice as set forth in Roe v. Wade and the earlier Supreme Court decisions upon which Roe rests. Judge Pickering's history in this regard reveals deep disagreement with those principles: In 1984, when Judge Pickering was the president of the Mississippi Baptist Convention, he presided over a meeting where the Convention adopted a resolution calling for legislation to outlaw abortion except when necessary to preserve a woman's life. In 1979, as Mississippi state senator, Judge Pickering voted for a resolution calling for a constitutional convention to propose an amendment that would have banned abortion. In 1976, Judge Pickering chaired the subcommittee of the Republican Party's Platform Committee that adopted a plank calling for a constitutional amendment that would have overruled Roe v. Wade. Judge Pickering spoke in support of that plank on the floor of the Republican convention that year. A new Planned Parenthood Web site, www.saveROE.com, outlines the substantial threat facing Roe v. Wade and enables America's pro-choice majority to show support for the court decision and take action to protect reproductive freedom. Charles Pickering’s Record on Civil Rights, Other Key Issues Calls for Rejection by Senate Judiciary Committee People for the American Way Thursday, February 7, 2002 People For the American Way President Ralph G. Neas urged Senate Judiciary Committee members to carefully consider the public record of Judge Charles Pickering and to reject his nomination to the U.S. Court of Appeals for the 5th Circuit. "Judge Charles Pickering should not be elevated to the appeals court and the Senate Judiciary Committee should reject his nomination," said Neas. "His actions over the past decade as a federal judge and his long public record before that reflect a troubling lack of commitment to fundamental civil and constitutional rights principles." Neas noted that Pickering’s public record has generated opposition to his confirmation from a broad range of civil rights and other public interest organizations, including the NAACP chapter 62 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000385 in Pickering’s home state of Mississippi and the Magnolia Bar Association, the state’s predominantly African American bar group. People For the American Way has published a review of Pickering’s record, as have a number of other public interest organizations. Because many opponents of Pickering’s confirmation have focused on his troubling civil rights record, said Neas, some Pickering supporters have claimed that his opponents are smearing him as a racist. Neas said People For the American Way has clearly documented that its opposition to Pickering’s elevation to the appeals court is grounded solidly in his public record. "We cannot know what is in Pickering’s heart," said Neas. "But we do know what is in his record. And that is why we are opposing his confirmation to the federal appeals court." Among the concerns raised by PFAW and other opponents of Pickering’s confirmation: His record demonstrates insensitivity and hostility toward key principles and remedies that safeguard civil rights, and indifference toward the problems caused by laws and institutions that have previously created and perpetuated discrimination. Even conservative appellate court judges have reversed Judge Pickering on a number of occasions for violating "well-settled principles of law" involving constitutional rights and other matters, and for improperly denying people access to the courts. Another Bush nominee to the 5th Circuit, the recently confirmed Edith Brown Clement, had no such reversals during her tenure as a district judge. As a state senator, Pickering co-sponsored and voted for measures harmful to minority voting rights, including a resolution calling on Congress to repeal or weaken key provisions of the federal Voting Rights Act. And as a federal judge, Pickering has gone out of his way to criticize key civil rights principles like "one person-one vote" and to repeatedly disparage plaintiffs in civil rights cases. Pickering testified before the Senate Judiciary Committee that he had had no contact with the infamous Mississippi State Sovereignty Commission, which opposed desegregation and infiltrated civil rights organizations to disrupt their efforts. In fact, Pickering went into law practice with a well-known defiant segregationist who served as a member of the Commission for part of the time he was Pickering’s law partner. In the state legislature, Pickering twice voted to fund the Commission. In addition, a recently unsealed Commission document states that "Senator Charles Pickering" and two other state legislators were "very interested" in a Commission investigation into union activity that had resulted in a strike against a large employer in Laurel, Pickering’s home town. Some Pickering supporters have suggested that he was concerned about Ku Klux Klan involvement in union violence. The Commission memorandum, however, contains no foundation for such speculation. To the contrary, it states that the request from Pickering and the other legislators was to be "advised of developments in connection with SCEF [Southern Conference 63 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000386 Educational Fund] infiltration of GPA [Gulfcoast Pulpwood Association] and full background on James Simmons [President of the GPA]." As a law student, Pickering wrote a law review article advising the Mississippi legislature how it could fix a loophole in its law penalizing interracial marriage in order to make the law enforceable. The next year, legislators enacted his recommendations. Although Pickering now says he does not think there should be legal obstacles to interracial marriage, when questioned about the article by the Senate Judiciary Committee he did not repudiate it and tried to brush it aside as an "academic exercise." Pickering has opposed Roe v. Wade and the Equal Rights Amendment. He was chair of the Republican Party platform committee that first added an anti-Roe plank to the party platform. His strident anti-choice position is especially troubling in the 5th Circuit, where women’s reproductive rights have already been eroded. He has inappropriately used his position on the bench to promote involvement in religious programs by people before him for sentencing. Neas said Pickering’s record makes him an especially problematic choice for the 5th Circuit, which presides over a three-state area with the largest and most diverse minority population in any Circuit in the country, and which has already decided a number of cases restricting civil and reproductive rights. Neas said the grassroots effort to defeat Pickering’s nomination would be the first of many unless President Bush engages in genuine bipartisan dialogue with members of the Senate. Neas urged senators, especially members of the Judiciary Committee, to fulfill their constitutional responsibilities to carefully scrutinize judicial nominees and reject those who have not demonstrated a commitment to upholding civil rights. "Right-wing senators perpetuated dozens of appeals court vacancies by carrying out an unprecedented ideological blockade against judges nominated by President Clinton," said Neas. "Now they hope President Bush will take advantage of those vacancies to fill the appeals courts with right-wing nominees like Charles Pickering." Neas noted that 35 percent of President Clinton’s appellate court nominees were blocked from 1995-2000; 45 percent failed to receive a vote in the Congress during which they were nominated. Republican-nominated judges currently hold a majority on seven of the 13 circuit courts. If all President Bush’s current nominees are approved, such judges will make up a majority on 11 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts. "A federal judiciary completely dominated by right-wing judges would be a disaster for Americans’ rights and freedoms," said Neas. "Senators must be willing to say no to Judge 64 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000387 Pickering and they must be willing to say no to right-wing efforts to pack the federal judiciary." 65 AMERICAN PVERSIGHT Document ID: 0.7.19343.7128-000001 18-2091-B-000388 Schauder, Andrew Schauder, Andrew Thursday, February 14, 2002 6:18 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James; Goodling, Monica Subject: judicial media review Attachments: Judicial Media Review 2-14-02.wpd From: Sent: To: Please see attached review 18-2091-B-000389 Document ID: 0.7.19343.7233 Media Review - Judicial Nominations Thursday, February 14, 2002 General Judicial Articles "Race Issues Stir Debate Over Bush’s Judicial Pick; Mississippian’s Past Scrutinized," Naftali Bendavid, The Chicago Tribune, February 13, 2002 2 "Bush Puts Abortion Card Back Into Play; President Starts Preparing for 2004," Tom Teepen, Dayton Daily News, February 12, 2002 5 "Pennsylvania Republican’s Vote May Be Key," Ana Radelat, Gannett News Service, February 12, 2002 6 "Pickering Expected to Lose Judiciary Committee Vote," Paul Kane, Roll Call, February 14, 2002 8 "Hawaii’s Two U.S. Senators Approve Clifton Nomination," The Associated Press, February 13, 2002 11 "Courts: Enviros Question Appellate Court Nominee’s Background," Brian Stempeck, Greenwire, February 14, 2002 12 "Pickering’s Fate in Hands of ‘Undecideds’," James Brosnan, The Associated Press, February 7, 2002 14 "Sen. Specter May Hold Judge’s Fate; The Moderate Republican is Mum About His Vote on Charles Pickering’s Appeal Court Nomination," Ben Bryant, The Philadelphia Inquirer, February 13, 2002 15 "Metairie Lawyer OK’d as U.S. District Judge," The Advocate, February 12, 2002 17 "Civil Rights Panel Assails Bush Record," CNN.com, February 12, 2002 18 Op/Eds "So Much for the Truth; Democrats Distort Nominees Record," The Daily Oklahoman, February 13, 2002 19 "Passing Judgement," Intelligencer Journal, February 12, 2002 20 1 18-2091-B-000390 Document ID: 0.7.19343.7233-000001 "Appeals Court Nominee Has Earned Our Support," 22 Women’s Bar Association of Western Pennsylvania, Pittsburgh Post-Gazette, February 14, 2002 "Living in a State of Constitutional Denial," Jonathan Turley, The Chicago Tribune, February 10, 2002 23 "Judge Pickering’s Past," Marcia Greenberger, The Washington Post, February 14, 2002 24 "Fight Over Judge Replays Our Bitter History," Clarence Page, The Chicago Tribune, February 13, 2002 25 "Do the Crime, Do the Time," Thomas Jipping, WorldNetDaily, February 14, 2002 27 "Don’t Confirm Pickering: Appeals Court Nominee Carries Too Much Baggage," The Register-Guard, February 12, 2002 29 Transcripts/Members of Congress "Newsmaker: Sen. Tom Daschle," PBS Newshour with Jim Lehrer, February 11, 2002 30 Interest Groups/Press Releases "Letter to the Wall Street Journal Editorial Board," People for the American Way, February 12, 2002 30 General Judicial Articles Race Issues Stir Debate Over Bush’s Judicial Pick; Mississippian’s Past Scrutinized By Naftali Bendavid The Chicago Tribune Wednesday, February 13, 2002 Despite the turbulence that inevitably surrounds judicial nominees, President Bush's selections have generally fared well, with none generating the level of controversy raised over nominees such as Robert Bork or Clarence Thomas. That may be about to change. Bush's attempt to elevate Mississippi federal Judge Charles Pickering to the 5th Circuit Court of Appeals is generating serious resistance. In the process, the 2 18-2091-B-000391 Document ID: 0.7.19343.7233-000001 nomination has awakened some long-dormant issues from the bitter fights of the civil rights era. Pickering, 64, came of age in Mississippi's racially explosive 1950s and 1960s, and opponents say his career shows a history of racial insensitivity. He wrote an article in law school explaining how to strengthen a state statute against interracial marriage, he voted as a state senator to fund the notoriously segregationist Sovereignty Commission and he intervened to reduce the sentence of a cross-burner. The Congressional Black Caucus and the Mississippi NAACP oppose Pickering's nomination. Asked if the judge is a racist, L.A. Warren, an official with the Mississippi NAACP, responded: "If it walks like a duck and it quacks like a duck, it appears to be a duck." But supporters, including some of the state's black leaders, describe Pickering as an entirely different person. They say he has helped the state shed its racist past by, for example, testifying against a grand wizard of the Ku Klux Klan in the 1960s at great peril to himself. W.O. "Chet" Dillard, a lifelong friend of Pickering, said he and Pickering fought for such causes as putting blacks on juries when the two were local prosecutors in the 1960s. "We almost had to stand back-to-back to protect each other in Jones County," Dillard said. "He was from Jones County, and it was difficult for him to take a stand that was unpopular among his friends and neighbors and tell them, 'This is the law.'" The Senate Judiciary Committee may vote by the end of the month on the nomination of Pickering, who is extraordinarily well-connected. He is a close friend of Senate Minority Leader Trent Lott (R-Miss.) and the father of Rep. Charles "Chip" Pickering Jr. (R-Miss.). The debate is sharpened because Pickering is a candidate for the 5th Circuit Court of Appeals, which covers Mississippi, Texas and Louisiana, an area that is a historic civil rights battleground. In the 1960s, 5th Circuit judges such as John Minor Wisdom surprised the nation with decisions ordering the desegregation of the University of Mississippi and other institutions. But the court has swung to the conservative side in recent years. It covers an area with a high poverty rate and many minorities, and liberals are anxious to prevent it from becoming more conservative. This helps explain why the Pickering nomination is shaping up as Bush's first real judicial battle. Pickering's opponents reel off a litany of questionable actions: As a law student in 1959, Pickering wrote a law review article suggesting ways for the state to close a loophole in its law against interracial marriage. The Legislature acted on his suggestions the following year, passing an amendment to close the loophole. Critics also fault Pickering for going into private practice with Carroll Gartin, an avowed segregationist. Pickering's supporters say Gartin was a prominent Mississippi figure and that his positions were hardly unusual. 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000392 The Sovereignty Commission represents another bleak chapter in Mississippi's past, and critics say Pickering was associated with that group. The commission was created by the state to fight the U.S. Supreme Court's desegregation orders, and Pickering voted to fund it twice when he was in the state Legislature. Pickering has denied any substantial association with the commission. "I never had any contact with that agency, and I had disagreement with the purposes and the methods and some of the approaches that they took," Pickering told the Senate in 1990. His opponents dispute this, saying he had more contact than he admits, such as seeking information on a commission investigation. More broadly, some of Pickering's defenders argue that these events took place 35 years ago or more and belong to a distant past. But a more recent episode could prove the most controversial for Pickering. In 1994, the judge presided over a trial of three people accused of burning a cross on the lawn of an interracial couple. Two pleaded guilty and received relatively light penalties; the third went to trial and was convicted, receiving a 5-year mandatory sentence. Saying he was disturbed by the 5-year sentence and the disparity in the punishments, Pickering personally contacted the Justice Department to express his frustration, possibly violating judicial ethics rules. He made his displeasure clear to prosecutors, who dropped a key charge against the cross-burner--a virtually unheard-of action, because the man already had been convicted. At a recent Senate Judiciary Committee hearing, Pickering defended his action, saying he had made clear his disapproval of the defendants' actions in court. "I described the cross-burning as a despicable act," Pickering told the senators. "I observed that the act was drunk young men doing a dastardly deed that they should not have had in their heart." Pickering's opponents were not mollified. "He is a throwback to a pretty shameful episode in our nation's history," said Nan Aron, president of the Alliance for Justice, adding that Pickering's rulings have been hostile to civil rights. But his friends say they do not recognize Pickering in this portrait. Among the judge's backers are prominent African-Americans including James Charles Evers, brother of slain civil rights leader Medgar Evers, and Henry Wingate, the first black federal judge in Mississippi. Pickering showed flashes of courage during the civil rights era, supporters say, and in his recent career he has shown sensitivity to minority concerns. Pickering sent his children to public schools when many whites were abandoning them for allwhite private schools, these supporters say. In 1967, Pickering testified against Ku Klux Klan imperial wizard Samuel Bowers in a case involving the murder of civil rights worker Vernon Dahmer. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000393 The judge's backers cite other actions: He hired the first black staffer in the Mississippi Republican Party, for example, and he helped establish an Institute for Racial Reconciliation at the University of Mississippi. "He does happen to be white and he does happen to be a Baptist," said Dillard, his old friend. "But you couldn't find any person that I think is more morally conscientious about following the laws as set forth by the United States Supreme Court." The Senate Judiciary Committee's vote on Pickering could be close, and the rhetoric has become fierce. "We hope to God that he doesn't make it," Warren said. "We know his past." Bush Puts Abortion Card Back Into Play; President Starts Preparing for 2004 By Tom Teepen Dayton Daily News Tuesday, February 12, 2002 Abortion is back. not that it ever exactly disappeared as a political issue, but it did lapse into an extended period of blessed quiet, like a bear hibernating. Alas, a grizzly. Anti-abortion leaders, aware that he was on their side, let George W. Bush campaign for the presidency without having to make the repeated and histrionic obeisance to them that they had demanded of previous Republican candidates, to the detriment, on balance, of their campaigns. The silence gave Al Gore little to make hay of and, in kind with the rest of his flailing campaign, he never figured out how to work the issue to his advantage without seeming to cry fire where there were no flames. (Democrats must be groaning at the recent indications that Gore is ramping up for 2004.) Bush was smart enough not to characterize his new administration right off with a lot of antiabortion maneuvering. Now, however, the administration is slipping firmly into anti-abortion gear. The president recently favored abortion opponents, rallying on the anniversary of the Supreme Court ruling that established women's abortion rights, with a Reaganesque, go-get-'em statement of support. The White House has put forward judicial nominees who are committed opponents of lawful abortion, such as federal district Judge Charles Pickering, the recovering (one hopes) racist who Bush wants to jump up to the U.S. Fifth Circuit Court of Appeals. The Justice Department has intervened in an Ohio case to argue for a state ban on so-called partial-birth abortions - a term without medical meaning invented by anti-abortion groups to demonize procedures that are rare and usually resorted to only in medically desperate 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000394 circumstances. Anti-abortion groups have been trying for years to use this side issue as an oblique way to get at all abortions. A federal district court, following the lead of other courts in reviewing similar laws, ruled that the Ohio statute was overly restrictive. The administration wants the law upheld on appeal. And Secretary Tommy Thompson of the Department of Health and Human Services recently ruled that, for the purposes of the Children's Health Insurance Program, enacted in 1997, fetuses are 'children.' The program provides medical coverage to children whose families are needy but not poor enough to qualify for Medicaid. The change was necessary, Thompson said, to provide prenatal care to women. Bunk. The goal is worthy, but there were a variety of other ways - from similar fiat to legislation - to accomplish it without pouring a little bureaucratic acid on the foundation of the 1973 Roe v. Wade decision. Thompson announced the move - to cheers - at the annual Conservative Political Action Conference. If you think the delegates were actually cheering the expansion of a federal program, welcome to Oz. White House analysts have concluded that the usual Christian fundamentalist turnout for Republicans wasn't as strong for Bush as it should have been, and the president has opportunities, as well, to significantly increase support among Catholics. Gore isn't the only player from 2002 already revving up for '04. Pennsylvania Republican’s Vote May Be Key By Ana Radelat Gannett News Service Tuesday, February 12, 2002 With Democrats likely to vote against the candidacy of Judge Charles Pickering for a seat on the 5th U.S. Circuit Court of Appeals, a Republican from Pennsylvania may hold the swing vote on the nomination. While most of the nine Republican members of the Senate Judiciary Committee lauded 64-yearold Pickering's record as a U.S. District judge, state senator, and a prosecuting attorney in Jones County, Sen. Arlen Specter, was skeptical of the judge's defense of some of his rulings. "I don't think its schizophrenia, but it's a little ambivalent at least," Specter said. 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000395 The Pennsylvania lawmaker also rebuked Pickering for criticisms he had made of the Voting Rights Act, a key federal civil rights law. "It's curious to me that you want to be a federal judge because here you are saying the courts have no business in these cases," Specter said. Specter's vote may not be needed to defeat Pickering if all 10 Democrats on the Judiciary Committee decide to vote against the judge's nomination. None of the panel's members, no Democrat or Republican, has revealed how they will vote when the committee meets again to decide Pickering's future, an event that probably will occur at the end of this month at the earliest. But speculation over Specter's vote is keenest among those who oppose and support Pickering's candidacy. A former prosecutor known for his tough stance on crime and his strong defense of civil and women's rights, Specter may muster the courage to defy Senate Republican Leader Trent Lott. The Mississippi senator, a friend and political ally of the judge, pressed the White House to nominate Pickering for a seat on the appeals court that hears cases from Mississippi, Louisiana and Texas. But in the aftermath of last week's contentious Senate hearing on his candidacy, Lott couldn't predict whether Pickering would win confirmation. "I think it's going to be close, but I certainly hope he does. He deserves it," Lott said on "Fox News Sunday." "This is a very unfair besmirching of a good man's record." Lott also said he did not think the White House was abandoning Pickering's candidacy. Kate Michelman, president of the National Abortion & Reproductive Rights Action League said she thinks Lott is under a lot of pressure to try to sway at least a couple of Democratic members of the panel and keep Specter from crossing the line. Her organization is one of dozens opposing Pickering's nomination. "I think he underestimated the difficulty Pickering's record presents," Michelman said. A report to be released Tuesday from the Citizens' Commission on Civil Rights, a bipartisan group of former government officials and civic leaders, called the Bush administration's selection of judicial nominees -- especially Pickering -- part of a continuous erosion of the nation's civil rights laws. The groups lined up against Pickering, which run the gamut from the National Association for the Advancement of Colored People to the American Association of University Women, hope Pickering's nomination is buried by an unfavorable vote in the Judiciary Committee and the full Senate never has a chance to consider his candidacy. 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000396 "I'd be very difficult to defeat him on the Senate floor given Lott's power," Michelman said. On Feb. 4, in his second appearance before the panel, Specter and Democratic members of the Senate Judiciary Committee grilled Pickering for more than four hours. The embattled nominee was accused of improper conduct in presiding over a 1994 cross-burning case in Jones County, of writing an article in 1959 on Mississippi's law on interracial marriages that provided a blueprint for correcting a flaw in the statute and of voting in the Mississippi Senate in favor of spending bills that financed the anti-segregationist Sovereignty Commission. Pickering also was criticized for becoming the law partner of a former state official who was an avowed segregationist and for calling lawyers in Mississippi asking them to write letters in support of his candidacy. Sen. Russ Feingold, D-Wis., said Pickering's request for recommendation letters -- which the judge collected in his chambers and faxed to Washington -"creates an appearance of coercion" among the lawyers who bring cases before him. In addition, several Democrats, including Sen. Dianne Feinstein, D-Calif., accused Pickering of being "outside the mainstream" of legal though on civil and women's rights. Pickering objected to the characterization. "I do not think that my activities in all of the things I've done in my life are outside the mainstream," Pickering told the panel. "They indicate someone who has been concerned about these rights, and I have taken action to protect these rights." Pickering's Republican supporters say the judge had demonstrated "moral courage" in prosecuting Ku Klux Klan members and prodding Mississippi to abandon its segregationist past. Pickering Expected to Lose Judiciary Committee Vote By Paul Kane Roll Call Thursday, February 14, 2002 Despite increasing threats of retaliation from Republicans, Senate Democrats have dug in their heels to fight a controversial judicial nomination that has further poisoned the already strained relations between the two sides. Resistance to U.S. District Judge Charles Pickering's elevation to the Fifth Circuit Court of Appeals has only grown among Democrats on the Judiciary Committee since his unusual second hearing last week, according to interviews with activists, aides and Senators. With a one-vote edge on the panel, the 10 Judiciary Democrats have the power to sink the Pickering nomination, which has become a top priority for Minority Leader Trent Lott (R-Miss.), 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000397 a close Pickering friend for 30 years. Written follow-up questions to the Mississippi judge are due to be sent off today, but one Judiciary Democrat said his side is "ready to vote" and doesn't need any more information. Asked if Pickering could do more to help his cause, Sen. Dick Durbin (D-Ill.) said, "Idon't think so. ... He had ample opportunity to express himself." Sen. Maria Cantwell (D-Wash.), expressing concerns about his rulings on privacy, said she is "not likely" to vote for Pickering. Sen. Russ Feingold (D-Wis.) said he had grave concerns about Pickering's efforts to round up letters of support from home-state interests, questioning whether it was improper because some of those same people may have cases before his federal court. And Sen. Joseph Biden (D-Del.) said he was not certain of Pickering's "veracity" in responding to questions posed by Sen. John Edwards (D-N.C.) about a 1994 case in which the judge contacted Justice Department officials about sentencing. Although no Democrat would officially declare Pickering's nomination dead, aides and Senators privately said it was unlikely Pickering would receive the single Democratic vote he needs to get out of committee. That sentiment was backed up by Majority Leader Thomas Daschle's (D-S.D.) decision to take the unusual step of announcing his opposition to Pickering in two nationally televised interviews Sunday and Monday before Judiciary had rendered its verdict. GOP sources said Lott is personally incensed about the opposition to Pickering, which has been laced with racially tinged allegations regarding Mississippi's civil rights era. Lott is particularly irate at Daschle for taking such a public stance against his home-state friend. "Senate Democrats haven't really thought through the consequences of opposing this nominee. This is a political boomerang that's going to come back at them very hard," said one senior GOP aide. Lott has declined to spell out what retribution he will mete out for knocking down Pickering's appellate court bid, but he's made clear he will seek revenge. "It certainly will not be a positive thing for relations around here," he said this week. Another senior GOP aide said Republicans have grown so irate over Pickering's treatment and the perceived lack of response from Judiciary Chairman Patrick Leahy (D-Vt.) to take up more circuit court nominees that many Senators want to shut down all legislative activity on the floor. "There has been serious talk of just shutting down the whole damn Senate for however long it takes," the aide said. Republican Policy Committee Chairman Larry Craig (Idaho) said that Democrats, at the behest 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000398 of left-wing interest groups, have acted in a "strident, openly partisan" manner that will result in a shot back at them. "That's a game played that does have repercussions in the end," he said, predicting that Pickering's defeat could lead to "the inability of the Senate to function." "You have to operate with 60-plus votes,"he said, an indirect threat to block any moves to legislation on the Senate floor, which requires at least 60 votes. Last fall, in an attempt to confirm more GOP-nominated judges, Republicans blocked all appropriations bills for several weeks. Unbowed by the threats, Democrats are ready for the fights. "We'll be reminding them that this is better treatment than many Democratic nominees who never got a hearing, who never got a vote," said one Democratic aide. Echoing statements by Leahy and Daschle, Durbin said that Democrats have every intention of holding hearings and votes on controversial nominees. They will not take a "death-throughinaction" approach to nominees, he said, something Democrats accused Senate Republicans of doing with Clinton administration nominees in the 1990s. If all 10 Judiciary Democrats oppose a nominee, Durbin said the message will be sent to the White House and the nominee, giving him or her the chance to back out before actually being rejected. "We should make every effort to be sensitive to the nominees. If we are not going to support them, then they should be given every opportunity to make a final decision," he said. Republicans are particularly bitter about a potential committee defeat on Pickering, and any future judicial battles, because they know they can win a floor vote on the Mississippi judge. They expect to hold all 49 of their votes, and at least two Senate Democrats, Zell Miller (Ga.) and Fritz Hollings (S.C.), are willing to vote for Pickering if his nomination ever gets out of Judiciary and onto the floor. Miller said his main standard for a judge would be if the two home-state Senators support the nominee, which in this case both Lott and Sen. Thad Cochran (R-Miss.) do. Hollings, meanwhile, noted that the most salacious charges concern the judge's activities in the 1960s. "Iknow all of these charges they bring up, but I'll still vote for him. They haven't brought up anything recent. On the contrary, I think he's a fine judge," he said. Hollings dismissed allegations that Pickering had ties to segregationists in Mississippi in the civil rights era and suggested that a high standard such as that might disqualify a few people from serving in the Senate. "We've got leaders in the Senate that used to be members of the Klan," Hollings said, an apparent shot at Appropriations Chairman Robert Byrd's (D-W.Va.) past membership in the Ku Klux Klan more than 50 years ago. Republicans are particularly concerned about what a potential defeat in committee for Pickering 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000399 will mean for future appellate court nominees, such as Miguel Estrada and Jeffrey Sutton, who are younger, more ideologically conservative and potential Supreme Court nominees in the future. All 10 Judiciary Democrats fall within the liberal wing of the party on social issues. At least three - Biden, Edwards and Feingold - are considering presidential bids and would need the support of interest groups such as the NAACP and the National Abortion and Reproductive Rights Action League, both of which oppose Pickering. Biden said he was surprised to receive calls from his friends to put in good words for Pickering, who has been supported by Dicky Scruggs, the nation's leading anti-tobacco trial lawyer (and Lott's brother-in-law), and Charles Evers, the brother of slain civil rights activist Medgar Evers, among others. "A lot of people I Respect - people that aren't in politics - have called to say this guy's a good guy. I still have an open mind on this," Biden said. But Republicans are taking a believe-it-when-we-see-it approach, doubtful that any Democrat will cross the key liberal constituencies opposed to Pickering. "Unless there's going to be some Democrat that's going to look beyond the rhetoric that's being put out by the civil rights lobby, it's going to be pretty tough to get [Pickering] out of committee," said Sen. Chuck Grassley (R-Iowa), a senior Judiciary member. Hawaii’s Two U.S. Senators Approve Clifton Nomination The Associated Press Wednesday, February 13, 2002 Hawaii's two Democratic U.S. senators have approved the nomination of Honolulu attorney Richard Clifton to the 9th U.S. Circuit Court of Appeals. Sen. Daniel Inouye officially notified the Senate Judiciary Committee last week that he would allow the nomination of Clifton, counsel for the Hawaii Republican Party, to proceed, The Honolulu Advertiser reported from Washington. Sen. Daniel Akaka notified the committee on Monday. The committee has yet to schedule a hearing on the Clifton nomination. President Bush nominated Clifton in June, but the nomination stalled after the two Hawaii senators refused to approve Bush's choice because they were not involved in the selection. The Clinton administration had nominated Honolulu attorney James Duffy for the position, but the Senate, then led by Republicans, never acted on it. Courts: Enviros Question Appellate Court Nominee’s Background 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000400 By Brian Stempeck Greenwire Thursday, February 14, 2002 With the zeal normally reserved for Supreme Court nominations, environmental and other activist groups are attacking the records of appellate court nominees. Though a great deal of attention has been paid to the civil rights-related furor surrounding Judge Charles Pickering, the Bush administration's pick for the Fifth Circuit Court of Appeals, conservation groups are trying to shift the spotlight to controversial environmental decisions made by another nominee, Judge D. Brooks Smith, nominated to the Third Circuit. In a letter sent at the beginning of the month, a coalition of 27 environmental groups including the Earthjustice Legal Defense Fund, Defenders of Wildlife, the Alliance for Justice and the Community Rights Counsel called for the Judiciary Committee to investigate the track record of Smith. The groups say the Pennsylvania District Court judge has a history of ruling in favor of polluters and that Smith took all-expenses paid trips courtesy of corporations and special interests. But one of the groups that sponsored the judge's trips -- and some environmentalists themselves -- say the trips were in fact legitimate judicial seminars. SMITH'S ENVIRONMENTAL RECORD In the letter to the Judiciary Committee dated Feb. 1, the coalition identified four "antienvironmental rulings" authored by Judge Smith, including decisions related to pollution settlements, the takings clause and toxic dumping. The groups claim Smith accepted a biased plea bargain from Action Coal, Inc., a Pennsylvania coal mining company that illegally dumped acid mine drainage into a nearby stream. "Smith penalized the company only $50,000 for dumping, just one percent of the profit realized," the groups said, referring to the $5 million the company saved by not treating the waste instead. Action Coal has since disputed the amount it saved, however, said Glenn Sugameli of Earthjustice. But Smith's decision was only the federal side of the case, said Ted Kopas, a spokesman for the Pennsylvania Department of Environmental Quality. At the state level, Action Coal was forced to pay the "largest civil penalty in the history of Pennsylvania mining," said Kopas, setting up a trust fund to "ensure perpetual treatment of discharges on Action mining sites." Action Coal was forced to pay $625,000 to the state, he said. "Certainly we were satisfied with how we settled the situation. The watershed is in better health today than it has been in years." The environmental groups also mentioned a district court case, Wicker v. Conrail in which they say Smith unlawfully dismissed claims from railroad employees who had been exposed to toxic waste. "A three-judge Third Circuit panel that included two Reagan appointees unanimously reversed Judge Smith," the groups said in the letter. Other cases cited included: o Unity Real Estate v. Hudson, which the groups say "strongly 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000401 suggests that these property rights extremists would find a sympathetic ear in Judge Smith." * A case related to Wicker where Smith excluded testimony from a pathologist who felt toxic waste was responsible for one employee's death. Land and property rights advocates contacted had no comment regarding Smith's background or the cases involved. Justice Department officials did not return phone calls. "Environmental groups don't usually weigh in with judicial concerns," said Sugameli of Earthjustice. Of 34 judges confirmed under this administration, and 56 pending nominations, environmental groups have only raised concerns with Smith, Pickering and one other judge, he said. "Unfortunately the current crop seems to include a number of judges outside the mainstream." Smith's positions in particular are "much more extreme than anything the Supreme Court or any court has ever said." The letter is "technically not a position of opposition," he added, but is a call to investigate Smith's background further. The groups are also trying to stress that "lower court nominations can be as important as Supreme Court nominations," said Sugameli. Because the high court typically takes less than 80 cases a year, "the vast majority of decisions are made by circuit courts," he said. JUDICIAL JUNKETS The environmental coalition was also critical of the trips it says Smith took, trips sponsored by corporations and special interest groups. According to the Community Rights Counsel, Smith took 12 trips between 1992 and 2000. Doug Kendell of CRC called him "one of the most junketed federal judges in America," and the groups cite trips to "luxury resorts and dude ranches." But the Foundation for Research on Economics and the Environment (FREE), one of the groups sponsoring the trips for federal judges says CRC has misrepresented what are valuable seminars on environmental economics. Smith attended three FREE seminars in Montana between 1996 and 1998, said Doug Geddes, FREE program director, but "for those folks to imply that this is some sort of opportunity for the far right to come talk to judges is just nonsense." "We are accused of holding conferences at 'luxury' resorts," FREE said on its website in response to CRC criticisms. "Have you ever been to or spoken with representatives of our $110 a night conference facility, the Gallatin Gateway Inn?" CRC publicizes "a distorted and indeed dishonest caricature of FREE's environmental economics and risk analysis seminar series for federal judges," FREE says. In fact, members of some of the environmental groups criticizing Smith's nomination have even attended FREE seminars themselves. "Over the last twenty years I have attended several FREE programs, including a seminar for federal judges where I made a presentation," said Hank Fischer, former Northern Rockies Representative for Defenders of Wildlife, in a letter to FREE. "I have never attended a FREE program that didn't feature a full array of viewpoints," he said. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000402 "For instance, at the judges seminar where I gave my presentation, the judges also heard from Michael Bean of Environmental Defense (one of the nations most respected endangered species experts) and Doug Honnold of Earth Justice (one of the nations leading environmental litigants)." Nevertheless, with Sen. Russ Feingold (D-Wis.) -- who co-sponsored a bill outlawing judicial junkets with Sen. John Kerry (D-Mass.) -- on the Judiciary Committee, there will likely be plenty of interest in Smith's background, said Sugameli. A committee source said that although no date has yet been set for a hearing on Smith, "it's likely that his record on environmental issues and all-expense paid trips will come up." No senators in particular have yet expressed interest in probing Smith's background, the source said, but Sen. Maria Cantwell (D-Wash.) may take an interest. Supporters of Smith's nomination, including Sen. Rick Santorum (R-Penn.) had no comment on the environmental groups' allegations. Pickering’s Fate in Hands of ‘Undecideds’ By James Brosnan The Commercial Appeal Wednesday, February 13, 2002 A majority of Democrats on the Senate Judiciary Committee said Tuesday they remain undecided about whether to confirm U.S. Dist. Judge Charles Pickering of Mississippi to the Fifth U.S. Circuit Court of Appeals. Committee chairman Patrick Leahy (D-Vt.) said Pickering probably added to their concerns during his four-plus hours of testimony before the committee Thursday, but he has not polled the members and has not decided when to schedule a vote. Pickering, 65, of Laurel, Miss., has come under fire from civil rights, pro-choice and African-American groups. Pickering needs one of the 10 Democrats on the committee to support his confirmation if he can get all nine Republicans. "Obviously they (the Democrats) control the committee," said Sen. Thad Cochran (R-Miss.). I don't know the extent to which they're going to enforce discipline on all their members." Senate Majority Leader Tom Daschle (D-S.D.) closed one door Tuesday when he said he would not allow a full Senate vote on Pickering if he doesn't clear the Judiciary Committee. He will extend that privilege only on the President's Supreme Court nominees. One committee Democrat, Maria Cantwell of Washington, said she is "not likely to support Pickering" because he would not say whether he personally believes there is a right of privacy implicit in the Constitution. That right of privacy was the basis of the Roe vs. Wade ruling striking down state laws prohibiting abortion. Sen. Diane Feinstein (D-Calif.) also expressed concern about whether Pickering would follow 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000403 precedent in abortion cases. Senate Minority Leader Trent Lott (R-Miss.) said he believes Pickering still has a chance, even though he has been "unfairly besmirched." "This is not about Charles Pickering. It's not even about me," said Lott. "It's about, 'OK, we'll teach you that if you nominate any conservatives, people who are personally pro-life, even though they comply with what the Supreme Court has ruled, we're going to give you a hard time.'" Leahy responded, "I don't care what someone's personal view on abortion is. That was only one question." Sen. John Edwards (D-N.C.) said he has "very serious reservations" about Pickering's actions in a cross-burning case to pressure the Department of Justice to drop one charge against a defendant. Democrats Ted Kennedy of Massachusetts and Russ Feingold and Herbert Kohl of Wisconsin also said they have concerns, but have not reached a conclusion. Sen. Specter May Hold Judge’s Fate; The Moderate Republican is Mum About His Vote on Charles Pickering’s Appeal Court Nomination By Ben Bryant The Philadelphia Inquirer Wednesday, February 13, 2002 Sen. Arlen Specter's support was key to the confirmations of Supreme Court Justice Clarence Thomas in 1991 and Attorney General John Ashcroft last year. Now, the Pennsylvania Republican may be able to determine the fate of Charles W. Pickering Sr., the federal judge from Mississippi whom President Bush wants to fill a seat on the U.S. Court of Appeals for the Fifth Circuit. And Specter is not tipping his hand. Specter, one of the most liberal Republicans in the Senate, is the only Republican on the Judiciary Committee not to endorse the nomination of Pickering, who is a U.S. District Court judge for the Southern District of Mississippi. "He'll make up his mind when he makes up his mind," said Bill Reynolds, Specter's press secretary. If Specter does not support Pickering, Republicans will need to attract two of the committee's 10 Democrats to send the nomination to the floor. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000404 The situation indicates how much power Republicans lost last year when Sen. James M. Jeffords of Vermont left the party, swinging control of the upper house to the Democrats. Deprived of majorities on committees, Republicans are facing significant delays in moving Bush nominees through the Senate. Adding to their problems is the high-stakes nature of appeals court nominations. "A lot of the matters that don't make it to the Supreme Court get held up in the appeals courts," said Norm Ornstein, a congressional expert with the American Enterprise Institute in Washington. "Democrats want to have their say on who gets to sit on those benches." Sen. Orrin G. Hatch of Utah, the ranking Republican on the Judiciary Committee, said Democrats were working hand in hand with "leftist groups" to scuttle all Bush nominees. Thomas Mann, a Brookings Institution scholar in Washington, said there was a definite element of partisan warfare to the hearings, an aspect present since the 1987 scuttling of Robert Bork's nomination to the Supreme Court. "This is about more than Charles Pickering," Mann said. "This is about Bush and the Democrats." Specter's role is more complex. He has supported conservative nominees over his four terms in the Senate, drawing criticism from feminists over his skeptical questioning of Anita Hill, the law professor whose sexual-harassment allegations almost sank Thomas' appointment to the Supreme Court in 1991. Specter's support was key in holding other moderate Republicans in line for Thomas. His seal of approval on Ashcroft had similar power last year, when liberal Democrats were assailing Bush's nominee for attorney general on issues of abortion rights and race. Ashcroft eventually prevailed with the support of all Republicans and several Democrats. So what's holding Specter back from endorsing Pickering? "Abortion is a very important issue to him," a Democratic staffer on the Judiciary Committee said. "He wants to be sure to preserve a woman's right to choose." At Pickering's second confirmation hearing Thursday, Specter said he noticed a "curious ambivalence" toward reproductive rights and questions of sexual privacy in several of the judge's opinions. At the hearing, Democrats suggested Pickering was too far off-center on minority and women's rights. A Republican said the Democrats treated the judge as if he were a criminal. Thanks to their slim majority, Judiciary's 10 Democrats have enough votes to kill the Pickering nomination if all of them vote no. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000405 But Republicans may have a Plan B, said a Republican Judiciary staffer who asked not to be identified. Although the staffer did not name Democratic senators being pursued by the GOP to support Pickering, an aide to a House Democrat said Sens. Dianne Feinstein (D., Calif.) and Russell D. Feingold (D., Wis.) were possible votes for the judge. The vote will take place "probably in four to five weeks," a Judiciary spokesman said. The committee can vote to send the nomination to the full Senate with a favorable or unfavorable recommendation. It can also report Pickering to the floor with no recommendation. Or the full Senate can bring Pickering up for a vote by itself, discharging his nomination from Judiciary with a majority vote. To do that, Republicans would have to attract support across the aisle from conservative Democrats such as Zell Miller of Georgia and Ben Nelson of Nebraska. And, in what may be a harder task, they would have to hold onto the moderate-to-liberal members of their own caucus - Specter and several other Northeastern senators. Metairie Lawyer OK’d as U.S. District Judge The Advocate Tuesday, February 12, 2002 The U.S. Senate unanimously approved Jay Zainey of Metairie to be a U.S. District Court judge of the Eastern District of Louisiana on Monday. After his nomination, Zainey withdrew his family's membership from a Jefferson Parish country club after questions were raised about whether it discriminates against black people. U.S. Rep. Billy Tauzin, R-Chackbay, and former Gov. Dave Treen supported Zainey's nomination. Zainey was Treen's campaign spokesman in 1999, when the former governor ran and lost against David Vitter to succeed Rep. Robert Livingston in Congress. Zainey received a bachelor's degree from the University of New Orleans in 1973 and a law degree from LSU in 1975. He served as president of the state bar from 1995-96. While he was president, the bar voted to changes its rules of conduct and bar lawyers from sending targeted solicitation letters for 30 days after an accident or disaster. Zainey has served as an ad hoc judge in the First Parish Court and Juvenile Court in Jefferson Parish. As a defense attorney, Zainey represented Frank Bedell, the bus driver implicated after his death in a bus crash on Mother's Day, 1999, which killed 22 people. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000406 Louisiana's federal Eastern District court is in New Orleans. Civil Rights Panel Assails Bush Record CNN.com Tuesday, February 12, 2002 The Bush administration, backed by a conservative judiciary, is pursuing policies that will increasingly resegregate the United States, according to a new report issued by the Citizens' Commission on Civil Rights. The commission, founded as a bipartisan body in 1982 to monitor federal policies, said in a 350page report issued Tuesday that the country was witnessing a "judicial assault on civil rights," partly under cover of the war against terrorism. "The Bush administration seems determined to pursue policies that will widen the gap between the haves and have-nots," said William Taylor, acting chair of the panel. "We may awaken from our current preoccupation with national security to find ourselves a nation more divided, less equal, and therefore less secure, than before," he said. Although President Bush has only been in office slightly more than a year, the report said the direction of his administration seemed "ominous," especially on the issue of judicial appointments. "Fueled by an economic slowdown and the nation's ongoing war on terrorism, attention to civil rights issues, particularly those involving regulation and enforcement, has been almost nonexistent at a time when events demand just the opposite," the commission said. It was particularly critical of what it called the judicial dismantling of affirmative action programs that had sought to give women and minorities more opportunities in employment and education to make up for past inequities. "These decisions have reversed the progress of earlier years and led to a trend towards resegregating America," the report said. It said this trend was reinforced by failures to apply fair housing laws and the collapse of federal programs designed to give poor people access to affordable housing outside of inner-city ghettos. The Bush administration was spurring these developments by nominating conservatives opposed to using federal authority to protect civil rights to key positions, the report said. While the federal government and state and local authorities have poured billions of dollars into urban sprawl, helping construct the infrastructure for expanding suburban developments, it has allowed inner cities to decay while failing to invest in mass transportation, it charged. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000407 "The president came to office trumpeting a concept that he called 'compassionate conservatism.' In practice, after a year, we can see that it amounts to practical and policy tokenism. ... Compassionate conservatism is a sham," said Roger Wilkins, a professor of history and culture at George Mason University and a member of the commission. Wilkins said Bush's budget, delivered to Congress last week, crippled job training and community development programs that were needed to help poor parents provide a stable environment in which their children could succeed. In the criminal justice system, racial inequality was pervasive at all levels and growing, the report said. "Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased," it said. "Blacks, Hispanics and other minorities are victimized by disproportionate targeting and unfair treatment by police and other front-line law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials and other criminal justice policy-makers to redress the inequities that become more glaring every day," the report said. Op/Eds So Much for the Truth; Democrats Distort Nominee’s Record The Daily Oklahoman Wednesday, February 13, 2002 LIBERALS' scorched-earth strategy in dealing with President Bush's judicial nominations is well illustrated by the distortion job currently being done on U.S. District Judge Charles Pickering, Bush's choice to move up to the 5th U.S. Circuit Court of Appeals in New Orleans. Pickering, 64, who has served as a district judge in Hattiesburg, Miss., for 11 years, is being attacked by civil rights and women's rights activists in a style more typical of the assaults made on nominees of presidents in their seventh or eighth year in office, not their second. Detractors imply that Pickering is a racist because he worked to reduce the sentence of a man in a 1994 cross-burning case. They also don't like his opposition to abortion or his skeptical view of federal job-discrimination laws. For Democrats in the Senate who have slowed confirmations of Bush appointees to a trickle, this is red meat. And grossly unfair. In fact, as a young lawyer Pickering testified against the imperial wizard of the Ku Klux Klan and worked with federal law enforcement to arrest klansmen. He also worked to heal racial wounds in his community. As for abortion, he's never had to rule on the issue and has steadfastly 19 18-2091-B-000408 Document ID: 0.7.19343.7233-000001 maintained that a judge's role is to uphold the law. Concerning the 1994 cross-burning case, Pickering intervened because of a huge disparity he saw in the sentences recommended for the various defendants. He called the actions of one of the men a "drunken prank," but he also called it a "despicable act" deserving jail time. Still, he disagreed with a Justice Department civil rights lawyer about whether the man deserved a seven-year term when another defendant was recommended for only a minimal sentence. Democrats claim Pickering acted improperly by meeting with prosecutors in the case and by going over their heads to the Justice Department. All we know is that Pickering is praised by people who know him and his work in Mississippi. Among his supporters is James Charles Evers, brother of slain civil rights leader Medgar Evers, who would know a racist if he saw one. It seems to matter little to Democrats, who run the Senate by a one-vote margin. Pickering's nomination is just one of a bundle they have put into the deep freeze, mostly for purely partisan reasons. Last year they confirmed just 43 percent of Bush's judicial nominees, which trailed the confirmation rates of Ronald Reagan (91 percent), George H.W. Bush (62 percent) and Bill Clinton (57 percent) in their first years in office. Pickering, who received a "well qualified" recommendation from the American Bar Association, doesn't deserve this kind of treatment. He and other Bush nominees are entitled to more timely consideration by the Senate Judiciary Committee and up-or-down votes by the full Senate. The country deserves an end to the partisanship on Bush's judicial appointments. Passing Judgement Intelligencer Journal Tuesday, February 12, 2002 Sen. Orrin Hatch's selective memory is showing once again. As chairman of the Senate Judiciary Committee during the Clinton administration, Hatch and his colleagues held up hundreds of judicial appointments. Last week, in defense of Charles W. Pickering Sr., a Mississippi judge whose actions and decisions in the arena of race and the law have raised questions about his fitness to serve on the U.S. Court of Appeals for the 5th Circuit, Hatch accused Democrats colleagues of working handin-hand with "leftist groups that want to inject political litmus tests into the confirmation process. "Frankly," he said, "I get a little sick of these things that seem to happen here every time we get a Republican president (making judicial nominations)." 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000409 His remark evoked the appropriate guffaws from Pickering critics in the gallery, as they should. In a thinly veiled reference to Hatch and Senate Republicans, Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., said he will schedule confirmation hearings "at a pace that will exceed the pace of the past six years." In fact, Hatch told The Washington Post that the real test for Leahy's committee will be if they can match the 100 confirmations that occurred during Clinton's second year in office. To that end, he said, the committee is off to a good start. That list, however, should exclude Pickering. As a young attorney in 1959, he offered legal advice on ways to enable Mississippi to criminalize interracial marriage. He also has been linked with Mississippi's Sovereignty Commission, which spied on civil rights and labor groups. While Pickering has maintained he had no ties to the group, he did vote to fund the organization in 1972 and 1973, and a 1972 commission memo lists his name as one of the state lawmakers who wanted to be kept informed of the group's activities. To counter those accusations, his supporters point out that in the late 1960s he helped prosecute the Ku Klux Klan in Mississippi, and that his views at that time, were not unique in the South. But during an unusual second hearing last week, evidence was presented suggesting that his past continues to color his present. In a 1994 case involving a cross-burning, Pickering was upset about the stiff, 7-year sentence proposed for Daniel Swan, a 20-year-old who joined two accomplices. According to Justice Department files, the judge met privately with prosecutors and threatened to order a new trial unless they agreed to a lesser sentence. When they refused, documents show, he contacted a Justice Department official in Washington. The defendant eventually received a 27month sentence. Pickerings' actions, said some senators, appear to have violated the judge's code of conduct. This is not, as some have claimed, a witch hunt into Pickering's past, but a compilation of the sum and total of his actions. The 5th Circuit of the U.S. Appeals Court covering Mississippi, Louisiana and Texas has been called a trailblazer on desegregation and voting rights in the past. Little wonder Pickering faces opposition. He should not be confirmed. Appeals Court Nominee Has Earned Our Support Women’s Bar Association of Western Pennsylvania Pittsburgh Post-Gazette Thursday, February 14, 2002 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000410 We are writing in response to the Feb. 9 article reporting that a group called the Feminist Majority is among a coalition that is "mounting a campaign against President Bush's nomination of Western Pennsylvania's Chief U.S. District Judge D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals" ("Appeals Court Nominee Targeted"). We feel compelled to respond. On behalf of the executive board of the Women's Bar Association of Western Pennsylvania, we support, without reservation, the nomination of the Honorable D. Brooks Smith to the 3rd Circuit Court of Appeals. Since his appointment to the U.S. District Court for the Western District of Pennsylvania, we have had the pleasure of appearing before Judge Smith as federal prosecutors, defense attorneys and sole practitioners, as well as members of large national law firms. He has always treated each of us and our clients, both individuals and corporations, with dignity and respect. We have found Judge Smith to be a person of high integrity. He is exceptionally intelligent, thoughtful, hard-working and conscientious. When appearing before Judge Smith, you can be assured your case and issues will receive fair and thorough consideration. The public should be aware that the American Bar Association rated Judge Smith as well qualified for the 3rd Circuit Court of Appeals and the Allegheny County Bar Association gave Judge Smith its highest rating, highly recommended. Judge Smith has consistently attended and supported events sponsored by the Women's Bar Association. This year, we asked him to speak at our annual Susan B. Anthony Award presentation, which is in honor of Mary Beth Buchanan, Western Pennsylvania's first appointed female U.S. attorney. Judge Smith was chosen to speak because of his contributions in creating a good working relationship between attorneys and the judiciary, and because of his commitment to eradicating gender bias in the court system. Last year, our organization prepared and presented a report to the Supreme Court of Pennsylvania committee on racial and gender bias in the justice system. In interviewing attorneys to prepare the report, we did not receive a single complaint concerning Judge Smith. Based on our personal experience, as well as this study (through which a complaint could be made anonymously), any suggestion or insinuation that Judge Smith is sexist or gender-biased is simply not true. SHELLY R. PAGAC Co-President CYNTHIA REED EDDY Co-Chair of Judiciary Committee Women's Bar Association of Western Pennsylvania Living in a State of Constitutional Denial By Jonathan Turley 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000411 The Chicago Tribune Sunday, February 10, 2002 Liberal Democrats appear these days to be slowly moving through the stages of loss first defined by psychiatrist Elizabeth Kubler- Ross: denial, anger, bargaining, depression and acceptance. A recent proposal by University of Chicago law professor Abner Mikva would suggest that some Democrats remain mired somewhere between denial and bargaining. Mikva recently put forward a theory that has the hearts of many die-hard Democrats racing with anticipation: President Bush should be barred from filling any vacancies to the U.S. Supreme Court during his current term. Cloaked in constitutional and historical arguments, Mikva insists that any Supreme Court appointments should be delayed until the next presidential election in two years. With Bush's popularity at a historic high, Mikva appears to be moving from denial to anger to bargaining. Mikva grudgingly accepts that Bush is president, though in a Washington Post commentary he emphasizes that Al Gore won the popular vote. This is suggested as somehow significant despite the facts that the popular vote margin was statistically razor thin; that previous presidents have been elected on the electoral but not the popular vote; and that, in our constitutional electoral system, popular vote is legally meaningless. Yet this image of an election stolen creates a useful appearance of victimization for Mikva and others in advancing this proposal. It is not that we are trying to subvert the constitutional process, we have been injured and deserve recourse. Otherwise, Mikva's proposal is nothing more than a raw partisan shutdown of the president's prerogative to fill Supreme Court vacancies. The real motivation for this proposal, however, lies elsewhere. Mikva notes that the Supreme Court could easily have as many as three vacancies during Bush's term and he asks menacingly: "What kind of person would President Bush nominate?" Clearly, not a person to Mikva's liking. The solution for Mikva is simply to divvy up powers with Bush like hostile roommates locked into a multiyear lease: Bush can continue to wage war and enjoy the trappings of office but the Supreme Court would be off-limits. His reasons are many but few withstand serious review. First, Mikva argues that nothing in the Constitution requires nine justices and that historically there have been long periods of delay in the confirmation of nominees. This ignores that modern delays in confirmation have been due to concern of an individual's qualifications, not some categorical denial of the right of a president to place qualified people on the court. Mikva also argues that it would be unseemly to allow the president to add to a court that "itself made the final decision as to who should be president." Mikva again chooses to ignore that voters chose this president through our constitutional electoral system. As it turns out, the people of Florida and the rest of the country made the final decision as to who should be president. Mikva simply notes that "there is still unhappiness" about the court's decision, an empirical observation apparently based on his conversations with other 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000412 unrequited Gore supporters. Mikva labels the current Supreme Court as an "activist" court that only needs a couple of new votes to reshape laws in an image that Mikva finds unacceptable. He apparently prefers his own image. For years, conservatives criticized Mikva as one of the most liberal members of Congress when he represented the 10th Congressional District and later as one of the nation's most liberal judges in Washington D.C. Long accused of continuing his legislative career from the bench after leaving Congress, Mikva's labeling of any court as activist is rather disorienting. Mikva's suggestion would seriously weaken our constitutional system by creating ambiguities in authority or questions of legitimacy. Mikva would create a precedent for members of Congress to categorically refuse nominees by presidents under certain undefined circumstances. It is not simply a bad idea, it is a dangerous one. The sooner this bizarre theory is put to rest the sooner Mikva and others may reach the stage of Kubler-Ross that most voters reached last January: acceptance. Judge Pickering’s Past By Marcia Greenberger The Washington Post Thursday, February 14, 2002 In the Feb. 8 news story "Democrats Challenge Choice of Mississippi Judge," District Court Judge Charles W. Pickering reportedly said that the reason he repeatedly rules against people with employment discrimination claims is because most claims of merit are resolved by the federal Equal Employment Opportunity Commission (EEOC). Judge Pickering is wrong. The EEOC has a backlog of nearly 35,000 cases, so those needing a timely resolution of their claims can hardly depend on the commission to provide it. In those cases where the EEOC does offer mediation as an option, both parties must agree. Although most employees who file discrimination complaints with the agency agree to mediation, almost two-thirds of employers decline -- thus giving victims of discrimination little choice but to pursue their claims in court. Finally, given its resource constraints, the EEOC typically litigates only 3.5 percent of the charges in which it finds reason to believe that discrimination has occurred. A judge who approaches the employment discrimination cases that come before him with the misguided preconception that they must be without merit -- because otherwise they would have been resolved by the EEOC cannot be counted on to uphold the laws and the constitutional protections that guarantee civil rights and equal opportunities for all citizens. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000413 Judge Pickering should not be elevated to the 5th Circuit. MARCIA D. GREENBERGER Co-President National Women's Law Center Fight Over Judge Replay our Bitter History By Clarence Page The Atlanta Journal-Constitution Wednesday, February 13, 2002 Supporters of U.S. District Judge Charles W. Pickering Sr. compare his confirmation hearings to the McCarthy era. That critique misses the point. I'd compare it to the Nuremberg Trials--or, better yet, to South Africa's Truth and Reconciliation Commission. Are those comparisons too harsh? Not for those of us who were on the receiving end of the racial apartheid that Pickering once helped to uphold. Questions about his past explain why his nomination to the U.S. 5th Circuit Court of Appeals in New Orleans has become President Bush's first big judicial confirmation fight. Pickering's Feb. 7 hearing went all the way back to his college days to dig up tidbits like the article he penned in 1959 as a 21- year-old law student in the University of Mississippi Law Journal. Without expressing a hint of moral reservation, it suggested how the state could salvage its overturned ban on interracial marriages to "serve the purpose that the legislature undoubtedly intended it to serve." It was just an "academic exercise," Pickering says now. But some observers were not impressed, especially those of us who remember how disregarding the "white" and "colored" signs on restrooms, water fountains and restaurants in the South could get you killed. "This hearing is a painful recollection of America's civil rights history," said Sen. Dick Durbin (D-Ill.), who was one of Pickering's toughest interrogators during his hearing. (The committee probably will vote by the end of the month on Pickering's confirmation.) Yes, such recollections apparently are so painful that Pickering had some trouble recalling all that he was doing at the time. Take, for example, his alleged associations with his state's notorious Sovereignty Commission. From 1956 to 1973, that supersecretive body devoted itself to protecting the state's "sovereignty," meaning its racial segregation laws and traditions, against the U.S. Supreme Court and other pesky Washington intrusions. 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000414 It spied on civil rights groups and targeted civil rights sympathizers for firings, beatings and maybe even killings. Leaked documents revealed that the commission secretly helped the defense team of avowed racist Byron de la Beckwith, who escaped punishment in two trials for the 1963 murder of civil rights leader Medgar Evers. He finally was convicted in 1994 after the documents leaked out. Pickering testified in 1990, when appointed by the first President Bush, that he had no contact with the commission. He further denied that it was still in business in the 1970s when Pickering was a state senator. Yet a document that was unearthed when the commission's files were opened to the public in 1998 showed Pickering's response to be less than truthful. As a state senator, the document indicated, he had "requested to be advised of developments" in a labor dispute in Laurel, Miss., in the early 1970s. "If I were making that decision today, I would not do it," Pickering replied to Durbin's questioning. Pickering also denied that former Mississippi Lt. Gov. Carroll Gartin, who was Pickering's law partner from 1961 to 1971, was a segregationist. But Pickering changed that tune when Durbin waved copies of an old campaign ad. It showed Gartin waving a pen with which, he declares in the ad, he "will veto any effort to weaken our defenses around our Southern way of life." Pickering said he believed Gartin was "trying to move the state forward and still stay in politics." Right. Sometimes you have to go along to get ahead. With that in mind, Pickering deserves praise for courageously testifying in 1967 against Sam Bowers, a Ku Klux Klan leader who was being tried for the firebombing death of Vernon Dahmer Sr., a civil rights leader who was helping blacks register to vote. Pickering's testimony against Bowers cost Pickering his re- election as the local prosecutor, Medgar Evers' brother Charles Evers wrote in a Wall Street Journal piece in support of Pickering. On the other hand, William Taylor, a Washington lawyer who served on the Washington, D-C.-based Citizens' Commission on Civil Rights at that time, pointed out that, by that time, even the white establishment of Mississippi had begun to decide that Klan violence was bad for business. And Charles Evers, who went on to become a civil rights leader and a small-town mayor before switching from the Democratic to the Republican Party, was listed in the Sovereignty Commission's documents among the 5,000 tipsters, black and white, who informed on their neighbors. When Time magazine asked him about it in 1998, he was quoted as saying, "If 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000415 you don't know who your enemies are and talk to them, how are you going to deal with them." Yes, if Charles Evers sees the value in going along to get ahead, he probably learned it from the masters of the game. Bush should withdraw this nomination to spare the nation and his administration any more pain. Do the Crime, Do the Time By Thomas Jipping WorldNetDaily Thursday, February 14, 2002 Senate Democrats say Republicans blocked President Clinton's judicial nominees when they ran the Senate. It's odd, though, that Republican "obstruction" still resulted in confirmation of a lot of radical judges. Two of Mr. Clinton's most radical nominees were Richard Paez and Marsha Berzon. Republicans resisted for a time, and then-Majority Leader Trent Lott promised in September 1999 not to bring up the nominations "unless we have the votes to defeat them." Yet the obstructionist Republican Senate confirmed them both on March 9, 2000, and today they are among Mr. Clinton's 14 appointments to the activist U.S. Court of Appeals for the Ninth Circuit. Three cheers for Republican obstruction. In 1994, nearly three-fourths of California voters said habitual criminals were not first-time offenders, enacting the "Three Strikes" law requiring at least 25 years behind bars for a third serious or violent felony. The legislature determines, and can always change, the definition of a serious felony, but the people decided that multiple serious felonies deserve more serious punishment. Californians may have been what one reporter called the "world's largest legislature" when they enacted this law, but last November they met the world's smallest legislature. And Judge Richard Paez won, ruling that using it exactly as Californians intended results in unconstitutional cruel and unusual punishment. The people said to look at the last felony in light of the others; Judge Paez looked at the last felony by itself, concluding that a 25-year sentence was "grossly disproportionate" to the crime. Judge Marsha Berzon, confirmed on that same fateful day by that same obstructionist Republican Senate, has now had a crack at it. Earnest Bray had been convicted of four counts of robbery, Richard Brown of at least five serious or violent felonies including second degree murder, assault with a deadly weapon, and robbery. They had chosen a life of crime and those prior crimes converted a subsequent offense from a misdemeanor petty theft into a felony petty theft "with a prior." Conviction of this third (actually, fifth for Bray and sixth for Brown) felony 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000416 required a minimum sentence of 25 years. They kept doing the crime so they were finally to do some time. Opponents of "Three Strikes," however, did not stop when they lost at the polls in 1994. Leftist law professor Erwin Chemerinsky looked for cases in which, no matter what the rap sheet, the latest felony looked relatively minor. Though under "Three Strikes" the rap sheet helped determine the sentence, if a judge looked only at the small tip of the criminal iceberg, he might say the sentence did not fit the crime. Bingo Mr. Chemerinsky hit pay-dirt with Mr. Clinton's liberal activists out there on the left coast. (Mr. Chemerinsky, by the way, is now helping bring the lawsuit alleging mistreatment of foreign terrorists in Guantanamo Bay, Cuba. Yes, that Chemerinsky.) Joined by liberal activist poster boy Stephen Reinhardt and fellow Clinton appointee A. Wallace Tashima, Judge Berzon did her part. Going to prison for 25 years for petty theft or shoplifting would, by itself, strike most people as a little much or, in legalese, "grossly disproportionate." The point is, of course, that neither of these career criminals had received that sentence for that crime. That's not, however, how it works in judicial activist-land. There, reality is whatever the judge says it is. Judge Berzon looked at petty theft itself what she called the "core conduct" of the crime for which Bray was convicted. But then homicide is the "core conduct" of both involuntary manslaughter and first-degree murder. It's the other circumstances that define the actual crime and resulting sentence. Bray chose to commit the "prior" that turned his petty theft from a misdemeanor into a felony. Never mind, Judge Berzon's version of the law is what matters and that's what she struck down. Democrats planned all along to block President Bush's judges. In May 2000, six months before the election, Sen. Joe Biden said: "If Bush is elected … we will see most of the judges stopped who are Republican." Even after Sept. 11, Sen. Biden said: "We are not united on the makeup of the Supreme Court." Democrats planned to justify their obstruction by accusing Republicans of it, whether it had actually happened or not. If Republicans had only lived up to their billing, perhaps judges like these would not be overturning the people's decisions and dismantling the criminal justice system. Instead, the accusation of fake obstruction is keeping Bush judges from balancing the activism of judges that some real obstruction could have prevented. Don’t Confirm Pickering: Appeals Court Nominee Carries Too Much Baggage The Register-Guard Tuesday, February 12, 2002 Charles Pickering, a federal trial judge in Mississippi and now President Bush's nominee for the 5th U.S. Circuit Court of Appeals, has become something of a political lightning rod. 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000417 Civil rights and pro-choice advocates strongly oppose his nomination. Some Democrats are raising questions about a possible violation of the judicial canon of ethics because of a phone call Pickering made to one party in a 1994 trial over a cross-burning incident. Conservatives and, most particularly, U.S. Senate Minority Leader Trent Lott, R-Miss., strongly support the nominee as a principled, courageous judge. On the civil rights front, Pickering's opponents have reached back to 1959, when Pickering was a law student and wrote a three-page note for the school's law review, pointing out flaws in Mississippi's anti-miscegenation law prohibiting marriages between blacks and whites. The note said that the law was vulnerable unless the state legislature made changes. The suggested changes were made. Questions have also been raised about an alleged connection in the 1960s to the notorious Mississippi Sovereignty Commission, which sought to maintain segregation in the state. Pickering has said he had no contact with the commission, but a document disclosed in 1998 showed that, as a state senator, he asked a commission official to inform him of labor unrest in his home county. And, finally, Sen. John Edwards, D-N.C., raised the ethics issue relating to the phone call. Pickering's supporters told the Senate Judiciary Committee that Pickering was not and had never been a racist and that it was unfair to reach back 40 years to find fault. Others said the judge had helped, not hindered, the recruitment of black Mississippians to run for public office. And Pickering himself testified at the committee's confirmation hearing that he didn't consider his phone call to the U.S. Justice Department to complain about a mandatory five-year sentence for the cross-burner to be a violation of judicial ethics. The Pickering nomination is seen as a precursor to later Bush nominees to the federal bench. With Democrats in control of the Senate, the president would do well - for himself and for the country - to choose middle-of-the-road nominees and not conservative ideologues. Lott's support for Pickering will certainly help the nominee on the political front, but what's at stake here is the judiciary, not hometown buddies and political cronies. Charles Pickering's background suggests a mixed view on race, a strong opposition to women's right to choose an abortion, a possible fib about his connection to the Mississippi Sovereignty Commission and a relaxed view of judicial ethics. None of that adds up to a good reason to put him on the appeals court that covers Mississippi, Louisiana and Texas. If anything, it adds up to a reason to reject his nomination. The Senate should do just that. Transcripts/Members of Congress Newsmaker: Sen. Tom Dashchle PBS Newshour with Jim Lehrer Tuesday, February 11, 2002 29 18-2091-B-000418 Document ID: 0.7.19343.7233-000001 *EXCERPT* JIM LEHRER: Finally Senator, yesterday you said you were going to oppose the nomination of Federal District Judge Charles Pickering--nominated to go to the Circuit Court of Appeals in New Orleans. He's from Mississippi; he's a close friend of Senator Lott (R-Miss.) that you're going to oppose the nomination. Why? SEN. TOM DASCHLE: Well, because I don't think that Mr. Pickering is qualified at this point. I think that there are some very serious questions about his ability as well as his background and it causes me concern. So while I certainly believe he has every right to be - to have his case heard, for a vote to be taken, unlike our Republican colleagues, who would sit on nominations for years, we're going to have a vote in committee, and if it reaches the floor on the floor, but when that vote is cast, I've made the decision to oppose his nomination. JIM LEHRER: It has to do with what he has done as a federal district judge or what he did earlier as a state senator, or what? SEN. TOM DASCHLE: Well, I think a combination of things, Jim. I'll have a lot more to say about it as the nomination comes to the floor, if it does, but I believe that we can do better than that, and I've expressed myself in that regard. JIM LEHRER: Senator Daschle, thank you very much. Interest Groups/Press Releases Letter to the Wall Street Journal Editorial Board People for the American Way Tuesday, February 12, 2002 Having been attacked some two dozen times over the years on the editorial page of the Wall Street Journal, I was not surprised by the February 8 editorial regarding the opposition of People For the American Way to the confirmation of Charles Pickering to the United States Court of Appeals for the Fifth Circuit. The Journal’s editorial page, of course, has long been known as the national chat room of right wing conservatism. Far too often that page has been characterized by vitriolic, shoddy, and irresponsible journalism. For these reasons, I rarely respond to Journal diatribes. However, given what is at stake with the Pickering nomination specifically, and the broader right-wing campaign for ideological domination of the federal judiciary, I am compelled this time to respond. 30 18-2091-B-000419 Document ID: 0.7.19343.7233-000001 Your editorial fails to note the opposition to Pickering’s confirmation from the Mississippi NAACP and the Magnolia Bar Association, a predominantly African American bar association in Mississippi. His confirmation is also opposed by the Congressional Black Caucus and by a large and diverse coalition of national organizations, including People For the American Way. After carefully reviewing Judge Pickering’s record, these organizations have come to the conclusion that Pickering’s confirmation to the Fifth Circuit would pose a significant threat to the rights and freedoms that Americans hold dear. With respect to the Journal’s attack on the Democratic members of the Senate Judiciary Committee, particularly Committee Chair Patrick Leahy, the very thought that anyone could control the members of the Senate is absurd. Indeed, the editorial is a transparent attempt to intimidate the Judiciary Committee Democrats, and is sadly typical of the tactics employed throughout the years by the Journal’s editorial page. Rather than deal with Judge Pickering’s record, the editorial calls me a "race-card specialist" for having the temerity to address Pickering’s disturbing record on civil rights. It is a sad day in America when legitimate concerns about a judicial nominee’s record on civil rights cannot be raised without those expressing such concerns being attacked in this manner. It is the obvious aim of such mud-slinging not only to discourage the careful scrutiny required of any judicial nominee but to deflect attention from the nominee’s actual record. People For the American Way has carefully examined Judge Pickering’s long public record, focusing particularly on his record as a Mississippi state Senator and later as a federal district court judge. That record is one of insensitivity and hostility to key principles and laws protecting the civil rights of minorities, women, and all Americans. For example, ignored by the Journal editorial is the fact that Pickering, as a judge, has criticized the fundamental "one-person one-vote" principle recognized by the Supreme Court under the 14th Amendment. Also, he has suggested that large deviations from equality in drawing legislative district lines, which the Supreme Court has held presumptively unconstitutional, were "relatively minor" and "de minimis." And, as a judge, Pickering has also criticized or sought to limit important remedies provided by the Voting Rights Act. In addition, in a number of cases involving claims of employment discrimination, Pickering has inserted severe criticisms of civil rights plaintiffs and the use of civil rights statutes, disparagingly stating that the courts "are not super personnel managers charged with second guessing every employment decision made regarding minorities." (See Report of People For the American Way Opposing the Confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit ["PFAW Report"], pgs. 4-7.) As a Mississippi state Senator, Pickering supported voting-related measures that helped perpetuate discrimination against African Americans. For example, in 1973, Pickering voted for a partial Senate redistricting plan that harmed minority voting rights by continuing to provide for county-wide voting in a populous county rather than creating single-member districts. In 1975, Pickering voted for a broader Senate-passed measure that similarly provided for county-wide district voting. Also in 1975, when Congress was to renew Section 5 of the Voting Rights Act mandating pre-clearance of voting changes in jurisdictions with a history of discrimination like 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000420 Mississippi, some legislators opposed it. Pickering co-sponsored a Mississippi Senate resolution calling on Congress to repeal the provision or apply it to all states, regardless of their discrimination history. (See PFAW Report, pgs. 7-9.) In addition, Pickering voted twice as a Senator (in 1972 and 1973) to appropriate state monies to fund the notorious Mississippi Sovereignty Commission, created by the state after Brown v. Board of Education to resist desegregation. At Pickering’s first confirmation hearing, in 1990, he told the Judiciary Committee that "I know very little about what is in those [Commission] records. In fact, the only thing I know is what I read in the newspapers." And while Pickering denied under oath, at his 1990 hearing, having had any contact with the Sovereignty Commission, a subsequently released Commission memorandum dated January 5, 1972 stated that "Senator Charles Pickering" and two other state legislators were "very interested" in a Commission investigation into union activity that had resulted in a strike against a large employer in Laurel, Pickering’s home town. Also according to this memorandum, Pickering and the other legislators had "requested to be advised of developments" concerning the union investigation, and had requested background information on the union leader. (See PFAW Report, pgs. 7-10.) Confronted with this Commission document that conflicts not only with Pickering’s 1990 denial of contact with the Sovereignty Commission but also with his professed lack of knowledge about the Commission, Pickering suggested at his February 7, 2002 hearing that he was worried about Ku Klux Klan attempts to infiltrate the union. The Sovereignty Commission, however, worked to infiltrate and spy on civil rights organizations and to obstruct desegregation, hardly the group to which one would turn if concerned about the Klan, as Senator Durbin observed at the February 7 hearing. Moreover, the Commission memorandum itself contains no foundation for the suggestion that Pickering’s request had anything to do with the Klan. To the contrary, it states that the request from Pickering and the other legislators was to be "advised of developments in connection with SCEF [Southern Conference Educational Fund] infiltration of GPA [Gulfcoast Pulpwood Association] and full background on James Simmons [President of the GPA]." None of these troubling facts is even mentioned in the Journal editorial. Completely ignoring Pickering’s record in the state Senate, the editorial goes back farther in time and attempts to minimize Pickering’s role in Mississippi’s shameful history of prohibiting and penalizing interracial marriage. As a law student, Pickering wrote an article advising the Mississippi legislature how to fix a loophole in the state’s law making interracial marriage a felony punishable by up to ten years in prison. The loophole had rendered the law unenforceable; Pickering’s advice, which the legislature promptly took, enabled the law to be enforced. (See PFAW Report, pgs. 10-12.) Defending Pickering, the Journal claims that Pickering’s article "was supposed to be presenting a neutral analysis of the law," as though neutrality in the face of such an utterly repugnant law was somehow praiseworthy. Moreover, the article was not neutral at all, but rather a prescription for curing the legal defect in the law. And while Pickering has testified at his confirmation hearings to a current belief that who one marries is a personal choice that should not be regulated, at none of his confirmation hearings has he even expressed regret over having written the article. To the 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000421 contrary, as recently as last week at his confirmation hearing, Pickering has tried to characterize the article as an "academic exercise." But there was nothing "academic" at all about these laws, which harmed real people, or about Pickering’s advice to the legislature that the law "should" be amended, or about the fact that the legislature did amend the law as he had suggested, making it enforceable. The Journal falsely accuses us of being concerned only about Pickering’s article, which your editorial excuses as youthful indiscretion, conveniently ignoring the concerns specifically expressed in our report about Pickering’s far more recent efforts to minimize the article at his confirmation hearings. (See PFAW Report, pgs. 9-11.) Instead, the Journal editorial rests its entire view of Pickering’s civil rights record on Pickering’s brief testimony given in a 1967 trial against a leader of the Klan. It is true that this was a courageous and commendable act. But the act itself does not mean, as the Journal suggests, that Pickering has been a champion of civil rights, or even that the testimony was motivated by opposition to the Klan’s racist activities. Neither we nor the Journal’s editorial writers can know Pickering’s motivations. In fact, it appears from a book written by Chet Dillard, one of Judge Pickering’s supporters, that Klan violence at that time in Mississippi was hurting the white business establishment in Laurel, Pickering’s home town. Dillard’s book also includes the following portion of a public statement regarding Klan violence issued in the mid-1960s by the local District Attorney (Dillard), the sheriff of Jones County, the Mayor of the City of Laurel, the county attorney (identified elsewhere in Dillard’s book as Charles Pickering) and the Laurel Chief of Police: We, the undersigned elected officials and public officers charged with the responsibility of protecting you and your property, wish to publicly state and make known our position and intentions concerning certain acts of violence which have recently taken place in Jones County. While we believe in continuing our Southern way of life and realize that outside agitators have cause [sic] much turmoil and racial hatred, let there be no misunderstanding, we oppose such activities, but law and order must prevail. W.O. Dillard, Clear Burning, at 119 (emphasis added). In any event, the charge against Judge Pickering is not that he is a racist, which is nothing more than a straw person set up by the Journal for debunking by reference to his 1967 testimony. In evaluating Pickering’s commitment to progress on civil rights and hence his qualifications for a lifetime appointment to the court of appeals, of far greater relevance than one act taken 35 years ago is how he subsequently handled broader civil rights issues as a state Senator and then as a federal trial judge. In those important and influential public positions, Pickering has been sorely wanting, as his record reveals. (See PFAW Report, pgs. 4-12.) Ignoring that record, the Journal moves on to a different subject and criticizes us for our concern about Judge Pickering’s use of his official judicial position to promote religion and religious practices. In a speech made in 1984, before he became a judge, Pickering stated that the Bible should be "recognized as the absolute authority by which all conduct of man is judged . . . ." He was asked about this by the Senate Judiciary Committee at his 1990 confirmation hearing, and whether he would have any problem separating his religious beliefs from his role as a 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000422 judge. He assured the Committee he would not. But his record since becoming a judge indicates that he has had such difficulty. Indeed, the Almanac of the Federal Judiciary, an independent publication that profiles all federal judges, contains this statement from one lawyer who has practiced before Judge Pickering: "He is the judge who concerns me the most. He’s a fine person, but he’s almost so pious that it interferes with his assignment as a judge." As we stressed in our report, our concern does not relate to Judge Pickering’s personal religious beliefs. Judge Pickering, like every American, is entitled to hold and to practice his religious beliefs. But it is inappropriate for a federal judge, acting in that capacity, to attempt to promote those beliefs or suggest to those appearing before him that they should undertake particular religious practices or bring religion into their own lives. As the Supreme Court has recognized, "a union of government and religion tends to destroy government and to degrade religion." (See PFAW Report, pgs. 20-24.) The Journal editorial wrongly accuses us of criticizing Judge Pickering because he has published fewer than 100 of the approximately 1,100 written decisions he estimates he has issued in his 11 years on the bench. The editorial misses the point entirely, which is that it would have been premature for the Senate Judiciary Committee to consider Judge Pickering’s nomination without having copies of his unpublished decisions, decisions that form the bulk of his record as a district court judge and are unquestionably relevant to his qualification to sit on the court of appeals. Nonetheless, Senator Trent Lott, a friend of Pickering’s and his Senate patron, pushed for Pickering’s consideration by the Senate Judiciary Committee last fall even though Pickering’s unpublished decisions were not available. The efforts by Senator Lott to bring about this irresponsible act was political maneuvering at its worst. Fortunately, Senator Leahy takes seriously the Senate’s constitutional role in examining and consenting to judicial nominees, and insisted that Judge Pickering provide his unpublished decisions to the Judiciary Committee. Even then, scores of those decisions were not provided to the Committee until the eve of Pickering’s hearing on February 7, and more than 100 still have not been produced, additional points overlooked by the Journal. Another critical point about Judge Pickering’s decisions is the record of his reversals by the Fifth Circuit, also ignored by the Journal. In 15 of the 26 cases that Pickering has been reversed by the Fifth Circuit, it has been through unpublished decisions by the court of appeals. According to Fifth Circuit rules, unpublished decisions are used to decide "particular cases on the basis of well-settled principles of law." Eleven of those 15 cases in which Pickering, according to the Fifth Circuit, violated "well-settled principles of law" involved constitutional, civil rights, criminal procedure, or labor issues, further raising troubling concerns about Pickering. Moreover, Pickering is one of two district court judges within the Fifth Circuit nominated by President Bush to that court of appeals. The other, Edith Brown Clement, who was recently elevated to the Fifth Circuit after serving as a district court judge for a slightly shorter period than Pickering, was never reversed in an unpublished opinion by the Fifth Circuit, according to the information that she provided to the Senate. (See PFAW Report, pgs. 11-16.) The Journal editorial next moves to an attack on the Judiciary Committee for failing to hold hearings on 21 of 23 pending appellate court nominations. In fact, since June, when the Senator Leahy became chair of the Committee, the Committee has held hearings on eight of President 34 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000423 Bush’s appellate nominees. Also since June, the Senate has confirmed a total of 34 of President Bush’s judicial nominees. Indeed, despite the tragedies of September 11 and the disruptions caused by the anthrax attacks, the Committee is acting far more responsibly under Senator Leahy’s leadership than the past six-and-one-half years when Republicans controlled the Committee. While your editorial appears to minimize the importance of appellate court nominations, senators like Trent Lott, John Ashcroft, and Orrin Hatch thought the appeals courts were so important that they created an unprecedented ideological blockade against President Clinton’s appellate court nominees. Between 1995-2000, 35 percent of Clinton’s appeals court nominees were blocked without even getting a vote; 45 percent failed to receive a vote in the Congress during which they were nominated. The record was even worse with regard to the Fifth Circuit, to which Judge Pickering has been nominated. During the last five years of the Clinton administration, only one of the four Clinton nominees to that court was confirmed; the three others were not even allowed to come up for a vote. This was not politics as usual. Progressive organizations opposed only a handful of lower court nominees during the 12 years that Ronald Reagan and George H.W. Bush filled federal courts with hundreds of extremely conservative judges. Consistent with the Senate tradition with respect to lower court nominees, we generally focused on competence and character, though ideology was considered in a few extreme cases. But right-wing senators, urged on by Religious Right organizations and their allies, shattered that tradition. Their campaign was remarkably successful in perpetuating appeals court vacancies. Currently, seven of the 13 federal circuit courts are dominated by Republican appointees and four by Democratic appointees; two are tied. When current vacancies are filled, the number dominated by Republican appointees will be 11 of 13. And by the end of this presidential term, it could be all 13. That makes it critically important that President Bush nominate and the Senate confirm mainstream judges who can win genuine bipartisan support. The campaign by right-wing senators reflects their understanding that the appeals courts are critical to the ultimate success of their efforts to achieve ideological domination of the federal judiciary. Because the Supreme Court hears fewer and fewer cases each year (fewer than 90 last Term, compared with nearly 30,000 last year by the federal courts of appeal), the appeals courts frequently are the court of last resort when it comes to protecting civil and constitutional rights. Judge Pickering’s nomination to the Fifth Circuit is of particular importance and concern since that court’s jurisdiction includes the largest minority population in the country (42%). Especially in the Fifth Circuit, which has already issued a number of troubling decisions on civil and constitutional rights, adding another judge like Charles Pickering poses a grave danger to Americans’ rights and liberties. As more than 200 law professors stated in a letter sent to the Senate Judiciary Committee last summer, no judicial nominee is presumptively entitled to confirmation. Because federal judicial appointments are for life and significantly affect the rights of all Americans, and because of the 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000424 Senate’s co-equal role with the President in the confirmation process, nominees must demonstrate that they meet the appropriate criteria. These criteria include an "exemplary record in the law," an "open mind to decision-making," a "commitment to protecting the rights of ordinary Americans," and a "record of commitment to the progress made on civil rights, women’s rights and individual liberties." Given what is at stake, and given the unprecedented situation created by the six-year blockade of the appellate courts, it is our right and our obligation as citizens to examine carefully this nominee’s record against these criteria and to express any legitimate concerns about that record to the public and to the Senate. Indeed, history shows that People For the American Way and others who exposed the right wing judicial philosophies of such Supreme Court nominees as Robert Bork and Clarence Thomas were guilty, if anything, of understatement. The Journal editorial considers our opposition to Judge Pickering’s confirmation as "borking," propagating the right-wing’s use of that word as a verb meaning an unfair personal attack on a nominee. But the Bork nomination was not about Robert Bork’s personal life or politics. Robert Bork’s confirmation to the Supreme Court was opposed by millions of Americans and rejected by the largest bipartisan vote in Senate history because his record of extremism in opposition to civil and constitutional rights demonstrated that he was unqualified to sit on our nation’s highest court. Our report examining Charles Pickering’s long public record is precisely that, an examination of his record. Space does not permit a full recitation of everything overlooked by the Journal in Judge Pickering’s record. We commend your readers to our full report, available on our web site, www.pfaw.org, for the details that the Journal ignored. We believe strongly in the Senate’s constitutional obligation to scrutinize carefully the record of every nominee for a lifetime appointment to the federal judiciary, particularly a nominee to the Supreme Court or the Courts of Appeals. While we cannot know what is in Judge Pickering’s heart, we can know what is in his record. And that record makes him unworthy of a lifetime appointment to one of the most powerful courts in the country. 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7233-000001 18-2091-B-000425 Schauder, Andrew Schauder, Andrew Wednesday, February 20, 2002 12:52 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James; Goodling, Monica; Anderson, Carl A Subject: judicial media review Attachments: Judicial Media Review 2-19-02.wpd From: Sent: To: Please see attached review 18-2091-B-000426 Document ID: 0.7.19343.7238 Media Review - Judicial Nominations Tuesday, February 19, 2002 General Judicial Articles "NAACP Denounces Pickering Confirmation During Press Conference at Annual Meeting," U.S. Newswire, February 17, 2002 2 "Bush Reaffirms Support for Pickering; White House Says Democrats Stall on Judges," James Brosnan, The Commercial Appeal, February 16, 2002 3 "NAACP Decries Judicial Nominee," Christopher Lawton, Newsday, February 17, 2002 4 "NAACP Asks Congress to Oppose Judicial Nominee," Zach Howard, The Orlando Sentinel, February 17, 2002 5 "Review Backs Nominee," Audrey Hudson, The Washington Times, February 15, 2002 6 "Blacks at Home Support a Judge Liberals Assail," David Firestone, The New York Times, February 17, 2002 7 "The Battle Escalates; New Fighting Over the Charles Pickering Nomination," Byron York, National Review Online, February 15, 2002 10 "Speculation Builds Over Chief Justice Successor," Jan Crawford Greenburg, The Chicago Tribune, February 17, 2002 13 "The O’Connor Factor," Charles Lane, The Washington Post, February 18, 2002 17 "Edwards’ Tactics Draw Ire," 21 Paul Kane, Roll Call, February 18, 2002 "Group in Judge Seminars Denies Slanted Viewpoint," Ann McFeatters, Pittsburgh Post-Gazette, February 16, 2002 24 "Pickering’s Actions Questioned in Cross Burning Case," Jason Straziuso, The Associated Press, February 15, 2002 25 1 18-2091-B-000427 Document ID: 0.7.19343.7238-000001 Op/Eds "What Judges Do. The Founders Saw that Laws Are Often Murky, So Judicial Beliefs Matter," Mark Kozlowski, New Jersey Law Journal, February 18, 2002 27 "A Judge’s Past and Present," 30 The Chicago Tribune, February 18, 2002 "Campaign to Smear Judicial Nominee Rooted in Ignorance," Creators Syndicate, Inc., The Augusta Chronicle, February 19, 2002 31 "A Case Without Merit; The Nomination of a Broadly Admired Federal Judge in 33 Pittsburgh is Being Challenged Because of Political Pique. Ken Gormley and Frederick W. Thieman Defend Judge D. Brooks Smith Against the Calumny," Jonathan Turley, The Chicago Tribune, February 10, 2002 "The Role of Ideology in Judicial Selection: Test Case," Stuart Taylor, Jr., The National Journal, February 16, 2002 35 "Terry Eastland: Bush Not Fighting for Judicial Nominee," Terry Eastland, The Dallas Morning News, February 18, 2002 38 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases "NAACP Denounces Pickering Confirmation During Press Conference at Annual Meeting" NAACP, February 16, 2002 40 General Judicial Articles NAACP Denounces Pickering Confirmation During Press Conference at Annual Meeting U.S. Newswire Sunday, February 17, 2002 Kweisi Mfume, president & CEO, of the National Association for the Advancement of Colored People (NAACP) said yesterday that the association stands firm in its absolute opposition to the 2 18-2091-B-000428 Document ID: 0.7.19343.7238-000001 confirmation of Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit at a press conference held here during the Annual Meeting. Mfume said, "We will continue to demand fairness on the part of those empowered to interpret the laws of our nation. We are opposed to the Pickering confirmation because we decry a judicial nomination process where civil rights and civil liberties, and equal protection under the law are forced to take a back seat to partisan politics and political affiliations." Mfume added, "Accordingly and rightfully so, we stand firm as an organization in our absolute opposition to the Senate confirmation of Judge Charles Pickering of Mississippi, and we stand united against all others whose judicial records give rise to suspicion about their ability to render impartial judgment and fair interpretation of federal law." Julian Bond, chairman, NAACP Board of Directors said, "The NAACP was created to fight for freedom and justice in a nation dedicated to those goals. We must continue to fight now with renewed determination. Each of has a role to play as guardians of our nation's liberty, and that is the role history has assigned to us." Mfume called on the Congress to join the association in the fight to defeat the Pickering confirmation, and challenged the members to help fight against hate crimes and racial profiling. He also urged them not to ignore the AIDS epidemic both in Africa and at home. "These are wrongs that must be confronted," Mfume said. "We are compelled to act responsibly before the world to better humanity, and ultimately, to better ourselves." In light of the Sept. 11 tragedies, Mfume said, "By moving our Annual Meeting back to New York, the NAACP honors the world's leading city and its residents along with the scores of Americans who are resolved to defend the ideals of a free and open society. This is the city of our birth, and we stand in solidarity with New Yorkers." The NAACP was founded in New York City on the 100th anniversary of President Abraham Lincoln's birthday, which was Feb. 12, 1909. The Association last held its annual meeting in New York in 1998. The meetings were held in Washington, D.C. between 1999-2001. Bush Reaffirms Support for Pickering; White House Says Democrats Stall on Judges By James Brosnan The Commercial Appeal Saturday, February 16, 2002 The White House on Friday reiterated President Bush's support for the troubled nomination of U.S. Dist. Judge Charles Pickering of Mississippi to the Fifth U.S. Circuit Court of Appeals in New Orleans. "The President believes in and will fight for the nomination of Mr. Pickering," said White House spokesman Ari Fleischer. Fleischer's comment on Pickering was not prompted by a question, but 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000429 came instead as Fleischer opened his daily briefing with an attack on Senate Democrats for holding up action on judicial nominations from the Republican administration. Fleischer complained that the Senate has voted on only 37 of Bush's 90 judicial nominations and that there has been "enhanced lag" for the Circuit Court nominees, with votes on only seven of 29 nominees. The 12 regional appellate courts have 30 vacancies, a vacancy rate of 18 percent, said Fleischer. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) noted that many of the vacancies exist because when Republicans controlled the Senate they refused to act on many of President Clinton's nominees. "During the last six years of the Clinton administration it took an average of about 150 days to move a district court nominee to confirmation. I am proud that we have been able to do better since last July," said Leahy. The committee held a second hearing on Pickering's nomination last week and Friday members submitted additional questions to the Justice Department for Pickering to answer. A vote is expected in March. Pickering needs at least one of the 10 committee Democrats to vote to send his nomination to the Senate, but all have expressed concerns either about his civil rights record in the state or rulings on the bench. Internal Justice Department documents claim Pickering lobbied to reduce jail time for a man convicted of burning a cross on an interracial couple's lawn in 1994. NAACP Decries Judicial Nominee By Christopher Lawton Newsday Sunday, February 17, 2002 NAACP leaders Kweisi Mfume and Julian Bond voiced staunch opposition yesterday to Senate confirmation of a federal judge's nomination to the Fifth U.S. Circuit Court of Appeals, saying it is an affront to "civil rights, civil liberties and equal protection under the law." U.S. District Court Judge Charles Pickering, a conservative Mississippi judge, "really represents most of the things that this organization opposes," Mfume, NAACP president and chief executive, said at a news conference at the New York Hilton and Towers Hotel, where the group's board of directors and trustees were having their annual meeting. Pickering, 64, whom President George W. Bush nominated to the appeals court, defended his past actions as a prosecutor and politician on Feb. 7 before the Senate Judiciary Committee. The committee has not scheduled a vote on his nomination. 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000430 Pickering told senators that he took stands against racists in Mississippi in the 1960s and 1970s, endured threats against his family and lost re-election as a county prosecutor due to his views. But he had to concede that he misled senators in 1990 during the Judiciary Committee's hearing on his nomination as a federal district court judge, when he said he never had contact with the Mississippi Sovereignty Commission, a state agency dedicated to maintaining segregation. On that point, Bond yesterday was heated, saying Pickering "lied to the United States Senate about his associations with the terrorist group ... a state-funded organization which helped to do all it could to stop democracy in the state of Mississippi." NAACP Asks Congress to Oppose Judicial Nominee By Zach Howard The Orlando Sentinel Sunday, February 17, 2002 The National Association for the Advancement of Colored People on Saturday asked Congress to support its opposition to President Bush's nomination of a Mississippi judge. "We challenge every member of the Congress . . . to stand with our association," NAACP President and CEO Kweisi Mfume told hundreds of members of the nation's oldest and largest U.S. civil-rights organization at an annual meeting in New York. The group, which has about 500,000 members nationwide, has said it opposes Senate confirmation of Judge Charles Pickering of Mississippi, nominated to serve on the 5th U.S. Circuit Court of Appeals in New Orleans. It is one of a coalition of more than 50 organizations acting in opposition to the Pickering nomination since January. White House officials were not available for comment on the NAACP's action. Efforts to reach Pickering were unsuccessful. Pickering, a district-court judge since 1990 in Jackson, Miss., has been attacked by national groups for his record as a federal judge and earlier as state senator on matters including women's rights, abortion and voting rights. "Judge Pickering, in most instances, really represents most of the things that this association is opposed to, and, in most of his rulings, continues to raise suspicions about whether or not he will be able to interpret . .. and administer fairness as he interprets the federal law," Mfume said. Review Backs Nominee By Audrey Hudson The Washington Times 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000431 Friday, February 15, 2002 A legal-ethics expert asked by Republicans on the Senate Judiciary Committee to review a crossburning case says that District Court Judge Charles W. Pickering's behavior in the matter deserves praise, not criticism. Democrats charged that the judicial nominee for the U.S. Court of Appeals for the Fifth Circuit behaved unethically in determining a crime sentence in the case involving the burning of a cross in the yard of a racially mixed couple. Michael Krauss, a professor of legal ethics at George Mason University School of Law, reviewed the 1994 Mississippi case at the request of Senate Judiciary Committee Republican staffers. Mr. Krauss sits on the Board of Governors of the Virginia state bar's education section and said he is frequently called on to discuss ethical issues with members of the bar and bench. Judge Pickering's judicial behavior "is not unethical or in any way unbecoming of a member of the judiciary," Mr. Krauss said in a written review. Liberal organizations oppose the nomination of Judge Pickering and are attempting to label him a racist. Democrats attacked Judge Pickering during his second confirmation hearing last week and said he engaged in unofficial communication to reduce the maximum sentence in the case. Judge Pickering said he objected to the prosecution's sentencing recommendations on the grounds that it was disproportionate, and redacted documents released yesterday by the Judiciary Committee seem to back his assertion. A 1994 Justice Department memo said Judge Pickering "immediately took issue with the 'severe disparities'" in the sentencing. Three men were accused of the federal offense, but the prosecutor cut a deal with two offenders, who were then put on probation and sentenced to community service one had a history of racism and had fired a gun into the home on a previous occasion, and the second had "low mental capacity," according to the memo. The third suspect was a first-time offender, but the prosecution recommended more than seven years in prison. Judge Pickering instead sentenced him to 39 months in jail and called his actions "heinous," "reprehensible," "despicable," and "dastardly." Judge Pickering asked federal prosecutors to inform their superiors at the Justice Department of the discrepancy in their sentencing recommendations. He also complained about the sentencing to a friend in a different branch of the department, but there is no evidence that confidential information was revealed, the review said. "Judge Pickering was clearly concerned that no rational basis had been demonstrated for the 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000432 widely disparate sentencing recommendations ... ," the review said. Judge Pickering's actions are described as a "determined effort" to "discharge, faithfully and competently, his judicial duties under our Constitution. I believe Judge Pickering deserves praise for his efforts," the review said. Senate Minority Leader Trent Lott, Mississippi Republican, did not specifically identify Mr. Krauss' review, but said the Senate is receiving letters that should address Democrats' concerns. "I believe any questions about him will be properly and sufficiently answered and we will get him out of committee," Mr. Lott said. Sen. Charles E. Schumer, New York Democrat, is the only member of the Judiciary Committee to make public his intention to vote against Judge Pickering. Mr. Schumer cited the crossburning case as the primary reason for his opposition. A senior Republican aide said Democrats are underestimating the political consequences of derailing the nomination. "It will be a political boomerang with a razor-blade tip that will come back at them very hard," said the aide, who refused to detail what Republicans are plotting. Meanwhile, Sen. Joseph R. Biden Jr., Delaware Democrat, is blocking two Transportation Department appointees responsible for enforcing airline-security regulations, in exchange for getting support for an Amtrak security bill. The nominees are Emil H. Frankel, for assistant secretary for transportation policy and Jeffrey Shane, for associate deputy secretary. Blacks at Home Support a Judge Liberals Assail By David Firestone The New York Times Sunday, February 17, 2002 Back in Washington, his opponents have depicted Judge Charles W. Pickering as the personification of white Mississippi's oppressive past, a man so hostile to civil rights and black progress that he is unfit for promotion to a federal appeals court. But here on the streets of his small and largely black hometown, far from the bitterness of partisan agendas and position papers, Charles Pickering is a widely admired figure of a very different present. In funeral parlors and pharmacies, used-car lots and the City Council chambers, the city's black establishment overwhelmingly supports his nomination to the United States Court of Appeals for 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000433 the Fifth Circuit, which is heading toward a contentious vote in the Senate in the first major judicial battle of the Bush administration. Though few black residents here subscribe to Judge Pickering's staunchly Republican politics, many say they admire his efforts at racial reconciliation, which they describe as highly unusual for a white Republican in the state. "I have never seen Trent Lott open his arms to the black community the way Charles Pickering has," said Larry E. Thomas, owner of Thomas Pharmacy, referring to the Senate minority leader, who is Judge Pickering's friend and patron. "Over the years I've seen him work with black leaders and really try to make an effort to understand and help the community. That's a progressiveness that we need to see more of in this state." Progressive is not exactly the description used by the national black officials who are making an intense effort to prevent the judge's appointment. "A vote for Pickering is a vote against civil rights," said Julian Bond, the national chairman of the N.A.A.C.P. Representative Robert C. Scott, Democrat of Virginia, speaking against the nomination with other members of the Congressional Black Caucus, said, "It's hard to imagine a person who is more hostile to civil rights." Judge Pickering has also been condemned by a variety of big-city newspaper editorial boards and columnists. But such comments carry little weight among those who actually know the man personally here in Laurel, in southeast Mississippi. Judge Pickering, now a federal district judge in the nearby city of Hattiesburg, was praised by black city officials for helping to set up after- school youth programs here, and for directing federal money to medical clinics in low-income areas when he was a state senator. Black business leaders say he was influential in persuading white-owned banks to lend money to black entrepreneurs, helping to strengthen the city's black middle class. "I can't believe the man they're describing in Washington is the same one I've known for years," said Thaddeus Edmonson, a former local president of the N.A.A.C.P. who is now president of the seven-member Laurel City Council and one of its five black members. "If those people who are voting against him because of some press release would just come down here and talk to the people who know him, I think they would have a very different opinion." The judge's widespread popularity in his hometown has been frustrating to the many civil rights and abortion rights groups that have worked to portray him as an ideological relic of the Old South. Several opponents of his nomination have tried unsuccessfully to get his supporters to change their minds, and their inability to do so reflects the distance between national liberal groups and many Southern blacks in small towns. In a city like Laurel, with a population of 18,393, one's personality and faith are often more important than a judicial paper trail or an adherence to an agenda. People for the American Way, a liberal organization based in Washington, has criticized Judge 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000434 Pickering for disregarding the separation of church and state by promoting religious programs from the bench. But many prominent blacks here say it is precisely his religious background he was president of the Mississippi Baptist Convention in the 1980's that they admire. "I know Judge Pickering is a fair and impartial person grounded with Christian ethics and beliefs, who ought to be given this chance," said the Rev. Arthur Logan, the black pastor of the Union Baptist Church and a member of the City Council. "There are many people in Mississippi who made these same mistakes early in life, but their strong Christian character brought them closer to God and helped them change." Four of the five black council members, in fact, said they enthusiastically supported Judge Pickering's appointment. The fifth, Manuel Jones, said he opposed the nomination, largely because he differed with Judge Pickering's efforts in the late 1980's to integrate the largely black city schools with the largely white county schools. Judge Pickering, then in private practice in Laurel, was one of several white city leaders who argued that the city could not attract economic development with an effectively segregated school system. At the time, Mr. Jones was president of the Laurel-Jones County branch of the N.A.A.C.P., which maintained that consolidation would dilute black administrative power over the city schools. The consolidation plan was eventually overturned by a federal judge, who said it was not justified. Mr. Jones said he rebuffed a recent telephone request by Judge Pickering that he write the Senate a letter of support. (He had publicly opposed the judge's original appointment to the federal bench in 1990.) Several other council members did agree to the judge's request, however, and their letters are on file with the Senate Judiciary Committee. "It's hard to go against a sitting federal judge," said Mr. Jones, searching for an explanation of why his colleagues have taken a position that differs so sharply from his. Many of the judge's critics have cited actions or statements he made in the 1960's and 70's. They have pointed to an article he wrote in 1959 that appeared to support strengthening the state's law against interracial marriages, and to his votes in the state senate that appeared to dilute black voting strength. The Battle Escalates; New Fighting Over the Charles Pickering Nomination By Byron York National Review Online Friday, February 15, 2002 In a move to escalate the already-intense battle over the nomination of Charles W. Pickering Sr. to a place on the Fifth Circuit Court of Appeals, some Democrats on the Senate Judiciary Committee are now suggesting that Pickering may have misled the committee at hearings held 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000435 February 7. Pickering strongly denies the allegation. At issue are statements Pickering made in response to questions from Democrat John Edwards about a 1994 cross-burning case (see "Behind the Democrats' Attack"). At the time, Pickering, a judge on the federal district court in southern Mississippi, questioned the Clinton Justice Department Civil Rights Division's decision to make no-jail plea bargains with two of the three defendants in the case, while recommending that the third defendant, a man named Daniel Swan, be sentenced to seven and a half years in prison. Evidence that emerged during the trial suggested that one of the defendants who got off with no jail had a significant history of racial hatred, which is an important factor in sentencing defendants convicted under the federal hate crimes statute. There was far less evidence of racial animus on Swan's part; in fact, seven witnesses, both black and white, testified that they were not aware of any racial animus he might have held against black people. While Pickering did not object to sending Swan to prison he was clearly guilty of taking part in the cross burning the judge believed that the seven and a half year sentence was too severe, given that a more culpable co-defendant was given no jail time at all. At last week's hearing, Edwards questioned Pickering about a conversation Pickering had with defense lawyers and prosecutors from the Civil Rights Division. Swan had already been found guilty, and Pickering had told both sides that he was unhappy with the government sentencing recommendation. In the Senate questioning, Edwards alleged that Pickering was so unhappy with the sentence that he threatened to order a new trial for Swan. "You told the government lawyers that you would on your own motion order a new trial, and when the government lawyer asked you, and I'm quoting now, 'What would be the basis for such a motion?' your answer was, 'Any basis you choose.' First of all, judge...did you say that you would order a new trial, even though no motion for a new trial had been made?" "I did not," Pickering answered. "So you deny that?" "I've reviewed the transcript " "So you deny having said that?" Edwards pressed. "I did not say that," Pickering said. "So if the lawyers who were involved in that case have said that that's a statement you made to them, that would be a lie?" "Senator, on the record, I mentioned " "Excuse me, judge," Edwards interrupted. "According to documents that we've been provided, this took place in a private meeting you had with the lawyers, when you told the lawyers you 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000436 would order a new trial on your own motion, and when they asked you, and I'm quoting now, 'What would be the basis for such a motion for a new trial?' you said, 'Any basis you choose.' Do you deny having said that?" "I have no recollection of having said that," Pickering answered, "and I do not believe that I said that. Now, I have not seen the document that you are referring to. The Justice Department did not show me the files that they had." "Did you have private meetings with the lawyers off the record about this case?" "The response that I gave to Senator Leahy on this indicated that after " "I'm not asking about Senator Leahy," Edwards interrupted. "Did you have private meetings with the lawyers?" "With both the defense counsel and the [government] counsel, I had a meeting, yes." "So private meetings did take place?" "A private meeting took place." "And you deny having any discussion in that meeting about ordering a new trial on your own motion? You deny having done that?" "There was a discussion on the record of a new trial on the basis of the [jury] instructions, but I don't have a recollection of any indication that I would do that on my own motion," Pickering said. The documents to which Edwards referred and which Pickering had not seen at the time of the hearing were two internal Justice Department Civil Rights Division memos. One of the memos, dated November 29, 1994, concerned the private meeting between Pickering, government lawyers, and defense attorneys. As he had in open court, Pickering expressed great unhappiness with the Civil Rights Division's jail recommendation for Swan. "He said that Swan clearly must do some time behind bars, but seven years is just too much," prosecutor Brad Berry wrote in the memo. "Pickering said he has carefully examined his conscience in this case, and is confident that his discomfort with the sentence is not the product of racism." Then Berry addressed the issue of a new trial. Much of the conversation centered on what was called the "844 charge," which was the part of the charges against Swan that carried a five-year mandatory minimum sentence (other charges against Swan made up the rest of the seven and a half year sentencing recommendation). Pickering, according to Berry's memo, asked whether the Department would agree not to oppose a motion for a new trial on the 844 charge...if Swan received the maximum on the other two charges. Pickering expressed a willingness to sentence Swan to 36 months on the other two charges if he could find a way to do it. He said that if the Department does not agree to do this, he might well write a nasty opinion from our perspective, 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000437 emphasizing the sentencing disparities and the injustice of applying Section 844 in this case. He said that given his strong feelings about applying 844 in this case, he might well leave the task to the Fifth Circuit. After further discussion, I asked Pickering what would be the basis for the motion for a new trial. Pickering responded, "Any basis you choose." The paragraph is unclear on where the motion for a new trial might come from, but it does not say, as Edwards alleged, that Pickering threatened to call for a new trial on his own motion. Pickering's defenders suggest that a more reasonable reading of the paragraph would be that Pickering was assuming that the defense, as is common in such cases, would ask for a new trial for Swan. In addition, a later memo, by another Justice Department lawyer, suggests that Pickering never bullied or threatened government lawyers in any way, contrary to Edwards's allegation. "He [Pickering] thinks the sentence facing Swan is draconian, and he wants a way out," prosecutor Jack Lacy wrote, He has been careful to phrase his concern in such terms as, "I wish you could suggest some way that this harsh sentence could be avoided." He has never directly [italics in the original] asked us to do anything... In the same memo, Lacy wrote that he "personally agreed with the judge that the sentence is draconian." Meanwhile, in his first statement since the confirmation hearings, Pickering has offered his own account of the issue. In a letter to Judiciary Committee ranking Republican Orrin Hatch, Pickering writes that he had doubts whether the five-year mandatory-minimum sentence was applicable to the case: In chambers, I discussed with counsel for both parties (1) the possibility of a motion for a new trial based on the lack of specificity of the jury instruction on racial animus, if the government insisted on applying the five-year mandatory minimum charge, or (2) the possibility of a motion to set aside the verdict or dismiss the charge of the count which carried the mandatory five-year minimum sentence. When counsel for the government asked how this would be accomplished, I recollect responding to him that the government could elect the grounds. I never indicated I would grant a motion for a new trial, sua sponte [on his own motion], and I never indicated I would do so on whatever ground I chose. Finally, in his letter, Pickering cites a portion of the trial transcript in which a lawyer for the Civil Rights Division appears to admit that the government indeed went too easy on one of the defendants who received a no-jail plea bargain. "The lesson that I take from that, your honor," the lawyer said, "is that perhaps the government should have been more tough should have asked for a more stringent or stronger or longer sentence for the other defendants in this case." Speculation Builds Over Chief Justice Successor By Jan Crawford Greenburg The Chicago Tribune 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000438 Sunday, February 17, 2002 When Supreme Court Justice Anthony Kennedy walked into a District of Columbia magnet school last month to talk to students about concepts of freedom, he said he was hoping they would gain a greater understanding of democracy. But his key role in unveiling the "Dialogue on Freedom" initiative, with help from the American Bar Association and First Lady Laura Bush, prompted some court watchers to suggest he also may have something else on his mind. "I'm sure he wants to be chief justice," one court observer said. Chief Justice William Rehnquist has not announced his retirement, but most agree he is likely to do so this summer or next. With such a closely divided court, the magnitude of that prospect already has public interest groups, lawyers and law professors quick to speculate on even the sincerest intentions of possible nominees and anxious over what all predict will be a colossal confirmation battle. "This is going to be one of the most dramatic moments in American history," Ralph Neas, president of People for the American Way, said of the confirmation hearings for the next Supreme Court justice. Indeed, the bitter battle that Neas' group has spearheaded over Charles Pickering, one of President Bush's federal appeals court nominees, is only a hint of what's to come when the administration seeks to fill a vacancy on the high court, observers say. The current court generally is divided 5-4 on contentious issues such as race, religion and the role of government, and Bush is poised to nominate up to three justices, including the chief justice, as aging ones retire. Rehnquist, 77, is a likely candidate for retirement this year or next, as is Justice Sandra Day O'Connor, although she said recently she would not step down this year. Justice John Paul Stevens, the court's most liberal member and, at 81, its most senior, also could retire this term--particularly because Democrats control the Senate and, Neas vows, would not confirm an ardent conservative to replace him. But the chief's spot has grabbed the interest of many. To be sure, the chief justice has just one vote, but he also assigns opinions when he is in the majority. That can help shape how broadly or narrowly a decision is written. What's more, the chief is the administrator of a branch of government. As such, filling that post could present the biggest problem for Bush, particularly if Rehnquist is the only justice to step down. The Senate historically has placed greater emphasis on confirming the chief justice than associate justices, and Democratic leaders already have indicated they will not make it easy for Bush to fill a vacancy. 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000439 Conservative groups, aware of the looming battle, are becoming increasingly critical of the administration's approach. They say the administration is not doing enough to get ready for the fight and are particularly upset at Bush's refusal, despite requests, to mention the issue of judicial appointments in his State of the Union address. Further complicating matters is that there is no obvious choice to take Rehnquist's place. Opponents on the left and the right have raised flags about several of those believed to be contenders, including Kennedy and the current White House counsel, Alberto Gonzales. Groups such as Neas' say they would love to take on two other possible nominees, conservative federal appeals court Judges J. Harvie Wilkinson III and J. Michael Luttig. Some have said Kennedy's statesmanlike behavior in recent weeks has the cast of a potential chief justice candidate. That's not to question his sincerity in the "Dialogue on Freedom" initiative. Kennedy, 65, has had a long-standing interest in promoting the virtues of the legal system to young people. "I would think if an opening occurs, he certainly is one of the people who would be considered seriously," said Jesse Choper, a law professor at the University of California at Berkeley. Of the Democratic-controlled Senate, Choper said: "They'd be hard-pressed to beat him." Elevating a current justice could siphon attention from the nominee who would take his place as associate justice. That's what happened in 1986, when President Ronald Reagan sought to elevate Rehnquist as chief and nominated Antonin Scalia as associate justice. The Senate spent all its time on the chief's nomination, while Scalia- -one of the court's most ardent conservatives--skated through unanimously. That said, "Chief Justice Kennedy" is an extremely unlikely scenario. His nomination would infuriate the far right, which was outraged by his refusal in 1992 to overturn Roe vs. Wade, as well as other decisions it perceives as liberal, such as one that blocked clergy from praying at school graduation ceremonies. "A lot of the president's conservative base would strongly oppose elevating Kennedy," said Tom Jipping, director of the Center for Law and Democracy at the Free Congress Foundation. Moreover, elevating Kennedy to chief would give the left ample fodder as well. He joined the court's three most conservative members two years ago, for example, in dissenting from a decision that struck down state efforts to ban certain late-term abortions. Bush vs. Gore role damaging But his role in Bush vs. Gore could be the most damaging for his prospects. Any confirmation hearing for Kennedy (or O'Connor, if she were tapped for the chief's post) would resurrect the 2000 presidential election. Kennedy and O'Connor are considered the architects of the 5-4 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000440 opinion that stopped the vote recounts in Florida and handed the election to Bush over Al Gore. O'Connor, who will be 72 next month, would have those problems as well as her age working against her, said David Yalof, a political science professor at the University of Connecticut. Bush probably would prefer a younger nominee who would serve for more than a few years, he said. The other two conservatives on the court, Scalia and Clarence Thomas, are considered simply too conservative--both would overturn Roe vs. Wade, for example--to be confirmed by a Democratic- controlled Senate, Neas, Yalof, Choper and others said. As such, most observers predict Bush will have little choice but to look outside the court for its next chief, just as President Dwight Eisenhower did in 1953 with Earl Warren, then governor of California, and President Richard Nixon did in 1969 with Warren Burger, then on the U.S. Court of Appeals for the District of Columbia Circuit. "We're looking at a moment where the current president's best prospects for chief justice lie outside the court," Yalof said. Yalof and other court watchers, such as Choper, say they believe Bush would like to name the first Hispanic to the court. Most say White House Counsel Gonzales is the front-runner, certainly for associate justice, because he has the confidence of Bush and may not have the damaging paper trails of other potential nominees. The latter likely would do in the other leading Hispanic candidate, Emilio Garza, a judge on the U.S. Court of Appeals for the 5th Circuit. Garza has openly suggested his opposition to Roe vs. Wade, a decision he said is "inimical to the Constitution." Gonzales could raise brows Gonzales could be a controversial choice, however, particularly for chief. He served on the Texas Supreme Court just 23 months before assuming his current position, and he could be viewed as too political, Neas and others said. Moreover, the far right views him suspiciously, noting that while on the Texas Supreme Court he joined a majority decision allowing some minors to get abortions without parental notification. But Yalof said he thought Gonzales "had a lot to offer for chief" because it is an administrative post. "He's currently in the administration and is someone the president would feel comfortable with, not simply rendering decisions but running a branch of government," Yalof said. Bush may believe he could get a more predictable conservative as chief, because the appointment would not move the court to the right. Rehnquist, one of the court's most conservative members, would overturn Roe and has led the court in scaling back congressional 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000441 power and handing it to the states. If so, Bush could turn to the U.S. Court of Appeals for the 4th Circuit, where Wilkinson and Luttig have established solid conservative reputations. Wilkinson, who turns 58 this year, is a former law professor at the University of Virginia and the chief judge of the circuit. Luttig is a former Scalia clerk who worked to help get Thomas confirmed while working in the Justice Department. Philosophically, he is closer to Scalia and Thomas--the justices Bush said during the campaign he most admired--than Wilkinson. He wrote the high-profile opinion, which the Supreme Court upheld, striking down a section of the Violence Against Women Act as beyond Congress' power. Recently, however, the two have parted ways dramatically in several high-profile cases, with Luttig, 47, all but accusing Wilkinson of being a faux conservative. "Many people think Luttig has blessed Wilkinson by making him seem like a moderate statesman," one court observer said. Ruled with liberal colleagues In a recent high-profile school desegregation case, Wilkinson joined with more liberal judges in refusing to hold a North Carolina school system liable for running a race-conscious magnet school. Wilkinson said the school district could not be held liable because it had been under a court order to end segregation. But Luttig, in dissent, said Wilkinson "variously ignored and misunderstood" the law. They also split ways in a high-profile case over the breadth of Congress' power to protect endangered species. Wilkinson wrote for the majority that the federal government had power to limit the taking of red wolves on private lands, a decision Luttig harshly criticized in dissent. Wilkinson is more in the mold of the gentle conservative, whereas Luttig is more in-your-face," said one lawyer who frequently practices in the 4th Circuit. "I think Wilkinson tries to be more scholarly, whereas Luttig has much more of a rubber-hits-the-road kind of approach." That's not to say Wilkinson is not conservative. He wrote a majority opinion upholding the Clinton administration's "don't ask, don't tell" policy that excluded acknowledged homosexuals from the military. "I would guess if either Luttig or Wilkinson is on the Supreme Court, their voting patterns would not be that different," said A.E. Dick Howard, a law professor at the University of Virginia. Conservative groups acknowledge that either could be difficult to confirm, which could prompt Bush to name a stealth candidate, such as Judge Samuel Alito Jr. of the U.S. Court of Appeals for the 3rd Circuit. They put the blame partly on Bush and suggest the administration has ceded control of the debate on the issue to the Democrats. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000442 "I believe the president, before any Supreme Court vacancy, needs to provide sustained public leadership on judicial appointments, generally," said Jipping of the Center for Law and Democracy. "If the administration is going to wait until there's a Supreme Court vacancy, they're going to lose. Or they're going to feel compelled to nominate someone who won't be worth it." The O’Connor Factor By Charles Lane The Washington Post Monday, February 18, 2002 When word got out that Supreme Court Justice Sandra Day O'Connor would be giving a public lecture last fall in Lincoln, Neb., 500 people snapped up every available seat, leaving 100 others to be turned away. The University of Nebraska gave her a medal. Female law students presented a corsage. "If it hadn't been for you paving the road, we wouldn't be here today," Lisa Rasmussen told O'Connor, according to the Daily Nebraskan. More than two decades after President Ronald Reagan made her the first woman on the Supreme Court, O'Connor, 71, may be a bigger celebrity -- and a more powerful influence on American law and society -- than ever before. She has weathered what she has called the "difficult" 2000 election case in which she was one of five Republican-appointed justices to join a much-criticized ruling that sealed President Bush's victory. She has added her voice to those expressing concern that innocent people may be sentenced to death. Favorable reviews are coming in for her much-publicized new memoir, co-written with her brother, H. Alan Day, about growing up on a remote desert ranch during the 1930s and '40s. And on the most contentious social issues facing American society, she continues to cast what is frequently the deciding vote on a nine-member court often split between liberals and conservatives. On Wednesday, the court hears oral arguments on two such issues -- state-funded vouchers for private and parochial school tuition, and a possible ban on the death penalty for mentally retarded capital offenders. And once again, attorneys for both sides will be pitching much of their argument to the tall, silver-haired woman sitting just to Chief Justice William H. Rehnquist's left. So pivotal -- and familiar -- is O'Connor's role that it has become difficult to imagine the court without her, despite rumors, denied by the justice, that she may retire soon. Lately speculation has run in the opposite direction -- that O'Connor could ascend to chief justice if Rehnquist, 77, steps down -- a scenario she also dismisses. 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000443 O'Connor's power has been accumulated not by asserting an ironclad doctrine for others to follow, but by remaining as noncommittal as possible: Time and again, she has signed on to narrow rulings crafted according to the facts of a particular case, leaving open the option of another incremental holding later on. "The rule of law must also be flexible enough to adapt to different circumstances," she told her Nebraska audience, expressing a precept she had articulated many times in her opinions. "Hers is the power of the median voter," said University of California at Los Angeles law professor Eugene Volokh, a former O'Connor law clerk. "Lawyers target her for the same reason both sides in a political campaign target the center." The question hovering over O'Connor's 21-year career on the court, though, is whether her approach is too much like the political art of compromise she once practiced as majority leader of the Arizona state Senate. By providing only sketchy constitutional guidance to legislatures and lower courts, some lawyers, legal academics and judges say, her restrained jurisprudence lays the basis for legal instability that ultimately must be sorted out by the Supreme Court -- and, in many cases, by O'Connor herself. O'Connor's fellow justice, Antonin Scalia, has published opinions blasting her mode of reasoning, including a 1988 gibe at her "Solomonic" answer to a death penalty case: "Solomon," Scalia wrote, "was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system." O'Connor's admirers describe her method as "judicial minimalism." "Clear rules are better; they make the court's own judgments more transparent," Volokh said. "But if a justice is not persuaded the Constitution demands a clear rule, it's her duty to vote for a more fact-sensitive one." O'Connor, a lifelong Republican, votes more than 80 percent of the time with Rehnquist, a Nixon appointee. She has joined him, Scalia and other conservatives in the court's recent effort to bolster states' rights. But on social issues, she has muted the court's rightward tendencies. Most famously, she voted to uphold the right to abortion enshrined in Roe v. Wade, co-writing the 1992 opinion that barred state laws that impose an "undue burden" on the right to choose. In 2000, she provided the fifth vote for a ruling that struck down Nebraska's ban on what opponents call "partial birth" abortions. Abortion, she recently told NBC's Katie Couric, "is an issue about which people feel passionately, and I'm very much aware of that when we have a case in that area." 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000444 Certainly, there is little evidence of ideological fervor in O'Connor's personal story. Her childhood was spent among some of the last real cowboys in the West, on the 300-square-mile Lazy B Ranch. Straddling Arizona and New Mexico, the Lazy B had no electricity or running water; as depicted in her memoir, it was a place where individual adaptability and common sense were at a premium, and the social changes linked to the New Deal and World War II made little direct impact. Graduating third in her class (Rehnquist was first) from Stanford Law School in 1952, O'Connor was stunned by law firms' refusal to hire her, but made a career in local government and the Arizona Republican Party. She was appointed to the state Senate in 1969, became majority leader in 1972 and later ran successfully for state trial judge before being elevated to the state appeals court by a Democrat, then-Gov. Bruce Babbitt in 1979. When Reagan offered her the Supreme Court job in 1981, antiabortion groups tried to derail her nomination, citing her opposition as a state senator to certain laws restricting abortion. O'Connor herself has admitted she felt uncertain about her own modest judicial experience. But she was fortified by lessons learned on the Lazy B. It gave her, she recently told C-SPAN interviewer Brain Lamb, "a certain amount of self-confidence in your ability to work things out and not be afraid to tackle something." Today she regularly recruits law clerks who have served both liberal and conservative lower-court judges, relying on them for detailed briefings, oral and written, on each case -- and occasionally treating them to her homemade Tex-Mex cuisine. Both cases before the court on Wednesday show how O'Connor's past rulings set the stage for future cases in which she again plays the potentially deciding role. In the school voucher case, opponents of the program will try to persuade the court that, as practiced in Cleveland, the voucher subsidy gives families no real choice but to spend government money at religious schools, an issue framed in O'Connor's past opinions on the church-state balance. In the death penalty case, Daryl Atkins, convicted of murder in Virginia, asserts that he has an IQ of 65, which qualifies him as moderately retarded under current psychiatric guidelines. His attorneys argue that a national consensus has formed against the death penalty for persons with very limited intellectual abilities, so Atkins's execution would be "cruel and unusual punishment" prohibited by the Eighth Amendment. In 1989, a Texas death-row inmate, Johnny Paul Penry, sought and was denied such a ruling from the Supreme Court. O'Connor's role was decisive. Wrestling with Penry's claim that mentally retarded persons are less able to reason and hence 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000445 less culpable for their crimes than others, O'Connor wrote that states must give juries a genuine chance to consider mental retardation as a factor weighing against the death penalty. It was an argument repeated by Atkins. This section of O'Connor's opinion, which ordered a new trial for Penry, was joined by liberals such as the late Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun and John Paul Stevens, who is still on the court. O'Connor, however, concluded that it was not yet clear that all mentally retarded people lacked the reasoning ability ever to warrant capital punishment. And there was insufficient evidence of a national consensus against executing them, she wrote. Only two states with the death penalty had outlawed it. This portion of her opinion was joined by conservatives Rehnquist, Scalia, Anthony M. Kennedy and Byron R. White, who has since retired. Still, O'Connor left the door open. A national consensus, she wrote, "may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely." "That day has arrived," Atkins's attorneys argue in their brief for the case to be argued Wednesday. They noted that 18 of the 38 states that permit capital punishment now have laws outlawing death sentences for the mentally retarded. When you add the 12 states that do not allow capital punishment at all, they argue, 30 states -- 60 percent of the total -- plus the federal government, forbid the death penalty for retarded offenders. Is 60 percent enough to make for a national consensus? O'Connor's past opinions are suggestive but, characteristically, not definitive on how she might rule. In 1988, when the court voted to strike down the death penalty for 15-year-old murderers, O'Connor supplied the fifth vote -- but did so for reasons that were all her own. In a separate opinion, she noted that 32 of 50 states -- 64 percent -- either had no death penalty or had limited it to perpetrators 16 or older. This, she said, created a strong presumption that a national consensus against executing those younger than 16 existed. But more state legislation would be needed to know for sure, because a large minority of states that set no minimum age for the death penalty appeared to permit executing 15-year-olds. O'Connor explained her vote as limited only to situations in which states had specified no minimum age for death penalty. Just a year later, she joined four conservatives in holding that executions for 16- and 17-year-old perpetrators were constitutional. There, she assented to a national-consensus calculus that focused only on the rules in the 37 states that had the death penalty at the time, noting that "a majority of states authorizing capital punishment permit it for defendants 16 and above." And 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000446 today, a majority of death penalty states still allow sentencing retarded offenders to death. Five of the death penalty states that have banned capital punishment for the retarded passed their laws in the last year, after the Supreme Court's surprising announcement in March 2001 that it would revisit the 1989 Penry ruling in the case of North Carolina death row inmate Ernest McCarver. Legal analysts say that the mere fact that the court agreed to reconsider the subject suggests that change is afoot at the court. O'Connor herself has made two public statements -- to a Minnesota women's lawyers' group in July and again on her October visit to Nebraska -- that seemed to capture national anxiety about administration of the death penalty. "More often than we want to recognize," she said in Nebraska, "some innocent defendants have been convicted and sentenced to death." Edwards’ Tactics Draw Ire By Paul Kane Roll Call Monday, February 18, 2002 With a blistering cross-examination of a controversial judicial nominee, Sen. John Edwards (DN.C.) has landed in hot water with the nation's leading anti-tobacco lawyer. Dickie Scruggs, the trial lawyer from Pascagoula, Miss., who recently led the legal assault on the tobacco industry, has vowed to never again support Edwards and plans to rally other trial lawyers to his anti-Edwards campaign. If Scruggs follows through on his stated mission, it would deal a serious financial blow to Edwards, himself a former trial lawyer who has relied heavily on the legal industry to underwrite his burgeoning national ambitions. The bone of Scruggs' contention is Edwards' treatment of U.S. District Judge Charles Pickering of Mississippi, who is seeking a lifetime appointment to a seat on the Fifth Circuit Court of Appeals. "I'm really mad about it," Scruggs said of the questioning Edwards subjected Pickering to at a Feb. 7 hearing and the North Carolina Senator's apparent lack of respect for Scruggs' opinion of the judge. "It wasn't the manly thing to do." Scruggs has a family stake in the Pickering nomination: He's married to Senate Minority Leader Trent Lott's (R-Miss.) sister-in-law. Lott, who has known Pickering for more than 30 years, has made this confirmation a personal crusade and has threatened to retaliate against Democrats if they block Pickering, whose son, Rep. Chip Pickering Jr. (R-Miss.), used to work for Lott. Scruggs said his efforts to reach out to Edwards, a personal-injury trial lawyer before unseating Sen. Lauch Faircloth (R) in 1998, were part of a broader effort to lobby Democrats he bonded 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000447 with during the "tobacco wars." Scruggs has tried to make the case that liberal interest groups in Washington are inaccurately portraying Pickering, 64, as a southern segregationist in retaliation for the way Republicans treated Clinton administration nominees in the 1990s. "He's getting a bum rap," Scruggs said. Scruggs, who has known Pickering for more than 20 years, called him a "fine judge." A lifelong Democrat who has given and helped raise thousands of dollars for the party's candidates, Scruggs said Democrats are wrong - personally, politically and legally - to oppose Pickering. If he gets rejected, Scruggs said, Pickering's replacement will in all likelihood pose a greater threat to Democratic interests as a younger and more stridently conservative jurist, and one without decades of rulings and political activity to use in opposition to the nomination at Senate hearings. Scruggs' ire, however, is currently focused on fellow trial lawyer Edwards, who ignored a series of calls the Mississippi attorney made to Edwards office in advance of the tension-filled Feb. 7 hearing. "I started calling him on Tuesday [Feb. 5] and left messages all over for him," Scruggs said in an interview last week. Noting trial lawyers' past financial support for Edwards, Scruggs said: "Not that he owes me a vote, but he owes me a phone call." Scruggs attended Pickering's hearing, where he spoke with Democratic Sens. Edward Kennedy (Mass.), Russ Feingold (Wis.) and Dianne Feinstein (Calif.) about the nomination. He said he also spoke with top aides to Sen. Joseph Biden (D-Del.), but couldn't get a return call from Edwards. Other trial lawyers from Mississippi also tried to reach Edwards and were rebuffed, Scruggs said. At the hearing, Edwards was relentless in his questioning, focusing on a 1994 cross- burning case Pickering oversaw. Frequently cutting Pickering off and forcing him into one-word and yesor-no answers, Edwards prompted Pickering to admit he had "ex parte" conversations with Justice Department officials regarding the case. Biden told Roll Call last week that Pickering's answers to Edwards will play a key role in whether he supports the judge and questioned his truthfulness in responding to committee members' inquiries. One senior Democratic aide called Edwards "brilliant," noting that the crossburning case was the "perfect metaphor" for Democratic opposition. A top GOP aide admitted the line of questioning was hurting the judge's case. 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000448 Pickering's explanation - that he felt prosecutors had gone soft on the main culprit, who received no jail time in exchange for a guilty plea, and were coming down hard on a bit player in the case barely registered. Scruggs said Pickering's family was furious: "They felt very humiliated about it." A few days after the hearing, the judge's son said he was in "remarkably good spirits." But, Rep. Pickering added, "They're trying to use Mississippi's reputation and history to smear a good man." Scruggs said he left the hearing disgusted with Edwards, who he felt was twisting the facts of the case and playing the role of "the heavy" at the behest of other Democrats. Not expecting to have his calls returned, Scruggs said he got another trial lawyer to get in touch with Edwards. "I sent a message through another trial lawyer: He can forget my support and that of anybody I have influence with," Scruggs recalled. Early last week, Edwards finally called Scruggs, who characterized the conversation as "cordial." Edwards' office did not confirm or deny Scruggs' account. In a statement released by his office, Edwards said, "I will make an independent evaluation on the merits with regard to the nomination of Judge Pickering. At this stage, I have very serious reservations." On Saturday, Edwards was one of three potential Democratic White House hopefuls, along with Majority Leader Thomas Daschle (S.D.) and Sen. John Kerry (Mass.), to speak at the state Democratic convention in California. While Scruggs himself has not been a direct financial backer of Edwards, lawyers have been the Senator's single largest backer, and many of Scruggs' friends are among Edwards' supporters. In the 1998 election cycle he received $905,280 from lawyers and law firms, the fourth most of any candidate in that cycle, according to the Center for Responsive Politics. That's all the more impressive considering Edwards does not take PAC money. Up for re-election in 2004, Edwards campaign committee has already collected at least $218,686 from the legal industry, more than all but three other Senators - and each of those three faces reelection this fall. To finance his national ambitions, Edwards opened a leadership political action committee, New American Optimists, last fall, raising $731,850 in November and December. More than $650,000 of that total came from lawyers, their family members or employees of law firms, according to a Roll Call analysis of the PAC's donors. Of that, $167,000 came from Mississippi attorneys, legal employees or their family members 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000449 many of whom work at firms, such as Minor & Associates and Langston Law Firm, whose principals are also supporting Pickering. Asked if he could see himself ever supporting Edwards, or encouraging his friends in the legal community to back him, Scruggs said the Pickering nomination will be decisive. "I guess I ought to see how he votes," he said. Group in Judge Seminars Denies Slanted View Point By Ann McFeatters Pittsburgh Post-Gazette Saturday, February 16, 2002 A foundation that sponsors seminars on environmental economics for federal judges says its work is being mischaracterized by a land-use group seeking to derail the nomination of Western Pennsylvania U.S. District Judge D. Brooks Smith to the 3rd U.S. Circuit Court of Appeals. Community Rights Counsel, an organization that provides legal aid to local governments and environmentalists in land-use cases, is one of 27 environmental, women's rights and civil rights groups that are raising questions about Smith's nomination by President Bush. In a letter to members of the Senate Judiciary Committee, which holds confirmation hearings for nominees to the federal bench, the group claims that between 1992 and 2000 Smith spent "nearly three months at luxury resorts and dude ranches on trips funded by corporations and special interests with a stake in federal court litigation," including expenses-paid visits to seminars hosted by the Foundation for Research on Economics and the Environment, or FREE, which is based in Bozeman, Mont. FREE Chairman John Baden said that while his group receives corporate money, only money from tax-exempt foundations is used to conduct the seminars for judges. Baden also said Community Rights Counsel wrongly portrays FREE as "right-wing." "While FREE's programs are explicitly pro-environment, they explain why ecological values are not the only important ones. We stress that tradeoffs among competing values are inescapable. We show why it is ethically and materially irresponsible to pretend such choices can be avoided." In a letter explaining his group's orientation, Baden went on to say, "The intellectually naive confuse FREE's classical liberal, incentive-based orientation with that advocated by those who support subsidized exploitation of the environment (e.g., below-cost timber sales on the national forests)." Doug Kendall, a lawyer with Community Rights Counsel, says his group stands by its characterization of FREE as supported by "corporations that litigate in federal courts." He said, "Ninety percent of the speakers at their programs are right-wingers from think tanks or academia and one or two token environmentalists, some of whom say awful things about FREE and some of whom say good things." 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000450 FREE's Web site identifies its corporate funders in 2001 as the American Chemistry Council, Caterpillar, Exxon Mobil, General Electric, General Motors, Georgia Pacific, Merck, Shell and Tindall. Foundation supporters include the Ajax Foundation, the Chase Foundation of Virginia, the John M. Olin Foundation, the Sarah Scaife Foundation and the True Foundation. Pickering’s Actions Questioned in Cross Burning Case By Jason Straziuso The Associated Press Friday, February 15, 2002 Internal Justice Department documents claim U.S. District Judge Charles Pickering lobbied to reduce jail time for a man convicted of burning a cross on an interracial couple's lawn in 1994. At one point in the lobbying effort, according to a written report by a government attorney, the appellate court nominee from Mississippi even threatened to retry the case. Whether the federal judge acted in good faith in seeking a just punishment for the defendant or attempted to sidestep the law is the question Senate Judiciary Committee members are examining as they contemplate Pickering's nomination to the 5th U.S. Circuit Court of Appeals. After a burning cross was placed on an interracial couple's lawn near Improve in Walthall County, charges were filed against three individuals. Two males, ages 17 and 25, were sentenced to probation and home confinement in exchange for guilty pleas. A third person, Daniel Swan, then age 20, turned down the plea offer and was convicted in a trial. The Justice Department sought a seven-year sentence for Swan. One of the charges Swan faced carried a five-year minimum sentence. He eventually received a 27-month sentence. Government lawyer Brad Berry, in a 1994 internal Justice Department memo, said Pickering called Berry into his chambers and told the attorney he had problems with the seven-year sentence and the disparities in the sentencing for the three defendants. Berry's memo was made public by the Democratic-controlled Senate Judiciary Committee. Pickering is a Republican. Berry wrote that Pickering felt the Justice Department "is probably right on the law, but the result in this case would clearly be unjust." The memos claimed Pickering had several off-the-record conversations with government attorneys in an attempt to get around the minimum sentencing requirement. Berry also wrote that Pickering threatened to order a new trial on "any basis you choose." 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000451 Democrats have alleged Pickering privately contacted the Justice Department to manipulate the sentence. Pickering has told Judiciary Committee members the only contact he had with the agency outside of court was a telephone call to a friend. Pickering said the contact was not improper because he did not discuss the case's specifics, but rather simply voiced frustration at the situation. Pickering said Friday he cannot comment on issues surrounding his nomination. U.S. Rep. Chip Pickering, R-Miss., the judge's son, recently said that Swan was pulled into taking part in the cross burning, while the leaders of the act got off with the lighter plea sentences. Republicans, led by Senate Minority Leader Trent Lott, R-Miss., accuse the Democrats of holding Pickering up as a test case for future conservative Supreme Court nominees. The Judiciary Committee is expected to vote on Pickering's nomination by mid-March. On Thursday, Sen. Charles Schumer, D-N.Y., said he would not support Pickering due to the cross burning information. Marty Wiseman, director of Mississippi State University's John C. Stennis Institute of Government, said it appears Pickering's aim was not to subvert the law but to be just in his sentencing. "This was what Judge Pickering was wrestling with and discussing with the various folks with the Justice Department," Wiseman said. Republicans on the committee requested a review of the cross burning affair from George Mason University law professor Michael Krauss. Krauss, in a Feb. 11 letter to Sen. Orrin Hatch, R-Utah, ranking Republican on the committee, concluded that Pickering's judicial behavior was proper and the just "deserves praise for his efforts." Krauss wrote that no rational basis had been established for the disparate sentencing among the three accused males. Op/Eds What Judges Do. The Founders Saw that Laws Are Often Murky, So Judicial Beliefs Matter By Mark Kozlowski 26 18-2091-B-000452 Document ID: 0.7.19343.7238-000001 New Jersey Law Journal Monday, February 18, 2002 Mark Kozlowski is associate counsel at New York University School of Law's Brennan Center for Justice. Should the Senate be concerned with the personal ideological views of federal judicial nominees? Conservatives say no. A proper judge qua judge, they assert, has no personal ideological views. A legislator may have such views, but not a judge. Thus, when President George W. Bush announced his initial batch of judicial nominees last May, he vowed: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench." Whenever conservatives talk about the courts, the prohibition against "legislating from the bench" gets mentioned sooner or later. The idea is that, although judges must determine the meaning of statutes, the only legitimate elements to be considered are the words of the statute and the intent of the legislature in employing those words. Similarly, when called upon to interpret a provision of the Constitution, conservatives contend that the only proper guide, beyond the text itself, is the intention of those who composed and ratified the provision. To do otherwise, conservatives assert, turns the judge into a creator of law. With regard to ordinary statutes, so the argument goes, this violates the principle of separation of powers. As for the Constitution, when interpretation looks beyond text and intent, the meaning of our fundamental law comes to depend upon the will of individual judges. What is more, conservatives frequently declare that this stark distinction between proper interpretation and "legislating from the bench" is precisely the way our Founders viewed the task of judging. Consider the testimony of Douglas Kmiec, law school dean at the Catholic University of America, during last year's Senate Judiciary Committee hearings on whether a judicial nominee's political ideology should play any role in the Senate's confirmation decision. Kmiec noted that the Anti-Federalists, who opposed ratifying the Constitution, were very concerned about how much discretion judges might exercise. Kmiec asserted that Alexander Hamilton "responded to this criticism by emphasizing that it was not the job of judges to make law, that their role under the Constitution was simply to enforce the Constitution and laws as they were written." Under the principle of separation of powers, "lawmaking was left to the legislature and the people themselves." To remain true to the Founders' vision, Kmiec declared, the Senate should not endeavor to discern a nominee's ideology. On the contrary, any nominee who suggested that ideology may influence the work of statutory or constitutional adjudication should be rejected. Kmiec concluded that, after determining that a nominee possesses the requisite professional qualifications, Senate inquiry should be limited to discerning "whether the nominees coming before you are willing to abide by the text of statutory law as you have authored it." But did the Founders actually believe that statutory and constitutional interpretation could be 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000453 reduced to a nondiscretionary exercise of following text and discerning intent? As is usually the case when one fully engages the thought of those men, things turn out to be a good deal more complex. A Cloudy Medium Begin with language itself. If you read only our most prominent journals of conservative thought, you might conclude that the idea that "meaning" is often indeterminate is a recent invention of deconstructionist literary critics. In fact, the Founders embraced the very same notion. Here is James Madison writing in The Federalist: "[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately the objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition may be rendered inaccurate by an inaccuracy of the terms in which it is delivered. ... When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful through the cloudy medium through which it is communicated." During the constitutional ratification debates, future Chief Justice Oliver Ellsworth made the same point more succinctly: "The charge of being ambiguous and indefinite may be brought against every human composition, and necessarily arises from the imperfection of language." 'More or Less Obscure' Take first the case of statutory interpretation. Within proper bounds, the Founders believed that judicial interpretation was an extension of the legislative process itself. Madison made the point thus: "All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." And Hamilton wrote: "Laws are a dead letter without courts to expound and define their true meaning and operation." What is more, the Founders explicitly asserted that sometimes a judge would be justified in ignoring legislative intent. They fully expected that there would be occasions when a legislature, yielding to the passions of the moment or corrupt influence, would pass unjust laws. Then it would be proper for a judge to disregard legislative intent in favor of equity. Thus, Hamilton said in The Federalist, legislatures might enact constitutional laws that were nevertheless "unjust and partial" in operation. In such cases, "the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws." Even some Anti-Federalists spoke highly of this practice. One writer praised New York judges for their willingness to construe an unjust statute in a manner that "I will not say evaded the law, but so limited it in its operation as to work the least possible injustice." 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000454 Ambiguity Embraced With regard to the Constitution itself, the Founders were emphatic that its language was necessarily broad and indeterminate. Why, the Anti-Federalists wanted to know, did the Constitution not list precisely every act that Congress could perform? This would be most unwise, Hamilton replied: "Nothing ... can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, so it is impossible safely to limit that capacity." But if the powers of Congress cannot be precisely defined, how will we know when Congress has gone too far? Speaking specifically to the question of division of powers between Congress and the states, Madison said that there would be legitimate disagreement about the Constitution's meaning because judgments about the proper spheres of state and federal authority would not be "free from different constructions by different interests, or even from ambiguity in the judgment of the impartial." In other words, constitutional interpretation could not be reduced to an exact science. In The Federalist itself, Hamilton noted that the Constitution's terms regarding the extent of federal court jurisdiction were subject to at least two interpretations. He then argued in favor of "the most natural and the most defensible construction." He pointedly did not assert that he was positing the single correct construction. What does this mean for the debates over President Bush's judicial nominees? Contrary to Professor Kmiec, the Senate would be truer to the Founders if it expected more of judicial nominees than a pledge to interpret solely through text and intent. The Senate should understand, as did the Founders, that because of imprecise language, unclear intent, unforeseeable developments, and the capacity of legislatures to be swayed, the task of interpretation will inevitably demand a judge's discretion. A Judge’s Past and Present The Chicago Tribune Monday, February 18, 2002 The recent confirmation hearing for U.S. District Judge Charles W. Pickering, President Bush's controversial nominee for the U.S. 5th Circuit Court of Appeals in New Orleans, left many wondering which Pickering to believe. Was he the insensitive right-wing segregationist his critics painted him out to be? Or was he the man his supporters described, a real-life version of Harper Lee's Atticus Finch, who courageously fought the Ku Klux Klan and helped blacks to advance as a New South emerged in the late 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000455 1960s? You can find both Pickerings in his paper trail. As a law student in 1959, he wrote a technically impressive yet emotionally cold- blooded law journal recipe for Mississippi to revive its overturned ban on interracial marriages. His recommendation became law the following year. Democrats, many of whom are seeking payback for the roadblocks Republicans threw up in front of President Bill Clinton's nominees to the bench, hounded Pickering over his past opposition to abortion, gay rights and laws boosting minority voting power. Pickering has also been criticized for his handling of the 1994 case of Daniel Swan, who was convicted of burning a cross in front of the home of an interracial couple. Two other defendants pleaded guilty and received minimal sentences. Swan, because he had gone to trial, faced a mandatory minimum five years in prison. Pickering called Frank Hunger, a friend at the Justice Department who also is a brother-in-law of former Vice President Al Gore, to suggest that prosecutors avoid the mandatory sentence by dropping one of the counts on which Swan was convicted. Prosecutors eventually did drop one count and Pickering sentenced the 20-year-old Swan to 27 months in jail. Was the call a lapse in judgment? Perhaps, but Pickering's concern was one shared by many civil libertarians, that defendants sometimes pay a "trial tax," that is, receive harsher punishment simply for exercising their constitutional right to trial. Pickering was also grilled over his association with Mississippi's notorious Sovereignty Commission, a secretive, state-funded body that from 1956 to 1973 devoted itself to resisting desegregation. During his 1990 confirmation hearing for the district court, Pickering said he never had contact with the committee and denied that it was still in business in the 1970s when he was in the state Senate. When the commission's files were opened to the public in 1998, a document refuted those statements. In the early 1970s, according to the document, Pickering had asked a member of the commission to keep him informed of union activity in a Laurel, Miss., labor dispute. If that was all there was to Pickering's story, the decision would be easy: He would not belong on the appellate court. But it is not the end of the story. There is ample evidence that Pickering has, through words and deeds, made considerable efforts to restore his reputation and improve race relations in the south. His courageous testimony against a Ku Klux Klan leader in 1967 cost Pickering his re-election as a local prosecutor in Mississippi. A decade later, he hired the first black staff member for the Mississippi Republican Party. As a private attorney, he successfully defended a 16-year-old African-American accused of robbery in a racially charged case. He has publicly promoted racial 30 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000456 reconciliation in the South. Perhaps most important, his record on the federal bench has been good. Charles Evers, brother of slain civil rights leader Medgar Evers, and other Mississippi African-Americans are among Pickering's strongest supporters. Is there a statute of limitations on racism? Hugo Black, once a member of the Ku Klux Klan, joined the Supreme Court in 1937 and became one of its most persuasive advocates for civil liberties. Abraham Lincoln had some curious views about relations between the races, yet went on to free America from slavery. That does not suggest that Charles Pickering is Lincolnesque. Bush could have made a better choice. But the choice he made should be confirmed. Campaign to Smear Judicial Nominee Rooted in Ignorance Creators Syndicate, Inc. The Augusta Chronicle Tuesday, February 19, 2002 ONE CAN certainly understand why papers like the Atlanta Journal and Constitution ("Extremist Judge Unfit to Sit on Appeals Court") and the Los Angeles Times ("Say No to This Throwback") are so upset about Charles Pickering, President Bush's nominee for the Fifth Circuit Court of Appeals. After all, the man once testified as a character witness for the Grand Wizard of the Ku Klux Klan. What's that, you say? He testified against the Grand Wizard? In Mississippi? In 1967? Putting himself at political and personal risk? Oh. You say he was a local prosecutor who lost his bid for re-election because he stood up to the Klan? Hmmm. You say this man Pickering, who has been a federal judge (confirmed by the Senate) for 11 years, was asked by Mississippi's governor to serve on the executive committee of the Institute of Racial Reconciliation at Ole Miss? What? He was the one who urged the state's governor and the chancellor of the university to create the institute in the first place? Who's been feeding you this stuff? James Charles Evers? You mean the brother of slain civilrights hero Medgar Evers? He's defending this "extremist" in the pages of The Wall Street Journal? Hmmm. PEOPLE FOR the American Way, the Alliance for Justice and other members in good standing of the character assassination coalition have been faxing false accusations about Pickering far and wide. Some of those faxes landed on Evers' desk. Evers, who has known Pickering for decades, was "saddened and appalled to read many of the allegations that have been put forth about Judge Pickering ... made by groups with a Washington, D.C., address and a political agenda" and without real knowledge of "Pickering's long and distinguished record on civil rights." 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000457 Evers notes that Pickering did more than face down the Klan. While in private practice, he defended an African-American man accused of robbing a white 16-year-old at knifepoint. After two trials, the man was acquitted. People for the American Way is making much of a 1990 denial by Pickering that he ever had contact with the racist Mississippi Sovereignty Commission. PAW has uncovered a phone call with a commission staffer dating to 1972. But that phone call dealt with Pickering's concern over a labor dispute in Jones County. According to reporting by National Review's Byron York, the KKK had been making trouble, and Pickering, then a state senator representing Jones County, was keeping tabs on the situation. That one phone call is the entirety of Pickering's "contact" with the Sovereignty Commission. As a federal judge, Pickering once overturned a damage award in a civil case because he believed that the jury was biased against the plaintiffs, an interracial couple. He ordered that the matter of damages be retried and the award for the couple was thus increased. WELL, SAY the liberal activists, Pickering joined a law firm one of whose partners was a former segregationist. How many Southern law firms in the 1970s did not contain former segregationists? The Supreme Court of the United States and the U.S. Senate both contain or have contained not just former segregationists but former members of the KKK. The key term is "former" -- "was blind but now I see." Besides, we are talking here of a law partner, not Pickering himself, who never was a segregationist. The very worst the mud-slingers on the left could find about the fellow was a 1959 law review article in which Pickering pointed out the poor wording of an anti-miscegenation statute. The 21-year-old Pickering did not, in the article, make the case against the law. But in a four decade career in the law, Pickering has shown himself to be an eminently fair and reasonable jurist. He has recommended to some convicted felons that all was not lost; that they still might turn their lives around by participating in Chuck Colson's Prison Fellowship. Oops, another red flag. PAW says this is evidence of Pickering's "disregard for the separation of church and state." THIS ATTACK on Pickering is so obviously malicious and in such bad faith that one wonders why anyone takes these liberal groups seriously anymore. They have cried wolf so many times about so many honorable men and women that they have brought shame on themselves. They have become the thing they claimed to detest: McCarthyites. Creators Syndicate Inc. A Case Without Merit; The Nomination of a Broadly Admired Federal Judge in Pittsburgh is Being Challenged Because of Political Pique. Ken Gormley and Frederick W. Thieman Defend Judge D. Brooks Smith Against the Calumny 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000458 The Pittsburgh Post-Gazette Sunday, February 17, 2002 A Washington-based public interest coalition has launched an attack on Chief U.S. District Judge D. Brooks Smith, a Republican sitting in Pittsburgh, who has been nominated by President Bush to fill a vacancy on the 3rd U.S. Circuit Court of Appeals. The byzantine process of appointing federal judges usually does not grab public attention. But be assured that the outcome of this case will have a dramatic impact on every citizen in Western Pennsylvania. Our federal court handles the most serious drug cases, white collar crimes, constitutional and environmental matters, and high-stakes suits involving out-of-state businesses. For years, though, it has been struggling to operate on two cylinders, due to insidious political warfare that has left our region with a growing number of unfilled vacancies. In the latest shot across the bow, the Community Rights Counsel (aligned with Democratic interests), has written a letter to key Senate Judiciary Committee members, seeking to sink Judge Smith's nomination. Unfortunately, what is couched as a critique of Judge Smith's record is a stiff dose of political payback. It unfairly impugns the reputation of a sterling member of our federal bench -- and perpetuates a longstanding political grudge match that cannot possibly benefit the citizens here. As Democratic members of the bar in Western Pennsylvania, we strongly urge the Community Rights Counsel to reconsider this dangerous political strategy. It is no secret what events precipitated this assault on Judge Smith's nomination. For the past six years, during the Clinton administration, Republican Sen. Rick Santorum blocked every Democratic nominee to the federal court, based upon blatant, hardball political tactics that harmed our region. Now Democrats are prepared to give it back to the Republicans in spades. We sympathize with the frustration of Democratic interest groups. We also agree that it is crucial to challenge any White House nominee who is not suited -- by virtue of temperament or extreme judicial philosophy -- to hold these influential federal appointments. But Judge D. Brooks Smith is not an extremist, by any stretch of that term. He received the highest rating (unanimously) from the American Bar Association and the top rating from the Allegheny County Bar Association. Since his appointment by President Reagan in 1988, Judge Smith has earned the universal respect of judges and lawyers in Western Pennsylvania, regardless of party affiliation. Stacked up against one negative letter written by the Washington coalition, over a hundred letters have been written to the Judiciary Committee in support of Judge Smith's nomination by notable Western Pennsylvania lawyers, judges, public officials and organizations. These include letters from six former U.S. attorneys (under Democratic and Republican presidents); numerous members of Congress of both parties; all 10 of Judge Smith's colleagues on the federal district court, seven of whom were appointed by Democratic presidents; the president of the Pennsylvania Bar Association; the deans of Duquesne and Pitt law schools; the Women's Bar Association; a former president of the local ACLU; dozens of members of the 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000459 criminal defense bar; and judges from the Supreme Court Superior Court of Pennsylvania (both Democrats and Republicans). Federal judges, unlike elected political officials, cannot respond when attacked in the arena of public opinion. Their positions bind them to silence. Their reputations are the only currency that they bring to the bench in resolving society's most difficult conflicts. If the Democrats in Washington wish to take aim at objectionable candidates, this is the wrong target. Moreover, the charges leveled against Judge Smith by the Community Rights Counsel are misinformed at best: * They assert that Judge Smith took "trips paid for by companies and interest groups," a claim that is overblown. The Judicial Conference of the United States has permitted the types of trips cited by the Community Rights Counsel, for the purposes of continuing education, so long as the judge determines there is no actual or potential conflict with pending cases. Most federal judges in the United States -- both Democrats and Republicans -- attend such seminars. Although there has been a recent movement to introduce legislation to limit such trips, it is still the subject of honest debate. * They state that Judge Smith accepted a plea bargain in U.S. vs. Action Mining that was "too low." This is unsupportable. Judge Smith's fine of $50,000, after this small mining company had already been slapped with $625,000 in civil penalties, was considered within the normal range. Then-U.S. Attorney Harry Litman, whose office prosecuted the case, viewed Judge Smith's sentence as fair, reasonable and a victory for the U.S. government. * They assert that Judge Smith spoke out against the Violence Against Women's Act, in 1994, which is true. Most of the federal judiciary in the United States, and many state judges, opposed this law. It shifted sensitive abuse cases from the state courts (which were arguably better equipped to handle such matters) to the federal judiciary (which was already overtaxed). Although many of us supported the Violence Against Women's Act, others thought there were better ways to accomplish its important policy goals. As a lawyer, prosecutor and state judge, Judge Smith handled countless abuse cases involving female victims. It is unfair to oppose a nominee for expressing sincere views as to how best handle this sensitive body of cases. * * * Not a single judge or lawyer who has dealt with Judge Smith during his 14 years on the federal bench, to our knowledge, has seriously questioned his fairness, impartiality or absolute competence. Writing to Sen. Patrick Leahy, Amy J. Greer, president of the Allegheny County Bar Association, indicated the local bar association's "full support" for Judge Smith's nomination to the appellate bench. The public interest demands that a first-rate federal appeals judge be appointed to fill a crucial 34 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000460 vacancy on our court. Members of our bar have a tradition of respect for judges, of any political affiliation, who earn it. Judge Smith will be a credit to all lawyers, judges and citizens of Western Pennsylvania. That, rather than settling political scores, should be the guiding polestar. NOTES: Ken Gormley is a professor at Duquesne University School of Law. Frederick W. Thieman, a partner at Thieman & Kaufman, is a former U.S. attorney for the Western District of Pennsylvania. The Role of Ideology in Judicial Selection: Test Case By Stuart Taylor, Jr. The National Journal Saturday, February 16, 2002 Federal District Judge Charles Pickering Sr. of Mississippi has the misfortune of being the first Bush federal appeals court nominee openly targeted by liberal groups and Senators determined to block the President from transforming the lower courts-and, if he gets a chance, the Supreme Court-into conservative bastions. So, poor Pickering finds himself trashed as "a throwback to the old, segregated South," in the words of Marcia Kuntz, of the liberal Alliance for Justice. That makes Kuntz a contender for the 2002 John D. Ashcroft award, given (by me) for the ugliest smear of a nominee in the tradition of then-Sen. Ashcroft's 1999 trashing of Missouri Supreme Court Judge Ronnie White as a "procriminal" jurist with "a tremendous bent toward criminal activity." (White's criminal activity consisted of voting to reverse death sentences and convictions in a fraction of his cases.) Pickering, 64, an anti-abortion conservative who would sit on the U.S. Court of Appeals for the 5th Circuit-which covers Mississippi, Texas, and Louisiana-seems a decent man and a diligent, if often-reversed and undistinguished, judge. He may not be quite the paragon of courageous leadership in the struggle for racial equality his supporters portray. But he is hardly the racially insensitive "throwback" portrayed by some of his liberal opponents. But this battle is not primarily about Pickering. And the major combatants are not animated by whether his heart is tainted by racism (there is no recent evidence it is), or whether he has seemed forthcoming about long-past, race-related episodes that have drawn criticism (he has not), or whether he seems a basically ethical person (he does), or whether his judicial opinions are well-crafted (they are not). Although such issues are debating points, this is a battle about power-the power to shape the liberal-conservative balance on the federal appeals courts. Appellate judges get little media attention, but they exercise vast influence over national policy on virtually all controversial issues. They also have the last word in 99.7 percent of all federal cases. Bush would like to create conservative majorities on most or all of the 13 appeals courts. Liberals are desperate to avert such a shift. 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000461 Supreme Court confirmation battles have focused on the nominees' ideology since two decades before the climactic 1987 rejection of Judge Robert Bork. Until recently, the Senate tended to rubber-stamp any lower-court nominee equipped with a pulse, a law degree, and a clean criminal record. Deference to the President's choice was the norm. But now, Republicans complain that Senate Democrats, their academic auxiliaries, and liberal groups are openly calling for an ideological litmus test to block strongly conservative Bush nominees to the appeals courts. Democrats have a pretty good rejoinder: The Republicans started it by mounting what People for the American Way President Ralph G. Neas calls "an unprecedented partisan and ideological blockade" to derail an unusually high 35 percent (or 24 candidates) of Clinton's appeals court nominees from 1995 to 2001 without even giving them hearings. In some cases, Republican Senators (apparently including Ashcroft) used anonymous "holds" to stall individual nominees-one lasted for a record-breaking four years. Even White House Counsel Alberto R. Gonzales admitted to CNN in August that this Republican stalling had been wrong. The result of this stall was that Bush inherited an unusually large number of vacancies when he took office. And Senate Democrats are understandably reluctant to reward past Republican obstructionism by helping Bush fill these vacancies with conservatives. If all of Bush's current nominees are confirmed, Neas says, 11 of the 13 appeals courts (up from seven now) will be controlled by Republican-nominated judges. Such partisan labeling of judges might have sounded strange two or three generations ago. But with the ever-greater politicization of the law over the past 50 or more years, the party registration of the nominating President has become the best rough predictor of how a federal appellate judge is likely to vote in the most-controversial cases. Small wonder that the confirmation process has degenerated into a downward spiral of partisan brawling. What role should ideology play in the confirmation process for appellate nominees? It depends on where you sit. When Bill Clinton was President, Republicans infuriated Democrats by stalling or killing nominees they deemed to be too liberal. Now that Bush is President, Democrats endorse ideological vetoes (of conservatives) and Republicans are shocked-shocked!to see the process politicized. A more neutral principle might be this: In the interest of filling vacancies within a reasonable amount of time, and encouraging first-rate lawyers to accept nominations without fear of an everlonger and more harrowing confirmation process, Senators should ordinarily give considerable deference to the President's choices. But deference has a limit. The limit is that Senators can and should use their "advise and consent" power to keep the judiciary as a whole reasonably representative of the American people, rather than allowing the President to suddenly tilt the courts to the left or the right of center. While courts have not traditionally been seen as representative bodies, they have claimed many of the powers once exercised by those bodies. And Bush's hotly disputed victory in the freakishly close 2000 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000462 election gave him no mandate to make the third branch of government dramatically more conservative. This does not mean that the Senate should indiscriminately block the most-conservative nominees. Indeed, the Democrats should stop stalling stellar conservatives such as John Roberts and Miguel Estrada, two leading appellate advocates, who would sit on the District of Columbia Circuit, and Michael McConnell, a widely respected constitutional scholar, who would sit on the 10th Circuit. Democratic Senators would be justified, however, in temporarily blocking conservative Bush nominees to keep open vacancies that Senate Republicans unjustifiably prevented Clinton from filling, and in insisting that Bush either renominate the Clinton candidate (as he has done in one case) or choose someone else ideologically acceptable to Democrats. Where would these criteria leave Judge Pickering-whose old friend and chief patron, Senate Minority Leader Trent Lott, R-Miss., has said Pickering will be confirmed "or else"? Pickering is not without virtues. Even opponents who assail his civil-rights record acknowledge that he courageously testified against a Ku Klux Klan leader in a 1967 murder case, when that was a dangerous thing to do. He has long been a leader in organizations seeking to improve race relations in his state and has many admirers there, including some Democrats. Supporters, including James Charles Evers, the brother of slain civil-rights leader Medgar Evers, claim that he "has an admirable record on civil-rights issues." Liberal groups, Democratic Senators, and the Mississippi NAACP vigorously disagree. In a 25page report, People for the American Way asserts that Pickering's opinions "suggest a hostility to civil and constitutional rights" and faults him for a rigidly conservative ideology; for his high rate of reversal on appeal, including 15 cases in which the 5th Circuit found that he had misread "well-settled principles of law"; for his use of a judicial opinion as a forum to criticize (while construing narrowly) the Supreme Court's one-person-one-vote precedents; for disparaging comments about black job-discrimination plaintiffs whose claims he considered weak; and for his unconvincing explanations of several decades-old, disputed episodes, including his authorship of a law review note advising the Mississippi Legislature on how to fix a technical flaw in its anti- miscegenation law, the better to enforce it against interracial couples. (That was in 1959, when Pickering was a 21-year-old law student.) Critics also suggest that he violated an ethical rule when he phoned a high-level Justice Department official in 1994 to protest a prosecutor's insistence on a five-year mandatory prison term for a man convicted of burning a cross on an interracial couple's lawn. As for Pickering's judicial opinions, a quick scanning calls to mind Sen. Roman Hruska's legendary 1970 encomium to Supreme Court nominee G. Harrold Carswell: "Mediocre judges and people and lawyers ... are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Indeed we can't. None of Pickering's blemishes seems clearly disqualifying, and ordinarily 37 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000463 deference to the President's (and the Minority Leader's) choice might argue for an unenthusiastic vote to confirm. But this is not an appropriate case for deference. The reason is that Senate Republicans kept three seats open on the 5th Circuit for Bush to fill by blocking three Clinton nominees from even getting votes. Until the Republicans rectify that obstructionism, maybe Pickering should wait. Terry Eastland: Bush Not Fighting for Judicial Nominee By Terry Eastland The Dallas Morning News Monday, February 18, 2002 In May, even as Vermont Sen. James Jeffords prepared to leave the Republican Party, President Bush decided to nominate federal District Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals, which encompasses Texas, Louisiana and Mississippi. Mr. Pickering has endured not one but two Senate Judiciary Committee hearings. Today, his nomination is in doubt. And the main reason it is can be traced to Mr. Jeffords' departure from the GOP. Before he left, the two parties had the same number of senators: 50. But the GOP controlled the Senate on the strength of Vice President Dick Cheney's authority to cast tie-breaking votes. Mr. Jeffords' departure he became an independent reduced the GOP number to 49. The Democrats thus gained control, an event of predictable consequence for judicial appointments. Most judicial nominees are confirmed regardless of who controls the White House or the Senate. But when, as now, there is divided government with one party in control of the White House and the other the Senate more nominations are likely to be contested and defeated than when the same party controls both. Had Mr. Jeffords remained a Republican, Mr. Pickering would have been confirmed long ago. He was unanimously confirmed for the district court in 1990, and the American Bar Association has rated him "well qualified." Even now, if he could be voted out of committee, he would stand a good chance of winning confirmation, since two Democrats Fritz Hollings and Zell Miller have voiced their support. Mr. Pickering's problem, however, is how to get from here to there from the committee, where the Democrats hold a 10-to-9 edge, to the Senate floor. The Judiciary Committee is territory patrolled by Patrick Leahy (the chairman), Edward Kennedy, Joseph Biden, Herbert Kohl, Dianne Feinstein, Russell Feingold, Charles Schumer, Richard Durbin, Maria Cantwell and John Edwards, most of whom are exquisitely attuned to the imprecations of left-wing interest groups, such as People for the American Way and Alliance for Justice. Those groups have pushed hard, and so far successfully, against the nomination. Mr. Pickering himself has the misfortune of having virtually invisible White House support. He was chosen largely out of deference to a senator, his longtime friend Trent Lott, who began pitching for the judge's elevation to the 5th Circuit when he was Senate majority leader. 38 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000464 Had Mr. Lott not lobbied for Mr. Pickering's nomination announced on May 25, one day after Mr. Jeffords fled the GOP Mr. Bush probably would have selected someone else. Mr. Pickering, after all, is a few months away from 65, the age a judge may take senior status. Nor, his ABA rating aside, is he a legal superstar, someone likely to shape the law of the 5th Circuit. "We did this solely to please the then majority leader," one White House official told me. "It's his guy, and it's up to him to get him confirmed." That task would be far easier were the "then majority leader" still the majority leader. Rarely making headlines, the Pickering nomination has become a series of stories within a story. Some Democrats are motivated against the nomination because they don't like the way Mr. Lott ran the Senate. Others are inclined against the nomination as payback to Republicans for their sometimes slow processing of Clinton judicial nominees, including three for the 5th Circuit who failed even to get hearings. Also, there are Clinton Justice Department lawyers who butted heads with Mr. Pickering over their sentencing recommendations in a cross-burning case and are laboring against him behind the scenes. And, of course, there are the liberal interest groups, back after eight years on the sidelines, picking at Mr. Pickering as a warm-up for the real battle over a Bush nominee to the Supreme Court. Substantively, the case against the nominee is unimpressive. He grew up in segregated Mississippi, but the left's effort to portray him as "insensitive" to civil rights is misguided and unfair: In 1967, as an elected county prosecutor, Mr. Pickering testified against the imperial wizard of the Ku Klux Klan, an act of moral courage that cost him his office. Mr. Pickering does hold conservative political views. But, contrary to concerns voiced by the law firm of Leahy, Kennedy, Biden, et al., his record on the bench isn't that of a judge who fails to distinguish between his own personal and political views and what the law says. Of course, none of that may matter, since the Democrats have the power to defeat his nomination. This is the Jeffords effect, and the jury is out on whether Mr. Lott can overcome it. He might, but probably not, unless Mr. Bush, stingy with expenditures of his considerable political capital, finally decides to join the battle. Interest Groups/Press Releases NAACP Denounces Pickering Confirmation During Press Conference at Annual Meeting NAACP Saturday, February 16, 2002 Kweisi Mfume, President & CEO, of the National Association for the Advancement of Colored People (NAACP) said today that the Association stands firm in its absolute opposition to the confirmation of Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit at a press conference held here during the Annual Meeting. 39 18-2091-B-000465 Document ID: 0.7.19343.7238-000001 Mfume said: "We will continue to demand fairness on the part of those empowered to interpret the laws of our nation. We are opposed to the Pickering confirmation because we decry a judicial nomination process where civil rights and civil liberties, and equal protection under the law are forced to take a back seat to partisan politics and political affiliations." Mfume added: "Accordingly and rightfully so, we stand firm as an organization in our absolute opposition to the Senate confirmation of Judge Charles Pickering of Mississippi, and we stand united against all others whose judicial records give rise to suspicion about their ability to render impartial judgment and fair interpretation of federal law." Julian Bond, Chairman, NAACP Board of Directors said: "The NAACP was created to fight for freedom and justice in a nation dedicated to those goals. We must continue to fight now with renewed determination. Each of has a role to play as guardians of our nation's liberty, and that is the role history has assigned to us." Mfume called on the Congress to join the Association in the fight to defeat the Pickering confirmation, and challenged the members to help fight against hate crimes and racial profiling. He also urged them not to ignore the AIDS epidemic both in Africa and at home. "These are wrongs that must be confronted," Mfume said. "We are compelled to act responsibly before the world to better humanity, and ultimately, to better ourselves." In light of the September 11th tragedies, Mfume said: "By moving our Annual Meeting back to New York, the NAACP honors the world's leading city and its residents along with the scores of Americans who are resolved to defend the ideals of a free and open society. This is the city of our birth, and we stand in solidarity with New Yorkers." The NAACP was founded in New York City on the 100th anniversary of President Abraham Lincoln's birthday, which was February 12, 1909. The Association last held its annual meeting in New York in 1998. The meetings were held in Washington, D.C. between 1999-2001. The National Association for the Advancement of Colored People (NAACP) is the nation's oldest and largest civil rights organization. Its half-million adult and youth members throughout the United States and the world are the premier advocates for civil rights in their communities and monitor equal opportunity in the public and private sectors. 40 AMERICAN PVERSIGHT Document ID: 0.7.19343.7238-000001 18-2091-B-000466 Anderson, Carl A Anderson, Carl A Thursday, February 21, 2002 5:35 PM Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James; Goodling, Monica Subject: judicial media review Attachments: Judicial Media Review 2-21-02.wpd From: Sent: To: Please see attached review 18-2091-B-000467 Document ID: 0.7.19343.7244 Media Review - Judicial Nominations Thursday, February 21, 2002 General Judicial Articles "Campaign To Block Nomination Gets Ugly," Brit Hume, Fox News, February 19, 2002 2 "Nation; Inside Politics," Greg Pierce, The Washington Times, February 20, 2002 3 "New Conflict Allegation Surfaces Against Appeals Court Nominee," Ann McFeatters, Pittsburgh Post-Gazette, February 21, 2002 4 "Group Asks Senate Judiciary Committee to Investigate Bush Nominee," The Associated Press State & Local Wire, February 21, 2002 5 "Black Case Could Sideswipe Nominee," Ann McFeatters, Pittsburgh Post-Gazette, February 20, 2002 7 "U. Kentucky law prof appointed to Circuit post, awaits confirmation," Steve Ivey, University Wire, February 20, 2002 10 "Liberal Groups Question Nominee's Role in '97 Case; Appeals Court Choice Accused of Acting Improperly," Edward Walsh, The Washington Post, February 20, 2002 12 "Pickering Fight Shows Liberals at Their Worst," Morton Kondracke, Roll Call, February 21, 2002 14 "The Pickering Beat: The embattled judge gets help from some unexpected sources," Terry Eastland, The Weekly Standard, February 21, 2002 17 "Shop Talk," Amy Keller, Roll Call, February 21, 2002 18 Op/Eds "Mississippi Burning Democrats Prepare to Immolate an Unlucky Bush Judicial Nominee," Philip Terzian, Pittsburgh Post-Gazette, February 21, 2002 18 "Pickering’s Courage Demands Confirmation," 20 1 18-2091-B-000468 Document ID: 0.7.19343.7244-000001 The Sun Hearld (Biloxi, MS), February 20, 2002 Transcripts/Members of Congress *NONE* Interest Groups/Press Releases "Civil Rights Coalition Launches Campaign for Fair and Impartial Judiciary; Highlights 23 Opposition to Charles W. Pickering Sr.’s Confirmation," AScribe Newswire, February 20, 2002 http://www.fairjudges.org/ General Judicial Articles Campaign To Block Nomination Gets Ugly By Brit Hume Fox News Tuesday, February 19, 2002 And now the most absorbing two minutes in television, the latest from the wartime grapevine. The campaign on the left to block the nomination of federal Judge Charles Pickering of Mississippi to the U.S. Court of Appeals may have succeeded; not a single Democrat on the Senate Judiciary Committee seems willing to let the Pickering appointment reach the Senate floor. But the tactics of Pickering's opponents proved too much for even the reliably liberal Washington Post, which over the weekend called it "an ugly affair" and "the latest example of the degradation of confirmation process." The Post said Pickering's critics have focused not on his qualifications, but have "tried to portray him as a barely reconstructed segregationist." And the New York Times reports that the opposition to Pickering from national liberal and civil rights groups is not shared bythe largely black residents of his hometown of Laurel, Miss. There, said the Times, "many say they admire his efforts at racial conciliation, which they describe as highly unusual for a white Republican in the state." The Times adds, "the city's black establishment overwhelmingly supports his nomination." Nation; Inside Politics By Greg Pierce 2 18-2091-B-000469 Document ID: 0.7.19343.7244-000001 The Washington Times Wednesday, February 20, 2002 *EXCERPT* Unmanly behavior Sen. John Edwards, a former trial lawyer, "has landed in hot water with the nation's leading antitobacco lawyer" because of the North Carolina Democrat's harsh questioning of federal appeals court nominee Judge Charles W. Pickering Sr., Roll Call reports. Mr. Edwards, in a recent confirmation hearing for Judge Pickering, refused to let the judge respond fully to his questions, instead demanding "yes" and "no" answers about the sentencing of a man involved in a cross-burning on the lawn of an interracial couple. Although Mr. Edwards, in a speech last week before California Democrats, bragged about his treatment of Mr. Pickering, others have questioned Mr. Edwards' behavior and what The Washington Post on Sunday described as that and other "ugly" and misleading attempts to defame the judge. Trial lawyer Dickie Scruggs "has vowed to rally other trial lawyers to his anti-Edwards campaign," reporter Paul Kane writes. Mr. Edwards' disrespectful behavior toward the judge "wasn't the manly thing to do," Mr. Scruggs said. Grotesque reminders Northern Virginia's Dulles chapter of the National Organization for Women says it "was recently contacted by groups tied to the Democratic Party and asked to join the current nasty efforts" to derail the nomination of federal Judge Charles W. Pickering Sr.'s nomination to a U.S. appeals court. "We refused," the group said in a prepared statement. "Instead, we are pleased to join the ranks of all those who support him." The group added: "The vicious anti-Pickering smears have even less to do with women's rights, coming as they are from groups who unwaveringly supported sexual harassment and perjury in high office. They are but grotesque reminders of the discredited politics of personal destruction." NEW CONFLICT ALLEGATION SURFACES AGAINST APPEALS COURT NOMINEE By Ann McFeatters Pittsburgh Post-Gazette 3 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000470 Thursday, February 21, 2002 A new allegation surfaced yesterday that U.S. District Judge D. Brooks Smith did not disqualify himself soon enough in yet another high-profile case in which he had a potential conflict of interest. On Tuesday, the Senate Judiciary Committee plans to begin hearings to determine whether it should recommend Smith, 50, of Altoona, Pa., to the full Senate for confirmation to the 3rd U.S. Circuit Court of Appeals in Philadelphia. Smith, appointed to the District Court for Western Pennsylvania in 1988 by President Ronald Reagan, has been nominated to the Circuit Court by President Bush. Senate investigators already are looking into whether Smith failed to disclose a substantial financial interest in a bank that was involved in the Securities and Exchange Commission's successful civil fraud lawsuit against John Gardner Black. Black is an investor who defrauded 75 Pennsylvania school districts of $69.5 million in the mid-1990s and is serving prison time. Smith recused himself after a month of sitting in judgment on the Black case, revealing that his wife was employed by Mid-State Bank, which was accused of complicity in Black's fraud and ultimately repaid districts $51 million to satisfy a court settlement. A U.S. Justice Department official who shepherds administration judicial nominations looked into the conflict allegation and found none, saying Smith's recusal on Oct. 31, 1997, demonstrated an "excess of caution." But several legal ethicists say Smith's action raises questions that the Senate panel should consider, including whether rulings he made benefitted Mid-State, in which Smith also maintained a significant portion of his assets. Sen. Rick Santorum, R-Pa., is "confident in his support of the judge's nomination. He understands this is part of the process of confirming such nominations," a spokeswoman said. Smith, she said, "is a sitting judge, and that attests to the caliber of nominee that he is. He has a lot of support in the legal community." Yesterday, new documents provided by Doug Kendall, a lawyer and executive director of a landuse activism group, Community Resources Counsel, which has questioned Smith's nomination on ideological grounds, indicated that Smith again sat on the bench when federal authorities filed a criminal suit against Black in 1999. He said Smith continued to sit for five months on that second case, although he still had assets in the bank that Black had used, and that Smith's wife continued to work as an officer for the bank. After Black's lawyers filed a motion that Smith recuse himself, the judge agreed to withdraw on Nov. 1, 1999, but still did not disclose his financial interest in Mid-State Bank. Smith wrote in a memo that some of Black's reasons for requesting his recusal were "nonsense" and "would not cause a reasonable person to question this judge's impartiality." He cited facts noted by Black that his family and the judge were friends, that they had lived in the same town, that Smith attended school in a district Black was accused of defrauding and that Smith had questioned 4 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000471 Black's credibility in the civil case. But Smith said that, despite having recused himself from Black's civil case because of the likelihood that the bank which employed his wife would "figure prominently" in it, he didn't believe when he met the criminal case lawyers in July 1999 that he should withdraw again. When Black's lawyers eventually did ask for his recusal, Smith said, their probable evidence convinced him that Mid-State would "figure substantially" in the case, and that bank officials might be critical witnesses, so "recusal is the only appropriate course." Federal law and the American Bar Association Code of Ethics require a judge to disclose all possible conflicts of interest to lawyers involved in a case, even if he or she thinks there is no reason for disqualification. Supporters of Smith's nomination said they were satisfied that he had indicated at the start of the criminal case that there was no reason to anticipate a conflict and that he withdrew when he saw one. Although 27 environmental, civil rights and women's groups say they are troubled by what they view as the conservative nature of Smith's prior court opinions, they haven't called upon the Senate to reject his nomination. Nor is Kendall yet asking for that, but he did say: "It's hard to fathom how Judge Smith could sit on the second case for even a day. It clearly violates federal recusal law and raises serious questions about Judge Smith's fitness for a seat on the appellate bench." Group asks Senate Judiciary Committee to investigate Bush nominee The Associated Press State & Local Wire Thursday, February 21, 2002 An activist organization asked the Senate Judiciary Committee Wednesday for an investigation into improper behavior by U.S. District Judge D. Brooks Smith, a nominee for the U.S. Court of Appeals for the 3rd Circuit. The Community Rights Counsel said in a letter hand delivered to the offices of Sen. Patrick Leahy, D-Vt., and Sen. Orrin Hatch, R-Utah, that Smith made significant court rulings regarding a company in which he had a "very substantial financial interest." Leahy is the chairman on the committee and Hatch is the ranking member. The rulings in question have been investigated by the Department of Justice, which cleared Smith of any wrongdoing. At issue is the trial of John Gardner Black, who pleaded guilty in 2000 to defrauding dozens of 5 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000472 Pennsylvania schools and municipalities. Court records show Black sent bogus statements to the schools to cover losses as high-risk investments went sour and tanked. The Securities and Exchange Commission discovered $69.5 million in losses after a surprise inspection. Smith presided over the trial for a month and issued several rulings before recusing himself. Smith's wife, Karen Smith, was the vice president of the lending department at Mid-State Bank at the time, which was accused of complicity in the scheme. Mid-State Bank, through its parent company Keystone Financial Services Inc., paid $51 million to the schools to satisfy a court settlement. Smith recused himself on Oct. 31, 1997, but critics say he should have disclosed his wife's position with the bank immediately. Smith held $100,000 to $250,000 in Mid-State stock and his wife had the same amount invested in a 401(k) fund with the bank. He did not disclose the investments when he recused himself, but they were listed on a financial disclosure statement required of all federal judges. Those records were brought to light by Doug Kendall, a lawyer with Community Rights Counsel. "This is information we stumbled into when we were looking at judges who were accepting privately funded trips by companies," Kendall said. Smith presided over another trial for five months involving Mid-State Bank two years later before recusing himself at the request of a defense attorney, Kendall said. "Judge Smith again failed to disclose his large financial stake in the bank," a letter to the committee states. David Carle, a spokesman for the Senate Judiciary Committee, would not comment on committee investigations. But he did say investigators review all submitted information. "The committee doesn't turn away new information, but the majority and minority staff review them to determine whether any further investigation is warranted." Federal law requires judges to recuse themselves if their impartiality might "reasonably be questioned." "There is no doubt Judge Smith should have disqualified himself and done it much sooner," said Steven Lubet, a professor of legal ethics at Northwestern University School of Law. "This comes squarely within the statute. It is not ambiguous." 6 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000473 Other legal ethicists say Smith's behavior was improper, but it should not be the sole determining factor in his appointment to the bench. "The fact the judge has made a mistake of this kind is a fact the Senate should consider," said Stephen Gillers, a professor of legal ethics at New York University School of Law. "But there are other factors that go on the scale." Smith is barred by the White House from speaking in his own defense during the nomination process. But supporters point out Smith has received the highest ratings from both the American Bar Association and the Allegheny County Bar Association. Black Case Could Sideswipe Nominee By Ann McFeatters Pittsburgh Post-Gazette Wednesday, February 20, 2002 Senate investigators are expected today to begin looking into whether Western Pennsylvania U.S. District Judge D. Brooks Smith, nominated by President Bush for the Third Circuit Court of Appeals, improperly failed to recuse himself when he issued rulings in the John Gardner Black case, one of the largest cases of investment fraud in Pennsylvania history. The Senate Judiciary Committee is about to consider whether to recommend the confirmation of Smith, 50, a Republican from Altoona with offices in Pittsburgh and Johnstown, and may hold its first hearing on Smith's nomination next week. The Department of Justice, to whom Smith referred inquiries, said it has looked into Smith's handling of the matter and found no fault with his actions. But a Justice official and a Senate aide involved in the confirmation process said the Senate was certain to conduct its own investigation. On Sept. 26, 1997 the Securities and Exchange Commission charged investment adviser Black with defrauding dozens of Pennsylvania school districts and a handful of municipalities by investing in risky securities. Black put the public assets in high-risk, high-yield instruments, expecting their value would rocket, but the investments went sour. As the school accounts dwindled, Black sent false statements to the districts to cover up the losses and repaid early investors with money collected from later investors. Most of Black's investors were rural Pennsylvania school districts that trusted him with bond proceeds earmarked for construction projects. Black is now serving a 41-month term in a federal prison in Morgantown, W.Va. Black's pyramid scheme came to light after SEC auditors found a $71 million hole -- later 7 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000474 revised to $69.5 million -- in Black's books during a surprise audit. The SEC moved quickly after the audit, seeking an emergency order from Smith as part of a civil lawsuit to shut down the businesses and freeze the remaining assets. For one month in 1997, Smith presided over the case and issued a number of rulings before recusing himself on Oct. 31, 1997, citing a conflict of interest because his wife Karen was a vice president in the lending department of Mid-State Bank. Mid-State, through its parent company Keystone Financial Services Inc., was eventually accused of complicity in the Black scheme and repaid school districts $51 million to satisfy a court settlement. At the time, Smith also held $100,000 to $250,000 in Mid-State stock, and his wife had a 401(k) fund invested with Mid-State also valued at between $100,000 and $250,000. Smith did not note these investments in his recusal, but they were listed on the regular financial disclosure statement required of federal judges. One question investigators will have to sort out is whether Smith's rulings before he recused himself could have benefitted Mid-State by reducing its future liability. The Department of Justice said Smith never ruled on Mid-State's liability and therefore had no conflict of interest, and that Smith, in recusing himself because of his wife's job in a different area of the bank, should be "commended for an excess of caution." But Smith was told by Dick Thornburgh, the former Pennsylvania governor and U.S. attorney general who oversaw the management of the case as trustee, that Mid-State's role appeared to be more than that of a depository, and Smith thereafter issued a hotly contested ruling that could have reduced the amount of money Mid-State ultimately had to pay. Thornburgh had pointed out that Mid-State reported to Black's school-district clients that the market value of their accounts was $157,622,923 while at the same time telling Black the accounts were worth only $86,307,513 -- suggesting Mid-State collusion in Black's scheme. At one point, Smith denied a motion by the school districts to unfreeze some of their contested assets because they needed money for operations. He denied similar relief to districts whose assets were not held at Mid-State. Smith later allowed the districts access to half their frozen assets as a temporary measure if they agreed not to ask for more until all contested claims could be sorted out. At the time, one school district called the ruling "economic blackmail." Two weeks before Smith's recusal, some school districts were talking publicly about suing Mid-State. Smith also decided at one point to pool the assets of districts whose money Black had placed at Mid-State with those whose assets were in investments that had not lost so much money. This would have effectively reduced Mid-State's liability and forced districts with assets elsewhere to subsidize the losses of districts whose assets were held at Mid-State. 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000475 This ruling did not stand. The judge who succeeded Smith on the case, Donetta Ambrose, ruled that Smith had improperly combined the Mid-State and non Mid-State assets. The Third Circuit Court of Appeals agreed. The White House yesterday referred questions to Mark Rush of Kirkpatrick & Lockhart in Pittsburgh, who was Thornburgh's lawyer as trustee in the case. Rush said Smith acted properly because during Smith's involvement it appeared Mid-State was only a depository for Black and not a potential partner in his scheme. Toward the end of October, 1997, Rush said, he and Thornburgh told Smith they believed MidState was more deeply involved and on Oct. 24 pulled all the school district money out of MidState accounts. At that point Smith said he would have to recuse himself because of his wife's job, Rush said. Rush said he did not know Smith also held stock in Mid-State but maintains that Smith did not act imprudently. "Does [his financial stake in Mid-State] concern me? Not at all. If I would have seen a reason for Judge Smith to recuse himself prior to Oct. 31, I, as an officer of the court, would have filed a motion myself. It was a big case." Federal recusal law requires judges to disqualify themselves from sitting on a case if their impartiality might "reasonably be questioned." U.S. Code 28, section 455, says judges must know their assets and recuse themselves immediately if they have any financial conflict of interest. The Supreme Court has upheld the law, which was tightened after Clement Haynsworth, a Nixon nominee for the U.S. Supreme Court, was rejected by the Senate in 1969 after he was found to have adjudicated cases in which he had a small financial interest. Steven Lubet, a professor of legal ethics at Northwestern University School of Law, said, "There is no doubt Judge Smith should have disqualified himself and done it much sooner. This comes squarely within the statute. It is not ambiguous." Stephen Gillers, professor of legal ethics at New York University School of Law, said Smith has two problems. "He should have revealed his financial interest in Mid-State and his wife's employment relationship to Mid-State to the parties right away as soon as he learned that MidState had an interest in Black's litigations.... The second problem for Judge Smith is that it appears to me Mid-State certainly had an interest in the rulings Judge Smith might make." While these ethicists said Smith's conduct was an important issue, they said it should not alone decide whether he's confirmed. "Because I find Judge Smith's conduct imprudent," Giller said, "I don't mean to say he should be confirmed or not confirmed. The fact the judge has made a mistake of this kind is a fact the Senate should consider. But there are other factors that go on to the scale. Has he been a really good judge otherwise? Has he generally shown ethical awareness of his responsibilities?" 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000476 Doug Kendall, a lawyer with the environmental activist group Community Rights Counsel, unearthed Smith's financial disclosure records. The group had already raised questions about what it considers Smith's conservative, pro-business rulings. Sen. Rick Santorum, R-Pa., said Smith's record has not yet been vetted by his office and that he needs more information to decide how seriously to consider Smith's possible conflict of interest. Earlier this month, when 27 liberal environmental, civil rights and women's groups expressed concerns about Smith's conservatism on the bench, Santorum dismissed the criticism and said it was coming from Democrats who resented the delays in confirming nominees during the Clinton administration. Sen. Arlen Specter, R-Pa., a leading sponsor of Smith's nomination, has said nothing to indicate his support has waned, but he also has championed strict laws on judicial recusal. In 1994, Specter raised questions about Supreme Court nominee Stephen Breyer's financial interest in a venture involving asbestos and toxic pollutants while he was sitting on pollution cases. Breyer was confirmed, though not unanimously, and Specter called for re-examining the recusal law, saying judges should disqualify themselves if their investments are even indirectly involved in a case. While Smith is barred by the White House from speaking in his own defense, Smith's friends are rallying around him. They point out that he received the highest rating from the American Bar Association and the top rating from the Allegheny County Bar Association. U. Kentucky law prof appointed to Circuit post, awaits confirmation By Steve Ivey University Wire Wednesday, February 20, 2002 Faculty excellence in the University of Kentucky's College of Law has gained the attention of the White House. John Rogers, professor of law, recently received an appointment to the 6th U.S. Circuit Court of Appeals from President George Bush. Paul Salamanca, associate professor of law, said it's a powerful position. Decisions made by the 6th Circuit Court, which oversees federal cases in Michigan, Ohio, Kentucky and Tennessee, can be reviewed only by the U.S. Supreme Court. Allan Vestal, dean of the College of Law, said the Supreme Court reverses few cases, making the appointment "terribly important." Rogers said he is unable to say much about the appointment, other than he is excited about the prospect of being a judge, because his appointment is pending confirmation by the U.S. Senate. 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000477 Vestal said Rogers has spent years cultivating his skills for this position. Rogers received a bachelor's degree in history from Stanford University in 1970 and received his law degree from University of Michigan in 1974. In January and February 1991, he served as special counsel for the Impeachment Committee of the Kentucky House of Representatives. He has been a UK law faculty member since 1978, teaching international law, constitutional law, administrative law, torts, federal courts and legal writing. Vestal said some Circuit Court judges continue to teach, but whether Rogers will be able to continue full time remains a wait-and-see issue. Fellow law faculty members said Rogers is a worthy recipient. "We're all very proud of him," said Salamanca, who has known Rogers since he came to UK in summer 1995. "It's an intelligent nomination." Salamanca added Rogers is precisely the kind of person suited for an appointment. "He is thoughtful, intelligent, open minded and very well versed in the law," he said. "He's one of my favorite people to verbally spar with because he certainly has his own ideas, but he's more than willing to listen." Vestal echoed Salamanca's sentiments. "John is a very good legal scholar," Vestal said. "His background in the Department of Justice and as a teacher and scholar make him the perfect candidate." Vestal also said this was an important credit for UK and the College of Law. "This is a very important distinction for UK," he said. "The fact that we have professors of this caliber speaks well for us." Salamanca said UK should be proud of Rogers' honor. "It's a feather in (UK's) cap," he said. "I think John is one of many faculty we have that are worthy of such a position. It's a real compliment." Law colleagues said they hope this won't be the end of UK's connection with Rogers. "We hope to keep ties with him," Vestal said. "I've suggested he keeps his offices here at UK. We'd like to keep him as involved as possible." "He's a great colleague," Salamanca said. "We wish him well." 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000478 Liberal Groups Question Nominee's Role in '97 Case; Appeals Court Choice Accused of Acting Improperly By Edward Walsh The Washington Post Wednesday, February 20, 2002 A judge who has been nominated by President Bush to a federal appeals court is coming under fire from liberal interest groups who say he acted improperly in a 1997 case involving a bank where his wife worked and in which they had a substantial financial interest. D. Brooks Smith, now the chief judge of the U.S. District Court for Western Pennsylvania, was assigned to the case in late September 1997. In it, the Securities and Exchange Commission accused John Gardner Black, an investment adviser, of defrauding dozens of school districts and other local governments of millions of dollars entrusted to him. On Oct. 31 of that year, Smith removed himself from the case, citing his wife's job as a vice president of an Altoona, Pa., bank where most of the missing funds were held in accounts Black controlled. But by then, Smith had presided over the case for a month and had issued several orders, including one four days earlier that critics say could have benefitted his wife's employer by partly shielding the bank from attempts by Black's victims to recover their losses. In his brief recusal order, Smith also failed to disclose an even larger potential conflict: He and his wife, Karen, jointly owned at least $ 100,000 worth of stock in a holding company that owned the bank. The SEC's civil action against Black, which caused an uproar in western Pennsylvania, has resurfaced now as the Senate Judiciary Committee prepares to hold a confirmation hearing Tuesday on Smith's nomination to the 3rd U.S. Circuit Court of Appeals. A Justice Department spokeswoman said earlier this month that Smith was not allowed to grant interviews, but that written questions could be submitted to him through the department. Yesterday, a senior Justice Department official, who asked not to be identified, said Smith "cannot respond to questions due to deference to the confirmation process." The official said Smith removed himself from the case "out of an excess of caution" and that all of his actions were "proper." Smith, 50, was appointed to federal district court in 1988 by President Ronald Reagan. The challenge to his handling of the Black case is part of a larger struggle over the shape of the federal judiciary. Earlier this month, a coalition of 27 liberal interest groups wrote a letter to the Senate Judiciary Committee contending that Smith's rulings as a district judge "show a disturbing pattern of bias in favor of powerful interests and disregard for the rights and needs of ordinary 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000479 Americans." The coalition urged the committee to scrutinize Smith's record closely before voting on his nomination. The questions about Smith's handling of the case are being raised largely by Doug Kendall, executive director of the Community Rights Counsel, a public interest law firm that was one of the groups that sent the letter to the Judiciary Committee. In a memorandum he has circulated, Kendall argued that some of Smith's rulings "clearly advanced the interests of Mid-State Bank," the Altoona institution where his wife was a vice president and in which they had a financial interest. Kendall cited a Smith order from Oct. 27 -- four days before the judge left the case -- that kept in place a freeze on some of the money that the school districts had turned over to Black to invest. The school districts wanted access to all of their money, but they were also divided into two camps. One group had money invested in a pooled account at Mid-State, where about $ 71 million appeared to be missing. The other group's money was held by other banks and apparently was safe. In court filings, the first group argued that their losses should be shared by all of Black's clients, including those that did not have money at Mid-State. The other school districts argued that they should not be entangled in the case at all. Acting on a recommendation of the SEC and a court-appointed trustee, Smith on Oct. 27 lifted the freeze on half the money, provided that the school districts agreed not to challenge the continuing freeze on the other half. According to Kendall, by maintaining the freeze on half of the funds that were not in the pooled account at Mid-State, "Judge Smith preserved a very large pot of money that could have dramatically reduced Mid-State's litigation exposure." Mid-State Bank was not a defendant in the case and was not accused of wrongdoing by the SEC. The school districts were inconvenienced, but eventually gained access to all of their money when another judge lifted the freeze. In 1999, Keystone Financial Inc., a Harrisburg, Pa., holding company that owned the bank, settled lawsuits filed by more than four dozen school districts for $ 51 million. According to Smith's 1997 financial disclosure statement, he and his wife owned $ 100,000 to $ 250,000 in Keystone Financial stock. Karen Smith also owned $ 15,000 or less in Keystone stock and had a 401(k) plan at Mid-State Bank worth $ 100,000 to $ 250,000. In an interview, Kendall said he was not accusing Smith of deliberately acting to protect those financial interests. "I'm not getting in his head and saying he's throwing this ruling to the bank, but I think it's unquestionable that this ruling was favorable to the bank," Kendall said. "Despite a very serious conflict, he ruled in a case, and he ruled in a way that benefited his financial 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000480 interest." Steven Lubet, a Northwestern University Law School professor, said Smith's decision to rule on the case was "an inexplicable lapse, because the facts are clear and the law is clear and there isn't any question that [Smith] is disqualified, but he continued to sit on this case for 30 days." Lubet said it did not matter that neither Smith nor the bank actually benefited from Smith's rulings. "The 'no harm, no foul' rule doesn't really have a place here," he said. "You expect judges to do the right thing. The disqualification rule is extremely important, because it's a crucial aspect of the legal system that judges should not have an interest in a case." Smith's actions also appear to have put him at odds with standards set more than a decade ago by the 3rd Circuit, the appellate panel he hopes to join. According to Merri Jo Gillette, the lead SEC lawyer, at an Oct. 27 hearing before he partially lifted the freeze, Smith told the attorneys in the case about his wife's job at the bank and "pretty much told us it was his intention to recuse." But Smith stayed on the Black case for four more days and issued more rulings. In a case involving another federal district judge, the 3rd Circuit ruled in 1988 that once a judge recognized a potential conflict, "he should recuse himself immediately" and not issue rulings other than "housekeeping orders." Gillette, however, defended Smith. She said it was not clear at the time what role Mid-State Bank would play in the case. The court-appointed trustee, former attorney general and Pennsylvania governor Dick Thornburgh (R), said, "I never saw any evidence of him favoring the bank." Stephen Gillers, professor of legal ethics at New York University Law School, said judges are required to tell the lawyers in a case of any potential conflict they have. "I can't say [Smith] certainly had to recuse himself," Gillers added. "I can say that a serious argument for recusal is present in these facts, so that Judge Smith should have revealed the information" before making any rulings. Pickering Fight Shows Liberals At Their Worst By Morton Kondracke RollCall Thursday, February 21, 2002 It's time for liberal groups such as People for the American Way and the NAACP to quit using character assassination to defeat conservative judicial nominees - and for Democratic Senators to show some independence from them. Republicans have used defamation against liberal nominees too, as in the branding of Missouri Supreme Court Judge Ronnie White as "soft on crime" in 1999. But the usual pattern when the 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000481 GOP controlled the Senate was to simply deny Democratic nominees a hearing and a confirmation vote. Democrats are learning to do that as well, but they're more adept at character attacks - the most egregious examples being the campaigns against Supreme Court nominees Clement Haynsworth in 1969, Robert Bork in 1987 and Clarence Thomas in 1991. Now the liberal groups are systematically vilifying 5th U.S. Circuit Court of Appeals nominee Charles Pickering as "hostile to civil rights" - read: racist - and as yet no Democrat on the Senate Judiciary Committee has raised a peep of objection. Pickering's chances in Judiciary don't look good. In fact, the evidence suggests that Pickering is a decent, if outspoken, religious conservative who's repeatedly gone out of his way to help African-Americans. Would a racist send his children to newly integrated schools in Mississippi in the 1960s when an all-white "academy" was just down the road? Pickering did. And he kept his son, now Rep. Chip Pickering (R-Miss.), and three daughters in the Laurel, Miss., public schools even when, by the time they graduated, their high school was 70 percent African-American. In majority-black Washington, D.C., white liberals, including some Senators, usually send their kids to private schools. As a county attorney from 1964 to 1968, Pickering helped the FBI prosecute Ku Klux Klansmen and was defeated for re-election because of it. When he ran for the state Senate in 1971, he won with two-thirds support from black voters in his district. This is scarcely the record of someone who represents "a throwback to the days of the segregated South," as Marcia Kuntz of the liberal Alliance for Justice called him. As a state Senator, Pickering did vote twice to fund the notorious Mississippi Sovereignty Commission - at a time, his supporters say, when it claimed to be giving up its failed segregationist mission. Ultimately, it didn't do so and Pickering voted for its dissolution. In 1992, Pickering urged his son, then an aide to Sen. Trent Lott (R-Miss.), to help win membership in the Sigma Chi chapter at the University of Mississippi for Damon Evans, son of the Ole Miss football coach. At that point, no African-American had ever been admitted to a white fraternity, and Evans was facing an anonymous "blackball." Pickering flew down to Oxford, made a speech to the members of his and his father's fraternity, and got Evans accepted. If, as liberals sometimes argue, "the personal is the political," then Pickering's record is that of 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000482 an advocate of civil rights. He was able to get white-owned banks to lend money to black businesses and helped direct federal funds to after-school and medical programs for blacks. In what ought to be a humiliating blow to the anti-Pickering assault brigade, The New York Times last Sunday reported that African-American leaders in his hometown overwhelmingly vouch for him and dismiss charges that he's racially prejudiced. People for the American Way Director Ralph Neas was reduced to saying that those who have watched Pickering at close hand for decades know less about him than Washington activists. I'd trust Mississippi civil rights leader Charles Evers, who backs Pickering, a lot sooner than the NAACP's Julian Bond and Kwesi Mfume, sponsors of one of the most scurrilous campaign ads ever run - the 2000 ad suggesting that George W. Bush's failure to sign a new hate-crimes law in Texas was equivalent to the murder of James Byrd. Neas says he's never accused Pickering of being personally "racist," but that his record is one of "insensitivity" and "hostility" to civil rights. Yet, close examinations by Jonathan Groner in Legal Times and Byron York in National Review pretty clearly discredit Neas' charges that Pickering has been biased in employment and voting-rights cases and was too lenient - and may have behaved unethically - in a cross-burning case. York has demolished the basis for attacks on Pickering by Democratic presidential hopeful Sen. John Edwards (N.C.) in the 1994 cross-burning case. York showed that Pickering believed that the Justice Department had let off the main perpetrator of the incident and that he intervened with Justice not - as Edwards alleged - to secure leniency for the defendant but to hasten a government response to his inquiries. He sentenced the defendant, Daniel Swan, to 27 months in prison. I can't say that Pickering is qualified to serve on the 5th Circuit. The Washington Post, while scolding liberals for their tactics, asserts that Pickering has been a district judge "of no particular distinction." On the other hand, since Democrats have elevated American Bar Association ratings to iconic status, it's worth noting that a majority of its rating committee found Pickering "well qualified" and the remainder, "qualified." Still, Pickering is in trouble. Senate Majority Leader Thomas Daschle (D-S.D.) is against him and Democrats have a 10-8 margin over Republicans on Judiciary, enough to deny him a floor vote. Moreover, the White House isn't fighting very hard for his nomination. Too bad - the guy deserves better. 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000483 The Pickering Beat The embattled judge gets help from some unexpected sources By Terry Eastland The Weekly Standard Thursday, February, 21 2002 WITH THE Senate out this week, Judge Charles Pickering's embattled nomination to the U.S. Court of Appeals for the Fifth Circuit is getting help from seemingly unexpected sources. The first is a February 17 editorial in the Washington Post. The Post editorial page is a neoliberal one and if pressed to pronounce yes or no on the nomination, might, after many nuanced paragraphs, come down politely no. But the Post routinely sticks up for due process-fairness, in a word. And so in this editorial the Post, after making sure the reader knows that Pickering wouldn't have been its choice for the Fifth Circuit, goes after "the liberal groups and Democratic senators" who've been trying "to portray him as a Neanderthal [on race]--all the while denying they are doing so." The Post observes that Pickering's history on race is "actually quite complicated." What the Post means is that it is more complicated than the liberal groups and Democratic senators have made it out to be. No "committed" or "closeted" seg is this Judge Pickering, says the Post, a man who prosecuted the Klan back in the 1960s and testified in open court in 1967 against a major Klan figure, and in recent decades has joined with others of his state in working for racial reconciliation. The second unexpected source of support for Pickering is the New York Times, which on February 17 led its "National Report" with a story from Laurel, Mississippi, Pickering's hometown. David Firestone reported that in Laurel, "Pickering is a widely admired figure." Indeed, "the city's black establishment overwhelmingly supports his nomination." It's no secret that journalists with liberal views run the Times. But Firestone's story is the kind I'd expect from news pages supervised by executive editor (and former editorial page editor) Howell Raines, who, like Pickering, grew up in the segregated South (Alabama) and has been known to order up fresh reporting where the story, as here, involves race and the South. This is not to say that Raines, were he still running the editorial page, would actually support Pickering. But Firestone's reporting shreds the left's portrayal of the 64-year-old judge as "an ideological relic of the Old South." The third source is Dickie Scruggs, the trial lawyer from Pascagoula, Mississippi, who spearheaded the legal challenge to the tobacco industry. Scruggs is a Democrat who has helped raise big money for Democrats. (He is also married to the sister-in-law of Senate minority leader Trent Lott, Pickering's friend and biggest supporter.) But, as Roll Call's Paul Kane reported on February 18, Scruggs is upset with the way his fellow trial-lawyer, Democratic senator John Edwards, queried Pickering about a 1994 cross-burning case. Actually, it is more accurate to say 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000484 that Edwards skewered Pickering, a long-time friend of Scruggs's, twisting and even botching facts (detailed by National Review Online's Byron York) to portray the judge in the worst light possible. Scruggs, who took in Edwards's over-the-top performance from his seat in the hearing room, told Roll Call that he might withdraw his support for Edwards, who has presidential ambitions, and encourage his trial-lawyer brethren not to back him. Trial lawyers, it should be noted, have been heavy contributors to Edwards. Whether or not Scruggs carries out his threats, at least he called Edwards on his deplorable behavior. Thanks to the Post, the Times, and Dickie Scruggs, things are looking up for Judge Pickering. At least this week they are. The Senate will be back in session next week. Shop Talk By Amy Keller Roll Call Thursday, February 21, 2002 *EXCERPT* "Mr. Backlin is going to be a tremendous asset in leading the charge for Christian Coalition's aggressive 2002 legislative agenda," said Roberta Combs, president of the Christian Coalition. Top items on the organization's agenda this year include opposing the Shays-Meehan/McCainFeingold campaign finance reform measure currently under consideration and supporting a bill by Sen. Sam Brownback (R-Kan.) that would ban all forms of human cloning. The group is also lending its support for President Bush's judicial nominee for the 5th U.S. Circuit Court of Appeals, Judge Charles Pickering of Mississippi. Op/Eds MISSISSIPPI BURNING DEMOCRATS PREPARE TO IMMOLATE AN UNLUCKY BUSH JUDICIAL NOMINEE By Philip Terzian Pittsburgh Post-Gazette Thursday, February 21, 2002 A federal district court judge named Charles Pickering is not likely to be promoted to the 9th U.S. Circuit Court of Appeals. It is true that he was nominated last spring by President Bush. But after Vermont Sen. James Jeffords defected from the Republicans in August, giving Democrats control of the Senate, his colleague, Patrick Leahy, became chairman of the Judiciary 18 18-2091-B-000485 Document ID: 0.7.19343.7244-000001 Committee, and judicial confirmations came to a screeching halt. Democrats on the Judiciary Committee are likely to vote unanimously against Pickering's nomination, thereby killing it. This is an interesting, and instructive, case for various reasons. The first reason is that Pickering is from Mississippi, and that fact alone seems to have given the Democrats what amounts to a blank check to reject him. And because Pickering is in his 60s, it is presumed that he must have been an integral part of Mississippi's segregationist past. It is more than a little unfair, in my view, to hold the opinions people held a half-century earlier against them, especially if they have long since changed their minds about particular issues. (I say this as one who cast his first presidential ballot for George McGovern.) After all, the Democratic chairman of the Appropriations Committee, Robert Byrd of West Virginia, was once a member of the Ku Klux Klan. And Sen. Hillary Rodham Clinton, D-N.Y., was a Goldwater Girl in her day. But in fact, Pickering was not only not an integral part of Mississippi's segregationist past, he was by all accounts a racial progressive. In the 1960s, he prosecuted the Klan for violent crimes, thereby losing his legislative seat at the next election. In the 1970s, he helped create the Institute of Racial Reconciliation at the University of Mississippi. Charles Evers, brother of the late Medgar Evers, and a longtime player in Mississippi politics, described to the Judiciary Committee his admiration for Pickering's integrity and fair-mindedness, and complained that "I don't know where the NAACP and these groups are coming from calling Pickering a racist." All to no avail. Sen. John Edwards, D-N.C., demanded to know why Pickering had complained to the Department of Justice about a prison sentence for someone who had burned a cross on the front lawn of a black homeowner. Because, Pickering explained, he objected to the disparity between the mandatory seven-year term given to one defendant and the slap on the wrist given to a co-defendant who had fired a gun into the house but turned state's evidence. He was disturbed by the fact that one racist got seven years in prison, but his far more dangerous partner in crime got off essentially free. None of this impressed Edwards, who was content to suggest that Pickering must approve of cross burning, or Edwards' admirers in the press, who congratulated him for standing up to a bigot (Mary McGrory) and dressing down a "throwback" (Los Angeles Times) to pre-civil rights Mississippi. None of the Democrats on the committee could offer any evidence to support this deceptive picture, and none showed any inclination to grapple with the truth. The Pickering nomination is, effectively, dead. No doubt, Pickering is conservative on many issues, and opposes abortion -- although, as a federal circuit judge, his "personal views [on abortion] are irrelevant," he told the committee. If Democrats are uncomfortable confirming someone whose opinions are contrary to their own, they should feel free to cast their votes against Pickering. What distinguishes this episode, however, is the fact that the nomination is not being fought on any legal or political principle, but on the basis of character assassination. For Democrats, of course, it is payback time. They remember three Clinton appointees who 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000486 were denied the courtesy of a hearing, much less a vote, when Republicans controlled the Senate. Such practices are unquestionably wrong. As Chief Justice William Rehnquist has said, every nominee to the federal bench deserves the opportunity to explain himself to the Judiciary Committee, and the courtesy of a Senate vote. But while the Republicans preferred to scuttle nominations by quietly burying them in procedure, the Democrats choose to subject nominees to public campaigns of lies, distortion and personal abuse. The groundwork is laid by those progressive organizations -- Alliance for Justice, People for the American Way, etc. -- that specialize in such dirty work, but senior Democrats depend on their propaganda skills and lend their prestige to the climate of corruption. In the fullness of time, the republic will not stand or fall on the fate of one district judge from Mississippi at the hands of the Senate. But an increasingly ugly machinery that ruins personal reputations on the basis of public deceit is neither smart politics nor a system of checks and balances. PICKERING'S COURAGE DEMANDS CONFIRMATION The Sun Herald (Biloxi, MS) Wednesday, February 20, 2002 Away down South ". . . in the land of cotton, old times there are not forgotten . . . " True. Those opening words to "Dixie" capture the spirit not only of the Old South, but of many contemporary Southerners as well. "Forget? Never!" the bumper stickers say. But the same could be said of folks in Chicago or New York or Los Angeles. When people in those places think of the South, especially in a political or cultural context, those thoughts run through the Civil War and the Civil Rights years. Their mind's eye sees names like Jefferson Davis and Bull Connors, and they see George Wallace standing in the schoolhouse door. Does racism still live in Mississippi in 2002? Of course it does. Sadly, too, it lives in all the rest of America as well. This nation still bleeds for the sin of slavery and for the omission of deeds we should have done, and the commission of others we should not have done in those intervening years. The river of pain flowing from that original sin sometimes ebbs, and sometimes rises, but it is never far from our consciousness or our conscience. Charles Pickering, a 64-year-old federal district judge who hails from Jones County in South 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000487 Mississippi, can attest to that fact. The president of the United States has nominated him to a seat on the 5th Circuit Court of Appeals in New Orleans. For those who oppose him he is a tempting target, for all of those ghosts of Mississippi's past come suddenly to life with the awful thoughts of night riders, nooses and burning crosses. Judge Pickering's own words and actions four decades ago have become the thread upon which his opposition seeks to deny him confirmation. Today he regrets those words, utterances that can never be fully removed from the history of one man's life. Perfection is a high standard. Charles Pickering did not achieve it. Can any of us say we have? But since that long-ago day and those failed utterances he has been transformed. One cannot say for sure that he has had a change of heart, but of certainty it can be said he has been a changed man. Since 1964 his public record has been exemplary by any standard. n He has courageously stood up to the Ku Klux Klan's Imperial Wizard, a stand that contributed to his subsequent defeat as district attorney. n He defended African-American clients in significant criminal cases. n He has worked with University of Mississippi Chancellor Robert Khayat to establish an Institute of Racial Reconciliation at Ole Miss and he serves on that board today. In the cauldron of this firestorm over his nomination, he is supported by the largely black community in his hometown, and by most black leaders in his home state, those who have seen his actions up close for these many years, voices with great moral authority on such matters, including Charles Evers, brother of slain Civil Rights leader Medgar Evers. There is a plague of piousness afoot in our land today as politicians preen and pontificate before the cameras of so many committee rooms, preaching and prattling to cater to the public opinion of the moment. Their sermons often seem more the words of the Pharisees than the thoughts of pure hearts. It is true of those who have cast their stones at Judge Pickering. You wonder if Abraham Lincoln or Hugo Black were seeking confirmation from these fellows if either could stand the scrutiny of these modern Jacobins. Lincoln's own dreadful words would lash him like a whip . . . words so awful they could not be printed today without stirring pain and bitterness. Certainly Hugo Black, a former Klansman, could not have stood their test. Yet one -- Mr. Lincoln -- many have said was this country's greatest president; the Great 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000488 Emancipator -- the man who freed the slaves and whose leadership maintained the Union. And the other, Justice Black, became one of the leading civil libertarians in U.S. history, rendering opinions whose breadth and majesty extended the rights of African-Americans to their most expansive state. The young American nation often embraced the idea of redemption, a sense of charity that extends to those who have a change of heart, and who thereafter act in a way that is consistent with the "new way" they have embraced. Charles Pickering should be confirmed because he is a good man whose past service is proof that he will render justice fairly to all, and whose personal courage and record have earned him not only the nomination of his president, but the approbation of his countrymen. Interest Groups/Press Releases Civil Rights Coalition Launches Campaign for Fair and Impartial Judiciary; Highlights Opposition to Charles W. Pickering Sr.'s Confirmation http://www.fairjudges.org/ AScribe Newswire Wednesday, February 20, 2002 The Leadership Conference on Civil Rights, the nation's oldest and broadest civil rights coalition, today launched a new outreach campaign designed to educate the civil rights community and the American public about the importance of a fair and impartial judiciary. In launching the new campaign entitled, "www.FairJudges.org ," Wade Henderson, LCCR's Executive Director stated, "LCCR strongly believes that the composition of the federal judiciary is a civil rights issue of profound importance because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for us all." Henderson added, "the FairJudges.org campaign will help to educate and mobilize the civil rights community and the American public in support of individuals who are the embodiment of fairness and impartiality." Specifically, the www.FairJudges.org campaign will: -- Provide regular updates on the status of judicial nominations; -- Serve as a clearinghouse for civil rights-related information regarding judicial nominations; -- Help to coordinate local coalition building efforts around the nation; and -- Mobilize support and/or opposition to those nominees officially endorsed/opposed by the Leadership Conference. Charles W. Pickering Sr., President Bush's nominee for the U.S Circuit Court of Appeals for the 22 18-2091-B-000489 Document ID: 0.7.19343.7244-000001 Fifth District, is the first nominee being highlighted in the www.Fair.Judges.org campaign. The Leadership Conference is opposing Judge Pickering's nomination because of his extreme views on important civil rights, women's rights and constitutional issues. The media, civil rights advocates, policy makers, and the American public can learn more about Charles Pickering's record as well as track the growing opposition to his nomination on www.FairJudges.org. The Leadership Conference on Civil Rights is the nation's oldest, largest and most diverse civil and human rights coalition with more than 180 national organizations committed to the protection and advancement of basic civil and human rights for all persons in our society. 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7244-000001 18-2091-B-000490 Anderson, Carl A Anderson, Carl A Monday, March 18, 2002 7:18 PM Anderson, Carl A; Schauder, Andrew; Newstead, Jennifer; Ciongoli, Adam; 'Bradford_A._Berenson@who.eop.gov%inetgw'; 'Brett_M._Kavanaugh@who.eop.gov%inetgw'; Bryant, Dan; 'Heather_Wingate@who.eop.gov'; Long, Linda E; Benedi, Lizette D; McMahon, Lori; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov%inetgw'; Suit, Neal; Joy, Sheila; 'Tim_Goeglein@who.eop.gov%inetgw'; 'Timothy_E._Flanigan@who.eop.gov%inetgw'; Dinh, Viet; 'Ziad_S._Ojakli@who.eop.gov%inetgw'; O'Brien, Pat; Comstock, Barbara; Koebele, Steve; 'James_W._Carroll@who.eop.gov'; Ho, James; Goodling, Monica; Willett, Don; Benczkowski, Brian A; 'H._Christopher_Bartolomucci@who.eop.gov' Subject: judicial media review Attachments: Judicial Media Review 3-18-02.wpd From: Sent: To: Please see attached review 18-2091-B-000491 Document ID: 0.7.19343.7292 Media Review - Judicial Nominations Monday, March 18, 2002 General Judicial Articles "Senate GOP Mulls Options on Judges" AP Online, March 18, 2002 Monday 7 "Lott’s Threat Isn’t Seen Affecting Adelstein Appointment to FCC" Communications Daily, March 18, 2002, Monday 8 "GOP Vow on Hearings" Newsday (New York, NY), March 18, 2002 Monday 9 "He could be the next Supreme Court justice Alberto Gonzales has become a rising star by defending President Bush's conservative policies. He also has alienated key Democrats whose support he would need to be confirmed." Joan Biskupic, USA TODAY, March 18, 2002, Monday 9 "A Wife's Tale" Michael Kinsley, The Washington Post, March 18, 2002, Monday 14 "Senate GOP Discuss Retaliation" AP Online, March 17, 2002 Sunday 15 "Congress deals blows to Bush domestic plan; Anti-terrorism popularity not enough" Bennett Roth and Karen Masterson, The Houston Chronicle, March 17, 2002, Sunday 17 "First Punch in the Revived Bench-Tipping Brawl" Neil Lewis, The New York Times, March 17, 2002, Sunday 20 "Cornyn urges Senate contenders to denounce Pickering rejection" The Associated Press, March 16, 2002, Saturday 21 "Morales, Kirk split on need for fuel-efficiency standards" Gary Susswein, Austin American Statesman, March 16, 2002, Saturday 22 "Pickering Rejection Sets Off Nominee War" Susan Milligan, The Boston Globe, March 16, 2002, Saturday 23 "Retribution Continues: Lott Strikes Again in Response to Pickering Defeat" 25 1 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000492 John Bresnahan, Roll Call Daily, March 15, 2002 "Senate Rejection Disappoints Pickering" The Commercial Appeal (Memphis, TN), March 16, 2002 Saturday 27 "Divisive Pickering Vote Has Parties Feuding" Jesse J. Holland, The Commercial Appeal, March 16, 2002 Saturday 28 "Lott vows to make Democrats pay for rejecting nominee" Craig Gilbert, Milwaukee Journal Sentinel, March 16, 2002 Saturday 29 "After Defeat of Judge, Lott Plans to Block Daschle Aide" Alison Mitchell, The New York Times, March 16, 2002, Saturday 32 "Lott Retaliates for Pickering Loss; Judiciary Panel's Funding, Daschle Nominee Targeted" Helen Dewar, The Washington Post, March 16, 2002, Saturday 34 "Miller says South will rise against Pickering's defeat; Fears losses of Democratic 36 seats" Amy Fagan and Stephen Dinan, The Washington Times, March 16, 2002, Saturday "Lott issues warning after judge rejected" Jesse J. Holland, Chicago Tribune, March 16, 2002 Saturday 37 "Senate Judges Glance" AP Online, March 15, 2002 Friday 38 "Parties Tense After Divisive Vote" Jesse Holland, AP Online, March 15, 2002 Friday 39 "Senate committee sends Bush message with rejection of judge's nomination" Jesse Holland, The Associated Press, March 15, 2002, Friday 41 "Panel blocks judicial pick; GOP judge rejected on party lines" Scott Shepard, The Atlanta Journal and Constitution, March 15, 2002 Friday 43 "Senate Democrats torpedo U.S. Appeals Court nomination" Andrew Miga, The Boston Herald, March 15, 2002 Friday 45 "Senate Panel Rejects Bush Pick All 10 Democrats Oppose Pickering" Wayne Washington, The Boston Globe, March 15, 2002, Friday 46 "Senate Panel Rejects Mississippi Judge; Democrats Defeat Pickering’s Nomination for U.S. Appeals Court" 48 2 A\t1 f C,/\N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000493 Charles Hurt, The Charlotte Observer, March 15, 2002 Friday "Committee Rejects Nominee For Appeals Judge" Jack Torry, The Columbus Dispatch, March 15, 2002 Friday 49 "Senate rejects Bush's choice of Pickering" Robert Dodge, The Dallas Morning News, March 15, 2002, Friday 51 "Hatch warns of retaliation after judge nominee rejected" Lee Davidson, The Deseret News, March 15, 2002, Friday 54 "Senate committee rejects Pickering ; Party-line confirmation vote hands Bush first defeat on judicial nominee" Michael Petrocelli, The Houston Chronicle, March 15, 2002, Friday 56 "Democrats derail Bush's judicial nominee" Charles Hurt, The Miami Herald, March 15, 2002 Friday 58 "Lott Blocks Daschle FCC Choice After Vote On Pickering" National Journal's CongressDaily, March 15, 2002 59 "Panel Rejects Bush Nominee For Judgeship" Neil Lewis, The New York Times, March 15, 2002, Friday 60 "Senate Dems Dash Dubya’s Judge Pick" Vincent Morris, The New York Post, March 15, 2002, Friday 62 "Partisan vote stops Pickering" Lawrence M. O'Rourke, The News and Observer, March 15, 2002 Friday 63 "Senators send a signal, reject judicial pick; In voting down a conservative judge for an appeals court seat, Democrats demonstrated the bar for Supreme Court jobs." Charles Hurt, The Philadelphia Inquirer, March 15, 2002 Friday 65 "Pickering Loses on 10-9 Vote; Democrats Line Up-Against Mississippi District Judge" 67 Ben Bryant, The Sun Herald (Biloxi, MS), MARCH 15, 2002 Friday "Senate panel rejects judicial nominee; Pickering refused in partisan vote" 68 Bill Walsh, The Times-Picayune (New Orleans), March 15, 2002 Friday "Faceoff: Nit-Pickering?" Peter Roff, United Press International, March 15, 2002, Friday "Senate panel rejects Bush's judicial nominee 10-9" 70 73 3 A\t1 f C,/\N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000494 Joan Biskupic, USA TODAY, March 15, 2002, Friday "Appeals Court Choice Rejected; Senate Panel Hands Bush 1st Defeat on 75 Judicial Nomination" Helen Dewar and Amy Goldstein, The Washington Post, March 15, 2002, Friday "Panel kills Bush's court choice; Party-line vote derails Pickering nomination in Senate" Audrey Hudson, The Washington Times, March 15, 2002, Friday 77 "Senate Democrats reject judge, place Bush on notice" Naftali Bendavid, Chicago Tribune, March 15, 2002 Friday 80 "Leahy Urges The White House To Investigate Owen Ties To Enron" Ferraro Reuters, March 16, 2002 Saturday 83 Op/Eds "OUR OPINION: Judiciary can't evade political viciousness" Jim Wooten, The Atlanta Journal and Constitution, March 17, 2002 Sunday 83 "Charles Pickering: Rejection a backhanded slap at South" The Atlanta Journal and Constitution, March 18, 2002 Monday 84 "BUSH'S ROUGH CUT; Culling the less-than-true believers" Ryan Lizza, The San Diego Union-Tribune, March 17, 2002, Sunday 85 "Editorial; Bush must fight for his judgeships" The Boston Herald, March 16, 2002 Saturday 88 "Unappealing Judges" 88 The Boston Globe, March 16, 2002, Saturday "Time to Call Timeout in War Over Judges" The Commercial Appeal (Memphis, TN), March 16, 2002 Saturday 89 "Pickering nomination: Gamesmanship is souring the process" The Dallas Morning News, March 16, 2002, Saturday 91 "Look for another judge" Kansas City Star, March 16, 2002, Saturday 92 "Laudable stand" 92 4 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000495 The News and Observer (Raleigh, NC), March 16, 2002 Saturday "Sen. Edwards: Partisan rejection" The News and Observer (Raleigh, NC), March 16, 2002 Saturday 93 "Thinking Right: Justice and biscuits’ Jim Wooten, The Atlanta Journal and Constitution, March 15, 2002 Friday 94 "REGRET" The Richmond Times-Dispatch, March 15, 2002 Friday 95 "What's so hard about finding a good judge?" USA TODAY, March 15, 2002, Friday 96 "Let president choose" Bruce Fein, USA TODAY, March 15, 2002, Friday 98 Transcripts/Members of Congress "ABC News" SHOW: This Week March 17, 2002 Sunday 99 "Senator Orrin Hatch discusses Pickering nomination" CBS News Transcripts SHOW: Face the Nation, March 17, 2002 Sunday 103 "Senator Tom Daschle discusses violence in the Middle East, Tom Ridge, Charles Pickering, campaign finance reform, Tipper Gore" CBS News Transcripts, SHOW: Face the Nation, March 17, 2002 Sunday 106 CNN SHOW: CNN LATE EDITION WITH WOLF BLITZER March 17, 2002 Sunday 108 CNN SATURDAY EDITION 113 March 16, 2002 Saturday CNN SHOW: CNN CAPITAL GANG March 16, 2002 Saturday 114 "Reactions to Judge Pickering's Rejected Nomination" CNN SHOW: CNN DAYBREAK, March 15, 2002 Friday 119 Fox News Network 120 5 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000496 SHOW: FOX SPECIAL REPORT WITH BRIT HUME, March 15, 2002 Friday Fox News Network SHOW: FOX HANNITY & COLMES, March 15, 2002 Friday 122 "Party-line vote in Senate Judiciary Committee results in rejection of Bush nominee 122 to US Court of Appeals" National Public Radio (NPR), SHOW: Morning Edition, March 15, 2002 Friday "Sen. Don Nickles on Fox News Sunday" Sunday, March 17, 2002. 124 Interest Groups/Press Releases "Judiciary Committee Rejects Pickering’s Promotion" People for the American Way, Ralph Neas, Thursday March 14, 2002 128 6 A\11 f C,I N pVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000497 General Judicial Articles Senate GOP Mulls Options on Judges AP Online March 18, 2002 Monday Senate Republicans will do "whatever is necessary" to ensure that majority Democrats hold confirmation hearings for President Bush's judicial nominees, a leading GOP lawmaker said Sunday. The comments from Sen. Don Nickles, the assistant minority leader, were the latest in the partisan bickering following the party-line defeat last week of a White House nominee for the U.S. Court of Appeals. Nickles, R-Okla., said Democrats have been holding up the nomination process and 20 Bush nominees have not had hearings in the Senate Judiciary Committee. Some nominees have been waiting almost a year, he said. "We'll do whatever is necessary to get their attention to make sure that good nominees have a chance to have a hearing," Nickles said on "Fox News Sunday." "We have to get some kind of agreement that we're going to take up these judges, or else Republicans are going to do something." Nickles did not elaborate. His spokeswoman said the options include using Senate procedures to hold up Democrat nominees and legislation. The Judiciary Committee voted 10-9 Thursday to against elevating U.S. District Judge Charles Pickering of Mississippi to the appeals courts. Pickering was the first of Bush's judicial nominees to lose in the committee. After the defeat, Minority Leader Trent Lott of Mississippi, a longtime Pickering friend, said he would block one of Majority Leader Tom Daschle's aides from getting on the Federal Communications Commission. Lott also blocked a Judiciary Committee request for $1.5 million to investigate the intelligence community's performance during the Sept. 11 attacks. Lott has insisted his plan to block Bush's FCC nomination of 39-year-old Jonathan S. Adelstein, a legislative assistant for Daschle since 1995, has nothing to do with the Pickering vote. "Adelstein had nothing to do with the Pickering nomination, so to lash out at him is an unfortunate set of circumstances that I hope that will cause Senator Lott to reconsider," Daschle said on CBS' "Face the Nation." Daschle, D-S.D., said Democrats are "going to do the best we can to deal with all of the judges 7 18-2091-B-000498 Document ID: 0.7.19343.7292-000001 that have been nominated." When Democrats took over the Senate in June, they warned they would be tough on Bush's judicial nominees they thought too conservative. Democrats said Republicans had thwarted or stalled many of former Democratic President Clinton's nominees with similar tactics when they controlled the Senate. The Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt. has suggested he would not allow potentially controversial Bush choices to come before the committee until other nominees went through first. Lott’s Threat Isn’t Seen Affecting Adelstein Appointment to FCC Communications Daily March 18, 2002, Monday Industry and congressional observers expressed surprise that Senate Republican Leader Lott (Miss.) threatened to block President Bush's nomination of Jonathan Adelstein to Democratic seat on FCC. Lott said his plan to place hold on Adelstein's nomination wasn't because of Senate's rejection of Charles Pickering's appointment to federal appeals court. Instead, he questioned Adelstein's qualifications, saying he was "relatively young" and didn't have enough experience, although he's older than 2 Republican FCC commissioners. Adelstein is 39, turning 40 in Aug., which makes him about 7 months older than Chmn. Powell, who will be 39 March 23. He's 4 years older than Comr. Martin, who turned 35 in Dec. Comr. Abernathy will be 46 in June. Supporters of Adelstein, legislative aide to Senate Majority Leader Daschle (D-S.D.), in the long run don't expect that Lott's threat will interfere with Daschle's selection for seat left vacant by former Comr. Gloria Tristani. Daschle spokeswoman said Senate Democratic leadership had no intention of responding in kind with threats to block Republican-backed political nominees. But she emphasized "there are a lot more nominees that they want than we want," and said she would "assume the Republicans will take a long, hard look at this." She said it was unfortunate Lott "would lash out at someone totally uninvolved" in Pickering matter, and predicted situation eventually would blow over: "We fully expect Jon to be nominated and confirmed." Sen. Dorgan (D-N.D.) expects Lott to "rethink this" threat and believes controversy "will play itself out," Dorgan spokesman said. Dorgan said Lott's vow to block Adelstein's nomination "is out of character" and "just doesn't sound like Senator Lott," according to staffer. Sen. Johnson (D-S.D.) also expressed disappointment that Lott "would play such petty politics with an important appointment like this position on the [FCC]." He said Adelstein was "eminently qualified" for seat and described Lott's opposition as "misguided retribution." Johnson said nomination was especially important for rural America: "Without his appointment, the concerns of rural citizens will not be heard." OPASTCO spokesman agreed Adelstein's credentials "speak for themselves" and said 8 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000499 association "strongly supports" his nomination: "We have a vacancy at the Commission... and Jon is the right person to fill it." Precursor Group analyst Scott Cleland said there was growing trend in Washington for nominations to become pawns in "bigger political wars." Cleland predicted Adelstein eventually would be confirmed because "this has nothing to do with his qualifications as a commissioner and everything to do with Senate politics." -- Steve Peacock GOP Vow on Hearings Newsday (New York, NY) March 18, 2002 Monday EXCERPT Senate Republicans will do "whatever is necessary" to ensure that majority Democrats hold confirmation hearings for President George W. Bush's judicial nominees, a leading GOP lawmaker said yesterday. The comments from Sen. Don Nickles (R-Okla.), the assistant minority leader, were the latest in the partisan bickering following the party-line defeat last week of a White House nominee for the U.S. Court of Appeals. Nickles said that Democrats have been holding up the nomination process and that 20 Bush nominees have not had hearings in the Senate Judiciary Committee. "We'll do whatever is necessary to get their attention to make sure that good nominees have a chance to have a hearing," Nickles said on "Fox News Sunday." "We have to get some kind of agreement that we're going to take up these judges, or else Republicans are going to do something." The Judiciary Committee voted 10-9 Thursday against elevating U.S. District Judge Charles Pickering of Mississippi to the appeals courts. Pickering was the first of Bush's judicial nominees to lose in the committee. He could be the next Supreme Court justice Alberto Gonzales has become a rising star by defending President Bush's conservative policies. He also has alienated key Democrats whose support he would need to be confirmed. Joan Biskupic USA TODAY March 18, 2002, Monday WASHINGTON -- When Texas state Sen. David Sibley was curious about the thinking inside then-Gov. George W. Bush's administration a few years ago, he would try to corner Alberto 9 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000500 Gonzales, the governor's lawyer. "We good ol' boys 'ping' for information," says Sibley, a Republican from Waco, comparing his pursuit to using sonar. When a "ping" hits a target, it returns an echo -- or in Sibley's case, a clue as to which way the political winds are blowing. "But with Al, you'd ping and nothing would come back," Sibley says. "I'd say, 'Wow, Bush was really mad at that guy.' Al would say, 'Oh.' Or I'd say, 'I'm thinking of adding this to a bill,' and he'd say, 'Ah.' " For Gonzales, now the White House counsel, the road to Washington was paved with discretion and loyalty to the man who would be president. As counsel to the governor, as Texas secretary of state and as a Texas Supreme Court justice -- jobs given to him by Bush -Gonzales was cautious and had a knack for avoiding partisan conflicts. Those traits, along with his ties to Bush, helped land him on an informal GOP list of potential U.S. Supreme Court nominees even before he got here last year. Now, White House sources and legal analysts say, Gonzales has emerged as a front-runner for a future Supreme Court nomination in an administration that is interested in appointing the nation's first Hispanic justice. Gonzales' stock is up, the sources say, because in defending White House policies he has become an increasingly bold political player, impressing many influential Republicans who had questioned his conservative credentials. "A lot of people thought, 'Who is this Gonzales guy? He's going to come to Washington and Washington will chew him up,' " says Charles Cooper, an assistant attorney general under President Reagan. "But he has done a great job . . . with Bush's very conservative outlook." But Gonzales' actions also have led him into conflicts with Senate Democrats who oversee judicial nominations -- and who could play key roles in any confirmation for a Supreme Court nominee. It's all added a new plot line to the never-ending speculation here about when there might be an opening on the court and how Bush might change the court. Bush's voice on the law Since becoming White House counsel last year, Gonzales: * Has annoyed Senate Democrats, who say he has given little ground in the White House's campaign to stock federal appeals and trial courts with conservatives who could influence the law for years to come. He also ended a half-century White House tradition of using the American Bar Association to screen nominees. (Republicans had long accused the ABA of being too liberal.) * Has been a key promoter of Bush's anti-terrorism agenda, staunchly defending plans to use military tribunals to try foreign terrorism suspects. He crafted the legal rationale limiting the 10 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000501 rights of al-Qaeda and Taliban fighters held in Cuba by classifying them as battlefield detainees, rather than prisoners of war. * Become the point man for the administration's vigorous efforts to keep information secret and preserve presidential prerogatives. That has included backing Vice President Cheney in his clash with the General Accounting Office. Cheney has refused to turn over records of meetings from a task force that devised national energy policy. At issue is the extent to which the policy was shaped by energy executives, among them some from troubled Enron Corp. Gonzales also has surrounded himself with ideologically conservative lawyers who have been active in GOP causes. Among them: deputy counsel Timothy Flanigan, who clerked for former U.S. chief justice Warren Burger and was an assistant attorney general in the first Bush administration. Such moves have won Gonzales support among conservative Republicans such as Orrin Hatch of Utah, the GOP's ranking member of the Senate Judiciary Committee. Gonzales would need his backing to ascend to the high court. "I simply could not be more impressed," Hatch says. Some Republicans initially feared that Gonzales might be a "stealth liberal" like David Souter, who was named to the Supreme Court 12 years ago by Bush's father. To the dismay of many Republicans, Souter, 62, has become one of the four liberal justices on the nine-member court. There has been no indication that anyone on the court will retire soon, but most speculation focuses on the three oldest justices. Sandra Day O'Connor, 71, the court's swing vote because she is the conservative most likely to vote with the liberals, recently said her retirement is not imminent. Conservative Chief Justice William Rehnquist, 77, has said that he has considered leaving but does not seem to have slowed down. Liberal justice John Paul Stevens, 81, has said nothing about retirement. The court is deeply split on issues such as abortion, affirmative action and religious liberties, and any change among the justices could mean a difference in the law. Besides Gonzales, those mentioned most frequently by GOP sources include U.S. appeals court judges J. Michael Luttig and J. Harvie Wilkinson III of Virginia, Emilio Garza of Texas, and Samuel Alito of New Jersey. Another candidate would be U.S. Solicitor General Theodore Olson, who represented Bush in the Florida election dispute and whose wife, Barbara, died aboard a hijacked jet on Sept. 11. Several factors -- which justice retires first and the political currents of the day, as well as recent moves of potential nominees -- could alter the dynamics of any selection process. If Rehnquist 11 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000502 were to retire first, for example, the White House might seek a more experienced lawyer than Gonzales to replace the chief. But for now, many insiders believe Gonzales is on deck for a nomination. Gonzales, the son of migrant farm workers who worked his way up to Harvard Law School, is "in as good of a position as anyone," says C. Boyden Gray, White House counsel to Bush's father. "We think he's a leading contender," says Elliot Mincberg of the liberal People for the American Way. "We're watching him." Playing it close to the vest Gonzales, 46, declined to be interviewed. He and other administration officials are reluctant to discuss anyone's prospects for the court. However, Gonzales acknowledged in an interview last year that it would be foolish for the White House not to be preparing for a vacancy on the court. As Texas lawmakers such as Sibley learned, Gonzales is not easy to penetrate. In scripted speeches he has delivered recently, it's clear that despite his higher profile, the hard-to-read Al Gonzales lives on: the slight smile, the non-committal nod, the one-sentence answers. In the interview last year, he was careful when discussing judicial philosophy. He declined to answer specific questions on controversial issues that inevitably confront Supreme Court nominees, such as abortion and affirmative action. He emphasized that his personal views might be different from how he would vote on a case. Gonzales' two-year tenure on Texas' Supreme Court, which ended when he resigned so he could follow Bush to Washington, was too brief to offer much insight into his attitudes as a jurist. Texas lawyers regarded him as a moderate on a generally conservative court. In Washington, Gonzales' close-to-the-vest manner hasn't always played well, particularly among Democrats who are pressing the administration for a more ideologically diverse roster of nominees for federal courts. He has had a strong hand in crafting a roster of nationally recognized advocates for conservative causes. They include Jeffrey Sutton, an Ohio lawyer who has successfully argued several states' right cases at the high court, and Paul Cassell, a University of Utah professor known for his work against the "Miranda" rights that police read to crime suspects. For months, Gonzales and Democrats have been at loggerheads over nominees to several courts, particularly in Midwestern and Mid-Atlantic states. Many Democrats report a pattern in their dealings with Gonzales: He is pleasant. He suggests differences can be worked out. Everyone walks away optimistic. Then nothing happens. 12 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000503 "I have heard of too many situations, involving too many reasonable home-state senators, in which the White House has shown no willingness to work cooperatively" on judicial nominees, says Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. GOP senators counter that it's Democrats who have been inflexible. Gonzales says the Democrat-led Senate "has not done enough to meet its constitutional responsibility" of voting on judicial nominees. He criticizes the Senate for not holding hearings on some nominees from last spring and says that he has been meeting with senators to break standoffs. In the interview last year, Gonzales said he looks at character when he screens potential nominees for trial and appeals courts. "Is this a good person? That's very important to this president." He said the White House also focuses on competence and conservative judicial philosophy. He said society's problems are for elected lawmakers, not judges, to solve. Gonzales was born in San Antonio to Pablo and Maria Gonzales, the second of their eight children. His parents, both children of Mexican immigrants, met as teenage farm workers. Pablo had finished only the second grade; Maria had made it to sixth grade. The family settled in Houston, where Pablo became a construction worker. They lived in a two-bedroom house with no hot running water. Gonzales began dreaming of college when he helped with a neighbor's soda concession business at Rice University's football stadium. But with no money after high school graduation in 1973, Gonzales enlisted in the Air Force. Stationed at Fort Yukon, Alaska, he met Air Force Academy graduates who urged him to apply to the academy in Colorado Springs. Gonzales was admitted in 1975 but left the academy for Rice in 1977, one of a string of occasions in which he reached a difficult goal, then left for another challenge. After graduating from Harvard Law School in 1982, Gonzales went to work for the Houston-based law firm Vinson & Elkins, which long represented the energy giant Enron. (As a state court judge, Gonzales, like many Texas candidates, received campaign contributions from Enron). Gonzales rejected a job offer from the first President Bush in 1988 to try to become one of Vinson & Elkins' first minority partners. He was made a partner in 1991, then left for Austin in 1995 to become the governor's counsel. Got Bush off jury duty One of Gonzales' most controversial actions in that post was helping to get George W. Bush excused from jury duty in 1996, a situation that could have required the governor to disclose his 13 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000504 then-secret 1976 conviction for drunken driving in Maine. Gonzales suggested to the judge and defense lawyer that if Bush served, he would not, as governor, be able to pardon the defendant in the future. Whether Gonzales' rapid rise in government culminates at the high court remains to be seen. Last year, the Hispanic National Bar Association gave Gonzales a list of prominent Hispanic judges and lawyers to try to show that there is a large pool of Hispanic candidates for a Supreme Court seat. Gonzales' name was on the list. Carlos Ortiz, a former president of the bar, says Gonzales told him to take it off, that he did not want a seat on the high court. Looking back, Ortiz says, "I wasn't sure whether he was really being serious or not." A Wife's Tale Michael Kinsley The Washington Post March 18, 2002, Monday If you're not careful, you can squander an entire journalistic career swatting flies from the Wall Street Journal editorial page. But sometimes resistance to temptation is futile. The question ordinarily posed by these classics is whether the author is staggeringly disingenuous or sincerely addled by ideology. In the case of an op-ed published in the Journal Thursday, though, the explanation is more benign. This article was an attack on Democrats for opposing President Bush's nomination of Charles W. Pickering for a seat on the Fifth Circuit Court of Appeals. (The Senate Judiciary Committee killed the nomination later that day on a party-line vote.) The author was Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, whose own confirmation ordeal has made him a martyr-saint of American conservatism. Thomas, as you will recall was pummeled so brutally by vicious gangs of Democrats and liberals -- who accused him of being a right-wing ideologue with a closed mind about abortion rights, among other vicious lies -- that he now lies comatose in the Supreme Court, able only to issue reliably right-wing opinions and vote against abortion rights. Naturally his wife is bitter, and self-righteous bitterness on behalf of an embattled spouse is forgivable, even appealing. Virginia Thomas is also "director of executive branch relations" at the Heritage Foundation, the right-wing propaganda machine that masquerades as a tax-exempt nonpolitical research institution. That a Supreme Court justice's spouse could write this article, and the nation's most influential conservative opinion forum could publish it, illustrates that, for all the talk of the insular liberal culture of Washington, the conservative Washington culture is large enough and insular enough for its members to live within an echo chamber of their own views. Or maybe I'm the one who is divorced from reality. But here is reality as I see it. The Constitution gives the Senate the authority to "advise and consent" on the appointment of federal 14 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000505 judges. Whatever this means, it must mean more than the obligation to rubber-stamp the president's nominees or merely to pass on their basic competence. Since Ronald Reagan, presidents of both parties have become more careful to nominate judges who reflect their own judicial philosophy -- and there is nothing wrong with that. In response, the Senate -- especially when controlled by the opposing party -- has weighed judicial philosophy more carefully in exercising its advice and consent -- and there is nothing wrong with that, either. Both political parties oppose nominees from the other one and pompously deplore "politics" when the other party does the same. Somewhat more tendentiously, Republican presidents have been more disciplined than the one recent Democrat, Bill Clinton, about nominating judges who won't surprise them, which makes the Republican indignation about "ideological" opposition to the president's choices more hypocritical. On the other hand, Democratic politicians and interest groups have been somewhat less principled about distinguishing judicial philosophy -- how a judge interprets the law and the Constitution -- from the vulgar question of whether they like the outcome. Meanwhile, though, Republicans pretend or imagine that a few magic words such as "judicial restraint" and "strict constructionism" add up to a philosophy beyond legitimate dispute -- that to believe otherwise is not just misguided but more like cheating -- even though it is a philosophy that even they don't apply with any consistency. It seems to Virginia Thomas, by contrast, that anyone who opposes judicial nominees of Republican presidents -- people such as Tom Daschle -- represents the "hard left" that cares only "about abortion and homosexuality," and doesn't "think of [opponents] as human." Oh, yes, and these hard leftists "demonize" people they disagree with! "Senate Democrats are actually claiming that some views are so politically incorrect that judges (or others) cannot be allowed to hold them," she wrote, and her husband and Pickering are defending "a culture . . . tolerant of philosophical disagreement." Unless I'm crazy, "hard left" is not an accurate description of the average Democrat on the Senate Judiciary Committee. In reality, both sides of these disputes care disproportionately about abortion. (Homosexuality seems more like a right-wing obsession.) That is why abortion is so contentious. If one side stood for single-issue "litmus tests" and the other stood for "tolerance of philosophical disagreement," we wouldn't be having these set-piece standoffs every few years. The battles happen because both sides have litmus tests, which is another way of saying these are issues they feel strongly about. In Virginia Thomas's opinion, should Republican senators vote to confirm a judicial nominee who believes that Roe v. Wade was correctly decided? Or is that view "so politically incorrect that judges (or others) cannot be allowed to hold" it -- which is just an overheated way of saying you disagree? Looking around the real world, it is hard to see this martyrdom that Clarence Thomas supposedly has suffered for the sin of holding views that the all-powerful hard left wants to suppress. He had a rough confirmation battle, but now he is a Supreme Court justice, even though he clearly lied under oath -- or at the least willfully deceived -- in claiming he had never discussed Roe v. Wade and had no opinion about it. He probably lied about more notorious matters, too. If he's in pain, it must only hurt when he laughs. 15 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000506 Senate GOP Discuss Retaliation AP Online March 17, 2002 Sunday Senate Republicans will do "whatever is necessary" to ensure that majority Democrats hold confirmation hearings for President Bush's judicial nominees, a leading GOP lawmaker said Sunday. The comments from Sen. Don Nickles, the assistant minority leader, were the latest in the partisan bickering following the party-line defeat last week of a White House nominee for the U.S. Court of Appeals. Nickles, R-Okla., said Democrats have been holding up the nomination process and 20 Bush nominees have not had hearings in the Senate Judiciary Committee. Some nominees have been waiting almost a year, he said. "We'll do whatever is necessary to get their attention to make sure that good nominees have a chance to have a hearing," Nickles said on "Fox News Sunday." "We have to get some kind of agreement that we're going to take up these judges, or else Republicans are going to do something." Nickles did not elaborate. His spokeswoman said the options include using Senate procedures to hold up Democrat nominees and legislation. The Judiciary Committee voted 10-9 Thursday to against elevating U.S. District Judge Charles Pickering of Mississippi to the appeals courts. Pickering was the first of Bush's judicial nominees to lose in the committee. After the defeat, Minority Leader Trent Lott of Mississippi, a longtime Pickering friend, said he would block one of Majority Leader Tom Daschle's aides from getting on the Federal Communications Commission. Lott also blocked a Judiciary Committee request for $1.5 million to investigate the intelligence community's performance during the Sept. 11 attacks. Lott has insisted his plan to block Bush's FCC nomination of 39-year-old Jonathan S. Adelstein, a legislative assistant for Daschle since 1995, has nothing to do with the Pickering vote. "Adelstein had nothing to do with the Pickering nomination, so to lash out at him is an unfortunate set of circumstances that I hope that will cause Senator Lott to reconsider," Daschle said on CBS' "Face the Nation." Daschle, D-S.D., said Democrats are "going to do the best we can to deal with all of the judges 16 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000507 that have been nominated." When Democrats took over the Senate in June, they warned they would be tough on Bush's judicial nominees they thought too conservative. Democrats said Republicans had thwarted or stalled many of former Democratic President Clinton's nominees with similar tactics when they controlled the Senate. The Judiciary Committee chairman, Sen. Patrick Leahy, D-Vt. has suggested he would not allow potentially controversial Bush choices to come before the committee until other nominees went through first. Congress deals blows to Bush domestic plan; Anti-terrorism popularity not enough Bennett Roth and Karen Masterson The Houston Chronicle March 17, 2002, Sunday WASHINGTON - President Bush's wartime popularity has not yet translated into major success for his domestic agenda in Congress, where the White House has suffered legislative setbacks and clashed increasingly with lawmakers. Even as Bush basked in the cheers of troops last week during a trip to Fort Bragg, N.C., administration officials were smarting from the Senate Judiciary Committee's decision to nix the president's choice for the U.S. Court of Appeals for the Fifth Circuit. Despite last-minute lobbying by the president and the staff, the Democratic majority on the committee killed the nomination of Charles Pickering Sr., the Mississippi federal district court judge whose civil rights record was questioned. The action was only the latest evidence that the president's sky-high approval ratings - stemming from public support for his handling of the anti-terrorism campaign - has not necessarily given him the upper hand with Congress. As lawmakers return to routine business after the shock of the Sept. 11 terrorist attacks wanes, analysts say that much of Bush's conservative domestic agenda remains as controversial as it was before the strikes. Furthermore, in an election year both parties are eager to point out ideological differences rather than reach consensus. It is becoming increasingly unlikely that the Senate will approve major elements of the president's energy plan, including a provision to drill in Alaska's Arctic National Wildlife Refuge. And last week, a House budget committee finished drafting a spending plan that excludes money Bush sought for oil exploration in the environmentally sensitive refuge. Democrats scored a victory earlier this month when Bush signed an economic stimulus package 17 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000508 that was stripped of most of the tax cuts the president was seeking. Even Republicans have lately grown irritated with a White House they claim is loath to share information with them. Bush's budget director, Mitch Daniel, came under fire last week for the administration's refusal to let Homeland Security chief Tom Ridge testify about the details of the $ 38 billion proposed homeland defense budget for next year. "I hope that the lack of information does not compel us to withhold funds for the priorities established by the president," said Rep. Ernest Istook, R-Okla., who heads a key House appropriations subcommittee. Democratic Rep. David Obey of Wisconsin was more acerbic in his criticism, accusing Daniels and others in the administration of having a "severe attitude problem." Obey, the ranking Democrat on the appropriations committee, threatened, "No information, no money." Marshall Wittmann, a political analyst, said that in an election year, when the entire House and a third of the Senate is up for grabs, the parties are more eager to stress their differences than to reach agreement with the White House. He and others said that outside of military buildup, Bush has not taken the lead on issues with broad voter appeal. "The president's wartime popularity has not translated into traction for his agenda," said Wittmann, who works at the conservative Hudson Institute. But Wittmann warned that Democrats may not be able to capitalize on Bush's setbacks because the president has been politically adept at embracing popular parts of their agenda. He noted that Bush, for example, took credit for the slimmed-down stimulus package, which he quickly signed and promoted in his weekly radio address. Furthermore, even though it has never been a priority for him, Bush has suggested he would not stand in the way of a campaign finance reform measure that the Senate may approve later this month. Nevertheless, the Pickering defeat and increased tensions with Capitol Hill suggest the president will not have an easy time getting his budget enacted or pushing through other judicial nominees. Thomas Mann, a scholar at the Brookings Institution, said that one reason for Bush's setbacks is that voters are as divided now over his conservative domestic agenda as they were before the Sept. 11 attacks. 18 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000509 Mann also said that the president's view of executive branch power has fueled tensions with lawmakers of both parties. He said that Bush has displayed "almost a contempt of Congress. . . . I think he finds them a nuisance and is resentful they would try to oversee his presidency." During a news conference last week, Bush disputed the contention that he was not keeping Congress informed, saying he frequently meets with lawmakers. However, the president defiantly declared that he would not let Congress erode executive authority by giving into its demands that Ridge testify. "He does not have to testify; he's part of my staff, and that's part of the prerogative of the executive branch of government. And we hold that very dear," Bush said. Although he said it in a light-hearted manner, the president also underscored his displeasure with members of his own party who questioned his willingness to share information with Congress. "I don't know what single Republican you're referring to," he said in response to a reporter's question about GOP criticism. "But if you give the name afterwards, I'll be glad to have him over for another consultation, if you know what I mean." A number of Republicans have called on the Bush administration to let Ridge testify about his budget on Capitol Hill. "There's no harm in it and it certainly would defuse unnecessary tensions between the White House and this house," said Sen. Gordon Smith, R-Ore. Lawmakers have also announced they will challenge other aspects of the Bush budget. Rep. Henry Bonilla, R-San Antonio, indicated he will try to reverse the White House recommendation to cap funding for crop insurance. A dispute over funding for Army Corps of Engineer projects that led to the recent firing of the agency's director has also fueled congressional anger toward the White House. Former Mississippi congressman Mike Parker was abruptly dismissed by Bush as the corps' director after he disagreed with a White House budget proposal to eliminate projects in a number of congressional districts. White House officials said Parker was out of line when he aired his disputes with them openly in testimony before Congress. Daniels said last week that the Sept. 11 terrorist attacks have changed the way business is done 19 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000510 in Washington. "There are transcendent priorities - the protection of America and the defeat of a foe that's out to harm us," the budget director said. "Individual and provincial and territorial priorities, however important they may be in isolation, they may have to give way this year, will have to give way." Grover Norquist, head of Americans for Tax Reform and an administration ally, said it was not unusual for congressional appropriators to butt heads with White House budget officials. "This idea that there was this warm 'give the president everything he wants,' it has never happened," said Norquist. First Punch in the Revived Bench-Tipping Brawl Neil Lewis The New York Times March 17, 2002, Sunday The confirmation battle over Judge Charles W. Pickering Sr. signals an escalation in the long-running partisan and ideological fight between presidents and senators over the shape of the federal courts. In a show of strength, Senate Democrats defeated the Pickering nomination this week and put in motion a carefully designed strategy of selective delay in hopes of persuading President Bush to be more moderate in future judicial choices. Under this approach, Senator Patrick J. Leahy, the Vermont Democrat who is the chairman of the Judiciary Committee, is moving quickly on those of Mr. Bush's judicial nominees the Democrats deem to be moderate to fend off criticism that they are blocking the president's choices. At the same time, nominees who are regarded as highly conservative are being deferred indefinitely. Even if it was unspoken, the message was clear that Democrats were ready to take the same approach in the likely event that Mr. Bush has the opportunity to nominate at least one Supreme Court justice. In effect, they were telling the White House that even though their majority was slim, there was a new balance of power in the confirmation of federal judges. By controlling the Judiciary Committee, the Democrats were able to prevent Mr. Pickering's nomination from coming to the full Senate for a vote. Senator Charles E. Schumer, a New York Democrat and member of the Judiciary Committee, said on Thursday that his principal reason for opposing Judge Pickering was to signal to the White House that it could not hope to send up legions of conservative judicial nominees and 20 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000511 expect the Democrats to accept them willingly. "This is about maintaining balance on our courts," Mr. Schumer said. The modern era of pitched ideological confirmation battles began in 1987 when the Senate rejected the nomination of Robert H. Bork to join the Supreme Court. The Senate Judiciary Committee's rejection on Thursday of Mr. Bush's effort to elevate Judge Pickering to an appeals court demonstrated that the battle lines and intense emotions of 1987 remain largely in place and will shape the fight over the next Supreme Court nominee. The fight over who gets to sit on the nation's top courts has its roots in the smoldering resentment among conservative legal theorists who believed that the nation's courts, and especially the Supreme Court of the Earl Warren period, had become too liberal -- by which they meant soft on crime and disrespectful of government authority. When Ronald Reagan was elected in 1980, he rewarded that group with the ability to reshape the courts, and those lawyers took to the task with great zeal. In the 12 years of Republican rule under Mr. Reagan and the first President Bush, the courts were tilted distinctly rightward. Academic studies showed that the judges appointed by Presidents Reagan and Bush were far more likely to uphold restrictions on abortions, approve law enforcement practices and favor government authority than were judges appointed by previous presidents, including those named to the bench by Gerald R. Ford and Richard M. Nixon. President Bill Clinton resolutely declined during his eight years in office to mount any liberal counter offensive. He generally named moderates who would be palatable to Republicans. When nominees encountered opposition, they were often quickly dropped, as Mr. Clinton seemed unwilling to expend any political capital on nomination fights. But the Republicans have played the game differently and continue to do so. They willingly engage in fights, even losing ones, as part of their effort to place their kind of people on the bench. President Bush did not put much effort into trying to persuade Democrats to relent and allow the Pickering nomination to go to the full Senate, where the judge might have been confirmed with the help of a few conservative Democrats. But Mr. Bush made two public appeals on behalf of Judge Pickering, not so much in the hope of saving the nomination but to charge his opponents with being unfair and to extract a price from the Democrats. The Democrats' strategy of selective delay has meant that several of Mr. Bush's more conservative choices, especially those nominated for seats on the nation's 13 appeals courts, have been left waiting. The appellate courts, the level just below the Supreme Court, have become increasingly influential as the Supreme Court decides fewer cases each year, leaving the appellate ruling as the final word on issues like abortion regulations, school prayer and the role of Congress. 21 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000512 Cornyn urges Senate contenders to denounce Pickering rejection The Associated Press March 16, 2002, Saturday DALLAS (AP) - Republican U.S. Senate candidate John Cornyn on Friday urged his potential Democratic opponents to protest their party's unanimous decision to block the nomination of a Mississippi judge to a federal appeals court. Thursday, the Democrat-controlled Senate Judiciary Committee defeated the nomination of U.S. District Judge Charles Pickering to the U.S. Appeals Court in New Orleans. Pickering was one of President Bush's nominees. Cornyn, the Texas attorney general, won Tuesday's GOP nomination for the Senate seat being vacated by Sen. Phil Gramm. He'll face either Ron Kirk, former mayor of Dallas, or Victor Morales, a geography teacher. Both finished with 33 percent of the vote in the primary and are headed to an April 9 runoff. "By remaining silent, my potential Democratic opponents are effectively endorsing a litmus test that eliminates qualified nominees unless they are liberal activists," Cornyn said in a news release. Kelly Fero, a Democratic strategist and Kirk supporter, said Cornyn was confusing the matter at hand: finding a qualified judge for the job. Morales, Kirk split on need for fuel-efficiency standards Gary Susswein Austin American Statesman March 16, 2002, Saturday Democratic Senate hopefuls Victor Morales and Ron Kirk are at odds over the proposed fuel-efficiency standards for cars, trucks and sport-utility vehicles that the U.S. Senate rejected this week. Morales said Friday that he would have voted to require vehicles to meet specific mileage-per-gallon standards by a specific date to reduce emissions and help curb the country's dependence on foreign oil. A measure proposed by Sen. John McCain, R-Ariz., would have raised the average fuel efficiency to 36 miles per gallon by 2016. Morales said he did not know the specifics of the proposal until he was contacted by a reporter. 22 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000513 "Based on what (you) told me, I would have voted for it," the Crandall schoolteacher said. "I am for tougher standards as long as it's allowed to be phased in to give the industry time." Kirk, the former Dallas mayor, said he would have voted against the measure, which was defeated 62-38 Wednesday. The Senate instead asked the Transportation Department to study the need for and potential impact of new fuel-efficiency standards. "He feels we can accomplish the same things through the use of technology," Kirk spokesman Justin Lonon said. "There's a way to . . . improve fuel efficiency and conservation through technology -- through hybrid vehicles and that sort of thing -- that can protect jobs and still help the environment." The proposal was crafted by a bipartisan group of senators and backed by environmental organizations. It was opposed by the auto industry, automobile workers unions and senators who said the federal government has no right to tell people what kinds of cars to drive. Texas Sens. Phil Gramm and Kay Bailey Hutchison were among 43 Republicans and 19 Democrats who voted against the plan. The disagreement between Kirk and Morales, who will face each other in an April 9 runoff, is their first significant rift on policy issues. Responding to another controversial measure in the Senate this week, Kirk and Morales said they support the Judiciary Committee's party-line rejection of Mississippi judge Charles Pickering's nomination for the 5th U.S. Circuit Court of Appeals. Each candidate, though, emphasized that he hadn't reviewed Pickering's record as closely as the committee members did. Pickering's stance on abortion and his commitment to civil rights have been questioned. Attorney General John Cornyn, the Republican Senate nominee, on Friday criticized the committee's decision. Thursday's "unanimous Democratic committee vote rejecting Judge Charles Pickering is an outrage," Cornyn said in a written statement. "By remaining silent, my potential Democratic opponents are effectively endorsing a litmus test that eliminates qualified nominees unless they are liberal activists." 23 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000514 Morales and Kirk declined to respond to those charges. Cornyn said he would have opposed the new fuel-efficiency standards. Pickering Rejection Sets Off Nominee War Susan Milligan The Boston Globe March 16, 2002, Saturday WASHINGTON - Furious at the rejection of Charles W. Pickering for a federal appeals court seat, Senate minority leader Trent Lott said yesterday that he would block a Democratic choice for the Federal Communications Commission, while court-watchers prepared for a protracted, partisan fight over future nominees. Lott, a Republican who represents Pickering's state of Mississippi, announced he would seek to obstruct the nomination of Jonathan Adelstein, an aide to Senate majority leader Thomas A. Daschle, Democrat of South Dakota. Lott's office brushed aside suggestions that the threat was payback for Pickering, whose nomination was refused by a 10-9 party-line vote Thursday by the Democratic-controlled Senate Judiciary Committee. But both Pickering's supporters and detractors said the salvo signaled the beginning of a long battle over President Bush's nominees to the courts, one that could paralyze the Senate, heighten tensions between the executive and legislative branches, and deprive the judiciary of needed judges. "It's out of control. It's become a political battle for who's going to control the courts," said Robert Bork, whose 1987 nomination to the US Supreme Court was defeated amid Democratic complaints about his conservative ideology. "I think they burned [Pickering] because they were sending a message to the White House to not send up any conservative Supreme Court justices." A spokesman for Lott, Ron Bonjean, said Lott opposes Adelstein because he is young and inexperienced. Adelstein is 39, slightly younger than FCC chairman Michael Powell, a Republican who turns 40 next week. Two seats on the five-member FCC are reserved for the party not in the White House. Under Senate rules, any senator can block confirmation by a "hold" on a nomination. The votes of 60 senators would be needed to break the hold. "It's really unfortunate that Senator Lott would try and take retribution on someone who was completely uninvolved," said a Daschle spokeswoman, Ranit Schmelzer. 24 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000515 Pickering, a conservative US district judge in Mississippi, underwent attacks from civil rights groups and some senators regarding his record on racial matters. And some Democratic senators said during debate over Pickering that they voted against him because of his conservative viewpoints. And Democrats won't stop there. Staff members for Senator Edward M. Kennedy, Democrat of Massachusetts and a senior member of the Judiciary Committee, are already assembling background information on judicial nominees in the pipeline, and have raised questions about the nominees' records on civil rights, abortion, and rights for the disabled. "Senator Kennedy will continue to fulfill his constitutional duty to advise and consent," said spokeswoman Stephanie Cutter. Liberal interest groups that have played a strong role in defeating Republican appointments in the past are also gearing up for future fights. Expected targets include Fifth Circuit Court of Appeals nominee Priscilla Owen, a Texas Supreme Court justice whose decisions have concerned abortion-rights supporters; Paul G. Cassel, a nominee for a Utah judgeship who has challenged the Miranda ruling requiring police to read defendants their rights; and Michael McConnell, a 10th Circuit Court of Appeals nominee who is disliked by abortion-rights supporters. Nan Aron, head of the Alliance for Justice, said that Bush has the right to nominate whomever he wants, but that the Senate has an obligation to screen the nominees. "I think this demonstrates the Senate's independent role in scrutinizing these candidates," Aron said. "However much Senator Lott tries to blame the [opposing] groups or the politics, Judge Pickering's record was one that was so hostile to civil and women's rights that the public insisted he be defeated." In the halls of the Senate, Pickering's supporters were outraged. Senator Zell Miller, Democrat of Georgia, warned that the committee's rejection of the Mississippi judge would have "political repercussions" for Democratic candidates in the South. In another jab at the committee, Lott announced yesterday that he would seek to stop a Senate Judiciary Committee request for $1.5 million to investigate intelligence operations on Sept. 11. "Holding hearings and votes on judicial nominees is arguably the most important responsibility" of the panel, Lott wrote to Senator Christopher J. Dodd, Democrat of Connecticut and chairman of the Rules and Administration Committee. "I am hard pressed to understand why the committee, under its current leadership, should be entrusted with further responsibilities and resources when they have failed to take action on their primary responsibilities." As of yesterday, there were 94 vacancies for federal judgeships - an "extraordinarily high" number, but not a record, said White House spokeswoman Anne Womack. Republicans contend that the Democratic-controlled Senate is unusually slow in confirming judges - a complaint also 25 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000516 made by Democrats when Bill Clinton was in office and Republicans ran the Senate; William H. Rehnquist, chief justice of the Supreme Court, complained then that the Senate was not moving quickly enough. The current Senate, which shifted from Republican to Democratic control in the middle of last year, has confirmed 41 judges; the 106th Senate, which coincided with the last two years of the Clinton administration, confirmed 73 nominees, according to the Judiciary Committee. A spokesman for Judiciary Committee chairman Patrick Leahy, Democrat of Vermont, said the GOP simply refused to hold hearings or votes on numerous Clinton administration nominees. Leahy has held at least one hearing a month, the spokesman said. Retribution Continues: Lott Strikes Again in Response to Pickering Defeat John Bresnahan Roll Call Daily March 15, 2002 Angry over the defeat of his friend's judicial nomination, Senate Minority Leader Trent Lott (R-Miss.) is now blocking a $1.5 million request by the Judiciary Committee for additional funds to look into FBI intelligence failures related to the Sept. 11 terrorist attacks. The Judiciary panel, which is chaired by Sen. Patrick Leahy (D-Vt.), on Thursday rejected the nomination of Judge Charles Pickering for a seat on the 5th U.S. Circuit Court of Appeals. As a result, Lott on Friday informed GOP Sens. Orrin Hatch (Utah) and Mitch McConnell (Ky.), the ranking members on the Judiciary and Rules and Administration panels, respectively, that he would oppose new Judiciary money. Under Senate rules, both McConnell and Rules Chairman Christopher Dodd (D-Conn.) would have to agree on requests for additional funding. With Lott now opposed to the request, McConnell will object as well. This is the second action taken Friday by the Minority Leader in retaliation for the Judiciary Committee's vote against Pickering, a native of Lott's home state of Mississippi. Earlier in the day, Lott blocked Majority Leader Thomas Daschle's (D-S.D.) nominee for the Federal Communications Commission. In reference to the Judiciary funding request, Lott wrote to Hatch and McConnell: "I fail to see how such an increase can be justified at this time. I am hard pressed to understand why the committee, under its current leadership, should be entrusted with further responsibilities and resources when they 26 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000517 have failed to take action on their primary responsibilities." David Carle, a spokesman for Leahy, told Roll Call Daily: "It's a puzzling action. Senator Leahy and Senator Hatch will now have to consult on how the committee will proceed in its expanded oversight duties after 9/11, finding and correcting problems at the FBI and" Immigration and Naturalization Service. Lott is under heavy pressure from conservatives to strike back at Daschle over Pickering. "A test of Mr. Lott's leadership is whether he can hold his minority together to do what Mr. Daschle did," the Wall Street Journal wrote in an editorial Friday. "If he can't unite his party on this one, then he ought to stand aside for someone who can." Senate Rejection Disappoints Pickering The Commercial Appeal (Memphis, TN) March 16, 2002 Saturday U.S. District Judge Charles Pickering says he worked in his chambers in Hattiesburg as the Democratic-controlled U.S. Senate Judiciary Committee scuttled his nomination for a federal appeals court post. Pickering said Friday his immediate reaction to the vote was disappointment. As for the immediate future, Pickering said he would "do the things I've been doing - I will continue with my judicial duties." Pickering said he would not withdraw his name from consideration for the appeals post. That could mean another vote in the future. Senate Republican leader Trent Lott on Friday threatened to retaliate against Democrats for defeating President Bush's nominee to the 5th U.S. Circuit Court of Appeals in New Orleans. "I'm not going to let go of it for a long time," said Lott. The NAACP and other liberal rights groups, a core constituency of the Democrats, strongly disapproved of the nomination because they said Pickering supported segregation as a young man and had an ultraconservative voting record as a Mississippi lawmaker. Rep. Bennie Thompson (D-Miss.) said it was these concerns that convinced a majority of the committee to reject the nomination. "The vote not to confirm Pickering is evidence of the extensive record the judge has amassed 27 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000518 and his insensitivity to civil rights concerns," said Thompson. Pickering said he refused "to let what has happened to me during this process embitter me or shape the balance of my life. Life is too precious." "I am extremely disturbed that judicial confirmation has degenerated into such a bitter and mean-spirited process," he said. "I sincerely hope that no other nominee has to go through what has happened to me. The price of public service should not be so high." State GOP Chairman Jim Herring said the rejection of Pickering would make Republicans campaign even harder to return the judge's son, U.S. Rep. Chip Pickering, to Congress. Mississippi lost a congressional seat, and districts represented by Pickering and U.S. Rep. Ronnie Shows (D-Miss.) were combined. Both have qualified in the new district ordered by a federal three-judge panel. Divisive Pickering Vote Has Parties Feuding Jesse J. Holland The Commercial Appeal (Memphis, TN) March 16, 2002 Saturday A Senate committee's party-line rejection of a Mississippi judge could endanger other nominees, lawmakers said Friday, with talk of retaliation from both Republicans and Democrats. GOP leader Trent Lott called the defeat of U.S. Dist. Judge Charles Pickering of Mississippi for the U.S. Appeals Court "a real blow," and said he would block one of Majority Leader Tom Daschle's aides from getting on the Federal Communications Commission. "I'm not going to let go of it for a long time," said Lott, a Pickering friend of 40 years who called the Senate Judiciary Committee's racially charged proceedings and its 10-9 vote Thursday a "slap at Mississippi." Daschle, in turn, warned an attack on his aide's nomination might prove dangerous for other Bush nominees in the Democrat-controlled Senate. "I don't know if they've given careful thought to that threat, because I think it could easily backfire in many ways," the South Dakota Democrat said. Pickering was the first of President Bush's judicial nominees to lose in the Judiciary Committee. Democrats criticized the 64-year-old judge's judicial temperament and judgment, with the committee chairman, Sen. Patrick Leahy (D-Vt.), saying Pickering "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." Lott and other Republicans meanwhile said Pickering had been smeared by groups seeking to impose "an ideological litmus test" involving abortion, civil rights and other issues. 28 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000519 Republicans say liberal groups also used the Mississippi judge to test their strength for the next Supreme Court nomination battle. "I think it is really aimed at the Supreme Court," Lott said. "That is the message, you send up a pro-life conservative man of faith for the Supreme Court and we will take care of him or her. That's what it's really about." Bush wanted the committee to let the full Senate vote on the Pickering nomination, even after voting not to recommend him. The Democrats would not allow that unusual step. Lott said that during President Clinton's term, Democrats slowed down the Senate to protest the treatment of Democratic nominees. "I think we're fixing to see that same thing occur," he said. "We cannot let stand a plan to deny President Bush his nominees to the Supreme Court." Lott insisted his plan to block Bush's FCC nomination of 39-year-old Jonathan S. Adelstein, a legislative assistant for Daschle since 1995, has nothing to do with the Pickering vote. "He's relatively young," Lott said. "He doesn't have the experience." FCC Chairman Michael Powell will be 38 until his birthday next Saturday. Daschle called it unfortunate that Lott "would lash out at someone totally uninvolved with the Pickering nomination" and warned other nominees could get dragged into the argument. Several other Bush judicial nominees also face tough confirmations before the Senate Judiciary Committee, including Bush favorite Miguel Estrada, a partner in a Washington law firm that represented Bush in his Supreme Court election fight against Al Gore. "I would think they would want our cooperation in moving other nominees," Daschle said. Leahy suggested that he would not allow potentially controversial Bush choices to come before the committee until other nominees go through first. "I'm going to start looking for those that have consensus," he said. Lott fired another shot at Democrats late Friday, blocking a Judiciary Committee request for $1.5 million to investigate the intelligence community's performance during the Sept. 11 attacks on New York City and Washington. Lott said the committee has shown "a deliberate pattern of obstructionism" on Bush judicial nominees. 29 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000520 "I am hard pressed to understand why the committee under its current leadership should be entrusted with further responsibilities and resources when they have failed to take action on their primary responsibilities," he said. Leahy spokesman David Carle called Lott's decision "rash" and said the Mississippi Republican was "going out of his way to intervene." Lott vows to make Democrats pay for rejecting nominee Craig Gilbert Milwaukee Journal Sentinel March 16, 2002 Saturday Washington -- Fuming over the rejection of a Bush court nominee, the Senate's top Republican warned Friday that the fight has harmed relations between the parties and would prompt retaliation on other issues. "This has really damaged the way we do business around here," said Trent Lott. "It affects everything." The Mississippi Republican did not specify all of the steps his side might take, but he said, "You'll see it in a lot of ways and in a lot of days." When the Senate Judiciary Committee rejected federal judge Charles Pickering of Mississippi on Thursday for a seat on the appellate court, it marked the first defeat of a Bush judicial nominee. All 10 Democrats on the panel, including Herb Kohl and Russ Feingold of Wisconsin, voted to kill the nomination. Lott's comments to reporters Friday reflected a very personal bitterness. He was Pickering's friend, home-state sponsor and closest supporter in the Senate. "I'm not going to let go of it for a long time," he said. "This is a real blow." But the Pickering fight has raised bigger questions. One is how far the fallout will extend, as Lott predicted, to other issues before the Senate. Lott said his relationship with Senate Majority Leader Tom Daschle has been damaged professionally and personally. He also insisted that his plan to block Bush's nomination of 39-year-old Jonathan S. Adelstein, a Daschle aide since 1995, to the Federal Communications Commission had nothing to do with the Pickering vote. "He's relatively young," Lott said. "He doesn't have the experience." FCC Chairman Michael Powell is 38, until his birthday next Saturday. 30 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000521 But Lott made another move Friday that he linked to what he called the Judiciary panel's obstructionism: He said he would block a $1.5 million request by Judiciary Democrats to investigate intelligence operations on Sept. 11. Clashes to come The other question is what the Pickering battle means for the current era of polarized judicial politics -- whether it represents more of the same or a true escalation. Activists on both sides saw it as a kind of dress rehearsal for clashes to come over the courts, including future Supreme Court vacancies. Other Democrats warned the president that he can't expect to stock the judiciary with sharp conservatives; Republicans accused Democrats of smearing Pickering, changing the ground rules for judicial picks and causing an institutional crisis that has left the federal bench seriously understaffed. Kentucky Republican Mitch McConnell said Thursday that there was a "meltdown going on in this committee." In an interview Friday, Wisconsin's Kohl dismissed that notion. "Just because one fellow got voted down?" Kohl said. "That's just not true." He and other Democrats say they've voted for dozens of Bush-backed judges, and that GOP lawmakers had allowed numerous nominations to die under President Clinton. "This is not too different from what's been going on for years, whether it's Democrats or Republicans," Kohl said. "These nominations have to be carefully calibrated. If the person is too far to the left or right, they're going to have trouble. That's just the way things are in Washington these days." Greater scrutiny Most of the Bush picks approved by the Senate have been federal trial judges. Action has been slower for nominees to the powerful appellate courts -- second only to the Supreme Court. Only seven of 29 appeals court nominees have been confirmed so far. Many await hearings. Are there many more bitter clashes in the offing? Democrats provided some clues Thursday. Most of those on the committee offered specific objections to Pickering, based largely on his record as a federal trial judge in Mississippi. But they also made broader arguments that could be used against future Bush picks. 31 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000522 Some, including Feingold, said appellate nominees should expect greater scrutiny by senators than nominees for the lower district court. But Feingold added in an interview Thursday: "We shouldn't be searching around for ways to kill other nominations." At least one Democrat, New York's Charles Schumer, went beyond the traditional discussion of a nominee's "judicial temperament" and commitment to "constitutional values" and made an explicitly political case. Calling Pickering a "rock-ribbed conservative," Schumer said, "We need balance on the federal courts. "Our country is divided ideologically," Schumer said. "There's clearly no mandate from the American people to stock the courts with conservative ideologues. So if the White House persists in sending us nominees who threaten to throw the courts out of whack with the country, we have no choice but to vote 'no.' " Time for 'armistice' Pennsylvania Republican Arlen Specter, who sometimes breaks with his own party on judicial picks, said Thursday that it was time for an "armistice." But for many Democrats, the answer is for the president to offer less conservative nominees. For many Republicans, the answer is for Democrats to shun ideological "litmus tests." "That is a very bad thing if they continue that pattern," said Lott, who added that Republicans would answer by picking and choosing their fights in this and other areas. "This is not going to be a sledgehammer sort of thing. This is going to take time. There are a lot of things we can do," Lott said. Daschle responded Friday that any retaliation might be self-defeating for the GOP minority in the Senate. "I don't know if they've given careful thought to that threat because I think it could easily backfire in many ways that would adversely affect their own agenda," the majority leader said. After Defeat of Judge, Lott Plans to Block Daschle Aide Alison Mitchell The New York Times March 16, 2002, Saturday The partisan battle over judicial nominations intensified today as Senator Trent Lott, the 32 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000523 minority leader, struck out at the Senate Judiciary Committee and moved to block an aide to Senator Tom Daschle, the majority leader, from filling a spot on the Federal Communications Commission. A day after the Judiciary Committee, on a party-line vote, rejected the elevation of Judge Charles W. Pickering Sr. to an appeals court, Mr. Lott, a friend of the judge, threatened to slow the operations of an already slow Senate. He also announced his intent to stop the communications commission appointment of the Daschle aide, Jonathan Adelstein. Mr. Lott denied that his move was retaliation, saying he had questions about Mr. Adelstein's qualifications. "He's relatively young," Mr. Lott said. "He doesn't have the educational experience to be qualified for a position as important as that one is." Mr. Adelstein is 39. A few hours later Mr. Lott also announced that he would stop the Judiciary Committee from receiving an extra $1.5 million to investigate the performance of federal law enforcement agencies in the weeks leading up to the Sept. 11 attacks. Under Senate rules, such requests must be approved by both parties. Mr. Lott, in a statement, said: "The Senate needs to focus its resources. Holding hearings and voting on judicial nominees is arguably the most important responsibility of the Senate Judiciary Committee. Overseeing our nation's intelligence operations is the most important responsibility of the Senate Intelligence Committee." But an aide made clear that the action was related to the rejection of the judge. The struggle over Judge Pickering was part of a long-raging battle between the parties over the ideological direction of the federal courts. It was President Bush's first defeat in a judicial battle. Some Democrats said they were voting against the nomination to send a message to Mr. Bush that he would not automatically win if he nominated a legion of conservative judges. Mr. Lott called the vote a slap at his and Judge Pickering's home state, Mississippi, and said, "I'm not going to forget it for a long time." He recalled that when Bill Clinton was president and Republicans were in the majority, Democrats slowed the Senate to protest the treatment of nominees. "I think we're fixing to see the same thing occur," Mr. Lott said. "We cannot let stand a plan to deny President Bush his nominees to the Supreme Court." Mr. Daschle warned that an attack on his aide's nomination could only escalate the struggle. "I don't know if they've given careful thought to that threat," said Mr. Daschle, a South Dakota Democrat, "because I think it could easily backfire in many ways." A spokesman for Senator Patrick J. Leahy, Democrat of Vermont, who is chairman of the Judiciary Committee, criticized Mr. Lott's intervention to stop the committee from examining 33 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000524 whether agencies "are doing their jobs skillfully as the war on terrorism unfolds." Still, it was not clear just how intensely these partisan fires would rage in a Senate that is already tied in partisan knots and under Democratic control by just one vote. One bill looked like it would escape without being singed. After weeks of stalling a vote on the overhaul of the campaign finance law, Republicans agreed to let it come to the Senate for debate on Monday, sidestepping a confrontation this morning. Republican aides said that they expected the campaign finance bill to receive final passage and that even opponents of the bill did not want a long battle. Still, Mr. Daschle made a show today of having cots delivered to the Capitol to demonstrate that he was prepared to keep the Senate in session day and night next week if needed to beat back any delaying tactics. He has vowed that the Senate will give final passage by week's end. The Judiciary Committee's vote on Judge Pickering, 64, came after weeks of emotional debate about his qualifications. Republicans contended that the judge was the subject of a smear campaign by liberal groups. The groups portrayed him as insensitive to racial justice, citing, for example, an article he had written at age 21 recommending changes that would make Mississippi law against racially mixed marriages more effective. His supporters countered with accounts of his efforts at racial reconciliation. The rancor continued in the Senate today. Senator Orrin G. Hatch of Utah, the ranking Republican on the Judiciary Committee, accused the judge's opponents of an "attempt to open old, old painful wounds by using the all-too-familiar race card." Senator Harry Reid of Nevada, the majority whip, criticized Mr. Bush for seeking a full Senate vote on Judge Pickering even if his nomination was rejected in committee. "George W. Bush is president of the United States, not king of the United States," Mr. Reid said. "He's President Bush. He's President George. Not King George." Lott Retaliates for Pickering Loss; Judiciary Panel's Funding, Daschle Nominee Targeted Helen Dewar The Washington Post March 16, 2002, Saturday Senate Minority Leader Trent Lott (R-Miss.) yesterday blocked a $ 1.5 million request from the Judiciary Committee for its post-Sept. 11 oversight operations as part of a retaliatory strike against Democrats for killing the judicial nomination of a fellow Mississippian. Lott's reprisals, which also included a move to block a senior Senate Democratic aide's appointment to the Federal Communications Commission, signaled an escalation in the Senate's 34 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000525 long-running war over judicial nominations. Democrats warned that GOP efforts to hold up legislation or nominations could hurt President Bush more than themselves. They noted that most matters on the Senate schedule are Bush priorities, such as energy, trade and nominations. Majority Leader Thomas A. Daschle (D-S.D.) said Lott's tactics could backfire by discouraging cooperation from Democrats. Republicans will "want our cooperation in moving other nominees," he said. Furious over the Judiciary Committee's party-line vote Thursday to reject the nomination of U.S. District Judge Charles W. Pickering to the 5th U.S. Circuit Court of Appeals, Lott told reporters "the Senate is going to be in very bad shape" if Democrats continue to hold up or block Bush's judicial nominations. He said Pickering's rejection had "damaged" his relations with Daschle, both personally and professionally. Daschle had opposed Pickering's confirmation and said he would put the nomination before the full Senate only if the Judiciary Committee approved such action. When the committee refused to do so, Pickering's nomination died. Asked what he intended to do, Lott said there would be selective retribution, not "a sledgehammer kind of thing." He said he may try to force the Senate to vote on stalled nominations, and he suggested other, unspecified options for retaliation. "You'll see it in a lot of ways in a lot of days," he said. Lott had already let it be known he would use Senate rules to block the anticipated nomination of Daschle aide Jonathan Adelstein to one of the two seats reserved for Democrats on the five-member FCC. Lott said he believed Adelstein, 39, a Senate legislative aide for the past 14 years, is too young and inexperienced, although Michael Powell, the FCC's Republican chairman, is 38. Daschle said, "It's unfortunate that he [Lott] is lashing out at someone totally uninvolved with the Pickering nomination." A few hours later, Lott released copies of letters to leaders of the Senate Rules and Administration Committee, who handle requests for committee spending, strongly advising them to refuse to give the Judiciary Committee any more money. He said ranking Republican Mitch McConnell (Ky.) would block the panel's $ 1.5 million request. In a news release, Lott said the House and Senate intelligence committees were already investigating terrorism-related intelligence operations and added: "One of the significant failures of the Senate this past year has been the Judiciary Committee's slow action on the president's judicial nominees. I am hard pressed to understand why the committee, under its current leadership, should be entrusted with further responsibilities and resources when they have failed to take action on their primary responsibilities." 35 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000526 Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said the request for additional funds was made by both ranking Republican Orrin G. Hatch (Utah) and himself and was intended to "make sure that agencies like the FBI and INS are doing their jobs skillfully as the war on terrorism unfolds." It "has nothing to do with any 'parallel' investigation to the work of the Intelligence Committee," Leahy said. Meanwhile, Democrats got a blast from one of their own. Sen. Zell Miller (Ga.), who is often at odds with his party's leaders, criticized his colleagues for blocking Pickering, whom he described as "a good and brave man." He said they may pay a high price in the South. "Politically, this action may very well elect a Republican governor in Mississippi, and it will certainly make it even more difficult for Democratic candidates to be successful in the South," Miller said. Miller says South will rise against Pickering's defeat; Fears losses of Democratic seats Amy Fagan and Stephen Dinan The Washington Times March 16, 2002, Saturday Senate Democrats' rejection of Judge Charles W. Pickering Sr. for a federal appeals court seat could cost the party governorships and seats in Congress, said Sen. Zell Miller. "Politically, this action may very well elect a Republican governor in Mississippi, and it will certainly make it even more difficult for Democratic candidates to be successful in the South," the Georgia Democrat said Thursday. President Bush had nominated Judge Pickering, of the federal district court in Mississippi, for the 5th U.S. Circuit Court of Appeals, but the Senate Judiciary Committee voted 10-9 on Thursday not to send his nomination to the Senate floor. All 10 Democrats on the committee voted against the nomination, and Senate Majority Leader Tom Daschle, South Dakota Democrat, said the nomination was dead. Senate Minority Leader Trent Lott, Mississippi Republican and longtime friend of Judge Pickering, retaliated yesterday by scuttling the committee's request for $1.5 million in additional funds and also promised to block the nomination of one of Mr. Daschle's aides to a position on the Federal Communications Commission. Committee Chairman Patrick J. Leahy, Vermont Democrat, and ranking Republican member Sen. Orrin G. Hatch of Utah made the funding request in a Feb. 27 letter. They said additional money was needed to conduct important oversight of key agencies, like the FBI, in the wake of the September 11 terrorist attacks. Mr. Lott said a joint House-Senate investigation was under way. Ron Bonjean, spokesman for the senator, said Mr. Lott "believes this funding should not be allocated because the funding 36 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000527 could potentially be used to block judicial nominations." The funds would have to be approved by leaders of both parties, and Mr. Lott's lack of support effectively has killed it. David Carle, spokesman for Mr. Leahy, said the requested funds, which would be divided evenly between both parties on the committee, does not overlap with the House-Senate investigation and has "everything to do with the committee's added oversight responsibilities to make sure that agencies like the FBI and the INS are doing their jobs skillfully as the war on terrorism unfolds." On the FCC nomination, Mr. Lott said his decision was not related to the Pickering vote. But an aide to Mr. Daschle said it is "awfully convenient timing" and a senior Republican aide said these retaliatory moves are just the beginning: "These initiatives will continue and the Daisy Cutters are coming." Mr. Daschle responded yesterday to Mr. Lott's anger over the Pickering nomination by saying: "I think they would want our cooperation on moving other nominations and other legislation. The threat could easily backfire and in many ways hurt their own agenda." Observers predicted immediate fallout in Mississippi, where redistricting has cast Rep. Ronnie Shows, a Democrat, in the same district as Judge Pickering's son, Rep. Charles W. "Chip" Pickering Jr. "It underscores what somebody like Shows doesn't want the people back home to ever grasp about the national Democratic Party, and the fact that so often they're voting in the interests of the national Democratic Party and not conservative Mississippi values," said Henry Barbour, Mr. Pickering's campaign manager. Brian Perry, editor of MagnoliaReport.com, which tracks Mississippi politics, said the Pickering issue will become a litmus tests for the state's conservative voters. "In the past Republicans have had a hard time tying local so-called conservative Democrats to the national Democratic Party," he said. "Now I think they'll be able to say the so-called conservative Democrats here are fueling the power of Democratic Party people in Washington" who defeated Judge Pickering's nomination. But Mr. Shows' campaign manager, Barry Butler, said the congressman did all he could for Judge Pickering: "I really don't think there's going to be a backlash - we came out in support of Judge Pickering, and that's really all we can do." Lott issues warning after judge rejected Jesse J. Holland Chicago Tribune March 16, 2002 Saturday 37 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000528 A Senate committee's party-line rejection of a Mississippi judge could endanger other nominees, lawmakers said Friday, with talk of retaliation from both Republicans and Democrats. Senate Minority Leader Trent Lott (R-Miss.) called the vote against U.S. District Judge Charles Pickering for the U.S. Appeals Court "a real blow," and said he would block one of Majority Leader Tom Daschle's aides from the Federal Communications Commission. "I'm not going to let go of it for a long time," said Lott, a Pickering friend for 40 years who called the Senate Judiciary Committee's racially charged proceedings and its 10-9 vote Thursday a "slap at Mississippi." Daschle, in turn, warned that an attack on his aide's nomination might prove dangerous for other Bush nominees in the Democrat-controlled Senate. "I don't know if they've given careful thought to that threat, because I think it could easily backfire in many ways," the South Dakota Democrat said. Late Friday, Lott fired another shot, blocking a Judiciary Committee request for $1.5 million to investigate the intelligence community's performance during the Sept. 11 attacks. "I am hard-pressed to understand why the committee under its current leadership should be entrusted with further responsibilities and resources when they have failed to take action on their primary responsibilities," Lott said. Pickering was the first of President Bush's judicial nominees to be rejected by the Judiciary Committee. The 64-year-old judge said Friday that he would refuse "to let what has happened to me during this process embitter me or shape the balance of my life. Life is too precious." Democrats criticized Pickering's judicial temperament and judgment, with the committee chairman, Sen. Patrick Leahy (D-Vt.), saying Pickering "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." Lott and other Republicans said Pickering had been smeared by groups seeking to impose "an ideological litmus test" on abortion and civil rights. Senate Judges Glance AP Online March 15, 2002 Friday Judicial nominees since 1977 who failed to get a favorable vote from Senate Judiciary Committee. Unless otherwise noted, all votes on nominees occurred in the same hearing: 38 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000529 -Robert Collins, nominee for the U.S. District Court for eastern Louisiana in 1978. First vote for favorable recommendation deadlocked, 5-5; second vote, a month later, to report the nomination to Senate favorably passed, 13-1; eventually confirmed by the Senate. -Charles Winberry Jr., nominee for U.S. District Court in eastern North Carolina in 1980. First vote to send to the Senate without a recommendation failed, 9-6; nomination defeated. -Daniel Manion, nominee for the 7th U.S. Circuit Court of Appeals in 1986. First vote to send to Senate with a favorable recommendation deadlocked, 9-9; second vote to send without recommendation succeeded, 11-6; confirmed by Senate. -Jeff Sessions, nominee for the U.S. District Court for southern Alabama in 1986. First vote to send to Senate with favorable recommendation failed, 10-8; second vote to send without recommendation deadlocked, 9-9; defeated in committee. He is now a Republican senator from Alabama and a member of the Judiciary Committee. -Robert Bork, nominee for U.S. Supreme Court in 1987. First vote to send to the Senate with a favorable recommendation failed, 9-5; second vote to send with negative recommendation succeeded, 9-5; rejected by the Senate. -Susan Liebeler, nominee for the U.S. Circuit Court of Appeals, Federal Circuit, in 1988. First vote to send to Senate with a favorable recommendation defeated, 7-6; second vote to send without recommendation succeeded, 8-5; nomination never received a Senate vote. -Bernard Siegan, nominee for the 9th U.S. Circuit Court of Appeals in 1988. First vote to send to Senate with a favorable recommendation failed, 8-6; second vote to send without a recommendation deadlocked, 8-8; defeated in committee. -Kenneth Ryskamp, nominee for the 11th U.S. Circuit Court of Appeals in 1991. First vote to send to Senate with a favorable recommendation defeated, 8-6; second vote to send without recommendation deadlocked, 7-7; defeated in committee. -Clarence Thomas, nominee for the U.S. Supreme Court in 1991. First vote to send to Senate with favorable recommendation failed, 7-7; second vote to send without recommendation succeeded, 13-1; confirmed by Senate. -Charles Pickering, nominee for the 5th U.S. Circuit Court of Appeals. First vote to send to Senate with favorable recommendation failed, 10-9; second vote to send to Senate without recommendation failed, 10-9; third vote to send with no recommendation failed, 10-9. Nomination defeated in committee. Parties Tense After Divisive Vote Jesse Holland AP Online 39 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000530 March 15, 2002 Friday A Senate committee's party-line rejection of a Mississippi judge could endanger other nominees, lawmakers said Friday, with talk of retaliation from both Republicans and Democrats. GOP leader Trent Lott called the defeat of U.S. District Judge Charles Pickering of Mississippi for the U.S. Appeals Court "a real blow," and said he would block one of Majority Leader Tom Daschle's aides from getting on the Federal Communications Commission. "I'm not going to let go of it for a long time," said Lott, a Pickering friend of 40 years who called the Senate Judiciary Committee's racially charged proceedings and its 10-9 vote Thursday a "slap at Mississippi." Daschle, in turn, warned an attack on his aide's nomination might prove dangerous for other Bush nominees in the Democrat-controlled Senate. "I don't know if they've given careful thought to that threat, because I think it could easily backfire in many ways," the South Dakota Democrat said. Pickering was the first of President Bush's judicial nominees to lose in the Judiciary Committee. Pickering, who still has his lifetime appointment as a U.S. District judge, said Friday he would refuse "to let what has happened to me during this process embitter me or shape the balance of my life. Life is too precious." "I am extremely disturbed that judicial confirmation has degenerated into such a bitter and mean-spirited process," he added. "I sincerely hope that no other nominee has to go through what has happened to me. The price of public service should not be so high." Democrats criticized the 64-year-old judge's judicial temperament and judgment, with the committee chairman, Sen. Patrick Leahy, D-Vt., saying Pickering "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." Lott and other Republicans meanwhile said Pickering had been smeared by groups seeking to impose "an ideological litmus test" involving abortion, civil rights and other issues. Republicans say liberal groups also used the Mississippi judge to test their strength for the next Supreme Court nomination battle. "I think it is really aimed at the Supreme Court," Lott said. "That is the message, you send up a pro-life conservative man of faith for the Supreme Court and we will take care of him or her. That's what it's really about." Bush wanted the committee to let the full Senate vote on the Pickering nomination, even after voting not to recommend him. The Democrats would not allow that unusual step. Lott said that during President Clinton's term, Democrats slowed down the Senate to protest the 40 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000531 treatment of Democratic nominees. "I think we're fixing to see that same thing occur," he said. "We cannot let stand a plan to deny President Bush his nominees to the Supreme Court." Lott insisted his plan to block Bush's FCC nomination of 39-year-old Jonathan S. Adelstein, a legislative assistant for Daschle since 1995, has nothing to do with the Pickering vote. "He's relatively young," Lott said. "He doesn't have the experience." FCC Chairman Michael Powell will be 38 until his birthday next Saturday. Daschle called it unfortunate that Lott "would lash out at someone totally uninvolved with the Pickering nomination" and warned other nominees could get dragged into the argument. Several other Bush judicial nominees also face tough confirmations in front of the Senate Judiciary Committee, including Bush favorite Miguel Estrada, a partner in a Washington law firm that represented Bush in his Supreme Court election fight against Al Gore. "I would think they would want our cooperation in moving other nominees," Daschle said. Leahy suggested that he would not allow potentially controversial Bush choices to come before the committee until other nominees go through first. "I'm going to start looking for those that have consensus," he said. Lott fired another shot at Democrats late Friday, blocking a Judiciary Committee request for $1.5 million to investigate the intelligence community's performance during the September 11th attacks on New York City and Washington. Lott said the committee has shown "a deliberate pattern of obstructionism" on Bush judicial nominees. "I am hard pressed to understand why the committee under its current leadership should be entrusted with further responsibilities and resources when they have failed to take action on their primary responsibilities," he said. Leahy spokesman David Carle called Lott's decision "rash" and said the Mississippi Republican was "going out of his way to intervene." Senate committee sends Bush message with rejection of judge's nomination Jesse Holland The Associated Press 41 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000532 March 15, 2002, Friday In rejecting President Bush's promotion of a Mississippi judge to a federal appeals court, Senate Democrats put the White House on notice they intend to block strict conservatives from key judicial positions, including the Supreme Court. "If the White House persists in sending us nominees who threaten to throw the courts out of whack with the country, we have no choice but to vote no," said Sen. Charles Schumer, D-N.Y. Democrats used their one-vote majority in the Senate Judiciary Committee on Thursday to kill Bush's nomination of U.S. District Judge Charles Pickering to the U.S. Appeals Court in New Orleans, one step below the Supreme Court. "This cannot continue," said Senate Republican Leader Trent Lott of Mississippi, Pickering's friend of 40 years. "We cannot let stand a plan to deny President Bush his nominees to the court." Lott called the committee's racially charged proceedings and its 10-9 party-line vote a "slap at Mississippi." The NAACP and other liberal rights groups, a core constituency of the Democrats, strongly disapproved the nomination because they said Pickering supported segregation as a young man and had an ultraconservative voting record as a Mississippi lawmaker. "This is people trying to use the ghost of the past to try to prevent us from rising up and going forward in a positive way," Lott said. He cited what he called Pickering's close ties to black leaders in Mississippi, some of whom supported his nomination. Bush wanted the committee to let the full Senate vote on the nomination. Pickering probably would have won a majority there, because at least three Democrats in the 50-49 Senate had said they would vote for him. Majority Leader Tom Daschle, D-S.D., has said repeatedly he would block any attempt to vote on Pickering without committee approval. Pickering "deserves better than to be blocked by a party-line vote of 10 senators on one committee," Bush said. "The voice of the entire Senate deserves to be heard." One Democrats, Sen. Zell Miller of Georgia, attacked his colleagues. "This action may very well elect a Republican governor in Mississippi," he said. Senate Judiciary Democrats, however, were united against Pickering. They repeatedly accused Republicans of mistreating many of the nominations made by former President Clinton, to the point of denying hearings for months at a time. In addition, the committee chairman, Patrick Leahy, said Pickering "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." Other Democrats referred to a case in which Pickering had sought a lighter sentence for a defendant on a cross-burning case, which Republicans contend was misinterpreted by the judge's 42 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000533 critics. Pickering simply does not have "the temperament, the moderation or the commitment to core constitutional ... protections that is required for a life tenure position" on the appeals court, said Sen. Edward Kennedy of Massachusetts. Republicans were equally united in their support of the judge. Sen. Orrin Hatch, R-Utah, argued that Bush's nominee had been victimized by a smear campaign by groups seeking to impose "an ideological litmus test" on abortion, civil rights and other issues. Sen. Charles Grassley, R-Iowa, also praised Pickering for "moral courage on the issue of race," demonstrated in 1967 when he testified against a Ku Klux Klan leader in Mississippi. Pickering was not present, but his son, Rep. Charles Pickering, R-Miss., had a seat in the front row of the spectators section. "What is happening to your father today is a great injustice," said Sen. Mitch McConnell, R-Ky., addressing his remarks to the young congressman. "For those who opposed my father, who distorted his record or tried to use the process to extort political gain, I am deeply disappointed and saddened at their lack of character and their use of race to try to reopen old wounds," the younger Pickering said. The committee's actions left the nomination all but dead. Lott could seek a vote by the full Senate, but Daschle insisted Thursday that he has enough votes to keep that from happening. Panel blocks judicial pick; GOP judge rejected on party lines Scott Shepard The Atlanta Journal and Constitution March 15, 2002 Friday Washington --- President Bush lost a bruising fight over a federal appeals court nominee Thursday night when the Senate Judiciary Committee rejected Judge Charles Pickering of Mississippi on a party-line vote. The battle over Pickering, widely viewed as a rehearsal for future Supreme Court nominations, resulted in all 10 of the committee's Democrats voting against him and refusing to send the nomination to the full Senate. All nine Republicans stood with the nominee. It was the first major political defeat for Bush since taking office about 14 months ago. But in a statement released shortly after the committee vote, the president portrayed the setback in more sweeping terms. "It was unfortunate for democracy and unfortunate for America," he said. Pickering "deserves better than to be blocked by a party-line vote of 10 senators on one committee. The voice of the entire Senate deserves to be heard." 43 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000534 More stinging than the White House's words, however, were those of Sen. Zell Miller of Georgia, a maverick Democrat often at odds with his party on Capitol Hill. "A good and brave man has been hurt, and that is what is most tragic here," Miller said. Miller is not a member of the Senate Judiciary Committee, which has had the responsibility of reviewing judicial nominees throughout almost the entire history of the Senate. But the Georgian is one of three Southerners the White House believed would support Pickering if the nomination ever came to a vote by all 100 senators. The others were John Breaux of Louisiana and Ernest Hollings of South Carolina. In Mississippi, the 64-year-old judge responded to the committee vote: "I will not let what has happened to me during this process embitter me or shape the balance of my life. Life is too precious. My faith has not been weakened. I will not withdraw my name." Senate Minority Leader Trent Lott (R-Miss.), who had recommended Pickering for the nomination, still could ask for a full vote by the Senate, a parliamentary procedure that is rarely successful. After the committee vote, Lott marched to the Senate floor, where he defended his friend of 40 years. "I take it personally," he said of his friend's defeat, which he also labeled a "slap at Mississippi." However, all 10 Democrats on the committee said they believed Pickering's 12-year record as a U.S. District Court judge did not merit promotion to the Fifth U.S. Circuit Court of Appeals in New Orleans, responsible for appeals from Mississippi, Louisiana and Texas. Pickering's nomination ran into trouble over growing concerns among Senate Democrats that his judicial rulings had reflected insensitivity to civil and abortion rights. In addition, public interest groups raised complaints about his actions as a prosecutor and state legislator during the years in which Mississippi often was at the eye of the political storm over civil rights. Pickering's supporters countered with endorsements by minorities in Mississippi who praised the judge as a champion of civil rights who had courageously challenged the segregation traditions of his home state. But such endorsements, as well as the president's political accusations, failed to sway any of the Democrats on the committee, who ranged in political temperament from the old-style liberalism of Edward Kennedy of Massachusetts to the New Democrat moderation of John Edwards of North Carolina. Kennedy said he does not believe Pickering "has the temperament, the moderation or the 44 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000535 commitment to core constitutional and federal statutory protections that is required for a life tenure position" on a federal appeals court. Edwards, reviewing Pickering's conduct in several cases, including one in which the judge tried to reduce the sentence for a man convicted of burning a cross on the property of an interracial couple, said the judge's actions were "way outside the norm . . . of what a judge should do." The White House assault on the committee over the past week in an effort to resurrect Pickering's nomination left the Democratic chairman, Sen. Patrick Leahy of Vermont, in a testy mood, though he vowed to continue processing Bush judicial nominees as quickly as possible. "In January, I extended an olive branch to the administration and suggested that we find ways for the Senate and the White House to work together more closely and efficiently with respect to filling judicial vacancies that had been perpetuated since 1996," Leahy said. "I am disappointed that, instead, the president chose . . . to attack the members of the Judiciary Committee." Sen. Orrin Hatch (R-Utah) accused the Democrats of being swayed by liberal groups opposed to the appointment of any conservative to the federal bench. Senate Democrats torpedo U.S. Appeals Court nomination Andrew Miga The Boston Herald March 15, 2002 Friday WASHINGTON -- Senate Democrats, setting a combative tone for future Supreme Court confirmation fights, yesterday shot down President Bush's bid to elevate a conservative Mississippi judge to federal appeals court. The 10-9 Senate Judiciary Committee vote aborting U.S. District Judge Charles Pickering's nomination to the 5th U.S. Circuit Court of Appeals in New Orleans was a bitter loss for Bush. "It was unfortunate for democracy and unfortunate for America," said Bush. Democratic leaders rejected Bush's call for a full Senate vote. Sen. Edward M. Kennedy (D-Mass.), one of Bush's closest Democratic allies and the second-ranking Democrat on the Judiciary panel, denounced Pickering as outside the judicial mainstream on civil rights and voting rights. "I do not believe he has the temperament, the moderation or the commitment to core constitutional (protections)," said Kennedy. "He often shows hostility to important federal and statutory protections." 45 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000536 Kennedy accused Pickering of seeking to inject his personal views into the law. Kennedy, however, was not as vocal as he has been in past fights against such conservative nominees as Attorney General John Ashcroft. Bush's first judicial nominee defeat was the opening salvo in what is likely to be a fierce war over the president's choice of conservative federal jurists. "It boils down to a real desire to keep conservatives off the court as much as possible," said Sen. John Kyl (R-Ariz.). Bush made a few last-minute phone calls to lobby senators, but came up short. Committee Republicans failed to win on three votes to revive Pickering's nomination. Angry Republicans complained Democrats were imposing an "ideological litmus test" on conservative jurists, seeking to stack the courts with liberal judges instead. Liberal activist groups branded Pickering, who backed segregation as a young man, racist. Supporters cast Pickering as a progressive who eventually opposed bigotry, even testifying against a Ku Klux Klan imperial wizard in a racially charged trial four decades ago. Pickering won the American Bar Association's highest rating for judges. "This good man has been subjected to character assassination," said Sen. Charles Grassley (R-Iowa). "Judge Pickering has been viciously attacked by outside liberal groups." Senate Panel Rejects Bush Pick All 10 Democrats Oppose Pickering Wayne Washington The Boston Globe March 15, 2002, Friday WASHINGTON - Judge Charles W. Pickering of Mississippi became the first judicial nominee of President Bush to be rejected yesterday when the Senate Judiciary Committee voted against him on a strict party-line vote. Pickering's nomination to the US Court of Appeals had been the subject of intense opposition from civil rights and abortion rights organizations, which said that the conservative judge is hostile to their causes. Pickering's supporters in the Bush administration and in Congress countered that he was being opposed on ideological rather than judicial grounds and that Democrats wanted retribution for the Republican rejection of many of President Clinton's nominees. Political observers said Pickering's rejection is a sign of the partisan division in Washington 46 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000537 and an indicator of how demanding Senate Democrats will be of future Bush nominees to the federal judiciary. "I am deeply disappointed that Judge Charles Pickering, a distinguished judge who was unanimously confirmed by the Senate in the past, is being denied the opportunity to further serve his country," Bush said in statement. "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis. It was unfortunate for democracy and unfortunate for America." The 10 Democrats on the 19-member committee voted against the nomination. Pickering did not attend the hearing, but his son, US Representative Charles "Chip" Pickering Jr., sat through it, shaking his head at what he later said were willful misrepresentations of his father's actions. "I regret that an honorable man had to endure a dishonorable process," the congressman said. "My father has lost nothing today or throughout this process. His faith is strong, our family close, and his courage and character only strengthened." When it became clear that his father's nomination would be rejected by the Judiciary Committee, Representative Pickering said all options remain open. Senate Democrats, however, seem firm in their opposition to Pickering, and Republicans would need to get some support from their rivals as well as keep in line moderates from their own party to have any chance of success. Senator Patrick Leahy, the Vermont Democrat who chairs the Judiciary Committee (which votes first on judicial nominations) said Pickering's actions as a district court judge show that moving him to a higher court would be inappropriate. "His record on the United States District Court bench over the last 12 years, as reflected by a number of distressing reversals, does not commend him for elevation," Leahy said. "Instead, it demonstrates a habit of somewhat inattentive judging, of relying to his detriment on magistrates and of misstating and missing the law." The American Bar Association gave Pickering a "well-qualified" rating, and Republicans lauded his testimony against and prosecution of the Ku Klux Klan in the late 1960s. They pointed to the support the judge got from blacks in Mississippi who know him well. But civil rights groups, abortion rights organizations, and civil libertarians lobbied Democrats to reject Pickering's nomination. They said he was hostile to the Voting Rights Act and that he believed most employment discrimination cases filed with federal courts were weak. Some of Pickering's past statements and rulings seemed to support those claims. More than those rulings, however, two actions hurt him more yesterday: his decision to ask 47 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000538 lawyers who appear before him for letters of support for his nomination and his effort to lighten the punishment of a man convicted of burning a cross. "The fact that Judge Pickering singled out this case, which involved a white defendant convicted of a criminal civil rights violation to challenge mandatory minimums and disparate sentencing raises serious questions," said Massachusetts Senator Edward M. Kennedy, a member of the committee. Senate Panel Rejects Mississippi Judge; Democrats Defeat Pickering’s Nomination for U.S. Appeals Court Charles Hurt The Charlotte Observer March 15, 2002 Friday The Senate Judiciary Committee voted Thursday to deny Mississippi Judge Charles Pickering a promotion to a higher federal court seat. Pickering, a conservative politically, became President Bush's first judicial nominee to be rejected in the Senate. The defeat for the Bush administration signals the Democratic-controlled Senate is willing to oppose nominees - possibly even candidates for the Supreme Court - who are viewed as too far to the right. The judge was denied elevation to the 5th U.S. Circuit Court of Appeals in New Orleans along a party-line vote, with 10 Democrats outweighing support from nine Republicans. Sen. John Edwards, D-N.C., voted against Pickering, and Sen. Strom Thurmond, R-S.C., who didn't attend Thursday's hearing, had his vote cast in favor. Opponents have painted Pickering as hostile to civil rights and cited his conservative voting record as a state legislator. Edwards became a key detractor when he cross-examined Pickering and accused him of lacking judicial ethics in a racially charged case. Thursday, however, Edwards said, "I do not think Judge Pickering is a racist. There are a lot of good people who support his nomination. But this is not a popularity contest." Supporters point to Pickering's testimony against the Ku Klux Klan and other stands he took advancing the civil rights movement in Mississippi. They also point out that he got unanimous approval from the Senate when he joined the federal bench in 1990. Senators on both sides of the vote said Thursday they regret the way Pickering was, in their opinion, smeared. 48 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000539 "There are some out there who have gone too far in characterizing Judge Pickering personally," said Sen. Charles Schumer, D-N.Y. "He's been unjustly branded as a racist." Sen. Mitch McConnell, R-Ky., turned to Pickering's son, Rep. Chip Pickering, R-Miss., who was seated on the front row and said, "Your father is an honorable man. We deeply regret what has been done here." Citing the cutthroat television series in which people are thrown out of the game by fellow contestants Sen. Arlen Specter, R-Pa., said, "There is no doubt Judge Pickering would lose a popularity contest in Washington on 'Survivor.' But there is equally no doubt that Judge Pickering would win a contest of his capabilities and qualifications." The vote particularly angered Republicans because Democrats nixed Pickering in the committee instead of letting the full Senate vote on his confirmation, where most nominations wind up, and where he was expected to prevail. As in previous hearings on the Pickering nomination, much of Thursday's hearing was spent squabbling among the senators over whether Democrats or Republicans stooped lower to block the judicial nominations whose politics they don't share. At the heart of the political battle is Pickering, the 64-year-old judge from Laurel, Miss., who attracted a racially and politically diverse group of opponents - as well as supporters. In an open letter to Pickering Thursday, Virginia Thomas recalled the painful experience she went through when her husband, Clarence, was appointed to the Supreme Court after a bitter fight in the Senate. "You may have thought your reputation was something valuable - that you had led your life with integrity and honor - and that these attributes would be appreciated," she wrote. "But then you offered yourself for public office." "Don't take the process personally. It's just Washington." Committee Rejects Nominee For Appeals Judge Jack Torry The Columbus Dispatch March 15, 2002 Friday By rejecting the nomination of Judge Charles Pickering to the federal appeals bench, Senate Democrats have escalated the bitter struggle for ideological command of the U.S. Supreme Court and the 13 appellate courts across the country. 49 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000540 In a 10-9 vote along party lines, the Senate Judiciary Committee yesterday turned down Pickering's nomination to the 5th U.S. Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas. The Democrats who control the panel also took the unusual step of blocking a floor vote by the full Senate, which likely would have confirmed the Mississippi federal judge. By doing so, Democrats have delivered a clear signal that they plan to wage an aggressive campaign against many of President Bush's conservative judicial nominees, likely including former Ohio Solicitor Jeffrey S. Sutton and Ohio Supreme Court Justice Deborah L. Cook to the 6th U.S. Circuit Court of Appeals, based in Cincinnati. It also reflects a lingering resentment that when Republicans controlled the Senate during President Clinton's final six years, they routinely delayed or killed a number of nominations. Among those was Kent Markus of Columbus, who was nominated for a seat on the 6th Circuit. Bush reacted with frustration. "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis," he said. "It was unfortunate for democracy and unfortunate for America." At stake is control of the federal judiciary, which has a large say on the future of federal and state laws on abortion rights, disability protections, civil rights and other important issues. "(The battle) stops when this administration sends over to the Senate candidates over which there is consensus; people who are going to follow the law and not go against precedent, and respect the progress made in those areas," said Marcia Kuntz of the Alliance for Justice, a civil-rights legal organization. Such a strategy infuriates Republicans. Sen. Orrin Hatch of Utah, ranking Republican on the Judiciary Committee, said Democrats are bluntly telling Bush: "We're going to play ideological politics, we've got litmus tests we're going to impose, and you're not going to get anybody on the Supreme Court who has any conservative credentials." Bruce Fein, a conservative legal scholar in Washington, said Pickering, a friend of Senate Minority Leader Trent Lott, R-Miss., is a "very mediocre judge and thinker." But Senate Democrats "kicked him out to send a message because he was easy to pick on." The struggle took place amid a growing number of federal-court vacancies. Half of the 16 seats on the 6th Circuit, which covers Ohio, Kentucky, Michigan and Tennessee, are unfilled. Even members of the Judiciary Committee are urging both parties to tone down tensions. Sen. Arlen Specter, R-Pa., said, "It's time to call for a truce and an armistice." Sen. Mike DeWine, R-Ohio, said that the rejection of Pickering should not be a "permanent poisoning of the waters. . . . We ought to step back from this whole thing and look at the process." 50 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000541 DeWine said the mood could continue to deteriorate if Senate Democrats reject other Bush judicial nominees. He conceded he is increasingly worried about Sutton and Cook, who have not even had a committee hearing. "I don't know why I'd worry about a nomination that's been up since last spring and there's been no mention of it or no hearing," DeWine said sarcastically. "The key is what happens with these circuit judges. That's where, apparently, the Democrats are drawing the battle lines." The two parties have engaged in this testy struggle for so long that nobody is quite certain who fired the first shot. The Senate was torn asunder over the intense confirmation battles over Supreme Court nominees Robert Bork in 1987 and Clarence Thomas in 1991, both selected by Republican presidents. The Senate confirmed Thomas but rejected Bork. The Senate confirmed 377 of Clinton's judicial nominees -- a number similar to the 382 confirmed during the eight-year presidency of Ronald Reagan. But in the final two years of Clinton's presidency, Senate Republicans delayed a number of nominations. One nominee to the 4th Circuit waited 1,033 days in vain for a hearing by the Judiciary Committee, then headed by Hatch. Republicans argue that the numerous vacancies will create a backlog of cases. Senate rejects Bush's choice of Pickering Robert Dodge The Dallas Morning News March 15, 2002, Friday WASHINGTON Democrats on the Senate Judiciary Committee handed President Bush his first judicial nomination defeat Thursday, voting down his choice of conservative judge Charles W. Pickering for a federal appeals court. After the 10-9 vote cast along party lines, Democrats also turned back two Republican attempts to bring the Mississippi judge's nomination to the full Senate. If confirmed, Pickering, 64, would have taken a seat on the 5th U.S. Circuit Court of Appeals, which covers Texas, Louisiana and Mississippi. The committee's emotional four-hour debate Wednesday was a continuation of a racially tinged confrontation over Judge Pickering, who has been on the federal bench for more than a decade. The first Bush judicial nominee to be rejected by the Senate, it brought an outpouring by conservative and liberal groups seeking to influence the committee. In a prepared statement, the president said he was "deeply disappointed" in the committee's vote. 51 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000542 "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis," said Bush, who opened a news conference Wednesday by urging the committee to allow a full vote on the nomination. "It was unfortunate for democracy and unfortunate for America." Republicans were confident that Judge Pickering would have been confirmed in the full Senate, where Democrats hold a one-vote margin. Southern Democratic senators John Breaux of Louisiana, Zell Miller of Georgia and Ernest Hollings of South Carolina have said they might vote for Judge Pickering. But in the committee, the nomination fell to a bruising ideological battle that presages future fights over the makeup of the federal judiciary and, most importantly, the Supreme Court. As Judge Pickering's son, a congressman from Mississippi, sat in a front row seat with his family, Democrats and Republicans debated the judge's fitness to be promoted to the appeals court. Democrats criticized Judge Pickering's judicial record, with Charles Pickering Jr. slightly but frequently shaking his head in disagreement. Republicans accused Democrats of "borking" Pickering, a reference to the political attacks that scuttled the 1987 Supreme Court nomination of Robert Bork. That unsuccessful nomination by former President Ronald Reagan set the stage for more than a decade of ideological fights over court appointments, continuing through the first Bush and the Clinton presidencies. More fights are expected as the Senate plans for hearings for other conservative judicial candidates. They include another 5th Circuit nominee, Texas Supreme Court Justice Priscilla Owen. And Bush could face an even more heated battle if he nominates a staunch conservative to the Supreme Court. During his presidential campaign, Bush has said he intended to offer nominations such as conservative Justices Clarence Thomas and Antonin Scalia. Sen. Edward Kennedy, D-Mass., said Judge Pickering lacked "the temperament, the moderation or the commitment to core constitutional . . . protections that is required for a life-tenure position." Republicans countered that Pickering had been the victim of a smear campaign by liberal groups who want a litmus test on abortion, civil rights and other social issues. "Opponents have sought desperately to find aggrieved litigants with an ax to grind," said Sen. Orrin Hatch of Utah, the committee's ranking Republican, who treated senators to a lengthy review of the nominee's judicial record. "Judge Pickering's record is clear and distinguished." Republicans have suggested they may use a variety of procedural maneuvers to disrupt Senate deliberations and force Democrats to allow a full Senate vote on Pickering's nomination. But it 52 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000543 would take a 60-vote majority to force a vote on the judge's nomination. Committee Chairman Patrick Leahy, D-Vt., rejected GOP charges that Democrats were using Pickering's nomination to settle political scores leftover from the Clinton administration, during most of which Republicans controlled the Senate. He said the judiciary panel had approved 42 nominations by Bush. And other Democrats noted that Republicans had delayed many judicial nominations offered by former President Bill Clinton. Sen. Arlen Specter, R-Pa., predicted the committee's vote would leave "very, very deep scars on the Senate." But he urged his Republican colleagues not to use procedural devices to snarl the Senate and called on lawmakers to end the ideological battle over judicial nominations. "Anyone of us can throw a monkey wrench and tie the Senate into knots," Specter said. Much of the opposition to Pickering was generated by the NAACP and other civil-rights groups that said he supported segregation in the 1950s and has expressed hostility to civil rights in more recent opinions. They raised specific questions about his intervention to provide leniency to a defendant in a 1994 cross-burning case. In Wednesday's debate, Democrats stressed that they did not think that the judge was a racist. But they criticized his judgment for intervening in the 1994 case and questioned the quality of his rulings in other cases. "He's been unjustly branded by some as a racist. That is not fair," said Sen. Charles Schumer, D-N.Y. "But we don't elevate a person to the second-highest court in the land just because he's not a racist. We must have a higher standard than that." Leahy added that Pickering "repeatedly injects his own opinions into his decisions on issues ranging from employment discrimination to voting rights." Supporters said Pickering had an excellent judicial record, arguing that he had fewer cases reversed by higher courts than the national average for federal district judges. They also pointed to his 1967 testimony against a Ku Klux Klan leader and his role in establishing the Institute for Racial Reconciliation at the University of Mississippi. "I was impressed by Judge Pickering's lifelong commitment to reconcile racial differences in Mississippi," said Sen. Mitch McConnell, R-Ky. "My esteem for Judge Pickering, though, has only grown as I've watched what has happened to him during this sad process, particularly with respect to the savaging he has suffered at the hands of outside groups." Hatch warns of retaliation after judge nominee rejected 53 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000544 Lee Davidson The Deseret News (Salt Lake City, UT) March 15, 2002, Friday WASHINGTON -- After party-line votes killed the nomination of a judge whom critics painted as racist and sexist, Sen. Orrin Hatch, R-Utah, warned Democrats not to treat others similarly "or there really is going to be hell to pay." Hatch accused Democrats and allies of a "smear campaign" and "character assassination" to derail Thursday the nomination of U.S. District Judge Charles Pickering, 64, of Mississippi to be elevated to the 5th Circuit Court of Appeals. The Senate Judiciary Committee rejected Pickering's nomination on a 10-9 party-line vote. It then rejected motions to send his nomination to the full Senate anyway -- either with no recommendation or a negative recommendation -- also on 10-9 votes. Hatch, ranking Republican on the committee, said Pickering had enough support in the full Senate for confirmation. He added that when Republicans controlled the committee, they forwarded some such nominees to the full Senate without recommendation. Instead, Pickering becomes President Bush's first judicial nominee to be rejected. "There's a lot of bitterness over this, and rightly so," Hatch said after the vote. He said the "smear campaign" was "merely a warm-up battle" for liberal groups "to block any Supreme Court nominee" that Bush may propose. Sen. Jeff Sessions, R-Ala., said Republicans might retaliate by using rules to slow Senate work or block nominees Democrats want. But Hatch said he doesn't expect any of that immediately. But he said Democrats must treat other judicial nominees better. "If they don't, then there really is going to be hell to pay." Pickering had been attacked by liberal groups and Democrats as doing too little against segregation early in his career; being soft on civil rights; being anti-choice on abortion; being reversed too often by higher courts; and being so extremely conservative that he was out of the judicial mainstream. Hatch and Republicans attacked each of those assertions in four hours of debate Thursday, saying he had fought the Ku Klux Klan as a prosecutor at threat to his life and career; was reversed less often than average; and is fair. They accused critics of imposing religion and ideology tests on nominees. "When one theory didn't work, they would go to another theory, then they would go to another and they just clouded the whole thing," Hatch said. "There wasn't a substantive reason for voting this man down at all." 54 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000545 He added, "The people in Mississippi are going to be outraged by this, because what they are trying to do is treat Mississippi like it's still in the Old South -- and it isn't. This man courageously stood up for civil rights." Pickering's son, Rep. Charles Pickering Jr., R-Miss., sat on the front row watching the debate. He was upset at Democrats insisting that they were not calling the judge a racist, while still insisting he had a poor civil rights record. The younger Pickering said, "They didn't call him a wife beater, either, I suppose. But not one (committee) Democrat ever put his life at risk for the right of African-Americans to vote. My father did. Not one member of the Democrats helped to integrate schools, and sent their children to schools that were majority African-American. . . . My father has a demonstrated record of being courageous on race." Sen. Charles Schumer, D-N.Y., said during debate, however, "We don't elevate a person to the second-highest court in the land just because he's not a racist. We must have a higher standard." Schumer said Pickering was too right-wing for an already too-conservative court, and moderates were needed for balance. Committee Chairman Patrick Leahy, D-Vt., said it is his committee's role to advise and consent, not "advise and rubber stamp." He said Pickering had too often been reversed by higher courts, especially on civil rights. Hatch countered that Pickering had been reversed on 26 cases out of 4,500 he had decided in 12 years on the federal bench. He said that reversal rate of 0.5 percent is "lower than the national average." He said it involved only a few civil rights cases, and they were reversed or remanded on issues unrelated to civil rights, such as the awarding of attorney fees. The rejection pleased liberal groups. People for the American Way President Ralph G. Neas called it a "victory for Americans opposed to right-wing domination of the federal courts." Marcia Greenberger, co-president of the National Women's Law Center, praised the vote, saying Pickering's record shows "he cannot be counted on to uphold the laws that guarantee constitutional rights." Meanwhile, conservatives were outraged. A group of 39 House Republicans -- mostly from the House Judiciary Committee, including Rep. Chris Cannon, R-Utah -- wrote to the Senate complaining that Democrats are trying to impose "a religious test on judicial nominees." They noted Pickering was attacked for comments about abortion and other issues made when he was president of the Mississippi Baptist Convention. They said that critics therefore essentially argue "that a religious person is unqualified to serve in the federal judiciary because he cannot be trusted to separate his personal religious beliefs 55 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000546 from his official duties. This is nothing more than a religious test barring any person of faith from holding a judicial office." Several Democrats including Leady said in the hearing that Republicans may have brought on the rejection of conservative Pickering by refusing to give hearings to many liberal nominees of former President Clinton when they controlled the committee. Hatch and Republicans conceded that some Democrats had been treated poorly, but said Democrats are treating Republican nominees worse. In 14 months, President Bush has nominated 29 circuit court judges -- and seven have been confirmed. University of Utah law professor Michael McConnell is among circuit nominees still awaiting a confirmation hearing. In comparison in their first two years in office, President Bill Clinton nominated 22 circuit judges with 19 confirmed. President George H.W. Bush nominated 23 and 22 were confirmed. President Ronald Reagan nominated 20 and 19 were confirmed. When Bush took office last year, 67 federal judicial vacancies existed. Now there are 96. Senate committee rejects Pickering ; Party-line confirmation vote hands Bush first defeat on judicial nominee Michael Petrocelli The Houston Chronicle March 15, 2002, Friday WASHINGTON - The Democratic-controlled Senate Judiciary Committee on Thursday killed the nomination of Charles Pickering to a federal appeals court on a party-line vote after weeks of racially tinged debate. The vote, twice delayed at the request of Republican senators scrambling to salvage the nomination, handed President Bush the first defeated judicial nominee of his administration. As had been expected for weeks, all 10 Democrats voted against Pickering and rejected calls by Bush and other Republicans to send the nomination to a vote of the full Senate. All nine Republicans on the panel voted to approve Pickering. President Bush said he was deeply disappointed by Pickering's defeat. "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis," Bush said in a statement. "It was unfortunate for democracy and unfortunate for America." 56 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000547 Democrats said they opposed Pickering based on his record as a federal judge in Mississippi. They charged that he frequently ignored settled principles of law in making rulings, particularly in civil rights cases. Several Democrats also cited Pickering's efforts in a case before his court in 1994 to get the Justice Department to reduce a mandatory sentence for a man convicted of burning a cross on the lawn of an interracial couple. Pickering has acknowledged contacting a Justice Department official to press the matter, an action Democrats called unethical. The confirmation fight was tinged with allegations that Pickering had endorsed racially insensitive views early in his law career. Republicans said he was the victim of a smear campaign. In a meeting last week, Sen. Orrin Hatch, R-Utah, the highest ranking republican on the committee, accused liberal interest groups of "lynching" Pickering by exhuming his record on civil rights in the 1950s and '60s. Organizations including People for the American Way, the National Abortion and Reproductive Rights Action League and the NAACP challenged Pickering's commitment to upholding civil rights and abortion rights. The Pickering battle was the first of what is expected to be a long list of difficult confirmation fights for Bush's most conservative nominees, and could be a warm-up should a vacancy come up on the U.S. Supreme Court while Bush is in office. Judicial nominations have grown increasingly contentious in the past 15 years. Republicans still frequently cite the Democrat-controlled Senate's defeat in 1987 of Robert Bork, President Reagan's nominee to a vacancy on the U.S. Supreme Court. Democrats still seethe over what they said were stall tactics on President Clinton's nominees when Republicans controlled the Senate from 1995 to 2000. Three of Clinton's nominations to vacancies on the 5th Circuit died without a hearing. Democrats said that while they were not seeking revenge, Bush should not be allowed to fill the vacancies with overly conservative nominees. "There's clearly no mandate from the American people to stock the courts with conservative ideologues," said Sen. Charles Schumer, D-N.Y. "So if the White House persists in sending us nominees who threaten to throw the courts out of whack with the country, we have no choice but to vote 'no.' " Democrats derail Bush's judicial nominee 57 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000548 Charles Hurt The Miami Herald March 15, 2002 Friday In the Senate's first rejection of one of President Bush's judicial nominees, Democrats on the Judiciary Committee denied Mississippi federal Judge Charles Pickering a promotion to a federal appeals court. All 10 Democrats on the panel voted against Pickering, and all nine Republicans voted for him. FORESHADOWING The party-line vote signals that the Democrat-controlled Senate will oppose Bush nominees to the federal judiciary if they are deemed too conservative. Such partisan stands against judicial nominees are rare at the appellate level, but Pickering's rejection sends an unmistakable warning to Bush that any nominations he makes for the Supreme Court will be judged by the same standard. Pickering, a conservative politically, was rated "well-qualified" by the American Bar Association, the legal group's highest rating. The full Senate had approved his 1990 appointment to the federal bench unanimously. Liberal interest groups led by People for the American Way are fearful that Bush will stack federal appellate courts with conservatives who are hostile to their values on issues such as abortion rights and affirmative action. They led the drive to derail Pickering's promotion to the Fifth U.S. Circuit Court of Appeals in New Orleans, which oversees federal law in Texas, Mississippi and Louisiana. FOR AND AGAINST Opponents also tried to paint Pickering as "hostile to civil rights," questioned his judicial ethics and cited his conservative voting record as a state legislator. However, Pickering's supporters, including African-American activists and Democrats from his native Mississippi, said that at key moments during the civil rights struggle he had testified against the Ku Klux Klan and had taken other stands in Mississippi that were bold in that time and place. The vote particularly angered Republicans, because Democrats ended Pickering's nomination in the Judiciary Committee instead of allowing the full Senate to vote. VICTORY DENIED? Pickering might have won in the full Senate, because conservative Southern Democrats John Breaux of Louisiana, Ernest Hollings of South Carolina and Zell Miller of Georgia had indicated 58 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000549 they might vote for him, and all 49 Republicans probably would have. Fifty-one votes in the full Senate would have confirmed Pickering. But Senate Majority Leader Tom Daschle, D-S.D., said he would not bring to the Senate floor any judicial nomination below the Supreme Court that the Judiciary Committee rejected. The 64-year-old judge from Laurel, Miss., attracted a racially and politically diverse group of supporters. A group of them, including Charles Evers, brother of slain civil rights legend Medgar Evers, traveled to Washington last week hoping to convince Senate Democrats on the committee that the Pickering depicted in hearings is not the Pickering they know. Lott Blocks Daschle FCC Choice After Vote On Pickering National Journal's CongressDaily March 15, 2002 In a move that could have ramifications for the Senate' schedule and the progress of legislation, Senate Minority Leader Lott today said he will block Majority Leader Daschle's recommended nominee to serve on the FCC, in a sign that party relations have deteriorated in the wake of the Judiciary Committee's rejection Thursday of U.S. District Judge Charles Pickering for an appellate court seat. Lott told a group of reporters he planned to block the nomination of Jonathan Adelstein, who now serves as a legislative assistant to Daschle, and was born in Rapid City, S.D. "I don't think he's qualified," said Lott. "He's relatively young. He doesn't have the educational experience to be qualified for a position as important as that one is." Lott said he reached his decision to block the nomination two or three weeks ago after meeting with Adelstein. He said Daschle can try to force the nomination through, but warned, "It'll take a lot of time." Lott said the defeat of Pickering - the latter of whom is a long-time friend of Lott's would damage his Lott's personal and professional relations with Daschle, although he failed to specify how it might affect the Senate agenda. "You'll see it in a lot of ways and a lot of days," he said. Daschle recommended that President Bush make the Adelstein nomination last November. The president has not yet formally submitted it, although the administration traditionally follows such recommendations. There is currently a one-seat vacancy on the FCC. Lott denied his action had anything to do with Pickering's defeat; Lott lobbied hard on Pickering's behalf. Daschle responded to Lott by telling reporters: "It's unfortunate that he's taken it personally. It's also unfortunate that he would lash out at somebody that's uninvolved in the Pickering nomination. For [Adelstein] to be singled out in such a way is uncalled for." Daschle said Republicans should refrain from making threats to hold up Senate action, since Bush has many legislative priorities in Congress. "I would hope that everyone would just cool down, think a little bit before we throw something, and try to work together," Daschle said. Shortly after the vote, Rep. Charles (Chip) Pickering, R-Miss. - who is the judge's son - told 59 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000550 reporters that he did not hold most members of the Judiciary Committee responsible. "I will tell you who I do hold responsible - because he knowingly and willfully misstated the facts, and distorted the facts and the cases - and that's [Sen.] John Edwards [D-N.C.]. My view is, he sold his political soul to the special interest groups out of presidential ambition, and the price he paid was to smear a good man," the younger Pickering declared. In a floor speech following Thursday night's committee vote, Lott told colleagues he takes the elder Pickering's defeat "personally." Lott said of Judiciary Committee members, "I don't blame any one - I blame all 10, beginning with Daschle and [Judiciary Chairman] Leahy, right on down the line." Daschle, who does not serve on the panel, told reporters he did not lobby members of the committee. In Mississippi, state Republican Chairman Jim Herring said Pickering's defeat would spur the GOP's effort to get his son re- elected to the House, the Associated Press reported. "I predict that this will make Republicans redouble their efforts in the coming congressional campaign to make sure our great congressman, Chip Pickering, is returned to congress by a wide margin in November," he said. Pickering's district was combined with that of Democratic Rep. Ronnie Shows were Mississippi lost a district due to reapportionment. - by Geoff Earle Panel Rejects Bush Nominee For Judgeship Neil Lewis The New York Times March 15, 2002, Friday The Senate Judiciary Committee shut the door today on President Bush's efforts to promote Judge Charles W. Pickering Sr. to an appeals court post, as Democrats used their majority to reject his confirmation in the committee and then refused to send the nomination to the full Senate as the president had requested. Judge Pickering, a trial judge in Hattiesburg, Miss., represented the Bush administration's first judicial confirmation fight and has now become its first defeat. Mr. Bush had been trying to name the 64-year-old conservative federal district judge to a seat on the United States Court of Appeals for the Fifth Circuit, based in New Orleans. The solid vote of the Judiciary Committee's 10 Democrats ended what Judge Pickering said were his hopes to cap his career with a few years on the appeals court. More important, the Senate Democrats said they had sent a message to President Bush that with their majority, they have the power to block his judicial choices. They said he should take that balance of power into account when he nominated judges and Supreme Court justices. While much of the debate about Judge Pickering was over his record on racial issues and his performance in 11 years on the bench, some Democrats were straightforward in declaring that they were also voting against the nomination to discourage Mr. Bush from believing he could send up legions of conservative judicial nominees who would automatically win confirmation. Senator Charles E. Schumer, a New York Democrat who is a member of the committee, said 60 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000551 Judge Pickering was a decent and honorable man and certainly not a racist, as he had been portrayed by some groups opposing his nomination. "This is about what kind of appellate judge he would be and, most of all, about maintaining balance on our federal courts," Mr. Schumer said. He noted that Mr. Bush had said during the presidential campaign that he would select judges in the mold of the conservative justices Antonin Scalia and Clarence Thomas, and said that trying to "stack the courts with Scalias and Thomases" was unacceptable. After several hours of speeches, the committee voted 10 to 9 along party lines to reject the Pickering nomination. It then quickly voted the same way to reject two Republican proposals to send the nomination to the full floor, where as many as three Democratic senators had suggested that they might break party ranks and provide enough votes to confirm Judge Pickering. Mr. Bush said tonight that he was "deeply disappointed that Judge Charles Pickering, a distinguished judge who was unanimously confirmed by the Senate in the past, is being denied the opportunity to further serve his country." Before the Judiciary Committee vote, Senator Orrin G. Hatch of Utah, the panel's ranking Republican, complained that Judge Pickering was the object of an ugly smear campaign, largely conducted by liberal advocacy groups based in Washington. Mr. Hatch did not repeat his comment last week that Judge Pickering was being subjected to "a lynching," but he said the nominee's record was distorted beyond recognition. Senator Edward M. Kennedy, Democrat of Massachusetts, said he believed that Judge Pickering did not have "the temperament, the moderation or the commitment to core constitutional protections that is required for a life tenure position" on the appeals court. Judge Pickering was not in the committee room during the session but at his home in Mississippi. His son, Representative Charles W. Pickering Jr., a Republican Congressman from Mississippi, who is known as Chip, sat in the front row of the committee room, frequently wiping his brow and rubbing his hands. He shook his head "no" each time he had to endure criticism of his father from Democrats. The campaign against the Pickering nomination switched directions weeks ago. Some advocacy groups first portrayed Judge Pickering as someone highly insensitive to racial justice. They cited his having written, when he was 21, an article recommending changes to strengthen the state's law against racially mixed marriages. They also pointed to his defection from the Mississippi Democratic Party in 1964, when it was forced to integrate its national convention delegation. But after Judge Pickering's supporters countered with accounts of his efforts at racial reconciliation in Mississippi, the main dispute became his conduct as a judge. Critics emphasized his actions when he presided over a 1994 trial involving a cross burning. 61 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000552 Judge Pickering aggressively promoted his views to prosecutors that the sentence for the one defendant who was convicted at trial was too severe, even though it was mandated by the law. In the end, he persuaded prosecutors to drop the charge that would have required the long sentence. While the Pickering nomination fight had its own trajectory, people on both sides of the issue were keenly aware that they were testing the battle lines for future confrontations over the ideological shape of the federal courts. The hearing also exposed a whiff of retribution as several Democrats complained that three of President Clinton's choices for the Fifth Circuit were not even given a hearing. Senator Richard J. Durbin, Democrat of Illinois, said he would refuse to "reward the president's party for the vacancies created by their obstructionism during the last six years." With an eye on future battles, Republicans were similarly working to establish ground rules for future confirmation battles to their liking, emphasizing that President Bush should be given great leeway in his choices to the federal bench. Mr. Bush had appeared alongside Judge Pickering in the Oval Office last week to improve his confirmation chances, and on Wednesday issued an appeal at a news conference to send the nomination to the full Senate. Tonight Mr. Bush placed the bloc vote by Democrats in a more critical light, saying, "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis." The Pickering nomination fight included a reminder today of another battle, the 1991 confirmation of Clarence Thomas to the Supreme Court after he was accused of sexual harassment by a former associate. His wife, Virginia Thomas, published an open letter to Judge Pickering in The Wall Street Journal today that said he was being opposed "because you will not rule in favor of the hard left's political agenda." Mrs. Thomas, an official at the Heritage Foundation, a conservative study group, also said, "The Democrats on the committee and the outside groups that egg them on don't think of you as a human right now." Senate Dems Dash Dubya’s Judge Pick Vincent Morris The New York Post March 15, 2002, Friday WASHINGTON - Senate Democrats ignored last-minute lobbying by President Bush yesterday and rejected his nomination of Charles Pickering to serve as a federal appeals court judge. The defeat - the first for one of Bush's judicial picks - came on a 10-9 party line vote by the 62 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000553 Senate Judiciary Committee, which Democrats control. Bush and other Republicans argued that Pickering, 64, a district court judge, is honorable, though Democrats implied his past rulings and Old South sympathies were racist. "[Pickering] went the whole nine yards and then some to get a lighter sentence for a convicted cross-burner," said Sen. Charles Schumer (D-N.Y.), a committee member who opposed the nomination Schumer was referring to a 1994 case in which Pickering sought to use a plea bargain to help a man who had been convicted of burning a cross on the lawn of an interracial couple. Sen. Charles Grassley (R-Iowa) countered that "liberal, left-wing interest groups" were out to sink Pickering and had twisted the judge's record. Bush, who convinced the Senate to postpone the vote for two weeks, wanted Pickering, a Mississippi district court judge, to win promotion to the Fifth Circuit Court of Appeals, which covers Louisiana, Mississippi and Texas. Partisan vote stops Pickering Lawrence M. O'Rourke The News and Observer (Raleigh, NC) March 15, 2002 Friday Washington -- In a sharp rebuff to President Bush, the Democratic-controlled Senate Judiciary Committee voted along party lines Thursday to reject the nomination of Judge Charles Pickering of Mississippi for promotion to a federal appeals court. Ending a racially and politically charged confirmation battle, the committee cast three unusual 10-9 votes to reject Pickering, to refuse to send his nomination without a recommendation to the Senate floor and to refuse to send it to the floor with a negative recommendation. Saying he was deeply disappointed, Bush declared in a statement that "the action of the Senate Judiciary Committee ... leaves another empty seat in the federal judiciary at a time when we have a vacancy crisis. It was unfortunate for democracy and unfortunate for America." The president said Pickering "deserves better than to be blocked by a party line vote of ten Democrats." The judge's son, Republican Rep. Charles Pickering of Mississippi, lashed out at Senate Democrats and liberal groups that worked against his father, angrily singling out North Carolina Sen. John Edwards for major responsibility. "Sen. Edwards distorted my father's record," Pickering said during an interview in the hearing room immediately after the vote. "Sen. Edwards misstated my father's position on mandatory 63 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000554 minimum sentences and one-man, one-vote. "This battle was much larger than my father. It was for political and cultural control of this country," Pickering said. "My father's character and courage were tested and strengthened in a destructive process." Sen. Mitch McConnell, R-Ky., said Pickering "will survive this crisis and continue his career as a federal judge in Mississippi." But McConnell warned that the debate had jeopardized the ability of the Senate, narrowly controlled by Democrats, to reach compromise with the White House and congressional Republicans. Democrats countered that they have already approved several of Bush's judicial nominees. California Sen. Dianne Feinstein pointed out that when Republicans controlled the Senate during the last six years of President Clinton's administration, they would not approve Clinton's judicial nominees. Although it has been clear for weeks that Senate Democrats would not elevate Pickering from the district court to the appeals court, Bush fought until the last minute for his nominee, telephoning senators as conservative groups aligned with the White House fought back against liberal groups that resisted Pickering. Republican senators used their final speeches, in the nearly five hours of debate leading up to the vote, to blast liberal groups, contending that they were unfairly depicting Pickering as a racist. GOP also asserted that liberals were resisting Pickering in a "warm-up" for possible battles later in the Bush presidency for the U.S. Supreme Court. Democrats repeatedly said they did not consider Pickering to be a racist, but they pointed to his record as a Mississippi state senator, Republican Party chairman and trial judge for 11 years. Democrats said he showed a pattern of disdain for the civil rights of African-Americans, job and legalized abortion rights for women, and prisoners' claims. In perhaps the sharpest Democratic attack, Edwards declared that Pickering "put his personal beliefs above the law." Edwards said Pickering as a judge improperly intervened with prosecutors to lessen the sentence of a man convicted of burning a cross on the lawn of an interracial married couple. Following Edwards, committee chairman Sen. Patrick Leahy, a Vermont Democrat, read a letter from the wife in that case, asserting that Pickering's intervention had undermined her faith in the legal process. Sen. Jeff Sessions, R-Ala., defended Pickering's conduct. He said that the man for whom the 64 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000555 judge intervened had received a lengthy prison sentence when two other participants had been let off lightly and that Pickering was looking for "a way to seek and improve justice." Senators send a signal, reject judicial pick; In voting down a conservative judge for an appeals court seat, Democrats demonstrated the bar for Supreme Court jobs. Charles Hurt The Philadelphia Inquirer March 15, 2002 Friday WASHINGTON - In the Senate's first rejection of one of President Bush's judicial nominees, Democrats on the Judiciary Committee yesterday denied Mississippi Judge Charles Pickering a promotion to a federal appeals court. The 10-9 party-line vote signaled that the Democrat-controlled Senate would oppose Bush nominees to the federal judiciary if it deems them too conservative. Such partisan stands against judicial nominees are rare at the appellate level, but Pickering's rejection sends Bush an unmistakable warning that any Supreme Court nominations he makes will be judged by the same standard. The Judiciary Committee also snubbed Bush's request to let the full Senate vote on Pickering, 64, a federal judge for more than a decade. Bush, in a statement, said he was "deeply disappointed" at the panel's action, calling it "unfortunate for democracy and unfortunate for America." The American Bar Association rated Pickering "well-qualified," its highest rating. The full Senate unanimously approved his 1990 appointment to the federal bench. But some liberal interest groups, led by People for the American Way, led a drive to derail Pickering's nomination for a seat on the U.S. Court of Appeals for the Fifth Circuit in New Orleans, which oversees federal law in Texas, Mississippi and Louisiana. They fear that Bush will stack federal appeals courts with conservatives who are hostile to their values on issues such as abortion rights and affirmative action. Opponents also tried to paint Pickering as hostile to civil rights, questioned his judicial ethics, and cited his conservative voting record as a state legislator. Pickering's supporters, including African American activists and Democrats from Mississippi, said that at key moments during the civil rights struggle, he had testified against the Ku Klux Klan and taken other stands in Mississippi that were bold in that time and place. Senators from both parties said they regretted that Pickering had been smeared. "There are some out there who have gone too far in characterizing Judge Pickering personally," 65 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000556 said Sen. Charles E. Schumer (D., N.Y.), who voted against the judge. "He's been unjustly branded as a racist." Sen. Mitch McConnell (R., Ky.) told Pickering's son Rep. Charles W. "Chip" Pickering Jr. (R., Miss.): "Your father is an honorable man. We deeply regret what has been done here." Schumer added: "He's a decent and honorable man. But we don't elevate a person to the second-highest court in the land just because he's not a racist." Pickering might have won in the full Senate, because conservative Southern Democrats John B. Breaux of Louisiana, Ernest F. Hollings of South Carolina, and Zell Miller of Georgia had indicated they might vote for him, as all 49 Republicans probably would have. Majority Leader Tom Daschle (D., S.D.) said he would not bring to the Senate floor any judicial nomination below the Supreme Court that the Judiciary Committee rejected. Pickering, from Laurel, Miss., attracted a racially and politically diverse group of supporters. A group of those supporters, including Charles Evers, brother of the slain civil rights legend Medgar Evers, traveled to Washington last week hoping to convince Senate Judiciary Democrats that the Pickering depicted in hearings was not the man whom they know and support. In an open letter to Pickering yesterday, Virginia Thomas recalled the painful experience she went through when her husband, Clarence, was appointed to the Supreme Court after a bitter confirmation fight in the Senate. "You may have thought your reputation was something valuable - that you had led your life with integrity and honor - and that these attributes would be appreciated," she wrote. "But then you offered yourself for public office. "Don't take the process personally. It's just Washington." Pickering Loses on 10-9 Vote; Democrats Line Up-Against Mississippi District Judge Ben Bryant The Sun Herald (Biloxi, MS) MARCH 15, 2002 Friday WASHINGTON -- The Senate Judiciary Committee killed the nomination of South Mississippi Judge Charles Pickering to a federal appeals court post Thursday, dealing a defeat to President Bush in a bitter standoff tinged with accusations of race-baiting. The vote against the nomination broke along party lines; all 10 of the committee's Democrats voted against it, and all nine Republicans voted for it. The committee's Democratic majority also 66 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000557 rebuffed two procedural attempts by Sen. Arlen Specter, R-Pa., to send the nomination to a vote in the full Senate. Pickering, now a U.S. District Court judge in Hattiesburg, was not at the three-hour hearing, which saw each committee member voice his reasons for favoring or opposing the nomination. But U.S. Rep. Chip Pickering, R-Miss., the judge's son, spoke for his father afterward. Rep. Pickering blasted the Judiciary Committee Democrats, as well as Washington interest groups that opposed his father's nomination, as a threat to the civil rights of women and minorities. "This was an attack on the South and an attack on Mississippi," Rep. Pickering said. The congressman joined Republican Party members of the Judiciary Committee in emphasizing his father's role in taking on the Ku Klux Klan as a prosecutor in the late 1960s. "Not one member of that committee can say that they put their life on the line to secure the civil rights of African-Americans," he said. "My father can." The Republican leader, Sen. Trent Lott, Pickering's friend and Mississippi patron, has authority to seek a vote by the full Senate, but such efforts are customarily settled on party-line votes. Even so, Lott quickly went to the Senate floor, where he defended his friend of 40 years. "I take it personally," he said of the vote, which he also labeled a "slap at Mississippi." One Democrat, Sen. Zell Miller of Georgia, attacked the committee. "This action may very well elect a Republican governor in Mississippi," he said, calling Pickering's rejection an example of "the Terry-tail wagging the Democratic donkey." That was a reference to Terry McAuliffe, the party's chairman. Supporters and opponents of Pckering's confirmation filled the large committee room. Supporters wore pink badges that said "Stop the Bickering Confirm Pickering." Opponents of the nomination said they were motivated by the judge's legal record, which they said displays his tendency to inject personal opinions into judgments. "He has made clear that he would set aside well-established judicial rules to suit his own feelings," said Sen. John Edwards, D-N.C. Edwards was referring to a 1994 case in which Pickering tried to win a more lenient sentence for a young man convicted in his court of burning a cross on an interracial couple's lawn in Walthall County. Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, denounced conservative advocacy groups that charged that the panel's Democrats called Pickering a racist. "That was never said, and I resent people distorting the facts to say that it was," Leahy said. The Pickering nomination's defeat was the first setback for a judicial nominee since 1991, when the Judiciary Committee voted down the appeals-court nomination of Florida District Judge 67 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000558 Kenneth Ryskamp. Though supporters of the Pickering nomination discussed a scenario in which 60 senators could vote to bring the nomination up for a vote by the full Senate in executive session, Sen. Orrin Hatch, R-Utah, discounted those plans. "It's over," said Hatch, the Judiciary Committee's ranking Republican member. "President Bush should send us another name to vote on." Forty of Bush's 92 judicial nominees have been confirmed, but only seven of his 29 nominees to federal appeals courts have been cleared by the Senate. Senate panel rejects judicial nominee; Pickering refused in partisan vote Bill Walsh The Times-Picayune (New Orleans) March 15, 2002 Friday WASHINGTON -- The Democrat-controlled Senate Judiciary Committee blocked the nomination Thursday of Judge Charles Pickering to the 5th U.S. Circuit Court of Appeals in New Orleans, handing President Bush a stinging defeat in his first major judicial nomination battle. As expected, the committee voted along party lines against the 64-year-old Mississippi jurist who has been alternately portrayed as a throwback to the South's ugly segregationist past and a courageous defender of civil rights who took on the Ku Klux Klan at great personal peril. Pickering does not have "the temperament, the moderation or the commitment to core constitutional . . . protections that is required for a life tenure position on the appeals court," said Sen. Edward Kennedy, D-Mass., a member of the committee. The committee also rejected entreaties from Bush to refer the nomination to the full Senate so all 100 members would have a chance to vote. Democrats, who hold a one-seat majority in the Senate, said they were adhering to a long tradition -- followed by Republicans when they controlled the Senate -- of letting the Judiciary Committee have the final say on nominees. Bush and Senate Republicans argued that the committee is stacked with liberals and that a majority of the Senate supports Pickering. They accused the Democratic leadership of using the committee process to bottle up the conservative nominee. "They have chosen a process that is a partisan one, that defies bipartisanship because they know, the Senate leadership does, that there are enough votes to pass Judge Pickering on the floor of the Senate," White House spokesman Ari Fleischer said. Defending precedent 68 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000559 Sen. John Breaux, D-La., who is not a member of the Judiciary Committee, seemed to support Fleischer's theory, saying "there are a number of (Senate) Democrats who would support" Pickering. He declined to name them or even say whether he would vote for the nomination, but did add, "I would like to see that debate on the Senate floor." Breaux also said he opposed any effort to circumvent the committee's decision. "It would set a terrible precedent," Breaux said. "They have to go through the process and go through committee. I respect that. Republicans handled it that way, and Democrats are handling it that way now." Fellow Louisiana Democrat Sen. Mary Landrieu agreed. She said there is "very limited precedent" for the Senate considering a nominee who has been rejected by the committee. According to the Senate Historian's Office, there have been two cases since 1945. The Louisiana Republican Party, which is trying to unseat Landrieu in her re-election bid this fall, said she is "abandoning one of her most important duties as senator" by not calling for a full Senate vote on a judicial nominee. Landrieu said she thinks the committee should have final say. "I respect the committee process in the Senate and believe that when a committee has held hearings and conducted a vote on a nominee, it should only be overturned by the full Senate for very specific or compelling reasons," she said in a written statement. Checkered career Pickering's critics had focused on his authorship of a 1959 law school article laying a legal foundation for opposition to interracial marriage, and his later law partnership with an avowed segregationist. They also cited his intervention with prosecutors in a 1994 case to decrease the sentence of a man convicted of burning a cross on the lawn of an interracial couple. They said he would move the 5th Circuit, an already conservative court with jurisdiction over Louisiana, Texas and Mississippi, dramatically to the right. But Pickering's supporters say he was the victim of a political witch hunt. They point out that when he was appointed to the U.S. district bench in 1990, he was approved unanimously by the Senate. Pickering also has prominent African-American defenders, including James Charles Evers, brother of slain civil rights leader Medgar Evers. His supporters note that in 1967, he testified against Ku Klux Klan Imperial Wizard Samuel Bowers, an act, they say, that placed him at personal risk and cost him re-election as a local prosecutor in Mississippi. The defeat of Pickering, father of Rep. Charles "Chip" Pickering Jr., R-Miss., is an indication of how much power changed hands last year when the Democrats took over control of the Senate 69 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000560 following Vermont Sen. James Jeffords' switch from Republican to independent. Some saw the Pickering dispute as a preview of what Bush can expect if he has the opportunity to make a nomination to the U.S. Supreme Court. Clinton era remembered The scuttled Pickering nomination also laid bare the partisanship that has come to dominate the judicial-approval process. Without saying Pickering's defeat was payback for the dozens of Clinton appointees blocked by the then-Republican-controlled Senate, Democrats made the point that the party in power has the leeway to set the pace of approvals. Landrieu noted that one of Clinton's appointees to the 5th Circuit, Alston Johnston of Baton Rouge, never got a hearing before the committee. Dozens of other Clinton nominees were similarly left stranded. "Judge Pickering received a fair hearing and a vote by the Judiciary Committee some six months after he was nominated," Landrieu said. "I would like to point out that the previous Senate leadership let Alston Johnson sit for nearly two years after his nomination without either a vote or a hearing despite bipartisan support." Rejecting GOP claims that they are being obstructionist, Democrats said they are moving much quicker in approving nominees. So far this year, the Senate has confirmed 40 of Bush's judicial nominees, seven to the appellate bench and 33 to district court. Faceoff: Nit-Pickering? Peter Roff United Press International March 15, 2002, Friday Did U.S. District Judge Charles Pickering deserve a vote of the full Senate on his nomination? UPI National Political Analysts Peter Roff, a conservative, and Jim Chapin, a liberal, face off on opposite sides of this critical question. Roff: There should have been a vote Two important issues have intersected during the confirmation of U.S. District Judge Charles Pickering to a seat on the U.S. 5th Circuit Court. The first is his qualifications. The second is the process itself. Pickering easily won confirmation to his current post in 1990. He is a qualified if not especially distinguished jurist who should have been a non-controversial choice for an appellate slot. 70 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000561 Partisan politics derailed the nomination. Senate Majority Leader Tom Daschle, D-S.D., seems bent on stopping Bush's court nominees, likely fearing the Republican-appointees at the circuit level will turn back his party's ideological gains. Pickering was subjected to a scandalous attack by self-anointed civil liberties groups based in Washington. Despite their claims to the contrary, groups like People for the American Way deliberately left the impression that Judge Pickering is a racist. Even the liberal Washington Post editorialized against the attacks. "Opposing a nominee should not mean destroying him. And the attack on Judge Pickering has become an ugly affair. ... The judge's opponents ... have tried to paint him as a barely reconstructed segregationist. To do so, they have plucked a number of unconnected incidents from a long career: a law review article from 1959 on the state's anti-miscegenation statute; ... his incidental contacts as a state legislator in the 1970s with the Mississippi state Sovereignty Commission; and his handling of a cross-burning case in his court a few years back, to cite a few examples. None of these incidents, when examined closely, amounts to much, but opponents string them together, gloss over their complexities and self-righteously present a caricature of an unworthy candidate." Blacks from Mississippi who know him well came forward to attest to his honor and strong character, whatever his partisan political views may be. Their support pitted them against Pickering critics like U.S. Rep. Bennie Thompson, D-Miss., a black Democrat, who called the judge's black supporters "Judases." Judge Pickering was swept up in an ugly process, motivated by the idea that George W. Bush should not be allowed to reshape the federal judiciary because of the narrowness of his victory. Bush opponents have taken the stance that his nominees must be stopped using whatever means available. Never, in the eight years of the Clinton administration, did the Republicans treat judicially nominees as shabbily as this. The Democrats wanted to vote down the nomination in committee and end it there yet, as the White House pointed out, a favorable recommendation is not required to send a nomination to the floor. Since 1938, only four judicial nominees prior to Pickering were denied -- if they wanted it -- the opportunity to have the full Senate vote after the Senate Judiciary Committee voted on them. Mere partisanship is not sufficient reason to break this precedent. If, as Daschle says, the Senate is merely exercising its constitutional duty to advise and consent on these matters, then the full Senate should have been allowed to vote. The Constitution does not assign that responsibility to committees in lieu of action by the full Senate, no matter how Daschle reads it. If the committee votes on the nomination, then the full Senate should have its say as well. Chapin: A bad result for a bad candidate 71 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000562 Let's be clear about this -- the defeat of Charles Pickering is not a loss for the 5th U.S. Circuit Court of Appeals. Pickering was a pedestrian candidate backed by the minority leader of the Senate, Trent Lott, R-Miss., for reasons of long-time friendship, and probably because his son "Chip" Pickering is sitting in the House of Representatives from the same state. Mississippi is, notoriously, the most racially polarized state in the Union. In 2000, 96 percent of the blacks and only 17 percent of the whites in the state voted for Al Gore. Pickering's long political/judicial career in the state has been built on that racial polarization. In every decade he appeared as a representative of white interests -- in a state in which such interests were built on oppressing blacks. Let's review those "incidents" that the Washington Post thought were "incidental" in his career. The 1959 law review article on the state's anti-miscegenation statute suggested ways in which the statute could be strengthened to make it more difficult for blacks to marry whites -- and it was immediately acted upon and passed. The Mississippi State Sovereignty Commission was, of course, the legal arm of state policy tied into repression of black political activity. Unrelated? Gee, that ties right back into his first political intervention in 1959. It shows, in fact, a consistency that would be admirable if it were not in the service of so rancid a cause. Pickering supplemented this consistent record with ex-parte remarks on subjects ranging from his opposition to "one-man-one vote" legislation (he no doubt misses the "good old days" when blacks didn't vote except at the risk of their lives) and disquisitions on liberals which no doubt go down well in the Republican country clubs of Mississippi, but hardly make him a sterling candidate for advancement on the federal bench. Of course, the deeper issue behind Pickering's nomination fight is that President George W. Bush, with all the assurance of 47.9 percent of the American people having voted for him, thinks it is an insult that he shouldn't be allowed to reshape the federal bench in a hard-right direction. Since his own party delayed, dismissed and dissed President Clinton's nominees during the six years that it controlled the Senate, it's kind of hard to make much of a case for Bush's "right" to turn the courts right, or for that matter, that that's what the country wants. Bush appointees, for example, have to meet the litmus tests of Bush's buddies in the Federalist Society and the Christian Coalition, while, of course, the American Bar Association has been taken out of the review process. We already know, from ample evidence, that this president believes in his right to do anything he feels like without even notifying the congress of his intentions. Unfortunately for him, the Constitution requires that his nominees for life-time appointees do get Senate approval, and the Senate rules, provide that nominations killed in committee are dead, dead, dead. 72 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000563 If the president wants to go to the country in the next election, outlining the ideological views that he expects his candidates for the judiciary to follow, such as clear-cut opposition to Roe vs. Wade, then he should do so. But if he plays the same games in 2004 as he did in 2000, winking and nodding to the right while telling the center that he wasn't interested in a radical overhaul of the American Constitution, then there is no particular obligation on the opposition party to give him the right to appoint judges without tough scrutiny. Senate panel rejects Bush's judicial nominee 10-9* Joan Biskupic USA TODAY March 15, 2002, Friday WASHINGTON -- A bitterly divided Senate Judiciary Committee voted down the nomination of Mississippi judge Charles Pickering on Thursday, culminating a months-long political brawl over President Bush's choice for an important appeals court and possibly foreshadowing battles to come over other nominees. The 19-member committee voted strictly along party lines to reject the nomination: the 10 Democrats against him, the nine Republicans for him. Pickering, 64, has been a federal trial judge in Mississippi since 1990. Bush named him to the U.S. Court of Appeals for the 5th Circuit in May. Thursday, Bush issued a statement calling the committee's action, which also prevented a full senate vote, "unfortunate for democracy and unfortunate for America." Pickering said in a statement after the vote, "I am extremely disturbed that judicial confirmation has degenerated into such a bitter and mean-spirited process. I sincerely hope that no other nominee has to go through what has happened to me." Democrats said Pickering's record in civil rights cases showed insensitivity to racial minorities. They particularly criticized his intervention with Justice Department officials to try to reduce the potential prison sentence for a man convicted of burning an 8-foot-high cross at the home of a mixed-race couple. Republican senators countered that Pickering has been a fair trial judge and that he stood up for civil rights in Mississippi when it was politically unpopular. Both sides agreed, however, that the fight was much bigger than one man's bid for elevation to the appeals court seat covering Texas, Mississippi and Louisiana. 73 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000564 "It definitely is not a comforting sign for what lies ahead," said Sen. Orrin Hatch of Utah, the ranking GOP member. He said Democrats were imposing new ideological tests for nominees and were ready to object to anyone who disagrees with them on issues such as abortion. Sen. Charles Schumer, D-N.Y., countered that the fight was about "maintaining balance" in the judiciary. He said the Bush administration was trying to "stack the courts" with conservative jurists in the mode of Supreme Court Justices Antonin Scalia and Clarence Thomas. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said he had been seeking more cooperation from the White House on the nomination process. "Few of my suggestions to the administration have yielded results," he said. The Constitution gives the president the power to make lifetime appointments to the federal courts with the "advice and consent" of the Senate. Democrats have complained that the White House has spurned attempts to come up with "consensus" nominees. Administration officials say their attempts for middle ground have been rebuffed. The White House and Senate Minority Leader Trent Lott of Mississippi, a personal friend of Pickering, had urged the committee to allow the full Senate to vote on Pickering. But the committee defeated two separate Republican motions to allow the nomination to go to the floor, even with an unfavorable recommendation. Democrats said it would have been unprecedented in recent history to allow an appeals court nominee a floor vote after he was rejected by the committee. Bush said Pickering "deserves better than to be blocked by a party line vote of 10 Senators on one Committee." 74 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000565 On Thursday, Pickering's son, U.S. Rep. Charles "Chip" Pickering, R-Miss., sat in the front row of a special spectator section. He has been a tireless public advocate for his father. During the often testy meeting, Pickering, 38, nodded when senators praised his father and shook his head at some of the strong criticisms. Appeals Court Choice Rejected; Senate Panel Hands Bush 1st Defeat on Judicial Nomination Helen Dewar and Amy Goldstein The Washington Post March 15, 2002, Friday The Senate Judiciary Committee yesterday rejected the nomination of U.S. District Judge Charles W. Pickering to the 5th Circuit Court of Appeals, handing President Bush his first defeat on a judicial appointment and putting the White House on notice to expect trouble over other conservative nominees. In three party-line votes of 10 to 9, the Democratic-controlled panel spurned Bush's plea to endorse Pickering or to let the full Senate decide the issue. Arguing for four hours before a standing-room-only crowd of Pickering supporters and opponents, senators portrayed the struggle as involving more than one judge's fate. Republicans accused Democrats of contributing to a vacancy "crisis" on the federal bench by delaying or blocking Bush's nominees. Democrats said the White House was hindering the process by seeking to "stack the courts" with conservative extremists. The vote was a blow to Bush and Senate Minority Leader Trent Lott (R-Miss.), who considers Pickering a friend and who led the fight on his behalf. After the vote, Lott said from the Senate floor that he took the judge's defeat "personally" and described it as a "slap at Mississippi." Bush called the committee's action "unfortunate for democracy and unfortunate for America." He said Pickering "deserves better than to be blocked by a party-line vote of 10 senators on one committee." The votes appeared to kill the nomination, although Republicans could try to revive it on the Senate floor. That would require 60 votes, and Democrats expressed confidence they could prevent such a move. Faced with the inevitability of the committee vote, Bush had appealed to Democrats to let the full Senate decide Pickering's fate. At a news conference Wednesday, he said "a few senators are standing in the way of justice" by blocking the nomination in committee. Pickering appeared likely to pick up enough Democratic votes to prevail if his nomination reached the Senate floor. But Senate Majority Leader Thomas A. Daschle (D-S.D.), relying on Senate precedents, said he would put the nomination before the Senate only if the Judiciary Committee voted out the 75 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000566 nomination. In recent years, the Judiciary Committee has voted to kill nominations and to report them to the full Senate without recommendation. It last killed a circuit court nomination in 1991; it last reported out a circuit court nomination without recommendation in 1988. Daschle said the Senate has never insisted on voting on a nomination that was killed in committee. In yesterday's votes, the committee first rejected a motion to send the nomination to the full Senate with a recommendation that it be confirmed. Then it voted down proposals to send the nomination to the floor without taking a position or with a negative recommendation. The committee's decision came after weeks of emotional argument over whether Pickering, 64, was qualified for a judgeship one tier beneath the Supreme Court. Democrats contended he fell short in his 12 years as a district court judge in Hattiesburg, Miss., including letting his personal views color his opinions in cases involving the rights of minorities, women, voters and workers. Pickering "failed to meet the kind of criteria in his core commitment to the fundamental values of our Constitution," Sen. Edward M. Kennedy (D-Mass.) said. He is a "very polarizing figure," Sen. Dianne Feinstein (D-Calif.) said. Republicans argued he was well qualified by character, experience and temperament, and said he was being victimized for his conservative views. Sen. Orrin G. Hatch (R-Utah) said Pickering had been subjected to a smear campaign by liberal groups that are seeking an "ideological litmus test" to screen out judges who do not agree with them on issues such as abortion. Looking beyond Pickering, Sen. Charles E. Schumer (D-N.Y.) warned the administration that Democrats will continue to oppose conservative nominees when they threaten to unbalance the courts. "There's clearly no mandate from the American people to stack the courts with conservative ideologues," he said. "So if the White House persists in sending us nominees who threaten to throw the courts out of whack with the country, we have no choice but to vote 'no.' " During lengthy speeches before yesterday's vote, Democrats on the Judiciary Committee said that they did not consider Pickering a racist but that they were disturbed by his record as a district court judge on civil rights and other issues. Democrats also cited the reversals by appeals courts of more than 24 Pickering rulings and what they called the judge's habit of supplanting his views for established law. Democrats criticized Pickering's efforts that led to a shorter sentence for a man convicted of burning a cross on an interracial family's lawn. But Republicans said Pickering has a sound record on the bench. They contended that Democrats were yielding to what Sen. Charles E. Grassley (R-Iowa) branded "guerrilla tactics" by liberal interest groups to "hijack the Senate." 76 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000567 Shortly before the vote, Sen. Mitch McConnell (R-Ky.) apologized to the judge's son, Rep. Charles W. "Chip" Pickering Jr. (R-Miss.), who sat through the deliberations. "I hope . . . what is happening to your father isn't the first in a long line of judicial nominees who are going to be denied fair treatment," McConnell said. Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) countered that since Democrats took control of the Senate in June, the committee, has been "restoring steadiness in the hearing process" after years in which the GOP blocked many of President Bill Clinton's judicial nominees. The Senate's constitutional role in selecting the judiciary, Leahy said, "is advise and consent. It isn't advise and rubber-stamp." Panel kills Bush's court choice; Party-line vote derails Pickering nomination in Senate Audrey Hudson The Washington Times March 15, 2002, Friday Senate Judiciary Committee Democrats yesterday handed President Bush his first defeat on a judicial nomination, rejecting Mississippi District Court Judge Charles W. Pickering Sr. for an appeals court seat. The panel rejected the nomination 10-9 in three party-line votes after the most bitter, partisan Senate fight since the confirmation of Attorney General John Ashcroft. The three failed votes were to report the nomination to the Senate floor favorably, unfavorably and without recommendation. "I have concluded Judge Pickering's own record of performance does not merit his promotion to one of the highest courts in the land," said Sen. Patrick J. Leahy, Vermont Democrat and committee chairman. After four hours of partisan wrangling in the committee, the debate spilled onto the Senate floor, where Senate Minority Leader Trent Lott called the vote "a slap at Mississippi" and "a terrible miscarriage of justice." "His character has been smeared," Mr. Lott said. "And it was wrong." In a statement, Mr. Bush said he was "deeply disappointed" by the result. Judge Pickering "deserves better than to be blocked by a party-line vote of ten senators on one committee," the president said. "The voice of the entire Senate deserves to be heard." "Ghosts of the past" were used to tarnish the judge's good name without foundation because Judge Pickering is white, southern and conservative, Mr. Lott said. 77 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000568 "It's an attack on my state, his religion and race, which was inaccurate and really a tragedy," Mr. Lott said. The judge's son, Rep. Charles W. "Chip" Pickering Jr. of Mississippi, sat quietly in the front row throughout the Senate committee hearing. The younger Mr. Pickering said his father was watching the proceedings on television at the family's Mississippi home. The contentious confirmation was dominated by liberal interest groups, who painted the conservative district judge as a racist, despite blacks in his home state who called him a defender of civil rights. Mr. Bush pleaded with Democrats this week to treat his candidate fairly in a contest for a seat on the 5th U.S. Circuit Court of Appeals. Republicans called the battle a preview of any future Supreme Court nomination fights. Sen. Charles E. Grassley, Iowa Republican, said special interest groups have tried to "hijack the Senate" and have called Judge Pickering a "racist, sexist, bigot." "It was a well-coordinated guerrilla tactic. ... Shame on you for poisoning the confirmation process," Mr. Grassley said. People for the American Way President Ralph G. Neas, whose group led the anti-Pickering forces, called it "a victory for Americans opposed to right-wing domination of the federal courts." Panel Democrats said they did not believe Judge Pickering to be a racist but questioned his dedication to civil rights. "Dr. Martin Luther King Jr. once said that the arc of history is long, but it bends toward justice," said Sen. Richard J. Durbin, Illinois Democrat. "When it comes to choosing judges to uphold our constitutional values, we should reject individuals who are behind that curve." Sen. Charles E. Schumer, New York Democrat, called Judge Pickering a "decent and honorable man." "But we don't elevate a person to the second-highest court in the land just because he's not a racist. We must have a higher standard than that," Mr. Schumer said. Mr. Leahy said he opposed Judge Pickering to a higher bench for injecting his personal opinions into voting rights and employment discrimination issues and his overall judicial record. "That record shows a judge inserting his personal views into his judicial opinions and putting his personal preferences above the law," Mr. Leahy said. 78 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000569 It is the constitutional responsibility of the Senate to advise and consent, not "advise and rubber-stamp," Mr. Leahy said. Republicans say Judge Pickering's confirmation is not about qualifications but partisan payback. "He is bigger than all of this, and he will continue to have an outstanding career," said Sen. Mitch McConnell, Kentucky Republican. In the 14 months he has been in the White House, President Bush has nominated 29 circuit court judges, and seven have been confirmed. By comparison, in their first two years in office, President Clinton nominated 22 circuit judges with 19 confirmed, President George Bush nominated 23 circuit judges with 22 confirmed, and President Reagan nominated 20 circuit judges with 19 confirmed. When Mr. Bush took office there were 67 judicial vacancies; today there are 96 vacancies. Republicans called the vote a signal to Mr. Bush that other conservative judges will face the same character assassination and not be confirmed. Democrats said the Bush administration bears some burden to consult with them before putting nominees before the Senate. "Otherwise, we would simply be rewarding the obstructionism that the president's party engaged in over the last six years by allowing him to fill with his choice seats that his party held open for years, even when qualified nominees were advanced by President Clinton," said Sen. Russell D. Feingold, Wisconsin Democrat. Republicans admitted that some of Mr. Clinton's nominees were not treated fairly but said the partisan deadlock must end. "It's time for a truce," said Sen. Arlen Specter, Pennsylvania Republican. In his floor speech, Mr. Lott said he had failed Judge Pickering but that his fellow Mississippian is not the loser. "We are the losers, we have lost the service of a good man and demeaned the institution by what has happened." Mr. Lott did not offer to withdraw the nomination and gave no indication what the next step will be. "I'm not going to let go of this. This will stick in my mind for along time," Mr. Lott said. The nine Republicans on the committee are Mr. Grassley, Mr. McConnell, Mr. Specter, Orrin G. 79 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000570 Hatch of Utah, Strom Thurmond of South Carolina, John Kyl of Arizona, Mike DeWine of Ohio, Jeff Sessions of Alabama and Sam Brownback of Kansas. Besides Mr. Leahy, Mr. Durbin, Mr. Schumer and Mr. Feingold, the panel's other six Democrats are Edward M. Kennedy of Massachusetts, Joseph R. Biden Jr. of Delaware, Herbert Kohl of Wisconsin, Dianne Feinstein of California, Maria Cantwell of Washington and John Edwards of North Carolina. One Democrat not on the panel, Sen. Zell Miller of Georgia, attacked the committee. "This action may very well elect a Republican governor in Mississippi," he said, calling the vote an example of "the Terry-tail wagging the Democratic donkey," referring to Terry McAuliffe, the party's chairman. Senate Democrats reject judge, place Bush on notice Naftali Bendavid Chicago Tribune March 15, 2002 Friday After a bitter fight replete with accusations and name-calling, the Senate Judiciary Committee on Thursday rejected the nomination of Charles Pickering, handing President Bush his first defeat of a judicial candidate and setting the stage for other bruising nomination battles. Bush had lobbied hard for Senate approval of the Mississippian, but Democrats prevailed 10-9 on party lines, arguing that Pickering regularly lets his conservative beliefs take precedence over the law. Pickering is a federal judge, and Bush was seeking to elevate him to the 5th Circuit Court of Appeals. "Judge Pickering has a disturbing habit of injecting his own personal opinions about the civil rights laws into his opinions," said Sen. Russell Feingold (D-Wis.). The vote suggested that despite Bush's popularity, Democrats will be willing to vote down his nominees if they are controversial enough. Throughout the process, Bush and other Republicans have portrayed Democrats as beholden to special interests and destroying a good man's reputation. Pickering is a friend of Senate Minority Leader Trent Lott (R-Miss.), and Republicans twice delayed the committee's vote in an attempt to rally support. Bush reacted with frustration to the outcome. "The action of the Senate Judiciary Committee to refuse Judge Pickering a vote by the full Senate leaves another empty seat in the federal judiciary at a time when we face a vacancy crisis," Bush said. In one sense, the vote was merely the latest chapter in a pitched partisan battle over judicial 80 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000571 nominees. For six years under President Bill Clinton, Democrats grew upset at what they saw as Republican stalling of Clinton's nominees. The vote was also a test of wills for future nominations, including those to the Supreme Court. "It is definitely not a comforting sign for what lies ahead for Circuit Court nominees, let alone Supreme Court nominees," said Sen. Orrin Hatch (R-Utah), the committee's top Republican. Republicans could still try to force Pickering's nomination to the floor for a vote by the Senate, where he would be far more likely to win than in the polarized Judiciary Committee. This appears unlikely. Still, some Republicans have raised the possibility of what they call the "nuclear" option--retaliating for Pickering's defeat by stalling Senate business. Threat from Republican "The feelings are running so deep on these issues, that that may well happen," said Sen. Arlen Specter (R-Pa.). "Any one of us can tie the Senate in knots." It was evident throughout the hearing that Democrats and Republicans are convinced the other party has been grossly unfair to its judicial nominees. Drastically different views of Pickering also emerged. Opponents cited an article he wrote four decades ago suggesting ways to strengthen Mississippi's law against interracial marriage, and they said that as a state senator he voted to fund the notoriously segregationist Sovereignty Commission. Pickering's supporters painted a different image. They said he had been a progressive in 1960s Mississippi, noting that he testified against a grand wizard of the Ku Klux Klan and more recently has acted to foster racial reconciliation. Senators also debated the significance of the fact that Pickering had been overruled by an appeals court 26 times in his 12-year term on the bench. Hatch said Pickering was reversed fewer times than the average judge is. Senators at the hearing focused also on liberal groups like Alliance for Justice and People for the American Way, which had worked hard to defeat the nominee. "Judge Pickering has been viciously attacked by leftist, liberal groups," said Sen. Charles Grassley (R-Iowa). "He has been called a sexist, a racist, a bigot, and unfortunately, the Democratic Party has been more than willing to do the bidding of these groups." Democrats cite right to oppose 81 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000572 Democrats countered that these groups had a right to express their views. They focused instead on Republican tactics during the Clinton years, when they said the GOP refused to even hold hearings for many nominees. Sen. Charles Schumer (D-N.Y.) said Bush has adopted a strategy of appointing highly ideological judges, honoring his campaign promise to appoint jurists in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas. "The administration is willing to take some casualties in this fight," Schumer said. "They are sending up waves of Scalias and Thomases. If a couple of controversial nominees get shot down, it's a small price to pay because they still win, they still stack the courts." Some observers wondered why Bush would spend political capital on such a controversial nominee. Standing up for Pickering risks alienating minority voters, whom Bush has tried hard to court, but it could prove him to a more fundamental Bush constituency, religious conservatives. Leahy Urges The White House To Investigate Owen Ties To Enron The Bulletin's Frontrunner March 18, 2002 Monday Reuters (3/16, Ferraro) reports, "US Senate Judiciary Committee Chairman Patrick Leahy said on Friday he has urged the White House to look at campaign donations from Enron Corp. to one of its judicial nominees, Texas Supreme Court Justice Priscilla Owen. 'I have heard from a lot of Republicans who are concerned about her Enron connections,' said Leahy, a Vermont Democrat. 'I mentioned...to the White House it may want to look into it.' . A hearing date has not yet been set for Owen, nominated to the 5th U.S. Circuit Court of Appeals. But the committee is expected to hold one sometime next month, aides said. According to Texans for Public Justice, a private group that tracks campaign donations to elected Texas officials, Owen has received $8,600 in donations since 1993 from Enron, the one-time Texas energy giant that recently collapsed. In 1996,according to the group, Owen wrote a majority opinion that overturned a lower court ruling and saved Enron about $250,000.Leahy said on Friday he was first advised about the Enron donations to Owen by concerned Republicans and relayed the information to the White House." Op/Eds 82 18-2091-B-000573 Document ID: 0.7.19343.7292-000001 OUR OPINION: Judiciary can't evade political viciousness JIM WOOTEN The Atlanta Journal and Constitution March 17, 2002 Sunday The stakes in this year's U.S. Senate race in Georgia? They became dramatically clearer last week. At issue is whether the lockstep allegiance that the national Democratic Party has to its most liberal wing will continue to wag the dog. Or, to use the more clever phrase of U.S. Sen. Zell Miller, whether the nation will continue having "the Terry-tail wagging the Democratic donkey." Miller's reference is to the chairman of the National Democratic Committee, Terry McAuliffe, a bitter partisan and prolific fund-raiser who took office last year vowing to "raise hell" with a four-year campaign to defeat President Bush. In McAuliffe's view, Al Gore really won. McAuliffe's scorched-earth strategy was evident last week in the party-line defeat of President Bush's choice of Judge Charles Pickering of Mississippi for a vacancy on the 5th Circuit Court of Appeals. After an incredible smear orchestrated from the interest groups on the party's left wing, all 10 Democrats on the Senate Judiciary Committee voted against Pickering. The nine Republicans voted to confirm. The viciousness of the campaign attracted an extraordinary public response by Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, who wrote an open letter to Pickering published last week in The Wall Street Journal. It should be required reading. Wrote Thomas: "You are but a pawn in a much larger battle over whether an independent judiciary will prevail, or whether a liberal judicial litmus test will transform our courts into another political branch with an activist bent." Thomas is on target. The nation sadly has entered an era of the perpetual political campaign. It never ends. And the judiciary is being drawn in. Activists who either don't trust democracy to work, or who think they would be unsuccessful in pushing their agendas in the legislative arena, often use the courts as alternative legislatures. The judiciary, as well as the state and federal regulatory agencies, thus become political battlegrounds. We have seen in Georgia, for example, interest groups advocating "environmental justice" who bypass the Legislature and head directly to the courts to, in effect, pass their legislation. Pickering, 64, has served 11 years as a district court judge. Groups on the Democratic left, such as People for the American Way and the National Abortion and Reproductive Rights League, believe him to be unsympathetic to their causes. The result has been a shameful smear. The distortions, the pejorative summaries create a caricature --- and "you end up asking the senators to vote against a caricature," says one who has 83 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000574 been through it, U.S. Sen. Jeff Sessions (R-Ala.). Sessions in 1986 was a nominee to the U.S. District Court for southern Alabama, who like Pickering, was defeated in committee. The object is to intimidate Bush to keep him from nominating a conservative to the U.S. Supreme Court. Pickering is the first nominee who came along who could be hijacked and caricatured to deliver the message. After Pickering's defeat, Zell Miller spoke. "A good and brave man has been hurt, and that is what is most tragic here," said Miller in a prepared statement. He predicted the treatment of Pickering would "make it even more difficult for Democratic candidates to be successful in the South." Comes now the re-election campaign of U.S. Sen. Max Cleland (D-Ga.). Until six months ago, Cleland's voting record was party-line. Since, he's begun to fudge a bit, but he is still a reliable party vote. Democrats control the U.S. Senate by one. The stakes for the country in Cleland's race? You saw them last week. Charles Pickering: Rejection a backhanded slap at South The Atlanta Journal and Constitution March 18, 2002 Monday The Democratic members of the Senate Judiciary Committee reached a new low. Not only did they reject Judge Charles Pickering for not meeting some amorphous, left-wing litmus test, but the Democrats in the Senate also played the Southern card while doing so. Their actions were not only a slap at comity but also a backhanded slap at the South in general. Hidden in their smears of racism and judicial temperament was the implicit belief that no person of Caucasian and Southern ancestry would be qualified to sit on the bench today. Forgotten were the years of brave men on both sides of the racial issue trying to reach middle ground, one of whom was Pickering. Their first attempted assault on this man was to indict him because he was white and from Mississippi. Because of this background, they used a stereotype to make their constituents believe he must therefore have been a racist. It mattered little to them that he had the support of the African-American community in Mississippi. They believed that even in the face of overwhelming evidence to the contrary, their constituents would believe the worst of a white Southerner. Unfortunately, they were correct. Pickering's defeat is less a defeat for the president than it is for the Democratic Party. It is but one more indication that northern liberal senators still have no clue, nor do they care, about the South, its people or our rich heritage in positive racial relations. GEORGE MORTENSEN, 84 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000575 Roswell Georgia needs Republican senators So it looks as if the national Democratic Party succeeded in not allowing Judge Charles Pickering, who enjoyed a bipartisan and biracial support in his home state of Mississippi, to be voted on by the entire Senate for a seat on the 5th Circuit Court of Appeals. To prevent this from happening again, we just need to elect more Republican senators. Starting this fall in Georgia. LARRY BRANTLEY, Marietta BUSH'S ROUGH CUT; Culling the less-than-true believers Ryan Lizza The San Diego Union-Tribune March 17, 2002, Sunday For all his "change-the-tone" rhetoric, there are some forms of bipartisanship President Bush will not tolerate. Just ask Mike Parker, the erstwhile head of the Army Corps of Engineers. Parker, a balding, rotund former Mississippi congressman with a bushy mustache and a heavy drawl, was on Capitol Hill two weeks ago testifying before the Senate Budget Committee. Republican Kit Bond, Democrat Kent Conrad, and Parker himself all agreed on one thing: The budget for the Corps proposed by the White House was a joke. Bond spent five minutes gesturing wildly and railing against the invisible staffers at the Office of Management and Budget who drew up the numbers. Conrad, the Democratic chairman of the committee, agreed that the budget was ridiculously low. That is not surprising, considering how important Corps projects are to members who need to secure federal pork for their districts. But in his response, Parker, an ex-lobbyist and a buddy of Senate Republican Leader Trent Lott, did the unthinkable: He told the truth. Instead of defending the numbers cooked up by OMB, he winked and hinted that, like last year, the White House would eventually cave in and approve the money needed to pay for all those wasteful Corps projects. It didn't take long for OMB to strike back. Furious, Budget Director Mitch Daniels wrote Bush's senior White House aides a scathing memo about Parker's performance on the Hill. Parker was forced to resign the following week. Anonymous Bush aides said the president was sending a signal: Stray too far from administration dogma, and you'll get kneecapped. Given the Bush administration's reputation for stability, Parker's firing was big news. Compared with the revolving-door Clintonites, the Bush White House has been remarkably stable; in fact, Bush's entire original Cabinet remains intact. But now that the president has been in office for more than a year, this spring may offer disgruntled (or disgruntling) Bushies the first acceptable moment to head for the door. And as they do, it will become ever more clear which kind of 85 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000576 people thrive in this administration and which don't. The most precarious set of appointees are those with patrons other than the president or vice president themselves. Nobody thinks Bush had a personal role in Parker's hiring; he handed off the patronage to Lott. Consider Paul O'Neill. When Bush tried to sell his tax cut as a fiscal stimulus last year, his famously off-message Treasury secretary expressed doubt that it would speed up the economy. In January, after Bush accused Tom Daschle of wanting to raise taxes, O'Neill went on television and pronounced that Daschle "has not called for raising taxes this year." Bush promoted the House stimulus package after Sept. 11; O'Neill dismissed it as "show business." And how has O'Neill been punished for all this double-crossing? At most, he's been asked to lay low; but he has never been publicly reprimanded, let alone asked to resign. The administration has been happy to abandon Lott's candidates and blame him for their failures. In fact, from the White House's point of view, the Senate minority leader's personnel recommendations have been one disaster after another. Curtis Hebert, a Lott protege whom Bush made chairman of the Federal Energy Regulatory Commission, resigned and told The New York Times that he was pushed aside because of Ken Lay's influence over the White House, a story that still dogs Bush. Lott crony Parker turned out to be a debacle. And Lott's friend Charles Pickering, nominated to a federal appeals court, has become an albatross around Bush's neck. As with Hebert and Parker, the White House doesn't blame Pickering; it blames Lott. The second group unlikely to thrive in the Bush White House -- even if Bush chose them and even if they remain loyal to his agenda -- are intellectuals. Maybe it's their characteristic desire to speak out that gets them into trouble; maybe it's their tradition of freewheeling debate. Whatever the reason, they've tended to annoy the White House even when they generally promote the party line. The first high-profile brain to depart was University of Pennsylvania Professor John DiIulio. He and Bush were friends, and Bush made DiIulio's ideas about faith-based anti-poverty work a cornerstone of his presidency. But that didn't stop DiIulio from flaming out after public fights with the religious right -- "Bible-thumping doesn't cut it," he said during one famous row -- and conservatives on the Hill. "The sort of people who are good about thinking up ideas are not necessarily the sort of people who are good at getting them done," says a Bushie about DiIulio's exit. So who will be next to leave? In a recent interview, Cabinet punching bag Christine Todd Whitman refused to say that she would stick out Bush's full term. Andy Card has always said 18 months is the average tenure for a White House chief of staff. Paul O'Neill continues to disappoint tax cutters by undermining Bush's fiscal arguments (though he is getting credit for hunting down terrorist assets). Norm Mineta, the lone Democrat in the Bush Cabinet, remains on everyone's list for early retirement. But the Bushie least likely to survive doesn't fit into any of the above categories. In fact, he is a former corporate chieftain: Secretary of the Army Thomas White, the 11-year Enron executive 86 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000577 who joined the administration last June. If he goes, it will have nothing to do with this White House's quirks. Rather, it will be for that timeless Washington reason: scandal. White has been mired in the Enron scandal since the company went bankrupt. From 1998 to 2001, he was vice chairman of Enron Energy Services (EES), which seems to have cooked its books as much as the rest of the company. On top of that, he's got serious conflict-of-interest problems. At EES, White lobbied members of Congress to privatize utilities on military bases, which could have helped Enron reap billions in government contracts. And sure enough, in his first weeks on the job as secretary of the Army, White began pushing the privatization plan. Recently, White revealed that, as secretary, he has had 29 phone calls or meetings with Enron executives. And the bipartisan leaders of the Senate Armed Services Committee have accused White of giving them an "inaccurate representation" of his Enron holdings during his nomination process. White House support for White seems to be eroding. A reporter asked what Bush thought about the fact that White has failed to divest himself of certain Enron holdings even though he promised the Senate Armed Services Committee he would do so as a condition of his confirmation. Ari Fleischer declined to make even a perfunctory declaration of presidential support. Rather, he read a legalistic statement that strained to point out that White hadn't run afoul of any federal ethics rules; he just didn't comply with his promise to the Senate. And now another shoe seems ready to drop. Public Citizen says it is about to release a report that will essentially accuse White's Enron division of price gouging during California's energy crisis last year, something that would have been prevented by the price caps that Enron and the Bush administration so vehemently opposed. Public Citizen says it will call for White to resign. It may be the first Naderite proposal that this president adopts. Editorial; Bush must fight for his judgeships The Boston Herald March 16, 2002 Saturday The defeat of Charles Pickering for a seat on the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee is a warning shot across President George Bush's bow. Unless the president acts forcefully the next time around, he will have no influence on the selection of federal judges. By their single-vote majority, Democrats refused to report Pickering's nomination to the floor. Though he could have allowed a floor vote anyway (there is precedent for this), Senate Majority Leader Tom Daschle declined to do so. Democrats indulged in flagrant misrepresentation. Senator Ted Kennedy said Pickering lacked judicial temperament and was hostile to civil-rights protections. Strange talk in light of Pickering's unanimous confirmation as a U.S. district judge in Mississippi. 87 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000578 Both Kennedy accusations are untrue. Based on his record on the lower court, the American Bar Association gave the nominee its highest rating. As a county prosecutor in the 1960s, Pickering risked his career by testifying against a Klan leader. Testifying on his behalf, black leaders in his home town said he's gone out of his way to help create opportunities for the minority community. Race was the excuse to defeat a conservative jurist who would have brought respect for the original intent of the Constitution to the 5th Circuit bench. Democrats have made it quite clear: Qualifications are irrelevant. They will do everything up to and including character assassination to block the confirmation of nominees who pose a threat to judicial activism. With Pickering, Bush got involved far too late. The president must act early and forcefully the next time. That means intense lobbying combined with appeals to the American people at the first hint of trouble. It also means active campaigning for GOP Senate candidates. The president's palsy-walsy approach won't work with political street fighters like Daschle and Kennedy. Unappealing Judges The Boston Globe March 16, 2002, Saturday MEMBERS OF THE Senate Judiciary Committee should prepare for a political marathon. They'll need stamina to make sure the country gets the best federal judges. The first fight is over. On Thursday the committee wisely rejected the nomination of Charles Pickering, a federal district judge whom President Bush wanted to place on the Court of Appeals for the Fifth Circuit in New Orleans. Pickering has a weak record on civil rights and employment law. Still, the work continues. Senators cannot relax and let other troublesome nominees slide through. Republicans have been increasing the pressure. Borrowing from Clarence Thomas, Senator Orrin Hatch of Utah said the scrutiny of Pickering amounted to a "lynching." Out of respect for a particularly vicious strain of American history, it must be said that Pickering is in little danger of being hunted by a mob and hung until dead. But senators who challenge other nominees may still be accused of lynchings or worse. All the nominees' records should be scrutinized. There's Judge D. Brooks Smith, a federal district judge and Bush's nominee for the Third Circuit Court of Appeals in Philadelphia. His record includes a history of being reversed by higher courts on consumer and employment cases, and he has criticized the Violence Against Women Act. Jeffrey Sutton is a lawyer and the nominee for the Sixth Circuit Court of Appeals in Cincinnati. 88 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000579 He is also a states' rights advocate who told the Associated Press in 2000 that the Americans with Disabilities Act is not needed because states have laws banning discrimination. That's a harsh judgment about a law that has opened doors for many people. When she was part of the Reagan administration, Carolyn Kuhl was a champion of restoring tax-exempt status to segregated schools such as Bob Jones University. But in 1983, in an 8-1 decision, the Supreme Court ruled that these schools are not entitled to tax-exempt status. Now Kuhl is a Los Angeles Superior Court judge and a nominee for the Ninth Circuit Court of Appeals. Republicans say that delaying Bush's nominees is a nasty political game, even though this is what the Republicans did with President Clinton's nominees. Bush could end the squabbling by consulting with Democrats on his nominees. This should be easy for Bush, who said during his campaign that he would shun partisan bickering and bring civility back to Washington. Candidates with broad appeal can be found. In 2000 President Clinton made Judge Roger Gregory a temporary recess appointment to the Fourth Circuit in Richmond, Va. Last year Bush renominated Gregory, and he was confirmed by the Senate. The country needs capable, independent judges, not political wars over their selection. Time to Call Timeout in War Over Judges The Commercial Appeal (Memphis, TN) March 16, 2002 Saturday NEITHER OF the major political parties can be blamed more than the other for the stalemate in the judicial nomination process that has left so many federal court vacancies unfilled. The confirmation rate has decelerated through a succession of Democratic and Republican administrations, particularly when one party is in the White House and the other controls the Senate. The Senate Judiciary Committee's rejection this week of U.S. Dist. Judge Charles Pickering of Laurel, Miss., President Bush's nominee to the Fifth U.S. Circuit Court of Appeals, is a product of this standoff. The vote may suggest there is no redemption for white Southerners who have less than perfect histories during the civil rights movement. Pickering is a conservative, albeit mainstream, jurist whose record includes enough material for a generalized assault on the Bush administration's commitment to the rights of minorities and women. He has made a number of questionable choices during his career - as in 1994, when he pressured Justice Department prosecutors to drop a charge against one of three defendants convicted in a cross-burning case. 89 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000580 But his opponents often failed to examine those decisions within the context of Pickering's overall record on civil rights. That record is impressive as well. It includes negative testimony he offered about the reputation of Ku Klux Klan leader Sam Bowers in a 1966 firebombing and murder case that probably cost Pickering re-election as county prosecutor. It includes his service on the board of directors of the Institute for Racial Reconciliation at the University of Mississippi. It includes the support he enjoys among many white Democrats and African-Americans in his community and state. The civil rights movement sought, with great success, to advance the social and economic prospects of African-Americans. It also tried to bridge the fundamental historic gaps between black and white Southerners, and dislodge whites from some of the prejudices that permeated the culture into which they were born. Pickering seems to have been one of the beneficiaries of the movement's progress. But the judicial confirmation process has become less of a forum for careful consideration of a candidate's qualifications and more of a battleground for settling partisan scores. The Republican-led Senate was no less arbitrary toward President Clinton's judicial nominees than they accuse Judiciary Committee Democrats of being toward Pickering. The Pickering nomination was a convenient way to resume this battle of retribution. Some of the judge's allies suggest that his deconstruction and ultimate defeat served as a warmup for President Bush's first Supreme Court nominee - a flexing of muscles by liberal organizations to show what they could do, for instance, to a nominee who has strong anti-abortion views. Such a reckless course would only lead to similar treatment by right-wing groups when the next Democratic president presents judicial nominees to the next Republican-controlled Senate. It will be payback time again, and the war will go on, inflicting collateral damage on qualified judges. Meanwhile, good lawyers become less interested in setting themselves up for this kind of scrutiny. The 12 federal appellate courts have 30 vacancies, or about 18 percent of their judgeships, according to White House figures. Chief Justice William Rehnquist reported in January that there were 94 vacancies on district and appellate court benches, the most in eight years. At some point the White House and Senate must negotiate a truce, or the federal judicial system will simply break down under the weight of too many cases for the available workforce to handle. Pickering nomination: Gamesmanship is souring the process The Dallas Morning News 90 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000581 March 16, 2002, Saturday The following editorial appeared in the Dallas Morning News on Thursday, March 14: The hopelessly soured Senate confirmation battle over the nomination of Mississippi Judge Charles Pickering to the 5th Circuit Court of Appeals has taught us less about this particular nominee than it has about the process. It is unrealistic to believe that the confirmation of judges would not be heavily affected by politics. Both parties will, now and again, engage in payback by smearing each other's nominees. Still, even with politics and payback, why the poison? Why must the process for confirming federal judges digress into race baiting? Back in 1999, supporters of Ronnie White a black who sits on the Missouri Supreme Court claimed that race was at the center of the Senate's rejection of his nomination for the federal bench. Among the concerns raised by Republicans was Judge White's support for racial preferences and a judicial record they labeled "pro-criminal." Now the tables are turned. Republicans are accusing Democrats of playing the race card against Judge Pickering, whose judicial record according to some Democrats shows an insensitivity to racial issues. Republicans disagree and point to considerable local black support for Judge Pickering. Still, the fact that he has a positive community record does not erase the questionable judgment in some of his rulings. He does not appear to be a bigot as claimed, but he also does not appear to be a stellar jurist. What does seem clear, however, is that Judge Pickering may not have been the best choice for this position. Surely, the administration could have found a stronger and less controversial candidate somewhere in the three-state region encompassed by the 5th Circuit. Nonetheless, the Pickering nomination should not be bottled up in the Judiciary Committee in a way that spares the rest of the Senate from having to go on the record with its ayes or nays. It is on the Senate floor where the judge's entire record can be treated to a robust discussion and where voters can hold their elected officials accountable. Judge Pickering deserves a full and fair hearing. President Bush deserves to have his other nominees, who have been delayed by the Pickering debate, brought up for discussion. And, most of all, the American people deserve more from the confirmation process. While a nominee's temperament is fair game, the public is growing weary with the partisan attempts to conquer by dividing. The names of defeated nominees fade quickly from memory, but the residue left behind by this ugly gamesmanship is not easily wiped clean. Look for another judge Kansas City Star 91 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000582 March 16, 2002, Saturday Nomination of U.S. District Court Judge Charles Pickering of Mississippi to a federal appeals court seat was doomed from the start, for solid reasons involving his record. On Thursday, in a party-line vote, the Senate Judiciary Committee narrowly blocked the nomination from getting a full Senate hearing. The rejection is not entirely the fault of Pickering, whose personal and legal opinions revealed he has been hostile to civil rights and minorities. The fault lies primarily with President Bush, who underestimated the opposition to Pickering's extreme conservative record. Pickering has criticized "one-person one-vote," the fundamental principle behind the 14th Amendment. He has admonished civil-rights plaintiffs in several cases involving employment discrimination and alleged rights violations. People for the American Way pointed out that Pickering, in a case involving a cross burned in the yard of an interracial couple and their young child, was more sympathetic to the perpetrators than the victims. The bellicose conduct of Republican Senate Leader Trent Lott of Mississippi also didn't help the nominee. Lott's conduct throughout the nomination process was unbecoming for someone of his stature. President Bush should return to the Senate with a moderate nominee or at least one with a less incendiary judicial record. ..Laudable stand The News and Observer (Raleigh, NC) March 16, 2002 Saturday Regarding a quoted comment in your March 14 article "Stance on judges erodes good will": So "Dickie" Scruggs (a Mississippi trial lawyer and Democrat), puffed-up and feathers ruffled, is vowing not to support U.S. Sen. John Edwards in 2004 because of Edwards' spirited opposition to Judge Charles Pickering's promotion to U.S. Circuit Court of Appeals. Surprise, surprise. Any time anything concerning "race" is injected into Southern politics, all the so-called Southern "Democrats" show their true colors -- red, "white" and blue. Thanks to Edwards for having enough backbone to take a stand on important issues like this. It's about time that a Democrat from the South stepped forward to expose this "Southern thing" that's been going on way too long. Ray Hoke 92 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000583 Raleigh Sen. Edwards: Partisan rejection The News and Observer (Raleigh, NC) March 16, 2002 Saturday John Edwards, since arriving in the U.S. Senate, has claimed to represent North Carolinians and their values. But on viewing his voting record I could have sworn he was a senator from Vermont, Massachusetts or even maybe New York. On most social issues, Sen. Edwards has shown his alignment with the liberals on the Democratic side, evidenced most recently with Judge Charles Pickering's rejection by the Senate Judiciary Committee (news story, March 15). This fine, qualified man was smeared and character-assassinated because he's a pro-life conservative. Edwards suggested that the judge allowed his personal views to interfere with impartiality. I find that argument interesting in light of the judicial activism infesting our courts and infecting many judicial rulings. Several years ago, Sens. Joseph Biden and Sen. Pat Leahy stated that judicial nominees should be voted on by the entire Senate, but I suppose things have changed, evidenced by their preventing the Pickering nomination from ever reaching the floor. I guess for folks like Sens. Ted Kennedy, Leahy, Biden and Edwards, and those they truly represent, judges must maintain certain views to even be considered. If Edwards wants to really represent North Carolinians, he needs to vote like we would. Scott Williams Raleigh Thinking Right: Justice and biscuits Jim Wooten The Atlanta Journal and Constitution March 15, 2002 Friday Thinking Right on the week gone by: It's an indecent society that amuses itself by pitting two broken lives in a boxing ring. I join Islamic fundamentalists and the French in protesting the globalization of the American culture --- or at least the Tonya Harding and Paula Jones spectacle. Don't do that anymore, even for fun. Justice? Amazing how few people who are demanding it actually want justice. What they want is their preferred outcome. The word rapidly 93 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000584 loses all meaning. President Bush doesn't help, either. It's justice we want for Osama bin Laden, says the president. Surely that means dead. It's justice he wants for Judge Charles Pickering. That means confirmed for the 5th Circuit U.S. Court of Appeals. Sometimes taxpayers simply luck out. It happened with the old First National Bank building at Five Points. In the late '80s, the state considered buying the 41-story tower for about $80 million. At the time, it was thought to have a $15 million asbestos removal problem. The state passed. In 1992, the Woodruff Foundation bought the building for $13.2 million and gave it to the state. For free. Good thing, too. The renovation cost is now $112 million. After redoing the building, we should redo the trashy area around Five Points. This city's pre-Olympic improvements have not held up well. State Rep. Charles Bannister (R-Lilburn) is darn persistent in his effort to make certain that a handful of legislators are allowed to join the state retirement system --- and, perhaps more important, qualify for its health insurance. He offered a bill two years ago to give those who had declined participation a one-time right to rejoin. Gov. Roy Barnes vetoed it. But Bannister is back. He says it's not a Republican colleague he's looking out for, but declines to name the Democrat. Can't be a constituent he's helping, though. The bill that unnerved retired teachers and other state employees, Senate Bill 163, will not pass this year. It would allow a portion of the funds to be invested in "private equity, buyout and leveraged buyout funds, mezzanine debt and venture capital, through participation in limited partnerships, limited liability companies . . . and timberland." But the idea has not gone away. The powerful Rep. Calvin Smyre (D-Columbus) has introduced a resolution to create a "Joint Study Committee on Economic Development Through the Investment of State Pension Funds into Private Equities." It is to report back to the General Assembly just after this year's elections. The union dispute at Lockheed looks like the flailing of a dinosaur in the muck. Job guarantees, a core issue in the strike, is an alien concept to most of us. Pensions would seem to be more important to the 2,700 members of the International Association of Machinists Local 709. The average IAM member at Lockheed is 53. Their pension is now $47 per month, per year of service. The company has offered to raise that to $56. For comparison, state legislators, who work part time, get $32 per month per year of service, two-thirds of the Lockheed workers' pension for working full time. Doesn't quite seem equitable. I'm not inclined to pile on the Lockheed machinists, though. The private sector and its unions are on relatively equal footing. The real concern is the public sector. In the 1950s, public employees accounted for about 5 percent of the unionized work force. In 1983, they accounted for 32.4 percent. By 2001, their number was 44 percent. In praising corporate biscuit-makers last week, I inadvertently established the standard as Mama's. The better biscuits, of course, are those prepared by my wife. While their memories had grown cold --- such is the infrequency of their visitation upon our table --- I am now reminded that they are, indeed, thin, light, flaky and superior to all corporate recipes. Except, maybe, for Hardee's. A few more exposures should remove lingering doubt. Jim Wooten is associate editorial page editor. His column appears Fridays, Sundays and Tuesdays. REGRET 94 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000585 The Richmond Times-Dispatch March 15, 2002 Friday The Capitol Hill debate regarding the judicial nomination of Charles Pickering has partisans on the left up in arms. According to his oppenents - who include the NAACP's Julian Bond, Congressman Bobby Scott, a unanimous cohort of Democrats on the Senate Judiciary Committee, the People for the American Way's Ralph Neas, and others - Bush's pick for the federal appellate bench has a checkered past, chock full of positions defying civil rights. Pickering's detractors allege he had ties to the Mississippi Sovereignty Commission - which defended the "Southern way of life," i.e., segregation and Jim Crow - as a state legislator. They also have trotted out a piece he wrote as a law student in 1957, describing how to fix an anti-miscegenation law by closing a certain loophole. Those who know him - those not on lofty perches in the nation's capital - like him. Those include blacks and whites. As The New York Times recently reported: Though few black residents here sub scribe to Judge Pickering's staunchly Republican politics, many say they admire his efforts at racial reconciliation, which they describe as highly unusual for a white Republican in the state. "I have never seen Trent Lott open his arms to the black community the way Charles Pickering has," said Larry E. Thomas, owner of Thomas Pharmacy, referring to the Senate minority leader, who is Judge Pickering's friend and patron. "Over the years I've seen him work with black leaders and really try to make an effort to understand and help the community. That's a progressiveness that we need to see more of in this state." Pickering's many supporters include Thaddeus Edmonson, a former NAACP leader in eastern Mississippi and a current city councilman in Laurel, three of the other four black city councilmen, and James Charles Evers - brother of slain civil rights activist Medgar Evers. * * * In his vigorous defense of Pickering, the President's spokesman Ari Fleischer said, "If actions taken by people 40 years ago were the criteria, there would be some Senators who are voting on this nomination whose very history would come into play." The Washington Post mentioned two such examples: South Carolina Republican Strom Thurmond and Alabama Republican Jeff Sessions. The paper seemingly - lamentably - forgot all about West Virginia Democrat Robert Byrd and South Carolina Democrat Fritz Hollings. Byrd joined the Ku Klux Klan in the 1940s, and as a 29-year-old man and organizer for the Klan in West Virginia, wrote a letter to the Imperial Grand Wizard in Atlanta: "The Klan is needed today as never before and I am anxious to see its rebirth here in West Virginia." Hollings, as a lawyer for South Carolina during the Brown v. Board of Education case, fought hard to preserve school segregation. While running for governor in 1959 he vowed to defend "the Southern way 95 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000586 of life [against] the dictation of a power-hungry federal government." The Democrat also campaigned against Lyndon Johnson's Great Society programs and was one of 11 Senators to vote against confirmation of Thurgood Marshall. (He said the vote was "political," not racial.) Both men reportedly regret their pasts, and continue to be nominated by their party every six years. * * * The other day one black Laurel, Mississippi, councilman told a reporter, "There are many people in Mississippi who made these same mistakes early in life, but their strong Christian character brought them closer to God and helped them change." Charles Pickering was one of those people, the councilman said. In a Judiciary Committee hearing, Wisconsin Democrat Russell Feingold asked Pickering, "Do you regret [your actions in the Fifties and Sixties]?" "I do," Republican Pickering replied. Democrats Hollings and Byrd regretted theirs, too. What's so hard about finding a good judge? USA TODAY March 15, 2002, Friday Today's debate: Judicial nominations Our view: Ideological infighting again leaves a court seat vacant. Charles Pickering is not a name most people know or will need to remember, but on Washington's ideological battlefields, he is the star of the moment. Or, as of Thursday, fallen star. Senate Democrats rejected the controversial Mississippi judge's nomination to a key federal judgeship on a 10-9 party-line vote in the Judiciary Committee. This, they say, spared the nation a judge who misunderstands the law, who was insensitive to civil rights and lacked the temperament required for a lifetime appointment. President Bush, who nominated Pickering, responded that the rejection is "unfortunate for democracy and for America." In fact, neither Bush's nor the Democrats' motivation is quite as high-minded as they would have it. Nor is the rejection of Pickering of any great significance. A qualified but undistinguished nominee, Pickering can be easily replaced. 96 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000587 What's important is that the politicization of the courts is only gaining steam, and with Supreme Court vacancies likely in the next few years, that is ominous. The credibility of the federal judiciary is already badly tainted by years of ideological bickering over nominees and by the Supreme Court's decision ending the 2000 presidential election. In the past two decades, presidents have increasingly tried to shape the law through the ideology of their court appointees. And when the opposing party controlled the Senate, it has tried to derail that strategy. For the past six years of President Clinton's term, a Republican-controlled Senate blocked a large number of his appellate nominees, 35% by some counts. Now, Bush wants to seat a conservative majority on as many of the 13 appellate courts as possible, and Democrats see this as payback time. While they battle, about 10% of federal judgeships are vacant, 17% on the appeals courts -vacancies that slow the delivery of justice. This may sound arcane, but in recent terms, the Supreme Court has reviewed fewer than 100 cases a year, giving the 13 federal appeals courts the final say in more than 99% of federal disputes on issues ranging from the environment to abortion, from criminal law to civil rights. When Bush sought to elevate Pickering to the 5th Circuit, an appellate court that covers Louisiana, Texas and Mississippi, Democrats saw an opportunity. Pickering's nomination failed not because he was unqualified to preside at that level, but because he is the latest target of opportunity -- a flawed nominee whose weaknesses could be exploited. Liberal, women's and civil-rights groups labeled him a "throwback" to the "segregated South." In fact, he is not the racist they claim. Supporters included civil-rights leaders who said he acted admirably, testifying against a Ku Klux Klan leader in 1967. But, in his rulings, he has a record of insensitivity to racial issues that makes him a dubious nominee. With so much at stake, compromise is needed to bridge this wide ideological gulf. The White House will need to choose nominees who are in the mainstream of legal thought. Senate Democrats will need to honestly rate candidates on their merits. If some potential judges are lost -- those ideologically driven to bend outcomes to fit their legal philosophies -- it will be no loss to the judiciary. Brains, tolerance and open-mindedness are the marks of a desirable judge. If both sides can't find some common ground, nominees will languish, vacancies will grow, and Americans seeking justice in the courts will find a long wait. Let president choose 97 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000588 Bruce Fein USA TODAY March 15, 2002, Friday Today's debate: Judicial nominations Opposing view: Constitution gives him, not Senate, key role in picking judges. To paraphrase Oliver Cromwell's famous scolding of Britain's 17th-century Long Parliament, it's time for the Senate Judiciary Committee to be done with its endless partisan maneuvers to block judicial nominees of a president of the opposite party. The Constitution clearly gives presidents primary authority to appoint judges. As Alexander Hamilton wrote in The Federalist No. 76, the Senate's role was intended to screen only for competence, cronyism or corruption. Philosophical or political leanings were not intended as fair game; that would smack of usurping the appointment power itself. The Founders conferred this power because the president is uniquely accountable to a national constituency. And federal judges expound law for the nation, not for particular states. A president also enjoys a popular mandate for judicial appointments, since the issue is regularly a part of presidential campaigns, most recently the Bush-Gore election in 2000. Senate races, in contrast, seldom pivot on philosophy in confirming federal judges. Finally, concentrating accountability for nominees on the presidency inspires judiciousness in the choices that are made. The hydra-headed Senate evades popular wrath or punishment for its irresponsible shipwrecking or "Borking" of nominees because when all senators are responsible, none are. Such mischief-making has mushroomed since the infamous 1987 hearings over Judge Robert Bork's Supreme Court nomination. And both parties are culpable. President Bill Clinton was as vexed by Senate Republicans as President Bush is by Senate Democrats. This unseemly tit-for-tat vendetta and standoff with successive presidents must end. Judicial vacancies are mounting. Justice in federal courts is slowing from lead-footed to glacial. Mediocrity and a vanilla-ice-cream mind are the sole guarantee of confirmation, yet galaxies short of the intellect needed for knotty and pioneering constitutional questions. Judicial giants such as John Marshall, Charles Evans Hughes, Oliver Wendell Holmes or Louis Brandeis would have been stillborn by the contemporary Senate. The risk of a misguided appointment because of senatorial deference to the president is vastly outweighed by the knowledge that overreaching Senates have become cemeteries for gifted and talented jurists. Bruce Fein, a former associate deputy attorney general, is general counsel for the Legal Affairs Council in McLean, Va. 98 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000589 Transcripts/Members of Congress ABC News SHOW: This Week March 17, 2002 Sunday EXCERPT DONALDSON: All right. Let's move to a different type of confrontation: the United States Senate. Charles Pickering, the judge, denied, on a straight party line vote in committee, the opportunity to go to the floor. George Bush, of course, nominated him for the court of appeals. And now the Republican leader in the Senate, Trent Lott, has retaliated, denying a position on the FCC for one of Tom Daschle's people. ROBERTS: Well, I actually do think that the effect on the Senate is going to be pretty damaging because it was not just turning down a Bush appointee as a judge, but it was turning down Trent Lott, the minority leader's good friend, as a judge. In fact, Judge Pickering was Trent Lott's paper boy in college. But the fact is that that kind of courtesy is usually afforded, not to the Supreme Court, certainly, or not even to a cabinet position, but to a lower court, when the home state senator, particularly a leader, says 'This is my guy. I want him,' usually you see the Senate going along. DONALDSON: But Senator Schumer of New York, of course, let it out of the bag by simply saying, 'Charles Pickering was a fine man, but this is about future Supreme Court nominations.' STEPHANOPOULOS: But not--not only to Supreme Court judges, appeals courts. The Democrats do believe the appeals court positions are very, very important and they--they play dirty at the beginning. At least Schumer is straight about it. He says, 'Listen, we're not going to do anything that upsets the balance on the courts.' This was a wake-up call to the White House, they're now going to put a full-time person on coordinating judge nominations. And secondly, there's a formula there for how to fix this. The state of California has two Democrats senators. They've agreed to have bipartisan committees pick the judges. When that happens, they sail through. And the Bush administration ought to look at that. WILL: Well that--that's a proposal for essentially amending the Constitution, which says 'the president shall nominate,' and if you have to pre-clear this with various state parties... STEPHANOPOULOS: But that's always happened. WILL: Not necessarily. I mean, presidents have had different latitude, but clearly the Constitution, I think, does not envision a thing like this. What's important about this, Sam, is it was killed in committee. That is, they knew that if this came to the floor, with Zell Miller and Fritz Hollings, it would have passed. Now, one of the reasons... 99 18-2091-B-000590 Document ID: 0.7.19343.7292-000001 ROBERTS: Speaking of Southern senators. WILL: One of the reasons you pick one presidential nominee or another is you trust or distrust their nominees. Because anyone who is president for eight years is going to appoint approximately half the federal judiciary. This matters terribly to liberals because they advance their agenda more by litigation than legislation in this case. DONALDSON: I want to come back to the Supreme Court. There may be a vacancy or two--or, who knows, three--in this term. And I think the Democrats, don't you, are determined to try to prevent someone who gets on there, joins Antonin Scalia, and... ROBERTS: Sure. Sure. STEPHANOPOULOS: No question. ROBERTS: Absolutely. DONALDSON: ...and drill away history. ROBERTS: And--and they--and--and--and the president will learn that--that--that as long as they keep the numbers that they have in the Senate, that they won't be able to do it in the same way that President Clinton was unable to send up the kinds of liberal judges he would have liked to have sent up. He ended up with Stephen Breyer, a judge who was much more moderate than--than Bill Clinton would have liked to have seen on the court. But that's--that's the Senate. That's the reason for advise and consent. STEPHANOPOULOS: And Cokie's exactly right. Early on in the Clinton administration, he looked at Mario Cuomo, he looked at Bruce Babbitt, but we--he heard from Republicans in the Senate, 'Listen, they're not going to get through.' And he chose candidates who were much more consensus candidates. I think they both--both passed 100-to-nothing. ROBERTS: (Unintelligible) STEPHANOPOULOS: (Unintelligible) Yeah. DONALDSON: So what does a president do when he has the opportunity? Does he send up a hard conservative that he thinks will do the things in the court--you can't ever be certain, of course--that he would like to see, or does he send up some sort of a moderate that can get through? WILL: I think he should send up no one over 55 years old, so that whoever gets on will be there for a long time. Living long is the best revenge in these cases. And second, send up conservatives. 100 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000591 ROBERTS: But, you know... WILL: Let them keep knocking them down. ROBERTS: But--but the living long, as Sam alluded to, can surprise you, Hugo Black and Earl Warren being very good examples. STEPHANOPOULOS: David Souter... WILL: Justice Thomas is working out just fine. DONALDSON: All right. Let's just get to one before we leave, one final thing--Tipper Gore. Is she going to run for the Senate from Tennessee? George: STEPHANOPOULOS: Well, I--I probably sat here two years ago or three years ago and said there's no way Hillary Clinton was going to run. ROBERTS: You did. STEPHANOPOULOS: I probably did. And I--I don't think so, but it was amazing to watch on Friday when this news first came out, everybody thought it was something of a joke. But all day long, Gore associates were saying, 'No it's real. No, it's serious. Yes, she wants to consider it.' There is a practical deadline. Congressman Bob Clement says he's going to announce Democrat tomorrow at 1:00. Tipper has to decide by then. ROBERTS: I think she'd be a great candidate. She has known the state for years. She has talked to the voters, had town meetings, gone all over the state, and she is very comfortable with who she is. You know, we wouldn't need to see a makeover of her--of her persona. DONALDSON: But her husband lost that state. ROBERTS: Yes, that was him. This is her. Two different people. And... DONALDSON: You're not just simply saying this because you're supporting another woman are you? ROBERTS: No, I would--I would be happy to do that, and I'm--particularly support congressional wives, but I think that Tipper Gore would be such a good candidate that we're probably not going to see it happen. DONALDSON: George: WILL: Well, it do--it does seem as though the Democratic Party of Tennessee must feel as though the state's become a family fiefdom, and they're supposed to tug their forelocks and say, 101 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000592 'Yes. Another Gore wants the seat, who are we to get in the way of private property?' ROBERTS: Or another Clinton, or another Ford. WILL: Yes. So it--I mean, it doesn't indicate the vigor of the Democratic Party in Tennessee. STEPHANOPOULOS: There... ROBERTS: Well, wait a minute... STEPHANOPOULOS: There is a danger... ROBERTS: ...there's nothing wrong with people who have been raised in the business, meaning running for the office. WILL: She may have been raised in the business. She was not raised in Tennessee. She's about as connected to Tennessee--slightly more, but not much more--than Mississippi, Illinois and Arkansas. STEPHANOPOULOS: Well, then--but she's lived there for a long time. ROBERTS: No. Considerably more than Mrs. Gore--or Mrs. Clinton. STEPHANOPOULOS: But there--there's a danger here for the vice--for vice--former Vice President Gore. If--if Mrs. Gore runs and loses, that will really hurt his chances in 2004. And secondly, even I agree. Mrs. Gore could be a great, charming, candidate, but she is even more liberal than her husband. I mean, she's, like, for gay rights. A and I think that could hurt in Tennessee. ROBERTS: Except--except on issues having to do with children, and those are very popular issues. DONALDSON: All right. That's it. And I will just simply say as a last word, I am not running for any political office. Thank you. When we come back, the George Will commentary. Please stay with us. (Commercial break) ROBERTS: Well George Will, we have very romantic notions of the American yeoman farmer. WILL: Cokie, you may think you know an American farmer when you see one. You may think a farmer looks like the ones in this Thomas Hart Benton painting, or like Grant Wood's farm couple, or like this farmer in a Walker Evans' photograph. 102 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000593 Well, here is a picture of an American farmer: the Chevron corporation. In a recent five-year period it received more than a quarter of a million dollars in farm subsidies. John Hancock Insurance Company received more than $211,000 for its farm holdings. Dupont received $188,000, Caterpillar, $171,000. Fifteen corporations on the Fortune 500 list received farm subsidies. Welcome to the era of agribusiness in which one Arkansas farm corporation got almost $24 million of subsidies between 1996 and 2000. And now Congress is increasing farm subsidies to $17 billion a year, and Senators Feinstein and Boxer of California, a big agribusiness state, are angry because the bill would limit the subsidies any farm can receive to only--only--$207,000. It is nonsense for supporters to justify subsidies as a safety net for poor farmers. In fiscal year 2000, 157 farms received at least a million dollars a piece in subsidies. And the notion that subsidies are supposed to save small family farms is nonsense on stilts. When farm families started in the 1930s there were almost seven million farms. Today, after hundreds of billions of subsidies, there are fewer than two million farms. The more a farm produces of a subsidized commodity, the bigger its subsidies. So subsidies encourage consolidation of farms. That is why subsidies mean, 'Goodbye Grant Wood,' and 'Hello John Hancock.' Remember that the next time you hear Washington rhetoric about farm subsidies being 'safety net for small family farms.' ROBERTS: Thank you, George. Sam and I will be right back. (Commercial break) ROBERTS: So Sam, what's on the webcast? DONALDSON: Well, Senator Bill Frist, who's also a medical doctor, a surgeon, has written the book that tells us everything we need to do about how to keep ourselves safe if there is a bioterrorism attack, from a medical standpoint. Just log onto sam.abcnews.com. ROBERTS: And tomorrow on "Good Morning America," an exclusive interview with the family of Andrea Yates. DONALDSON: That's true. And finally this morning, we honor our colleague and friend, Jerusalem producer Ali Qadan Rabaia who passes away last week at age 44. Ali was of enormous help to this program on many occasion, most recently in Ramallah last Sunday. And from all of us, until next week, that's THIS WEEK. Senator Orrin Hatch discusses Pickering nomination 103 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000594 CBS News Transcripts SHOW: Face the Nation March 17, 2002 Sunday With us now, the ranking Republican on the Judiciary Committee, Senator Orrin Hatch. Senator Hatch, President Bush's nominee for the appellate court, Mr. Pickering, has been turned down. What's going to be the fallout from that? Senator ORRIN HATCH (Republican, Utah): Well, it's a real tragedy because here was a man who really was rated well qualified by the organization the Democrats called the gold standard--that's the American Bar Association. That's the highest rating they give. This fellow had served 12 years with distinction in Mississippi and had a reputation as being one who, when--when it was really tough to do, lived up to civil rights and then... SCHIEFFER: So why did they do it? Sen. HATCH: Well, I think a lot of it comes down to they want to continue the Old South reputation. I think it's a branding of the whole--whole--the whole South. They want to keep that up because by doing so, they can rally their very liberal forces in a whole wide variety of ways. Secondly, they're--these outside groups, you heard Tom Daschle say that the outside groups didn't like him. Well, these outside groups are all Washington based. They're all far-left groups that never surface until there's a Republican president. And I have to say that, you know, when I was chairman, we had some right-wing groups come in and start making a lot of noise. I told them to get lost. I made a lot of enemies. But that was where they belonged. They belonged to get lost because we ought to make these decisions based upon the facts. And in this particular case--here's a man who sent his kids to inte--to integrated schools, primarily African-American schools, at a time when other people in the South were avoiding pr--public schools and--and going to private schools. I wonder how many members of our Judiciary Committee and members of the Democrats are sending their kids to private schools today here in Washington, DC, because they don't think the schools are good enough for their--for their white kids, do you see? Now this is a man who really lived right, did what was right? SCHIEFFER: What is--what's going to happen as a result of this? Sen. HATCH: Well, it's irrit... SCHIEFFER: Senator Lott is now talking about payback. He's blocked a--a nominee that Senator Daschle has sent to the FCC... Sen. HATCH: Well, that was done far ba--in a--in advance to this. SCHIEFFER: ...funding. 104 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000595 Sen. HATCH: I--I don't think that has any relationship to this. But... SCHIEFFER: Oh, come now. Sen. HATCH: Well, Senator Lott does not feel that person is... SCHIEFFER: OK. Sen. HATCH: ...is qualified for that job. And I--I heard that before this came up. But, you know, w--f--in my wildest dreams I didn't think that they would vote a man of Charles Pickering's qualifications down with his son sitting there. I mean, it wa--and Chip Pickering, I have a lot of--I give him a lot of credit. He's one of those who came in and advocated for Margaret Morrow, a very liberal judge in California that I had to ram through over objections because it was the right thing to do. GLORIA BORGER (CBS News): But he is holding up--Senator Lott is holding up $1 1/2 million for committee funding to look into FBI counterterrorism. Don't you believe the committee ought to be doing that? Sen. HATCH: Well, of course I do. I--I jointly signed the letter, but I have to admit our committee is heavily financed, and I think--I think with the partisanship that Senator Lott is seeing, he doesn't see any reason to give another million and a half dollars to a group that won't treat a decent man like Pickering right. SCHIEFFER: Senator Nickles said this morning that if something doesn't happen, if we're not able to resolve this divide here, Republicans are going to have to do something to get the attention of the Democrats. What--what does that mean? Sen. HATCH: Well, it can mean any variety of things. I can't speak for Senator Nickles. You know what I'd prefer? I'd prefer that we treat people with dignity and decency. Do you realize since 1950, there have only been four people--I mean, we've never had a person stopped in committee unless the Democrats were in control. But last time we did was 1991 when Judge Ryskamp was stopped in committee and not given a chance on the floor. In my six years as chairman on the Judiciary Committee over the prior six years, everybody went to the floor. And that's what's irritating a lot of Republicans. BORGER: Senator--Senator, Democrats point out that three of President Clinton's choices for this Fifth Circuit were not even given a hearing, meaning they didn't even get as far as the committee. Sen. HATCH: Well, first... BORGER: So how do you respond to that? They say Judge Pickering at least got his hearing in committee. 105 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000596 Sen. HATCH: Well, first of all, they were put up quite late. Secondly, there were objections to them. And thirdly, there was--there were some objections by--by the senators involved who do play a very important role in this process and, thirdly, there were some who didn't make it. But I have to say we did a far better job than the Democrats are doing. SCHIEFFER: What about--let's talk a little bit about this Ridge situation. Should Mr. Ridge have to come up and testify before Congress? Sen. HATCH: Look, he's--he's an--he is the president's right-hand person. He is a member of the administration. It would be highly unusual to demand--it is highly unusual to demand that--that a person who has no formal office other than as an adviser to the president has to come up and testify to Congress and especially Tom Ridge, who's handling some of the most intricate, difficult problems in our society today, problems that all of us are worried about. SCHIEFFER: But... Sen. HATCH: And once that starts, he'll be up there spending all his time on Capitol Hill rather than doing his job. SCHIEFFER: But unlike--unlike Condoleezza Rice and some of the other advisers, he is asking the Congress for appropriated money to--to go to various agencies and he's deciding which agency gets it. Sen. HATCH: No, he isn't. The president is asking and the president is taking his recommendations and saying, 'This is my program. I'd like to protect America. I'd like to make sure we s--we do something about terrorism. I'd like to have the cooperation of the Congress. I don't want my right-hand person that I have doing this all day long every day up there in front of a--a Senate or House committee every day. I want him doing his job.' And, you know, I kind of agree with the president on that. SCHIEFFER: All right, Senator, I think you do. Thank you so much for being with us and... Sen. HATCH: Well, I certainly do and he's doing a good job, this president. SCHIEFFER: ...we'll--we'll be back in a minute with a final word. Senator Tom Daschle discusses violence in the Middle East, Tom Ridge, Charles Pickering, campaign finance reform, Tipper Gore CBS News Transcripts SHOW: Face the Nation March 17, 2002 Sunday EXCERPT 106 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000597 BORGER: Let me just switch for a moment if I might to another controversy on Capitol Hill last week. Democrats voted down along party lines the judicial--judicial nominee Charles Pickering. And the Senate Republican leader, Trent Lott, says that that nominee should have gone to the floor, yet it was stopped dead in its tracks in the committee. Senator Breaux this morning, a Democrat, said that it should have gone to the Senate floor as well. Is there any chance that you will let this nomination proceed to the floor of the Senate? Sen. DASCHLE: Well, Gloria, that's unprecedented. I think maybe what Senator Breaux said is that the committee should report out--or should have reported out the--the nomination without recommendation. But there is no precedent in all the history of the United States for us to circumvent the Judiciary Committee on judicial nominations at the district and circuit levels. That has never happened before. You could--you could virtually eliminate the Judiciary Committee if--if we were to adhere to that practice. So what we have said is that the Judiciary Committee ought to have the autonomy, ought to have the responsibility to make the right decision. And in this case, they've made it, and I'm going to respect it. SCHIEFFER: Senator Daschle, you have said before that the American Bar Association recommendations ought to be taken into consideration. And the American Bar Association in this case says that Judge Pickering was well qualified. Why are you saying that their recommendations ought to be considered in one case, but not in this case? Sen. DASCHLE: Well, I think they ought to be considered, Bob, but that ought not be the only criteria by which we judge the qualifications of a judge. In this case there were very concerns--very serious concerns about perhaps the--the possibility of some ethical lapses. There's some real question about whether he was willing to uphold civil rights and voting rights laws in this country. And so I think it was on the basis of those concerns, very serious ones. We got a good deal of--of information from legal analysts from all over the country, who shared the view that--that in this case Judge Pickering was not qualified to be a circuit court judge. So while we look at the ABA, there are a lot of other experts and a lot of other sources we have to consider as well. SCHIEFFER: What Republicans would say would fly in the face of that was that there was a multiracial delegation from his home state, including Medgar Evers' brother--and he was a great civil rights leader--who came to Washington. That delegation also included Mike Moore, the Democratic attorney general in Mississippi. These people all said that he is well qualified and that he has had the proper view on civil rights issues. What do you say in response to them? Sen. DASCHLE: Well, we respect their--their opinions a great deal, but we also respect virtually every single civil rights organization in the country who came out in opposition to Judge Pickering. Virtually every women's rights organization came out in opposition to Judge Pickering. So there was a substantial degree of opposition from the organizations representing African-Americans and--and Americans of all backgrounds, who came out very strongly in opposition. That was part of the record as well, and of course we have to take all of the recommendations and ideas and opinions into account as these decisions are made. 107 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000598 BORGER: Senator, we seem to now be getting into a bit of a tit-for-tat situation as a result of this, that Senator Lott has now held up a $1 1/2 million budget request from the Judiciary Committee to look into FBI counterterrorism. He's also holding up the nomination for an FCC seat of a former staffer of yours. How do you react to--to Senator Lott doing these things? Sen. DASCHLE: Well, Gloria, I think it's very unfortunate. Jonathan Adelstein had nothing to do with the Pickering nomination. So to lash out at him is an unfortunate set of circumstances that I hope will cause Senator Lott to reconsider. We're going to do the best we can to deal with all of the judges that--that we--that have been nominated. You know, we've dealt with 41--we've confirmed 41 nominations. That is more than what the--the--the Republicans did when they were in the majority for an entire year in many cases. In 1996, not one circuit courj--cour--court--circuit court judge was--was confirmed, not one. We've already confirmed seven in nine months. So we're doing the best we can. We're going to continue to do more. We're going to build on the tremendous progress we've made so far. And I hope that people will judge us by that progress and by our intent to continue to--to confirm both circuit and--and district court nominees. SCHIEFFER: Another subject: Campaign finance reform finally comes up this week in the Senate. What do you hear? Will the Republicans try to filibuster it, because we hear that you say you have the votes to pass it. Sen. DASCHLE: Well, we think we have the votes to pass it, but the Republicans have yet to--to agree to a unanimous consent agreement that would allow us to vitiate the--the cloture votes. In other words, we expect right now that there will be a filibuster, which is why I brought the cots in last week. If we have a filibuster, we're going to do it around the clock, beginning on Wednesday, because I need to get this done by Friday. And I believe we will get it done, either the easy way or the hard way, but it will be done by Friday. CNN SHOW: CNN LATE EDITION WITH WOLF BLITZER March 17, 2002 Sunday EXCERPT CHARLES PICKERING: I am extremely disturbed that judicial confirmation has degenerated into such a bitter and mean-spirited process. I sincerely hope that no other nominee has to go through what has happened to me. (END VIDEO CLIP) BLITZER: Mississippi Judge Charles Pickering commenting on the Senate Judiciary Committee's rejection of his nomination for the federal circuit court. 108 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000599 Welcome back to Late Edition. The Pickering vote was strictly along party lines with all Democrats on the committee voting against the nomination, the Republicans supporting the nomination. The Republican leader Trent Lott is promising to retaliate. Joining us now to talk about the return of partisan politics in the U.S. Congress is Republican strategist Ed Gillespie and Democratic strategic Peter Fenn. Thanks to both of you for joining us. Peter, let me start with you. The American Bar Association said he was well-qualified. Why did the Democrats decide to introduce politics in rejecting Judge Pickering right now? PETER FENN, DEMOCRATIC STRATEGIC: Well, listen, these are always political of course. But the key point here was that you had a judge who was extreme right- winger. Twenty-four of his opinions were overturned by the appeals court. They looked into his record, and they gave him a hearing, and they found him not to be ready for prime time when it comes to that, a critical, critical judgeship. And at least he got a hearing. Three of the Clinton nominees to that same bench did not even get a hearing. They deep-sixed them, so at least he got a hearing. BLITZER: On that point, Ed, as you know, the Democrats have been arguing they only did what the Republicans did when Clinton was in White House. Let me read to you from the Los Angles Times on Friday. "After the GOP took control over the Senate in 1995, the Republicans blocked a series of Clinton's court nominees, especially racial and ethnic minorities and especially in the South. The 5th Circuit was a particular battleground. In 1997 Clinton nominated Jorge Rangel (ph), an attorney from Corpus Christi, Texas, to the 5th Circuit. He withdrew in frustration two years later. Clinton then chose Enrique Moreno, a Harvard-educated lawyer from El Paso. He also nominated H. Alston Johnson (ph), a Louisiana law professor, for the same court. But the Republicans refused to allow a hearing for any of those nominees." ED GILLESPIE, REPUBLICAN STRATEGIST: The fact is, Wolf, the Republican Senate moved much more quickly and deliberatively on President Clinton's nominees than has this Senate on President Bush's nominees. And, in fact, of the 11 nominees to the federal bench that President Bush submitted almost a year ago, last May, two of them were nominees that President Clinton had submitted and there hadn't been time to act. And in spirit of comity, President Bush put forward and resubmitted the Clinton nominees. Well, guess what? Out of those 11, only three have been confirmed. And guess what else? Two out of those three were the Clinton nominees. 109 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000600 This was ridiculous. This was a ritual slaying to appease the national organizational for women and other liberal interest groups done by 10 of the most liberal members of the United States Senate. This man never got a hearing on the floor of the Senate, which he clearly deserved. The ABA, which is not a conservative by any stretch of the imagination, Peter, said this man was a well-qualified jurist. And this is simply an effort by these guys to have liberal activists on the judge, and nothing more. FENN: I find it kind of ironic that the Republicans are now touting the ABA, which they wanted to get rid of. GILLESPIE: I wasn't touting them. I said... FENN: This administration wanted to get rid of their recommendation. GILLESPIE: What we're saying even they, who we don't consider to be a conservative group by any stretch of the imagination, said he was well-qualified. FENN: He seems well-qualified, but they didn't talk to him about his ideology. The other question here, I think, and to set the record straight. Look, the average time it took to confirm a judge under Ronald Reagan was six weeks. The average time under George Bush the first was eight weeks. The average time under Bill Clinton was 20 weeks -- 20 weeks. I mean, they held these nominations... GILLESPIE: This is a year. FENN: ... and in some cases deep-sixed it. But the problem with this -- and I think this is where we get into partisan politics. Look, I think we have step back, take a deep breathe. We've got to confirm judges. You know, I don't think we can use, you know, the Clinton experience... BLITZER: All right, Peter, a lot of Southern Democrats, Democrats, moderate Democrats are concerned by what happened. Zell Miller, Democratic Senator from Georgia, said this after Pickering went down. He said, "The political repercussions are too obvious to ignore. Politically, this action may well elect a Republican governor in Mississippi and will certainly make even more difficult for Democratic candidates to be successful in the South." FENN: I mean, I don't think this was a political consideration. This was as question of, what kind of judges are you going to submit? You know, Bill Clinton submitted moderate judges. And these folks, if they're going to put forth these judges that are extreme, they're going to get shut down. 110 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000601 BLITZER: We're going to move on, but go ahead and get a last word. (CROSSTALK) GILLESPIE: ... mainstream jurist, and the fact is that this is an effort to have only judicial activists who believe that they should raise taxes from the bench, you should confiscate private property, and you should care more about criminals' rights than victims' rights. That's where this Senate is trying to take the federal bench, and it's a shame. BLITZER: Another issue coming to the floor this coming week, campaign finance reform. Whether or not it's going to get to the floor and all that, a little bit up in the air. But we did see in a remarkable picture -- beds, cots being brought into the U.S. Senate this week. Let's show some of those cots and put them up on our screen. What is going on, what is Tom Daschle threatening to do, the Senate majority leader? PENN: Well, what he is saying, of course, Wolf, is that -- is if they're going to filibuster this then they're going to play it all night. He wants this voted on by next Friday. And to be honest with you I think it's going to be voted on. It is going to pass. They're going to have the 60 votes that they need to pass this bill, and the president is going to sign it into law. BLITZER: What do you think? GILLESPIE: I suspect that's all right. But let's face something. Campaign finance reform is not going to create one job in this country. It is not going to ease the backlog in the federal bench and confirm any judge. It is not going to reduce our dependency on foreign oil by one barrel. It is not going to get one senior citizen help with prescription drugs. It is going to help every incumbent member of Congress get reelected, because it is an incumbent protection measure, as The Washington Post learned and said, "One of the unanticipated consequences of this bill may be that it will be harder for challengers to run against the incumbent members of Congress." What a shock. BLITZER: There was a shock this week when we heard that Tipper Gore, the wife of the former vice president, is thinking about running for the Senate for the seat being vacated by Fred Thompson. Is that likely to happen? PENN: I'm not shocked at all by it. I think she's giving it serious consideration, from what I understand. There's conversations going on today and tomorrow. 111 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000602 I think she'd be an excellent candidate, to be honest. I think she knows the issues. She's been out front on the whole mental health question. She's been out front with homeless folks. She's been out front on lyrics in songs. She's just a very capable individual, and I think she would make a terrific candidate in Tennessee. And I think it might be one of those races that Ed doesn't like to see, because it's going to keep Deemocratic control of the Senate. BLITZER: Tipper Gore, let's assume -- and this is obviously a long ways down the road -Tipper Gore versus Lamar Alexander in Tennessee. Where do you put your money? GILLESPIE: I'd put my money on Lamar Alexander, assuming he's the nominee on our side. The fact is, if Al Gore couldn't carry Tennessee in the presidential election, I'm not sure that Tipper Gore is going to be able to carry it in the senatorial election. BLITZER: If Tipper were to lose the election, what would that say to Al Gore's prospects in 2004, if she couldn't carry his home state, her home state of Tennessee? FENN: Elections are risky business. And folks run, they win, they lose. You know, I think this is her own race. She'll run it like her own race. And to be honest with you, I think they'll have a tough Republican primary. I'm not sure there would be Democratic primary, if she decided to run. And I think she'll be a terrific candidate and a terrific senator. BLITZER: What do you think about Dan Burton's committee this past week, coming out with his, in effect, indictment of former President Bill Clinton, saying, among other things -- let me read to you what his final report of his House Government Committee did include. "President Clinton," he says, "encouraged his half-brother, Roger Clinton, to capitalize on their relationship. The beginning of the second term, President Clinton instructed Roger Clinton to use his connections to the administration to gain financial advantage." President Clinton strongly denies this, of course. GILLESPIE: Well, the Burton committee had an obligation, obviously, to investigate the pardons, and they fulfilled their obligation and issued their report. And it seems like forever ago since all of that was in the news, since all that's happened since then. You know, I'm not sure what more you can add to it. The fact is that it reinforces, I think, why so many of us who helped get this president elected are glad that he has been good to his word to change the tone and to restore some dignity to White House. BLITZER: Peter? 112 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000603 FENN: Well, I don't think this is changing the tone much. Look, he's the Energizer bunny, when it comes to investigating the Clintons. He's going to go on and on forever with this. You know, the notion that Bill Clinton would say to Roger Clinton, "Go out there and make money and sell pardons," is absurd. I mean, there is no evidence for it. It's an absolutely ridiculous charge. You know, I rode up in the elevator this show with Elvis, right? I mean, come on, this is ludicrous. And you know, it just shows how ridiculous Dan Burton's investigations have been, all along. He starts by shooting a watermelon in his backyard to, you know, to demonstrate how in touch he is with scandal, and now he ends it with this ridiculous charge. He ought to get off it and get a life. BLITZER: I mean, it's wasn't a winning political issue, obviously, when Clinton was in the White House. This is not a political issue that's going anywhere, is it, trying to revive Bill Clinton as a sort of the enemy of the American public? GILLESPIE: No, I don't think there is much interest in that in, certainly, in the Republican Party. BLITZER: That's history, and now it's time move on. Unfortunately, it's time to move on for us, as well. Thanks both of you. Ed Gillespie, Peter Fenn, always good have you on the program. GILLESPIE: Thank you, Wolf. BLITZER: Appreciate it very much. And just ahead, Bruce Morton on the strategy behind going nuclear. Will the United States be the first to drop the bomb again? Late Edition will be right back. CNN SATURDAY EDITION March 16, 2002 Saturday EXCERPT SNOW: Let me ask you about another issue that came up this week, Charles Pickering -- big issue in Senate. He was shot down for an appointment to federal circuit court of appeals, an old friend of Senator Trent Lott from Mississippi, Republican. And he is out of there. Did Democrats do the wrong thing in taking him on? 113 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000604 HAGEL: Well, I think the Democrats did wrong thing in voting down the nomination. But even worse, I think it was not a smart move, wise move, responsible move, not to allow a vote to happen on the floor of the Senate for Judge Pickering. SNOW: Listen to what Senator Lott had to say about this incident, about Charles Pickering and Charles Pickering not being allowed a vote. Let's listen to Senator Lott this week. (BEGIN VIDEO CLIP) SEN. TRENT LOTT (R-MS), MINORITY LEADER: I think this is, you know, payback. The problem with payback is where does it every end? You know, we paid you back, you pay us back. Now we're going pay you back. Where does this end? Is this the way for the United States Senate to act? Is this the process that we should use in confirming judges? (END VIDEO CLIP) SNOW: And Senator Lott saying he is going to block money that the Judiciary Committee wanted, the committee that voted out, voted down Charles Pickering. He's going to block one of Daschle's picks for another appointment. When does it end? HAGEL: Well, Senator Lott's point was correct. We can't continue to ratchet this up. This is irresponsible. This is no way to govern. First, I think, let's put perspective on this. As much of a big mistake, I think as the Democrats made here on Pickering, this isn't the first time. It's not going to be last. I remember in the '70s big fight over Carswell (ph) and Hainesworth (ph), the Supreme Court nominees with Nixon, Clarence Thomas. Unfortunate that we get into these things. We define down our conduct, the Senate, and I don't think we look very good, not responsible. We didn't do the right thing here. At least give the guy a vote. But the better way to handle this is Daschle and Lott have to sit down and in quiet moment next week, and maybe get the president into this, and say, "Listen, let's stop this. Now, this is nonsense. This is like the Middle East. We will kill more of your guys than you kill of ours." That is irresponsible, and America deserves better than that. And there will be retribution at polls in November, if this doesn't get straightened out. SNOW: We've a phone call on the line, I think, from Tom Daschle's home state of South Dakota. HAGEL: OK. 114 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000605 CNN SHOW: CNN CAPITAL GANG March 16, 2002 Saturday EXCERPT SHIELDS: Welcome back. President Bush made a final appeal to the Senate to confirm Federal District Judge Charles Pickering of Mississippi to the 5th Circuit Court of Appeals. (BEGIN VIDEO CLIP) BUSH: A handful of United States senators on one committee have made it clear that they will block nominees, even highly-qualified, well-respected nominees who do not share the senator's view of the -- of the bench, of the federal courts. (END VIDEO CLIP) SHIELDS: The Judiciary Committee voted 10 to nine against sending the Pickering nomination to the Senate floor. (BEGIN VIDEO CLIP) SEN. CHARLES SCHUMER, (D), NEW YORK: The administration is willing to take some casualties in this fight. They're sending up waves of (UNINTELLIGIBLE) and Thomas's. They still staff the courts. It's a bad strategy, both for the courts and for the American people. SEN. TRENT LOTT, (R-MS), MINORITY LEADER: It's really aimed at the Supreme Court. This is a message, you know, you send us a pro life, conservative, man of faith for the Supreme Court, and we will take care of him or her. (END VIDEO CLIP) SHIELDS: Al Hunt, is Senator Lott correct that this is really about the Supreme Court? HUNT: Mark, I'll get to that in just a second. One of the truly impressive moments, though, was to watch Congressman Chip Pickering sit there while the committee voted on his dad for hours. We all should hope our children would be so devoted. But Trent Lott is right. It's about the Supreme Court and it's about politics, just as it was during the Clinton years when the Republican-controlled Senate rejected 53 judges that Clinton -excuse me, they didn't reject them, they wouldn't even hold hearings on 53 judges. Forty percent of those were there for three years or more. Judge Pickering had two hearings, had an up and down vote, was given far more courtesy than most nominees were given, and as for the president's claim about the Judiciary Committee 115 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000606 bottling it up, I don't think ever in the history of the Republic has a nominee gone to the Senate floor that was -- that was -- that was -- that was voted negatively by a majority of the -- of the Senate Judiciary Committee. (CROSSTALK) NOVAK: Can I correct you on that, please? Do you mind? HUNT: Yes, and then I'll come right back, yes. NOVAK: I correct you. Bork was voted negatively by the Judiciary Committee and was sent to the Senate Floor. HUNT: Well they went and they voted to send him out, but this is -- this is -- they're trying to change the rules, and you can't change the rules, and they're -- and they're taking shots to Pat Leahy -- they're highly unfair, and so I think ... (CROSSTALK) HUNT: ... this is about politics, but it's been about politics for a long time -- nothing new Mark. NICKLES: Well, I think ... SHIELDS: Don Nickles. NICKLES: ... take big issue with that. This is a very sad day in the Senate. The Senate is not working very well as we speak. For example, we have an energy bill on the floor, it wasn't even marked up by the Energy Committee. You have tax committee, Finance Committee, it's become very partisan -- Ag, we've never had a partisan Ag bill. We finally do, and it's just not working. And now we have a straight partisan attack, and Senator Schumer said something about trying to stack the courts, well what happens, we now have a Judiciary Committee that's stacked with liberal Democrats that have now have litmus tests. It used to we throw -- we don't want to have litmus tests on judges. We didn't have litmus tests on past judges, but all of a sudden the Democrats do. And they're trying to kill, and did, in this case, stop the elevation from a district court of an individual that was confirmed unanimously 10 years ago in 1990 -- 12 years ago, and now gets no votes from the Democrats. We had the votes on the floor of the Senate. The Constitution says the Senate shall confirm -- you had the Judiciary Committee that I think treated Judge Pickering and frankly Senator Lott very unfairly. CARLSON: During those 12 years, he was reversed 26 times since his last confirmation. He intervened in a cross burning case to try to get the mandatory sentence reduced and there were good reasons to reject this nominee. It doesn't mean that it wasn't revenge for what happened 116 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000607 during the Clinton administration and it doesn't mean that the Senate is not involved in this tit for tat, that, you know is making it so ugly and partisan that people like Senator Fred Thompson are leaving the Senate ... NOVAK: Let me ... CARLSON: ... because it's so bad and Senator Daschle is having his nominee -- Senator Lott came right back out and said I'm going to stop your nominee to head up the Federal Communications Committee ... (CROSSTALK) CARLSON: ... and put tops (ph) in the Senate because we're staying here all night. NOVAK: Because the only resource Republicans have is retaliation. Let me tell you what this is -- this is all about. This is Chuck Schumer of New York. He's the one guy who's very honest. He says there is an ideological test. We don't want Scalias and we don't -- we don't want Clarence Thomas's on the appellate -- on the appellate bench, and the -- and they took Judge Pickering because he is a distinguished judge. He has a lot of Democratic friends in Mississippi. His son is a congressman, and they said, this is the test case. If you name anybody as conservative as Pickering, he is going to -- he is going to get the same treatment and the question is not how many times he was reversed, Margaret, it's abortion, because he's pro life. The women's activists have said we've got to stop him, and they have stopped him. (CROSSTALK) HUNT: The problem with that is ... (CROSSTALK) CARLSON: I don't think ... (CROSSTALK) HUNT: ... we've already confirmed the number of judges who are -- who are pro life. There have been -- of those 40 judges, they've confirmed a number of judges are pro life, so that has not been a litmus test and but, Bob, I agree with the overall point, but that was the same exact test that the Republicans had to Clinton. And why Allen Snyder ... (CROSSTALK) HUNT: ... who was a law clerk to Judge Rehnquist nominated in September 1999 and Trent Lott and Don Nickles wouldn't let him come up for a vote. Why? I don't know, but to ... 117 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000608 (CROSSTALK) HUNT: ... pretend there's some kind of new litmus test -- why wouldn't you let Allen Snyder come up for a vote? NICKLES: I'm not familiar with the Snyder case. But let me ... (CROSSTALK) HUNT: Judge Rehnquist nominated ... (CROSSTALK) NICKLES: Well, let me give you ... (CROSSTALK) NICKLES: ... the real stats. The real stats are that Bill Clinton and George Bush and Ronald Reagan got 97 percent of their judges in the first two years -- 97 percent. HUNT: When the Democrats controlled the Senate, yes. NICKLES: Well, Democrats and Republicans, if you add all three administrations. In other words, the past three presidents got 97 percent of their judges the first two years and we only have 24 percent of the circuit court nominees this time, and they've held up 22. SHIELDS: I'll just point out that the first two years of each of those president's terms, the Democrats did control the Senate in each case. NICKLES: Well, there's 22 out of 29 ... (CROSSTALK) CARLSON: The last two years it points ... (CROSSTALK) NICKLES: Twenty-two out of 29 circuit court judges haven't had a hearing. Twenty haven't even had a hearing. SHIELDS: Don Nickles, we'll be back with a CAPITAL GANG classic to mark another Clinton anniversary. 118 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000609 Reactions to Judge Pickering's Rejected Nomination CNN SHOW: CNN DAYBREAK March 15, 2002 Friday Partisan politics still alive and well in the Senate. Many say the defeat of Charles Pickering's appeals court nomination could be a sign of future battles over the Supreme Court. CAROL COSTELLO, CNN ANCHOR: Partisan politics still alive and well in the Senate. Many say the defeat of Charles Pickering's appeals court nomination could be a sign of future battles over the Supreme Court. CNN congressional correspondent Jonathan Karl has the details for you. (BEGIN VIDEOTAPE) JONATHAN KARL, CNN CONGRESSIONAL CORRESPONDENT (voice-over): From the steps of his courthouse in Mississippi, Judge Pickering blamed his defeat on partisan politics. JUDGE CHARLES PICKERING (R), MISSISSIPPI: I am extremely disturbed that judicial confirmation has degenerated into such a bitter and mean spirited process. I sincerely hope that no other nominee has to go through what has happened to me. UNIDENTIFIED FEMALE: Mr. Feingold. SEN. RUSSELL FEINGOLD (D), WISCONSIN: No. UNIDENTIFIED FEMALE: Mr. Schumer. SEN. CHARLES SCHUMER (D), NEW YORK: No. KARL: Immediately following the party line vote, President Bush put out a sharply worded statement calling the action "unfortunate for democracy and unfortunate for America." But Democrats put the blame on the White House for nominating somebody they believe is out of the mainstream, especially on civil rights. SCHUMER: There's clearly no mandate from the American people to stock the courts with conservative ideologues. So if the White House persists in sending us nominees who've threatened to throw the courts out of whack with the country, we have no choice but to vote no. KARL: The rejection won't help what President Bush calls a vacancy crisis in the federal courts. There are now 96 federal vacancies, which means more than 1 out of every 10 federal judgeships is vacant. SEN. MITCH MCCONNELL (R), KENTUCKY: We have a crisis, and both sides can spin the 119 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000610 statistics any way they want to, but the fact of the matter is there are more judicial vacancies today than there were when President Bush took office. SEN. PATRICK LEAHY (D), JUDICIARY CHAIRMAN: We've had a great deal of talk about vacancies during this hearing. Many of those vacancies, nominees were made for them by President Clinton. This committee refused to allow them to come to a vote before the committee or to even come, in many case, even to have a hearing. KARL: Some Democrats believe rapid approval of Bush's nominees would only reward Republicans for a problem they created by blocking President Clinton's nominees. SEN. TRENT LOTT (R), MINORITY LEADER: But I think this is a -- this is you know payback. And the problem with payback is where does it ever end? You know we paid you back, you pay us back, now we're going to pay you back. Where does this end? Is this the way for the United States Senate to act? Is this the process that we should use in confirming judges? KARL: Senator Lott took personally the rejection of Pickering, a fellow Mississippian he asked the president to nominate. Also taking it personally was Charles Pickering Jr., the judge's son, better known as Congressman Chip Pickering. He lobbied hard on his father's behalf. REP. CHIP PICKERING (R), MISSISSIPPI: I couldn't be prouder of my father. He is an honorable man who has had to go through a dishonorable process. But we do hope that the senators can find some way to bring dignity and decorum back to the senate, to the confirmation process. KARL (on camera): And this battle may be a foreshadowing of things to come. President Bush has another 50 judicial nominees pending before the Senate, many of them considered by Democrats even more controversial than Judge Pickering. Jonathan Karl, CNN, Capitol Hill. Fox News Network SHOW: FOX SPECIAL REPORT WITH BRIT HUME March 15, 2002 Friday EXCERPT CAMERON: Hours after Democrats voted against Bush his first defeat on a judicial nominee, the GOP up some judiciary committee funds. And Democratic now be blocked by Trent Lott, who recommended promised more reprisals. Judge Charles Pickering, giving President blow back began. Republicans plan to hold leader Tom Daschle's pick for the FCC will Pickering to the president and has all but LOTT: I'm not going to let go of this. This is going to stick in my mind for a long time. 120 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000611 CAMERON: Some judiciary committee Democrats like Dick Dervin admit opposing Pickering to even the score for the way Republicans blocked some of President Clinton's nominations in the '90s. The No. 2 Democrat in the Senate, however, says Democrats have legitimate problems with some of Bush's picks, and they're not going to back down. SEN. HARRY REID (D), NEVADA: George W. Bush is president of the United States, not king of the United States. He's President Bush. He's President George, not King George. CAMERON: Judiciary committee Democrats like Charles Schumer have said they will not confirm Bush nominees if, like Pickering, they're conservative. Republicans say it's really all about the Supreme Court. And the paramount issue for Democrats is abortion. LOTT: I think it's really aimed at the Supreme Court. This is a message. You know, you send us a pro-life conservative man of faith for the Supreme Court, and we will take care of him or her. That's what it's really about. CAMERON: When it has suited them in the past, lawmakers in both parties have argued that judges are able to separate the personal politics from their court rulings and the law. But Republicans say, when it comes to abortion, Democrats are now saying just the opposite. SEN. ORRIN HATCH (R), UTAH: To impose an abortion litmus test on private views, call it ideological if you want to, is to exclude from our judiciary a large number of people of religious conviction, who are perfectly prepared to follow the law. CAMERON: In other words, Republicans say abortion politics has led Democrats to religious discrimination. HATCH: Rather than seeking to determine the judiciousness of the nominee and whether a nominee will be able to rule on the law, or the Constitution, without personal bias, my Democratic colleagues are out to guarantee that our judges are, in fact, biased. And certainly, no person who holds certain religious convictions need apply. (END VIDEOTAPE) CAMERON: Though some Democrats, like Zell Miller of Georgia, who often votes with the Republicans, have criticized the Democratic Party for the way they handled this nomination, Democratic leaders say the process has been and will continue to be fair. It's unclear how the president, who has promised to end gridlock and change the tone in Washington, will react if Republicans in the Senate slow things down to the point where his own agenda is adversely affected -- Tony. Fox News Network SHOW: FOX HANNITY & COLMES 121 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000612 March 15, 2002 Friday EXCERPT HANNITY: As we continue, Judge Charles Pickering's nomination to the appeals court was defeated in a party-line vote in the Senate Judiciary Committee yesterday, outraging many Republicans. Now, a few years ago, our very own Greta Van Susteren was interviewing Vermont Democratic Senator Patrick Leahy. Senator Leahy was complaining that Republicans were unfairly keeping President Clinton's nominees off the bench. And Greta asked -- quote -- "In the event the Democrats should win the U.S. Senate, is the Democratic Party going to do the same thing to the Republicans?" Leahy responded: "No, because I'll be chairman of the Judiciary Committee and I would never stand for the kind of things that Republicans are doing to the federal judiciary. I would not do it. I would resign before I would do it." Well, it's time for him to resign, Alan. Zell Miller said it right, Democratic senator: What they did to this good and decent man is disgraceful and will ultimately hurt the Democratic Party in the South. COLMES: Look, Republicans wouldn't give Democrats a hearing on Bill Lann Lee. They wouldn't give a hearing on a number of people. There was the guy who was gay in San Francisco, James Hormel. The same game gets played by both parties. It's happened all the time. HANNITY: Not one Clinton appointee didn't get the chance to go to the Senate floor, not one. COLMES: It never gets out of committee if it gets voted down in committee. Party-line vote in Senate Judiciary Committee results in rejection of Bush nominee to US Court of Appeals National Public Radio (NPR) SHOW: Morning Edition March 15, 2002 Friday This is MORNING EDITION from NPR News. I'm Bob Edwards. On a party-line vote, the Senate Judiciary Committee has rejected the nomination of Mississippi Judge Charles Pickering to the US Court of Appeals for the 5th Circuit. Although President Bush has urged the Democrats to allow a floor vote on the nomination, it is all but certain that will not happen. NPR legal affairs correspondent Nina Totenberg reports. NINA 122 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000613 TOTENBERG reporting: The steam seemed to have gone out of the debate yesterday as the senators talked on in the knowledge that the Democrats on the Judiciary Committee had the votes, and the Republicans did not. The only new spark seemed to come from Senator Edward Kennedy, referring to President Bush's accusation that the Democrats were blocking Pickering for partisan reasons. Senator EDWARD KENNEDY (Democrat, Massachusetts): I hope we can get away from the kind of casual and not-so-casual characterization of those that either agree or differ. It's really a recent phenomenon that we have seen over on the floor of the United States Senate: If you don't agree, it's somehow partisan or political; if you do agree, you're a statesman. TOTENBERG: Senator Orrin Hatch, the committee's ranking Republican, backed away from the fiery rhetoric he used last week when he accused Democrats and liberal public interest groups of, quote, "lynching" Pickering. Yesterday, instead, he made a point-by-point rebuttal of some of the charges against Pickering, saying that the judge is a 'truly righteous and decent man, who, contrary to the allegations of his critics, has fought for civil rights all his life.' Hatch noted that Pickering had testified against the head of the Ku Klux Klan in the 1960s, putting his family and his career in jeopardy. Senator Hatch. Senator ORRIN HATCH (Republican, Utah): What is really going on here is an attempt to change the ground rules for judicial confirmations. Some have complained that President Bush has not sent mainstream, quote, "consensus," unquote, nominees to the Senate for confirmation. The problem with this argument is that those who propound it seem to define, quote, "mainstream," unquote nominees as nominees who agree with them on divisive social issues, such as abortion. They are poised to label as an extremist any nominee, such as Judge Pickering, who has a record of disagreeing with them. TOTENBERG: Republican Charles Grassley noted that Pickering is supported by many prominent African-Americans in his hometown, but he said the vote proved that the liberal special interest groups are back with a vengeance. Senator CHARLES GRASSLEY (Republican, Iowa): If opposition to a member comes from the grass roots up, that's one thing. But when there's no opposition to a candidate until it's fomented through the press by somebody inside the Beltway, that's when things get wrong. TOTENBERG: Democrats repeated their objections to Pickering, his judicial opinions on civil rights, employment discrimination and voting rights. They said he was openly and repeatedly hostile to civil rights claims; that he questioned the Supreme Court's one man, one vote rule. But they focused most of their fire on what they called his 'unethical conduct'; in particular, the judge's handling of a cross-burning case in 1994. In that case, Pickering intervened with the Justice Department and threatened prosecutors with ordering a new trial in order to lessen the stiff sentence required by law. Eventually, the Justice Department caved in to the pressure, and the judge sealed the records of his actions. New York Senator Charles Schumer called 123 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000614 Pickering's conduct 'mind-boggling,' and North Carolina's John Edwards called it, simply, 'disqualifying.' Senator JOHN EDWARDS (Democrat, North Carolina): These things, in my experience, are way outside the norm of what a judge will do and should do. And when a judge takes sides in a case, as Judge Pickering did in this particular case, it is impossible for the system to work. TOTENBERG: That prompted Republican Jon Kyl of Arizona to observe that the American Bar Association had given Pickering its highest rating, so clearly had not thought him unethical. Senator JON KYL (Republican, Arizona): The ABA would not have rated him well-qualified if that were really the case. TOTENBERG: But Democrats quickly responded that Pickering's actions in the cross-burning case were not known at the time he was screened by the ABA. And they faulted the nominee as well for soliciting support letters from lawyers who practiced before him. Unidentified Woman: Mr. Chairman? Unidentified Chairman: No. Unidentified Woman: Mr. Chairman, the votes are nine yeas, 10 nays. TOTENBERG: At day's end, the committee voted 10-to-9 to defeat the nomination. Nina Totenberg, NPR News, Washington. Sen. Don Nickles on Fox News Sunday Sunday, March 17, 2002. EXCERPT TONY SNOW, FOX NEWS SUNDAY: Tempers flared in the Senate this week after the Judiciary Committee, on apredictable party-line vote, rejected the nomination of Charles Pickering to serve the 5th U.S. Circuit Court of Appeals. Senator Minority Leader Trent Lott promised and delivered swift retribution, which we will discuss with our next guest, SenateAssistant Minority Leader Don Nickles of Oklahoma. Also here with questions, Juan Williams of National Public Radio and Fox News. Senator Nickles, a lot of people are saying that the folks most to blame for Judge Pickering's fate are not Democrats butRepublicans who waited around and waited around and waited around and really didn't mount a very vigorous defense on hisbehalf until the 11th hour. 124 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000615 SEN. DON NICKLES, (R-OK): Well, I take issue with that. I know Senator Lott worked very hard. He was verypersonally involved. Judge Pickering was a friend of his, so I know he worked hard to get the nomination through. And looking back, I still can't imagine that the Democrats did it. This is unheard of. I can't imagine that they would ever do thisto Bob Dole or Howard Baker or that we would, conversely, that we would do this Tom Daschle or one of the Democratleaders. HUME: But didn't Orrin Hatch, if memory serves, didn't Orrin Hatch say of Bruce Babbitt, the former Arizona governor, toBill Clinton, "Don't even both nominating him" -- he was, I think, the interior secretary at the time, Bruce Babbitt was -- "to theSupreme Court, because we're not going to do anything with it"? So there is a certain kind of political precedent here. NICKLES: Well, not really. No, there's no comparison whatsoever. This is unheard of. We haven't killed, in the JudiciaryCommittee, we haven't killed a nominee in 11 years. And the last time, I think, the Democrats did it in 1991. It's just not done. And I think it's very unfair. Judge Pickering was confirmed unanimously in 1990, and then to have this happen, I think, it'sbecause a lot of outside groups did a character assassination on him. HUME: Well, Democrats are saying, look, yes, we did approve him in 1990. But on the other hand, we looked at the 12years, we didn't like the record. They were trying to point at that record. But let me raise a different objection that has been mentioned. A lot of people won't admit to it, but the fact is, Republicansduring the last couple of years of Bill Clinton's presidency sat on a lot of judicial nominations, didn't even hold hearings, which isprecisely what Democrats are doing in the Judiciary Committee now. Isn't it true that the Republicans were guilty during the last years of the Clinton administration of precisely what you'recomplaining about with Democratic behavior now? NICKLES: Well, usually, the tradition is that presidents and the new administration get their judges the first two or three years.The last year usually goes pretty slow because -- obviously, they may not be president next go around. If you look at Ronald Reagan, if you looked at President Bush 41 or if you look at Bill Clinton, all of which got 90 percent oftheir judges in the first two years. This is not the case with President Bush now. President Bush, as far as circuit courts, falling at24 percent -- seven out of 29 -- whereas, all the other presidents got 90-something percent of the Circuit Court nominees.There's never been the litmus test. There's never been this grilling that we've had. And I think -- unfortunately, I think theDemocrats shot down a good judge in Judge Pickering. SNOW: So Trent Lott now is taking action. He says we're going to retaliate. And there have been a couple of actions already.Number one, there is a Federal Communication Commission 125 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000616 nominee, somebody who used to work for Tom Daschle, that'sbeing held up. Number two, the Judiciary Committee has asked for $1.5 million to investigate things in the aftermath ofSeptember 11; he's killing that. Are some of the other possible actions, would they include, for instance, insisting getting rid of unanimous consent, which is adevice that's used on the Senate floor basically to keep the place operating, is that something you would contemplate,Republicans? Is that something -- I'm not going to ask you to make a decision on behalf of Trent Lott, but is that one of theoptions that would be under consideration? NICKLES: Well, there's lots of options. We have to have some kind of comity. We have to get some kind of agreement thatwe're going to take up these judges, or else Republicans are going to do something to get the Democrats' attention. There's lotsof different ways of getting their attention. But to just say we're not going to take up circuit court nominees -- the president's nominated 29 and we've confirmed seven.Judge Pickering was just defeated. There's 20 that haven't even had hearings. And some of these individuals are outstanding individuals. Miguel Estrada, for example, D.C. Circuit Court, Hispanic, hasargued 16 cases before the Supreme Court, nominated in May, hasn't even had a hearing. And same thing with John Roberts... SNOW: Well... NICKLES: John Roberts has argued 35 cases before the Supreme Court and he hasn't had a hearing. So we're going to dosomething. I've told this to Senator Daschle and Senator Reid. I said, you all need to cooperate with us and get the Judiciary Committee tohave hearings and mark up circuit court nominees or we're going to start taking actions that will get your attention. JUAN WILLIAMS, FOX NEWS: So then, Senator, what's the next step of the Republicans? Is it to nominate people to thejudiciary who don't have a record, who don't have a track record, a paper trail? NICKLES: No. President Bush has nominated some outstanding people. I just mentioned two. I could go over several others.And we just want these people to have a hearing. I think, once they have a hearing, you're going to find that the Democrats arenot going to be able to oppose a Roberts or Estrada because they are outstanding nominees. WILLIAMS: Well, I think some would say that Pickering had an undistinguished record, that, you know, maybe theDemocrats overboard in their charges of racism, but not a very distinguished record and maybe most distinguished by the factthat he was a conservative. And so, what we're really looking at here is buildup toward nominees to the Supreme Court, andthe 126 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000617 Democrats are laying down a marker the Republicans. NICKLES: Well, that's ridiculous. One, if you look at Judge Pickering, his age, he wouldn't be a Supreme Court nominee.This was a hatchet job by a bunch of liberal groups that spend a lot of money -- interesting, you had a segment on campaignfinance -- these groups are spending all kinds of money trying to kill this nomination. But this was unfortunate and it's unfair. SNOW: Well, let me go... NICKLES: What we're going to do, we're going to try to get the Democrats' attention, and we'll do whatever is necessary toget their attention to make sure that we're going to have good nominees have a chance to have a hearing. NICKLES: Some of these people have been waiting a year, almost a year. They were nominated in May, and they haven'teven had a hearing yet before the Judiciary Committee. SNOW: I'll let Juan get back at you in a minute, but first I want you to take a look a quote from Senate Majority Leader TomDaschle. I mean, he knows that you're trying to pick a fight and he says, OK, bring it on. Here's the quote: "I don't know ifthey, Republicans, have given careful thought to the threat" -- blocking an FCC appointment. "I think that it could easilybackfire in many ways." He's running the place. He can shut down anything that you propose. How on earth is this a smart strategy for getting people tobe nice to each other? NICKLES: Well, we have to get their attention. And the Senate -- this is a real bad thing. I happen to love the Senate. I havebeen in the Senate for 22 years. And the way that the Democrats are running the Senate right now bothers me a lot -- and notjust the Judiciary Committee. But, again, this is the first time this happened in 11 years. It shouldn't have happened. Senator Breaux was right. They should have figured out a way. You don't kill the Republican leader's nominee. That is just notthe way that things are supposed to do if you believe that this body is supposed to work. But it is not working in other ways. I'm on the Energy Committee. We are debating the energy bill on the floor of the Senate. Ihave been on the committee for 22 years. We didn't mark up the bill in the committee. Why? Because Tom Daschle didn't wantus to because he was afraid that we would put ANWR in the bill. So I didn't have a chance. Interest Groups/Press Releases 127 18-2091-B-000618 Document ID: 0.7.19343.7292-000001 Judiciary Committee Rejects Pickering’s Promotion People for the American Way Ralph Neas Thursday March 14, 2002 Record on constitutional and civil rights principles generated intense opposition; future judicial nomination battles will depend on White House actions The Senate Judiciary Committee today rejected President Bush’s nomination of Judge Charles Pickering to the U.S. Court of Appeals for the 5th Circuit. "Judge Pickering was defeated by his own record as a federal judge and state senator," said People For the American Way President Ralph G. Neas. "That record convinced a majority of senators on the Judiciary Committee that he should not be promoted to the appeals court." Neas said reducing future acrimony over judicial nominations would require a bipartisan approach and a commitment to genuine dialogue that the White House has not yet been willing to make. He said President Bush should consult with senators from both parties and seek out nominees who demonstrate an understanding of and commitment to civil and constitutional rights. "Today’s vote is a victory for Americans opposed to right-wing domination of the federal courts," said Neas. "The Senate Judiciary Committee should continue to give priority to nominees who have bipartisan support and should continue to reject nominees who pose a threat to civil rights protections, reproductive choice, environmental protection and other important constitutional and legal principles." Neas praised the Judiciary Committee majority for ignoring efforts to deflect attention from Pickering’s record by claiming that the judge had been the victim of an unfair smear campaign. "All the right-wing attacks and distortions could not change the facts, which were examined carefully and discussed in two open public hearings. Senator Leahy and other members of the Judiciary Committee majority stood up to Trent Lott’s threats and intimidation and took a principled stand based on Judge Pickering’s record and on the important issues at stake." Neas also praised the broad coalition of local, state, and national organizations that documented Pickering’s record and mobilized in opposition to the nomination. "I am extremely proud to be part the broad community of advocates who made the commitment to stand up and fight this threat to civil and constitutional rights," he said. "And I am especially grateful to those citizens of Mississippi who took the courageous step of publicly opposing a sitting federal judge." 128 AMERICAN PVERSIGHT Document ID: 0.7.19343.7292-000001 18-2091-B-000619 U.S. Department of Justice Office of Information Policy Sixth Floor 441 G Street, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 Mr. Gabe Roth Fix the Court 1440 G Street NW, Suite 801 Washington, DC 20005 gabe@fixthecourt.com September 9, 2019 Re: DOJ-2018-007104 (OLP) 18-cv-02091 (D.D.C.) VRB:TAZ:SJD Dear Gabe Roth: This is our third interim response to your Freedom of Information Act (FOIA) request dated and received in this Office on July 24, 2018, for correspondence between the Office of Legal Policy and Brett Kavanaugh from January 20, 2001 to May 30, 2006. This response is made on behalf of the Office of Legal Policy (OLP). In our letters dated October 5 and October 17, 2018, we provided you with interim releases of 693 pages containing records responsive to your request. At this time, I have determined that an additional 1,125 pages are appropriate for release, with excisions made pursuant to Exemptions 5 and 6 of the FOIA, 5 U.S.C. ? 552(b)(5) and (b)(6), and copies are enclosed. Additionally, I have determined that 127 pages should be withheld in full pursuant to Exemptions 5 and 6 of the FOIA. Exemption 5 pertains to certain inter- and intra-agency communications protected by civil discovery privileges. Exemption 6 pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties. Please be advised that duplicative and non-responsive records have not been processed and are marked accordingly in the enclosed pages. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. ? 552(c) (2012 & Supp. V 2017). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. U.S. Department of Justice Office of Information Policy Sixth Floor 441 G Street, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 Mr. Gabe Roth Fix the Court 1440 G Street NW, Suite 801 Washington, DC 20005 gabe@fixthecourt.com September 9, 2019 Re: DOJ-2018-007104 (OLP) 18-cv-02091 (D.D.C.) VRB:TAZ:SJD Dear Gabe Roth: This is our third interim response to your Freedom of Information Act (FOIA) request dated and received in this Office on July 24, 2018, for correspondence between the Office of Legal Policy and Brett Kavanaugh from January 20, 2001 to May 30, 2006. This response is made on behalf of the Office of Legal Policy (OLP). In our letters dated October 5 and October 17, 2018, we provided you with interim releases of 693 pages containing records responsive to your request. At this time, I have determined that an additional 1,125 pages are appropriate for release, with excisions made pursuant to Exemptions 5 and 6 of the FOIA, 5 U.S.C. ? 552(b)(5) and (b)(6), and copies are enclosed. Additionally, I have determined that 127 pages should be withheld in full pursuant to Exemptions 5 and 6 of the FOIA. Exemption 5 pertains to certain inter- and intra-agency communications protected by civil discovery privileges. Exemption 6 pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties. Please be advised that duplicative and non-responsive records have not been processed and are marked accordingly in the enclosed pages. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. ? 552(c) (2012 & Supp. V 2017). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. -2If you have any questions regarding this response, please contact Laura Hunt of the Department's Civil Division, Federal Programs Branch at (202) 616-8337. Sincerely, Enclosures Timothy Ziese Senior Reviewing Attorney for Vanessa R. Brinkmann Senior Counsel -2If you have any questions regarding this response, please contact Laura Hunt of the Department's Civil Division, Federal Programs Branch at (202) 616-8337. Sincerely, Enclosures Timothy Ziese Senior Reviewing Attorney for Vanessa R. Brinkmann Senior Counsel Willett , Don From : Willett, Don Sent : Tuesday, April 23, 2002 4:53 PM To: '/DDV=H._ Christopher_ Bartolomucd@who.eop.gov /DDT= RFC822/0-=INETGW/P =GOV+DOJ/ A=TELEMAIL/C=US/'; Dinh, Viet; 'Anne_Womack@who .eo p.gov '; ' Brett_M._Kavanaugh@w ho.eop .go v' Cc: Goodling , Monica; Alex Dahl (E-mail); Manuel Miranda (E-mail) ; Benedi, Lizette D; O'Brien, Pat; Heather Wingate {E-mail) Subject : RE: John Roberts Very good info. to know, Bart. Thanks. I' ll pass the wo rd along to Hill folks , too. DRW -Original Message- From: /DDV=H._ Christopher _ Bartolomucci@who.eop.gov/DOT = RFC-822/O=IN ETGW/P =GOV+ DOJ/A=TELEMAIL/C=US/ [mailto:/DDV =H._Christopher _Barto lomucci@who.eop.gov/DDT =RFC-822/0=INETG W/P=GOV+OOJ/A=TELEMAIL/C=US/] Sent: Tuesday, April 23, 2002 4:33 PM To: Dinh, Viet; Willett, Don Anne_Womack@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: John Roberts FYI-- John won a Supreme Court case today that he argued on the side of environmentalists against a takings claim . The case involved Lake Tahoe-. and Sent from my Black8erry Wireless Handheld (www.BlackBerry.net) EXT-18-2091-C-000001 007104-000693 Documen t ID: 0.7.19343.7496 Willett , Don From : Willett, Don Sent : Tuesday, April 23, 2002 4:53 PM To: '/DDV=H._ Christopher_ Bartolomucd@who.eop.gov /DDT= RFC822/0-=INETGW/P =GOV+DOJ/ A=TELEMAIL/C=US/'; Dinh, Viet; 'Anne_Womack@who .eo p.gov '; ' Brett_M._Kavanaugh@w ho.eop .go v' Cc: Goodling , Monica; Alex Dahl (E-mail); Manuel Miranda (E-mail) ; Benedi, Lizette D; O'Brien, Pat; Heather Wingate {E-mail) Subject : RE: John Roberts Very good info. to know, Bart. Thanks. I' ll pass the wo rd along to Hill folks , too. DRW -Original Message- From: /DDV=H._ Christopher _ Bartolomucci@who.eop.gov/DOT = RFC-822/O=IN ETGW/P =GOV+ DOJ/A=TELEMAIL/C=US/ [mailto:/DDV =H._Christopher _Barto lomucci@who.eop.gov/DDT =RFC-822/0=INETG W/P=GOV+OOJ/A=TELEMAIL/C=US/] Sent: Tuesday, April 23, 2002 4:33 PM To: Dinh, Viet; Willett, Don Anne_Womack@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: John Roberts FYI-- John won a Supreme Court case today that he argued on the side of environmentalists against a takings claim . The case involved Lake Tahoe-. and Sent from my Black8erry Wireless Handheld (www.BlackBerry.net) EXT-18-2091-C-000001 007104-000693 Documen t ID: 0.7.19343.7496 Wille tt , Don From : Willett , Don Sent : Tuesday , July 9, 2002 7:12 PM To: Dinh., Viet; Chames , Adam; Keefer , Wendy J; Brett Kavanaug h (E-mail) Subje ct : FW: eth ics prof Attachments : RNLAAcademics fo r Judges, JCE comments.do c interest ing attachment below (one more to follow) - Original Message-From: Barbara Ledeen [mailto Sent : Tuesday , July 09, 2002 4:49 PM To: Willett, Don; manue l_miranda@jud iciary.senate.gov Subject: ethics prof The Nationa l Republican Lawyers Associat ion has sent out a ser ies of questions to eth ics profs around the country. Here are John Eastman' s answers. EXT-18-2091-C-000002 007104-000694 Document ID: 0.7.19343.7868 Wille tt , Don From : Willett , Don Sent : Tuesday , July 9, 2002 7:12 PM To: Dinh., Viet; Chames , Adam; Keefer , Wendy J; Brett Kavanaug h (E-mail) Subje ct : FW: eth ics prof Attachments : RNLAAcademics fo r Judges, JCE comments.do c interest ing attachment below (one more to follow) - Original Message-From: Barbara Ledeen [mailto Sent : Tuesday , July 09, 2002 4:49 PM To: Willett, Don; manue l_miranda@jud iciary.senate.gov Subject: ethics prof The Nationa l Republican Lawyers Associat ion has sent out a ser ies of questions to eth ics profs around the country. Here are John Eastman' s answers. EXT-18-2091-C-000002 007104-000694 Document ID: 0.7.19343.7868 Questions for Legal Academics Regarding the Confirmation of Judicial Nominees Comments below in italics by: Dr. John C. Eastman Associate Professor, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence One University Drive Orange, CA 92866 (714) 628-2587 jeastman@chapman.edu 1. Confirmation Standards a. Should the Senate's "advice and consent" power be used to reject nominees based upon their ideology? Background: Lloyd Cutler testified before the Senate Judiciary Committee that "[t]o make ideology an issue in the confirmation process is to suggest that the legal process is and should be political." Senator Schumer, however, has stated that nominees should be evaluated based upon their ideology to determine whether they are outside the mainstream. As I have noted in a forthcoming article on the judicial confirmation process, the only proper ground for using "ideology" as the basis for rejecting judicial nominees is when the nominee's ideology would prevent the nominee from following the law and complying with the judicial oath of office. A nominee who vows as a matter of ideology that he will follow his conscience rather than the law should be rejected because such a nominee is unwilling to fulfill the oath of office. But rejecting nominees precisely because their ideology demonstrates that they would follow the law rather than bend the law to their own will, is an improper use of the advice and consent function assigned to the Senate, and an unconstitutional intrusion on the President's nomination power. b. Are President Bush's judicial nominees owed the same degree of deference afforded to other presidents' judicial nominees? Background: Professor Bruce Ackerman has suggested that the Senate confirm no Bush judicial nominees because he believes that Bush v. Gore was wrongly decided. Senator Feinstein has suggested that, because the 2000 presidential election was so close, President Bush has no mandate to appoint judges who share his judicial philosophy. The Senate has confirmed 29% of President Bush's circuit court nominees in 2001 -2002. President Clinton was elected with 43% of the popular vote in 1992, and the Senate confirmed 86% of his circuit court nominees in 1993-1994. Similar arguments have been made and rejected at other points in our nation's history. When John Tyler became President after President Harrison died in office, for example, there was an extensive debate about whether he was merely a caretaker President or one who should be afforded all the powers of the office. The latter course was chosen, and the precedent set that anyone holding the office, whether gained after a 1 EXT-18-2091-C-000003 007104-000695 Document ID: 0.7.19343.7868-000001 Questions for Legal Academics Regarding the Confirmation of Judicial Nominees Comments below in italics by: Dr. John C. Eastman Associate Professor, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence One University Drive Orange, CA 92866 (714) 628-2587 jeastman@chapman.edu 1. Confirmation Standards a. Should the Senate's "advice and consent" power be used to reject nominees based upon their ideology? Background: Lloyd Cutler testified before the Senate Judiciary Committee that "[t]o make ideology an issue in the confirmation process is to suggest that the legal process is and should be political." Senator Schumer, however, has stated that nominees should be evaluated based upon their ideology to determine whether they are outside the mainstream. As I have noted in a forthcoming article on the judicial confirmation process, the only proper ground for using "ideology" as the basis for rejecting judicial nominees is when the nominee's ideology would prevent the nominee from following the law and complying with the judicial oath of office. A nominee who vows as a matter of ideology that he will follow his conscience rather than the law should be rejected because such a nominee is unwilling to fulfill the oath of office. But rejecting nominees precisely because their ideology demonstrates that they would follow the law rather than bend the law to their own will, is an improper use of the advice and consent function assigned to the Senate, and an unconstitutional intrusion on the President's nomination power. b. Are President Bush's judicial nominees owed the same degree of deference afforded to other presidents' judicial nominees? Background: Professor Bruce Ackerman has suggested that the Senate confirm no Bush judicial nominees because he believes that Bush v. Gore was wrongly decided. Senator Feinstein has suggested that, because the 2000 presidential election was so close, President Bush has no mandate to appoint judges who share his judicial philosophy. The Senate has confirmed 29% of President Bush's circuit court nominees in 2001 -2002. President Clinton was elected with 43% of the popular vote in 1992, and the Senate confirmed 86% of his circuit court nominees in 1993-1994. Similar arguments have been made and rejected at other points in our nation's history. When John Tyler became President after President Harrison died in office, for example, there was an extensive debate about whether he was merely a caretaker President or one who should be afforded all the powers of the office. The latter course was chosen, and the precedent set that anyone holding the office, whether gained after a 1 EXT-18-2091-C-000003 007104-000695 Document ID: 0.7.19343.7868-000001 close election (as with President Bush), a mere plurality (as with President Clinton, President Lincoln, etc.), or by succession (as with LBJ, and even Gerald Ford), is the President, and must be afforded the full measure of respect due the office, and is entitled to exercise the full range of powers assigned to him by the Constitution. c. Is it appropriate for a Senator to ask a judicial nominee how he would rule in a case? Background: During Judge D. Brooks Smith's confirmation hearing, Senator Schumer asked the nominee how he would have ruled in Griswold v. Connecticut, which was cited in Roe v. Wade as the central precedent for the right to privacy. There may well be a difference between asking how a Judge would have ruled in a particular historical case, and how a judge might rule in a case that is likely to come before him. The Griswold question crossed the line, because the real intent of the question is to ascertain how the judge will rule in cases that are likely to come before him. But this gets back to the "ideology" question. What Senator Schumer's question really was is as follows: "Would you be willing to bend the law to your will, as we here in the Senate would like it to be though don't have the votes to pass, or will you simply follow the Constitution as written?" Any judge who answers that question to the liking of Senator Schumer is unfit for office. 2. Attorney-Client Relationship a. Is it fair to assume that an attorney in the Solicitor General's office personally supports a law of Congress that he defends in court? Does he or she generally have the obligation to defend a law or regulation for which a reasonable defense can be mounted? Background: John Roberts is being opposed by certain groups in part because of legal arguments he made in Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic in court filings and hearing during his tenure as Deputy Solicitor General. Of course it is not fair, but we should not hide behind this procedural objection to what is really a substantive issue. The fact of the matter is that John Roberts was defending the position of the administration, and liberal Democrats in the Senate disagree with that administration's positions. Such a use ofideology is an improper ground for the Senate's advice and consent role. b. Is it fair to assume that a staff attorney at the Department of Justice personally supports the position of the Department in cases to which the attorney is assigned? Background: Judge Kuhl is being opposed by certain groups in part because of legal positions taken by the government in cases on which she worked during her tenure as an attorney at the Department of Justice, from minor research conducted as a new staff attorney assigned to a team that argued in favor of Bob Jones University's tax-exempt status to a brief she submitted as Deputy Assistant Attorney General in Planned Parenthood v. Heckler, supporting a Department of Health and Human Services regulation that was formulated with no input from Judge Kuhl. Same point as above. 2 EXT-18-2091-C-000004 007104-000696 Document ID: 0.7.19343.7868-000001 close election (as with President Bush), a mere plurality (as with President Clinton, President Lincoln, etc.), or by succession (as with LBJ, and even Gerald Ford), is the President, and must be afforded the full measure of respect due the office, and is entitled to exercise the full range of powers assigned to him by the Constitution. c. Is it appropriate for a Senator to ask a judicial nominee how he would rule in a case? Background: During Judge D. Brooks Smith's confirmation hearing, Senator Schumer asked the nominee how he would have ruled in Griswold v. Connecticut, which was cited in Roe v. Wade as the central precedent for the right to privacy. There may well be a difference between asking how a Judge would have ruled in a particular historical case, and how a judge might rule in a case that is likely to come before him. The Griswold question crossed the line, because the real intent of the question is to ascertain how the judge will rule in cases that are likely to come before him. But this gets back to the "ideology" question. What Senator Schumer's question really was is as follows: "Would you be willing to bend the law to your will, as we here in the Senate would like it to be though don't have the votes to pass, or will you simply follow the Constitution as written?" Any judge who answers that question to the liking of Senator Schumer is unfit for office. 2. Attorney-Client Relationship a. Is it fair to assume that an attorney in the Solicitor General's office personally supports a law of Congress that he defends in court? Does he or she generally have the obligation to defend a law or regulation for which a reasonable defense can be mounted? Background: John Roberts is being opposed by certain groups in part because of legal arguments he made in Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic in court filings and hearing during his tenure as Deputy Solicitor General. Of course it is not fair, but we should not hide behind this procedural objection to what is really a substantive issue. The fact of the matter is that John Roberts was defending the position of the administration, and liberal Democrats in the Senate disagree with that administration's positions. Such a use ofideology is an improper ground for the Senate's advice and consent role. b. Is it fair to assume that a staff attorney at the Department of Justice personally supports the position of the Department in cases to which the attorney is assigned? Background: Judge Kuhl is being opposed by certain groups in part because of legal positions taken by the government in cases on which she worked during her tenure as an attorney at the Department of Justice, from minor research conducted as a new staff attorney assigned to a team that argued in favor of Bob Jones University's tax-exempt status to a brief she submitted as Deputy Assistant Attorney General in Planned Parenthood v. Heckler, supporting a Department of Health and Human Services regulation that was formulated with no input from Judge Kuhl. Same point as above. 2 EXT-18-2091-C-000004 007104-000696 Document ID: 0.7.19343.7868-000001 c. Is it fair to assume that an attorney in private practice personally supports the alleged actions or political positions of his clients? Background: Several nominees are being opposed by certain groups in part because, on behalf of private clients, they made legal arguments that certain groups believe are illegitimate or even invidious. Judge Carolyn Kuhl, for example, is under attack for having submitted an amicus brief in Rust v. Sullivan on behalf of the American Academy of Medical Ethics. I doubt very much that Carolyn Kuhl would have submitted this amicus brief if she had not agreed with the positions being argued. Again, we should not be hiding behind procedural arguments, but face the substantive challenge head on. Judge Kuhl's position on abortion is a use of ideology that is improper for the Senate. d. Does a client whose political positions or alleged actions are unpopular have a right to legal representation by an attorney? If so, could opposition to judicial nominees who have assumed the legal representation of unpopular clients (or clients who take unpopular legal positions) undermine this right? Background: Jeffrey Sutton is being opposed by certain groups in part because he successfully argued several federalism cases on behalf of state clients, including University of Alabama v. Garrett (Americans with Disabilities Act), Kimel v. Florida (Age Discrimination in Employment), and US v. Morrison (Violence Against Women Act). Michael McConnell represented the Boy Scout of America in defending its policy of barring gay men from serving as scout leaders. Same points as above. 3. Judicial Vacancies a. Barring exceptional circumstances, are judicial nominees entitled to a timely congressional hearing? A committee vote? A floor vote? Background: Eight of President Bush's first eleven judicial nominees, nominated on May 9, 2001, have not yet received a congressional hearing. Nine of his first thirty-one circuit court nominees have been confirmed. Of course. Indeed, although the language of the recess appointments clause suggests that the President can only make recess appointments to fill vacancies that occur during a recess ofthe Senate, the Senate's utter refusal even to hold hearings on nominees would, I think, authorize the President's use ofthe recess appointment power. The clause also demonstrates that the Senate's advice and consent role is not discretionary; the Senate has to move on nominees, by a vote up or down, within a reasonable time or it is in derogation of its constitutional obligation. b. Are the Circuit Court judicial emergencies compromising the provision of justice? 3 EXT-18-2091-C-000005 007104-000697 Document ID: 0.7.19343.7868-000001 c. Is it fair to assume that an attorney in private practice personally supports the alleged actions or political positions of his clients? Background: Several nominees are being opposed by certain groups in part because, on behalf of private clients, they made legal arguments that certain groups believe are illegitimate or even invidious. Judge Carolyn Kuhl, for example, is under attack for having submitted an amicus brief in Rust v. Sullivan on behalf of the American Academy of Medical Ethics. I doubt very much that Carolyn Kuhl would have submitted this amicus brief if she had not agreed with the positions being argued. Again, we should not be hiding behind procedural arguments, but face the substantive challenge head on. Judge Kuhl's position on abortion is a use of ideology that is improper for the Senate. d. Does a client whose political positions or alleged actions are unpopular have a right to legal representation by an attorney? If so, could opposition to judicial nominees who have assumed the legal representation of unpopular clients (or clients who take unpopular legal positions) undermine this right? Background: Jeffrey Sutton is being opposed by certain groups in part because he successfully argued several federalism cases on behalf of state clients, including University of Alabama v. Garrett (Americans with Disabilities Act), Kimel v. Florida (Age Discrimination in Employment), and US v. Morrison (Violence Against Women Act). Michael McConnell represented the Boy Scout of America in defending its policy of barring gay men from serving as scout leaders. Same points as above. 3. Judicial Vacancies a. Barring exceptional circumstances, are judicial nominees entitled to a timely congressional hearing? A committee vote? A floor vote? Background: Eight of President Bush's first eleven judicial nominees, nominated on May 9, 2001, have not yet received a congressional hearing. Nine of his first thirty-one circuit court nominees have been confirmed. Of course. Indeed, although the language of the recess appointments clause suggests that the President can only make recess appointments to fill vacancies that occur during a recess ofthe Senate, the Senate's utter refusal even to hold hearings on nominees would, I think, authorize the President's use ofthe recess appointment power. The clause also demonstrates that the Senate's advice and consent role is not discretionary; the Senate has to move on nominees, by a vote up or down, within a reasonable time or it is in derogation of its constitutional obligation. b. Are the Circuit Court judicial emergencies compromising the provision of justice? 3 EXT-18-2091-C-000005 007104-000697 Document ID: 0.7.19343.7868-000001 Background: In total, there are eighty-six federal judicial vacancies, thirty-five of which have been designated as judicial emergencies by the Judicial Conference. On the Sixth Circuit, eight of the sixteen seats are vacant. Ofcourse. The old adage, "justice delayed is justice denied," is becoming more and more relevant here. The simple fact is that the federal courts are understaffed as it is, given the huge increase (and probably unconstitutional) expansion of federal criminal law. Having courts operate at half capacity, as is the case with the 8th Circuit, simply means that cases can not be decided in a timely fashion, or given the full measure of consideration that they are due. 4 EXT-18-2091-C-000006 007104-000698 Document ID: 0.7.19343.7868-000001 Background: In total, there are eighty-six federal judicial vacancies, thirty-five of which have been designated as judicial emergencies by the Judicial Conference. On the Sixth Circuit, eight of the sixteen seats are vacant. Ofcourse. The old adage, "justice delayed is justice denied," is becoming more and more relevant here. The simple fact is that the federal courts are understaffed as it is, given the huge increase (and probably unconstitutional) expansion of federal criminal law. Having courts operate at half capacity, as is the case with the 8th Circuit, simply means that cases can not be decided in a timely fashion, or given the full measure of consideration that they are due. 4 EXT-18-2091-C-000006 007104-000698 Document ID: 0.7.19343.7868-000001 Willett , Don From : Willett , Don Sent : Tuesday , July 9, 2002 7:13 PM To: Dinh., Viet; Chames , Adam; Keefe r, Wendy J; Brett Kavana ugh (E-mail) Subject : FW: eth ics prof 2 Attachments : Elhauge answers to confirmation quest ions. doc; Policy Review Article Final.pdf be low's #2 ... - Original Message-From: Barbara Ledeen [mailto: Sent : Tuesday , July 09, 2002 4:49 PM To: Willett, Don; manue l_miranda@jud iciary.senate.gov Subject: ethics prof 2 Here are Prof Elhauge 's answe rs . EXT-18-2091-C-000007 007104-000699 Documen t ID: 0.7.19343 .7869 Willett , Don From : Willett , Don Sent : Tuesday , July 9, 2002 7:13 PM To: Dinh., Viet; Chames , Adam; Keefe r, Wendy J; Brett Kavana ugh (E-mail) Subject : FW: eth ics prof 2 Attachments : Elhauge answers to confirmation quest ions. doc; Policy Review Article Final.pdf be low's #2 ... - Original Message-From: Barbara Ledeen [mailto: Sent : Tuesday , July 09, 2002 4:49 PM To: Willett, Don; manue l_miranda@jud iciary.senate.gov Subject: ethics prof 2 Here are Prof Elhauge 's answe rs . EXT-18-2091-C-000007 007104-000699 Documen t ID: 0.7.19343 .7869 Questions for Legal Academics Regarding the Confirmation of Judicial Nominees ANSWERS OF PROFESSOR ELHAUGE HARVARD LAW SCHOOL 1. Confirmation Standards a. Should the Senate's "advice and consent" power be used to reject nominees based upon their ideology? Background: Lloyd Cutler testified before the Senate Judiciary Committee that "[t]o make ideology an issue in the confirmation process is to suggest that the legal process is and should be political." Senator Schumer, however, has stated that nominees should be evaluated based upon their ideology to determine whether they are outside the mainstream. Answer: In a democracy, citizens are entitled to have ideological differences, and the proper role of judges should not be to pick ideological sides but rather to serve as neutral arbiters applying pre-existing law. Judges should thus be chosen for their willingness to put aside their own ideological preferences when interpreting the law, not based on whether they have the correct ideological views. In particular, judges should not be chosen for their willingness to impose what might in 2002 be deemed mainstream national views because that would restrict the fundamental democratic right of localities and future national polities to make different ideological choices within constitutional bounds. Such ideological judicial lawmaking would also make the adjudication of cases turn on the happenstance of the year when the judge was appointed. b. Are President Bush's judicial nominees owed the same degree other presidents' judicial nominees? of deference afforded to Background: Professor Bruce Ackerman has suggested that the Senate confirm no Bush judicial nominees because he believes that Bush v. Gore was wrongly decided. Senator Feinstein has suggested that, because the 2000 presidential election was so close, President Bush has no mandate to appoint judges who share his judicial philosophy. The Senate has confirmed 29% of President Bush's circuit court nominees in 2001 -2002. President Clinton was elected with 43% of the popular vote in 1992, and the Senate confirmed 86% of his circuit court nominees in 1993-1994. 1 EXT-18-2091-C-000008 007104-000700 Document ID: 0.7.19343.7869-000001 Questions for Legal Academics Regarding the Confirmation of Judicial Nominees ANSWERS OF PROFESSOR ELHAUGE HARVARD LAW SCHOOL 1. Confirmation Standards a. Should the Senate's "advice and consent" power be used to reject nominees based upon their ideology? Background: Lloyd Cutler testified before the Senate Judiciary Committee that "[t]o make ideology an issue in the confirmation process is to suggest that the legal process is and should be political." Senator Schumer, however, has stated that nominees should be evaluated based upon their ideology to determine whether they are outside the mainstream. Answer: In a democracy, citizens are entitled to have ideological differences, and the proper role of judges should not be to pick ideological sides but rather to serve as neutral arbiters applying pre-existing law. Judges should thus be chosen for their willingness to put aside their own ideological preferences when interpreting the law, not based on whether they have the correct ideological views. In particular, judges should not be chosen for their willingness to impose what might in 2002 be deemed mainstream national views because that would restrict the fundamental democratic right of localities and future national polities to make different ideological choices within constitutional bounds. Such ideological judicial lawmaking would also make the adjudication of cases turn on the happenstance of the year when the judge was appointed. b. Are President Bush's judicial nominees owed the same degree other presidents' judicial nominees? of deference afforded to Background: Professor Bruce Ackerman has suggested that the Senate confirm no Bush judicial nominees because he believes that Bush v. Gore was wrongly decided. Senator Feinstein has suggested that, because the 2000 presidential election was so close, President Bush has no mandate to appoint judges who share his judicial philosophy. The Senate has confirmed 29% of President Bush's circuit court nominees in 2001 -2002. President Clinton was elected with 43% of the popular vote in 1992, and the Senate confirmed 86% of his circuit court nominees in 1993-1994. 1 EXT-18-2091-C-000008 007104-000700 Document ID: 0.7.19343.7869-000001 Answer: I could not disagree more with Professor Ackerman. First of all, Bush v. Gore was correctly decided and should be applied evenhandedly to all future elections. See Elhauge, The Lessons of Florida 2000, 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002). A contrary ruling would have sustained a electoral system of standardless discretion permitting ballot counters to engage in undetectable discrimination based on the political viewpoint of the voter and candidate, contrary to past decisions. It would also have countenanced unwarranted decisions by the Florida Supreme Court that changed the election rules after election day in a way that benefited one candidate. If the position of Gore and Bush had been reversed, the holding should and would have been the same, only for Gore. Second, even if one disagrees with the Court decision in Bush v. Gore, I think it must be respected as the law of the land. Had the actual decision gone for Gore, I think it would have been mistaken, but that would have provided no reason not to confirm Gore nominees. The U.S. Supreme Court had a difficult task in a closely divided election; it would set a dangerous precedent contrary to the rule of law for the losing side to try to intimidate judicial decisionmaking in such cases by punishing the judicial system with fewer appointments when it rules for the other side. Third, even if one both wrongly disagree with Bush v. Gore and thought it was appropriate to punish the U.S. Supreme Court majority for it, denying confirmation to nominees does not accomplish that goal. It punishes nominees innocent of any involvement with that decision and the litigants who will face a crowded judicial docket because of the paucity of judges. I also do not believe the closeness of an election should influence confirmation rates. Whether the Senate confirms nominees should turn only on the Senate's view of their fitness for office. I do not believe this necessarily requires deference to the views of the President or a particular confirmation rate. For example, the Senate should not defer if a President decides to nominate judges who will impose his normative views through 2 EXT-18-2091-C-000009 007104-000701 Document ID: 0.7.19343.7869-000001 Answer: I could not disagree more with Professor Ackerman. First of all, Bush v. Gore was correctly decided and should be applied evenhandedly to all future elections. See Elhauge, The Lessons of Florida 2000, 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002). A contrary ruling would have sustained a electoral system of standardless discretion permitting ballot counters to engage in undetectable discrimination based on the political viewpoint of the voter and candidate, contrary to past decisions. It would also have countenanced unwarranted decisions by the Florida Supreme Court that changed the election rules after election day in a way that benefited one candidate. If the position of Gore and Bush had been reversed, the holding should and would have been the same, only for Gore. Second, even if one disagrees with the Court decision in Bush v. Gore, I think it must be respected as the law of the land. Had the actual decision gone for Gore, I think it would have been mistaken, but that would have provided no reason not to confirm Gore nominees. The U.S. Supreme Court had a difficult task in a closely divided election; it would set a dangerous precedent contrary to the rule of law for the losing side to try to intimidate judicial decisionmaking in such cases by punishing the judicial system with fewer appointments when it rules for the other side. Third, even if one both wrongly disagree with Bush v. Gore and thought it was appropriate to punish the U.S. Supreme Court majority for it, denying confirmation to nominees does not accomplish that goal. It punishes nominees innocent of any involvement with that decision and the litigants who will face a crowded judicial docket because of the paucity of judges. I also do not believe the closeness of an election should influence confirmation rates. Whether the Senate confirms nominees should turn only on the Senate's view of their fitness for office. I do not believe this necessarily requires deference to the views of the President or a particular confirmation rate. For example, the Senate should not defer if a President decides to nominate judges who will impose his normative views through 2 EXT-18-2091-C-000009 007104-000701 Document ID: 0.7.19343.7869-000001 legal decisions. If a President were making those sort of nominations, he would deserve a lower confirmation rate. But I do think that nominees are entitled to a vote one way or the other on the merits. And I also believe that the vote should not be based on political payback for perceived wrongs done by others or on ill-feelings about losing a close election. Nor should the vote be based on a candidate's ideological views unless they evidence a willingness to allow those views to influence their judicial decisionmaking. c. Is it appropriate for a Senator to ask a judicial nominee how he would rule in a case? Background: During Judge D. Brooks Smith's confirmation hearing, Senator Schumer asked the nominee how he would have ruled in Griswold v. Connecticut, which was cited in Roe v. Wade as the central precedent for the right to privacy. Answer: I think this is a matter of Senate norms since the Constitution's requirement of advise and consent does not itself limit the topics of Senatorial inquiry. My understanding is that in the past questions about how the judge would rule on particular cases have been considered improper. I also think it is less relevant to know what a lower court judge thinks about Supreme Court precedent than to know whether the judge is willing to abide by binding higher court precedent rather than impose their own normative views. But it does seem to me appropriate to ask how the nominee would go about deciding such questions, and in particular whether they would be guided by their own normative views or weighing of the social interests rather than obeying binding precedent or following more neutral principles of law. 2. Attorney-Client Relationship a. Is it fair to assume that an attorney in the Solicitor General's office personally supports a law of Congress that he defends in court? Does he or she generally have the obligation to defend a law or regulation for which a reasonable defense can be mounted? Background: John Roberts is being opposed by certain groups in part because of legal arguments he made in Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic in court filings and hearing during his tenure as Deputy Solicitor General. 3 EXT-18-2091-C-000010 007104-000702 Document ID: 0.7.19343.7869-000001 legal decisions. If a President were making those sort of nominations, he would deserve a lower confirmation rate. But I do think that nominees are entitled to a vote one way or the other on the merits. And I also believe that the vote should not be based on political payback for perceived wrongs done by others or on ill-feelings about losing a close election. Nor should the vote be based on a candidate's ideological views unless they evidence a willingness to allow those views to influence their judicial decisionmaking. c. Is it appropriate for a Senator to ask a judicial nominee how he would rule in a case? Background: During Judge D. Brooks Smith's confirmation hearing, Senator Schumer asked the nominee how he would have ruled in Griswold v. Connecticut, which was cited in Roe v. Wade as the central precedent for the right to privacy. Answer: I think this is a matter of Senate norms since the Constitution's requirement of advise and consent does not itself limit the topics of Senatorial inquiry. My understanding is that in the past questions about how the judge would rule on particular cases have been considered improper. I also think it is less relevant to know what a lower court judge thinks about Supreme Court precedent than to know whether the judge is willing to abide by binding higher court precedent rather than impose their own normative views. But it does seem to me appropriate to ask how the nominee would go about deciding such questions, and in particular whether they would be guided by their own normative views or weighing of the social interests rather than obeying binding precedent or following more neutral principles of law. 2. Attorney-Client Relationship a. Is it fair to assume that an attorney in the Solicitor General's office personally supports a law of Congress that he defends in court? Does he or she generally have the obligation to defend a law or regulation for which a reasonable defense can be mounted? Background: John Roberts is being opposed by certain groups in part because of legal arguments he made in Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic in court filings and hearing during his tenure as Deputy Solicitor General. 3 EXT-18-2091-C-000010 007104-000702 Document ID: 0.7.19343.7869-000001 Answer: No, it is not fair to make that assumption. In addition to the Solicitor General' s generally understood duty to defend Acts of Congress or important federal regulations when a reasonable defense is available, a subordinate attorney in that office must follow the directions of the Solicitor General unless the argument is so devoid of merit as to violate professional ethics. b. Is it fair to assume that a staff attorney at the Department of Justice personally supports the position of the Department in cases to which the attorney is assigned? Background: Judge Kuhl is being opposed by certain groups in part because of legal positions taken by the government in cases on which she worked during her tenure as an attorney at the Department of Justice, from minor research conducted as a new staff attorney assigned to a team that argued in favor of Bob Jones University's tax-exempt status to a brief she submitted as Deputy Assistant Attorney General in Planned Parenthood v. Heckler, supporting a Department of Health and Human Services regulation that was formulated with no input from Judge Kuhl. . Answer: No it is not fair to make that assumption for similar reasons. c. Is it fair to assume that an attorney in private practice personally supports the alleged actions or political positions of his clients? Background: Several nominees are being opposed by certain groups in part because, on behalf of private clients, they made legal arguments that certain groups believe are illegitimate or even invidious. Judge Carolyn Kuhl, for example, is under attack for having submitted an amicus brief in Rust v. Sullivan on behalf of the American Academy of Medical Ethics. Answer: No, not at all. One of the proud tradition of lawyers is defending the rights of even those with whom one disagrees. d. Does a client whose political positions or alleged actions are unpopular have a right to legal representation by an attorney? If so, could opposition to judicial nominees who have assumed the legal representation of unpopular clients (or clients who take unpopular legal positions) undermine this right? Background: Jeffrey Sutton is being opposed by certain groups in part because he successfully argued several federalism cases on behalf of state clients, including University of Alabama v. Garrett (Americans with Disabilities Act), Kimel v. Florida (Age Discrimination in Employment), and US v. Morrison (Violence Against Women Act). Michael McConnell represented the Boy Scout of America in defending its policy of barring gay men from serving as scout leaders. 4 EXT-18-2091-C-000011 007104-000703 Document ID: 0.7.19343.7869-000001 Answer: No, it is not fair to make that assumption. In addition to the Solicitor General' s generally understood duty to defend Acts of Congress or important federal regulations when a reasonable defense is available, a subordinate attorney in that office must follow the directions of the Solicitor General unless the argument is so devoid of merit as to violate professional ethics. b. Is it fair to assume that a staff attorney at the Department of Justice personally supports the position of the Department in cases to which the attorney is assigned? Background: Judge Kuhl is being opposed by certain groups in part because of legal positions taken by the government in cases on which she worked during her tenure as an attorney at the Department of Justice, from minor research conducted as a new staff attorney assigned to a team that argued in favor of Bob Jones University's tax-exempt status to a brief she submitted as Deputy Assistant Attorney General in Planned Parenthood v. Heckler, supporting a Department of Health and Human Services regulation that was formulated with no input from Judge Kuhl. . Answer: No it is not fair to make that assumption for similar reasons. c. Is it fair to assume that an attorney in private practice personally supports the alleged actions or political positions of his clients? Background: Several nominees are being opposed by certain groups in part because, on behalf of private clients, they made legal arguments that certain groups believe are illegitimate or even invidious. Judge Carolyn Kuhl, for example, is under attack for having submitted an amicus brief in Rust v. Sullivan on behalf of the American Academy of Medical Ethics. Answer: No, not at all. One of the proud tradition of lawyers is defending the rights of even those with whom one disagrees. d. Does a client whose political positions or alleged actions are unpopular have a right to legal representation by an attorney? If so, could opposition to judicial nominees who have assumed the legal representation of unpopular clients (or clients who take unpopular legal positions) undermine this right? Background: Jeffrey Sutton is being opposed by certain groups in part because he successfully argued several federalism cases on behalf of state clients, including University of Alabama v. Garrett (Americans with Disabilities Act), Kimel v. Florida (Age Discrimination in Employment), and US v. Morrison (Violence Against Women Act). Michael McConnell represented the Boy Scout of America in defending its policy of barring gay men from serving as scout leaders. 4 EXT-18-2091-C-000011 007104-000703 Document ID: 0.7.19343.7869-000001 Answer: Yes. Absolutely, this is a real concern. If lawyers who represented unpopular clients rendered themselves ineligible for the judiciary, it would be hard for unpopular clients to get representation. 3. Judicial Vacancies a. Barring exceptional circumstances, are judicial nominees congressional hearing? A committee vote? A floor vote? entitled to a timely Background: Eight of President Bush's first eleven judicial nominees, nominated on May 9, 2001, have not yet received a congressional hearing. Nine of his first thirty-one circuit court nominees have been confirmed. Answer: Yes on all counts. If the Senate has objections to a candidate, those should be articulated and voted on. I cannot think of any legitimate reason for rejecting a nominee by stalling rather than by taking an open vote. b. Are the Circuit Court judicial emergencies compromising the provision of justice? Background: In total, there are eighty-six federal judicial vacancies, thirty-five of which have been designated as judicial emergencies by the Judicial Conference. On the Sixth Circuit, eight of the sixteen seats are vacant. Answer: I have not investigated this question enough to determine whether the provision of justice has actually be compromised. But the judiciary does seem quite understaffed. 5 EXT-18-2091-C-000012 007104-000704 Document ID: 0.7.19343.7869-000001 Answer: Yes. Absolutely, this is a real concern. If lawyers who represented unpopular clients rendered themselves ineligible for the judiciary, it would be hard for unpopular clients to get representation. 3. Judicial Vacancies a. Barring exceptional circumstances, are judicial nominees congressional hearing? A committee vote? A floor vote? entitled to a timely Background: Eight of President Bush's first eleven judicial nominees, nominated on May 9, 2001, have not yet received a congressional hearing. Nine of his first thirty-one circuit court nominees have been confirmed. Answer: Yes on all counts. If the Senate has objections to a candidate, those should be articulated and voted on. I cannot think of any legitimate reason for rejecting a nominee by stalling rather than by taking an open vote. b. Are the Circuit Court judicial emergencies compromising the provision of justice? Background: In total, there are eighty-six federal judicial vacancies, thirty-five of which have been designated as judicial emergencies by the Judicial Conference. On the Sixth Circuit, eight of the sixteen seats are vacant. Answer: I have not investigated this question enough to determine whether the provision of justice has actually be compromised. But the judiciary does seem quite understaffed. 5 EXT-18-2091-C-000012 007104-000704 Document ID: 0.7.19343.7869-000001 THE LESSONS OF FLORIDA 2000 By Einer Elhauge* It has now been a year since the U.S. Supreme Court cut off the manual recount in the Bush-Gore election. In the heat of the battle, it seemed few could dissociate who they thought should win from how they thought the disputed issues could be resolved. Perhaps for many this is still true. But for the rest of us, the events of last year may have acquired a sufficient distance, lengthened by the intervening shock of September 11, to allow us to put down our partisan positions and ask ourselves how we would want these issues resolved in the future. If we learned anything from this election, it was that resolving election issues in midstream, after we know which candidate will benefit from any given resolution, is a recipe for disaster. Right now, while we are still behind the veil of ignorance and do not know which candidate will benefit, we need to resolve as many open issues as we can. Some of the issues will be familiar, since they arose in the actual dispute. But they have been greatly misunderstood, both because the rapid pace of developments did not allow for sufficient explication and because insufficient attention was paid to how the candidates would want the issue resolved if their positions were reversed in the next election. Other issues will be unfamiliar, for they are the issues that would have arisen had the Supreme Court not called a halt, and may well arise the next time around. And if anything was clear to me as I nervously anticipated those issues at the time in my role as counsel to the Florida House, it was that the issues barreling down the track would have been even more explosive and bitterly contested than the ones we all argued about a year ago.1 * Einer Elhauge is a Harvard Law Professor and represented the Florida House of Representatives during the 2000 election dispute. The views expressed here are his own and are not intended to represent the views ofeither institution. 1 In developing these points, I am grateful for comments on an earlier draft of this article from Randy Barnett, Richard Epstein, Richard Fallon, Barry Friedman, Mike Klarman, Nelson Lund, Dan Meltzer, Frank Michelman, Rick Pildes, and Eric Rasmussen. 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000013 007104-000705 Document ID: 0.7.19343.7869-000002 THE LESSONS OF FLORIDA 2000 By Einer Elhauge* It has now been a year since the U.S. Supreme Court cut off the manual recount in the Bush-Gore election. In the heat of the battle, it seemed few could dissociate who they thought should win from how they thought the disputed issues could be resolved. Perhaps for many this is still true. But for the rest of us, the events of last year may have acquired a sufficient distance, lengthened by the intervening shock of September 11, to allow us to put down our partisan positions and ask ourselves how we would want these issues resolved in the future. If we learned anything from this election, it was that resolving election issues in midstream, after we know which candidate will benefit from any given resolution, is a recipe for disaster. Right now, while we are still behind the veil of ignorance and do not know which candidate will benefit, we need to resolve as many open issues as we can. Some of the issues will be familiar, since they arose in the actual dispute. But they have been greatly misunderstood, both because the rapid pace of developments did not allow for sufficient explication and because insufficient attention was paid to how the candidates would want the issue resolved if their positions were reversed in the next election. Other issues will be unfamiliar, for they are the issues that would have arisen had the Supreme Court not called a halt, and may well arise the next time around. And if anything was clear to me as I nervously anticipated those issues at the time in my role as counsel to the Florida House, it was that the issues barreling down the track would have been even more explosive and bitterly contested than the ones we all argued about a year ago.1 * Einer Elhauge is a Harvard Law Professor and represented the Florida House of Representatives during the 2000 election dispute. The views expressed here are his own and are not intended to represent the views ofeither institution. 1 In developing these points, I am grateful for comments on an earlier draft of this article from Randy Barnett, Richard Epstein, Richard Fallon, Barry Friedman, Mike Klarman, Nelson Lund, Dan Meltzer, Frank Michelman, Rick Pildes, and Eric Rasmussen. 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000013 007104-000705 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Lesson I. Better voting machines. Let's begin with the seemingly most obvious lesson: We need better voting machines. But now the nonobvious point: The problem was not, as conventional wisdom thought at the time, with punch card technology. The exhaustive media recounts have confirmed that punch card and optical-scan ballots actually resulted in similar rates of spoilage, defined as the total of undervotes and overvotes. (An undervote is a ballot that registers no vote for a candidate, while an overvote is a ballot invalidated by votes for multiple candidates.) How can that be? Didn't we all at the time hear statistics that seemed to confirm the superiority of optical scanners? Well, not quite, for two reasons. First, although the focus at the time was on the undervotes that Gore and the Florida Supreme Court wanted recounted, it turns out that there were twice as many overvotes, and they were a bigger problem on the optical-scan ballots. Second, and more important, the counties in which optical-scan ballots seemed to be delivering better results were actually only those counties that counted ballots at the precinct level. Under these systems, the ballot result is registered or rejected by the machine when the voter turns in the ballot. Such a precinct counting machine provides voters with timely feedback that allows them to correct any errors in their ballots. But when punch card ballots were also machine counted at the precinct level, they had a similarly lower rate of spoilage. When either optical-scan or punch card ballots are machine counted at a centralized county location removed from the precinct and the voter, the rate of spoilage is higher, but similar for both types of ballots. The implication is that what really would constitute "better" voting machines are not machines better at counting, but machines that are better at correcting voter errors. This is not at all to trivialize the concern. No matter how smart we may think we are, we all push the wrong elevator button from time to time. Machines that would help us avoid these inevitable errors in voting are important and useful. But correctly understanding the issue should put to rest the misguided bugaboo that certain counting machines were disenfranchising voters. The actual problem is that locating the counting machines too far from the voters disables those machines from helping to prevent voters from disenfranchising themselves. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000014 007104-000706 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Lesson I. Better voting machines. Let's begin with the seemingly most obvious lesson: We need better voting machines. But now the nonobvious point: The problem was not, as conventional wisdom thought at the time, with punch card technology. The exhaustive media recounts have confirmed that punch card and optical-scan ballots actually resulted in similar rates of spoilage, defined as the total of undervotes and overvotes. (An undervote is a ballot that registers no vote for a candidate, while an overvote is a ballot invalidated by votes for multiple candidates.) How can that be? Didn't we all at the time hear statistics that seemed to confirm the superiority of optical scanners? Well, not quite, for two reasons. First, although the focus at the time was on the undervotes that Gore and the Florida Supreme Court wanted recounted, it turns out that there were twice as many overvotes, and they were a bigger problem on the optical-scan ballots. Second, and more important, the counties in which optical-scan ballots seemed to be delivering better results were actually only those counties that counted ballots at the precinct level. Under these systems, the ballot result is registered or rejected by the machine when the voter turns in the ballot. Such a precinct counting machine provides voters with timely feedback that allows them to correct any errors in their ballots. But when punch card ballots were also machine counted at the precinct level, they had a similarly lower rate of spoilage. When either optical-scan or punch card ballots are machine counted at a centralized county location removed from the precinct and the voter, the rate of spoilage is higher, but similar for both types of ballots. The implication is that what really would constitute "better" voting machines are not machines better at counting, but machines that are better at correcting voter errors. This is not at all to trivialize the concern. No matter how smart we may think we are, we all push the wrong elevator button from time to time. Machines that would help us avoid these inevitable errors in voting are important and useful. But correctly understanding the issue should put to rest the misguided bugaboo that certain counting machines were disenfranchising voters. The actual problem is that locating the counting machines too far from the voters disables those machines from helping to prevent voters from disenfranchising themselves. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000014 007104-000706 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Should we care about this problem? Some argue that the word "spoilage" seems inapt because sometimes voters intentionally don't vote for any candidate for a particular office because they don't like any of them, or vote for multiple candidates because they regard the choice as too close. We thus cannot assume that under- or overvotes fail to accurately reflect the voter's intent. Perhaps we should make "none of the above" an explicit ballot option. Still, when some voting setups regularly produce many more under- and overvotes than others, the difference is likely due to unintentional errors. So it makes sense to create machine setups to give voters the feedback that helps them minimize those errors. We should do so not only for the sake of those of us who make such errors, but because the more precise the ballot answers we can get from voters, the less likely we all will suffer through bitter controversies about how to interpret the ambiguities they leave behind. Should we instead be worried about a different problem: the distribution of machines of supposedly poor quality? Many were concerned by the evidence in Florida that a greater proportion of minority voters had spoiled ballots, producing the suspicion that they were saddled with worse machines. But the recount undertaken by the National Opinion Research Center on behalf of a consortium of media outlets indicates the higher minority spoilage rate was true regardless of machine type, and that the distribution of each machine type was similar for black and white areas. Nor can one assume that, because most minority voters are Democrats, any disparity hurt or was targeted at Gore. A study by John Lott reports black Republican voters were an astonishing 50 to 66 times more likely than the average black to have a spoiled ballot, and that black Democratic voters actually had a slightly lower spoilage rate than the average voter. His findings also seem inconsistent with any conspiracy by white or Republican election supervisors, since the rate of spoiled ballots was 14 percent to 31 percent higher in precincts with black or Democratic election supervisors. The overall rate of spoiled ballots was also higher for white Republican voters than white Democratic voters. In any event, the lesson for the future should be to have the best machines possible in every county those that provide immediate feedback. That decision can either be made at the state level (as Florida has now done) or by the counties, which should have ample 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000015 007104-000707 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Should we care about this problem? Some argue that the word "spoilage" seems inapt because sometimes voters intentionally don't vote for any candidate for a particular office because they don't like any of them, or vote for multiple candidates because they regard the choice as too close. We thus cannot assume that under- or overvotes fail to accurately reflect the voter's intent. Perhaps we should make "none of the above" an explicit ballot option. Still, when some voting setups regularly produce many more under- and overvotes than others, the difference is likely due to unintentional errors. So it makes sense to create machine setups to give voters the feedback that helps them minimize those errors. We should do so not only for the sake of those of us who make such errors, but because the more precise the ballot answers we can get from voters, the less likely we all will suffer through bitter controversies about how to interpret the ambiguities they leave behind. Should we instead be worried about a different problem: the distribution of machines of supposedly poor quality? Many were concerned by the evidence in Florida that a greater proportion of minority voters had spoiled ballots, producing the suspicion that they were saddled with worse machines. But the recount undertaken by the National Opinion Research Center on behalf of a consortium of media outlets indicates the higher minority spoilage rate was true regardless of machine type, and that the distribution of each machine type was similar for black and white areas. Nor can one assume that, because most minority voters are Democrats, any disparity hurt or was targeted at Gore. A study by John Lott reports black Republican voters were an astonishing 50 to 66 times more likely than the average black to have a spoiled ballot, and that black Democratic voters actually had a slightly lower spoilage rate than the average voter. His findings also seem inconsistent with any conspiracy by white or Republican election supervisors, since the rate of spoiled ballots was 14 percent to 31 percent higher in precincts with black or Democratic election supervisors. The overall rate of spoiled ballots was also higher for white Republican voters than white Democratic voters. In any event, the lesson for the future should be to have the best machines possible in every county those that provide immediate feedback. That decision can either be made at the state level (as Florida has now done) or by the counties, which should have ample 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000015 007104-000707 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 incentive to pick the best machines for themselves since to do otherwise would merely reduce their own electoral clout. Lesson II. Manual recounts should be limited to cases of machine malfunction. Having deployed machines to help reduce human-created ambiguity in the act of voting, it also makes sense to deploy them to reduce such ambiguity in the counting. Manual recounts require problematic subjective interpretations of ambiguous marks left by voters, and the counters have their own political preferences that (consciously or not) are likely to bias their counting. The nearly year-long media recount completed in November confirms the problem. This was a highly professional recount, conducted under standards applied uniformly within each county by counters who were screened for political bias. Even so, counters frequently disagreed in their ballot interpretations. Although counters agreed on 96 percent of punch card ballots, that 4 percent error rate greatly exceeded the 0.001 percent margin in the Florida presidential election. Thinking that human recounts with that sort of variation can check the accuracy of a machine count is rather like trying to recheck a machine's measurement of electron width using the human eye and a yardstick. Moreover, this 96 percent figure is misleading because it includes agreements on ballots where there was no marking to dispute. On ballots where at least one counter saw a potential vote for Bush or Gore, the counters disagreed 34 percent of the time, 37 percent for punch card ballots. Most worrisome, even with elaborate efforts to screen for political bias, the political affiliation of the counters affected the results. Republican counters were 4 percent more likely than Democratic counters to deny a mark was for Gore. Even more striking, Democratic counters were 25 percent more likely to deny a mark was for Bush. None of this should be taken as criticism of the National Opinion Research Center, a highly respected nonpartisan outfit that made scrupulous efforts to check for political bias. Nor does it necessarily reflect badly on the counters, whose bias might well be unconscious. Rather, the problem is endemic to using humans to count ballots. Indeed, the lesson is quite the contrary. If this is the sort of accuracy and bias one gets from an unhurried, professional nonpartisan organization whose counters were screened for bias and bound to the same standard, imagine the sort of inaccuracy and bias that 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000016 007104-000708 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 incentive to pick the best machines for themselves since to do otherwise would merely reduce their own electoral clout. Lesson II. Manual recounts should be limited to cases of machine malfunction. Having deployed machines to help reduce human-created ambiguity in the act of voting, it also makes sense to deploy them to reduce such ambiguity in the counting. Manual recounts require problematic subjective interpretations of ambiguous marks left by voters, and the counters have their own political preferences that (consciously or not) are likely to bias their counting. The nearly year-long media recount completed in November confirms the problem. This was a highly professional recount, conducted under standards applied uniformly within each county by counters who were screened for political bias. Even so, counters frequently disagreed in their ballot interpretations. Although counters agreed on 96 percent of punch card ballots, that 4 percent error rate greatly exceeded the 0.001 percent margin in the Florida presidential election. Thinking that human recounts with that sort of variation can check the accuracy of a machine count is rather like trying to recheck a machine's measurement of electron width using the human eye and a yardstick. Moreover, this 96 percent figure is misleading because it includes agreements on ballots where there was no marking to dispute. On ballots where at least one counter saw a potential vote for Bush or Gore, the counters disagreed 34 percent of the time, 37 percent for punch card ballots. Most worrisome, even with elaborate efforts to screen for political bias, the political affiliation of the counters affected the results. Republican counters were 4 percent more likely than Democratic counters to deny a mark was for Gore. Even more striking, Democratic counters were 25 percent more likely to deny a mark was for Bush. None of this should be taken as criticism of the National Opinion Research Center, a highly respected nonpartisan outfit that made scrupulous efforts to check for political bias. Nor does it necessarily reflect badly on the counters, whose bias might well be unconscious. Rather, the problem is endemic to using humans to count ballots. Indeed, the lesson is quite the contrary. If this is the sort of accuracy and bias one gets from an unhurried, professional nonpartisan organization whose counters were screened for bias and bound to the same standard, imagine the sort of inaccuracy and bias that 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000016 007104-000708 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 would result from a partisan set of counters, rushing to complete a recount quickly, and free to vary their standards. But don't machines have their own inaccuracies, failing to register votes when chads are punched out but hanging on by a cardboard thread, or when some misguided voter both fills in the box for a candidate and also casts a write-in vote for the same candidate? Sure. But in analyzing the issue we must be sensitive to relative inaccuracies. A human recount that is 4 percent inaccurate cannot improve upon a machine count that is 1 percent inaccurate. More important, even if the error rates are equal or even higher for machines, the machines are far less likely to alter the result. Even if machines failed to detect votes at an enormous rate, like 10 percent, that will rarely alter the result because machines make any errors randomly, and thus should undercount a proportional share of each candidate's votes. A much smaller error rate that is biased toward one candidate can, on the other hand, produce a significant net change and thus alter the result. Moreover, manual recounts not only raise problems of misinterpretation and bias, but also are more likely to produce simple math errors, may alter ballots through handling, or even involve conscious mischief or fraud. So whether my candidate is ahead or behind in the next election, I would still conclude manual recounts should be allowed only when there is some machine malfunction that gives us reason to think the machines are far less accurate than normal. And while we all don't know whose ox will be gored, we should adopt that lesson for the future. After all, machine counting was introduced in this country not just for speed and cost, but to reduce the fraud and other human error that used to routinely attend ballot counting. Under a regime of manual counting, as Stalin said, "The people who vote decide nothing; the people who count the vote decide everything." There is no reason to subject ourselves to such a regime when we have reasonable alternatives. Now, permit me a detour into the partisan-tinged past that I think carries a lesson for the future. In fact, there were powerful reasons to think the Florida statute in 2000 did limit manual recounts to cases of machine malfunction. As counsel for the Florida attorney general (Gore's state chairman) conceded, before this litigation Florida had never allowed a manual recount to be based on a claim that humans can interpret ballots better than machines. To the contrary, such claims had been repeatedly 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000017 007104-000709 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 would result from a partisan set of counters, rushing to complete a recount quickly, and free to vary their standards. But don't machines have their own inaccuracies, failing to register votes when chads are punched out but hanging on by a cardboard thread, or when some misguided voter both fills in the box for a candidate and also casts a write-in vote for the same candidate? Sure. But in analyzing the issue we must be sensitive to relative inaccuracies. A human recount that is 4 percent inaccurate cannot improve upon a machine count that is 1 percent inaccurate. More important, even if the error rates are equal or even higher for machines, the machines are far less likely to alter the result. Even if machines failed to detect votes at an enormous rate, like 10 percent, that will rarely alter the result because machines make any errors randomly, and thus should undercount a proportional share of each candidate's votes. A much smaller error rate that is biased toward one candidate can, on the other hand, produce a significant net change and thus alter the result. Moreover, manual recounts not only raise problems of misinterpretation and bias, but also are more likely to produce simple math errors, may alter ballots through handling, or even involve conscious mischief or fraud. So whether my candidate is ahead or behind in the next election, I would still conclude manual recounts should be allowed only when there is some machine malfunction that gives us reason to think the machines are far less accurate than normal. And while we all don't know whose ox will be gored, we should adopt that lesson for the future. After all, machine counting was introduced in this country not just for speed and cost, but to reduce the fraud and other human error that used to routinely attend ballot counting. Under a regime of manual counting, as Stalin said, "The people who vote decide nothing; the people who count the vote decide everything." There is no reason to subject ourselves to such a regime when we have reasonable alternatives. Now, permit me a detour into the partisan-tinged past that I think carries a lesson for the future. In fact, there were powerful reasons to think the Florida statute in 2000 did limit manual recounts to cases of machine malfunction. As counsel for the Florida attorney general (Gore's state chairman) conceded, before this litigation Florida had never allowed a manual recount to be based on a claim that humans can interpret ballots better than machines. To the contrary, such claims had been repeatedly 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000017 007104-000709 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 rejected, including in Broward and Palm Beach counties. Instead, the statute provided that manual recounts could be done only if the machines malfunctioned. That is why manual recounts had to be county-specific they were supposed to rest on a defect in that county's machines rather than statewide as they would be if the defect were a general problem in interpreting ballots. That is also why a strict deadline was set: Since manual recounts were supposed to be mere counting exercises rather than elaborate efforts at interpretation, seven days with an ability to hire many counting teams more than sufficed. The only statutory remedy for a close election was a machine recount. The Florida Supreme Court instead interpreted the statute to provide that manual recounts must always be done in any close election. So much attention was focused on the deadline issue that the most dubious aspect of this interpretation was missed by almost everyone: the Florida court's conclusion that judicial contests could overturn a certified election result without showing any illegality by election officials at all. This deviated from prior caselaw requiring "substantial noncompliance" with the law, including a case specifically holding that a contest could not be used to challenge a county's lawful decision not to conduct a manual recount to pick up partially perforated chads. The ostensible excuse was that the Florida legislature had enacted a 1999 statute on contests that changed this law. But the statute on its face required the "wrong" of rejecting a "legal vote," not a ballot legally interpreted to cast no vote. And the legislative history stated that the statute "codifies" prior law, not that it changes the law. Indeed, in 2000, just one week prior to its conclusion that the "substantial noncompliance" test could not bar Gore's contest, the Florida court had ruled 7-0 that another contest should be dismissed for failure to show substantial noncompliance with law. The lesson for the future from this retrospective detour lies in the question: What drove the Florida court to this contentious interpretation? Republicans naturally suspect partisanship. After all, the Florida court was dominated by activist liberal Democrats, most of whom had been chosen for appointment by Gore's counsel. But the deeper reason was probably the court's deepseated empirical premise never critically examined that manual recounts are more accurate than machines at interpreting the intent of the voter. Future courts are likely to share this premise regardless of partisan considerations, because courts as a class tend to have an exaggerated view of 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000018 007104-000710 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 rejected, including in Broward and Palm Beach counties. Instead, the statute provided that manual recounts could be done only if the machines malfunctioned. That is why manual recounts had to be county-specific they were supposed to rest on a defect in that county's machines rather than statewide as they would be if the defect were a general problem in interpreting ballots. That is also why a strict deadline was set: Since manual recounts were supposed to be mere counting exercises rather than elaborate efforts at interpretation, seven days with an ability to hire many counting teams more than sufficed. The only statutory remedy for a close election was a machine recount. The Florida Supreme Court instead interpreted the statute to provide that manual recounts must always be done in any close election. So much attention was focused on the deadline issue that the most dubious aspect of this interpretation was missed by almost everyone: the Florida court's conclusion that judicial contests could overturn a certified election result without showing any illegality by election officials at all. This deviated from prior caselaw requiring "substantial noncompliance" with the law, including a case specifically holding that a contest could not be used to challenge a county's lawful decision not to conduct a manual recount to pick up partially perforated chads. The ostensible excuse was that the Florida legislature had enacted a 1999 statute on contests that changed this law. But the statute on its face required the "wrong" of rejecting a "legal vote," not a ballot legally interpreted to cast no vote. And the legislative history stated that the statute "codifies" prior law, not that it changes the law. Indeed, in 2000, just one week prior to its conclusion that the "substantial noncompliance" test could not bar Gore's contest, the Florida court had ruled 7-0 that another contest should be dismissed for failure to show substantial noncompliance with law. The lesson for the future from this retrospective detour lies in the question: What drove the Florida court to this contentious interpretation? Republicans naturally suspect partisanship. After all, the Florida court was dominated by activist liberal Democrats, most of whom had been chosen for appointment by Gore's counsel. But the deeper reason was probably the court's deepseated empirical premise never critically examined that manual recounts are more accurate than machines at interpreting the intent of the voter. Future courts are likely to share this premise regardless of partisan considerations, because courts as a class tend to have an exaggerated view of 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000018 007104-000710 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the accuracy of their own processes and thus have a hard time saying there is any wrong (such as some inaccurately counted ballots) without a remedy. Herein lies the lesson: When legislatures restrict manual recounts, they must be extraordinarily clear. Any such statute needs to state explicitly why and when it regards such a judicial cure as worse than the supposed machinecaused disease. Lesson III. Adopt objective standards in advance to constrain human decision-making. A third lesson flows obviously from the prior analysis: To the extent humans make post-election decisions that affect who will win an election, they must when possible be governed by clear objective standards established in advance of the dispute. We cannot allow humans, who inevitably have their own partisan views, to exercise standardless discretion in the midst of an election crisis when they and everyone else know which candidate will benefit. The risk is simply too great that any decision they make will be biased (consciously or unconsciously) in favor of their preferred candidate, and even if uninfected by actual bias will be perceived to be biased in a way that taints the legitimacy of the result. In the 2000 election, the big issues were about whether, where, how, and which ballots to recount manually, but the basic proposition seems generalizable to any issues left to midstream resolution by humans. I say this lesson is obvious, and yet the United States Supreme Court has gotten a lot of undeserved grief for effectively imposing this norm under the equal protection clause. Critics argue that Florida's manual recount process while inaccurate, arbitrary, and haphazard was not unconstitutional. Ronald Dworkin, for example, argues that the equal protection clause is only violated when state law creates "distinctions that put some citizens, in advance, at a disadvantage against others." But what made this process alarming was precisely that it did not set forth any objective standards "in advance." Such standardless discretion in the hands of partisan county officials is worrisome because it allows them to engage in sub rosa discrimination against the opposing party about how (and indeed whether) to conduct manual recounts. Since without standards such discrimination is hard to prove, the best way to vindicate the constitutional right of equal treatment is to prevent the partisan officials from exercising such standardless discretion at all. For precisely this reason, well-established 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000019 007104-000711 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the accuracy of their own processes and thus have a hard time saying there is any wrong (such as some inaccurately counted ballots) without a remedy. Herein lies the lesson: When legislatures restrict manual recounts, they must be extraordinarily clear. Any such statute needs to state explicitly why and when it regards such a judicial cure as worse than the supposed machinecaused disease. Lesson III. Adopt objective standards in advance to constrain human decision-making. A third lesson flows obviously from the prior analysis: To the extent humans make post-election decisions that affect who will win an election, they must when possible be governed by clear objective standards established in advance of the dispute. We cannot allow humans, who inevitably have their own partisan views, to exercise standardless discretion in the midst of an election crisis when they and everyone else know which candidate will benefit. The risk is simply too great that any decision they make will be biased (consciously or unconsciously) in favor of their preferred candidate, and even if uninfected by actual bias will be perceived to be biased in a way that taints the legitimacy of the result. In the 2000 election, the big issues were about whether, where, how, and which ballots to recount manually, but the basic proposition seems generalizable to any issues left to midstream resolution by humans. I say this lesson is obvious, and yet the United States Supreme Court has gotten a lot of undeserved grief for effectively imposing this norm under the equal protection clause. Critics argue that Florida's manual recount process while inaccurate, arbitrary, and haphazard was not unconstitutional. Ronald Dworkin, for example, argues that the equal protection clause is only violated when state law creates "distinctions that put some citizens, in advance, at a disadvantage against others." But what made this process alarming was precisely that it did not set forth any objective standards "in advance." Such standardless discretion in the hands of partisan county officials is worrisome because it allows them to engage in sub rosa discrimination against the opposing party about how (and indeed whether) to conduct manual recounts. Since without standards such discrimination is hard to prove, the best way to vindicate the constitutional right of equal treatment is to prevent the partisan officials from exercising such standardless discretion at all. For precisely this reason, well-established 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000019 007104-000711 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Supreme Court precedent makes standardless discretion unlawful if used to hand out parade permits or locate newspaper boxes. Why should the protection be any less when discretion is being exercised over the far more fundamental question of which votes to count? This understanding of the Supreme Court decision also explodes another critique: that it is internally incoherent because if one really accepted the court's logic, any election in which some counties use better voting machinery than others would also violate the equal protection clause. But this misses the point that the concern was not with county differences, but with standardless discretion that would allow discrimination against candidates. Just as no constitutional difficulty is raised when different counties in advance set forth different hours for parade permits, so too no worry about sub rosa discrimination is raised when counties have different voting systems as long as they are adopted in advance. No county has incentives to reduce its own clout, so any decision it makes is essentially a judgment about which machines count best or a tradeoff between that goal and the costs of new machines. Different counties may make different judgments or tradeoffs, but as long as they make their judgment in advance, it does not reflect one party trying to manipulate the electoral rules to discriminate against the other party. What is worrisome is when partisan election officials get to decide whether and how to do the recount after they find out which party is a little behind. The same goes for setting standards for interpreting ballots. If, in advance of an election, counties adopt differing standards for interpreting punch card ballots one a "two corners" standard, and another a "four corners" that should raise no constitutional difficulty because no county has incentives to adopt an interpretive system that undercounts its citizenry. It is when county officials make such decisions knowing which candidate will benefit that the problem is raised. As the media recounts emphasize, one gets a different vote count for every standard one chooses. But as long as the counties choose their objective standard before they know who will benefit, they should be free to adopt differing standards. A dimple standard should probably be rejected given the evidence from the media recounts about how particularly variable (and subject to bias) human judgments about dimples are. But any objective standard that reasonably constrains human discretion should be permissible. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000020 007104-000712 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Supreme Court precedent makes standardless discretion unlawful if used to hand out parade permits or locate newspaper boxes. Why should the protection be any less when discretion is being exercised over the far more fundamental question of which votes to count? This understanding of the Supreme Court decision also explodes another critique: that it is internally incoherent because if one really accepted the court's logic, any election in which some counties use better voting machinery than others would also violate the equal protection clause. But this misses the point that the concern was not with county differences, but with standardless discretion that would allow discrimination against candidates. Just as no constitutional difficulty is raised when different counties in advance set forth different hours for parade permits, so too no worry about sub rosa discrimination is raised when counties have different voting systems as long as they are adopted in advance. No county has incentives to reduce its own clout, so any decision it makes is essentially a judgment about which machines count best or a tradeoff between that goal and the costs of new machines. Different counties may make different judgments or tradeoffs, but as long as they make their judgment in advance, it does not reflect one party trying to manipulate the electoral rules to discriminate against the other party. What is worrisome is when partisan election officials get to decide whether and how to do the recount after they find out which party is a little behind. The same goes for setting standards for interpreting ballots. If, in advance of an election, counties adopt differing standards for interpreting punch card ballots one a "two corners" standard, and another a "four corners" that should raise no constitutional difficulty because no county has incentives to adopt an interpretive system that undercounts its citizenry. It is when county officials make such decisions knowing which candidate will benefit that the problem is raised. As the media recounts emphasize, one gets a different vote count for every standard one chooses. But as long as the counties choose their objective standard before they know who will benefit, they should be free to adopt differing standards. A dimple standard should probably be rejected given the evidence from the media recounts about how particularly variable (and subject to bias) human judgments about dimples are. But any objective standard that reasonably constrains human discretion should be permissible. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000020 007104-000712 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 A critique that is more on point argues it cannot be unconstitutional to apply an "intent of the voter" standard because similarly vague intent standards are applied all the time by juries. But, as the U.S. Supreme Court explained, such vagueness is allowed only for issues that are not susceptible to more objective standards. Rules for counting ballots can easily be more objective one need only pick an objective standard before the election and stick to it. The Supreme Court is not asking the impossible, but when an objective standard is possible, state officials cannot instead retain a discretion that maximizes their influence over results. A more legalistic objection, offered by my colleague Alan Dershowitz, is that past equal protection caselaw has required proof of facial or intentional discrimination. But this objection does not really come to grips with the caselaw on standardless discretion, where the very objection is that the lack of any standards against which to test the results makes it impossible to prove intentional discrimination, and thus requires the imposition of standards to root out sub rosa discrimination. Nor does the objection accurately describe modern election law since the leading case of Anderson. That case was brought by presidential candidate John Anderson in the 1980 election, challenging the application of a state's filing deadline to his decision to run as an independent after he lost in the Republican primaries. The filing deadline was facially neutral and no showing was made that it was intentionally discriminatory. Nonetheless, the Supreme Court struck it down on the grounds that it was set too early for independent candidates. Instead of requiring facial or intentional discrimination, the court articulated the now-prevailing test that state election law must in its effects be both nondiscriminatory and reasonably related to important state interests. It is no great leap to say the imposition of a system of standardless discretion for interpreting ballots does not meet those requirements. A related objection is more visceral: Manually counting ballots is too traditional to be unconstitutional. After all, for over a century that was the only way of counting ballots, and for the remainder of our history manual recounts have been accepted. But traditional practices often become unconstitutional: Indeed, the recognition of a constitutional right to an equal vote itself overturned nearly two centuries of contrary practice. The invalidation of traditional practices is particularly appropriate when changed circumstances alter their implications. The sort of filing deadline at issue in 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000021 007104-000713 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 A critique that is more on point argues it cannot be unconstitutional to apply an "intent of the voter" standard because similarly vague intent standards are applied all the time by juries. But, as the U.S. Supreme Court explained, such vagueness is allowed only for issues that are not susceptible to more objective standards. Rules for counting ballots can easily be more objective one need only pick an objective standard before the election and stick to it. The Supreme Court is not asking the impossible, but when an objective standard is possible, state officials cannot instead retain a discretion that maximizes their influence over results. A more legalistic objection, offered by my colleague Alan Dershowitz, is that past equal protection caselaw has required proof of facial or intentional discrimination. But this objection does not really come to grips with the caselaw on standardless discretion, where the very objection is that the lack of any standards against which to test the results makes it impossible to prove intentional discrimination, and thus requires the imposition of standards to root out sub rosa discrimination. Nor does the objection accurately describe modern election law since the leading case of Anderson. That case was brought by presidential candidate John Anderson in the 1980 election, challenging the application of a state's filing deadline to his decision to run as an independent after he lost in the Republican primaries. The filing deadline was facially neutral and no showing was made that it was intentionally discriminatory. Nonetheless, the Supreme Court struck it down on the grounds that it was set too early for independent candidates. Instead of requiring facial or intentional discrimination, the court articulated the now-prevailing test that state election law must in its effects be both nondiscriminatory and reasonably related to important state interests. It is no great leap to say the imposition of a system of standardless discretion for interpreting ballots does not meet those requirements. A related objection is more visceral: Manually counting ballots is too traditional to be unconstitutional. After all, for over a century that was the only way of counting ballots, and for the remainder of our history manual recounts have been accepted. But traditional practices often become unconstitutional: Indeed, the recognition of a constitutional right to an equal vote itself overturned nearly two centuries of contrary practice. The invalidation of traditional practices is particularly appropriate when changed circumstances alter their implications. The sort of filing deadline at issue in 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000021 007104-000713 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Anderson, for example, also had a long and accepted history. But it was invalidated nonetheless, with the court reasoning that the "passage of time since the Constitutional Convention in 1787" had changed the deadline's reasonableness because changed technology and expanded literacy made spreading information about late-developing independent candidates more feasible. Here, too, changed technology is relevant, making it both more necessary and possible to limit human discretion in ballot interpretation more necessary because machine ballots leave things like partially perforated or dimpled chads whose significance is much harder to interpret than a mark next to a candidate's name on an old-fashioned paper ballot; more possible because rules more precise than voter intent can be developed for determining how many chad corners must be perforated, and because the machines themselves are always available to count the ballots free of concern about human bias and subjectivity. In any event, the Supreme Court never outlawed all manual recounts, just those conducted without any consistent standards. The above objections also suffer from being fixated on what rule governed in the past. The important question now is what rule should govern the future, and it is hard to see a convincing reason why we wouldn't want a rule that limits standardless discretion by election officials in future elections. True, Alan Dershowitz argues the real problem is partisan decision-making by the U.S. Supreme Court. He claims there is no possibility the court majority would have reached the same conclusion had the position of the candidates been reversed. But seven of the nine justices found an equal protection violation, including Democratic Clinton appointee Stephen Breyer. And it does not seem at all implausible that they would have reached the same conclusion if the party affiliations of the candidates were reversed, and that they would and should do so in the future. If you are a Gore supporter, consider the following thought experiment. Suppose in 2004 Al Gore runs against Bush again and the election again hinges on a close result in a single state, only this time Bush is slightly behind after the machines count the votes. Bush seeks a manual recount only in a selection of highly Republican counties. State law provides for machine counts and recounts, and allows manual recounts only for county-specific errors in machine tabulation, not based on a claim that humans can interpret ballots more accurately than machines. Bush's counsel 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000022 007104-000714 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Anderson, for example, also had a long and accepted history. But it was invalidated nonetheless, with the court reasoning that the "passage of time since the Constitutional Convention in 1787" had changed the deadline's reasonableness because changed technology and expanded literacy made spreading information about late-developing independent candidates more feasible. Here, too, changed technology is relevant, making it both more necessary and possible to limit human discretion in ballot interpretation more necessary because machine ballots leave things like partially perforated or dimpled chads whose significance is much harder to interpret than a mark next to a candidate's name on an old-fashioned paper ballot; more possible because rules more precise than voter intent can be developed for determining how many chad corners must be perforated, and because the machines themselves are always available to count the ballots free of concern about human bias and subjectivity. In any event, the Supreme Court never outlawed all manual recounts, just those conducted without any consistent standards. The above objections also suffer from being fixated on what rule governed in the past. The important question now is what rule should govern the future, and it is hard to see a convincing reason why we wouldn't want a rule that limits standardless discretion by election officials in future elections. True, Alan Dershowitz argues the real problem is partisan decision-making by the U.S. Supreme Court. He claims there is no possibility the court majority would have reached the same conclusion had the position of the candidates been reversed. But seven of the nine justices found an equal protection violation, including Democratic Clinton appointee Stephen Breyer. And it does not seem at all implausible that they would have reached the same conclusion if the party affiliations of the candidates were reversed, and that they would and should do so in the future. If you are a Gore supporter, consider the following thought experiment. Suppose in 2004 Al Gore runs against Bush again and the election again hinges on a close result in a single state, only this time Bush is slightly behind after the machines count the votes. Bush seeks a manual recount only in a selection of highly Republican counties. State law provides for machine counts and recounts, and allows manual recounts only for county-specific errors in machine tabulation, not based on a claim that humans can interpret ballots more accurately than machines. Bush's counsel 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000022 007104-000714 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 concedes manual recounts have never been used for this purpose under the state statute, and the Democratic secretary of state vested with authority to interpret the statute interprets it not to permit manual recounts for those purposes. Consistent with this, the Republican county boards initially deny manual recounts, but later reverse this decision under pressure from national Republican leaders working for Bush. The Republican county boards then assert that, even without any machine defect, they have unfettered discretion to decide whether to do manual recounts when election results are close. They are upheld by a state supreme court dominated by highly activist conservative Republicans, most of whom were appointed by Bush's counsel. The Republican county boards begin the recount under the pre-existing perforation standard, but switch standards when the first one produces little net gain for Bush. When this still does not create much of a net gain for Bush, they switch to a policy of exercising discretion over which standard to apply. When the counties fail to finish the manual recount by the statutory deadline, the Republican state supreme court extends it. When the counties also fail to meet the new judicial deadline, the Republican state supreme court holds that judicial contests can overturn election results without any legal violation despite longstanding precedent to the contrary, including a case the same court had decided a mere one week earlier. Although the Republican court had earlier been willing to allow Bush to pursue selective manual recounts in heavily Republican counties, now that it has become clear such a selective recount cannot produce enough Bush votes, the court orders a statewide recount that Bush never requested. Partisan county election officials are left with complete discretion over what standards to use, and Bush's counsel concedes the standards being applied vary not just from county to county but from table to table. Would not Gore supporters in such a case feel justifiably aggrieved? And do we really have any doubt that in such a case the U.S. Supreme Court would and should reach the same conclusion it reached in the actual case? Contrary to Dershowitz's claim, I think the vote would have been and would and should in the future be unanimously for Gore in such a case. Still, critics complain, the proper remedy should have been to remand for a recount done under uniform standards that constrain discretion, not to stop the recount altogether. Now I must admit that at the time this critique 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000023 007104-000715 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 concedes manual recounts have never been used for this purpose under the state statute, and the Democratic secretary of state vested with authority to interpret the statute interprets it not to permit manual recounts for those purposes. Consistent with this, the Republican county boards initially deny manual recounts, but later reverse this decision under pressure from national Republican leaders working for Bush. The Republican county boards then assert that, even without any machine defect, they have unfettered discretion to decide whether to do manual recounts when election results are close. They are upheld by a state supreme court dominated by highly activist conservative Republicans, most of whom were appointed by Bush's counsel. The Republican county boards begin the recount under the pre-existing perforation standard, but switch standards when the first one produces little net gain for Bush. When this still does not create much of a net gain for Bush, they switch to a policy of exercising discretion over which standard to apply. When the counties fail to finish the manual recount by the statutory deadline, the Republican state supreme court extends it. When the counties also fail to meet the new judicial deadline, the Republican state supreme court holds that judicial contests can overturn election results without any legal violation despite longstanding precedent to the contrary, including a case the same court had decided a mere one week earlier. Although the Republican court had earlier been willing to allow Bush to pursue selective manual recounts in heavily Republican counties, now that it has become clear such a selective recount cannot produce enough Bush votes, the court orders a statewide recount that Bush never requested. Partisan county election officials are left with complete discretion over what standards to use, and Bush's counsel concedes the standards being applied vary not just from county to county but from table to table. Would not Gore supporters in such a case feel justifiably aggrieved? And do we really have any doubt that in such a case the U.S. Supreme Court would and should reach the same conclusion it reached in the actual case? Contrary to Dershowitz's claim, I think the vote would have been and would and should in the future be unanimously for Gore in such a case. Still, critics complain, the proper remedy should have been to remand for a recount done under uniform standards that constrain discretion, not to stop the recount altogether. Now I must admit that at the time this critique 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000023 007104-000715 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 seemed forceful: Equal protection claims naturally suggest the remedy of redoing things equally. But on reflection, the Supreme Court did the right thing, for reasons that are likely to arise in the future and should produce the same result no matter which candidate benefits. First, the Florida Supreme Court had already held as any state court would likely hold in a future case that under state law the time for finishing presidential contests must be circumscribed by the deadline federal law sets for making the resolution of judicial contests binding on Congress when it counts electoral votes. True, in a normal case the U.S. Supreme Court would simply remand and leave such a state law issue to the state supreme court, in part because the state court might change its view of state law.2 Having changed the state deadline on manual recounts twice before, it would hardly have been surprising if the Florida Supreme Court had tried to do so a third time. But the situation with presidential contests presents a special case because (unlike in other areas) federal law constrains the power of a state court to change its understanding of state law under Article II, which imposes a constitutional requirement to follow the state legislature's directions. Accordingly, a state court that says one week the state 2 Actually, one can question the assumption that the laws governing presidential elections involve state rather than federal law. Although adopted by state legislatures, such laws are not enacted under authority vested by the state constitution but under authority vested by the federal Constitution directly on state legislatures. This is why such presidential election laws need not be presented to the governor nor comply with other state constitutional laws. Further, the laws deemed to be federal laws under the supremacy clause are not defined as laws enacted by Congress but laws enacted "in pursuance of" the federal Constitution, which would seem to include any law enacted pursuant to a constitutional power. Likewise, the federal Constitution defines the "federal judicial power as extending to all questions arising under this Constitution, the Laws of the United States . . . or which shall be made, under their Authority." This seems to include in the definition of a federal question any law made under the authority of the federal Constitution. Accordingly, one might conclude that when adopting a presidential election code any state legislature is exercising federal powers and adopting a federal law whose ultimate interpretation properly rests with the U.S. Supreme Court, not state courts. But that line of analysis was never pressed and played no role in the U.S. Supreme Court's actual decision. Perhaps, though, it would help ameliorate the problem in the future to, under this theory, make the U.S. Supreme Court available to directly review wayward lower court interpretations of presidential election codes. 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000024 007104-000716 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 seemed forceful: Equal protection claims naturally suggest the remedy of redoing things equally. But on reflection, the Supreme Court did the right thing, for reasons that are likely to arise in the future and should produce the same result no matter which candidate benefits. First, the Florida Supreme Court had already held as any state court would likely hold in a future case that under state law the time for finishing presidential contests must be circumscribed by the deadline federal law sets for making the resolution of judicial contests binding on Congress when it counts electoral votes. True, in a normal case the U.S. Supreme Court would simply remand and leave such a state law issue to the state supreme court, in part because the state court might change its view of state law.2 Having changed the state deadline on manual recounts twice before, it would hardly have been surprising if the Florida Supreme Court had tried to do so a third time. But the situation with presidential contests presents a special case because (unlike in other areas) federal law constrains the power of a state court to change its understanding of state law under Article II, which imposes a constitutional requirement to follow the state legislature's directions. Accordingly, a state court that says one week the state 2 Actually, one can question the assumption that the laws governing presidential elections involve state rather than federal law. Although adopted by state legislatures, such laws are not enacted under authority vested by the state constitution but under authority vested by the federal Constitution directly on state legislatures. This is why such presidential election laws need not be presented to the governor nor comply with other state constitutional laws. Further, the laws deemed to be federal laws under the supremacy clause are not defined as laws enacted by Congress but laws enacted "in pursuance of" the federal Constitution, which would seem to include any law enacted pursuant to a constitutional power. Likewise, the federal Constitution defines the "federal judicial power as extending to all questions arising under this Constitution, the Laws of the United States . . . or which shall be made, under their Authority." This seems to include in the definition of a federal question any law made under the authority of the federal Constitution. Accordingly, one might conclude that when adopting a presidential election code any state legislature is exercising federal powers and adopting a federal law whose ultimate interpretation properly rests with the U.S. Supreme Court, not state courts. But that line of analysis was never pressed and played no role in the U.S. Supreme Court's actual decision. Perhaps, though, it would help ameliorate the problem in the future to, under this theory, make the U.S. Supreme Court available to directly review wayward lower court interpretations of presidential election codes. 110 POLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000024 007104-000716 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 legislature's directions imply one deadline for presidential contests cannot the next week change that deadline without violating the federal Constitution. Thus, this is one case where it makes sense for the U.S. Supreme Court to express its view about the state law baseline. Had the luxury of time been available, the U.S. Supreme Court could have first remanded without expressing its view and stood ready to reverse under Article II if the state court tried to change state law. But since its opinion came out on the eve of the federal deadline, the U.S. Supreme Court had a compelling reason to express on that date its understanding of what the Florida Supreme Court had said about the state law deadline to create a judicial resolution in time to assure Florida's electoral votes would be counted in Congress, as the Florida Supreme Court had said it wanted and state law required. (It also staved off a state legislative appointment of electors that would have occurred the next day had the federal deadline passed.) In effect, the U.S. Supreme Court's statement adopting the Florida court's prior statements about the Florida deadline for presidential contests telescoped into the present any future Article II decision that would have been necessary had the Florida court tried to change that deadline. The second reason is more directly connected to the underlying equal protection theory. To really satisfy the objections to using standardless discretion to resolve election issues, rules that constrain that discretion must be adopted in advance. Adopting objective standards in midstream does not help if by then the decision-maker knows who will benefit. Had the U.S. Supreme Court remanded for the Florida Supreme Court to pick a standard, that court would have had to exercise standardless discretion about which standard to use. Perhaps early in the process, the Florida court could have picked the perforation standard that at least was the pre-existing test in Palm Beach. But by December 12, both high courts knew too much. The partial recounts and revealed preferences of Bush and Gore indicated that a perforation standard favored Bush and a loose dimple standard favored Gore. Choosing the standard was thus tantamount to choosing the president. Nor was there any objective test for making a choice among the standards for interpreting ballots. Either would be constitutional if chosen in advance. But to choose among them in midstream, knowing which candidate would benefit, would be to exercise the very sort of standardless discretion that made the manual recount unconstitutional. Remanding thus could not cure 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000025 007104-000717 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 legislature's directions imply one deadline for presidential contests cannot the next week change that deadline without violating the federal Constitution. Thus, this is one case where it makes sense for the U.S. Supreme Court to express its view about the state law baseline. Had the luxury of time been available, the U.S. Supreme Court could have first remanded without expressing its view and stood ready to reverse under Article II if the state court tried to change state law. But since its opinion came out on the eve of the federal deadline, the U.S. Supreme Court had a compelling reason to express on that date its understanding of what the Florida Supreme Court had said about the state law deadline to create a judicial resolution in time to assure Florida's electoral votes would be counted in Congress, as the Florida Supreme Court had said it wanted and state law required. (It also staved off a state legislative appointment of electors that would have occurred the next day had the federal deadline passed.) In effect, the U.S. Supreme Court's statement adopting the Florida court's prior statements about the Florida deadline for presidential contests telescoped into the present any future Article II decision that would have been necessary had the Florida court tried to change that deadline. The second reason is more directly connected to the underlying equal protection theory. To really satisfy the objections to using standardless discretion to resolve election issues, rules that constrain that discretion must be adopted in advance. Adopting objective standards in midstream does not help if by then the decision-maker knows who will benefit. Had the U.S. Supreme Court remanded for the Florida Supreme Court to pick a standard, that court would have had to exercise standardless discretion about which standard to use. Perhaps early in the process, the Florida court could have picked the perforation standard that at least was the pre-existing test in Palm Beach. But by December 12, both high courts knew too much. The partial recounts and revealed preferences of Bush and Gore indicated that a perforation standard favored Bush and a loose dimple standard favored Gore. Choosing the standard was thus tantamount to choosing the president. Nor was there any objective test for making a choice among the standards for interpreting ballots. Either would be constitutional if chosen in advance. But to choose among them in midstream, knowing which candidate would benefit, would be to exercise the very sort of standardless discretion that made the manual recount unconstitutional. Remanding thus could not cure 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000025 007104-000717 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the constitutional problem; it would simply have made the Florida justices, rather than county commissioners, the state actors exercising standardless discretion. Given this dilemma, the best solution is to stick to the only objective standard that had been picked in advance the interpretation provided by the machine count which is effectively what the U.S. Supreme Court did by stopping further manual recounts, and what it should do again in a similar future case no matter what the identity of the candidates. Despite what Gore repeatedly said in the last election, the dispute was never about whether to "count every vote." The issue was and will be in the next dispute about how to count the ballots. The U.S. Supreme Court correctly established that counting methods cannot involve midstream exercises of standardless discretion. They must instead conform to objective methods established beforehand by lawmakers who are behind a veil of ignorance about the question of who benefits. It is when we are behind that veil for the next election, and don't know which candidate will benefit from our rules, that standards should be set. This is hardly to say the problems were all on one side. Well before the election, the Florida legislature had directed the Florida secretary of state to "adopt rules prescribing standards" that "shall ensure that ballots are counted in a uniform and consistent manner." Had Katherine Harris obeyed this statutory mandate, the entire mess would likely have been avoided. George Bush had signed a bill in Texas allowing for the counting of dimpled ballots in a way that also probably fails to provide sufficient protection against standardless discretion. But the point is not to assign blame for the past, it is to preclude similar problems in the future. Now that the U.S. Supreme Court decision in Bush v. Gore is the law of the land, it is incumbent upon every state to bring its election law into compliance by minimizing whenever possible any role left to standardless discretion exercised by humans. Lesson IV. Limit partisan involvement in election decisions. No matter what scope is given to machines, and how well-defined our advance standards, some irreducible role will be left to human decision-making in resolving election disputes. It will thus be important to heed the fourth 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000026 007104-000718 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the constitutional problem; it would simply have made the Florida justices, rather than county commissioners, the state actors exercising standardless discretion. Given this dilemma, the best solution is to stick to the only objective standard that had been picked in advance the interpretation provided by the machine count which is effectively what the U.S. Supreme Court did by stopping further manual recounts, and what it should do again in a similar future case no matter what the identity of the candidates. Despite what Gore repeatedly said in the last election, the dispute was never about whether to "count every vote." The issue was and will be in the next dispute about how to count the ballots. The U.S. Supreme Court correctly established that counting methods cannot involve midstream exercises of standardless discretion. They must instead conform to objective methods established beforehand by lawmakers who are behind a veil of ignorance about the question of who benefits. It is when we are behind that veil for the next election, and don't know which candidate will benefit from our rules, that standards should be set. This is hardly to say the problems were all on one side. Well before the election, the Florida legislature had directed the Florida secretary of state to "adopt rules prescribing standards" that "shall ensure that ballots are counted in a uniform and consistent manner." Had Katherine Harris obeyed this statutory mandate, the entire mess would likely have been avoided. George Bush had signed a bill in Texas allowing for the counting of dimpled ballots in a way that also probably fails to provide sufficient protection against standardless discretion. But the point is not to assign blame for the past, it is to preclude similar problems in the future. Now that the U.S. Supreme Court decision in Bush v. Gore is the law of the land, it is incumbent upon every state to bring its election law into compliance by minimizing whenever possible any role left to standardless discretion exercised by humans. Lesson IV. Limit partisan involvement in election decisions. No matter what scope is given to machines, and how well-defined our advance standards, some irreducible role will be left to human decision-making in resolving election disputes. It will thus be important to heed the fourth 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000026 007104-000718 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 lesson from the 2000 election debacle: Those who make election decisions should be rendered as non-partisan as possible. At a minimum, election officials should not serve as campaign chairs for any candidate. It is tempting to do so because elections are not normally close. But being an election official is a job that only really matters in close elections. Here, both sides were at fault in Florida. Both Secretary of State Harris and Attorney General Bob Butterworth were the respective state campaign chairs for Bush and Gore. But Harris's conflict of interest proved the more damaging. Her initial interpretation that manual recounts were not authorized absent machine malfunctions was actually completely right on the law, and if respected would have nipped the dispute in the bud. But her clear conflict of interest made her all too easy to ignore. No election official should be in a position of being disabled from giving authoritative neutral advice when it matters most. This was the norm in most states already, but it should be codified and extended to all states. I would go even further. In the Florida election, it seemed plain that election officials were influenced or at least could justifiably be perceived to be influenced by the political threat posed by the need to get re-elected, often by narrow county constituencies. It also seemed clear both election officials and judges suffered in their legitimacy because they were constantly described by their political affiliation, as in the "Democratic Florida Supreme Court" or the "Republican U.S. Supreme Court." It is difficult to have confidence in election resolutions under such a system. To address these problems, election officials should be appointed to insulate them from political influence during elections. Further, both they and judges, as a condition of taking office, should give up their party affiliation and right to vote in future elections. There is some precedent for this. For just these reasons, Justice John Marshall Harlan refused to vote in presidential elections, and Canadian law prohibits judges from voting. To be sure, this is no panacea. Any election officials or judges will inevitably have been appointed through some political means and be identifiable by the partisan affiliations of the officials who nominated them. But it should be understood that just as a monk gives up earthly possessions when entering the monastery, so too election officials and judges give up their partisan affiliations when they take on their roles. They should not have a rooting interest in elections. We should not have Democratic or Republican election 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000027 007104-000719 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 lesson from the 2000 election debacle: Those who make election decisions should be rendered as non-partisan as possible. At a minimum, election officials should not serve as campaign chairs for any candidate. It is tempting to do so because elections are not normally close. But being an election official is a job that only really matters in close elections. Here, both sides were at fault in Florida. Both Secretary of State Harris and Attorney General Bob Butterworth were the respective state campaign chairs for Bush and Gore. But Harris's conflict of interest proved the more damaging. Her initial interpretation that manual recounts were not authorized absent machine malfunctions was actually completely right on the law, and if respected would have nipped the dispute in the bud. But her clear conflict of interest made her all too easy to ignore. No election official should be in a position of being disabled from giving authoritative neutral advice when it matters most. This was the norm in most states already, but it should be codified and extended to all states. I would go even further. In the Florida election, it seemed plain that election officials were influenced or at least could justifiably be perceived to be influenced by the political threat posed by the need to get re-elected, often by narrow county constituencies. It also seemed clear both election officials and judges suffered in their legitimacy because they were constantly described by their political affiliation, as in the "Democratic Florida Supreme Court" or the "Republican U.S. Supreme Court." It is difficult to have confidence in election resolutions under such a system. To address these problems, election officials should be appointed to insulate them from political influence during elections. Further, both they and judges, as a condition of taking office, should give up their party affiliation and right to vote in future elections. There is some precedent for this. For just these reasons, Justice John Marshall Harlan refused to vote in presidential elections, and Canadian law prohibits judges from voting. To be sure, this is no panacea. Any election officials or judges will inevitably have been appointed through some political means and be identifiable by the partisan affiliations of the officials who nominated them. But it should be understood that just as a monk gives up earthly possessions when entering the monastery, so too election officials and judges give up their partisan affiliations when they take on their roles. They should not have a rooting interest in elections. We should not have Democratic or Republican election 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000027 007104-000719 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 officials or judges; we should have election officials or judges for all of us. Giving up their political affiliation and participation would be one important way to signal that commitment. Lesson V. Define the rules for state legislative involvement. Now we come to the even more controversial set of issues that would have arisen had the U.S. Supreme Court not called a halt to the manual recounts. Of these, perhaps none is more explosive than defining the role of state legislatures in directly appointing presidential electors when elections go bad. The Florida House had already voted to appoint electors before the U.S. Supreme Court ruled on December 12, and the Florida Senate was scheduled to complete the appointment on December 13 if the court failed to resolve matters. Then all hell would have broken loose, because Gore supporters vociferously disputed the power of the state legislature to make such an appointment. And there are some reasonable grounds for disagreement that we should, again, resolve now rather than wait until we are in the midst of another bitter election dispute and know who might benefit. A bit of background is necessary. The Constitution requires that presidential electors shall be chosen in whatever manner state legislatures direct. Early in our history this was often done by direct legislative appointment, but since then legislatures have fallen into the salutary democratic habit of directing that electors be chosen through state elections conducted according to legislatively prescribed rules. Congress has two relevant constitutional powers: the power to set the time for the choosing of electors, and the power to count the electoral votes. Pursuant to the first power, it has promulgated a statute providing that if a state's election "has failed to make a choice" on the election date prescribed by Congress, then the state legislature can after election day appoint electors in any manner it deems fit. Pursuant to the second power, it promulgated a statute providing that, in deciding whether to count electoral votes, Congress will regard the results of a state judicial contest as binding if it is completed six days before the Electoral College meets (which in 2000 meant December 12) and is resolved in accord with pre-existing law. Unfortunately, neither the statute nor any caselaw provides any criteria for deciding when an election "fails to make a choice" or who gets to decide when no choice was made. Nor had any case addressed who has the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000028 007104-000720 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 officials or judges; we should have election officials or judges for all of us. Giving up their political affiliation and participation would be one important way to signal that commitment. Lesson V. Define the rules for state legislative involvement. Now we come to the even more controversial set of issues that would have arisen had the U.S. Supreme Court not called a halt to the manual recounts. Of these, perhaps none is more explosive than defining the role of state legislatures in directly appointing presidential electors when elections go bad. The Florida House had already voted to appoint electors before the U.S. Supreme Court ruled on December 12, and the Florida Senate was scheduled to complete the appointment on December 13 if the court failed to resolve matters. Then all hell would have broken loose, because Gore supporters vociferously disputed the power of the state legislature to make such an appointment. And there are some reasonable grounds for disagreement that we should, again, resolve now rather than wait until we are in the midst of another bitter election dispute and know who might benefit. A bit of background is necessary. The Constitution requires that presidential electors shall be chosen in whatever manner state legislatures direct. Early in our history this was often done by direct legislative appointment, but since then legislatures have fallen into the salutary democratic habit of directing that electors be chosen through state elections conducted according to legislatively prescribed rules. Congress has two relevant constitutional powers: the power to set the time for the choosing of electors, and the power to count the electoral votes. Pursuant to the first power, it has promulgated a statute providing that if a state's election "has failed to make a choice" on the election date prescribed by Congress, then the state legislature can after election day appoint electors in any manner it deems fit. Pursuant to the second power, it promulgated a statute providing that, in deciding whether to count electoral votes, Congress will regard the results of a state judicial contest as binding if it is completed six days before the Electoral College meets (which in 2000 meant December 12) and is resolved in accord with pre-existing law. Unfortunately, neither the statute nor any caselaw provides any criteria for deciding when an election "fails to make a choice" or who gets to decide when no choice was made. Nor had any case addressed who has the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000028 007104-000720 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 power to decide when a state court has failed to comply with pre-existing law and legislative directions. As counsel to the Florida House of Representatives, I took the view that if the election failed to make a choice conclusive on Congress, it should also be deemed to have failed to make a choice conclusive on the Florida legislature, which should thus be prepared to directly appoint the electors. If the election contests had not been resolved by December 12, they clearly would have failed to make a choice conclusive on Congress under the federal statute, and the legislature would have been justified in directly appointing electors to assure Florida was represented in the Electoral College. I also thought that, since the state legislature was the one responsible for directing how electors were chosen, it had the responsibility for determining whether its election had failed to comply with pre-existing law or to follow legislative directions in a way that satisfied constitutional requirements. These views were controversial. Others, most notably Bruce Ackerman, took the view that an election did not fail to make a choice unless no choice was certified by the state executive or state supreme court. The fact that the election choice might not be conclusive on Congress was, to them, irrelevant. They further thought that the question of whether election contests complied with pre-existing law was a matter of state law on which the final authority was the state supreme court. Based on such arguments, the Gore forces were preparing lawsuits seeking a court order blocking any appointment of electors by the Florida legislature. There was talk of a court order prohibiting the Florida legislators from meeting to make the appointments, or barring any legislatively appointed electors from voting at the Electoral College. Given that the Electoral College had to meet on December 18, this would have left but a few short days to litigate and resolve all appeals concerning the complex and never-before-adjudicated issue of whether state legislative appointment was appropriate when election contests failed to follow state legislative directions or make a timely choice conclusive on Congress. Now, when matters are less frenzied, would be a better time to take a more considered look at the issue. Since neither the statute nor caselaw provides any direct answers, we must thus turn to legislative history and structure. Those who argue that the "failed to make a choice" language only applies when the election literally produces no result point to legislative 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000029 007104-000721 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 power to decide when a state court has failed to comply with pre-existing law and legislative directions. As counsel to the Florida House of Representatives, I took the view that if the election failed to make a choice conclusive on Congress, it should also be deemed to have failed to make a choice conclusive on the Florida legislature, which should thus be prepared to directly appoint the electors. If the election contests had not been resolved by December 12, they clearly would have failed to make a choice conclusive on Congress under the federal statute, and the legislature would have been justified in directly appointing electors to assure Florida was represented in the Electoral College. I also thought that, since the state legislature was the one responsible for directing how electors were chosen, it had the responsibility for determining whether its election had failed to comply with pre-existing law or to follow legislative directions in a way that satisfied constitutional requirements. These views were controversial. Others, most notably Bruce Ackerman, took the view that an election did not fail to make a choice unless no choice was certified by the state executive or state supreme court. The fact that the election choice might not be conclusive on Congress was, to them, irrelevant. They further thought that the question of whether election contests complied with pre-existing law was a matter of state law on which the final authority was the state supreme court. Based on such arguments, the Gore forces were preparing lawsuits seeking a court order blocking any appointment of electors by the Florida legislature. There was talk of a court order prohibiting the Florida legislators from meeting to make the appointments, or barring any legislatively appointed electors from voting at the Electoral College. Given that the Electoral College had to meet on December 18, this would have left but a few short days to litigate and resolve all appeals concerning the complex and never-before-adjudicated issue of whether state legislative appointment was appropriate when election contests failed to follow state legislative directions or make a timely choice conclusive on Congress. Now, when matters are less frenzied, would be a better time to take a more considered look at the issue. Since neither the statute nor caselaw provides any direct answers, we must thus turn to legislative history and structure. Those who argue that the "failed to make a choice" language only applies when the election literally produces no result point to legislative 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000029 007104-000721 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 history indicating Congress was concerned about circumstances in which state election law requires a majority and no candidate has received one. But there was other legislative history indicating that Congress was also concerned about instances in which floods or inclement weather prevented "any considerable number" of voters from reaching the polls, and that Congress wanted to confirm the power of the state's "legislature to authorize the continuance of the elections" past the congressionally prescribed election day. The latter legislative history makes clear that an election might "fail to make a choice" even though there had been an election with a result, at least when that result was distorted by flooding or bad weather. It also makes clear that, at least in that circumstance, Congress contemplated that the state legislature was the entity that would decide whether the election had failed to make a choice. Unfortunately, the legislative history does not indicate what else Congress thought might make an election fail to make a choice. But at a minimum, this legislative history seems to rebut the "no certifiable result" limit suggested by Ackerman and others. Further, one might reasonably conclude by analogy that the state legislature should have the power to decide when in its judgment other problems created distortions in the election result. Statutory and constitutional structure suggest the same result. A standard canon of statutory construction requires reading different statutory provisions together to make a coherent whole. While the limits on when a state legislature can say that an election failed to make a choice are unclear, it makes little sense to have one provision say that certain election results fail to make a choice conclusive on Congress, and then interpret another provision to have those same election results make a choice conclusive on the state legislature. This does not seem a plausible reading of a federal statute that was, after all, merely intended to regulate the timing of elections. Nor does certification by some state official eliminate concerns about whether a state's electoral votes will make a choice that will be counted. Rather, the federal statute provides that election results are not binding on Congress when it counts electoral votes unless any "controversy or contest concerning the appointment of all or any of the electors" has been finally determined in conformance with pre-existing law before the statutory deadline. A certification of appointment thus does not suffice to make a binding choice if it is challenged by a pending "contest." Moreover, even 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000030 007104-000722 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 history indicating Congress was concerned about circumstances in which state election law requires a majority and no candidate has received one. But there was other legislative history indicating that Congress was also concerned about instances in which floods or inclement weather prevented "any considerable number" of voters from reaching the polls, and that Congress wanted to confirm the power of the state's "legislature to authorize the continuance of the elections" past the congressionally prescribed election day. The latter legislative history makes clear that an election might "fail to make a choice" even though there had been an election with a result, at least when that result was distorted by flooding or bad weather. It also makes clear that, at least in that circumstance, Congress contemplated that the state legislature was the entity that would decide whether the election had failed to make a choice. Unfortunately, the legislative history does not indicate what else Congress thought might make an election fail to make a choice. But at a minimum, this legislative history seems to rebut the "no certifiable result" limit suggested by Ackerman and others. Further, one might reasonably conclude by analogy that the state legislature should have the power to decide when in its judgment other problems created distortions in the election result. Statutory and constitutional structure suggest the same result. A standard canon of statutory construction requires reading different statutory provisions together to make a coherent whole. While the limits on when a state legislature can say that an election failed to make a choice are unclear, it makes little sense to have one provision say that certain election results fail to make a choice conclusive on Congress, and then interpret another provision to have those same election results make a choice conclusive on the state legislature. This does not seem a plausible reading of a federal statute that was, after all, merely intended to regulate the timing of elections. Nor does certification by some state official eliminate concerns about whether a state's electoral votes will make a choice that will be counted. Rather, the federal statute provides that election results are not binding on Congress when it counts electoral votes unless any "controversy or contest concerning the appointment of all or any of the electors" has been finally determined in conformance with pre-existing law before the statutory deadline. A certification of appointment thus does not suffice to make a binding choice if it is challenged by a pending "contest." Moreover, even 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000030 007104-000722 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 without this statute, a certified choice could well be invalidated as unconstitutional if it violated equal protection or the constitutional requirement that elections be resolved according to the state legislature's directions. Further, another canon provides that statutes should be read to avoid constitutional doubts, and even without that canon it makes sense to read statutes consistent with the constitutional structure. As courts have repeatedly confirmed, the Constitution gives state legislatures plenary power to appoint electors. It would be in considerable tension with this power to interpret the statute to mean that Congress has said to the states, in effect, "We may not count your electoral votes, but there is absolutely nothing you can do about it." I doubt such a statute would be constitutionally valid at all, but there is certainly no reason to think Congress intended such a meaning. Moreover, the whole reason to insist that pre-existing law be followed is to comply with the constitutional requirement that electors be chosen in compliance with the state legislature's directions. Who better to decide whether its directions have been followed than the direction-giver itself? In truth, the objection to state legislative appointment rests less on legal analysis than a policy objection that it would invite frequent and destabilizing legislative intervention that is undemocratic and illegitimate, turning us (as Ackerman charged) into a "Banana Republic." But neither the empirical claim about frequency nor the normative claim of illegitimacy seems well-founded. In the 113 years since the Electoral Count Act was enacted, Gore was the first losing presidential candidate to contest an election at all. In 113 years, we had not had contests that lasted beyond the statutory deadline set by Congress for making the choice produced by those contests binding. In 113 years we had not had a state supreme court render an opinion that a unanimous U.S. Supreme Court thought (recall its first opinion) could reasonably be read to both circumscribe the state legislative power to direct the manner of appointments and raise the risk that Congress might deem the state supreme court to have effected a change in law that would deprive the election results of their conclusive binding effect. And in 113 years we had not had that same state supreme court render a second opinion that its own chief justice thought had "no foundation" in pre-existing state law, and that at least three (and probably five, judging from oral argument) justices of the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000031 007104-000723 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 without this statute, a certified choice could well be invalidated as unconstitutional if it violated equal protection or the constitutional requirement that elections be resolved according to the state legislature's directions. Further, another canon provides that statutes should be read to avoid constitutional doubts, and even without that canon it makes sense to read statutes consistent with the constitutional structure. As courts have repeatedly confirmed, the Constitution gives state legislatures plenary power to appoint electors. It would be in considerable tension with this power to interpret the statute to mean that Congress has said to the states, in effect, "We may not count your electoral votes, but there is absolutely nothing you can do about it." I doubt such a statute would be constitutionally valid at all, but there is certainly no reason to think Congress intended such a meaning. Moreover, the whole reason to insist that pre-existing law be followed is to comply with the constitutional requirement that electors be chosen in compliance with the state legislature's directions. Who better to decide whether its directions have been followed than the direction-giver itself? In truth, the objection to state legislative appointment rests less on legal analysis than a policy objection that it would invite frequent and destabilizing legislative intervention that is undemocratic and illegitimate, turning us (as Ackerman charged) into a "Banana Republic." But neither the empirical claim about frequency nor the normative claim of illegitimacy seems well-founded. In the 113 years since the Electoral Count Act was enacted, Gore was the first losing presidential candidate to contest an election at all. In 113 years, we had not had contests that lasted beyond the statutory deadline set by Congress for making the choice produced by those contests binding. In 113 years we had not had a state supreme court render an opinion that a unanimous U.S. Supreme Court thought (recall its first opinion) could reasonably be read to both circumscribe the state legislative power to direct the manner of appointments and raise the risk that Congress might deem the state supreme court to have effected a change in law that would deprive the election results of their conclusive binding effect. And in 113 years we had not had that same state supreme court render a second opinion that its own chief justice thought had "no foundation" in pre-existing state law, and that at least three (and probably five, judging from oral argument) justices of the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000031 007104-000723 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 U.S. Supreme Court thought failed to obey the constitutional requirement of following legislative directions. There seems little reason to think such an occasion will arise repeatedly. Indeed, it did not ultimately result in 2000 because the U.S. Supreme Court ended the contests in time and brought the results into conformance with pre-existing law. The argument to the contrary seems based less on empirical information than on an assumption state legislatures will find it irresistible to try to overturn election results even when no legitimate controversy about that result exists. But legislatures will not want to overreach for the same reason that legislatures have not taken back the power to appoint generally: Legislatures are reviewable by the electorate. State legislators know that if they try to overturn the defined choice of the state's voters, they will quickly find themselves out of office. That is why the Florida legislature held back on making an appointment based only on the disputed claim that the Florida Supreme Court had deviated from pre-existing law, waiting until a time when the contests would have indisputably exceeded the statutory deadline. On those rare occasions when the election process has failed to provide a timely or convincing result, it is perfectly legitimate for the problem to be resolved by the entity that both (a) was given clear constitutional authority over the matter; and (b) is most responsive to the will of the Florida electorate. This might seem inconsistent with the prior lesson that election officials and judges should be made nonpartisan, but it is not. Those officials and judges have the job of resolving election disputes in a timely fashion and in accord with pre-existing rules. For that task, one needs a neutral umpire. But when they fail in that task, or where there are no constitutionally valid pre-existing rules, then the democratic choice of the electorate will be unclear. At that point, we should want the best proxy for the electorate's choice, and that proxy is the institution most responsive to democratic will in any state, its legislature. Note also that a state legislature need not proceed by direct appointment. It can cure election unclarity by prescribing any method of selecting electors it wants. In Florida, for example, the state legislature might have filled in the vacuum by ordering another election or directing that manual recounts be conducted according to a uniform standard, most likely the perforation standard that was the only pre-existing written standard. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000032 007104-000724 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 U.S. Supreme Court thought failed to obey the constitutional requirement of following legislative directions. There seems little reason to think such an occasion will arise repeatedly. Indeed, it did not ultimately result in 2000 because the U.S. Supreme Court ended the contests in time and brought the results into conformance with pre-existing law. The argument to the contrary seems based less on empirical information than on an assumption state legislatures will find it irresistible to try to overturn election results even when no legitimate controversy about that result exists. But legislatures will not want to overreach for the same reason that legislatures have not taken back the power to appoint generally: Legislatures are reviewable by the electorate. State legislators know that if they try to overturn the defined choice of the state's voters, they will quickly find themselves out of office. That is why the Florida legislature held back on making an appointment based only on the disputed claim that the Florida Supreme Court had deviated from pre-existing law, waiting until a time when the contests would have indisputably exceeded the statutory deadline. On those rare occasions when the election process has failed to provide a timely or convincing result, it is perfectly legitimate for the problem to be resolved by the entity that both (a) was given clear constitutional authority over the matter; and (b) is most responsive to the will of the Florida electorate. This might seem inconsistent with the prior lesson that election officials and judges should be made nonpartisan, but it is not. Those officials and judges have the job of resolving election disputes in a timely fashion and in accord with pre-existing rules. For that task, one needs a neutral umpire. But when they fail in that task, or where there are no constitutionally valid pre-existing rules, then the democratic choice of the electorate will be unclear. At that point, we should want the best proxy for the electorate's choice, and that proxy is the institution most responsive to democratic will in any state, its legislature. Note also that a state legislature need not proceed by direct appointment. It can cure election unclarity by prescribing any method of selecting electors it wants. In Florida, for example, the state legislature might have filled in the vacuum by ordering another election or directing that manual recounts be conducted according to a uniform standard, most likely the perforation standard that was the only pre-existing written standard. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000032 007104-000724 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Finally, we must realize that eliminating the state legislative role would not eliminate the concern about overreaching by government officials tempted to try to overturn the result in any close election. It would instead leave us with the concern that state judges might overreach in precisely the same way. The latter seems, if anything, more problematic because courts are not reviewable by the electorate. Thus, unlike legislators, if judges try to deny the electorate their democratic choice, there is no way for the electorate to punish them. If the state legislature can decide when state judicial contests have left it with an election that failed to make a choice, there is the separate question of whether the U.S. Supreme Court or Congress can also make such a determination. At the time, I took the position that the matter should not be deemed justiciable. But I must admit I am no longer so sure. The experience made it clear that many legislators (both in Florida and Congress) were extremely reluctant to get involved in such a controversial dispute. Most did not want to touch it with a 10-foot pole, because they realized that, no matter what they did, they would alienate half their electorate. The bitter denunciations of the U.S. Supreme Court suggest they were right. There is thus sound reason to have some national entity whose job it is to resolve disputes others want to duck, and in our nation that entity is the U.S. Supreme Court. The prospect of review by that court, as well as by Congress when it counts the electoral votes, should also deter and police overreaching by state legislatures, thus ameliorating the concerns noted above. I am thus inclined to the view that either the state legislature or the U.S. Supreme Court ought to be able to decide when an election has failed to make a choice. But even that leaves many questions open. Can the high court or Congress also review a state legislature decision on whether an election failed to make a choice, and if so, with what standard of review? The main lesson is that these issues should all be resolved now, when we are not driven by partisan concerns. If we as a nation decide state legislatures should have no role after election day, so be it but we need to adopt clear constitutional or statutory rules in advance. Likewise, if we think state legislatures should have a role, the bounds and reviewability of that role need to be defined carefully beforehand. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000033 007104-000725 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Finally, we must realize that eliminating the state legislative role would not eliminate the concern about overreaching by government officials tempted to try to overturn the result in any close election. It would instead leave us with the concern that state judges might overreach in precisely the same way. The latter seems, if anything, more problematic because courts are not reviewable by the electorate. Thus, unlike legislators, if judges try to deny the electorate their democratic choice, there is no way for the electorate to punish them. If the state legislature can decide when state judicial contests have left it with an election that failed to make a choice, there is the separate question of whether the U.S. Supreme Court or Congress can also make such a determination. At the time, I took the position that the matter should not be deemed justiciable. But I must admit I am no longer so sure. The experience made it clear that many legislators (both in Florida and Congress) were extremely reluctant to get involved in such a controversial dispute. Most did not want to touch it with a 10-foot pole, because they realized that, no matter what they did, they would alienate half their electorate. The bitter denunciations of the U.S. Supreme Court suggest they were right. There is thus sound reason to have some national entity whose job it is to resolve disputes others want to duck, and in our nation that entity is the U.S. Supreme Court. The prospect of review by that court, as well as by Congress when it counts the electoral votes, should also deter and police overreaching by state legislatures, thus ameliorating the concerns noted above. I am thus inclined to the view that either the state legislature or the U.S. Supreme Court ought to be able to decide when an election has failed to make a choice. But even that leaves many questions open. Can the high court or Congress also review a state legislature decision on whether an election failed to make a choice, and if so, with what standard of review? The main lesson is that these issues should all be resolved now, when we are not driven by partisan concerns. If we as a nation decide state legislatures should have no role after election day, so be it but we need to adopt clear constitutional or statutory rules in advance. Likewise, if we think state legislatures should have a role, the bounds and reviewability of that role need to be defined carefully beforehand. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000033 007104-000725 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Lesson VI. Clarify certification authority. Whether or not state legislative involvement is permitted, there is another issue that would have arisen had the 2000 election dispute continued, one also likely to arise someday in the future: What do we do when state officials render conflicting certifications? The Electoral Count Act vests each state governor with the authority to certify the winner of the state's electoral votes, a certification that can break deadlocks when the two houses of Congress reach different conclusions about which of two electoral slates to count. Pursuant to that authority, Governor Jeb Bush had already certified electors for his brother George based on the election results before the judicial contest started. But if the Florida court had pushed through a recount that made Al Gore the winner, could it then order Governor Bush to certify the court's slate and decertify his original slate? It is not at all clear whether the state court has any authority to interfere with the certification authority that the federal statute vests in state governors. Nor was there any precedent on whether it is a proper exercise of such certification authority for the state governor to certify only election results provided by pre-existing election law and thus refuse to certify the result of a judicial contest that, in his view, was produced by changing the rules in midstream. Further, if the state court entered such an order, what would happen if the governor refused to follow it? One wonders whether court marshals would be dispatched to fight their way through state troopers and seize the governor in order to jail him until he signed a document decertifying the Bush electors and certifying the Gore electors. Perhaps the governor would avoid seizure by taking a trip out of state and beyond the jurisdiction of the state court. Or perhaps the governor would just sit in jail and refuse to sign any change of certification until after the electoral votes were counted. It seems best to have clearer rules set in advance to assure the next election does not turn on such drama. The Electoral Count Act, by giving effect to both gubernatorial certifications and judicial contests, exacerbates the problem. It seems fairly easy to instead structure power in a way less likely to provoke such controversies. If governors are the final arbiters, then their decisions should not be reviewable by courts. But if the courts are to be the final arbiters, then they should be given the power to make the certifications so that they need not act through governors. Given that the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000034 007104-000726 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 Lesson VI. Clarify certification authority. Whether or not state legislative involvement is permitted, there is another issue that would have arisen had the 2000 election dispute continued, one also likely to arise someday in the future: What do we do when state officials render conflicting certifications? The Electoral Count Act vests each state governor with the authority to certify the winner of the state's electoral votes, a certification that can break deadlocks when the two houses of Congress reach different conclusions about which of two electoral slates to count. Pursuant to that authority, Governor Jeb Bush had already certified electors for his brother George based on the election results before the judicial contest started. But if the Florida court had pushed through a recount that made Al Gore the winner, could it then order Governor Bush to certify the court's slate and decertify his original slate? It is not at all clear whether the state court has any authority to interfere with the certification authority that the federal statute vests in state governors. Nor was there any precedent on whether it is a proper exercise of such certification authority for the state governor to certify only election results provided by pre-existing election law and thus refuse to certify the result of a judicial contest that, in his view, was produced by changing the rules in midstream. Further, if the state court entered such an order, what would happen if the governor refused to follow it? One wonders whether court marshals would be dispatched to fight their way through state troopers and seize the governor in order to jail him until he signed a document decertifying the Bush electors and certifying the Gore electors. Perhaps the governor would avoid seizure by taking a trip out of state and beyond the jurisdiction of the state court. Or perhaps the governor would just sit in jail and refuse to sign any change of certification until after the electoral votes were counted. It seems best to have clearer rules set in advance to assure the next election does not turn on such drama. The Electoral Count Act, by giving effect to both gubernatorial certifications and judicial contests, exacerbates the problem. It seems fairly easy to instead structure power in a way less likely to provoke such controversies. If governors are the final arbiters, then their decisions should not be reviewable by courts. But if the courts are to be the final arbiters, then they should be given the power to make the certifications so that they need not act through governors. Given that the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000034 007104-000726 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 courts must already play a role in conducting contests, I am inclined to the latter view, and would thus give the state supreme court the power of certification. If the positions above were adopted, that certification would remain reviewable by the state legislature and the U.S. Supreme Court, but if they were rejected I would just leave the state court as both the final arbiter and certifier. Lesson VII. Clarify congressional counting rules. Although the Electoral Count Act provides elaborate counting rules, they are unclear in many respects. Under those rules, a lot turns on whether Congress has one or two election returns from a state before it. If a state only has one return, then it must be counted unless both the House and Senate agree to sustain an objection to counting it. Thus, if they disagree, a single return must be counted. If Congress has two returns before it, the two houses acting in concert can choose which one to count, but if they disagree the gubernatorial certification decides which slate counts. However, the act nowhere specifies who can submit a valid election return. Presumably this is not an option open to any citizen with pen and paper. Can a state court submit something that counts as a return? Could a state secretary of state submit a return that conflicts with the governor's? The state legislature? The candidates themselves? Members of Congress? Rather than allow for multiple returns, I would as discussed above identify one entity with the power to render a certified return with any effect in Congress. But if multiple returns are permitted, some limits must be defined on who can render them. Another unresolved issue that loomed large in the 2000 election was what to do about conflicts of interest. Assuming a party-line vote, the only way the two houses of Congress could have disagreed would have been if Gore and Lieberman had cast the deciding votes for themselves. Having the election turn on a decision involving such a blatant conflict of interest would have been disastrous. But it has constitutional precedent. Back when the Constitution authorized the sitting vice president to personally decide all disputes about whether to count electoral votes, John Adams had no problem resolving every single dispute in his own favor in order to ensure his election as president. But times have changed, and today such a spectacle would surely undermine the legitimacy of election results. Moreover, if there were two slates before Congress, the spectacle of these candidates casting 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000035 007104-000727 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 courts must already play a role in conducting contests, I am inclined to the latter view, and would thus give the state supreme court the power of certification. If the positions above were adopted, that certification would remain reviewable by the state legislature and the U.S. Supreme Court, but if they were rejected I would just leave the state court as both the final arbiter and certifier. Lesson VII. Clarify congressional counting rules. Although the Electoral Count Act provides elaborate counting rules, they are unclear in many respects. Under those rules, a lot turns on whether Congress has one or two election returns from a state before it. If a state only has one return, then it must be counted unless both the House and Senate agree to sustain an objection to counting it. Thus, if they disagree, a single return must be counted. If Congress has two returns before it, the two houses acting in concert can choose which one to count, but if they disagree the gubernatorial certification decides which slate counts. However, the act nowhere specifies who can submit a valid election return. Presumably this is not an option open to any citizen with pen and paper. Can a state court submit something that counts as a return? Could a state secretary of state submit a return that conflicts with the governor's? The state legislature? The candidates themselves? Members of Congress? Rather than allow for multiple returns, I would as discussed above identify one entity with the power to render a certified return with any effect in Congress. But if multiple returns are permitted, some limits must be defined on who can render them. Another unresolved issue that loomed large in the 2000 election was what to do about conflicts of interest. Assuming a party-line vote, the only way the two houses of Congress could have disagreed would have been if Gore and Lieberman had cast the deciding votes for themselves. Having the election turn on a decision involving such a blatant conflict of interest would have been disastrous. But it has constitutional precedent. Back when the Constitution authorized the sitting vice president to personally decide all disputes about whether to count electoral votes, John Adams had no problem resolving every single dispute in his own favor in order to ensure his election as president. But times have changed, and today such a spectacle would surely undermine the legitimacy of election results. Moreover, if there were two slates before Congress, the spectacle of these candidates casting 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000035 007104-000727 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the deciding votes to adjudicate the dispute in their favor would have been trumped by the spectacle of the other candidate's brother casting the deciding certification. Now, when we don't know who will be in what position, is the time to adopt conflict-of-interest rules to preclude such unseemly results. Finally, we need to rediscover an obscure distinction about whether a president needs a majority of the "counted" or "appointed" electors. Suppose a single Florida slate had reached Congress and got thrown out because the two houses of Congress sustained an objection to its validity, or (perhaps more likely) the slate was invalidated in court? This might have happened had the only slate of electors before Congress ended up being one chosen pursuant to the Florida court's manual recount, and had a federal court later (perhaps after December 18) invalidated that slate on grounds that the recount violated the equal protection clause. That would have left Congress with no valid slate of Florida electors to count. What would have happened then? This worried me a lot at the time because I wanted to assure Florida was represented in the Electoral College, and nothing struck me as more perverse than the prospect that Florida might endure this whole fiasco and not get counted at all. It did not, however, seem to worry Democrats much. They figured that if, for any reason, Florida electors were not counted, Gore would win because he would have a majority of the rest of the Electoral College. The former solicitor general, Walter Dellinger, was advising Gore that he would win because the Constitution says you need a majority of the "appointed" electors. This was supported by precedent in cases where one state did not appoint electors and the president was selected based on having a majority of those who were appointed. But here comes the obscure distinction. For while the exclusion of Florida electors would have given Gore a majority of the "counted" votes, he would not have had a majority of the "appointed" electors, and the constitutional text requires the latter. Further, deep within the recesses of the Congressional Record there was precedent indicating that in past cases where a state did appoint electors, and Congress sustained objections to the appointments and declined to count those electors, the president was required to have a majority of all those appointed, not just of those electors Congress counted. So while there would have been an argument, the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000036 007104-000728 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 the deciding votes to adjudicate the dispute in their favor would have been trumped by the spectacle of the other candidate's brother casting the deciding certification. Now, when we don't know who will be in what position, is the time to adopt conflict-of-interest rules to preclude such unseemly results. Finally, we need to rediscover an obscure distinction about whether a president needs a majority of the "counted" or "appointed" electors. Suppose a single Florida slate had reached Congress and got thrown out because the two houses of Congress sustained an objection to its validity, or (perhaps more likely) the slate was invalidated in court? This might have happened had the only slate of electors before Congress ended up being one chosen pursuant to the Florida court's manual recount, and had a federal court later (perhaps after December 18) invalidated that slate on grounds that the recount violated the equal protection clause. That would have left Congress with no valid slate of Florida electors to count. What would have happened then? This worried me a lot at the time because I wanted to assure Florida was represented in the Electoral College, and nothing struck me as more perverse than the prospect that Florida might endure this whole fiasco and not get counted at all. It did not, however, seem to worry Democrats much. They figured that if, for any reason, Florida electors were not counted, Gore would win because he would have a majority of the rest of the Electoral College. The former solicitor general, Walter Dellinger, was advising Gore that he would win because the Constitution says you need a majority of the "appointed" electors. This was supported by precedent in cases where one state did not appoint electors and the president was selected based on having a majority of those who were appointed. But here comes the obscure distinction. For while the exclusion of Florida electors would have given Gore a majority of the "counted" votes, he would not have had a majority of the "appointed" electors, and the constitutional text requires the latter. Further, deep within the recesses of the Congressional Record there was precedent indicating that in past cases where a state did appoint electors, and Congress sustained objections to the appointments and declined to count those electors, the president was required to have a majority of all those appointed, not just of those electors Congress counted. So while there would have been an argument, the 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000036 007104-000728 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 exclusion of Florida electors most likely would have resulted in a declaration that no one presidential candidate had a majority of the Electoral College. In such a case, the Constitution provides that the House of Representatives must select the new president which meant Bush would have been elected anyway. More important, in the future we should understand that any president needs a majority not just of the counted electors but of all the appointed electors, which helpfully reduces the incentives to try to disqualify a state's only electoral slate. The above are just some of issues that arose or would have arisen had the U.S. Supreme Court not stepped in when it did. What still leaves me worried is just how many of these issues remain unresolved and likely to arise again in any serious close case. Only some of them surfaced during the 2000 election dispute. The rest remain hidden in the deep sea of legal obscurity, ready to bob up again in the next close election. The time has come, I think, to focus less on recriminations about the past and more on making provisions for the future. Behind the veil of ignorance, we can resolve the open issues free of the partisan jockeying that results when we know who will benefit from any given resolution. I have suggested particular resolutions to these open issues, and you may disagree with many. But I hope we may all agree that on each issue we should choose some clear rule in advance and stick to it later no matter whom it turns out to favor. Better to pick the wrong rule but have some rule we all agree to follow, than to be making up the rules in the next bitter election dispute as we go along. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000037 007104-000729 Document ID: 0.7.19343.7869-000002 Einer Elhauge, The Lessons ofFlorida 2000 exclusion of Florida electors most likely would have resulted in a declaration that no one presidential candidate had a majority of the Electoral College. In such a case, the Constitution provides that the House of Representatives must select the new president which meant Bush would have been elected anyway. More important, in the future we should understand that any president needs a majority not just of the counted electors but of all the appointed electors, which helpfully reduces the incentives to try to disqualify a state's only electoral slate. The above are just some of issues that arose or would have arisen had the U.S. Supreme Court not stepped in when it did. What still leaves me worried is just how many of these issues remain unresolved and likely to arise again in any serious close case. Only some of them surfaced during the 2000 election dispute. The rest remain hidden in the deep sea of legal obscurity, ready to bob up again in the next close election. The time has come, I think, to focus less on recriminations about the past and more on making provisions for the future. Behind the veil of ignorance, we can resolve the open issues free of the partisan jockeying that results when we know who will benefit from any given resolution. I have suggested particular resolutions to these open issues, and you may disagree with many. But I hope we may all agree that on each issue we should choose some clear rule in advance and stick to it later no matter whom it turns out to favor. Better to pick the wrong rule but have some rule we all agree to follow, than to be making up the rules in the next bitter election dispute as we go along. 110 P OLICY REVIEW 15-36 (Dec 2001 -Jan 2002) EXT-18-2091-C-000037 007104-000729 Document ID: 0.7.19343.7869-000002 007104-000730 Document ID: 0.7.19343.7869-000002 007104-000730 Document ID: 0.7.19343.7869-000002 Willett, Don From: Sent: To: Subject: Attachments: Wi llett, Don Thursday, July 11, 2002 11:19 AM Dinh, Viet; Keefer, Wendy J; Charnes, Adam; Remington, Kristi L; Koebe le, Steve; Sales, Nathan; Good ling, Monica; Corallo, Mark; O'Brien, Pat; Jennifer Oschal (E-mail}; Kay Daly (E-mail); Barbara Ledeen (E-mail}; Tim Goeglein (E-mail}; Anne Womack (E-mai l}; 'matthew _e._smith@who .eop.gov '; Brett Kavanaugh (E-mai l); 'joe_jacquot@hutchison .senate .gov'; Manue l Miranda (E-mail}; Alex Dahl (E-mail} Owen Action Plan Action Plan (DRW 7-11-02) .wpd; Day-by-Day events 2 (DRW).doc Everyone: Attached below are two documents: and 2. a one-page, day-by-day overview thus far of next week 's activities Many thanks . DRW EXT-18-2091-C-000039 007104-000731 Document ID: 0.7.19343.8022 Willett, Don From: Sent: To: Subject: Attachments: Wi llett, Don Thursday, July 11, 2002 11:19 AM Dinh, Viet; Keefer, Wendy J; Charnes, Adam; Remington, Kristi L; Koebe le, Steve; Sales, Nathan; Good ling, Monica; Corallo, Mark; O'Brien, Pat; Jennifer Oschal (E-mail}; Kay Daly (E-mail); Barbara Ledeen (E-mail}; Tim Goeglein (E-mail}; Anne Womack (E-mai l}; 'matthew _e._smith@who .eop.gov '; Brett Kavanaugh (E-mai l); 'joe_jacquot@hutchison .senate .gov'; Manue l Miranda (E-mail}; Alex Dahl (E-mail} Owen Action Plan Action Plan (DRW 7-11-02) .wpd; Day-by-Day events 2 (DRW).doc Everyone: Attached below are two documents: and 2. a one-page, day-by-day overview thus far of next week 's activities Many thanks . DRW EXT-18-2091-C-000039 007104-000731 Document ID: 0.7.19343.8022 Sales , Nathan From : Sales, Nathan Sent : Thursday, July 11, 2002 12:57 PM To: 'Manuel Miranda '; Charnes, Adam; Willett, Don; Sutton, Jason; Remington, Kristi l; Corallo, Mark; Goodling, Monica; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Alex Dahl'; 'Anne(u)Womack(a) who.eop.gov '; 'b rett_m ._kavanaugh@who.eo . ov'; gov'; 'Heathe r_ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.e op.gov '; 'Matthew_E._Smith@who.eop.gov'; 'Joe_Jacquot@Hutchinson.senate.go v'; 'John Abegg ' Subject : RE: McCain I noticed in yesterday 's Post that Richard Carmona-t he Arizona physician whom the President tapped to be Surgeon General-is likely to win approval from the Senate Health , Education, Labor, an d Pensions Committee. http://www.washingtonpost.com/wp-dyn/articles/A 46260-2002 Jul9.html -Original Message-From: Manuel Miranda [mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Thursday, July 11, 2002 12:34 PM To: Charnes, Adam; Willett , Don; Sutton, Jason; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; Alex Dahl; 'Anne( u)Womack( a )who.eop.gov '; brett _ m._ kavanaugh@who.eop.gov; Heather_ Wingate@who.eop.gov; 'Tim_ Goeglein@who.eop.gov '; Matthew_ E._Smith@who.eop.gov; Joe _Jacquot@Hutchinson.senate.gov; John Abegg Subject: McCain EXT-18-2091-C-000040 007104-000732 Document ID: 0.7.19343.5032 Sales , Nathan From : Sales, Nathan Sent : Thursday, July 11, 2002 12:57 PM To: 'Manuel Miranda '; Charnes, Adam; Willett, Don; Sutton, Jason; Remington, Kristi l; Corallo, Mark; Goodling, Monica; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Alex Dahl'; 'Anne(u)Womack(a) who.eop.gov '; 'b rett_m ._kavanaugh@who.eo . ov'; gov'; 'Heathe r_ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.e op.gov '; 'Matthew_E._Smith@who.eop.gov'; 'Joe_Jacquot@Hutchinson.senate.go v'; 'John Abegg ' Subject : RE: McCain I noticed in yesterday 's Post that Richard Carmona-t he Arizona physician whom the President tapped to be Surgeon General-is likely to win approval from the Senate Health , Education, Labor, an d Pensions Committee. http://www.washingtonpost.com/wp-dyn/articles/A 46260-2002 Jul9.html -Original Message-From: Manuel Miranda [mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Thursday, July 11, 2002 12:34 PM To: Charnes, Adam; Willett , Don; Sutton, Jason; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; Alex Dahl; 'Anne( u)Womack( a )who.eop.gov '; brett _ m._ kavanaugh@who.eop.gov; Heather_ Wingate@who.eop.gov; 'Tim_ Goeglein@who.eop.gov '; Matthew_ E._Smith@who.eop.gov; Joe _Jacquot@Hutchinson.senate.gov; John Abegg Subject: McCain EXT-18-2091-C-000040 007104-000732 Document ID: 0.7.19343.5032 Dinh, Viet From : Dinh, Viet Sent : Saturday, July 13, 2002 11:07 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Willett, Don; Remington , Kristi L; Corallo, Mark; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Anne_ Womack@who.eop.gov '; 'Heather_ Wingate@who.eop.gov '; 'alex_dah l@ judiciary.senate.gov '; 'manuel _ miranda@jud iciary.senate.gov'; 'Tim_ Goeglein@w -oo t@hutch ison.senate. ho.e -- ...... , , ___ gov' ... ~ Su bject : ............... RE: REMINDER-- daily conf. call re. Priscilla Owen nomination - 6:00-6:30 Ralph Neas has infiltrated our telecommunications department. Apologies- I am assured that the problem has been ad dressed and we will resume at the same time on the same bat channel on Monday. On the news front, Lisa Graves of Leahy staff called my staff and said that they are trying to deconflict some schedules for Feinstein and may have to move the hear ing to Wednesday or the following week . She also asked for copies of the s ix Enron cases referenced in Judge Gonzales ' April 5 letter. Steve, please transmit through Sheila. thanks -Original Message-From: Brett_ M._ Kavanaugh@who.eop .gov [mailto:8rett _ M._ Kavanaugh@who .eop.gov) Se~ 002 7:26 PM ToCc: Charnes , Adam; Willett, Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O' Brien, Pat; Koebele , Steve; Dinh, Viet; Keefer, Wendy J; Anne_Womack@who.eop.gov; Heather _ Wingate@who.eop.gov; alex _ dahl@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov ; Tim_Goegle in@who.eop.gov ; Matthew E. Smi ison.senate.gov; Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nomination - 6:00-6 :30 nor can I (Embedded image moved Jennifer Oschal to file: 07/12/2002 06:06:55 PM pic32047.pcx) EXT-18-2091-C-000041 007104-000733 Documen t ID: 0.7.19343.8045 Dinh, Viet From : Dinh, Viet Sent : Saturday, July 13, 2002 11:07 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Willett, Don; Remington , Kristi L; Corallo, Mark; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Anne_ Womack@who.eop.gov '; 'Heather_ Wingate@who.eop.gov '; 'alex_dah l@ judiciary.senate.gov '; 'manuel _ miranda@jud iciary.senate.gov'; 'Tim_ Goeglein@w -oo t@hutch ison.senate. ho.e -- ...... , , ___ gov' ... ~ Su bject : ............... RE: REMINDER-- daily conf. call re. Priscilla Owen nomination - 6:00-6:30 Ralph Neas has infiltrated our telecommunications department. Apologies- I am assured that the problem has been ad dressed and we will resume at the same time on the same bat channel on Monday. On the news front, Lisa Graves of Leahy staff called my staff and said that they are trying to deconflict some schedules for Feinstein and may have to move the hear ing to Wednesday or the following week . She also asked for copies of the s ix Enron cases referenced in Judge Gonzales ' April 5 letter. Steve, please transmit through Sheila. thanks -Original Message-From: Brett_ M._ Kavanaugh@who.eop .gov [mailto:8rett _ M._ Kavanaugh@who .eop.gov) Se~ 002 7:26 PM ToCc: Charnes , Adam; Willett, Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O' Brien, Pat; Koebele , Steve; Dinh, Viet; Keefer, Wendy J; Anne_Womack@who.eop.gov; Heather _ Wingate@who.eop.gov; alex _ dahl@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov ; Tim_Goegle in@who.eop.gov ; Matthew E. Smi ison.senate.gov; Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nomination - 6:00-6 :30 nor can I (Embedded image moved Jennifer Oschal to file: 07/12/2002 06:06:55 PM pic32047.pcx) EXT-18-2091-C-000041 007104-000733 Documen t ID: 0.7.19343.8045 Please respond to Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nomination 6:00-6:30 can 't get into this call .... --Original Message--From: Willett, Don [mailto:Don.Willett@usdoj.gov] Sent: Friday, July 12, 2002 5:05 PM To: Dinh, Viet (Receipt Notification Requested) (1PM Return Requested); O'Brien, Pat (Receipt Notification Requested) (1PMReturn Requested); Scottfinan, Nancy {Receipt Notification Requested) (1PMReturn Requested); Goodling, Monica (Receipt Notification Requested) (1PM Return Requested); Corallo, Mark (Receipt Notification Requested) {1PM Return Requested); Charnes, Adam (Receipt Notification Requested) (1PM Return Requested); Willett, Don (Receipt Notification Requested) (1PM Return Requested); Koebele, Steve (Receipt Notification Requested) (1PM Return Requested); Keefer, Wendy J (Receipt Notification Requested) {1PM Return Requested); Remington, Kristi L (Receipt Notification Requested) (1PM Return Requested); Sales, Nathan (Receipt Notification Requested) (1PM Return Requested); 'Anne_ Womack@who.eop.gov ' (Receipt Notification Requested) (1PM Return Requested}; 'brett_m._kavanaugh@who.eop.gov' (Receipt Notification Requested} (1PMReturn Requested); 'Heather _ W . ingate ~ ceipt Notification Requested) (1PM Return Requested) Receipt Notification Requeste d) {1PMReturn Requested); 'Alex_ Dahl@judiciary.senate.gov' (Receipt Notification Requested) (1PMReturn Requested); 'Manuel_Miranda@judiciary.senate.gov ' (Receipt Notification Requested) (1PMReturn Requested); 'Tim_ Goeglein@who.eop.gov ' (Receipt Notificat ion Requested) (1PMReturn Requested); 'Matthew_E._Smith@who.eop.gov ' (Receipt Notification Requested) (1PMReturn Requested); 'joe.Jacquot@hutchison.senate.gov ' (Receipt Notification Requested} (1PM Return Requested) Requested) (1PMReturn Requested); {Receipt Notification Requested) (1PMReturn Requested) Subject: REMINDER- daily conf. call re. Priscilla Owen nominat ion 6:00-6:30 EXT-18-2091-C-000042 007104-000734 Document ID: 0.7.19343 .8045 Please respond to Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: RE: REMINDER- daily conf. call re. Priscilla Owen nomination 6:00-6:30 can 't get into this call .... --Original Message--From: Willett, Don [mailto:Don.Willett@usdoj.gov] Sent: Friday, July 12, 2002 5:05 PM To: Dinh, Viet (Receipt Notification Requested) (1PM Return Requested); O'Brien, Pat (Receipt Notification Requested) (1PMReturn Requested); Scottfinan, Nancy {Receipt Notification Requested) (1PMReturn Requested); Goodling, Monica (Receipt Notification Requested) (1PM Return Requested); Corallo, Mark (Receipt Notification Requested) {1PM Return Requested); Charnes, Adam (Receipt Notification Requested) (1PM Return Requested); Willett, Don (Receipt Notification Requested) (1PM Return Requested); Koebele, Steve (Receipt Notification Requested) (1PM Return Requested); Keefer, Wendy J (Receipt Notification Requested) {1PM Return Requested); Remington, Kristi L (Receipt Notification Requested) (1PM Return Requested); Sales, Nathan (Receipt Notification Requested) (1PM Return Requested); 'Anne_ Womack@who.eop.gov ' (Receipt Notification Requested) (1PM Return Requested}; 'brett_m._kavanaugh@who.eop.gov' (Receipt Notification Requested} (1PMReturn Requested); 'Heather _ W . ingate ~ ceipt Notification Requested) (1PM Return Requested) Receipt Notification Requeste d) {1PMReturn Requested); 'Alex_ Dahl@judiciary.senate.gov' (Receipt Notification Requested) (1PMReturn Requested); 'Manuel_Miranda@judiciary.senate.gov ' (Receipt Notification Requested) (1PMReturn Requested); 'Tim_ Goeglein@who.eop.gov ' (Receipt Notificat ion Requested) (1PMReturn Requested); 'Matthew_E._Smith@who.eop.gov ' (Receipt Notification Requested) (1PMReturn Requested); 'joe.Jacquot@hutchison.senate.gov ' (Receipt Notification Requested} (1PM Return Requested) Requested) (1PMReturn Requested); {Receipt Notification Requested) (1PMReturn Requested) Subject: REMINDER- daily conf. call re. Priscilla Owen nominat ion 6:00-6:30 EXT-18-2091-C-000042 007104-000734 Document ID: 0.7.19343 .8045 Dial In: Message Sent To:__________________________ _ "Willett, Donu "Dinh, Viet (Receipt Notification Requested) (1PM Return Requested)" "O'Brien, Pat (Receipt Notification Requested) (1PM Return Requested)" "Scottfinan, Nancy (Receipt Notification Requested) (1PM Return Requested)" "Goodl ing, Monica (Receipt Notification Requested) (1PM Return Requested)" "Corallo , Mark (Receipt Notification Requested) (1PM Return Requested)" "Charnes, Adam (Receipt Notification Requested) {1PMReturn Requested)" "Koebele, Steve (Rece ipt Notification Requested) (1PMReturn Requested)" "Keefer, Wendy J (Receipt Notification Requested} (1PMReturn Requested)" "Remington , Kristi L (Receipt Notification Requested) {1PMReturn Requested)" "Sales, Nathan (Receipt Notification Requested) (1PM Return Requested)" Anne Womack/WHO/EOP@EOP Brett M. Kavanaugh/WHO/ EOP@EOP Heather Wingate/WHO/EOP@EOP Alex_Dahl@judiciary.senate.gov Manuel_Miranda@judiciary.senate.gov Tim Goeglein/WHO/EOP@EOP Matthew E. Smith/WHO/EOP@ EOP joe_jacquot@hutchison .senate.gov EXT-18-2091-C-000043 007104 -000735 Document ID: 0.7.19343 .8045 Dial In: Message Sent To:__________________________ _ "Willett, Donu "Dinh, Viet (Receipt Notification Requested) (1PM Return Requested)" "O'Brien, Pat (Receipt Notification Requested) (1PM Return Requested)" "Scottfinan, Nancy (Receipt Notification Requested) (1PM Return Requested)" "Goodl ing, Monica (Receipt Notification Requested) (1PM Return Requested)" "Corallo , Mark (Receipt Notification Requested) (1PM Return Requested)" "Charnes, Adam (Receipt Notification Requested) {1PMReturn Requested)" "Koebele, Steve (Rece ipt Notification Requested) (1PMReturn Requested)" "Keefer, Wendy J (Receipt Notification Requested} (1PMReturn Requested)" "Remington , Kristi L (Receipt Notification Requested) {1PMReturn Requested)" "Sales, Nathan (Receipt Notification Requested) (1PM Return Requested)" Anne Womack/WHO/EOP@EOP Brett M. Kavanaugh/WHO/ EOP@EOP Heather Wingate/WHO/EOP@EOP Alex_Dahl@judiciary.senate.gov Manuel_Miranda@judiciary.senate.gov Tim Goeglein/WHO/EOP@EOP Matthew E. Smith/WHO/EOP@ EOP joe_jacquot@hutchison .senate.gov EXT-18-2091-C-000043 007104 -000735 Document ID: 0.7.19343 .8045 Dinh, Viet From : Dinh, Viet Sent : Saturday, July 13, 2002 11:10 AM To: 'Manu el Miranda '; Charnes , Adam; Willett, Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica- . Scottfinan, Nanc ; Sales , Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Alex Dahl'; 'Anne_ Womack@w o.e~ kavanaugh@who.eop.gov '; 'Hea ther _ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.eop.gov '; ' .-Q o oo-oooo w'; 'jo e.Jacquot@hut chison.sen ate.gov'; lJI Subject : oo- . oo RE: Re(2): REMINDER- daily conf. call re. Priscilla Owen nomin I agree-a ll plans continue. -Original Message-From: Manuel Miranda [mailto :Manuel _ Miranda@judiciary.senate.gov) Sent: Friday, July 12, 2002 6:40 PM To: Charnes, Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Scottf inan, Nancy; Sales, Nathan. O' Brien Pat; Koebele , Steve; Dinh, Viet; Keefer, Wendy J; Alex Dahl; Anne_ Womack@who.eop.gov; b~ h@who.eop .gov; Heather_ Wingate@who.eop.gov ---Tim_ Goeglein@who.eop.gov; ~1 o I J II I ' , I t - t I o t joe.Jacquot@hutchison.senate.gov; Subject: Re[2): REMINDER- daily conf. call re. Priscilla Owen nomin _________ Reply Sepa rator call re. Priscilla Owen nominati Author: ___ Subject: Re: REMINDER- daily conf. ate: 7/12/2002 6:32 PM I am having heart palpitations ......does this mean that we cancel the press confer ence on Monday that we just spent hours and hours and hours putting together? Received: from mailsimsl.senate.gov ([156.33.203. 10]) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00426412; Fri, 12 Jul 2002 18:32:52 -0400 Received: from imod08.mx.aol. com by mailsims 1.senate.gov (Sun Internet Mail Server sims.3.S.2000 .03.23.18.03.p10 ) with SMTP id ; Fri, 12 Jul 2002 18:32:40 -0400 (EDT) Received: from y imo-d08.mx.aol.com (mail_out _v32.21.) id s.9b.2a 4 a05c3 (4197) ; ~ :32:11 ~0400 (EDT) Date: Fri, 12 Jul 2002 18:32: 11 -0400 (EDT) From: ---ubject: Re: REMINDER- da ily conf. call re. Priscilla Owe n nomination - 6:00-6:30 To: Nancy.Scottfinan@usdoj.gov, Don.Willett@usdoj.gov, Viet.Dinh@usdoj.gov, Pat.O ' Brien@usdoj.gov, Monica.Goodling@usdoj.gov , Mark.Corallo@usdoj.gov, Adam.Charnes@us doj.gov, Steve.Koebele@usdoj .gov, Wendy.J.Keefer@usdoj.gov, Kristi.L.Remington@usdoj.gov, Nathan.Sales@usdoj.gov, 11--~ \Al~ - ~~ t. ,:;;-,ooo 1...~ ~~- -~" l...r ~~ - L.~.,~-~ .. -1...,:;;-, .,.I...~ ~~- ~~o o U~~ .. J..~ r IU:-~~ .. ~,:;;-, o .,l.~ ~~- ~~oo EXT-18-2091-C-000044 007104-000736 Document ID: 0.7.19343.8047 Dinh, Viet From : Dinh, Viet Sent : Saturday, July 13, 2002 11:10 AM To: 'Manu el Miranda '; Charnes , Adam; Willett, Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica- ? Scottfinan, Nanc ; Sales , Nathan; O'Brien, Pat; Koebele, Steve; Keefer, Wendy J; 'Alex Dahl'; 'Anne_ Womack@w o.e~ kavanaugh@who.eop.gov '; 'Hea ther _ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.eop.gov '; ' .-Q o oo-oooo w'; 'jo e.Jacquot@hut chison.sen ate.gov'; lJI Subject : oo- ? oo RE: Re(2): REMINDER- daily conf. call re. Priscilla Owen nomin I agree-a ll plans continue. -Original Message-From: Manuel Miranda [mailto :Manuel _ Miranda@judiciary.senate.gov) Sent: Friday, July 12, 2002 6:40 PM To: Charnes, Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Scottf inan, Nancy; Sales, Nathan? O' Brien Pat; Koebele , Steve; Dinh, Viet; Keefer, Wendy J; Alex Dahl; Anne_ Womack@who.eop.gov; b~ h@who.eop .gov; Heather_ Wingate@who.eop.gov ---Tim_ Goeglein@who.eop.gov; ~1 o I J II I ' , I t - t I o t joe.Jacquot@hutchison.senate.gov; Subject: Re[2): REMINDER- daily conf. call re. Priscilla Owen nomin _________ Reply Sepa rator call re. Priscilla Owen nominati Author: ___ Subject: Re: REMINDER- daily conf. ate: 7/12/2002 6:32 PM I am having heart palpitations ......does this mean that we cancel the press confer ence on Monday that we just spent hours and hours and hours putting together? Received: from mailsimsl.senate.gov ([156.33.203. 10]) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00426412; Fri, 12 Jul 2002 18:32:52 -0400 Received: from imod08.mx.aol. com by mailsims 1.senate.gov (Sun Internet Mail Server sims.3.S.2000 .03.23.18.03.p10 ) with SMTP id ; Fri, 12 Jul 2002 18:32:40 -0400 (EDT) Received: from y imo-d08.mx.aol.com (mail_out _v32.21.) id s.9b.2a 4 a05c3 (4197) ; ~ :32:11 ~0400 (EDT) Date: Fri, 12 Jul 2002 18:32: 11 -0400 (EDT) From: ---ubject: Re: REMINDER- da ily conf. call re. Priscilla Owe n nomination - 6:00-6:30 To: Nancy.Scottfinan@usdoj.gov, Don.Willett@usdoj.gov, Viet.Dinh@usdoj.gov, Pat.O ' Brien@usdoj.gov, Monica.Goodling@usdoj.gov , Mark.Corallo@usdoj.gov, Adam.Charnes@us doj.gov, Steve.Koebele@usdoj .gov, Wendy.J.Keefer@usdoj.gov, Kristi.L.Remington@usdoj.gov, Nathan.Sales@usdoj.gov, 11--~ \Al~ - ~~ t. ,:;;-,ooo 1...~ ~~- -~" l...r ~~ - L.~.,~-~ .. -1...,:;;-, .,.I...~ ~~- ~~o o U~~ .. J..~ r IU:-~~ .. ~,:;;-, o .,l.~ ~~- ~~oo EXT-18-2091-C-000044 007104-000736 Document ID: 0.7.19343.8047 WWI IU. t! UjJ.~UV, Uf t!ll_lll._11. d Vdl ldUl:, I l ~WIIU,t!UfJ.~UV, n t:::dlllt!I _ \IV II l~ d lt!~WIIU.t!UfJ.~UV, Alex_ Dahl@judiciary.senate.gov, Manuel _Miranda@ju diciary.senate.go ew_E._Smith@who.eop.gov , joe.Jacquot@hutch ison .senate. gov essage -id: <9b.2a4a05c3.2a60b2eb@aol.com > MIME-version: 1.0 X-Mailer: AOL 7.0 for Windows US sub 119 Content-type: text / pla in; charset=US-ASCIIContenttransfer -en cod ing: 7bit EXT-18-2091-C-000045 007104-000737 Document ID: 0.7.19343 .8047 WWI IU. t! UjJ.~UV, Uf t!ll_lll._11. d Vdl ldUl:, I l ~WIIU,t!UfJ.~UV, n t:::dlllt!I _ \IV II l~ d lt!~WIIU.t!UfJ.~UV, Alex_ Dahl@judiciary.senate.gov, Manuel _Miranda@ju diciary.senate.go ew_E._Smith@who.eop.gov , joe.Jacquot@hutch ison .senate. gov essage -id: <9b.2a4a05c3.2a60b2eb@aol.com > MIME-version: 1.0 X-Mailer: AOL 7.0 for Windows US sub 119 Content-type: text / pla in; charset=US-ASCIIContenttransfer -en cod ing: 7bit EXT-18-2091-C-000045 007104-000737 Document ID: 0.7.19343 .8047 Willett , Don From : Willett, Don Sent : Saturday, July 13, 2002 2:33 PM To: 'Manuel Miranda ' Cc: Dinh, Viet; Brett Kavanaugh (E-ma il); Koebele , Steve; Joy, Sheila; Remington, Kristi L Subject : RE: RE: REMINDER- daily conf. call re. Priscilla Owen nomin Absolute ly, we will. (Steve, pis. make sure Manny gets copies of the six cases .) Manny, the cases - and others where Enron affi liates were involve d - are all summarized in the Owen binder materials. DRW --Original Message--From: Manuel Miranda (mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Saturday, July 13, 2002 12:36 PM To: Dinh, Viet; Brett_ M._ Kavanaugh@who.eop.gov; Cc: Charnes, Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Sales , Nathan; O'Brien, Pat; Koebele , Steve; Keefer, Wendy J; Alex Dahl; 'Anne_ Womack@who.eop.gov '; 'Heather_ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.eop.gov'; who.ea . ov' . o.oe .ac uot hutchison.senate.gov ' ; INUtK - aa uy conr. can re. n1sc111aOwen nomin Please copy us on the cases. EXT-18-2091-C-000046 Document ID: 0.7.19343.8050 0738 Willett , Don From : Willett, Don Sent : Saturday, July 13, 2002 2:33 PM To: 'Manuel Miranda ' Cc: Dinh, Viet; Brett Kavanaugh (E-ma il); Koebele , Steve; Joy, Sheila; Remington, Kristi L Subject : RE: RE: REMINDER- daily conf. call re. Priscilla Owen nomin Absolute ly, we will. (Steve, pis. make sure Manny gets copies of the six cases .) Manny, the cases - and others where Enron affi liates were involve d - are all summarized in the Owen binder materials. DRW --Original Message--From: Manuel Miranda (mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Saturday, July 13, 2002 12:36 PM To: Dinh, Viet; Brett_ M._ Kavanaugh@who.eop.gov; Cc: Charnes, Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Sales , Nathan; O'Brien, Pat; Koebele , Steve; Keefer, Wendy J; Alex Dahl; 'Anne_ Womack@who.eop.gov '; 'Heather_ Wingate@who.eop.gov'; 'Tim_ Goeglein@who.eop.gov'; who.ea . ov' ? o?oe ?ac uot hutchison.senate.gov ' ; INUtK - aa uy conr. can re. n1sc111aOwen nomin Please copy us on the cases. EXT-18-2091-C-000046 Document ID: 0.7.19343.8050 0738 Willett, Don Willett, Don Tuesday, July 16, 2002 11:20 AM Barbara Ledeen (E-mail); Kay Daly (E-mail); Leonard Leo (E-mail); O'Brien, Pat; Heather Wingate (E-mail); Anne Womack (E-mail); Brett Kavanaugh (E-mail); Dinh, Viet; Goodling, Monica; Corallo, Mark; Tim Goeglein (E-mail); Remington, Kristi L; Koebele, Steve; Sales, Nathan; Charnes, Adam; Keefer, Wendy J; Manuel Miranda (E-mail); Alex Dahl (E-mail) Subject: FW: PN Author - Shapiro Letter Attachments: Shapiro Letter.pdf From: Sent: To: Pro-Owen letter below from Texas State Senator Florence Shapiro (R), who was the chief sponsor of Texas' Parental Notification Act in 1999. (BTW, Sen. Shapiro is pro-choice, though the letter makes no mention of that fact, per her request. Granted, it removes some of the rhetorical punch, but it's still a solid letter -- arguing that Owen's interpretation of the Act was perfectly in line with what lawmakers intended, etc.) Kristi: pls. place this in our pn binder. DRW -----Original Message----From: Koebele, Steve Sent: Monday, July 15, 2002 9:01 PM To: Willett, Don Remington, Kristi L; Keefer, Wendy J; Dinh, Viet; Sales, Nathan; Charnes, Adam Cc: Subject: PN Author - Shapiro Letter Don -- Attached is the Sen Shapiro letter in PDF for Owen material use. EXT-18-2091-C-000047 007104-000739 Document ID: 0.7.19343.8062 Willett, Don Willett, Don Tuesday, July 16, 2002 11:20 AM Barbara Ledeen (E-mail); Kay Daly (E-mail); Leonard Leo (E-mail); O'Brien, Pat; Heather Wingate (E-mail); Anne Womack (E-mail); Brett Kavanaugh (E-mail); Dinh, Viet; Goodling, Monica; Corallo, Mark; Tim Goeglein (E-mail); Remington, Kristi L; Koebele, Steve; Sales, Nathan; Charnes, Adam; Keefer, Wendy J; Manuel Miranda (E-mail); Alex Dahl (E-mail) Subject: FW: PN Author - Shapiro Letter Attachments: Shapiro Letter.pdf From: Sent: To: Pro-Owen letter below from Texas State Senator Florence Shapiro (R), who was the chief sponsor of Texas' Parental Notification Act in 1999. (BTW, Sen. Shapiro is pro-choice, though the letter makes no mention of that fact, per her request. Granted, it removes some of the rhetorical punch, but it's still a solid letter -- arguing that Owen's interpretation of the Act was perfectly in line with what lawmakers intended, etc.) Kristi: pls. place this in our pn binder. DRW -----Original Message----From: Koebele, Steve Sent: Monday, July 15, 2002 9:01 PM To: Willett, Don Remington, Kristi L; Keefer, Wendy J; Dinh, Viet; Sales, Nathan; Charnes, Adam Cc: Subject: PN Author - Shapiro Letter Don -- Attached is the Sen Shapiro letter in PDF for Owen material use. EXT-18-2091-C-000047 007104-000739 Document ID: 0.7.19343.8062 Jl.L 15 2002 16:58 FR ~TCR 9-l=PIRO 512 463 75?9 TO 92B25142424 P . 02/03 OISTRJCTOf'l'ICI!: S!NATOR FLORENCE SHAPIRO DISTRICT& Dl5Addllar!Qde Adllawl,T-7SIOt (IJ72)-.o876 (m).,.n(FIX) ~= SlateAhiis, c,,,,;,~ ti!\~~~1UU~ 1111111,go~enNMntal Aalllllol'ls ~ AUSTIN0mCe: gf flrJre~tat~ cf tlr.exao P.O.b120II Auatin,T... 18711 (512.)4e3-C108 (112).,.r.ml(l"U) 'f1X>1<1<lll..t::: VWt:::11:, lt:::1..UIU UII lUll UI liability law is middle of the road and neither pro plaintiff or pro defendant. If our goal is simply to show that opponents have mischaracterized Justice Owen 's views on tort law, here is what I suggest. 1) We wait until Monday so that opponents do not get some sycophant from ATLAto rebut it. 2) I have worked with Senator Hatch and his staff on all liability issues since he was first elected to office. He is a friend. I would like to alert his staff to the issues and e-mail the letter to him so that he can make use of it as he sees fit in the hearing. If our goal, in addition, is to persuade Democrats to support Justice Owen, I would utilize a good relationship with Senator Kohl's office. Senator Kohl would be very unhappy if Justice Owen 's record on liability law was mischaracterized simply for the purpose of scoring political points. I could meet with the Senator and/or his Staff to make the point, but I would have to share the letter as back up. Please sha re your thoughts as soon as possible. Thanks in advance. Victor E. Schwartz Shook, Hardy & Bacon L.L.P. 600 14th Street, N.W., Suite 800 Washington, D.C. 20005-2004 Telephone (202) 662-4886 Fax (202) 783-4211 vschwartz@shb .com "MMS" ma de the following annotations on 07/18/2002 08:44:19 AM From the law offices of Shook, Hardy & Bacon L.L.P. CONFIDENTIALITY NOTICE:This e-mail message including attachments , if any, is intended only for the person or entity to which it is addressed and may contain confidential and /or privileged material. Any unauthorized review , use, disclosure or distribution is prohibited . If you are not the intended recipient , please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient but do not wish to receive communications through this medium, please so advise the sender imme diately. EXT-18-2091-C-000051 007104-000743 Document ID: 0.7.19343.8107 VVt::: lldVt::: 1:::- llldllt:::-U yuu U lt:: lt:::llt:::I lU Lt:::dr ly. 1111= lt:::-llt:::I :,r 1uw:, U ldl~U!>lll..t::: VWt:::11:, lt:::1..UIU UII lUll UI liability law is middle of the road and neither pro plaintiff or pro defendant. If our goal is simply to show that opponents have mischaracterized Justice Owen 's views on tort law, here is what I suggest. 1) We wait until Monday so that opponents do not get some sycophant from ATLAto rebut it. 2) I have worked with Senator Hatch and his staff on all liability issues since he was first elected to office. He is a friend. I would like to alert his staff to the issues and e-mail the letter to him so that he can make use of it as he sees fit in the hearing. If our goal, in addition, is to persuade Democrats to support Justice Owen, I would utilize a good relationship with Senator Kohl's office. Senator Kohl would be very unhappy if Justice Owen 's record on liability law was mischaracterized simply for the purpose of scoring political points. I could meet with the Senator and/or his Staff to make the point, but I would have to share the letter as back up. Please sha re your thoughts as soon as possible. Thanks in advance. Victor E. Schwartz Shook, Hardy & Bacon L.L.P. 600 14th Street, N.W., Suite 800 Washington, D.C. 20005-2004 Telephone (202) 662-4886 Fax (202) 783-4211 vschwartz@shb .com "MMS" ma de the following annotations on 07/18/2002 08:44:19 AM From the law offices of Shook, Hardy & Bacon L.L.P. CONFIDENTIALITY NOTICE:This e-mail message including attachments , if any, is intended only for the person or entity to which it is addressed and may contain confidential and /or privileged material. Any unauthorized review , use, disclosure or distribution is prohibited . If you are not the intended recipient , please contact the sender by reply e-mail and destroy all copies of the original message. If you are the intended recipient but do not wish to receive communications through this medium, please so advise the sender imme diately. EXT-18-2091-C-000051 007104-000743 Document ID: 0.7.19343.8107 Sales , Nathan From : Sales, Nathan Sent : Friday, July 19, 2002 1:10 PM To: ' Manuel Miranda '; Willett , Don; Koebele , Steve; 'Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: Owen I'm gonna hand this one off to Steve, the resident expert on all things Texas. -Or iginal Message-From: Manuel Miranda [mailto:Manue l_ Miranda@judiciary.senate.gov] Sent: Friday, July 19, 2002 1:07 PM To: Willett, Don; Sales, Nathan ; Koebele, Steve ; Brett_ M._ Kavanaugh@who.eop.gov Subject: Owen What is the connection between Owen and Texans for Lawsuit Reform (larger issue) and the Texas Civil Justice League (smaller)? Is their any coincidence in her donors and theirs? EXT-18-2091-C-000052 007104-000744 Document ID: 0.7.19343.508 1 Sales , Nathan From : Sales, Nathan Sent : Friday, July 19, 2002 1:10 PM To: ' Manuel Miranda '; Willett , Don; Koebele , Steve; 'Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: Owen I'm gonna hand this one off to Steve, the resident expert on all things Texas. -Or iginal Message-From: Manuel Miranda [mailto:Manue l_ Miranda@judiciary.senate.gov] Sent: Friday, July 19, 2002 1:07 PM To: Willett, Don; Sales, Nathan ; Koebele, Steve ; Brett_ M._ Kavanaugh@who.eop.gov Subject: Owen What is the connection between Owen and Texans for Lawsuit Reform (larger issue) and the Texas Civil Justice League (smaller)? Is their any coincidence in her donors and theirs? EXT-18-2091-C-000052 007104-000744 Document ID: 0.7.19343.508 1 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 23, 2002 9:14 AM To: Willett, Don; 'Anne Womack ( E-mail)'; Goodling, Monica; 'Manuel Miranda ( Email) ' ;' Alex Dahl (E-mail) ' ; 'Heather Wingate (E-mail)'; ' Brett Kavanaugh (Ema il)' ; Sales, Nathan; Remington , Kristi L; Koebele, Steve; 'Barbara Ledeen {Ema il)'; 'Kay Daly (E-mail)' Subjec t : LATimes Don, Nathan or Kristi, EXT-18-2091-C-000053 007104-000745 Document ID: 0.7.19343.8129 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 23, 2002 9:14 AM To: Willett, Don; 'Anne Womack ( E-mail)'; Goodling, Monica; 'Manuel Miranda ( Email) ' ;' Alex Dahl (E-mail) ' ; 'Heather Wingate (E-mail)'; ' Brett Kavanaugh (Ema il)' ; Sales, Nathan; Remington , Kristi L; Koebele, Steve; 'Barbara Ledeen {Ema il)'; 'Kay Daly (E-mail)' Subjec t : LATimes Don, Nathan or Kristi, EXT-18-2091-C-000053 007104-000745 Document ID: 0.7.19343.8129 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday , July 25, 2002 7:18 PM To: Willett , Don; Charnes , Adam; Sutton , Jason ; Remington, Kristi L; Corallo , Mark; Sc.ottfinan, Nancy; Sales , Nathan; O' Brien, Pat. Koebele, Steve ; Dinh, Viet; 'alex_dah l@jud iciary.senate. ov'; 'joe_ja h enate.gov '; anuel _ miranda@jud iciary.senate.gov '; leonard lea (e-mai l} Subject : - President Bush's comments in North Carolina on judges 7/ 25/ 02 ... I want my judges to get a fair hearing . (Applause. ) I picked - I nominated good people to serve on the bench , good , qua lified, dist inguishe d Americans - like Terry Boyle. I put his name out there (applause.) I put his name out there 14 months ago, and he can 't get a hear ing. I nominated a fabulous woman from Texas named Pricilla Owen, a great jurist ranked at the highest rating by the ABA,ran tw ice statewide in Texas and won. And yet, when you listen to the rhetor ic up there, it's all politics in Washington, D.C. They're not willing to give these judges the ir fair shake and a fair due. It's time to get the Senate in the hands of people who will approve the good jurists I send , so we can have a federal bench that will not - that will strict ly interpret the Constitution of the United States of America. (Applause.) . . . EXT-18-2091-C-000054 007104-000746 Docume nt ID: 0.7.19343 .8143 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday , July 25, 2002 7:18 PM To: Willett , Don; Charnes , Adam; Sutton , Jason ; Remington, Kristi L; Corallo , Mark; Sc.ottfinan, Nancy; Sales , Nathan; O' Brien, Pat? Koebele, Steve ; Dinh, Viet; 'alex_dah l@jud iciary.senate. ov'; 'joe_ja h enate.gov '; anuel _ miranda@jud iciary.senate.gov '; leonard lea (e-mai l} Subject : - President Bush's comments in North Carolina on judges 7/ 25/ 02 ... I want my judges to get a fair hearing . (Applause. ) I picked - I nominated good people to serve on the bench , good , qua lified, dist inguishe d Americans - like Terry Boyle. I put his name out there (applause.) I put his name out there 14 months ago, and he can 't get a hear ing. I nominated a fabulous woman from Texas named Pricilla Owen, a great jurist ranked at the highest rating by the ABA,ran tw ice statewide in Texas and won. And yet, when you listen to the rhetor ic up there, it's all politics in Washington, D.C. They're not willing to give these judges the ir fair shake and a fair due. It's time to get the Senate in the hands of people who will approve the good jurists I send , so we can have a federal bench that will not - that will strict ly interpret the Constitution of the United States of America. (Applause.) . . . EXT-18-2091-C-000054 007104-000746 Docume nt ID: 0.7.19343 .8143 Dinh, Viet From : Dinh, Viet Sent : Sunday, July 28, 2002 6:57 PM To: 'Manuel_Miranda@jud iciary.senate.gov '; Willett Don; 'Brett_ M._ Kavanaugh@who.eop.gov'; ' ov' Su bjec t : Re: Fwd:link I will work on groner. Can someone work on cal thomas? -Original Message-From: Manuel Miranda To: Willett, Don ; Dinh, Viet ; Brett_ M._ Kavanaugh@who.eop.gov ; Sent: Sun Jul 28 18:46:01 2002 Subject: Fwd:link http ://www.humaneventsonline.com/articles/06-04-01/jeffrey.html Received: from mailsims2.senate.gov ({156.33.203.11)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 0040FB49; Wed, 10 Jul 2002 14:06:08 --0400 Received: from imor02.mx.aol.com by mailsims2.senate.gov (Sun Internet Mail Server sims.3.S.2000.03.23. 18.03.plO ) with SMTP id <0GZ1004NFOXLVT@mailsims2.senate.gov> for manuel _ miranda@judiciary.senate.go v; Wed , 10 Jul 2002 14:05 :46 -0400 (EDT) Received: fro y imor02.mx.aol.com (mail_out_v32.21.) id v.15f.106e2052 (2 or ? Wed 10 Jul 2002 14:05:31 -0400 (EDT) Date : Wed, 10 Jul 2002 14:05:3 1 -0400 (EDT) From: ubject: link To: manuel_miranda@judiciary.senate.gov Message -id: <15f.106e2052.2a5dd16b@aol.com> MIME-version: 1.0 X-Mailer: AOL 7.0 for Windows US sub 10512 Content-type: text /pl ain; charset=US--ASCIIContent-transfer-encoding: 7bit EXT-18-2091-C-000055 007104-000747 Document ID: 0.7.19343.8150 Dinh, Viet From : Dinh, Viet Sent : Sunday, July 28, 2002 6:57 PM To: 'Manuel_Miranda@jud iciary.senate.gov '; Willett Don; 'Brett_ M._ Kavanaugh@who.eop.gov'; ' ov' Su bjec t : Re: Fwd:link I will work on groner. Can someone work on cal thomas? -Original Message-From: Manuel Miranda To: Willett, Don ; Dinh, Viet ; Brett_ M._ Kavanaugh@who.eop.gov ; Sent: Sun Jul 28 18:46:01 2002 Subject: Fwd:link http ://www.humaneventsonline.com/articles/06-04-01/jeffrey.html Received: from mailsims2.senate.gov ({156.33.203.11)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 0040FB49; Wed, 10 Jul 2002 14:06:08 --0400 Received: from imor02.mx.aol.com by mailsims2.senate.gov (Sun Internet Mail Server sims.3.S.2000.03.23. 18.03.plO ) with SMTP id <0GZ1004NFOXLVT@mailsims2.senate.gov> for manuel _ miranda@judiciary.senate.go v; Wed , 10 Jul 2002 14:05 :46 -0400 (EDT) Received: fro y imor02.mx.aol.com (mail_out_v32.21.) id v.15f.106e2052 (2 or . Wed 10 Jul 2002 14:05:31 -0400 (EDT) Date : Wed, 10 Jul 2002 14:05:3 1 -0400 (EDT) From: ubject: link To: manuel_miranda@judiciary.senate.gov Message -id: <15f.106e2052.2a5dd16b@aol.com> MIME-version: 1.0 X-Mailer: AOL 7.0 for Windows US sub 10512 Content-type: text /pl ain; charset=US--ASCIIContent-transfer-encoding: 7bit EXT-18-2091-C-000055 007104-000747 Document ID: 0.7.19343.8150 Dinh, Viet From : Dinh, Viet Sent : Sunday, July 28, 2002 11:25 PM To: 'Manuel_Miranda@judiciary.senate.gov'; l. 'Brett M. Kavanaugh@who.eop.gov'; Cc: Willett, Don; Sales , Nathan; Koebele , Steve Subje ct : Re: Idea, your thoughts? Remington , Kristi ' Alex_ Dahl@judiciary.senate.gov '; o- --Or iginal Message--From: Manuel Miranda To: Remington, Kristi L ; Dinh, Viet ; Brett _M._ Kavanaugh@who.eop.gov ; Alex Dahl ; Alex Dahl CC: Willett , Don ; Sales, Nathan ; Koebele , Steve Sent: Sun Jul 28 19:30:01 2002 Subject: Idea, your thoughts? EXT-18-2091-C-000056 007104-000748 Document ID: 0.7.19343.8152 Dinh, Viet From : Dinh, Viet Sent : Sunday, July 28, 2002 11:25 PM To: 'Manuel_Miranda@judiciary.senate.gov'; l? 'Brett M. Kavanaugh@who.eop.gov'; Cc: Willett, Don; Sales , Nathan; Koebele , Steve Subje ct : Re: Idea, your thoughts? Remington , Kristi ' Alex_ Dahl@judiciary.senate.gov '; o- --Or iginal Message--From: Manuel Miranda To: Remington, Kristi L ; Dinh, Viet ; Brett _M._ Kavanaugh@who.eop.gov ; Alex Dahl ; Alex Dahl CC: Willett , Don ; Sales, Nathan ; Koebele , Steve Sent: Sun Jul 28 19:30:01 2002 Subject: Idea, your thoughts? EXT-18-2091-C-000056 007104-000748 Document ID: 0.7.19343.8152 Benczkowski , Brian A From: Benczkowski, Brian A Sent : Monday, July 29, 2002 8:30 PM To: Dinh.,Viet; 'brett_m._kavanaugh@who.eop.gov' Subject : FW: NRNRaggi BAB - Original Message-- From: Barbara Ledeen < To: Willett , Don ; manuel _ miranda@judiciary.senate .gov Sent: Mon Jul 29 18:08:03 2002 Subject: NRA/Raggi have you got this already? Barbara Ledeen Director of Coalitions Conferen ce _________ Forward Header _________ Subject: IMPORTANT INFORMATIONABOUTA CERTAINJUDICIALNOMINATIONAuthor: "Charles H. Cunningham " Date: 7/26/2002 6:31 PM U.S. District Judge Reena Raggi, who is nominated for the U.S. Court of Appeals for the Second Circuit, upheld in its entirety New York City's "assault weapons " ban in Richmond Boro Gun Club, Inc. v. City of New York, 896 F. Supp. 276 (E.D. N.Y. 1995), aff'd 97 F.3d 681 {2nd Cir. 1996). Signed into law by then-Mayor Dinkins, the ban de fined "assault weapon " extremely broadly, to include even the 8-shot Ml Garand carried by Gls in World War II, sold to citizens ever since through the fe dera l government 's Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government -supporte d matches. The law had no grandfather clause, and police used the City's rifle/shot gun reg istrat ion system to contact and threaten gun owners. Judge Raggi's opinion accepted arguments ma de by the city and by the Center to Prevent Handgun violence; parts of the opinion rea d like anti -gun propaganda , as when she stated , "The rational link h~hoo~~- - . ,(.,.I:~ EXT-18-2091-C-000057 007104-000749 Document ID: 0.7.19343 .8159 Benczkowski , Brian A From: Benczkowski, Brian A Sent : Monday, July 29, 2002 8:30 PM To: Dinh.,Viet; 'brett_m._kavanaugh@who.eop.gov' Subject : FW: NRNRaggi BAB - Original Message-- From: Barbara Ledeen < To: Willett , Don ; manuel _ miranda@judiciary.senate .gov Sent: Mon Jul 29 18:08:03 2002 Subject: NRA/Raggi have you got this already? Barbara Ledeen Director of Coalitions Conferen ce _________ Forward Header _________ Subject: IMPORTANT INFORMATIONABOUTA CERTAINJUDICIALNOMINATIONAuthor: "Charles H. Cunningham " Date: 7/26/2002 6:31 PM U.S. District Judge Reena Raggi, who is nominated for the U.S. Court of Appeals for the Second Circuit, upheld in its entirety New York City's "assault weapons " ban in Richmond Boro Gun Club, Inc. v. City of New York, 896 F. Supp. 276 (E.D. N.Y. 1995), aff'd 97 F.3d 681 {2nd Cir. 1996). Signed into law by then-Mayor Dinkins, the ban de fined "assault weapon " extremely broadly, to include even the 8-shot Ml Garand carried by Gls in World War II, sold to citizens ever since through the fe dera l government 's Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government -supporte d matches. The law had no grandfather clause, and police used the City's rifle/shot gun reg istrat ion system to contact and threaten gun owners. Judge Raggi's opinion accepted arguments ma de by the city and by the Center to Prevent Handgun violence; parts of the opinion rea d like anti -gun propaganda , as when she stated , "The rational link h~hoo~~- - ? ,(.,.I:~ EXT-18-2091-C-000057 007104-000749 Document ID: 0.7.19343 .8159 IJ~lW~~ll uuum; safety and a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion." (In fact, the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
U.S. District Judge Reena Raggi, who is nominated for t he U.S. Court of Appeals for the Second Circuit, upheld in its entirety New York City' s "assault weapons" ban in Richmond Bora Gun Club, Inc. v. City of Ne w
York, 896 F. Supp. 276 (E.D. N.Y. 1995), aff 'd 97 F.3d 681 {2nd Cir. 1996).

Signed into law by tnen-Mayor Dinkins , the ban def ine d "assault weapon"
extremely broadly, to include even the 8-shot Ml Garand carried by Gls in World War II, sold to citi zens ever since through the federal government's Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government-supported matches. The law had no grandfather clause, and police used the City's rifle/shotgun registration system to contact and threaten gun owners.

Judge Raggi's op in ion accepted arguments made by the city and by the Center to Prevent Handgun violence; parts of the opinion read like anti-gun propaganda , as when she stated, 'T he rational link between public
safety and a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion ." (In fact, the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
 Received: from mailsims1.senate.gov {[156.33.203.10)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 0049CGBP30; Fri, 26 Jul 2002 18:33:49 -0400 Received: from visi.net (arsenal.vi s i.net) by mailsimsl.senate.gov {Sun Internet Mail Serve r sims.3 .5.2000.03.23 .18.03.p10 ; Fri, ) with SMTP id for 26 Jul 2002 18:33:51 -0400 (EDT) Received: from [216 .2.18.66 (HELO Cunnin ham) by visi.net (CommuniG ate Pro SMTP 3.5.6) with ESMTP id 41301166 for . Fri, 26 Jul 2002 18:31:53 -0400 Date: Fri, 26 Jul 2002 18:31:55 -0400 From: "Charles H. Cunningham" Subject: IMPORTANT INFORMATIONABOUT A CERTAINJUDICIALNOMINATION Message-id: <01a101c234f4$3f6121b0 To: "Ledeen, Barbara {SRC)" < $710012ac@Cunningham> MIME-version: 1.0 X-Mailer: Microsoft Outlook Express 5.00.2919.6700 Content-type: MULTIPART/AlTERNATIVE;X-Virus-Scanner: McAfee Virus Engine X-MSMail-Priority: Normal X-MimeOLE: Produced By Microsoft MimeOLE VS.00.2919.6700 X-Priority: 3 EXT-18-2091-C-000058 007104 -000750 IJ~lW~~ll uuum; safety and a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion." (In fact, the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
U.S. District Judge Reena Raggi, who is nominated for t he U.S. Court of Appeals for the Second Circuit, upheld in its entirety New York City' s "assault weapons" ban in Richmond Bora Gun Club, Inc. v. City of Ne w
York, 896 F. Supp. 276 (E.D. N.Y. 1995), aff 'd 97 F.3d 681 {2nd Cir. 1996).

Signed into law by tnen-Mayor Dinkins , the ban def ine d "assault weapon"
extremely broadly, to include even the 8-shot Ml Garand carried by Gls in World War II, sold to citi zens ever since through the federal government's Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government-supported matches. The law had no grandfather clause, and police used the City's rifle/shotgun registration system to contact and threaten gun owners.

Judge Raggi's op in ion accepted arguments made by the city and by the Center to Prevent Handgun violence; parts of the opinion read like anti-gun propaganda , as when she stated, 'T he rational link between public
safety and a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion ." (In fact, the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
 Received: from mailsims1.senate.gov {[156.33.203.10)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 0049C?30; Fri, 26 Jul 2002 18:33:49 -0400 Received: from visi.net (arsenal.vi s i.net) by mailsimsl.senate.gov {Sun Internet Mail Serve r sims.3 .5.2000.03.23 .18.03.p10 ; Fri, ) with SMTP id for 26 Jul 2002 18:33:51 -0400 (EDT) Received: from [216 .2.18.66 (HELO Cunnin ham) by visi.net (CommuniG ate Pro SMTP 3.5.6) with ESMTP id 41301166 for ? Fri, 26 Jul 2002 18:31:53 -0400 Date: Fri, 26 Jul 2002 18:31:55 -0400 From: "Charles H. Cunningham" Subject: IMPORTANT INFORMATIONABOUT A CERTAINJUDICIALNOMINATION Message-id: <01a101c234f4$3f6121b0 To: "Ledeen, Barbara {SRC)" < $710012ac@Cunningham> MIME-version: 1.0 X-Mailer: Microsoft Outlook Express 5.00.2919.6700 Content-type: MULTIPART/AlTERNATIVE;X-Virus-Scanner: McAfee Virus Engine X-MSMail-Priority: Normal X-MimeOLE: Produced By Microsoft MimeOLE VS.00.2919.6700 X-Priority: 3 EXT-18-2091-C-000058 007104 -000750 Sales , Nathan From : Sales , Nathan Sent : Monday, July 29, 2002 12:05 PM To: 'Brett_M._Kavanaug h@who.eop.gov '; 'Manue l Miranda ' Cc: Willett, Don; Koebele , Steve Subje ct : RE: Help requested I think Brett has covered the core issues; I'd only add the following: 1. The Court didn't think Owen was publ ishing too much detai l. Although the majority in Doe 1(11) chastized Hecht for doing so, it never criticized Owen. 2. The girl never asked for an immed iate decision, and never indicated that an immediate decision was necessary to enable her to have a part icular type of abortion. In fact , she sought and rece ived a 7-day continuance from the appe llate court . 3. Just ice Owen 's conclusion in Doe 4(1) was vindicated in Doe 4(11),where t he court unanimously denied bypass. Also, the Doe 4(1)major ity recognized that the girl's test imony "large ly consisted of monosy llabic responses to leading quest ions." Also, there was no evidence that the parents had cut off the elder sister before she turned 18: the girl testif ied that her sister was "17 or 18" when she became pregnant. -Or iginal Message-From: Brett_ M._ Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanaugh@ who.eop.gov] Sent: Sunday, July 28, 2002 7 :03 PM To: Manuel Miranda Cc: Willett , Don; Sales, Nathan ; Koebele, Steve Subject: Re: Help requested Nathan and Steve shou ld elaborate, but my preliminary take: 1. First , the name Jane Doe is used pre cisely to protect privacy of the individuals. Second, all Justices in these cases discussed and quoted from the record extensive ly. See the major ity opinion in Doe 2, the Gonzales opinion in Doe 3, the Enoch opinion in Doe 3, the major ity opinion in Doe 4, et c. This is simply a bogus charge to direct at Owen. 2. Justice Owen be lieved that opinions could be written in a few days as courts often do in emergency cases of this nature. She specifically stated that the judgment with opin ions should have been issued on March 13 instead of a summary order without opinions on March 10. She did not suggest delay ing decision "for months. " 3. In this case, the court unanimous ly agree d that the record did not meet the standard for a bypass. Six Justices conclude d that a remand was appropriate. Justice Owen and two others argued, however , that Doe simp ly failed to make the required showing and that a remand was inappropriate. EXT-18-2091-C-000059 007104-000751 Document ID: 0.7.19343.5146 Sales , Nathan From : Sales , Nathan Sent : Monday, July 29, 2002 12:05 PM To: 'Brett_M._Kavanaug h@who.eop.gov '; 'Manue l Miranda ' Cc: Willett, Don; Koebele , Steve Subje ct : RE: Help requested I think Brett has covered the core issues; I'd only add the following: 1. The Court didn't think Owen was publ ishing too much detai l. Although the majority in Doe 1(11) chastized Hecht for doing so, it never criticized Owen. 2. The girl never asked for an immed iate decision, and never indicated that an immediate decision was necessary to enable her to have a part icular type of abortion. In fact , she sought and rece ived a 7-day continuance from the appe llate court . 3. Just ice Owen 's conclusion in Doe 4(1) was vindicated in Doe 4(11),where t he court unanimously denied bypass. Also, the Doe 4(1)major ity recognized that the girl's test imony "large ly consisted of monosy llabic responses to leading quest ions." Also, there was no evidence that the parents had cut off the elder sister before she turned 18: the girl testif ied that her sister was "17 or 18" when she became pregnant. -Or iginal Message-From: Brett_ M._ Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanaugh@ who.eop.gov] Sent: Sunday, July 28, 2002 7 :03 PM To: Manuel Miranda Cc: Willett , Don; Sales, Nathan ; Koebele, Steve Subject: Re: Help requested Nathan and Steve shou ld elaborate, but my preliminary take: 1. First , the name Jane Doe is used pre cisely to protect privacy of the individuals. Second, all Justices in these cases discussed and quoted from the record extensive ly. See the major ity opinion in Doe 2, the Gonzales opinion in Doe 3, the Enoch opinion in Doe 3, the major ity opinion in Doe 4, et c. This is simply a bogus charge to direct at Owen. 2. Justice Owen be lieved that opinions could be written in a few days as courts often do in emergency cases of this nature. She specifically stated that the judgment with opin ions should have been issued on March 13 instead of a summary order without opinions on March 10. She did not suggest delay ing decision "for months. " 3. In this case, the court unanimous ly agree d that the record did not meet the standard for a bypass. Six Justices conclude d that a remand was appropriate. Justice Owen and two others argued, however , that Doe simp ly failed to make the required showing and that a remand was inappropriate. EXT-18-2091-C-000059 007104-000751 Document ID: 0.7.19343.5146 Justi ce Owen argued, moreover , that the potentially negative reaction ot the parents ot a pregnant minor when the minor becomes an adu lt does not meet the statutory ''best interest" standard for a bypass. {Embedded image moved Manuel_Miranda@judiciary.senate.gov to file: Miranda) pic15642. pcx) 07/28/2002 06:33:10 PM (Manuel Record Type: Record To: "Willett ; Don" , "Sales ; Nathan " , "Koebele ; Steve" , Brett M. Kavanaugh/WHO / EOP@EOP cc: Subject: Help requ ested I would ask that no action be taken by any of your offices on this for now except as I request. It is important that it be confidential to the recipients of this email and up your chains of authority only. As I ment ioned on Friday, Senator Leahy?s staff has distributed a ?confidential? letter to Dem Counsel on Thursday from Collyn Peddie , who served as the attorney for ?Jane Doe? in some or several of the Texas bypass cases. According to either the letter or the Leahy staff Ms. Peddie sent this letter in the strictest confidence because she is up for partner , and believes she will be fired if it is publicized. Several members of her firm are lead supporters of the Owen nomination. Leahy?s staff is only s har ing with Democratic counsels. However, we might expect th is letter to be used like the Brenda Polkey in Pickering at a moment when we are unable to res pond. Ms. Peddie is being portrayed as a sma ll oppressed lawyer fearing repercussions if her name gets out and the brave attorney who re presented the ?girl in trouble? in Jane Doe 1. In fact , she is the attorney for Planned Parenthood who argued JD cases and the Buffer Zone case and on the boar d of Planned Parenthood of Texas, among other things. I will copy you on our research on her. For now I need priority he lp early Monday from the A team in briefly commenting on these items (two or three sentences ). I have not seen the letter but it strongly criticizes Owen ?s actions on the Doe cases , especia lly for her ?appalling insensitivity? to the pregnant minors before her court . Owen violate d the confidentialitv of the Jane Does in her written opinions Specifically, Peddie accuses EXT-18-2091-C-000060 007104-000752 Document ID: 0.7.19343 .5146 Justi ce Owen argued, moreover , that the potentially negative reaction ot the parents ot a pregnant minor when the minor becomes an adu lt does not meet the statutory ''best interest" standard for a bypass. {Embedded image moved Manuel_Miranda@judiciary.senate.gov to file: Miranda) pic15642. pcx) 07/28/2002 06:33:10 PM (Manuel Record Type: Record To: "Willett ; Don" , "Sales ; Nathan " , "Koebele ; Steve" , Brett M. Kavanaugh/WHO / EOP@EOP cc: Subject: Help requ ested I would ask that no action be taken by any of your offices on this for now except as I request. It is important that it be confidential to the recipients of this email and up your chains of authority only. As I ment ioned on Friday, Senator Leahy?s staff has distributed a ?confidential? letter to Dem Counsel on Thursday from Collyn Peddie , who served as the attorney for ?Jane Doe? in some or several of the Texas bypass cases. According to either the letter or the Leahy staff Ms. Peddie sent this letter in the strictest confidence because she is up for partner , and believes she will be fired if it is publicized. Several members of her firm are lead supporters of the Owen nomination. Leahy?s staff is only s har ing with Democratic counsels. However, we might expect th is letter to be used like the Brenda Polkey in Pickering at a moment when we are unable to res pond. Ms. Peddie is being portrayed as a sma ll oppressed lawyer fearing repercussions if her name gets out and the brave attorney who re presented the ?girl in trouble? in Jane Doe 1. In fact , she is the attorney for Planned Parenthood who argued JD cases and the Buffer Zone case and on the boar d of Planned Parenthood of Texas, among other things. I will copy you on our research on her. For now I need priority he lp early Monday from the A team in briefly commenting on these items (two or three sentences ). I have not seen the letter but it strongly criticizes Owen ?s actions on the Doe cases , especia lly for her ?appalling insensitivity? to the pregnant minors before her court . Owen violate d the confidentialitv of the Jane Does in her written opinions Specifically, Peddie accuses EXT-18-2091-C-000060 007104-000752 Document ID: 0.7.19343 .5146 Owen of publishing ?dissents and concurrences in which paragraph after paragraph of confidential testimony was quoted in great detail.? Owen sought delay of order granting bypass Owen sought to stop the entry of Jane Doe l?s bypass until the court had published all its opinions. The court issued the order over Owen?s objection, but if the Court had adopted Owen ?s position, the pregnant minor would have had to wait three more months to get the abortion. 3. Owen ?s Dissent in Jane Doe 4 Peddie criticized Owen ?s dissent in Jane Doe 4 which argued that parental rights should trump the risk that ?parents would throw a minor girl out on the street upon finding out she was pregnant.? EXT-18-2091-C-000061 007104-000753 Documen t ID: 0.7.19343 .5146 Owen of publishing ?dissents and concurrences in which paragraph after paragraph of confidential testimony was quoted in great detail.? Owen sought delay of order granting bypass Owen sought to stop the entry of Jane Doe l?s bypass until the court had published all its opinions. The court issued the order over Owen?s objection, but if the Court had adopted Owen ?s position, the pregnant minor would have had to wait three more months to get the abortion. 3. Owen ?s Dissent in Jane Doe 4 Peddie criticized Owen ?s dissent in Jane Doe 4 which argued that parental rights should trump the risk that ?parents would throw a minor girl out on the street upon finding out she was pregnant.? EXT-18-2091-C-000061 007104-000753 Documen t ID: 0.7.19343 .5146 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 30, 2002 11:49 AM To: '8rett_M._Kavanaugh@who.eop.gov'; Cc: Willett, Don; 'Heather_ Wingate@who.eop.gov ' Subjec t : Rt: NEWS 'Manuel Miranda ' Am calling vie basetti now. - Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett _ M._ Kavanaugh@who.eop.gov] Sent: Tuesday, July 30, 2002 11:46 AM To: Manuel Miranda Cc: Willett , Don; Dinh, Viet; Heather_Wingate@who.eop.gov Subject: Re: NEWS What about Kohl? (Embedded image moved Manuel _ Miranda@judiciary.senate.gov to file: Miranda) pic23048.pcx) 07/30/2002 11:43:04 AM (Manuel Record Type: Record To: Brett M. Kavanaugh/WHO/ EOP@EOP, ..Willett; Don" , "Dinh; Viet" , Heather Wingate/WHO/EOP@EOP cc: Subject: NEWS I have it on 100% info th at Leahy is trying to convene the Oems this afternoon after Policy Lunch to check on where they stand on Owen. He is seeking to place Owen on for this Thursday with the view that we would hold over. Feinstein and Feingold are still not saying how they will vote an d this bothers EXT-18-2091-C-000062 007104-000754 Document ID: 0.7.19343.8161 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 30, 2002 11:49 AM To: '8rett_M._Kavanaugh@who.eop.gov'; Cc: Willett, Don; 'Heather_ Wingate@who.eop.gov ' Subjec t : Rt: NEWS 'Manuel Miranda ' Am calling vie basetti now. - Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett _ M._ Kavanaugh@who.eop.gov] Sent: Tuesday, July 30, 2002 11:46 AM To: Manuel Miranda Cc: Willett , Don; Dinh, Viet; Heather_Wingate@who.eop.gov Subject: Re: NEWS What about Kohl? (Embedded image moved Manuel _ Miranda@judiciary.senate.gov to file: Miranda) pic23048.pcx) 07/30/2002 11:43:04 AM (Manuel Record Type: Record To: Brett M. Kavanaugh/WHO/ EOP@EOP, ..Willett; Don" , "Dinh; Viet" , Heather Wingate/WHO/EOP@EOP cc: Subject: NEWS I have it on 100% info th at Leahy is trying to convene the Oems this afternoon after Policy Lunch to check on where they stand on Owen. He is seeking to place Owen on for this Thursday with the view that we would hold over. Feinstein and Feingold are still not saying how they will vote an d this bothers EXT-18-2091-C-000062 007104-000754 Document ID: 0.7.19343.8161 them. The bad news is that they are not concerne d about Biden. That bothers me. Suggested action. WH should intervene with Feingold an d Feinstein as soon as possible . OLP might write Leahy and remind him that he promised Owen the ample opportunity to respond to questions (Kennedy's came out today. In either case , refer only to rumor, not to me. EXT-18-2091-C-000063 007104-000755 Document ID: 0.7.19343 .8161 them. The bad news is that they are not concerne d about Biden. That bothers me. Suggested action. WH should intervene with Feingold an d Feinstein as soon as possible . OLP might write Leahy and remind him that he promised Owen the ample opportunity to respond to questions (Kennedy's came out today. In either case , refer only to rumor, not to me. EXT-18-2091-C-000063 007104-000755 Document ID: 0.7.19343 .8161 Willett, Don From: Sent: To: Cc: Subject: Willett, Don Tuesday, July 30, 2002 5:45 PM Koebele, Steve Dinh, Viet; Charnes, Adam; Goodling, Monica; Brett Kavanaugh (E-mail); Manuel Miranda (E-mail); Remington, Kristi L; Sales, Nathan RE: Leahy Commits - Oopportunity to Expand, No Cut Off Thanks, Steve. I also recall Durbin mentioning something about written questions, too. For right now, do a text search through the transcript for "answer" and "question" and "written", then you can do a more thorough read-through. DRW -----Original Message----Koebele, Steve From: Sent: Tuesday, July 30, 2002 5:39 PM Willett, Don To: Cc: Dinh, Viet; Charnes, Adam Subject: Leahy Commits - Oopportunity to Expand, No Cut Off Don -- I am pulling all helpful quotations, but in the interest of time, the following is the best give-and-take: SEN. LEAHY: Well, please understand that on the time, you have the opportunity -- and I'm sure that Senator Feinstein would agree with this -- you have an opportunity to expand on any of your answers. Nobody wants to cut you off. If you have an area where you feel you did not have an opportunity to fully answer, of course you can add that for the record. And I will be submitting other questions. And, of course, if you feel that they're not clear and you need more information, we'll do that too. MS. OWEN: I appreciate it. SEN. LEAHY: Nobody is trying -- as I said at the beginning, unlike Senator Hatch, I try to make up my mind after the hearing, not before. MS. OWEN: I appreciate that. EXT-18-2091-C-000064 007104-000756 Document ID: 0.7.19343.8169 Willett, Don From: Sent: To: Cc: Subject: Willett, Don Tuesday, July 30, 2002 5:45 PM Koebele, Steve Dinh, Viet; Charnes, Adam; Goodling, Monica; Brett Kavanaugh (E-mail); Manuel Miranda (E-mail); Remington, Kristi L; Sales, Nathan RE: Leahy Commits - Oopportunity to Expand, No Cut Off Thanks, Steve. I also recall Durbin mentioning something about written questions, too. For right now, do a text search through the transcript for "answer" and "question" and "written", then you can do a more thorough read-through. DRW -----Original Message----Koebele, Steve From: Sent: Tuesday, July 30, 2002 5:39 PM Willett, Don To: Cc: Dinh, Viet; Charnes, Adam Subject: Leahy Commits - Oopportunity to Expand, No Cut Off Don -- I am pulling all helpful quotations, but in the interest of time, the following is the best give-and-take: SEN. LEAHY: Well, please understand that on the time, you have the opportunity -- and I'm sure that Senator Feinstein would agree with this -- you have an opportunity to expand on any of your answers. Nobody wants to cut you off. If you have an area where you feel you did not have an opportunity to fully answer, of course you can add that for the record. And I will be submitting other questions. And, of course, if you feel that they're not clear and you need more information, we'll do that too. MS. OWEN: I appreciate it. SEN. LEAHY: Nobody is trying -- as I said at the beginning, unlike Senator Hatch, I try to make up my mind after the hearing, not before. MS. OWEN: I appreciate that. EXT-18-2091-C-000064 007104-000756 Document ID: 0.7.19343.8169 Willett, Don From: Sent: To: Subject: Willett, Don Tuesday, July 30, 2002 5:58 PM Brett Kavanaugh (E-mail); Goodling, Monica; Manuel Miranda (E-mail); Anne Womack (E-mail); Dinh, Viet; Sales, Nathan; Koebele, Steve FW: fyi Durbin, Schumer and Edwards comments below re. Owen having ample time to submit follow-ups. -----Original Message----From: Remington, Kristi L Tuesday, July 30, 2002 5:55 PM Sent: To: Willett, Don; Koebele, Steve Subject: fyi pg. 51/52 SEN. DURBIN: I'm sorry to interrupt you, but I have very little time here, and if you'd like to submit something along that point of view, I'll be happy to consider it. pg.63(pdf)/61 (word) SEN. SCHUMER: What I'd like to do, because I know my time is up and I appreciate the indulgence, Madam Chairperson, is I'd like to submit some written questions that specifically ask some of these things and see if we can get a more specific answer, and give you a little time maybe to review the case law, whatever you would have to review, as if you were being a judge on the case, in some sense. pg. 73(pdf)/71 (word) SEN. EDWARDS: Let me ask you, if you can't -- I know my time is up, and we need to let other people ask questions. If you have cases such as that, I would actually like to see them. I think all of us would like to see them. EXT-18-2091-C-000065 007104-000757 Document ID: 0.7.19343.8172 Willett, Don From: Sent: To: Subject: Willett, Don Tuesday, July 30, 2002 5:58 PM Brett Kavanaugh (E-mail); Goodling, Monica; Manuel Miranda (E-mail); Anne Womack (E-mail); Dinh, Viet; Sales, Nathan; Koebele, Steve FW: fyi Durbin, Schumer and Edwards comments below re. Owen having ample time to submit follow-ups. -----Original Message----From: Remington, Kristi L Tuesday, July 30, 2002 5:55 PM Sent: To: Willett, Don; Koebele, Steve Subject: fyi pg. 51/52 SEN. DURBIN: I'm sorry to interrupt you, but I have very little time here, and if you'd like to submit something along that point of view, I'll be happy to consider it. pg.63(pdf)/61 (word) SEN. SCHUMER: What I'd like to do, because I know my time is up and I appreciate the indulgence, Madam Chairperson, is I'd like to submit some written questions that specifically ask some of these things and see if we can get a more specific answer, and give you a little time maybe to review the case law, whatever you would have to review, as if you were being a judge on the case, in some sense. pg. 73(pdf)/71 (word) SEN. EDWARDS: Let me ask you, if you can't -- I know my time is up, and we need to let other people ask questions. If you have cases such as that, I would actually like to see them. I think all of us would like to see them. EXT-18-2091-C-000065 007104-000757 Document ID: 0.7.19343.8172 Willett , Don From : Willett, Don Sent : Wednesday, August 07, 2002 12:37 PM To : ' Manuel Miranda'; Charnes, Adam; Remington, Kristi L; Corallo , Mark; Scottfinan, Nancy; Sales, Nathan; O' Brien, Pat; Koebele, Steve; 'Alex Dahl'; 'anne(u}womack (a) who.eop.gov'; ' brett_m._kavanaugh@who. ~ ~ win '. . e . c uot hutchison.senate.gov '; -'Matthew_E._Sm ith@who.eop.gov ' ; 'Tim_Goeglein@who.eop.gov '; ' Leonard Leo (E-mail)'; Goodling, Monica; Dinh, Viet Subje ct : RE: Owen/ NRO Attachments : Battaglia.pdf Below is a pdf of the pro-Owen letter to Biden from Victor Battaglia, a personal atty to Biden. It merits wide distribution. (The Houston lawye r that Battagl ia refers to, Blake Tartt, is a former Texas State Bar President and also former chair of the ABA's Standing Committee on the Federal Judiciary.) Here's more complete bio stuff on Battaglia and Tartt: VICTOR BATTAGLIA; A personal attorney to Biden, and senior partner in Biggs and Battaglia, in Wilmington. Battaglia has served as an attorney for the State Senate , counsel for the Governor ' s Committee, solicitor for the City of Wilmington , a member of the long Range Court Planning Committee, Delaware Criminal Code Revision Committee and the Judicial Nominating Committee. He has also served as a member of the Delaware Higher Education Commission , the Advisory Committee on the Rules of the Supreme Court, the American Bar Association and the Delaware Bar Association. Mr. Battaglia was a fellow of the American Board of Criminal Lawyers and president of the American Civil Liberties Foundation (Delawa re}. He was also the chair of the American College of Trial Lawyers, Delaware Bar Foundation, Board of Bar Examiners of the Supreme Court of Delaware. In 1993, Mr. Battaglia was awarded the Special Pioneer Award from United Way of Delaware and was recognized in the 1993-94 publication of Best Lawyers in America. Other volunteer work include his service as co-cha irman of the West End Neighborhood House Capital Campaign, a member of the advisory board of the United Negro College Fund, a member of the board of directors of the Delaware Chapter of the American Red Cross, and chair of the board of trustees of Delaware Technical and Community College. BLAKETARTT:A director of the American Judicature Society from 1984 to 1987 , is a graduate of Southern Methodist University and a cum laude graduate of the Southern Methodist University School of Law. He was named a distingu ishe d alumnus of the SMU Law School in 1997. He is a partner in Beirne, Maynard & Parsons , l.L.P. in Houston. He served as president of the State Bar of Texas and as Chair of the Board of Trustees of the Houston Bar Foundation, the Texas Bar Foundation, and of the Fellows of the American Bar Foundation. He is a Fellow of the American College of Trial Lawyers and is a member of the American Board of Trial Advocates, the International Association of Defense Counsel and the American Law Institute. He has also served on the Texas Judicial Council. He is a former chair of the- American Bar Association Standing Committee on the Fede ral Judiciary, which is the ABA committee having responsibility for reporting to the White House and the U.S. Department of Justice on the professional qua lifications of all potential nominees to federal judgeships. He has served as the EXT-18-2091-C-000066 007104-000758 Documen t ID: 0.7.19343.8181 Willett , Don From : Willett, Don Sent : Wednesday, August 07, 2002 12:37 PM To : ' Manuel Miranda'; Charnes, Adam; Remington, Kristi L; Corallo , Mark; Scottfinan, Nancy; Sales, Nathan; O' Brien, Pat; Koebele, Steve; 'Alex Dahl'; 'anne(u}womack (a) who.eop.gov'; ' brett_m._kavanaugh@who. ~ ~ win '? ? e ? c uot hutchison.senate.gov '; -'Matthew_E._Sm ith@who.eop.gov ' ; 'Tim_Goeglein@who.eop.gov '; ' Leonard Leo (E-mail)'; Goodling, Monica; Dinh, Viet Subje ct : RE: Owen/ NRO Attachments : Battaglia.pdf Below is a pdf of the pro-Owen letter to Biden from Victor Battaglia, a personal atty to Biden. It merits wide distribution. (The Houston lawye r that Battagl ia refers to, Blake Tartt, is a former Texas State Bar President and also former chair of the ABA's Standing Committee on the Federal Judiciary.) Here's more complete bio stuff on Battaglia and Tartt: VICTOR BATTAGLIA; A personal attorney to Biden, and senior partner in Biggs and Battaglia, in Wilmington. Battaglia has served as an attorney for the State Senate , counsel for the Governor ' s Committee, solicitor for the City of Wilmington , a member of the long Range Court Planning Committee, Delaware Criminal Code Revision Committee and the Judicial Nominating Committee. He has also served as a member of the Delaware Higher Education Commission , the Advisory Committee on the Rules of the Supreme Court, the American Bar Association and the Delaware Bar Association. Mr. Battaglia was a fellow of the American Board of Criminal Lawyers and president of the American Civil Liberties Foundation (Delawa re}. He was also the chair of the American College of Trial Lawyers, Delaware Bar Foundation, Board of Bar Examiners of the Supreme Court of Delaware. In 1993, Mr. Battaglia was awarded the Special Pioneer Award from United Way of Delaware and was recognized in the 1993-94 publication of Best Lawyers in America. Other volunteer work include his service as co-cha irman of the West End Neighborhood House Capital Campaign, a member of the advisory board of the United Negro College Fund, a member of the board of directors of the Delaware Chapter of the American Red Cross, and chair of the board of trustees of Delaware Technical and Community College. BLAKETARTT:A director of the American Judicature Society from 1984 to 1987 , is a graduate of Southern Methodist University and a cum laude graduate of the Southern Methodist University School of Law. He was named a distingu ishe d alumnus of the SMU Law School in 1997. He is a partner in Beirne, Maynard & Parsons , l.L.P. in Houston. He served as president of the State Bar of Texas and as Chair of the Board of Trustees of the Houston Bar Foundation, the Texas Bar Foundation, and of the Fellows of the American Bar Foundation. He is a Fellow of the American College of Trial Lawyers and is a member of the American Board of Trial Advocates, the International Association of Defense Counsel and the American Law Institute. He has also served on the Texas Judicial Council. He is a former chair of the- American Bar Association Standing Committee on the Fede ral Judiciary, which is the ABA committee having responsibility for reporting to the White House and the U.S. Department of Justice on the professional qua lifications of all potential nominees to federal judgeships. He has served as the EXT-18-2091-C-000066 007104-000758 Documen t ID: 0.7.19343.8181 Texas State Delegate to the American Bar Association's House ot Delegates tram 1993 through 1999, and has been a member of the House of Delegates for 20 years. --Origi nal Message- -From: Manuel Miranda {mailto:Manue l_Miran da@jud iciary.sen ate.gov ) Sent: Wednesday, August 07, 2002 11:23 AM To: Charnes , Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Scottfinan, Nancy; Sales, Nathan; O' Bri-..-a.o..----!.Dahl; 'anne( u )womack( a )who.eop.gov '; brett_m._kavanaugh@who.eop.gov; heather_ wingate@who.eop.gov; joe_jacquot@hutc hison.senate.gov ; Matth ~ o.eop.gov; 'Tim_ Goeglein@who.eop.gov '; ' Leonard Leo (E-mail)' Subject: Owen/ NRO There is a Byron York article today on NRO . EXT-18-2091-C-000067 007104 -000759 Document ID: 0.7.19343 .8181 Texas State Delegate to the American Bar Association's House ot Delegates tram 1993 through 1999, and has been a member of the House of Delegates for 20 years. --Origi nal Message- -From: Manuel Miranda {mailto:Manue l_Miran da@jud iciary.sen ate.gov ) Sent: Wednesday, August 07, 2002 11:23 AM To: Charnes , Adam; Willett , Don; Remington, Kristi L; Corallo, Mark; Scottfinan, Nancy; Sales, Nathan; O' Bri-??-a.o??----!.Dahl; 'anne( u )womack( a )who.eop.gov '; brett_m._kavanaugh@who.eop.gov; heather_ wingate@who.eop.gov; joe_jacquot@hutc hison.senate.gov ; Matth ~ o.eop.gov; 'Tim_ Goeglein@who.eop.gov '; ' Leonard Leo (E-mail)' Subject: Owen/ NRO There is a Byron York article today on NRO ? EXT-18-2091-C-000067 007104 -000759 Document ID: 0.7.19343 .8181 : .,-,::::....,~ I nr : 1 o ;t_ ' o __o ..a; ..._.,,n o !! ,,l il :' BIGGS AND BA'ITAGLIA YIC'l'Ca, . t.\rrA.aJA l0laT D. QCll.DIIJw:: ...,. IC,IIUff. JII, PHIi.Ji'L w:rol ~ F. MTTACIJA. Jl. 1121 NOIITH OIIANO&ITMlif P.O. 80:lt 1418 WUINQTON, Del.AWM&11111 (30~11Hffl ffL.ECOl'IEt ,., lm-7ta4 wrtws -oo I I, I .. ~ ~ ~ L ... . --. - ..:.---: . o ; o:;:--\\,: . 1 ! AiTORUYS AT LAW I"! if u . - .: )1' AUG I axl2 a,~ J'joo; :P!!,~~ l2ltMIIDI' , JCAV~ ,M. t PFRMtRO 491P 1/4 N acldr-a : Ylskd!'Obatlfw,tcim July29, 2002 Tot: Honorable Joseph R. Bi.den. Jr. .1105 North Market Street Wilmington. DE 19801 De2r Senator 'Biden: BlakeT arrc.Esquireis one of the ,reat lawyer, ofAmeri.ca He practiccs .in Howton, Texas. I dictate this letter ahr talk:mi co him on the telephone today. Blake believes that Jwti.ce Ptici1laOwen of the Texas Supreme Co\&l't is wonderfully qualified to serve as a member of the Courr of Appealsfur thelFifcCircuit. h He tells~ that ahe has been evaluated by the American Bar Aaaociarion '.St21lmniOmrn1ttee on the FederalJudiclary and chat Committee ha$ unaoini O\WV dercm,m,d her to be wellqualined for the appointment. . He is concerned that jf she is not confirmed bcfQrcthe end of the year her nomination to the Cow-tmay be in daflaer . . I have known Blake Tam for many years and know that whatever Blake Tam tells me, I can take to mebank. I wrueto ask your consideration in imurl.Dg th.ather cand:idacy ~ it betore the Senate for a vote on her conilrmation , : While I do not know the lady, I know Blab Tartt qualified, she is qualiaed. ind i! BIAke Tam say&she is I wouldappreciate anvdune you could do to help aeethat her candidacy is considered by the Senate . Re,pectfully, (_ VFB/fkb ~,~attaglia - EXT-18-2091-C-000068 007104-000760 Docu ment ID: 0.7.19343 .8181-000001 : .,-,::::....,~ I nr : 1 o ;t_ ' o __o ..a; ..._.,,n o !! ,,l il :' BIGGS AND BA'ITAGLIA YIC'l'Ca, . t.\rrA.aJA l0laT D. QCll.DIIJw:: ...,. IC,IIUff. JII, PHIi.Ji'L w:rol ~ F. MTTACIJA. Jl. 1121 NOIITH OIIANO&ITMlif P.O. 80:lt 1418 WUINQTON, Del.AWM&11111 (30~11Hffl ffL.ECOl'IEt ,., lm-7ta4 wrtws -oo I I, I .. ~ ~ ~ L ... ? --. - ..:.---: . o ; o:;:--\\,: . 1 ! AiTORUYS AT LAW I"! if u ? - ?: )1' AUG I axl2 a,~ J'joo; :P!!,~~ l2ltMIIDI' , JCAV~ ,M. t PFRMtRO 491P 1/4 N acldr-a : Ylskd!'Obatlfw,tcim July29, 2002 Tot: Honorable Joseph R. Bi.den. Jr. .1105 North Market Street Wilmington. DE 19801 De2r Senator 'Biden: BlakeT arrc.Esquireis one of the ,reat lawyer, ofAmeri.ca He practiccs ?in Howton, Texas. I dictate this letter ahr talk:mi co him on the telephone today. Blake believes that Jwti.ce Ptici1laOwen of the Texas Supreme Co\&l't is wonderfully qualified to serve as a member of the Courr of Appealsfur thelFifcCircuit. h He tells~ that ahe has been evaluated by the American Bar Aaaociarion '.St21lmniOmrn1ttee on the FederalJudiclary and chat Committee ha$ unaoini O\WV dercm,m,d her to be wellqualined for the appointment. ? He is concerned that jf she is not confirmed bcfQrcthe end of the year her nomination to the Cow-tmay be in daflaer . ? I have known Blake Tam for many years and know that whatever Blake Tam tells me, I can take to mebank. I wrueto ask your consideration in imurl.Dg th.ather cand:idacy ~ it betore the Senate for a vote on her conilrmation , : While I do not know the lady, I know Blab Tartt qualified, she is qualiaed. ind i! BIAke Tam say&she is I wouldappreciate anvdune you could do to help aeethat her candidacy is considered by the Senate . Re,pectfully, (_ VFB/fkb ~,~attaglia - EXT-18-2091-C-000068 007104-000760 Docu ment ID: 0.7.19343 .8181-000001 Remington, Kristi L Remington, Kristi L Thursday, August 15, 2002 10:56 AM Willett, Don; Sutton, Jason; Charnes, Adam; 'alex_dahl@judiciary.senate.gov'; 'anne_womack@who.eop.gov b(6) Barbara Ledeen Senate Email 'brett_m._kavanaugh@who.eop.gov'; 'heather_wingate@who.eop.gov'; b(6) Jennifer Oschal email b(6) Kay Daly email b(6) Leonard Leo personal email 'manuel_miranda@judiciary.senate.gov'; 'Matthew_E._Smith@who.eop.gov'; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; 'Leonard Leo (E-mail)'; Dinh, Viet; Koebele, Steve; Sales, Nathan; Goodling, Monica Subject: Updated Task list -- Owen Attachments: Post-hearing Owen action plan.doc From: Sent: To: EXT-18-2091-C-000069 007104-000761 Document ID: 0.7.19343.8182 Remington, Kristi L Remington, Kristi L Thursday, August 15, 2002 10:56 AM Willett, Don; Sutton, Jason; Charnes, Adam; 'alex_dahl@judiciary.senate.gov'; 'anne_womack@who.eop.gov b(6) Barbara Ledeen Senate Email 'brett_m._kavanaugh@who.eop.gov'; 'heather_wingate@who.eop.gov'; b(6) Jennifer Oschal email b(6) Kay Daly email b(6) Leonard Leo personal email 'manuel_miranda@judiciary.senate.gov'; 'Matthew_E._Smith@who.eop.gov'; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; 'Leonard Leo (E-mail)'; Dinh, Viet; Koebele, Steve; Sales, Nathan; Goodling, Monica Subject: Updated Task list -- Owen Attachments: Post-hearing Owen action plan.doc From: Sent: To: EXT-18-2091-C-000069 007104-000761 Document ID: 0.7.19343.8182 Sales , Nathan From : Sales, Nathan Sent : Saturday, August 17, 2002 3:05 PM To: Willett, Don; Remington, Kristi L; Koebele, Steve; ' Brett_ M._Kavanaugh@who.eop.gov ' ; O'Brien, Pat; 'heather_ wingate@who.eop.gov'; ' manuel_ miranda@judiciary.senate.gov Goodling, Monica Subjec t : Fw: Revised version Attachments : tmp.htm '; All, a friend of mine is going to have a piece on Owen published in National Review Online next week . Here's a draft : -Original Message-From: Jonathan H. Adler To: Sales, Nathan Sent: Fri Aug 16 15:33:27 2002 Subject: Revised version Nathan Forget the draft I sent you. I didn't realiz e you wer e out of the office. Following is what I sent to NRO. It should run some time next week. Cheers. JHA Jonathan H. Adler Assistant Professor of Law Case Western Reserve University School of Law 11075 East Boulevard Cleveland , OH 44106 ph) 216368-2535 jhaS@po.cwru.edu GREENSGO AFTEROWEN Environmental groups join campaign against President Bush?s judicial nominees By Jonathan H. Adler Environmental activist groups have joined the effort to derail embattled judicial nominee Priscilla Owen. Owen is currently a Justice on the Texas Supreme Court. President Bush nominated EXT-18-2091-C-000070 007104-000762 Document ID: 0.7.19343.5157 Sales , Nathan From : Sales, Nathan Sent : Saturday, August 17, 2002 3:05 PM To: Willett, Don; Remington, Kristi L; Koebele, Steve; ' Brett_ M._Kavanaugh@who.eop.gov ' ; O'Brien, Pat; 'heather_ wingate@who.eop.gov'; ' manuel_ miranda@judiciary.senate.gov Goodling, Monica Subjec t : Fw: Revised version Attachments : tmp.htm '; All, a friend of mine is going to have a piece on Owen published in National Review Online next week . Here's a draft : -Original Message-From: Jonathan H. Adler To: Sales, Nathan Sent: Fri Aug 16 15:33:27 2002 Subject: Revised version Nathan Forget the draft I sent you. I didn't realiz e you wer e out of the office. Following is what I sent to NRO. It should run some time next week. Cheers. JHA Jonathan H. Adler Assistant Professor of Law Case Western Reserve University School of Law 11075 East Boulevard Cleveland , OH 44106 ph) 216368-2535 jhaS@po.cwru.edu GREENSGO AFTEROWEN Environmental groups join campaign against President Bush?s judicial nominees By Jonathan H. Adler Environmental activist groups have joined the effort to derail embattled judicial nominee Priscilla Owen. Owen is currently a Justice on the Texas Supreme Court. President Bush nominated EXT-18-2091-C-000070 007104-000762 Document ID: 0.7.19343.5157 Justice Owen to the U.S. Court of Appeals for the Fifth Circuit in May 2001. Fourteen months later, Owen received a hearing from the Senate Judiciary Committee. In the meantime, activist groups researched Owen?s record and launched a well-coordinated campaign to .scuttle her nomin at ion. The environmentalist contribution to the- anti-Owen campaign is spearheaded by Earthjustice, the green litigation shop formerly known as the Sierra Club Legal Defense Fund and a ?coalition partner? of the Alliance for Justice?s Judicial Selection Project. On July 16, Earthjustice release d a letter to the Senate signed by representatives of eleven environmental groups expressing ?serious concerns? about Justice Owen. Among those endorsing the letter were Defenders of Wildlife, Friends of the Earth, Natural Resources Defense Council, U.S. PIRG and the Wilderness Society. The letter charged that Justice Owen has sought to ?elevate the rights of polluters over the rights of neighbo rs and the public, restrict the public?s access to public information, and limit common law remedies for injured consumers.? In support of this claim, the letter (and the Earthjustice website http://www.earthjustice.o rg/policy/judicial/owen .html} point to three of Justice Owen?s opinions from her seven years on the Texas Supreme Court which raise ?troubling issues.? Exhibit A in the environmental attack on Owen is her dissent in FM Properties Operating Co. v. City of Austin, a constitutional challenge to portions of the Texas Water Code . In FM Properties, the City of Austin challenge d provisions of the code allowing landowners to obtain exemptions from municipal water quality regulations by creating ?water quality protection zones? that met statemandated requirements. By a vote of 6-3, the Texas Supreme Court found the law unconstitutional because ?it unconstitutionally delegates legislative power to private landowners.? Justice Owen and two other justices rejected this cha racterization. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts . Because she did not go along with the majority?s decision to invalidate the challenged statute, Justice Owen is accused of ?protecting the special interests? and turning her back on environmental protection. Owen?s FM Propert ies dissent was also highlighted by the Alliance for Justice as evidence that Justice Owen is a ?judicial activist.? This is a curious accusation given that Owen followed longstanding doctrine that, if possible, courts should interpret statutes so as to preserve their constitutionality . Indeed , Owen may be the only judicial nominee labeled an activist for not striking down a statute. The-majority?s rationale in FM Properties relied upon the non-delegation doctrine, which limits the ability of legislatures to delegate policy-making to other branches of government or privateentities. The doctrine is virtually a dead -letter at the fe.deral level, though it is still applied in some states. Thoughtful legal scholars, such as former environmental legal litigato r David Schoenbrod, may defend the doctrine on constitutional grounds, but environmentalist groups consider it an anathema. When a federa l court relied upon the non-delegation doctrine to strike down federal clean air standards in 1999, environmental activists had a collective- cow. Yet Justice Owen?s re fusal to use the doctrine to strike down a statute limiting local regulation is the basis upon which her opponents now label her an ?activist? jud ge who caters to ?special inte rests. ? Environmentalist groups may have had good reasons to dislike th e leg islation in question, but not all bad policy decisions are unconstitutional. Another case- to provoke-environmentalist ire is In re Citv of Geor~etown, in which Justice Owen EXT-18-2091-C-000071 007104-000763 Document ID: 0.7.19343 .5157 Justice Owen to the U.S. Court of Appeals for the Fifth Circuit in May 2001. Fourteen months later, Owen received a hearing from the Senate Judiciary Committee. In the meantime, activist groups researched Owen?s record and launched a well-coordinated campaign to .scuttle her nomin at ion. The environmentalist contribution to the- anti-Owen campaign is spearheaded by Earthjustice, the green litigation shop formerly known as the Sierra Club Legal Defense Fund and a ?coalition partner? of the Alliance for Justice?s Judicial Selection Project. On July 16, Earthjustice release d a letter to the Senate signed by representatives of eleven environmental groups expressing ?serious concerns? about Justice Owen. Among those endorsing the letter were Defenders of Wildlife, Friends of the Earth, Natural Resources Defense Council, U.S. PIRG and the Wilderness Society. The letter charged that Justice Owen has sought to ?elevate the rights of polluters over the rights of neighbo rs and the public, restrict the public?s access to public information, and limit common law remedies for injured consumers.? In support of this claim, the letter (and the Earthjustice website http://www.earthjustice.o rg/policy/judicial/owen .html} point to three of Justice Owen?s opinions from her seven years on the Texas Supreme Court which raise ?troubling issues.? Exhibit A in the environmental attack on Owen is her dissent in FM Properties Operating Co. v. City of Austin, a constitutional challenge to portions of the Texas Water Code . In FM Properties, the City of Austin challenge d provisions of the code allowing landowners to obtain exemptions from municipal water quality regulations by creating ?water quality protection zones? that met statemandated requirements. By a vote of 6-3, the Texas Supreme Court found the law unconstitutional because ?it unconstitutionally delegates legislative power to private landowners.? Justice Owen and two other justices rejected this cha racterization. As Justice Owen explained in her dissent, it is not unconstitutional for a state to exempt qualified private landowners from state-authorized local regulation. Whether such exemptions are wise policy is a decision left to the state legislature, not state courts . Because she did not go along with the majority?s decision to invalidate the challenged statute, Justice Owen is accused of ?protecting the special interests? and turning her back on environmental protection. Owen?s FM Propert ies dissent was also highlighted by the Alliance for Justice as evidence that Justice Owen is a ?judicial activist.? This is a curious accusation given that Owen followed longstanding doctrine that, if possible, courts should interpret statutes so as to preserve their constitutionality . Indeed , Owen may be the only judicial nominee labeled an activist for not striking down a statute. The-majority?s rationale in FM Properties relied upon the non-delegation doctrine, which limits the ability of legislatures to delegate policy-making to other branches of government or privateentities. The doctrine is virtually a dead -letter at the fe.deral level, though it is still applied in some states. Thoughtful legal scholars, such as former environmental legal litigato r David Schoenbrod, may defend the doctrine on constitutional grounds, but environmentalist groups consider it an anathema. When a federa l court relied upon the non-delegation doctrine to strike down federal clean air standards in 1999, environmental activists had a collective- cow. Yet Justice Owen?s re fusal to use the doctrine to strike down a statute limiting local regulation is the basis upon which her opponents now label her an ?activist? jud ge who caters to ?special inte rests. ? Environmentalist groups may have had good reasons to dislike th e leg islation in question, but not all bad policy decisions are unconstitutional. Another case- to provoke-environmentalist ire is In re Citv of Geor~etown, in which Justice Owen EXT-18-2091-C-000071 007104-000763 Document ID: 0.7.19343 .5157 wrote the majority opinion preventing the release of a government report under the Texas Pubic Information Act because the report was covered by attorney-client and work-product privilege. Writing for six members of the court, Owen noted that Texas law explicitly protects government documents prepared in connection with litigation, and that the Public Information Act explicitly exempts info rmation ?expressly confi dent ial under other law.? Three justices dissented from Owen?s opinion, interpreting the Public Information Act to require broader disclosure by government agencies. While there is room to dispute Owen ?s inte rpretation of the statute , her opinion was har dly radica l or ? activist.? In holding that attorney work-product is covered by the exemption, Owen relied upon relevant Supreme Court precedent and utilized traditional tools of statutory construction to produce an eminently sensible result. Much the same can be said of the third case to place Owen in environmentalist cross hairs. In Hyundai Motor Company v. Alvarado, Owen dissented from a decision finding that automaker compliance with relevant federal motor vehicle safety laws and regulations did not preempt state law product liability suits. Specifically, Alvarado sued Hyundai claiming that the lack of a lap belt made his car ?defective ,? even though the vehicle met all federal seatbelt standards at the time it was built. Justice Owen a nd three of her colleagues believed that the federal laws preem pted Alvarado?s claim. The five justices in the majority did not. As with In re Georgetown, reasonable minds can differ as to the merits of the preempt ion arguments at issue, but it is difficult to claim Owen?s opinion was extreme, radical, or otherwise out of the mainstream. Most federal appellate courts to consider the issue had found preemption , as had several other state high courts. Indee d, when the U.S. Supreme Court considered a similar claim in 2000, it found the tort actions preempted as well. The majority opinion, adopting a view akin to that espoused by Justice Owen, was authored by noted conservative activist Justice Stephen Breyer. Owen is not the first ju dicial nominee to be targeted by environmentalist grou ps, and she is unlikely to be the last. Last year, the Natural Resources Defense Council joined the Alliance for Justice and Community Rights Counsel (CRC) in publishing ?Hostile Environment? , a report on ?how activist justices threaten our air water and land.? CRC has spent several years criticizing indepen dent judicial seminars that broach economic subjects , and has sought to make attendance at such seminars an issue in judicial nominations. Working with Earth justice, CRC further sought to inject environmental concerns into the confirmation fights over Judges Charles Pickering and D. Brooks Smith, the latter of whom was confirme d despite broad activist opposition. A fourth nominee in the environmental crosshairs is Laurence Block, a long time staffer for Senator Orrin Hatch on the Judiciary Committee nominated by President Bush to the Court of Federal Claims. Environmental groups are targeting Block because he worked on property rights legislation for Senator Hatch , something environmentalists claim makes Block ?extreme.? The truly extreme position, however, is environmental activists? resistance to enforcing the Fifth Amendment?s admonition that the government not take privat e property for public use ?without just compensation.? A Judiciary committee vote on Justice Owen ?s nomination is expected in Septe mber when the Senate returns from its August recess. Given the narrow split on the committee, Justice Owen?s fate may depend on whether a single Democrat is willing to support her nominat ion. Thus, the involvement of environmental groups could make the difference. In their attacks on Justice Owen, environmentalist groups have joined the Alliance for Justice and People for the American Way in characterizing a principled conservative nominee as ?activist? and ?ext reme.? Such overwrought characterizations do EXT-18-2091-C-000072 007104-000764 Document ID: 0.7.19343 .5157 wrote the majority opinion preventing the release of a government report under the Texas Pubic Information Act because the report was covered by attorney-client and work-product privilege. Writing for six members of the court, Owen noted that Texas law explicitly protects government documents prepared in connection with litigation, and that the Public Information Act explicitly exempts info rmation ?expressly confi dent ial under other law.? Three justices dissented from Owen?s opinion, interpreting the Public Information Act to require broader disclosure by government agencies. While there is room to dispute Owen ?s inte rpretation of the statute , her opinion was har dly radica l or ? activist.? In holding that attorney work-product is covered by the exemption, Owen relied upon relevant Supreme Court precedent and utilized traditional tools of statutory construction to produce an eminently sensible result. Much the same can be said of the third case to place Owen in environmentalist cross hairs. In Hyundai Motor Company v. Alvarado, Owen dissented from a decision finding that automaker compliance with relevant federal motor vehicle safety laws and regulations did not preempt state law product liability suits. Specifically, Alvarado sued Hyundai claiming that the lack of a lap belt made his car ?defective ,? even though the vehicle met all federal seatbelt standards at the time it was built. Justice Owen a nd three of her colleagues believed that the federal laws preem pted Alvarado?s claim. The five justices in the majority did not. As with In re Georgetown, reasonable minds can differ as to the merits of the preempt ion arguments at issue, but it is difficult to claim Owen?s opinion was extreme, radical, or otherwise out of the mainstream. Most federal appellate courts to consider the issue had found preemption , as had several other state high courts. Indee d, when the U.S. Supreme Court considered a similar claim in 2000, it found the tort actions preempted as well. The majority opinion, adopting a view akin to that espoused by Justice Owen, was authored by noted conservative activist Justice Stephen Breyer. Owen is not the first ju dicial nominee to be targeted by environmentalist grou ps, and she is unlikely to be the last. Last year, the Natural Resources Defense Council joined the Alliance for Justice and Community Rights Counsel (CRC) in publishing ?Hostile Environment? , a report on ?how activist justices threaten our air water and land.? CRC has spent several years criticizing indepen dent judicial seminars that broach economic subjects , and has sought to make attendance at such seminars an issue in judicial nominations. Working with Earth justice, CRC further sought to inject environmental concerns into the confirmation fights over Judges Charles Pickering and D. Brooks Smith, the latter of whom was confirme d despite broad activist opposition. A fourth nominee in the environmental crosshairs is Laurence Block, a long time staffer for Senator Orrin Hatch on the Judiciary Committee nominated by President Bush to the Court of Federal Claims. Environmental groups are targeting Block because he worked on property rights legislation for Senator Hatch , something environmentalists claim makes Block ?extreme.? The truly extreme position, however, is environmental activists? resistance to enforcing the Fifth Amendment?s admonition that the government not take privat e property for public use ?without just compensation.? A Judiciary committee vote on Justice Owen ?s nomination is expected in Septe mber when the Senate returns from its August recess. Given the narrow split on the committee, Justice Owen?s fate may depend on whether a single Democrat is willing to support her nominat ion. Thus, the involvement of environmental groups could make the difference. In their attacks on Justice Owen, environmentalist groups have joined the Alliance for Justice and People for the American Way in characterizing a principled conservative nominee as ?activist? and ?ext reme.? Such overwrought characterizations do EXT-18-2091-C-000072 007104-000764 Document ID: 0.7.19343 .5157 not accurately portray Justice uwen ts record in environmental cases. Indeed, if after fourteen months of research environmentalist groups could only find these three opinions to criticize from Justice Owen ?s seven yea rs on the bench, one has to wonder what all the fuss is about. Contributing 'Editor Jonathan H. Adler Case Western Reserve University School of Law. is an assistant professor at EXT-18-2091-C-000073 007104-000765 Document ID: 0.7.19343 .5157 not accurately portray Justice uwen ts record in environmental cases. Indeed, if after fourteen months of research environmentalist groups could only find these three opinions to criticize from Justice Owen ?s seven yea rs on the bench, one has to wonder what all the fuss is about. Contributing 'Editor Jonathan H. Adler Case Western Reserve University School of Law. is an assistant professor at EXT-18-2091-C-000073 007104-000765 Document ID: 0.7.19343 .5157 Remington, Kristi L Remington, Kristi L Tuesday, August 27, 2002 2:43 PM Sutton, Jason; Charnes, Adam; 'alex dahl@judiciary.senate.gov'; 'anne_womack@who.eop.go b(6) Barbara Ledeen Senate Email 'brett m. kavanaugh@who.eop.gov'; 'heather_wingate@who.eop.gov'; b(6) Jennifer Oschal email b(6) Kay Daly email b(6) Leonard Leo personal email 'manuel_miranda@judiciary.senate.gov'; 'Matthew_E._Smith@who.eop.gov'; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; 'Leonard Leo (E-mail)'; Dinh, Viet; Koebele, Steve; Sales, Nathan; Goodling, Monica Subject: RE: REMINDER -- tonight's Owen conf. call @ 5:00 Attachments: Post-hearing Owen action plan.doc From: Sent: To: Call-In #: Passcode: (b) (6) Thanks. EXT-18-2091-C-000074 007104-000766 Document ID: 0.7.19343.8210 Remington, Kristi L Remington, Kristi L Tuesday, August 27, 2002 2:43 PM Sutton, Jason; Charnes, Adam; 'alex dahl@judiciary.senate.gov'; 'anne_womack@who.eop.go b(6) Barbara Ledeen Senate Email 'brett m. kavanaugh@who.eop.gov'; 'heather_wingate@who.eop.gov'; b(6) Jennifer Oschal email b(6) Kay Daly email b(6) Leonard Leo personal email 'manuel_miranda@judiciary.senate.gov'; 'Matthew_E._Smith@who.eop.gov'; O'Brien, Pat; 'Tim_Goeglein@who.eop.gov'; 'Leonard Leo (E-mail)'; Dinh, Viet; Koebele, Steve; Sales, Nathan; Goodling, Monica Subject: RE: REMINDER -- tonight's Owen conf. call @ 5:00 Attachments: Post-hearing Owen action plan.doc From: Sent: To: Call-In #: Passcode: (b) (6) Thanks. EXT-18-2091-C-000074 007104-000766 Document ID: 0.7.19343.8210 Dinh, Viet From : Dinh, Viet Sent : Friday, September 6, 2002 2:40 PM To: ; Willett , Don; 'Brett Kavanaugh '; 'Tim Goeglein '; 'Manny Miranda'; 'Tony Feather'; 'Matthew(u}A. (u)Schlapp ' Subject : RE: some post owen thoughts ... let 's think about them and discuss on Monday's conferen ce call. Don will circulate agenda Monday morning. thanks -Original Message-From: Jennifer Oschal [mailt( Sent: Friday, September 06, 2002 2:09 PM To: Willett , Don; Dinh, Viet; Brett Kavanaugh; Tim Goeglein; Manny Miranda ; Tony Feather; Matthew(u)A. (u)Schlapp Subject: some post owen thoughts ... reed to hold hearin s in the House on the im act the vacancies are having. EXT-18-2091-C-000075 007104-000767 Document ID: 0.7.19343.8252 Dinh, Viet From : Dinh, Viet Sent : Friday, September 6, 2002 2:40 PM To: ; Willett , Don; 'Brett Kavanaugh '; 'Tim Goeglein '; 'Manny Miranda'; 'Tony Feather'; 'Matthew(u}A. (u)Schlapp ' Subject : RE: some post owen thoughts ... let 's think about them and discuss on Monday's conferen ce call. Don will circulate agenda Monday morning. thanks -Original Message-From: Jennifer Oschal [mailt( Sent: Friday, September 06, 2002 2:09 PM To: Willett , Don; Dinh, Viet; Brett Kavanaugh; Tim Goeglein; Manny Miranda ; Tony Feather; Matthew(u)A. (u)Schlapp Subject: some post owen thoughts ... reed to hold hearin s in the House on the im act the vacancies are having. EXT-18-2091-C-000075 007104-000767 Document ID: 0.7.19343.8252 Charnes, Adam From : Chames, Adam Sent : Tuesday, September 17, 2002 3:29 PM To: Remington , Kristi l; Willett , Don; Keefer, Wendy J; Benedi, Lizette D; Sales, Nathan; Koeb.ele, Steve; 'Tim_goeglein@who.eop.gov '; 'Kyle_Sampson@who.eop.gov '; 'Heather_Wi ngate@who.eop.gov'; 'ann Monica; Brown, Jamie E (OLA);'ma O'Brien, Pat; 'alex_ dahl@judiciary.senate.gov '; Dinh, Viet; Scottf inan, Nancy; Benczkowski, Brian A; Brett M. Kavanaugh {?-ma il); Manuel Miranda (E-mail); Rena Johnson (E-mail); Bryant, Dan Cc: Sutton, Jaso n Subject : RE: Reminder: McConnell Confe ren ce Call On Wednesday, this ca ll will discuss both McConnell and Estrada; beginning Thursday, this will be a da ily Estrada call, with the same call-in info. If there are folks working on Estrada not on this message , please forward the details to them. Thanks. -O riginal Message-From: Remington, Kristi L Sent : Tuesday , September 17, 2002 2:4 1 PM To: Remington, Kristi L; Willett, Don; Keefer, Wendy J; Be nedi, Lizette D; Sales, Nathan; Koebele, Steve; 'Tim_ goeg lein@who .eop .gov'; 'Kyle_Samp so n@who. eo p.gov '; 'He ath er_ Wingate@who.eop.gov' ; 'anne _womack@who.eop .gov'; Goodling, Monica; Hall, William; Brown, Jamie E (OLA}; 'matthew _ e._ smith@who.eop.gov'; O' Brien, Pat; 'alex _da hl@judiciary.senate .gov'; Dinh, Viet; Scottfinan, Nancy Cc: Sutton , Jason; Charnes, Adam Subject: RE: Reminder: McConnell Conferen ce Call ** Reminder Conference call re: McConnell nominat ion to night at 6:00 pm: Dial thenent - EXT-18-2091-C-000076 007104-000768 Docume nt ID: 0.7.19343.8398 Charnes, Adam From : Chames, Adam Sent : Tuesday, September 17, 2002 3:29 PM To: Remington , Kristi l; Willett , Don; Keefer, Wendy J; Benedi, Lizette D; Sales, Nathan; Koeb.ele, Steve; 'Tim_goeglein@who.eop.gov '; 'Kyle_Sampson@who.eop.gov '; 'Heather_Wi ngate@who.eop.gov'; 'ann Monica; Brown, Jamie E (OLA);'ma O'Brien, Pat; 'alex_ dahl@judiciary.senate.gov '; Dinh, Viet; Scottf inan, Nancy; Benczkowski, Brian A; Brett M. Kavanaugh {GBP-ma il); Manuel Miranda (E-mail); Rena Johnson (E-mail); Bryant, Dan Cc: Sutton, Jaso n Subject : RE: Reminder: McConnell Confe ren ce Call On Wednesday, this ca ll will discuss both McConnell and Estrada; beginning Thursday, this will be a da ily Estrada call, with the same call-in info. If there are folks working on Estrada not on this message , please forward the details to them. Thanks. -O riginal Message-From: Remington, Kristi L Sent : Tuesday , September 17, 2002 2:4 1 PM To: Remington, Kristi L; Willett, Don; Keefer, Wendy J; Be nedi, Lizette D; Sales, Nathan; Koebele, Steve; 'Tim_ goeg lein@who .eop .gov'; 'Kyle_Samp so n@who. eo p.gov '; 'He ath er_ Wingate@who.eop.gov' ; 'anne _womack@who.eop .gov'; Goodling, Monica; Hall, William; Brown, Jamie E (OLA}; 'matthew _ e._ smith@who.eop.gov'; O' Brien, Pat; 'alex _da hl@judiciary.senate .gov'; Dinh, Viet; Scottfinan, Nancy Cc: Sutton , Jason; Charnes, Adam Subject: RE: Reminder: McConnell Conferen ce Call ** Reminder Conference call re: McConnell nominat ion to night at 6:00 pm: Dial thenent - EXT-18-2091-C-000076 007104-000768 Docume nt ID: 0.7.19343.8398 Benczkowski , Brian A From: Benczkowski, Brian A Sent : Tuesday, September 17, 2002 6:44 PM To: Dinh.,Viet; Chames, Adam; 'brett_m._kavanaugh@who.eop.gov Subject : FW: Notice of Courts Subcommittee Hearing Attachments : 9-24_ Courts.SubC.hearingnotice.wpd ' FYI-I am told by Ed Haden that Schumer intends to use this hearing to make the case for the need for balance on the D.C. Circuit, to stock the court with moderate nominees with even temperaments. He apparently does not intend to call Allen Snyder or Elena Kagan. Instead, Schumer staff has told Ed that they will front up Ab Mikva and a few liberal academics. - Original Message- From: Rena Johnson {mailto:Rena_Johnson@judiciary.senate.gov] Sent : Tuesday, September 17, 2002 5:32 PM To: Charnes , Adam; Benczkowski, Brian A; Bryant, Dan; Sales , Nathan; Brett_M._Kavanaugh@who.eop.gov; Manuel Miranda; Ed Haden Subject: Fwd:Notice of Courts Subcommittee Hearing _ _ _ ______ Forward Header ___ _ ______ Subject : Notice of Courts Subcommittee Hearing Author: Phil Toomajian Date: 9/17/2002 5:26 PM September 17, 2002 NOTICEOF SUBCOMMITTEEHEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Tuesday, September 24, 2002 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on ''The DC Circuit The Importance of Balance on the Nation 's Second Highest Court." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000077 007104-000769 Document ID: 0.7.19343 .8403 Benczkowski , Brian A From: Benczkowski, Brian A Sent : Tuesday, September 17, 2002 6:44 PM To: Dinh.,Viet; Chames, Adam; 'brett_m._kavanaugh@who.eop.gov Subject : FW: Notice of Courts Subcommittee Hearing Attachments : 9-24_ Courts.SubC.hearingnotice.wpd ' FYI-I am told by Ed Haden that Schumer intends to use this hearing to make the case for the need for balance on the D.C. Circuit, to stock the court with moderate nominees with even temperaments. He apparently does not intend to call Allen Snyder or Elena Kagan. Instead, Schumer staff has told Ed that they will front up Ab Mikva and a few liberal academics. - Original Message- From: Rena Johnson {mailto:Rena_Johnson@judiciary.senate.gov] Sent : Tuesday, September 17, 2002 5:32 PM To: Charnes , Adam; Benczkowski, Brian A; Bryant, Dan; Sales , Nathan; Brett_M._Kavanaugh@who.eop.gov; Manuel Miranda; Ed Haden Subject: Fwd:Notice of Courts Subcommittee Hearing _ _ _ ______ Forward Header ___ _ ______ Subject : Notice of Courts Subcommittee Hearing Author: Phil Toomajian Date: 9/17/2002 5:26 PM September 17, 2002 NOTICEOF SUBCOMMITTEEHEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Tuesday, September 24, 2002 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on ''The DC Circuit The Importance of Balance on the Nation 's Second Highest Court." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000077 007104-000769 Document ID: 0.7.19343 .8403 September 17, 2002 NOTICE OF SUBCOMMITTEE HEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Tuesday, September 24, 2002 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000078 007104-000770 Document ID: 0.7.19343.8403-000001 September 17, 2002 NOTICE OF SUBCOMMITTEE HEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Tuesday, September 24, 2002 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000078 007104-000770 Document ID: 0.7.19343.8403-000001 Dinh, Viet From : Dinh, Viet Sent : Wednesday, September 18, 2002 5:13 PM To: 'Ed Haden'; Charnes, Adam; Benczkowski, Brian A; Willett, Don; Brown, Jamie E (OLA);Goodling, Monica; Sales, Nathan; Koebele , Steve; 'Manuel Miranda'; ' Brett M. Kavanaugh (E-mail) '; 'Barbara Ledee-n' ; 'Ale-xDahl '; ' Rena Johnson'; ' Mercedes_M._ Viana@who.eop.gov'; 'Anne_ Womack@who.eop.gov' Subjec t : RE: Estrada/ Schumer Hearing Excellent. Nathan Sales , fresh off research ing Kennedy amendments to FACE Act, will be OLP birddog for this hearin g. --Original Message--From: Ed Haden (mailto :Ed_ Haden@judiciary.senate.gov) Sent: Wednesday, September 18, 2002 3:48 PM To: Charnes , Adam; Benczkowski, Brian A; Willett, Don; Brown, Jamie E (OLA); Goodling, Monica; Sales, Nathan; Koe-be-le,Steve; Manuel Miranda; 'Brett M. Kavanaugh (E-mail)'; Barbara Ledeen ; Alex Dahl; Rena Johnson; Mercedes_ M._ Viana@who.e-op.gov; Anne_ Womack@who.eop.gov Cc: Dinh, Viet Subject: Re:Estrada/ Schumer Hearing _________ Reply Separator _________ Author: Manuel Miranda Date: 9/18/02 3:49 PM Subject: Estrada/ Schumer Hearing In addition to what Ed and everyone is considering for the Tuesday Schumer hearing, we would like to suggest anothe r target that we might disc uss tonight. What do you think? EXT-18-2091-C-000079 007104-000771 Document ID: 0.7.19343.8407 Dinh, Viet From : Dinh, Viet Sent : Wednesday, September 18, 2002 5:13 PM To: 'Ed Haden'; Charnes, Adam; Benczkowski, Brian A; Willett, Don; Brown, Jamie E (OLA);Goodling, Monica; Sales, Nathan; Koebele , Steve; 'Manuel Miranda'; ' Brett M. Kavanaugh (E-mail) '; 'Barbara Ledee-n' ; 'Ale-xDahl '; ' Rena Johnson'; ' Mercedes_M._ Viana@who.eop.gov'; 'Anne_ Womack@who.eop.gov' Subjec t : RE: Estrada/ Schumer Hearing Excellent. Nathan Sales , fresh off research ing Kennedy amendments to FACE Act, will be OLP birddog for this hearin g. --Original Message--From: Ed Haden (mailto :Ed_ Haden@judiciary.senate.gov) Sent: Wednesday, September 18, 2002 3:48 PM To: Charnes , Adam; Benczkowski, Brian A; Willett, Don; Brown, Jamie E (OLA); Goodling, Monica; Sales, Nathan; Koe-be-le,Steve; Manuel Miranda; 'Brett M. Kavanaugh (E-mail)'; Barbara Ledeen ; Alex Dahl; Rena Johnson; Mercedes_ M._ Viana@who.e-op.gov; Anne_ Womack@who.eop.gov Cc: Dinh, Viet Subject: Re:Estrada/ Schumer Hearing _________ Reply Separator _________ Author: Manuel Miranda Date: 9/18/02 3:49 PM Subject: Estrada/ Schumer Hearing In addition to what Ed and everyone is considering for the Tuesday Schumer hearing, we would like to suggest anothe r target that we might disc uss tonight. What do you think? EXT-18-2091-C-000079 007104-000771 Document ID: 0.7.19343.8407 Sales , Nathan From : Sales, Nathan Sent : Saturday, September 21, 2002 5:42 PM To: 'Ed_Haden@judiciary.sen ate.gov '; Benczkowski, Brian A; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'Joe_ Matal@judiciary.senate.gov'; uel_Miranda@judiciary.senate.gov '; 'Alex_Dahl@judiciary.senate.gov ' Subject : 'Man Re: Paez and Berzon's 9th Cir. Record I haven't tracke d their wacky votes (who could keep track of all of them?) , but I think Leonard Leo may have something helpful. --Original Message--From: Ed Haden To: Benczkowsk i, Brian A ; Sales , Nathan ; Brett_ M._ Kavanaugh@who.eop.gov ; Joe Matal ; Manuel Miranda ; Alex Dahl Sent: Sat Sep 211 5:08:43 2002 Subject: Paez and Berzon's 9th Cir. Record Guys: In ad dition to the 3-strikes cases, do you all have a listing of wacko lefty votes by Paez and Berzon since their confirmations to the 9th Circuit? I need this for the hearing as my boss will be attacked for his correct vote against them, espe cially Paez. I have all the materials on their pre-confirmation records. Ed EXT-18-2091-C-000080 007104-000772 Document ID: 0.7.19343.5228 Sales , Nathan From : Sales, Nathan Sent : Saturday, September 21, 2002 5:42 PM To: 'Ed_Haden@judiciary.sen ate.gov '; Benczkowski, Brian A; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'Joe_ Matal@judiciary.senate.gov'; uel_Miranda@judiciary.senate.gov '; 'Alex_Dahl@judiciary.senate.gov ' Subject : 'Man Re: Paez and Berzon's 9th Cir. Record I haven't tracke d their wacky votes (who could keep track of all of them?) , but I think Leonard Leo may have something helpful. --Original Message--From: Ed Haden To: Benczkowsk i, Brian A ; Sales , Nathan ; Brett_ M._ Kavanaugh@who.eop.gov ; Joe Matal ; Manuel Miranda ; Alex Dahl Sent: Sat Sep 211 5:08:43 2002 Subject: Paez and Berzon's 9th Cir. Record Guys: In ad dition to the 3-strikes cases, do you all have a listing of wacko lefty votes by Paez and Berzon since their confirmations to the 9th Circuit? I need this for the hearing as my boss will be attacked for his correct vote against them, espe cially Paez. I have all the materials on their pre-confirmation records. Ed EXT-18-2091-C-000080 007104-000772 Document ID: 0.7.19343.5228 Brett_M ._Ka vanaugh@ w ho.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Tuesday, September 24, 2002 4:35 PM To : Charnes, Adam; Bencz.kowski, Brian A; Bryant, Dan; Willett, Don; Brown, Jamie E (OLA};Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O' Brien , Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; Leonard_B._Rodriguez@who.eop.gov; manuel_miranda@judiciary.senate.gov; rena_johnson@judiciary.senate .gov; Leonard _ B._ Rodriguez@who.eop.gov; Heather_ Wingate@who.eop.gov; Anne_ Womack@who.eop.gov; a lex_ dah l@judiciary.senate.go v Subject : Suggestion for hearin g EXT-18-2091-C-000081 007104-000773 Document ID: 0.7.19343.8438 Brett_M ._Ka vanaugh@ w ho.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Tuesday, September 24, 2002 4:35 PM To : Charnes, Adam; Bencz.kowski, Brian A; Bryant, Dan; Willett, Don; Brown, Jamie E (OLA};Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O' Brien , Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; Leonard_B._Rodriguez@who.eop.gov; manuel_miranda@judiciary.senate.gov; rena_johnson@judiciary.senate .gov; Leonard _ B._ Rodriguez@who.eop.gov; Heather_ Wingate@who.eop.gov; Anne_ Womack@who.eop.gov; a lex_ dah l@judiciary.senate.go v Subject : Suggestion for hearin g EXT-18-2091-C-000081 007104-000773 Document ID: 0.7.19343.8438 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Tuesday, September 24, 2002 5:25 PM To : Dinh.,Viet;'Leonard_B._Rodriguez@who.eop.gov '; Charnes , Adam; Bryant, Dan; Brown, Jamie E (OLA); Benedi, Lizette D; Goodling, Monica ; Scottfinan, Nancy; Sales, Nathan. O'Brien Pat; Koebele, Steve; Keefer, Wendy J; Hall, WilliaWillett , Don; 'Brett_ ._ avanaug @who.eop.gov'; 'Rena _Johnson@judiciary.senate.gov' ; 'alafferty@traditionalvalues.org '; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_ Goeglei n@who.eo ov' . 'K le Sam son who.eop .gov'; 'Heather _Wi ngate@who.eo o . ov'. ; 'Matthe ..v_E._Smith@w ho.eop.gov '; ' 'alex_ dahl@judiciary.senate.gov '; 'Manuel_Miran da@judiciary.senate.gov'; 'Rena _Johnson@judiciary.senate.gov '; Charnes , Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject : Estrada conference call info changed Importance: High Estrada call tonight at 6 pm. Phone: -Or iginal MessageFrom: Dinh, Viet Sent: Tuesday, September 24, 2002 5:10 PM To: ' Leonard_ B._ Rodriguez@who.eop.gov '; Charnes , Adam; Benczkowski, Brian A; Bryant, Dan; Brown, Jamie E (OLA};Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sal~ Pat; Koebele, Steve; Keefer, Wendy J; Hall, William;_., illett , Don; 'Brett_M._Kavanaugh@who.eop.gov '; ' Rena_Johnson@judiciary.senate.gov '; 'alafferty@traditionalvalues .org'; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_Goeglein@who.eop.gov '; 'Kyle Sam 'Heather _ Wingate@who.eop.gov '; 'Matthew_E._Smith@who.eop.gov '; 'alex_dahl@judiciary.senate.gov '; 'Manuel_Miranda@judiciary.senate.gov '; 'Rena _Johnson@judiciary.senate.gov'; Charnes, Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject: RE: CHC ON ESTRADA Yes, COnf. call at 6:00. Adam and Bencz, can you make sure that our telephone folks are coope rating today? thanks -Original Message--From: Leonard_ B._ Rodriguez@who.eop .gov (mailto:Leonard _ B._ Rodriguez@who.eop.gov) EXT-18-2091-C-000082 007104-000774 Document ID: 0.7.19343 .844 1 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Tuesday, September 24, 2002 5:25 PM To : Dinh.,Viet;'Leonard_B._Rodriguez@who.eop.gov '; Charnes , Adam; Bryant, Dan; Brown, Jamie E (OLA); Benedi, Lizette D; Goodling, Monica ; Scottfinan, Nancy; Sales, Nathan? O'Brien Pat; Koebele, Steve; Keefer, Wendy J; Hall, WilliaWillett , Don; 'Brett_ ._ avanaug @who.eop.gov'; 'Rena _Johnson@judiciary.senate.gov' ; 'alafferty@traditionalvalues.org '; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_ Goeglei n@who.eo ov' ? 'K le Sam son who.eop .gov'; 'Heather _Wi ngate@who.eo o . ov'? ; 'Matthe ..v_E._Smith@w ho.eop.gov '; ' 'alex_ dahl@judiciary.senate.gov '; 'Manuel_Miran da@judiciary.senate.gov'; 'Rena _Johnson@judiciary.senate.gov '; Charnes , Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject : Estrada conference call info changed Importance: High Estrada call tonight at 6 pm. Phone: -Or iginal MessageFrom: Dinh, Viet Sent: Tuesday, September 24, 2002 5:10 PM To: ' Leonard_ B._ Rodriguez@who.eop.gov '; Charnes , Adam; Benczkowski, Brian A; Bryant, Dan; Brown, Jamie E (OLA};Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sal~ Pat; Koebele, Steve; Keefer, Wendy J; Hall, William;_., illett , Don; 'Brett_M._Kavanaugh@who.eop.gov '; ' Rena_Johnson@judiciary.senate.gov '; 'alafferty@traditionalvalues .org'; 'rdeposada@hbrt.org '; Willett, Don; 'Tim_Goeglein@who.eop.gov '; 'Kyle Sam 'Heather _ Wingate@who.eop.gov '; 'Matthew_E._Smith@who.eop.gov '; 'alex_dahl@judiciary.senate.gov '; 'Manuel_Miranda@judiciary.senate.gov '; 'Rena _Johnson@judiciary.senate.gov'; Charnes, Adam; Brown, Jamie E (OLA);Sales, Nathan; Koebele , Steve Subject: RE: CHC ON ESTRADA Yes, COnf. call at 6:00. Adam and Bencz, can you make sure that our telephone folks are coope rating today? thanks -Original Message--From: Leonard_ B._ Rodriguez@who.eop .gov (mailto:Leonard _ B._ Rodriguez@who.eop.gov) EXT-18-2091-C-000082 007104-000774 Document ID: 0.7.19343 .844 1 Sent: Tuesday, September 24, 2002 4:59 PM To: Charnes, Adam; Benczkowski, Brian A; Bryant, Dan; Brown, Jamie E (OLA); Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; Hall, William; --Willett, Don; Brett_ M._ Kavanaugh@who.eop.gov; Rena_Jo ~ senate.gov; Leonard_B._Rodriguez@who.eop.gov; alafferty@traditionalvalues.org; rdeposada@hbrt.org; Willett, Don; Tim_Goeglein@who.eop.gov; Kyle_Sampson@who.eop.gov; Heather_ Wingate@who.eop.gov Matthew _ E._ Smith@who.eop.gov; alex_dahl@judiciary.senate.gov; Manuel_Miranda@judiciary.senate.gov; Rena_Johnson@judiciary.senate.gov; Charnes, Adam; Brown, Jamie E (OLA); Sales, Nathan; Koebele, Steve Subject: CHC ON ESTRADA see below. are we doing a conf call today? ------ Forwarded by Leonard B. Rodriguez/WHO/EOP on 09/24/2002 04:55 PM ----- (Embedded image moved Sharon Castillo - Communications to file: pic00822.pcx) 09/24/2002 04:53:04 PM Record Type: Record To: Abel Guerra/WHO/EOP@EOP, Leonard 8. Rodriguez/WHO/EOP@EOP, Mercedes M. Viana/WHO/EOP@EOP cc: Rudy Fernan dez - Grassroots Development , "Roberto De Posada (E-mail)" , "Annie Mayol (E-mail)" , "Danny Diaz (E-mail)" Subject: CHC ON ESTRADA The Congressional Hispanic Caucus will hold a press conference tomorrow Wednesday at 11:00 a.m. in the House Radio-TV Gallery presumably to voice their opposition to Miguel Estrada . Can we get Ileana, Lincoln, and Bonilla to do a joint press release and distribute at the presser. Just one idea. Any other thoughts on how to counter? Sharon J. Castillo Deputy Director of Communications Republican National Committee EXT-18-2091-C-000083 007104-000775 Document ID: 0.7.19343.844 1 Sent: Tuesday, September 24, 2002 4:59 PM To: Charnes, Adam; Benczkowski, Brian A; Bryant, Dan; Brown, Jamie E (OLA); Benedi, Lizette D; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; Hall, William; --Willett, Don; Brett_ M._ Kavanaugh@who.eop.gov; Rena_Jo ~ senate.gov; Leonard_B._Rodriguez@who.eop.gov; alafferty@traditionalvalues.org; rdeposada@hbrt.org; Willett, Don; Tim_Goeglein@who.eop.gov; Kyle_Sampson@who.eop.gov; Heather_ Wingate@who.eop.gov Matthew _ E._ Smith@who.eop.gov; alex_dahl@judiciary.senate.gov; Manuel_Miranda@judiciary.senate.gov; Rena_Johnson@judiciary.senate.gov; Charnes, Adam; Brown, Jamie E (OLA); Sales, Nathan; Koebele, Steve Subject: CHC ON ESTRADA see below. are we doing a conf call today? ------ Forwarded by Leonard B. Rodriguez/WHO/EOP on 09/24/2002 04:55 PM ----- (Embedded image moved Sharon Castillo - Communications to file: pic00822.pcx) 09/24/2002 04:53:04 PM Record Type: Record To: Abel Guerra/WHO/EOP@EOP, Leonard 8. Rodriguez/WHO/EOP@EOP, Mercedes M. Viana/WHO/EOP@EOP cc: Rudy Fernan dez - Grassroots Development , "Roberto De Posada (E-mail)" , "Annie Mayol (E-mail)" , "Danny Diaz (E-mail)" Subject: CHC ON ESTRADA The Congressional Hispanic Caucus will hold a press conference tomorrow Wednesday at 11:00 a.m. in the House Radio-TV Gallery presumably to voice their opposition to Miguel Estrada . Can we get Ileana, Lincoln, and Bonilla to do a joint press release and distribute at the presser. Just one idea. Any other thoughts on how to counter? Sharon J. Castillo Deputy Director of Communications Republican National Committee EXT-18-2091-C-000083 007104-000775 Document ID: 0.7.19343.844 1 Phone 202 863-8607 Cell EXT-1 071 4-000776 Document ID: 0.7.19343.8441 Phone 202 863-8607 Cell 0071 4-000776 Document ID: 0.7.19343.8441 Dinh, Viet From : Dinh, Viet Sent : Monday, October 7, 2002 6:30 PM To: 'Manue l Miranda '; Benczkowski, Brian A; Willett , Don; 'Srett _ M._ Kavanaugh@who.eop.gov'; 'Tim_Goeglein@who.eop.gov '; ' Leona rd_ B._Rodriguez@who.eop.gov ' Su bjec t: RE: Estrada -Original Message-From: Manuel Miranda [mailto :Manuel _ Miranda@judi ciary.se nate.gov ] Sent: Monday, October 07, 2002 3:15 PM To: Benczkowski, Brian A; Willett, Don; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Tim_Goeglein@who.eop .gov; Leonard_ 8._ Rodriguez@who.eop .gov Subject: Estrada Just FYI.On Friday afternoon , a former Hatch staffer Luben Montoya called to let us know that LULAC's board would be revis iting their support for Estrada in a face to face board meeting on Satu rday and that there were people flying in to debate the issue for the Democrats. We prepared Luben to hold the fort with our best research and tailored talking points, and best editorials and articles. Below is the result. coming Author: _ _________ Subject: Re: Confirm rece ipt/ more ate : 10/7/2002 6:35 AM MannyThank you so much. LULAC'sboard endorsed Estrada by an overwhelming majority after about 1.5 hours of debate. This is FYInot for public disclosu re - LULACwants to issue its own press release on this. I'll check to see if they want to have O in on it. Luben EXT-18-2091-C-000085 007104-000777 Document ID: 0.7.19343.8633 Dinh, Viet From : Dinh, Viet Sent : Monday, October 7, 2002 6:30 PM To: 'Manue l Miranda '; Benczkowski, Brian A; Willett , Don; 'Srett _ M._ Kavanaugh@who.eop.gov'; 'Tim_Goeglein@who.eop.gov '; ' Leona rd_ B._Rodriguez@who.eop.gov ' Su bjec t: RE: Estrada -Original Message-From: Manuel Miranda [mailto :Manuel _ Miranda@judi ciary.se nate.gov ] Sent: Monday, October 07, 2002 3:15 PM To: Benczkowski, Brian A; Willett, Don; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Tim_Goeglein@who.eop .gov; Leonard_ 8._ Rodriguez@who.eop .gov Subject: Estrada Just FYI.On Friday afternoon , a former Hatch staffer Luben Montoya called to let us know that LULAC's board would be revis iting their support for Estrada in a face to face board meeting on Satu rday and that there were people flying in to debate the issue for the Democrats. We prepared Luben to hold the fort with our best research and tailored talking points, and best editorials and articles. Below is the result. coming Author: _ _________ Subject: Re: Confirm rece ipt/ more ate : 10/7/2002 6:35 AM MannyThank you so much. LULAC'sboard endorsed Estrada by an overwhelming majority after about 1.5 hours of debate. This is FYInot for public disclosu re - LULACwants to issue its own press release on this. I'll check to see if they want to have O in on it. Luben EXT-18-2091-C-000085 007104-000777 Document ID: 0.7.19343.8633 Brett_M ._Kavanaugh@ wh o.eop .go v From: Brett_ M._Kavanaugh@who.eop.gov Sent : Monda October 21, 2002 9:10 PM To: Cc: Willett, Don; Dinh, Viet; Tim_Goeglein@who.eop.gov; Matthew _A._Schlapp@who.eop.gov; Heather _ Wingate@who.eop.gov ; manny miranda Subje ct : Re: PFAjudicial materials Attachme nts : pic14501.htm attl.htm; ATTACHMENT.TXT; This is a great resource. Thanks . (Embedded image moved Jennifer Oschal ? to file: 10/18 / 2002 11:31:17 AM pic14501.p cx) Please respond to Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: PFAjudicial mater ials PFAhas created a cumulative binder of letters, etc. compiled during the ju dicial nominations campa ign. Each of you will be receiving a copy of this binder over the next few days via courier (or an intern if you're in the white house). The binder consists mostly of letters we sol icited , and in a few cases, letters y'all made available to us for widespread distribut ion. It's created just as a way to show th e effort that was made from March - the present. EXT-18-2091-C-000086 007104-000778 Document ID: 0.7.19343.8644 Brett_M ._Kavanaugh@ wh o.eop .go v From: Brett_ M._Kavanaugh@who.eop.gov Sent : Monda October 21, 2002 9:10 PM To: Cc: Willett, Don; Dinh, Viet; Tim_Goeglein@who.eop.gov; Matthew _A._Schlapp@who.eop.gov; Heather _ Wingate@who.eop.gov ; manny miranda Subje ct : Re: PFAjudicial materials Attachme nts : pic14501.htm attl.htm; ATTACHMENT.TXT; This is a great resource. Thanks . (Embedded image moved Jennifer Oschal . to file: 10/18 / 2002 11:31:17 AM pic14501.p cx) Please respond to Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: PFAjudicial mater ials PFAhas created a cumulative binder of letters, etc. compiled during the ju dicial nominations campa ign. Each of you will be receiving a copy of this binder over the next few days via courier (or an intern if you're in the white house). The binder consists mostly of letters we sol icited , and in a few cases, letters y'all made available to us for widespread distribut ion. It's created just as a way to show th e effort that was made from March - the present. EXT-18-2091-C-000086 007104-000778 Document ID: 0.7.19343.8644 If you have any questions , let me know - and if you nee d another copy of the binder after reviewing it, I have extras, so let me know. Thanks for your help over the last months .... Jennifer EXT-18-2091-C-000087 007104-000779 Document ID: 0.7.19343.8644 If you have any questions , let me know - and if you nee d another copy of the binder after reviewing it, I have extras, so let me know. Thanks for your help over the last months .... Jennifer EXT-18-2091-C-000087 007104-000779 Document ID: 0.7.19343.8644 Message Sent To:_____________________________________________________________ Tim Goeglein/WHO/EOP@EOP Matthew A. Schlapp/WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Don Willett Manny Miranda Viet Dinh EXT-18-2091-C-000088 007104-000780 Document ID: 0.7.19343.8644-000002 Message Sent To:_____________________________________________________________ Tim Goeglein/WHO/EOP@EOP Matthew A. Schlapp/WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Don Willett Manny Miranda Viet Dinh EXT-18-2091-C-000088 007104-000780 Document ID: 0.7.19343.8644-000002 Dinh, Viet From : Dinh, Viet Sent : Thursday , December 5, 2002 11:03 AM To: 'Manuel Miranda '; Willett , Don; 'Brett_M._Kavanaugh@who.eop.gov ' Subje ct : RE:January 23 meeting I know the Life Forum well, and will atten d if schedule permits. Don, can you coordinate with Manny and Jason to make sure this happens? thanks -Original Message-From: Manuel Miranda [mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Monday, December 02, 2002 6:45 PM To: Willett, Don; Dinh, Viet; Brett_ M._Kavanaugh@who.eop .gov Subject: Fwd:January 23 meeting EXT-18-2091-C-000089 Document ID: 0.7.19343.8734 Dinh, Viet From : Dinh, Viet Sent : Thursday , December 5, 2002 11:03 AM To: 'Manuel Miranda '; Willett , Don; 'Brett_M._Kavanaugh@who.eop.gov ' Subje ct : RE:January 23 meeting I know the Life Forum well, and will atten d if schedule permits. Don, can you coordinate with Manny and Jason to make sure this happens? thanks -Original Message-From: Manuel Miranda [mailto:Manuel _ Miranda@judiciary.senate.gov] Sent: Monday, December 02, 2002 6:45 PM To: Willett, Don; Dinh, Viet; Brett_ M._Kavanaugh@who.eop .gov Subject: Fwd:January 23 meeting EXT-18-2091-C-000089 Document ID: 0.7.19343.8734 _________ Reply Separator _________ Subject: Re: Tony Feather meeting Author: Brett_M._Kavanaugh@who.eop.gov Date: 12/4/2002 8:00 PM 2-3:30 on the 11th is good for me. Tim Goeglein 12/04/2002 04:00: 14 PM Record Type: Record To: cc: brett m. kavanaugh/who/eop@eop, viet dinh , don willett , manny miranda bee: Subject: Re: Tony Feather meeting (Document link: Brett M. Kavanaugh) My friend Sounds very good. Fyi: the 12th is very bad for me: two events with POTUS. May we think about between 2-4 pm on the 11th? I would be in your debt. Warmly tsg EXT-18-2091-C-000090 007104-000782 Documen t ID: 0.7.19343 .529 1 _________ Reply Separator _________ Subject: Re: Tony Feather meeting Author: Brett_M._Kavanaugh@who.eop.gov Date: 12/4/2002 8:00 PM 2-3:30 on the 11th is good for me. Tim Goeglein 12/04/2002 04:00: 14 PM Record Type: Record To: cc: brett m. kavanaugh/who/eop@eop, viet dinh , don willett , manny miranda bee: Subject: Re: Tony Feather meeting (Document link: Brett M. Kavanaugh) My friend Sounds very good. Fyi: the 12th is very bad for me: two events with POTUS. May we think about between 2-4 pm on the 11th? I would be in your debt. Warmly tsg EXT-18-2091-C-000090 007104-000782 Documen t ID: 0.7.19343 .529 1 (Embedded image moved Jennifer Oschal to file: 12/04/2002 03:40: 19 PM pic09059.pcx ) Please respond t Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: Tony Feather meeting Tony is coming to town next week and I'd like to arrange a meeting for all of us if possible. While I've obvious ly been communicating regularly with him, I th ink it's t ime for him to sit down and talk with y'all about moving forward next year. He obviously has broader political knowledge than I do and will provide helpful insight, as well as gain insight from the meeting that he can take to others as PFArolls out it's '03 plan. The main top ic will be strategy for USSC,so we can plan accordingly, but there will be no set agenda - just an informal back & forth. He will be in town on the 11-12 and I'm still waiting to find his availability. Please consider this email a heads up, and I'll get back to you by early next week with times and we 'll see what we can work out for everyone. Thanks - I think this will be helpful and hope you 'll be willing to join. Of course others are welcome if you think appropriate. JO EXT-18-2091-C-000091 007104-000783 Documen t ID: 0.7.19343.529 1 (Embedded image moved Jennifer Oschal to file: 12/04/2002 03:40: 19 PM pic09059.pcx ) Please respond t Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: Tony Feather meeting Tony is coming to town next week and I'd like to arrange a meeting for all of us if possible. While I've obvious ly been communicating regularly with him, I th ink it's t ime for him to sit down and talk with y'all about moving forward next year. He obviously has broader political knowledge than I do and will provide helpful insight, as well as gain insight from the meeting that he can take to others as PFArolls out it's '03 plan. The main top ic will be strategy for USSC,so we can plan accordingly, but there will be no set agenda - just an informal back & forth. He will be in town on the 11-12 and I'm still waiting to find his availability. Please consider this email a heads up, and I'll get back to you by early next week with times and we 'll see what we can work out for everyone. Thanks - I think this will be helpful and hope you 'll be willing to join. Of course others are welcome if you think appropriate. JO EXT-18-2091-C-000091 007104-000783 Documen t ID: 0.7.19343.529 1 Benczkowski, Brian A Benczkowski, Brian A Monday, January 6, 2003 11:48 AM Benczkowski, Brian A; Charnes, Adam; Schauder, Andrew; 'Anne_Womack@who.eop.gov'; 'Bradford_A._Berenson@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Bryant, Dan; Willett, Don; 'H._Christopher_Bartolomucci@who.eop.gov'; 'Heather_Wingate@who.eop.gov'; Brown, Jamie E (OLA) b(6) Jennifer Oschal email Remington, Kristi L; 'Kyle_Sampson@who.eop.gov'; Goodling, Monica; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov'; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Joy, Sheila; 'Tim_Goeglein@who.eop.gov'; Dinh, Viet; Hall, William; 'manuel_miranda@judiciary.senate.gov'; 'rena_johnson_comisca@judiciary.senate.gov'; 'alex_dahl@judiciary.senate.go b(6) John Abegg Senate Email Subject: RE: Judicial Nominations Working Group conference call Attachments: JCWG - agenda (1-6-03).doc From: Sent: To: Attached please find the agenda. -----Original Message----From: Benczkowski, Brian A Sent: Monday, January 06, 2003 11:47 AM Charnes, Adam; Schauder, Andrew; 'Anne Womack@who.eop.gov'; 'Bradford A. Berenson@who.eop.gov'; To: 'Brett M. Kavanaugh@who.eop.gov'; Benczkowski, Brian A; Bryant, Dan; Willett, Don; 'H. Christopher Bartolomucci@who.eop.gov'; 'Heather Wingate@who.eop.gov'; Brown, Jamie E (OLA); b(6) Jennifer Oschal email Remington, Kristi L; 'Kyle Sampson@who.eop.gov'; Goodling, Monica; Day, Lori Sharpe; 'Matthew E. Smith@who.eop.gov'; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Joy, Sheila; 'Tim Goeglein@who.eop.gov'; Dinh, Viet; Hall, William; 'manuel miranda@judiciary.senate.gov'; 'rena johnson comisca@judiciary.senate.gov'; 'alex dahl@judiciary.senate.gov'; ' b(6) John Abegg Senate Email Subject: Judicial Nominations Working Group conference call High Importance: AllFollowing on last year's tradition, we would like to conduct an initial conference call at 4pm today to discuss judicial nominations in the 108th Congress. Attached please find an agenda. Dial in Passcod (b) (6) Apologize for the short notice. Hope you can participate. Brian Brian A. Benczkowski Senior Counsel EXT-18-2091-C-000092 007104-000784 Document ID: 0.7.19343.5368 Benczkowski, Brian A Benczkowski, Brian A Monday, January 6, 2003 11:48 AM Benczkowski, Brian A; Charnes, Adam; Schauder, Andrew; 'Anne_Womack@who.eop.gov'; 'Bradford_A._Berenson@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; Bryant, Dan; Willett, Don; 'H._Christopher_Bartolomucci@who.eop.gov'; 'Heather_Wingate@who.eop.gov'; Brown, Jamie E (OLA) b(6) Jennifer Oschal email Remington, Kristi L; 'Kyle_Sampson@who.eop.gov'; Goodling, Monica; Day, Lori Sharpe; 'Matthew_E._Smith@who.eop.gov'; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Joy, Sheila; 'Tim_Goeglein@who.eop.gov'; Dinh, Viet; Hall, William; 'manuel_miranda@judiciary.senate.gov'; 'rena_johnson_comisca@judiciary.senate.gov'; 'alex_dahl@judiciary.senate.go b(6) John Abegg Senate Email Subject: RE: Judicial Nominations Working Group conference call Attachments: JCWG - agenda (1-6-03).doc From: Sent: To: Attached please find the agenda. -----Original Message----From: Benczkowski, Brian A Sent: Monday, January 06, 2003 11:47 AM Charnes, Adam; Schauder, Andrew; 'Anne Womack@who.eop.gov'; 'Bradford A. Berenson@who.eop.gov'; To: 'Brett M. Kavanaugh@who.eop.gov'; Benczkowski, Brian A; Bryant, Dan; Willett, Don; 'H. Christopher Bartolomucci@who.eop.gov'; 'Heather Wingate@who.eop.gov'; Brown, Jamie E (OLA); b(6) Jennifer Oschal email Remington, Kristi L; 'Kyle Sampson@who.eop.gov'; Goodling, Monica; Day, Lori Sharpe; 'Matthew E. Smith@who.eop.gov'; Goodling, Monica; Scottfinan, Nancy; Sales, Nathan; O'Brien, Pat; Joy, Sheila; 'Tim Goeglein@who.eop.gov'; Dinh, Viet; Hall, William; 'manuel miranda@judiciary.senate.gov'; 'rena johnson comisca@judiciary.senate.gov'; 'alex dahl@judiciary.senate.gov'; ' b(6) John Abegg Senate Email Subject: Judicial Nominations Working Group conference call High Importance: AllFollowing on last year's tradition, we would like to conduct an initial conference call at 4pm today to discuss judicial nominations in the 108th Congress. Attached please find an agenda. Dial in Passcod (b) (6) Apologize for the short notice. Hope you can participate. Brian Brian A. Benczkowski Senior Counsel EXT-18-2091-C-000092 007104-000784 Document ID: 0.7.19343.5368 Office of Legal Policy United States Department of Justice 950 Pennsylvania Ave., NW Room 7214 Washington, DC 20530 Telephone: (202) 616-2004 Fax: (202) 514-1685 E-mail: Brian.A.Benczkowski@usdoj.gov EXT-18-2091-C-000093 007104-000785 Document ID: 0.7.19343.5368 Office of Legal Policy United States Department of Justice 950 Pennsylvania Ave., NW Room 7214 Washington, DC 20530 Telephone: (202) 616-2004 Fax: (202) 514-1685 E-mail: Brian.A.Benczkowski@usdoj.gov EXT-18-2091-C-000093 007104-000785 Document ID: 0.7.19343.5368 Age nda - Wee kly Confe rence Call Judicial Confirmation Workin g Group 1-6-03 Dial-in: Pass code : ART. ID COURTS Circ uit Court District Court TOTAL I. 2. 3. VACANCIES NOMINATIONS 1071h Cong. 108 th Cong. (2001-02 ) (2003-04 ) 25 (of 179) - 14% 35 (of66 5) - 5% 60 (of862) - 7% 32 99 131 0 0 0 CONFIRMATIONS 107th Cong. 108 th Cong. (2001-02 ) (2003-0 4) 17 83 100 0 0 0 Start-of-Congress Logistics ? Senate Or ganizing Resolution ? SJ C Members hip Senate Judiciarv Committ ee Calendar ? Renomin ations in January ? Sub mission of Future Nomin ees Pursuan t to POTU S Protocol ? Confirm atio n Hearing Schedule ? Ma rk-up Schedu le Specific Nea r-Ter m Circuit Nomin ees - Upd ates ? ? ? ? ? Deborah Cook Jeff Su tton John Roberts Jay Bybee Tim Ty mkovich (Benedi) (Sales) (Benczkows ki) (Remin gton) (Remin gton) 4. PF A Activity/Grass roots 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000094 007104-000786 Documen t ID: 0.7.19343 .5368-000001 Age nda - Wee kly Confe rence Call Judicial Confirmation Workin g Group 1-6-03 Dial-in: Pass code : ART. ID COURTS Circ uit Court District Court TOTAL I. 2. 3. VACANCIES NOMINATIONS 1071h Cong. 108 th Cong. (2001-02 ) (2003-04 ) 25 (of 179) - 14% 35 (of66 5) - 5% 60 (of862) - 7% 32 99 131 0 0 0 CONFIRMATIONS 107th Cong. 108 th Cong. (2001-02 ) (2003-0 4) 17 83 100 0 0 0 Start-of-Congress Logistics ? Senate Or ganizing Resolution ? SJ C Members hip Senate Judiciarv Committ ee Calendar ? Renomin ations in January ? Sub mission of Future Nomin ees Pursuan t to POTU S Protocol ? Confirm atio n Hearing Schedule ? Ma rk-up Schedu le Specific Nea r-Ter m Circuit Nomin ees - Upd ates ? ? ? ? ? Deborah Cook Jeff Su tton John Roberts Jay Bybee Tim Ty mkovich (Benedi) (Sales) (Benczkows ki) (Remin gton) (Remin gton) 4. PF A Activity/Grass roots 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000094 007104-000786 Documen t ID: 0.7.19343 .5368-000001 Sales , Nathan From : Sales, Nathan Sent : Friday, January 10, 2003 11:10 AM To: 'Bradford_A._Berenson@who.eop.gov'; Cc: Benczkowski, Brian A; Brown, Jamie E (OLA); 'Brett _ M._ Kavanaugh@who.eop.gov'; 'dahl, alex (judiciary)'; ' Heather_Wingate@who.eop.gov'; ' miranda , manue l (judiciary)'; 'nich ols, amanda (voinovich)'; ' dawson, mike (dewine)'; 'levitas, peter (judiciary)'; 'king, kevin (dewine) ' Subje ct : RE: FW:(OlmsteadTaskforce] Sutton DC trip 'Taylor, Steve (Judiciary}' --Or iginal Message---From: Bradford _A._ Berenson@who.eop.gov {mailto:Bradford_A._Berenson@who.eop.gov] Sent: Friday, January 10, 2003 10:51 AM To: Taylor, Steve (Judiciary) Cc: Benczkowski, Brian A; Brown, Jamie E (OLA);Sales, Nathan; Brett_M._Kavanaugh@who.eop.gov; dah l, alex (judiciary); Heather_ Wingate@who .eop.gov; miranda , manuel (judiciary); nichols, amanda (voinovich); dawson , mike (dewine); levitas, peter (judiciary}; king, kevin (dewine) Subject: Re: FW: [OlmsteadTaskforce] Sutton DC trip (Embedded image moved "Taylor, Steve (Judiciary) " to file : pic20347.pcx) 01/ 10/2003 09:58:58 AM EXT-18-2091-C-000095 007104-000787 Document ID: 0.7.19343.5423 Sales , Nathan From : Sales, Nathan Sent : Friday, January 10, 2003 11:10 AM To: 'Bradford_A._Berenson@who.eop.gov'; Cc: Benczkowski, Brian A; Brown, Jamie E (OLA); 'Brett _ M._ Kavanaugh@who.eop.gov'; 'dahl, alex (judiciary)'; ' Heather_Wingate@who.eop.gov'; ' miranda , manue l (judiciary)'; 'nich ols, amanda (voinovich)'; ' dawson, mike (dewine)'; 'levitas, peter (judiciary)'; 'king, kevin (dewine) ' Subje ct : RE: FW:(OlmsteadTaskforce] Sutton DC trip 'Taylor, Steve (Judiciary}' --Or iginal Message---From: Bradford _A._ Berenson@who.eop.gov {mailto:Bradford_A._Berenson@who.eop.gov] Sent: Friday, January 10, 2003 10:51 AM To: Taylor, Steve (Judiciary) Cc: Benczkowski, Brian A; Brown, Jamie E (OLA);Sales, Nathan; Brett_M._Kavanaugh@who.eop.gov; dah l, alex (judiciary); Heather_ Wingate@who .eop.gov; miranda , manuel (judiciary); nichols, amanda (voinovich); dawson , mike (dewine); levitas, peter (judiciary}; king, kevin (dewine) Subject: Re: FW: [OlmsteadTaskforce] Sutton DC trip (Embedded image moved "Taylor, Steve (Judiciary) " to file : pic20347.pcx) 01/ 10/2003 09:58:58 AM EXT-18-2091-C-000095 007104-000787 Document ID: 0.7.19343.5423 Record Type: Record To: See the distribution list at the bottom of this message cc: "Dawson , Mike {DeWine)" , "Levitas, Peter (Judiciary)" , "King, Kevin (DeWine)" Subject: FW:(OlmsteadTaskforce] Sutton DC trip IMHO, I think we are going to need to focus more on the Olmstead case . I've mentioned my view to Jeff Sutton and Alex and gave Jeff a copy of the Olmstead decision a couple of days ago so he could refresh his memory. I think Nathan 's brief on Olmstead is exactly right and the bottom line from a legal perspective is that Georgia won that case-. The-policy of de-institutionalization is quite complex, but Georgia was not discriminating against the mentally disabled and not in violation of the- ADA. The problem is that the mental disability groups see the Olmstead case as a larger victory. Under Olmstead , they argue , it is clear that actions can be-brought for de institutionalization under the ADA. Because Georgia, and Sutton, argued that such actions cannot be brought under the ADA, they say that that will be the position Sutton will take as a judge. He will try to reverse the broader victory as a ju dge. Their argument is down right ridiculous (of course Sutton won't do that} , but they are trying to use it to mobilize the mental disability groups agai nst Sutton. The answer is easy, i.e., was arguing as a lawyer , etc , but we-nee d to refine the answer to that case and think of preemptive action. I'll send a coupl e of more e-mails from this group. -Original Message--From: King, Kevin (DeWine) Sent: Friday, January 10, 2003 9:14 AM To: Taylor, Steve (Judiciary) Subject: FW: {OlmsteadTaskforce] Sutton DC trip More "intelligence" on anti-Sutton activities ... -Original Message-From: Sue Hetrick [mailto:shetrick@abilitycenter.org] Sent : Thursday , January 09, 2003 10:22 AM To: list Serve - OOOPC {E-mail); OlmsteadTaskforce (E-mail}; 'Amy Jakubowski (E-mail)'; 'Ash lemons (E-mail)'; 'Barb Manning (E-mail)'; 'Beckv Mve-rs(E-mail)'; 'Cal Smith (E-mail)'; 'Carol Thomas (E-mail)'; EXT-18-2091-C-000096 007104-000788 Document ID: 0.7.19343.5423 Record Type: Record To: See the distribution list at the bottom of this message cc: "Dawson , Mike {DeWine)" , "Levitas, Peter (Judiciary)" , "King, Kevin (DeWine)" Subject: FW:(OlmsteadTaskforce] Sutton DC trip IMHO, I think we are going to need to focus more on the Olmstead case . I've mentioned my view to Jeff Sutton and Alex and gave Jeff a copy of the Olmstead decision a couple of days ago so he could refresh his memory. I think Nathan 's brief on Olmstead is exactly right and the bottom line from a legal perspective is that Georgia won that case-. The-policy of de-institutionalization is quite complex, but Georgia was not discriminating against the mentally disabled and not in violation of the- ADA. The problem is that the mental disability groups see the Olmstead case as a larger victory. Under Olmstead , they argue , it is clear that actions can be-brought for de institutionalization under the ADA. Because Georgia, and Sutton, argued that such actions cannot be brought under the ADA, they say that that will be the position Sutton will take as a judge. He will try to reverse the broader victory as a ju dge. Their argument is down right ridiculous (of course Sutton won't do that} , but they are trying to use it to mobilize the mental disability groups agai nst Sutton. The answer is easy, i.e., was arguing as a lawyer , etc , but we-nee d to refine the answer to that case and think of preemptive action. I'll send a coupl e of more e-mails from this group. -Original Message--From: King, Kevin (DeWine) Sent: Friday, January 10, 2003 9:14 AM To: Taylor, Steve (Judiciary) Subject: FW: {OlmsteadTaskforce] Sutton DC trip More "intelligence" on anti-Sutton activities ... -Original Message-From: Sue Hetrick [mailto:shetrick@abilitycenter.org] Sent : Thursday , January 09, 2003 10:22 AM To: list Serve - OOOPC {E-mail); OlmsteadTaskforce (E-mail}; 'Amy Jakubowski (E-mail)'; 'Ash lemons (E-mail)'; 'Barb Manning (E-mail)'; 'Beckv Mve-rs(E-mail)'; 'Cal Smith (E-mail)'; 'Carol Thomas (E-mail)'; EXT-18-2091-C-000096 007104-000788 Document ID: 0.7.19343.5423 'Dale Abell (E-mail)'; 'Dennis Tuohy (E-mail)'; ' Don Smith (E-mail)'; 'Jennifer Hamburg (E-mail)'; 'Jim Etzel (E-mail)'; 'JoAnn Newmeyer (E-mail) '; 'Jodi Lafountain (E-mail)'; ' Karen Boaden (E-mail)'; 'Katie Mcconaughy (E-mail)'; 'Ken Mackowiak (E-mail)'; 'Kim Arnett (E-mail)'; 'Kristina Noe (E-mail)'; ' Lisa Nelms (E-mail)'; ' Lowell Ren z (E-mail)'; 'Mario Duncan {E-mail)' ; ' Mick VanHoose (E-mail) ' ; ' Nancy Gabalac (E-mail)' ; ' Nancy Watts (E-mail)'; 'Peedee Harris (E-mail)'; 'Renee Wood (E-mail)'; ' Shelley Papenfuse (E-mail) '; ' Sue Hetrick (E-mail)'; ' Suzanne Van Hee (E-mail) ' ; 'Tim Harrington (E-mail)' Subject: (OlmsteadTaskforce) Sutton DC trip After many conversations and scrambling in DC it has been determined that since the Judiciary committee will not be meeting next week we should postpone our trip. Senator Leahy' s staff has told Jim Ward that they are require d to give one week 's notice prior to the hear ings. We will sen d that not ice as soon as we receive it. I told ADAWatch that if we do not receive notice indicating a hearing by the end of the month we should go ahead with a trip and rally rega rdless during the week of Jan.27 because we couldn't keep people "on hold" indefinitely. It is my hope that with this add itional t ime we would be able to increase Ohio 's presence at the event . The Ability Center will be ab le to cover transportation, up to a large bus if necessary. Additionally there will be LIMITEDfunds avai lable to he lp with food and lodging (one overnight). Since Sutton is from Ohio and since our Senator DeWine is such a Sutton s upporter, an d on the Judiciary Committee, it is important that Ohio is seen and heard. Please consider attending. ADA WAtch has also indicated that the Judiciary Committee, nor Presi dent Bush's office , have received minima l letters from organizations opposing the nomination. If your organizat ion hasn 't written such a lette r using your letterhead , please do so an d fax to ADAWatch at 202-318-4040. I am also including the cover letter and petition which was sent before. Sue Hetrick To unsubscribe from this group , send an emai l to: OlmsteadT askf orce--unsubscribe@yahoogroups.com Your use of Yahoo ! Groups is subject to http://docs.yahoo.com/info/terms/ Message Sent To:_________ _ ____ _ _ _ ______ _ ___ _ Brett M. Kavanaugh/WHO/EOP@EOP "Dahl, Alex (Judiciary)" Bradford A. Berenson / WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP EXT-18-2091-C-000097 007104-000789 Document ID: 0.7.19343 .5423 'Dale Abell (E-mail)'; 'Dennis Tuohy (E-mail)'; ' Don Smith (E-mail)'; 'Jennifer Hamburg (E-mail)'; 'Jim Etzel (E-mail)'; 'JoAnn Newmeyer (E-mail) '; 'Jodi Lafountain (E-mail)'; ' Karen Boaden (E-mail)'; 'Katie Mcconaughy (E-mail)'; 'Ken Mackowiak (E-mail)'; 'Kim Arnett (E-mail)'; 'Kristina Noe (E-mail)'; ' Lisa Nelms (E-mail)'; ' Lowell Ren z (E-mail)'; 'Mario Duncan {E-mail)' ; ' Mick VanHoose (E-mail) ' ; ' Nancy Gabalac (E-mail)' ; ' Nancy Watts (E-mail)'; 'Peedee Harris (E-mail)'; 'Renee Wood (E-mail)'; ' Shelley Papenfuse (E-mail) '; ' Sue Hetrick (E-mail)'; ' Suzanne Van Hee (E-mail) ' ; 'Tim Harrington (E-mail)' Subject: (OlmsteadTaskforce) Sutton DC trip After many conversations and scrambling in DC it has been determined that since the Judiciary committee will not be meeting next week we should postpone our trip. Senator Leahy' s staff has told Jim Ward that they are require d to give one week 's notice prior to the hear ings. We will sen d that not ice as soon as we receive it. I told ADAWatch that if we do not receive notice indicating a hearing by the end of the month we should go ahead with a trip and rally rega rdless during the week of Jan.27 because we couldn't keep people "on hold" indefinitely. It is my hope that with this add itional t ime we would be able to increase Ohio 's presence at the event . The Ability Center will be ab le to cover transportation, up to a large bus if necessary. Additionally there will be LIMITEDfunds avai lable to he lp with food and lodging (one overnight). Since Sutton is from Ohio and since our Senator DeWine is such a Sutton s upporter, an d on the Judiciary Committee, it is important that Ohio is seen and heard. Please consider attending. ADA WAtch has also indicated that the Judiciary Committee, nor Presi dent Bush's office , have received minima l letters from organizations opposing the nomination. If your organizat ion hasn 't written such a lette r using your letterhead , please do so an d fax to ADAWatch at 202-318-4040. I am also including the cover letter and petition which was sent before. Sue Hetrick To unsubscribe from this group , send an emai l to: OlmsteadT askf orce--unsubscribe@yahoogroups.com Your use of Yahoo ! Groups is subject to http://docs.yahoo.com/info/terms/ Message Sent To:_________ _ ____ _ _ _ ______ _ ___ _ Brett M. Kavanaugh/WHO/EOP@EOP "Dahl, Alex (Judiciary)" Bradford A. Berenson / WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP EXT-18-2091-C-000097 007104-000789 Document ID: 0.7.19343 .5423 Jam1e.t .t:Srown@Jus doJ.gov "Miran da, Manuel (Judiciary)" nathan .sales@us doj.gov "Nichols, Amanda (Voinovich)" Brian.A. Benczkowski@usdoj.gov EXT-18-2091-C-000098 007104-000790 Document ID: 0.7.19343 .5423 Jam1e.t .t:Srown@Jus doJ.gov "Miran da, Manuel (Judiciary)" nathan .sales@us doj.gov "Nichols, Amanda (Voinovich)" Brian.A. Benczkowski@usdoj.gov EXT-18-2091-C-000098 007104-000790 Document ID: 0.7.19343 .5423 Washington, Tracy T Washington, Tracy T Tuesday, January 21, 2003 11:59 AM Adam Charnes; alex_dahl@judiciary.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; manuel_miranda@judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_comisac_johnson@judiciary.senate.gov; Sheila Joy; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh Subject: Judicial Confirmation Working Group Conference Call -- TODAY @ 3:30pm. Agenda is attached. Attachments: JCWG - agenda (1-21-03).doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000099 007104-000791 Document ID: 0.7.19343.5413 Washington, Tracy T Washington, Tracy T Tuesday, January 21, 2003 11:59 AM Adam Charnes; alex_dahl@judiciary.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; manuel_miranda@judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_comisac_johnson@judiciary.senate.gov; Sheila Joy; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh Subject: Judicial Confirmation Working Group Conference Call -- TODAY @ 3:30pm. Agenda is attached. Attachments: JCWG - agenda (1-21-03).doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000099 007104-000791 Document ID: 0.7.19343.5413 Agenda - Wee kly Conference C all Judicial Confirmation Workin g G roup 1-21-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL I. 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 20 99 131 34 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 START-OF-CONGRE SSLOGISTICS ? 2. VACANC IES SJC Membership Rs: Hatch; Grassley; Specter; Kyl; Dewine; Sessions; Graham; Craig; Chambliss; Cornyn Ds: Leahy; Kennedy; Biden; Kohl; Feinstein; Feingold; Schumer; Durbin; Edwards SJC CALEN DAR ? Confirmation Hearing Schedule Wed ., Jan . 29 Roberts (D.C. Cir.): Sutton (6 th Cir.): Cook (6th Cir.): district court nominees? substantive materials; member strategy; media/grassroots activity same same Febr. Hearing Calendar? ? Mark-up Schedule Thurs., Jan. 30 - Estrada Febr. Mark-up Calendar? ? 3. Submi ssion of F utur e Nomin ees Pur suant to PO TUS Proto col OTHERNEAR-TERMCIRCUJTNOMINEES- UPDATES ? ? Jay Bybee Tim Tymkovich (Remington) (Remington) 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000100 007104-000792 Docume nt ID: 0.7.19343 .5413-000001 Agenda - Wee kly Conference C all Judicial Confirmation Workin g G roup 1-21-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL I. 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 20 99 131 34 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 START-OF-CONGRE SSLOGISTICS ? 2. VACANC IES SJC Membership Rs: Hatch; Grassley; Specter; Kyl; Dewine; Sessions; Graham; Craig; Chambliss; Cornyn Ds: Leahy; Kennedy; Biden; Kohl; Feinstein; Feingold; Schumer; Durbin; Edwards SJC CALEN DAR ? Confirmation Hearing Schedule Wed ., Jan . 29 Roberts (D.C. Cir.): Sutton (6 th Cir.): Cook (6th Cir.): district court nominees? substantive materials; member strategy; media/grassroots activity same same Febr. Hearing Calendar? ? Mark-up Schedule Thurs., Jan. 30 - Estrada Febr. Mark-up Calendar? ? 3. Submi ssion of F utur e Nomin ees Pur suant to PO TUS Proto col OTHERNEAR-TERMCIRCUJTNOMINEES- UPDATES ? ? Jay Bybee Tim Tymkovich (Remington) (Remington) 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000100 007104-000792 Docume nt ID: 0.7.19343 .5413-000001 Dinh, Viet From : Dinh, Viet Sent : Thursday, January 23, 2003 2:58 PM To: 'Bre-tt_M._Kavanaugh@who.eop.gov'; 'Miranda, Manuel (Judiciary)' Cc: Benczkowski, Brian A Subject : Rt: Hey we got the message last time. If you miss us so much, write a different email. -Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto :Brett_ M._ Kavanaugh@who.eop.gov] Sent: Thursday, January 23, 2003 2:12 PM To: Miranda, Manuel (Judiciary) Cc: Dinh, Viet; Benczkowski, Brian A Subject: Re: I would just have a sentence or two saying that the President seeks people who represent the mainstream of American law an d American values. He seeks to nominate judges who possess intellect, experience, character, and integrity and who will interpret the law and not make the law. And I would add that he consults closely with home-State Senators of both parties as he seeks to identify and select candidates. (Embedded image moved "Miranda, Manuel (Judiciary}" to file: pic26801.pcx) 01/2 1/2003 07:04:48 PM Record Type: Record EXT-18-2091-C-000101 007104-000793 Document ID: 0.7.19343 .8903 Dinh, Viet From : Dinh, Viet Sent : Thursday, January 23, 2003 2:58 PM To: 'Bre-tt_M._Kavanaugh@who.eop.gov'; 'Miranda, Manuel (Judiciary)' Cc: Benczkowski, Brian A Subject : Rt: Hey we got the message last time. If you miss us so much, write a different email. -Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto :Brett_ M._ Kavanaugh@who.eop.gov] Sent: Thursday, January 23, 2003 2:12 PM To: Miranda, Manuel (Judiciary) Cc: Dinh, Viet; Benczkowski, Brian A Subject: Re: I would just have a sentence or two saying that the President seeks people who represent the mainstream of American law an d American values. He seeks to nominate judges who possess intellect, experience, character, and integrity and who will interpret the law and not make the law. And I would add that he consults closely with home-State Senators of both parties as he seeks to identify and select candidates. (Embedded image moved "Miranda, Manuel (Judiciary}" to file: pic26801.pcx) 01/2 1/2003 07:04:48 PM Record Type: Record EXT-18-2091-C-000101 007104-000793 Document ID: 0.7.19343 .8903 To: Brett M. Kavanau gh/WHO/ EOP@EOP, brian .a .benczkowski@us doj.gov cc: Viet.Oinh@usdoj.gov Subject: Gentlemen, As you know, we are going to do Committee Majority Reports on key nominees, which will be circulated on the Senate floor and to the press , etc. We will base these on past sty les. However , I would like to use the same opener in each Report that generically describes the process of selection before a nominee is nominated to the Senate. The purpose is to convey the extent of review even before the Committee receives a name. I anticipate that th is would be no more than two or th ree paragraphs . I was hoping that one or both of you could help me trace that vetting process. let me know. Manny EXT-18-2091-C-000102 007104-000794 Document ID: 0.7.19343 .8903 To: Brett M. Kavanau gh/WHO/ EOP@EOP, brian .a .benczkowski@us doj.gov cc: Viet.Oinh@usdoj.gov Subject: Gentlemen, As you know, we are going to do Committee Majority Reports on key nominees, which will be circulated on the Senate floor and to the press , etc. We will base these on past sty les. However , I would like to use the same opener in each Report that generically describes the process of selection before a nominee is nominated to the Senate. The purpose is to convey the extent of review even before the Committee receives a name. I anticipate that th is would be no more than two or th ree paragraphs . I was hoping that one or both of you could help me trace that vetting process. let me know. Manny EXT-18-2091-C-000102 007104-000794 Document ID: 0.7.19343 .8903 Washington, Tracy T Washington, Tracy T Monday, January 27, 2003 1:40 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh; William Hall Reminder -- 4:00pm Judicial Confirmation Working Group Conference Call Subject: TODAY -- Agenda attached... Attachments: JCWG - agenda (1-27-03).doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000103 007104-000795 Document ID: 0.7.19343.5477 Washington, Tracy T Washington, Tracy T Monday, January 27, 2003 1:40 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh; William Hall Reminder -- 4:00pm Judicial Confirmation Working Group Conference Call Subject: TODAY -- Agenda attached... Attachments: JCWG - agenda (1-27-03).doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000103 007104-000795 Document ID: 0.7.19343.5477 Agenda - Wee kly Conference C all Judicial Confirmation Workin g Group 1-27-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL 1. VACANC IES 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 20 99 131 34 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 JANUA RY 29 HEARING Status of preparations, scheduled meetings with Senators, issues for hearing Roberts (D.C. Cir .): shepherd - Kyl; introduction by Senator Warn er. Warner to re-ask Mikulski; Sutton (6 th Cir .): Cook (6th Cir.): Otero (CD CA) Adams (ND OH) Junell (ED TX) 2. January 30 business meeting Status of 2 nd mark-up for Miguel Estrada 3. SJC CALENDAR ? Confirmation Hearing Schedule Feb. Hearing Calendar: Status of date and nominees for seco nd hearing ? Mark-up Schedule 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000104 007104-000796 Docume nt ID: 0.7.19343 .5477-000001 Agenda - Wee kly Conference C all Judicial Confirmation Workin g Group 1-27-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL 1. VACANC IES 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 20 99 131 34 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 JANUA RY 29 HEARING Status of preparations, scheduled meetings with Senators, issues for hearing Roberts (D.C. Cir .): shepherd - Kyl; introduction by Senator Warn er. Warner to re-ask Mikulski; Sutton (6 th Cir .): Cook (6th Cir.): Otero (CD CA) Adams (ND OH) Junell (ED TX) 2. January 30 business meeting Status of 2 nd mark-up for Miguel Estrada 3. SJC CALENDAR ? Confirmation Hearing Schedule Feb. Hearing Calendar: Status of date and nominees for seco nd hearing ? Mark-up Schedule 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000104 007104-000796 Docume nt ID: 0.7.19343 .5477-000001 Sales, Nathan From : Sales, Nathan Sent : Tuesday , January 28, 2003 7:13 PM To: Dinh, Viet; Chames, Adam; Benczkowski, Brian A; Benedi , Lizette D; Joy, Sheila ; Sc.ottfinan , Nancy; Brown, Jamie E (OLA);Corallo, Mark; Cutchens, Heathe r; ' Brett Kavanaugh (E-mail)'; 'Chris Bartolomucci (E-mail)'; 'Kyle Sampson (E-ma il)'; 'Heather Wingate (E-mail) ' Cc: ' Manuel Miranda (E-mail)' Subject : RE: Tomorrow's hearing Please disregard the prior email. SJC staff advises us that WH and OOJ personnel will have access to the hearing room jus t like last year. Manny's "special admits" are surrogates. --Original Message-From: Sales, Nathan Sent: Tuesday, Jan uary 28, 2003 6:50 PM To: Dinh, Viet; Charnes , Adam; Benczkowski, Brian A; Benedi, Lizette D; Joy, Sheila; Scottfinan, Nancy; Brown, Jamie E (OLA); Corallo, Mark; Cutchens, Heather ; Brett Kavanaugh {E-mail); Chris Bartolomucci (E-mail); Kyle Sampson (E-mail); Heather Wingate (E-mail} Cc: Manuel Miranda (E-mail) Subject: Tomorrow 's hearing FYI.There are new procedures governing access to the committee hearing room. We 've asked that your name be inclu ded on the list. Brett, Chris, or Kyle, could you please pass this on to David Leitch (whose email address I don 't have)? Thanks. - Original MessageFrom: Miranda, Manuel (Judiciary) [mailto:Manuel _ Miranda@Judiciary .senate.gov) Sent: Tuesday, January 28, 2003 6:37 PM To: Dinh, Viet; Sales, Nathan Cc: Goodling, Monica; Cora llo, Mark; Brown, Jamie E (OlA); Benczkowski , Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE: Sutton press availability Unless you hear differentlt tomight, this is the way we are handling special admits: We will have a list in Room 224, next to the entrance. These folks need to be there no later than 9:20. They will be admitted through the back door. EXT-18-2091-C-000105 007104-000797 Document ID: 0.7.19343.5500 Sales, Nathan From : Sales, Nathan Sent : Tuesday , January 28, 2003 7:13 PM To: Dinh, Viet; Chames, Adam; Benczkowski, Brian A; Benedi , Lizette D; Joy, Sheila ; Sc.ottfinan , Nancy; Brown, Jamie E (OLA);Corallo, Mark; Cutchens, Heathe r; ' Brett Kavanaugh (E-mail)'; 'Chris Bartolomucci (E-mail)'; 'Kyle Sampson (E-ma il)'; 'Heather Wingate (E-mail) ' Cc: ' Manuel Miranda (E-mail)' Subject : RE: Tomorrow's hearing Please disregard the prior email. SJC staff advises us that WH and OOJ personnel will have access to the hearing room jus t like last year. Manny's "special admits" are surrogates. --Original Message-From: Sales, Nathan Sent: Tuesday, Jan uary 28, 2003 6:50 PM To: Dinh, Viet; Charnes , Adam; Benczkowski, Brian A; Benedi, Lizette D; Joy, Sheila; Scottfinan, Nancy; Brown, Jamie E (OLA); Corallo, Mark; Cutchens, Heather ; Brett Kavanaugh {E-mail); Chris Bartolomucci (E-mail); Kyle Sampson (E-mail); Heather Wingate (E-mail} Cc: Manuel Miranda (E-mail) Subject: Tomorrow 's hearing FYI.There are new procedures governing access to the committee hearing room. We 've asked that your name be inclu ded on the list. Brett, Chris, or Kyle, could you please pass this on to David Leitch (whose email address I don 't have)? Thanks. - Original MessageFrom: Miranda, Manuel (Judiciary) [mailto:Manuel _ Miranda@Judiciary .senate.gov) Sent: Tuesday, January 28, 2003 6:37 PM To: Dinh, Viet; Sales, Nathan Cc: Goodling, Monica; Cora llo, Mark; Brown, Jamie E (OlA); Benczkowski , Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE: Sutton press availability Unless you hear differentlt tomight, this is the way we are handling special admits: We will have a list in Room 224, next to the entrance. These folks need to be there no later than 9:20. They will be admitted through the back door. EXT-18-2091-C-000105 007104-000797 Document ID: 0.7.19343.5500 YOU need to tell us who to place on a list tor our receptionist. And you need to make sure that these folks know that they have to be on a list and what the discreet drill is. All others should go to the regular door. Tomorrow we will let in the 50 friends and family thru the main entrance, and we will have an overflow room for any overflow. EXT-18-2091-C-000106 007104-000798 Document ID: 0.7.19343 .5500 YOU need to tell us who to place on a list tor our receptionist. And you need to make sure that these folks know that they have to be on a list and what the discreet drill is. All others should go to the regular door. Tomorrow we will let in the 50 friends and family thru the main entrance, and we will have an overflow room for any overflow. EXT-18-2091-C-000106 007104-000798 Document ID: 0.7.19343 .5500 Washington, Tracy T Washington, Tracy T Monday, February 3, 2003 1:25 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh; William Hall Reminder -- 4:00pm Judicial Working Group Conference Call TODAY -- Agenda Subject: attached Attachments: JCWG - agenda (2-03-03)1.doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000107 007104-000799 Document ID: 0.7.19343.5495 Washington, Tracy T Washington, Tracy T Monday, February 3, 2003 1:25 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; manuel_miranda@judiciary.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Tim_Goeglein@who.eop.gov; Viet Dinh; William Hall Reminder -- 4:00pm Judicial Working Group Conference Call TODAY -- Agenda Subject: attached Attachments: JCWG - agenda (2-03-03)1.doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000107 007104-000799 Document ID: 0.7.19343.5495 Agenda - Weekly Conference Call Judicial Confirmation Workin g Group 2-3-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL 1. VACANC IES 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 26 99 131 40 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 MIGUELESTRADA Floor debate to begin at 2: 15 Wednesday. Expected to continue into following week. Status of floor materials: biographical information, career hightlights, supporter quotes, talking points on key issues . WH and OLP working with SJC to produce materials. Rapid response: e-mail and fax distribution lists . 2. FEBRUARY 5THCONFIRMATION HEARING Jay Bybee, 9 111Circui t Ralph Erickson, D.ND Willi am Quarles, D.MD Gregory Frost, S.D .OH 3. FEBRUARY6T0 BUSINESSMEETI NG Roberts, Cook, Sutton plus Otero, Adams and Junell. No written follow-up questions yet received for any nominees. 4. SJC CALENDAR ? Confirmation Hearing Schedule Feb. Hearin g Calendar: Status ofnext hearing ? Mark-up Schedule 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000108 007104-000800 Documen t ID: 0.7.19343 .5495~000001 Agenda - Weekly Conference Call Judicial Confirmation Workin g Group 2-3-03 Dial-in: Passcode: ART. III COURTS Circuit Court District Court TOTAL 1. VACANC IES 25 (of 179) - 14% 37 (of66 5) - 5.6% 62 (of862) - 7.2% NOMINATIONS 107th Cong. 108th Cong. (2001-02) (2003-04) 32 14 26 99 131 40 CONFIRMATIONS 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 0 83 0 100 0 MIGUELESTRADA Floor debate to begin at 2: 15 Wednesday. Expected to continue into following week. Status of floor materials: biographical information, career hightlights, supporter quotes, talking points on key issues . WH and OLP working with SJC to produce materials. Rapid response: e-mail and fax distribution lists . 2. FEBRUARY 5THCONFIRMATION HEARING Jay Bybee, 9 111Circui t Ralph Erickson, D.ND Willi am Quarles, D.MD Gregory Frost, S.D .OH 3. FEBRUARY6T0 BUSINESSMEETI NG Roberts, Cook, Sutton plus Otero, Adams and Junell. No written follow-up questions yet received for any nominees. 4. SJC CALENDAR ? Confirmation Hearing Schedule Feb. Hearin g Calendar: Status ofnext hearing ? Mark-up Schedule 4. PFA Activity 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000108 007104-000800 Documen t ID: 0.7.19343 .5495~000001 Benczkowski , Brian A From : Benczkowski , Brian A Sent : Thursday, February 13, 2003 12:59 PM To: ' Miranda , Manuel (Frist) '; Corallo, Mark; Goodling, Monica; Dinh, Viet; ' Wingate, Heather ' . ' Duffield, Steven (RPC)' ; ' Delrah im, Mal To: Benczkowski, Brian A ; Sales , Nathan CC: Brett_M ._Kavanaugh@who .eop.gov Sent: Fri Feb 14 19:17:42 2003 Subject: RE: Estrada event on Tuesday Can one of you price it for us? Figure out how many pages will need to be cop ied 49 times? That is necessary to push it on a firm. Of course it would be great if a law firm took the job on an emergency basis to copy the 49 sets. Any chance? -Or iginal Message-From: Sales , Nathan (ma ilto:Nathan.Sales@usdoj .gov] Sent: Friday, February 14, 2003 7:05 PM To: Benczkowski, Brian A; Miranda , Manue l {Frist) Subject: Re: Estrada event on Tuesday Leonard Leo will know. We probably don't want the fed soc paying for it, but he might know some generous donor. Would Gibson Dunn pay? -Or iginal Message-From: Benczkowsk i, Brian A To: 'Manuel_Miranda@fr ist.senate.gov ' Sent: Fri Feb 14 19:00:56 2003 Subject: Re: Estrada event on Tuesday > Tough. Can the WH pony up for 49 boxes of goodies? EXT-18-2091-C-000111 007104-000803 Document ID: 0.7.19343.5589 Sales , Nathan From : Sales , Nathan Sent : Friday, February 14, 2003 7:30 PM To: ' Manue l_Miranda@frist.senate.gov '; Benczkowski, Brian A Cc: 'Brett_M ._Kavanaugh@ who.eop.gov ' Subje ct : Re: Estrada event on Tuesday I have no way of guessing. Severa l thousand pages , I would th ink, but short of s itting down and counting , there 's no way to know for sure. Also, my connect ions with law firms aren 't the greatest , s ince I've never worked at one , so I'm not go ing to be much help there either . - - Original Message- From: Miranda, Manue l (Frist ) To: Benczkowski, Brian A ; Sales , Nathan CC: Brett_M ._Kavanaugh@who .eop.gov Sent: Fri Feb 14 19:17:42 2003 Subject: RE: Estrada event on Tuesday Can one of you price it for us? Figure out how many pages will need to be cop ied 49 times? That is necessary to push it on a firm. Of course it would be great if a law firm took the job on an emergency basis to copy the 49 sets. Any chance? -Or iginal Message-From: Sales , Nathan (ma ilto:Nathan.Sales@usdoj .gov] Sent: Friday, February 14, 2003 7:05 PM To: Benczkowski, Brian A; Miranda , Manue l {Frist) Subject: Re: Estrada event on Tuesday Leonard Leo will know. We probably don't want the fed soc paying for it, but he might know some generous donor. Would Gibson Dunn pay? -Or iginal Message-From: Benczkowsk i, Brian A To: 'Manuel_Miranda@fr ist.senate.gov ' Sent: Fri Feb 14 19:00:56 2003 Subject: Re: Estrada event on Tuesday > Tough. Can the WH pony up for 49 boxes of goodies? EXT-18-2091-C-000111 007104-000803 Document ID: 0.7.19343.5589 --Original Message--From: Miranda, Manuel {Frist) To: Benczkowski, Brian A CC: Sales, Nathan Sent: Fri Feb 14 18:32:56 2003 Subject: RE: Estrada event on Tuesday The trouble is we need to copy that 49 times. We need an outside group or law firm to pay for it. Any thoughts? I have not spoken to Boyden a bout the cost yet and may not make contact until Tuesday unless he returns the call. And we will need to have it by 2 pm on Tuesday!!!! My cell is - over the weekend, and I will also be at my desk most of that time. 224-3749 --Original Message--From: Benczkowski, Brian A {mai lto:Brian.A.Benczkowski@us doj.go v) Sent: Friday, February 14, 2003 6 :27 PM To: Miranda, Manuel {Frist) Cc: Sales, Nathan Subject: Re: Estrada event on Tues day MannyWe have assembled a litigation box full of Miguel 's record, which I thought had been sent up to you. In addition to the info in the binders we sent up, the box has every brief Miguel has ever authore d, plus other stuff. Nathan has the box. This might be the best set of docs for you guys to use. Let me know what you want us to do with it. BAB -Original Message - -From: Miranda, Manuel (Frist) To: Benczkowski, Brian A ; Keys, Elizabeth {Republican-Conf} Ledee n, Barbara {Republican-Conf) wgrubbs@who .eop.gov ; Cornisac, RenaJohnson {Judiciary) CC: Brown, Jamie E {OLA); leonar d_ B._ Rodriguez@who.eop .gov Sent: Fri Feb 14 18:12:16 2003 Subject: RE: Estrada event on Tues day See attached EXT-18-2091-C-000112 007104-000804 Document ID: 0.7.19343.5589 --Original Message--From: Miranda, Manuel {Frist) To: Benczkowski, Brian A CC: Sales, Nathan Sent: Fri Feb 14 18:32:56 2003 Subject: RE: Estrada event on Tuesday The trouble is we need to copy that 49 times. We need an outside group or law firm to pay for it. Any thoughts? I have not spoken to Boyden a bout the cost yet and may not make contact until Tuesday unless he returns the call. And we will need to have it by 2 pm on Tuesday!!!! My cell is - over the weekend, and I will also be at my desk most of that time. 224-3749 --Original Message--From: Benczkowski, Brian A {mai lto:Brian.A.Benczkowski@us doj.go v) Sent: Friday, February 14, 2003 6 :27 PM To: Miranda, Manuel {Frist) Cc: Sales, Nathan Subject: Re: Estrada event on Tues day MannyWe have assembled a litigation box full of Miguel 's record, which I thought had been sent up to you. In addition to the info in the binders we sent up, the box has every brief Miguel has ever authore d, plus other stuff. Nathan has the box. This might be the best set of docs for you guys to use. Let me know what you want us to do with it. BAB -Original Message - -From: Miranda, Manuel (Frist) To: Benczkowski, Brian A ; Keys, Elizabeth {Republican-Conf} Ledee n, Barbara {Republican-Conf) wgrubbs@who .eop.gov ; Cornisac, RenaJohnson {Judiciary) CC: Brown, Jamie E {OLA); leonar d_ B._ Rodriguez@who.eop .gov Sent: Fri Feb 14 18:12:16 2003 Subject: RE: Estrada event on Tues day See attached EXT-18-2091-C-000112 007104-000804 Document ID: 0.7.19343.5589 -Original Message-From: Keys, Elizabeth (Republican -Conf) Sent: Friday, February 14, 2003 6:04 PM To: Miranda, Manuel (Frist) ; Ledeen, Barbara (Repub lican -Conf); wgrubbs@who .eop.gov ; Comisac , RenaJohnson (Judiciary); Benczkowsk i, Brian A Cc: Jamie.E .Brown@usdoj.gov; Leonard_ B._Rodriguez@who.eop .gov Subject: RE: Estrada event on Tuesday I have requested for set -up 30 chairs theatre style with a row in the middle, pod ium, mike/ mult and next to the podium a long table with tab lecloth for the documents. -Elizabeth -- Original Message- -From: Miranda , Manue l (Frist ) Sent: Friday, February 14, 2003 5:58 PM To: Ledeen , Barbara (Republi can -Conf); Keys, Elizabeth (Republ ican-Conf) ; wgrubbs@who.eop.gov ; Comisac , RenaJohnson (Judiciary) ; Benczkowski , Brian A Cc: Jamie .E.Brown@usdoj.gov ; Leonard _ B._ Rodrigue z@who .eop.gov Subject: Estrada event on Tuesday I have called Boyden and Brigitta . I will also call Carlos lturriagui from Hispanic bar . I am copying Kay We also have to start th inking about who will pro duce the cop ies and assemb le interns with boxes. Rena, I assume we can copy the binder that DOJ recent ly sent us and place the copies in boxes . We do not need the expense of binders. We will have to make these copies off campus and the expense carried / shared by an outs ide group . Barbara / Kay? Rena and Barbara, we need you to provide interns. Leonard , can you provide bod ies? Also send us a schedu le of Hispanic events for the next two weeks. --Original Message--From: Ledeen , Barbara (Repub lican -Conf) Sent: Friday, February 14, 2003 S:24 PM To: Miranda , Manue l (Frist); Keys, Eliza beth (Repub lican- Conf); Comisac, RenaJohnson (Judiciary); Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett _ M._ Kavanaugh@who.eop.gov ; Delrahim , Maka n (Judiciary); wgrubbs@ who.eop.gov Cc: Vogel, Alex (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event yes but you have to clear with boyden because he has that federalist so ciety debate too. EXT-18-2091-C-000113 007104-000805 Document ID: 0.7.19343 .5589 -Original Message-From: Keys, Elizabeth (Republican -Conf) Sent: Friday, February 14, 2003 6:04 PM To: Miranda, Manuel (Frist) ; Ledeen, Barbara (Repub lican -Conf); wgrubbs@who .eop.gov ; Comisac , RenaJohnson (Judiciary); Benczkowsk i, Brian A Cc: Jamie.E .Brown@usdoj.gov; Leonard_ B._Rodriguez@who.eop .gov Subject: RE: Estrada event on Tuesday I have requested for set -up 30 chairs theatre style with a row in the middle, pod ium, mike/ mult and next to the podium a long table with tab lecloth for the documents. -Elizabeth -- Original Message- -From: Miranda , Manue l (Frist ) Sent: Friday, February 14, 2003 5:58 PM To: Ledeen , Barbara (Republi can -Conf); Keys, Elizabeth (Republ ican-Conf) ; wgrubbs@who.eop.gov ; Comisac , RenaJohnson (Judiciary) ; Benczkowski , Brian A Cc: Jamie .E.Brown@usdoj.gov ; Leonard _ B._ Rodrigue z@who .eop.gov Subject: Estrada event on Tuesday I have called Boyden and Brigitta . I will also call Carlos lturriagui from Hispanic bar . I am copying Kay We also have to start th inking about who will pro duce the cop ies and assemb le interns with boxes. Rena, I assume we can copy the binder that DOJ recent ly sent us and place the copies in boxes . We do not need the expense of binders. We will have to make these copies off campus and the expense carried / shared by an outs ide group . Barbara / Kay? Rena and Barbara, we need you to provide interns. Leonard , can you provide bod ies? Also send us a schedu le of Hispanic events for the next two weeks. --Original Message--From: Ledeen , Barbara (Repub lican -Conf) Sent: Friday, February 14, 2003 S:24 PM To: Miranda , Manue l (Frist); Keys, Eliza beth (Repub lican- Conf); Comisac, RenaJohnson (Judiciary); Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett _ M._ Kavanaugh@who.eop.gov ; Delrahim , Maka n (Judiciary); wgrubbs@ who.eop.gov Cc: Vogel, Alex (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event yes but you have to clear with boyden because he has that federalist so ciety debate too. EXT-18-2091-C-000113 007104-000805 Document ID: 0.7.19343 .5589 --Original Message-From: Miranda, Manuel (Frist) Sent : Friday, February 14, 2003 5:16 PM To: Keys, Elizabeth (Republican-Conf}; Comisac, RenaJohnson (Judiciary); Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Ledeen, Barbara (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Brigitta Benitez from Republican National Lawyers Assoc and Carlos lturriagui from the Hispanic Bar Association, ... and then Boyden and Kay. Does that work? --O riginal Message--From: Miranda, Manuel (Frist) Sent: Friday, February 14, 2003 4:22 PM To: Comisac, RenaJohnson (Judiciary}; Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Ledeen, Barbara (Republican-Con f}; Keys, Elizabeth (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event We are looking at Boyden and Kay Daly and maybe Tom Jipping. It is developing that these boxes will come from concerned citizens that see that the Senate Democrats need help. -O riginal Message-From: Comisac, RenaJohnson (Judiciary) Sent: Friday, February 14, 2003 3:29 PM To: Dinh, Viet; Brown, Jamie E (OLA};Benczkowski, Brian A; Miranda, Manuel (Frist); Brett _ M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary}; Lede-en, Barbara (Republic an -Conf); Keys, Elizabeth {Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Who is going to speak at this press conference? -Original Message---From: Dinh, Viet {mailto:Viet.Dinh@usdoj.gov] Sent: Friday, February 14, 2003 3:22 PM To: Brown, Jamie E (OLA); Benczkowski, Brian A; Miranda, Manuel (Frist); 'Bre tt _ M._ Kavanaugh@who.eop.gov'; Delrahim, Makan (Judiciary}; Comisac, RenaJohnson (Judiciary); Ledeen , Barbara ( Republican -Conf); Keys, Elizabeth (Republican-Conf); 'wgrubbs@who.eop.gov' EXT-18-2091-C-000114 007104-000806 Documen t ID: 0.7.19343 .5589 --Original Message-From: Miranda, Manuel (Frist) Sent : Friday, February 14, 2003 5:16 PM To: Keys, Elizabeth (Republican-Conf}; Comisac, RenaJohnson (Judiciary); Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Ledeen, Barbara (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Brigitta Benitez from Republican National Lawyers Assoc and Carlos lturriagui from the Hispanic Bar Association, ... and then Boyden and Kay. Does that work? --O riginal Message--From: Miranda, Manuel (Frist) Sent: Friday, February 14, 2003 4:22 PM To: Comisac, RenaJohnson (Judiciary}; Dinh, Viet; Brown, Jamie E (OLA); Benczkowski, Brian A; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Ledeen, Barbara (Republican-Con f}; Keys, Elizabeth (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event We are looking at Boyden and Kay Daly and maybe Tom Jipping. It is developing that these boxes will come from concerned citizens that see that the Senate Democrats need help. -O riginal Message-From: Comisac, RenaJohnson (Judiciary) Sent: Friday, February 14, 2003 3:29 PM To: Dinh, Viet; Brown, Jamie E (OLA};Benczkowski, Brian A; Miranda, Manuel (Frist); Brett _ M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary}; Lede-en, Barbara (Republic an -Conf); Keys, Elizabeth {Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Who is going to speak at this press conference? -Original Message---From: Dinh, Viet {mailto:Viet.Dinh@usdoj.gov] Sent: Friday, February 14, 2003 3:22 PM To: Brown, Jamie E (OLA); Benczkowski, Brian A; Miranda, Manuel (Frist); 'Bre tt _ M._ Kavanaugh@who.eop.gov'; Delrahim, Makan (Judiciary}; Comisac, RenaJohnson (Judiciary); Ledeen , Barbara ( Republican -Conf); Keys, Elizabeth (Republican-Conf); 'wgrubbs@who.eop.gov' EXT-18-2091-C-000114 007104-000806 Documen t ID: 0.7.19343 .5589 Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Sounds good to me; we have the copies ready to transmit . -Original Message-From: Miranda, Manuel (Frist) {mailto:Manuel_Miranda@frist.senate.gov) Sent: Friday, February 14, 2003 3:12 PM To: Brown, Jamie E (OLA); Benczkowski, Brian A; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); Ledeen, Barbara (Republican-Conf); Keys, Eliza beth (Republican -Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist) Subject: Estrada event Folks, We woul d like your input on the idea that He ather first floated that we would like to work on for Tuesday implementation. Some of you may al ready be in the loop. The idea is to have a press event to provide a visual and keep whatever little attention we can on the Estrada nomination over Recess. We would annou nce an Estrada press conference at 2 pm on Tuesday in Mansfield (SRConf to do) and start the event by having 10 interns walk in with boxes containing 49 copies of all Estrada Supreme Court filings. We would sepa rately also communicate to Dem staffs to drop by Mansfield at 2 pm to Pick up the Estrad a writings. And we tell the press that we did A possible drawback is that Oems will spin this as "they are only doing this now." But rather , we would announce that these writings are publicly available and have been available for review for over two years, an d many were delivered already to the JC, and we are going to the trouble of making su re every Democrat Senator and staff has them to read over the whole Recess week...so we can vote when we return . Ideas? Manny EXT-18-2091-C-000115 007104-000807 Document ID: 0.7.19343 .5589 Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Sounds good to me; we have the copies ready to transmit . -Original Message-From: Miranda, Manuel (Frist) {mailto:Manuel_Miranda@frist.senate.gov) Sent: Friday, February 14, 2003 3:12 PM To: Brown, Jamie E (OLA); Benczkowski, Brian A; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); Ledeen, Barbara (Republican-Conf); Keys, Eliza beth (Republican -Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist) Subject: Estrada event Folks, We woul d like your input on the idea that He ather first floated that we would like to work on for Tuesday implementation. Some of you may al ready be in the loop. The idea is to have a press event to provide a visual and keep whatever little attention we can on the Estrada nomination over Recess. We would annou nce an Estrada press conference at 2 pm on Tuesday in Mansfield (SRConf to do) and start the event by having 10 interns walk in with boxes containing 49 copies of all Estrada Supreme Court filings. We would sepa rately also communicate to Dem staffs to drop by Mansfield at 2 pm to Pick up the Estrad a writings. And we tell the press that we did A possible drawback is that Oems will spin this as "they are only doing this now." But rather , we would announce that these writings are publicly available and have been available for review for over two years, an d many were delivered already to the JC, and we are going to the trouble of making su re every Democrat Senator and staff has them to read over the whole Recess week...so we can vote when we return . Ideas? Manny EXT-18-2091-C-000115 007104-000807 Document ID: 0.7.19343 .5589 Dinh, Viet From : Dinh, Viet Sent : Monday, February 17, 2003 6:34 PM To: 'Brett_M._K avana ugh@who.eop.gov'; Benczko wski, Brian A; Brown, Jamie E (OLA);Sales, Nathan; 'Wendy J. Grubbs@who.eop .gov '; ' Manuel_Miranda@frist.senate.gov '; ' 'Makan_Delrahim@Ju diciary .s enate.gov ' ; '/DDV =Rena _Johnson _ Comisac@Judiciary.senate.gov/DDT=RFC822/0=INETGW/P=-GOV+DOJ/A=TELEMAIL/C=US/';' I gov' Cc: 'Alex_ Vogel@frist.senate.gov n@frist.senate.gov ' Su bje ct: Re: Estrada event '; ' Paul_Jacobson@frist.senate.gov ' ; 'Bob _ Stevenso Me three. The olumes are pretty big and there is no need to puMp. - Sent from my BlackBerry. Message-Original From: Brett_ M._ Kavanaugh@who.eop.gov To: Benczkowski, Brian A ; Brown, Jamie E (OLA) ; Sales, Nathan ; Dinh, Viet ; Wendy _J._Grubbs@who.eop.gov ; Manuel_Miranda@frist.senate.gov ; Brett M._Kavanaugh@who.e op.gov Makan_Delrahim@Judiciary.senate.gov ; = ena _Jo . nson _ Comisac@Judiciary .senate.gov/DDT=RFC-822/0=INETGW/P =GOV+DOJ/A=TELEMAIL/C=US/ CC: Alex_ Vogel@trist.senate.gov ; Paul_Jacobson@frist.senate.gov ; Bob_Stevenson@frist.senate.gov Sent: Sun Feb 16 22:37:51 2003 Subject: Re: Estrada event I tend to agree. Do t hey need 10 copies at the press event? -- Original MessageFrom:Wen dy J. Grubbs/WHO /EOP To:Manuel_Miranda@frist.senate.gov, Brett M . Kavanau h HO EOP EOP, Viet.Dinh@usdoj.gov , Brian.A.Benczkowski@usdoj.gov, EXT-18-2091-C-000116 007104-000808 Document ID: 0.7.19343.9188 Dinh, Viet From : Dinh, Viet Sent : Monday, February 17, 2003 6:34 PM To: 'Brett_M._K avana ugh@who.eop.gov'; Benczko wski, Brian A; Brown, Jamie E (OLA);Sales, Nathan; 'Wendy J. Grubbs@who.eop .gov '; ' Manuel_Miranda@frist.senate.gov '; ' 'Makan_Delrahim@Ju diciary .s enate.gov ' ; '/DDV =Rena _Johnson _ Comisac@Judiciary.senate.gov/DDT=RFC822/0=INETGW/P=-GOV+DOJ/A=TELEMAIL/C=US/';' I gov' Cc: 'Alex_ Vogel@frist.senate.gov n@frist.senate.gov ' Su bje ct: Re: Estrada event '; ' Paul_Jacobson@frist.senate.gov ' ; 'Bob _ Stevenso Me three. The olumes are pretty big and there is no need to puMp. - Sent from my BlackBerry. Message-Original From: Brett_ M._ Kavanaugh@who.eop.gov To: Benczkowski, Brian A ; Brown, Jamie E (OLA) ; Sales, Nathan ; Dinh, Viet ; Wendy _J._Grubbs@who.eop.gov ; Manuel_Miranda@frist.senate.gov ; Brett M._Kavanaugh@who.e op.gov Makan_Delrahim@Judiciary.senate.gov ; = ena _Jo ? nson _ Comisac@Judiciary .senate.gov/DDT=RFC-822/0=INETGW/P =GOV+DOJ/A=TELEMAIL/C=US/ CC: Alex_ Vogel@trist.senate.gov ; Paul_Jacobson@frist.senate.gov ; Bob_Stevenson@frist.senate.gov Sent: Sun Feb 16 22:37:51 2003 Subject: Re: Estrada event I tend to agree. Do t hey need 10 copies at the press event? -- Original MessageFrom:Wen dy J. Grubbs/WHO /EOP To:Manuel_Miranda@frist.senate.gov, Brett M . Kavanau h HO EOP EOP, Viet.Dinh@usdoj.gov , Brian.A.Benczkowski@usdoj.gov, EXT-18-2091-C-000116 007104-000808 Document ID: 0.7.19343.9188 Jamie.E.Brown@usdoj.gov, Makan_Delrahim@Judiciary.senate.gov, Rena _Johnson _ Comisac@Judiciary.senate.gov, ... .... ... ,, .... , ,.,,, Nathan.Sales@us doj.gov Cc:Alex_ Vogel@frist.senate.gov, Paul_Jacobson@frist.senate.gov, Bob_Stevenson@frist.senate.gov Date: 02/ 16/2003 07:18:40 PM Subject: Re: Estrada event So we are making ten copies of the same docs? Original Message From: To: o . l ~~ o . . I o o I ! o o o ' ' o ' Viet.Dinh@usdoj.gov, Brian.A.Benczkowski@usdoj.gov, Jamie.?.Brown@usdoj.gov, , < Rena_Johnson_ Comisac@Judicia ry.senate.gov>, \iiienay J. l:.rUOOS/WNU/tUt'@JtUt', Cc:, , Date: 02/16/2003 05:00:00 PM Subject: RE: Estrada event Our anchor speaker and principal will be Boyden Gray. We will make the message clear and he will take the questions. Although we need a visual, due to the expense we will make only 10 copies. This will cost almost $2000 dollars. Boyden will pitch in and we hope others. -Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett _ M._Kavanaugh@who.eop.gov] Sent: Friday, February 14, 2003 7:56 PM To: Miranda, Manuel (Frist); Keys, Elizabeth (Republican-Conf}; Brett_M._Kavanaugh@who.eop.gov; Viet.Oinh@usdoj.gov; Brian.A.Benczkowski@usdoj.gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); ledeen, Barbara ( Republican-Conf); Wendy_J._Grubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subiect: Re: Estrada event EXT-18-2091-C-000117 007104-000809 Document ID: 0.7.19343.9188 Jamie.E.Brown@usdoj.gov, Makan_Delrahim@Judiciary.senate.gov, Rena _Johnson _ Comisac@Judiciary.senate.gov, ... .... ... ,, .... , ,.,,, Nathan.Sales@us doj.gov Cc:Alex_ Vogel@frist.senate.gov, Paul_Jacobson@frist.senate.gov, Bob_Stevenson@frist.senate.gov Date: 02/ 16/2003 07:18:40 PM Subject: Re: Estrada event So we are making ten copies of the same docs? Original Message From: To: o . l ~~ o . . I o o I ! o o o ' ' o ' Viet.Dinh@usdoj.gov, Brian.A.Benczkowski@usdoj.gov, Jamie.GBP.Brown@usdoj.gov, , < Rena_Johnson_ Comisac@Judicia ry.senate.gov>, \iiienay J. l:.rUOOS/WNU/tUt'@JtUt', Cc:, , Date: 02/16/2003 05:00:00 PM Subject: RE: Estrada event Our anchor speaker and principal will be Boyden Gray. We will make the message clear and he will take the questions. Although we need a visual, due to the expense we will make only 10 copies. This will cost almost $2000 dollars. Boyden will pitch in and we hope others. -Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett _ M._Kavanaugh@who.eop.gov] Sent: Friday, February 14, 2003 7:56 PM To: Miranda, Manuel (Frist); Keys, Elizabeth (Republican-Conf}; Brett_M._Kavanaugh@who.eop.gov; Viet.Oinh@usdoj.gov; Brian.A.Benczkowski@usdoj.gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); ledeen, Barbara ( Republican-Conf); Wendy_J._Grubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subiect: Re: Estrada event EXT-18-2091-C-000117 007104-000809 Document ID: 0.7.19343.9188 Original Message Fro 1 n.1 o n ?oo? o -o- o .gov> To: Brett M. Kavanaugh/WHO/ EOP@EOP, , Brian.A.Benczkowski@usdoj.gov, Jamie.E.Brown@usdoj.gov, , , Wen y J. Gru s Cc:, , Date: 02/14/2003 04:24:01 PM Subject: RE: Estrada event 1:30 at the earliest, reporters eat lunch and will schedule them over the Recess -Original Message--From: Keys, Elizabeth (Republic an-Conf) Sent : Friday, February 14, 2003 3:39 PM To: Miranda, Manuel (Frist); Brett_M._Kavanaugh@who.eop.gov; Dinh, Viet; Brian.A.Benc2kowski@usdoj .gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary}; Comisac, RenaJohnson (Judiciary); Ledeen, Barbara (Republican -Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Can we do the event at 1pm? We booked the room from 10-2 and that is the lat est we can get -Or igina l Message-From: Miranda, Manuel (Frist) Sent: Friday, February 14, 2003 3:12 PM To: Brett_ M._ Kavanaugh@who.eop.gov; Dinh, Viet; Brian.A.Benczkowski@usdoj.gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); le deen, Barbara ( Republ ican-Conf); Keys, Elizabeth (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: Estrada event EXT-18-2091-C-000118 007104-000810 Document ID: 0.7.19343 .9188 Original Message Fro 1 n.1 o n .oo. o -o- o .gov> To: Brett M. Kavanaugh/WHO/ EOP@EOP, , Brian.A.Benczkowski@usdoj.gov, Jamie.E.Brown@usdoj.gov, , , Wen y J. Gru s Cc:, , Date: 02/14/2003 04:24:01 PM Subject: RE: Estrada event 1:30 at the earliest, reporters eat lunch and will schedule them over the Recess -Original Message--From: Keys, Elizabeth (Republic an-Conf) Sent : Friday, February 14, 2003 3:39 PM To: Miranda, Manuel (Frist); Brett_M._Kavanaugh@who.eop.gov; Dinh, Viet; Brian.A.Benc2kowski@usdoj .gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary}; Comisac, RenaJohnson (Judiciary); Ledeen, Barbara (Republican -Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: RE: Estrada event Can we do the event at 1pm? We booked the room from 10-2 and that is the lat est we can get -Or igina l Message-From: Miranda, Manuel (Frist) Sent: Friday, February 14, 2003 3:12 PM To: Brett_ M._ Kavanaugh@who.eop.gov; Dinh, Viet; Brian.A.Benczkowski@usdoj.gov; Jamie.E.Brown@usdoj.gov; Delrahim, Makan (Judiciary); Comisac, RenaJohnson (Judiciary); le deen, Barbara ( Republ ican-Conf); Keys, Elizabeth (Republican-Conf); wgrubbs@who.eop.gov Cc: Vogel, Alex (Frist); Jacobson, Paul (Frist); Stevenson, Bob (Frist) Subject: Estrada event EXT-18-2091-C-000118 007104-000810 Document ID: 0.7.19343 .9188 1--oll to file: 02/21/2003 09:33:50 AM pic06484.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP who is lea d for Mass? -Original Message--From: Brett_M. _ Kavanaugh@who.eop.gov {mailto:Brett_M._Kavanaugh@who.eop.gov] Sent: Thursday , February 20, 2003 6:32 PM To: Miranda , Manuel (Frist) Cc: Benczkowski , Brian A; Sales, Nathan; Dinh, Viet; comisac , renajohnson (judicia Subject: Re: FW: . EXT-18-2091-C-000120 Docum Brett_M ._Kavanaugh@who.eop .gov From: Brett_ M._Kavanaugh@who.eop.gov Sent : Friday, February 21, 2003 9:37 AM To: Dinh1 Viet Subject : RE:FW: Attachments : pic06484.pcx. Ted Ullyot. (Embedded image moved "Dinh, Viet" to file: 02/21/2003 09:33:50 AM pic06484.pcx) Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP who is lea d for Mass? -Original Message--From: Brett_M. _ Kavanaugh@who.eop.gov {mailto:Brett_M._Kavanaugh@who.eop.gov] Sent: Thursday , February 20, 2003 6:32 PM To: Miranda , Manuel (Frist) Cc: Benczkowski , Brian A; Sales, Nathan; Dinh, Viet; comisac , renajohnson (judicia Subject: Re: FW: . EXT-18-2091-C-000120 Docum Brett M._Kavanaugh@who.eop .gov From: Brett_ M._ Kavanaugh@who.eop.gov Sent : Thursday, February 20, 2003 6:32 PM To: Miranda, Manuel (Frist) Cc: Benczkowski, Brian A; Sales, Nathan; Dinh, Viet; comisac, renajohnson (judiciary) Subject : Re:FW: Attachments: pic30648.pcx (Embedded ima ge moved "Miranda, Manuel (Frist)" to file: pic30648.pcx) 02/20/2003 06:03:40 PM Recor d Type: Recor d To: Viet.Oinh@usdoj.gov, Nathan.Sales@usdoj.gov, Brett M. Kavanaugh/WHO/EOP@EOP, "Ben czkowski, Brian A" cc: "Comisac, RenaJohnson (Judiciary)" Judiciary.senate.gov> Subjed: FW: EXT-18-2091-C-000121 007104-000813 Document ID: 0.7.19343 .9213 Brett M._Kavanaugh@who.eop .gov From: Brett_ M._ Kavanaugh@who.eop.gov Sent : Thursday, February 20, 2003 6:32 PM To: Miranda, Manuel (Frist) Cc: Benczkowski, Brian A; Sales, Nathan; Dinh, Viet; comisac, renajohnson (judiciary) Subject : Re:FW: Attachments: pic30648.pcx (Embedded ima ge moved "Miranda, Manuel (Frist)" to file: pic30648.pcx) 02/20/2003 06:03:40 PM Recor d Type: Recor d To: Viet.Oinh@usdoj.gov, Nathan.Sales@usdoj.gov, Brett M. Kavanaugh/WHO/EOP@EOP, "Ben czkowski, Brian A" cc: "Comisac, RenaJohnson (Judiciary)" Judiciary.senate.gov> Subjed: FW: EXT-18-2091-C-000121 007104-000813 Document ID: 0.7.19343 .9213 - Original Message- From: Wichterman, Bill (Frist) Sent; Thursday , February 20, 2003 3:45 PM To: Miranda, Manuel (Frist) Subject: Fw: T How do I respond to this? Bill Wichterman Policy Advisor Senate Majority Leader S-230 U.S. Capitol Washington, DC 20510 202-224-3135 - Original Message -From: Phil Sheldon To: Wichterman, Bill (Frist) Sent: Thu Feb 20 13:01:15 2003 Miguel Estrada 's nomination Question from Dan Rogers on 02- 14-2003: <'nttp://www.ewtn.com/vexperts/s'nowmessage_p ge=en> rint.asp?number=281149&langua Dear Judie: I'm confuse d. I just read a brief bio on Miguel Estrada , (Pres. Bush's judicial nominee) where it stated that he was one of the attorneys that argued for NOW when that organization s lapped pro-lifers with violatin g the RICOstatutes. I'm not all that fam iliar with RICO, but my understan ding was it lumpe d any pro-life work with racketeering (which is totally absurd ). So, is he pro-life , or what? Thanks. Answer by Judie Brown on 02-14-2003: Dear Dan I have seen nothing to indicate that Estrada is solidly pro-life. I do know that he did argue for NOW and against Pro-Lifers in the activism case. EXT-18-2091-C-000122 007104-000814 Document ID: 0.7.19343 .9213 - Original Message- From: Wichterman, Bill (Frist) Sent; Thursday , February 20, 2003 3:45 PM To: Miranda, Manuel (Frist) Subject: Fw: T How do I respond to this? Bill Wichterman Policy Advisor Senate Majority Leader S-230 U.S. Capitol Washington, DC 20510 202-224-3135 - Original Message -From: Phil Sheldon To: Wichterman, Bill (Frist) Sent: Thu Feb 20 13:01:15 2003 Miguel Estrada 's nomination Question from Dan Rogers on 02- 14-2003: <'nttp://www.ewtn.com/vexperts/s'nowmessage_p ge=en> rint.asp?number=281149&langua Dear Judie: I'm confuse d. I just read a brief bio on Miguel Estrada , (Pres. Bush's judicial nominee) where it stated that he was one of the attorneys that argued for NOW when that organization s lapped pro-lifers with violatin g the RICOstatutes. I'm not all that fam iliar with RICO, but my understan ding was it lumpe d any pro-life work with racketeering (which is totally absurd ). So, is he pro-life , or what? Thanks. Answer by Judie Brown on 02-14-2003: Dear Dan I have seen nothing to indicate that Estrada is solidly pro-life. I do know that he did argue for NOW and against Pro-Lifers in the activism case. EXT-18-2091-C-000122 007104-000814 Document ID: 0.7.19343 .9213 Judie Brown 007104-000815 Document ID: 0.7.19343.9213 Judie Brown 007104-000815 Document ID: 0.7.19343.9213 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Friday, February 21, 2003 10:52 AM To : 'Miranda , Manuel (Frist)'; Corallo, Mark; Dinh, Viet; Martinez , Jorge; Goodling , Monica; 'Brett _ M._ Kavanaugh@who.eop.gov '; ' wgrubbs@who.eop.gov '; 'Leonard _ B._Rodriguez@who.e-op.gov'; ' Mercedes_ M._ Viana@who.e-op.gov'; 'rfernandez @rnchq.org '; ' scastillo@rnchq.org '; 'Ledeen, Barbara (Republican Conf)' ; 'Duffield, Steven (RPC)'; 'Abegg, John (McConnell) '; ' Delrahim, Makan {Judiciary}'; ' Comisac , RenaJohnson (Judiciary)'; ' Dahl, Alex (Judiciary) ' ; ' Stevenson, Bob (Frist)'; 'Jacobson , Paul (Frist)' ; 'Bainwol, Mitch {Frist)'; 'Vogel, Alex (Frist)'; ' Ueland , Eric (Frist)'; ' Keys, Elizabeth {RepublicanConf)'; 'Wichterman, Bill (Frist}'; 'Tim_ Goeglein@who.eop.gov ' Subject : RE: Estrada Call at 3:30 Telephone Passcode: -Original Message-From: Miranda, Manue l (Frist) {mailto:Manuel_ Miranda@fr ist.senate.gov) Sent: Friday, February 21, 2003 10:46 AM To: Corallo, Mark; Benczlcowski, Brian A; Dinh, Viet; Martinez , Jorge; Goodl ing, Monica; Brett_M._Kavanaugh@who.eop.gov; wgrubbs@who.eop.gov; Leonard _ B._ Rodriguez@who.eop.gov; Mercedes _ M._ Viana@who.eop .gov; rfernandez@rnchq.org ; scastillo@rnchq.org; Lede-en, Barbara (Republican-Conf); Duffie ld, Steven (RPC); Abegg, John (McConnell); Delrah im, Makan (Judiciary) ; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary); Stevenson , Bob (Frist); Jacobson , Paul (Frist); Bainwol , Mitch (Frist); Vogel, Alex (Frist}; Ueland, Eric (Frist); Keys, Elizabeth (Republican-Conf); Wichterman , Bill (Frist); Tim_ Goeglein@who.eop.gov Subject: Estrada Call at 3:30 This afternoon at 3:30 will be a good time to take stock of where we are and may be going. Brian will respond with a call-in code. Last week's call was for purposes of media and grass roots activity and included organ ization leaders, the result has been terrific and a lot of people need congratulations . I w ould like th is call to be just the A-team to take sto ck of what we have been do ing and think ahea d a little. Please invite only others in your office you think shou ld be on. Here is an agen da to make things fly: 1) Overview 2) DOJ (Viet/Brian) 2\ U / U/OMI" C:1-~1-,,~ o~~~ ..-1-~.i: 1111~ .J :~ ~ ~ .J A~1-: oo :1-:~~ /1 ~~~~r .J \ ii \ \AIU IOr-._..llAt~~.J,.\ C\ D-~~~ ~~ 1".:r - o o~ ~ EXT-18-2091-C-000124 007104-000816 Document ID: 0.7.19343 .9202 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Friday, February 21, 2003 10:52 AM To : 'Miranda , Manuel (Frist)'; Corallo, Mark; Dinh, Viet; Martinez , Jorge; Goodling , Monica; 'Brett _ M._ Kavanaugh@who.eop.gov '; ' wgrubbs@who.eop.gov '; 'Leonard _ B._Rodriguez@who.e-op.gov'; ' Mercedes_ M._ Viana@who.e-op.gov'; 'rfernandez @rnchq.org '; ' scastillo@rnchq.org '; 'Ledeen, Barbara (Republican Conf)' ; 'Duffield, Steven (RPC)'; 'Abegg, John (McConnell) '; ' Delrahim, Makan {Judiciary}'; ' Comisac , RenaJohnson (Judiciary)'; ' Dahl, Alex (Judiciary) ' ; ' Stevenson, Bob (Frist)'; 'Jacobson , Paul (Frist)' ; 'Bainwol, Mitch {Frist)'; 'Vogel, Alex (Frist)'; ' Ueland , Eric (Frist)'; ' Keys, Elizabeth {RepublicanConf)'; 'Wichterman, Bill (Frist}'; 'Tim_ Goeglein@who.eop.gov ' Subject : RE: Estrada Call at 3:30 Telephone Passcode: -Original Message-From: Miranda, Manue l (Frist) {mailto:Manuel_ Miranda@fr ist.senate.gov) Sent: Friday, February 21, 2003 10:46 AM To: Corallo, Mark; Benczlcowski, Brian A; Dinh, Viet; Martinez , Jorge; Goodl ing, Monica; Brett_M._Kavanaugh@who.eop.gov; wgrubbs@who.eop.gov; Leonard _ B._ Rodriguez@who.eop.gov; Mercedes _ M._ Viana@who.eop .gov; rfernandez@rnchq.org ; scastillo@rnchq.org; Lede-en, Barbara (Republican-Conf); Duffie ld, Steven (RPC); Abegg, John (McConnell); Delrah im, Makan (Judiciary) ; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary); Stevenson , Bob (Frist); Jacobson , Paul (Frist); Bainwol , Mitch (Frist); Vogel, Alex (Frist}; Ueland, Eric (Frist); Keys, Elizabeth (Republican-Conf); Wichterman , Bill (Frist); Tim_ Goeglein@who.eop.gov Subject: Estrada Call at 3:30 This afternoon at 3:30 will be a good time to take stock of where we are and may be going. Brian will respond with a call-in code. Last week's call was for purposes of media and grass roots activity and included organ ization leaders, the result has been terrific and a lot of people need congratulations . I w ould like th is call to be just the A-team to take sto ck of what we have been do ing and think ahea d a little. Please invite only others in your office you think shou ld be on. Here is an agen da to make things fly: 1) Overview 2) DOJ (Viet/Brian) 2\ U / U/OMI" C:1-~1-,,~ o~~~ ..-1-~.i: 1111~ .J :~ ~ ~ .J A~1-: oo :1-:~~ /1 ~~~~r .J \ ii \ \AIU IOr-._..llAt~~.J,.\ C\ D-~~~ ~~ 1".:r - o o~ ~ EXT-18-2091-C-000124 007104-000816 Document ID: 0.7.19343 .9202 ::JJ'"'n/ '""\.., .;)ldlU::, nt::pu, l UI IVll::"Uld d i IU l"'\I..UVIUt::::, \L t:: UI ldl U J .. , vvn \ 01 t:: ll/ VY t:: 11uy J ::JJ l'\l::IJUI l UII ur uup::, Support (Tim/Bill/Barbara) 6) Committee activity 7) Conference activity 8) Policy activity 9) Other Communications and Grassroots Ideas for Next Week EXT-18-2091-C-000125 007104-000817 Document ID: 0.7.19343.9202 ::JJ'"'n/ '""\.., .;)ldlU::, nt::pu, l UI IVll::"Uld d i IU l"'\I..UVIUt::::, \L t:: UI ldl U J .. , vvn \ 01 t:: ll/ VY t:: 11uy J ::JJ l'\l::IJUI l UII ur uup::, Support (Tim/Bill/Barbara) 6) Committee activity 7) Conference activity 8) Policy activity 9) Other Communications and Grassroots Ideas for Next Week EXT-18-2091-C-000125 007104-000817 Document ID: 0.7.19343.9202 Washington, Tracy T Washington, Tracy T Monday, February 24, 2003 3:37 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; Manuel_Miranda@frist.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Viet Dinh; Wendy_J._Grubbs@who.eop.gov; William Hall There will be a 4:00 p.m. Judicial Working Group Conference Call Today. Dialin Subject: info. on top of the attached Agenda. Attachments: JCWG - agenda (2-24-03)1.doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000126 007104-000818 Document ID: 0.7.19343.5543 Washington, Tracy T Washington, Tracy T Monday, February 24, 2003 3:37 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; Manuel_Miranda@frist.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; rena_johnson_comisac@judiciary.senate.gov; Steve Koebele; Viet Dinh; Wendy_J._Grubbs@who.eop.gov; William Hall There will be a 4:00 p.m. Judicial Working Group Conference Call Today. Dialin Subject: info. on top of the attached Agenda. Attachments: JCWG - agenda (2-24-03)1.doc Importance: High From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000126 007104-000818 Document ID: 0.7.19343.5543 Agenda - Weekly Conference Call Judicial Confirmation Working Group 2-24-03 Dial-in: Passcode: ART. III COURT S Circuit Court District Court TOTAL 1. VACANCIE S 25 (of 179) - 14% 36 (of665) - 5% 6 1 (of862) - 7% NOMINATION S 107th Cong. 108th Cong. (2001-02) (2003-04) 32 99 131 17 26 43 CONFIRMATION S 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 83 100 0 3 3 FLOOR Miguel Estrada: Continued Floor debate; response efforts. Jeff Sutton: Anticipated debate. 2. FEBRUARY 2'P8 BUSINESSMEETING Roberts (CA DC), Cook (CA6), Bybee (CA9), Tymkovic h (CAlO), Erickson (ND), Frost (SD OH), Quar les (MD), Steele (SD AL), Varian (ED TN), Breen (WD TN), Stanceu (Trade), Horn (Fed' l Claims). 3. SJC CALENDAR ? Confirmation Hearing Schedule Status of next hearing Carolyn K uhl 4. PFA Activity Kuhl - grassroots support 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000127 007104-000819 Document ID: 0.7.19343.5543-000001 Agenda - Weekly Conference Call Judicial Confirmation Working Group 2-24-03 Dial-in: Passcode: ART. III COURT S Circuit Court District Court TOTAL 1. VACANCIE S 25 (of 179) - 14% 36 (of665) - 5% 6 1 (of862) - 7% NOMINATION S 107th Cong. 108th Cong. (2001-02) (2003-04) 32 99 131 17 26 43 CONFIRMATION S 1071h Cong. 108th Cong. (2001-02) (2003-04) 17 83 100 0 3 3 FLOOR Miguel Estrada: Continued Floor debate; response efforts. Jeff Sutton: Anticipated debate. 2. FEBRUARY 2'P8 BUSINESSMEETING Roberts (CA DC), Cook (CA6), Bybee (CA9), Tymkovic h (CAlO), Erickson (ND), Frost (SD OH), Quar les (MD), Steele (SD AL), Varian (ED TN), Breen (WD TN), Stanceu (Trade), Horn (Fed' l Claims). 3. SJC CALENDAR ? Confirmation Hearing Schedule Status of next hearing Carolyn K uhl 4. PFA Activity Kuhl - grassroots support 5. WH and DoJ Press Activity 6. WH and DoJ Legislative Activity 7. New Business EXT-18-2091-C-000127 007104-000819 Document ID: 0.7.19343.5543-000001 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday, February 27, 2003 6:41 PM To: Miranda, Manuel {Frist) Cc: Benczkowski, Brian A; Brown, Jamie E (OLA); Corallo, Mark; Goodling, Monica; Dinh, Viet; /DDV=rena _ comisac _johnson@judiciary .senate.gov/DDT =RFC822/0=INETGW / P=GOV+OOJ/ A=TELEMAiL/C=US/; uffield, steven (rpc); srushton@cagw.org; alafferty@tradit ionalva lues.ar-g; dah l, alex (judiciary); tap ia, margarita "udicia ; hi . ins ste hen 'u diciary); de lrah im, makan (judiciary); stewart, don (cornyn); keys, elizabeth (republican -conf}; wicht erman , bill {frist}; vogel, a lex (frist); stevenson, bob {frist}; jacobson, paul {frist); Merce des_ M._ Viana@who.eop.gov; Tim_ Goeglein@who.eop.gov ; Abel_ Guerra@who.eop .gov; Leonard _ B._ Rodriguez@who.eop.gov; neil.bradley@mail.house.gov; s immons, kyle (mcconnell); abegg , john {mcconnell); gumerson, kat ie (rpc); margaret.hoover@mail.house.gov; omar.fran co@mail.house .gov Subject : Re: Estrada Phone Conf/ Friday at 11:15 Attachments : pic0 1131.pcx I'll have it set up. Will e-mail info back (Embedded image moved "Miranda, Manue l (Frist)" to file: pic01131.pcx) 02/ 27/ 2003 06:39:27 PM Reco rd Type: Record To: See the distribution list at the bottom of this message cc: margaret.hoover@mail.house.gov, Friday at 11:15 omar.franco@mail.house .gov Subject: Estrada Phone Conf/ With the help of DOJ/WH, we would like to have a phone conference tomorrow at 11:15 am on Estrada EXT-18-2091-C-000128 007104-000820 Document ID: 0.7.19343 .9238 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday, February 27, 2003 6:41 PM To: Miranda, Manuel {Frist) Cc: Benczkowski, Brian A; Brown, Jamie E (OLA); Corallo, Mark; Goodling, Monica; Dinh, Viet; /DDV=rena _ comisac _johnson@judiciary .senate.gov/DDT =RFC822/0=INETGW / P=GOV+OOJ/ A=TELEMAiL/C=US/; uffield, steven (rpc); srushton@cagw.org; alafferty@tradit ionalva lues.ar-g; dah l, alex (judiciary); tap ia, margarita "udicia ; hi . ins ste hen 'u diciary); de lrah im, makan (judiciary); stewart, don (cornyn); keys, elizabeth (republican -conf}; wicht erman , bill {frist}; vogel, a lex (frist); stevenson, bob {frist}; jacobson, paul {frist); Merce des_ M._ Viana@who.eop.gov; Tim_ Goeglein@who.eop.gov ; Abel_ Guerra@who.eop .gov; Leonard _ B._ Rodriguez@who.eop.gov; neil.bradley@mail.house.gov; s immons, kyle (mcconnell); abegg , john {mcconnell); gumerson, kat ie (rpc); margaret.hoover@mail.house.gov; omar.fran co@mail.house .gov Subject : Re: Estrada Phone Conf/ Friday at 11:15 Attachments : pic0 1131.pcx I'll have it set up. Will e-mail info back (Embedded image moved "Miranda, Manue l (Frist)" to file: pic01131.pcx) 02/ 27/ 2003 06:39:27 PM Reco rd Type: Record To: See the distribution list at the bottom of this message cc: margaret.hoover@mail.house.gov, Friday at 11:15 omar.franco@mail.house .gov Subject: Estrada Phone Conf/ With the help of DOJ/WH, we would like to have a phone conference tomorrow at 11:15 am on Estrada EXT-18-2091-C-000128 007104-000820 Document ID: 0.7.19343 .9238 to focus on non-floo r strategy for all of next week. Brian or Brett can you send this list a call-i n co de? The meeting will be brief: 1) 2) 3) 4) S) Events Press issues Hispanic media Message Groups Message Sent To.:___________________________ _ "Benczkowski, Brian A" "Corallo, Mark" "Go!>dling, Monica" "Dinh, Viet" rena_comisac_johnson@Judiciary.senate.gov "Brown , Jamie E OLA" "Duffield, Steven (RPC)" srushton@cagw.org alafferty@traditionalvalues.org "Dahl, Alex (Judiciary )" "Tapia, Margarita {Judiciary)" "Higgins, Stephen (Judiciary )" < "Delrahim, Makan (Judiciary)" > Keys, iza et epu ican- onf)" < "Wicht erman , Bill (Frist)" "Vogel, Alex (Frist)" "Stevenson, Bob (Frist)" "Jacobson, Paul (Frist)" Mercedes M. Viana/WHO/EOP@EOP Tim Goeglein/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Abel Guerra/WHO/EOP@EOP Leona rd B. Rodriguez/WHO/EOP@EOP neil.bradley@mail.house.gov "Simmons, Kyle (McConnell)" 11 Ahoaa lnhn {1\/1,-rnnnoll\", EXT-18-2091-C-000129 007104 -000821 Document ID: 0.7.19343 .9238 to focus on non-floo r strategy for all of next week. Brian or Brett can you send this list a call-i n co de? The meeting will be brief: 1) 2) 3) 4) S) Events Press issues Hispanic media Message Groups Message Sent To.:___________________________ _ "Benczkowski, Brian A" "Corallo, Mark" "Go!>dling, Monica" "Dinh, Viet" rena_comisac_johnson@Judiciary.senate.gov "Brown , Jamie E OLA" "Duffield, Steven (RPC)" srushton@cagw.org alafferty@traditionalvalues.org "Dahl, Alex (Judiciary )" "Tapia, Margarita {Judiciary)" "Higgins, Stephen (Judiciary )" < "Delrahim, Makan (Judiciary)" > Keys, iza et epu ican- onf)" < "Wicht erman , Bill (Frist)" "Vogel, Alex (Frist)" "Stevenson, Bob (Frist)" "Jacobson, Paul (Frist)" Mercedes M. Viana/WHO/EOP@EOP Tim Goeglein/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Abel Guerra/WHO/EOP@EOP Leona rd B. Rodriguez/WHO/EOP@EOP neil.bradley@mail.house.gov "Simmons, Kyle (McConnell)" 11 Ahoaa lnhn {1\/1,-rnnnoll\", EXT-18-2091-C-000129 007104 -000821 Document ID: 0.7.19343 .9238 Abel Guerra/WHO/EOP@EOP "Gumerson, Katie (RPC)" EXT-18-2091-C-000130 007104-000822 Document ID: 0.7.19343 .9238 Abel Guerra/WHO/EOP@EOP "Gumerson, Katie (RPC)" EXT-18-2091-C-000130 007104-000822 Document ID: 0.7.19343 .9238 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Tuesday, March 11, 2003 10:23 AM To: Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Dinh, Viet; manuel _ miranda@frist.senate.gov; rena _john son_ comisac@judiciary .senate.gov; steven_duffield@rpc.senate.gov; alex_dahl@ju margarita _tap ia@judiciary .senate.go v; makan delrahim@"udicia .senate.gov. bill_wichterman@frist.senate.gov; a lex_vogel@frist.senate-.gov; bob_ steve.nson@frist.senate.gov; paul_jacobson@frist.senate.gov; Mercedes _ M._ Viana@who.eop.gov; Tim_ Goeglein@who.eop.gov; Abel_ Guerra@who.eop.gov; Le-onard_ B._Rodriguez@who.eop.gov; neil.bradley@mail.house.gov; _ katie_gum erson@ rpc.s enate .gov; margaret.hoover@mail.house.gov; omar.franco@mail.house.gov; ashley _ snee@oa.eop.gov; Wendy_J._Grubbs@who.e-op.gov; Jeanie_S._Mamo@who.e-op .gov; Matthew _ E._ Smith@who.eop.gov Subject : Estrada ans we rs to Sen. Lincoln questions Attachme nts: Ur-Judge Lincoln.PDF (See attached file: Ur -Judge Lincoln.PDF) EXT-18-2091-C-000131 007104-000823 Document ID: 0.7.19343.9292 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Tuesday, March 11, 2003 10:23 AM To: Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Dinh, Viet; manuel _ miranda@frist.senate.gov; rena _john son_ comisac@judiciary .senate.gov; steven_duffield@rpc.senate.gov; alex_dahl@ju margarita _tap ia@judiciary .senate.go v; makan delrahim@"udicia .senate.gov? bill_wichterman@frist.senate.gov; a lex_vogel@frist.senate-.gov; bob_ steve.nson@frist.senate.gov; paul_jacobson@frist.senate.gov; Mercedes _ M._ Viana@who.eop.gov; Tim_ Goeglein@who.eop.gov; Abel_ Guerra@who.eop.gov; Le-onard_ B._Rodriguez@who.eop.gov; neil.bradley@mail.house.gov; _ katie_gum erson@ rpc.s enate .gov; margaret.hoover@mail.house.gov; omar.franco@mail.house.gov; ashley _ snee@oa.eop.gov; Wendy_J._Grubbs@who.e-op.gov; Jeanie_S._Mamo@who.e-op .gov; Matthew _ E._ Smith@who.eop.gov Subject : Estrada ans we rs to Sen. Lincoln questions Attachme nts: Ur-Judge Lincoln.PDF (See attached file: Ur -Judge Lincoln.PDF) EXT-18-2091-C-000131 007104-000823 Document ID: 0.7.19343.9292 GIBSON,DUNN &CRUTCHERLLP LAWYERS A REGISTERED INCLUDING LIMITED LIABILITY PARTNERSHIP PROFESSIONAL CORPORATIONS 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 (202) 955-8500 www.gibsondunn.com mestrada@gibsondunn.com March 10, 2003 Client No. Direct Dial G 44444-01630 (202) 955-8257 Fax No. (202) 530-9616 VIA FACSIMILE & OVERNIGHT MAIL The Hon. Blanche Lincoln United States Senator United States Senate Washington, D.C. 20510-6275 Dear Senator Lincoln: Please find enclosed my responses to the questions that your counsel, Ms. Bingel, recently conveyed to me on your behalf. I greatly enjoyed, and remain thankful for, our recent meeting. Please do not hesitate to let me know ifl can be of additional assistance. Very truly yours, ~~O.zi,~ Miguel A. Estrada MAE/vfl Enclosure cc: The The The The Hon. Hon. Hon. Hon. William H. Frist Thomas Daschle Orrin G. Hatch Patrick J. Leahy LOS ANGELES NEW YORK WASHINGTON, D.C. SAN FRANCISCO PALO ALTO LONDON PARIS MUNICH ORANGE COUNTY CENTURY CITY DALLAS DENVER EXT-18-2091-C-000132 007104-000824 Document ID: 0.7.19343.9292-000001 GIBSON,DUNN &CRUTCHERLLP LAWYERS A REGISTERED INCLUDING LIMITED LIABILITY PARTNERSHIP PROFESSIONAL CORPORATIONS 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 (202) 955-8500 www.gibsondunn.com mestrada@gibsondunn.com March 10, 2003 Client No. Direct Dial G 44444-01630 (202) 955-8257 Fax No. (202) 530-9616 VIA FACSIMILE & OVERNIGHT MAIL The Hon. Blanche Lincoln United States Senator United States Senate Washington, D.C. 20510-6275 Dear Senator Lincoln: Please find enclosed my responses to the questions that your counsel, Ms. Bingel, recently conveyed to me on your behalf. I greatly enjoyed, and remain thankful for, our recent meeting. Please do not hesitate to let me know ifl can be of additional assistance. Very truly yours, ~~O.zi,~ Miguel A. Estrada MAE/vfl Enclosure cc: The The The The Hon. Hon. Hon. Hon. William H. Frist Thomas Daschle Orrin G. Hatch Patrick J. Leahy LOS ANGELES NEW YORK WASHINGTON, D.C. SAN FRANCISCO PALO ALTO LONDON PARIS MUNICH ORANGE COUNTY CENTURY CITY DALLAS DENVER EXT-18-2091-C-000132 007104-000824 Document ID: 0.7.19343.9292-000001 Follow-up Questions for Miguel Estrada Senator Blanche Lincoln 1. Is diversity a factor that an employer or a school could take into consideration? RESPONSE: The federal courts have a long and distinguished history of ensuring equal opportunities for all persons irrespective of race, sex or creed, and in discharging their duties in this regard they have contributed significantly to the progress our Nation has made in the last 40 years in taking full advantage of the diversity of our citizens. Diversity is a factor that employers and schools may properly take into consideration, except when it centers on considerations of race or sex that amount to unlawful discrimination. With respect to public employers and universities, because of the constitutional requirement of equal protection, racial classifications are viewed with disfavor and are presumptively unlawful. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), a government program that creates a racial classification must be subjected to "strict scrutiny." That means that such a program may be upheld only if the classification is needed to further a compelling governmental interest and is "narrowly tailored" to achieve that end. See also Miller v. Johnson, 515 U.S. 900,904 (1995) ("[r]acial and ethnic distinctions of any sort are inherently suspect and ... call for the most exacting judicial scrutiny''); Adarand, 515 U.S. at 236 ("Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classifications be clearly identified and unquestionably legitimate"). As is apparent from the nature of the strict scrutiny test-which calls for a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the "fit" between those justifications and the racial classification at issue-it would be difficult to say, as a general rule, that employers or schools may or may not utilize racial classifications irrespective of the particular circumstances at issue. Although the equal protection analysis that applies to classifications based on sex (requiring that the classification serve "important," rather than "compelling," objectives and that it be "substantially related," rather than "narrowly tailored," to those objectives, see United States v. Virginia, 518 U.S. 515, 533 (1996)), is somewhat more lenient than the analysis applicable to racial classifications, here, too, the constitutional analysis is by necessity contextual and does not lend itself to broad generalizations. With respect to private employers, the relevant Supreme Court precedents suggest that race and sex may be taken into account, in some circumstances, in certain employment decisions. In Steelworkers v. Weber, 443 U.S. 193, 197 (1979), for example, the Supreme Court addressed the question whether an employer violated Title VII of the Civil Rights Act of 1964 by adopting a voluntary affirmative action plan designed to "eliminate manifest racial imbalances in traditionally segregated job categories." The Supreme Court upheld that voluntary plan, explaining that "break[ing] down old patterns EXT-18-2091-C-000133 007104-000825 Document ID: 0.7.19343.9292-000001 Follow-up Questions for Miguel Estrada Senator Blanche Lincoln 1. Is diversity a factor that an employer or a school could take into consideration? RESPONSE: The federal courts have a long and distinguished history of ensuring equal opportunities for all persons irrespective of race, sex or creed, and in discharging their duties in this regard they have contributed significantly to the progress our Nation has made in the last 40 years in taking full advantage of the diversity of our citizens. Diversity is a factor that employers and schools may properly take into consideration, except when it centers on considerations of race or sex that amount to unlawful discrimination. With respect to public employers and universities, because of the constitutional requirement of equal protection, racial classifications are viewed with disfavor and are presumptively unlawful. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), a government program that creates a racial classification must be subjected to "strict scrutiny." That means that such a program may be upheld only if the classification is needed to further a compelling governmental interest and is "narrowly tailored" to achieve that end. See also Miller v. Johnson, 515 U.S. 900,904 (1995) ("[r]acial and ethnic distinctions of any sort are inherently suspect and ... call for the most exacting judicial scrutiny''); Adarand, 515 U.S. at 236 ("Because racial characteristics so seldom provide a relevant basis for disparate treatment, and because classifications based on race are potentially so harmful to the entire body politic, it is especially important that the reasons for any such classifications be clearly identified and unquestionably legitimate"). As is apparent from the nature of the strict scrutiny test-which calls for a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the "fit" between those justifications and the racial classification at issue-it would be difficult to say, as a general rule, that employers or schools may or may not utilize racial classifications irrespective of the particular circumstances at issue. Although the equal protection analysis that applies to classifications based on sex (requiring that the classification serve "important," rather than "compelling," objectives and that it be "substantially related," rather than "narrowly tailored," to those objectives, see United States v. Virginia, 518 U.S. 515, 533 (1996)), is somewhat more lenient than the analysis applicable to racial classifications, here, too, the constitutional analysis is by necessity contextual and does not lend itself to broad generalizations. With respect to private employers, the relevant Supreme Court precedents suggest that race and sex may be taken into account, in some circumstances, in certain employment decisions. In Steelworkers v. Weber, 443 U.S. 193, 197 (1979), for example, the Supreme Court addressed the question whether an employer violated Title VII of the Civil Rights Act of 1964 by adopting a voluntary affirmative action plan designed to "eliminate manifest racial imbalances in traditionally segregated job categories." The Supreme Court upheld that voluntary plan, explaining that "break[ing] down old patterns EXT-18-2091-C-000133 007104-000825 Document ID: 0.7.19343.9292-000001 of racial segregation and hierarchy" is consistent with Title VII when the employer's voluntary plan does not "unnecessarily trammel" on the rights of white employees, does not require the discharge of any employees, does not create "an absolute bar" to anyone's advancement, and does not extend indefinitely into the future but appears designed merely to eliminate a "manifest racial imbalance." Id. at 208-12. The Court has applied a similar analysis to employers' voluntary affirmative action plans that take an employee's sex into account. See Johnson v. Transportation Agency, 480 U.S. 616 (1987). With respect to higher education specifically, the Supreme Court considered the extent to which schools may (consistent with equal protection principles and Title VI of the Civil Rights Act) consider race in admissions 25 years ago in University of Calif. Regents v. Bakke, 438 U.S. 265 (1978). In that case, a majority of the Members of the Court invalidated a program that reserved a certain number of spots in a medical school program for members of certain racial or ethnic minority groups; a different majority of the Justices also reversed an injunction that had barred the medical school from ever using race as a factor under any circumstances. Justice Powell, the only participating Justice who was a member of both majority groups, accepted the argument that "attain[ing] a ... diverse student body" was a compelling interest that satisfied strict scrutiny in the particular context of a "properly devised" university admissions program, a context that he believed infused with First Amendment considerations that counseled some deference toward the judgment of the educators who designed the admissions program. See 438 U.S. at 311-12 (opinion of Powell, J.). Because Bakke produced no single majority opinion for the entire Court, the lower courts have divided on the question whether the various opinions issued by the individual Justices who participated in the case set forth a rule of law that lower courts are required to follow-and in particular whether Justice Powell's opinion sets forth the controlling rule of law. Compare Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1247-50, 1261 (11th Cir. 2001), with Smith v. University of Washington Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002). On December 2, 2002, the Supreme Court agreed to decide this question in the Grutter case. The case will be argued before the Supreme Court on April 1, 2003, and a decision should be issued before the Court's summer recess. The Court's opinion in Grutter will provide the framework that I will be required to follow, and would follow, in assessing any challenge to the constitutionality of a university program that considers race as a factor in admissions. Of course, as explained above, the specific application of the Court's decision in Grutter will necessarily depend on the particular circumstances relevant to the classification challenged. 2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one. RESPONSE: Traditionally, it has not been considered appropriate to require judicial nominees to agree or disagree with specific Supreme Court precedents in the context of a 2 EXT-18-2091-C-000134 007104-000826 Document ID: 0.7.19343.9292-000001 of racial segregation and hierarchy" is consistent with Title VII when the employer's voluntary plan does not "unnecessarily trammel" on the rights of white employees, does not require the discharge of any employees, does not create "an absolute bar" to anyone's advancement, and does not extend indefinitely into the future but appears designed merely to eliminate a "manifest racial imbalance." Id. at 208-12. The Court has applied a similar analysis to employers' voluntary affirmative action plans that take an employee's sex into account. See Johnson v. Transportation Agency, 480 U.S. 616 (1987). With respect to higher education specifically, the Supreme Court considered the extent to which schools may (consistent with equal protection principles and Title VI of the Civil Rights Act) consider race in admissions 25 years ago in University of Calif. Regents v. Bakke, 438 U.S. 265 (1978). In that case, a majority of the Members of the Court invalidated a program that reserved a certain number of spots in a medical school program for members of certain racial or ethnic minority groups; a different majority of the Justices also reversed an injunction that had barred the medical school from ever using race as a factor under any circumstances. Justice Powell, the only participating Justice who was a member of both majority groups, accepted the argument that "attain[ing] a ... diverse student body" was a compelling interest that satisfied strict scrutiny in the particular context of a "properly devised" university admissions program, a context that he believed infused with First Amendment considerations that counseled some deference toward the judgment of the educators who designed the admissions program. See 438 U.S. at 311-12 (opinion of Powell, J.). Because Bakke produced no single majority opinion for the entire Court, the lower courts have divided on the question whether the various opinions issued by the individual Justices who participated in the case set forth a rule of law that lower courts are required to follow-and in particular whether Justice Powell's opinion sets forth the controlling rule of law. Compare Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of Regents of Univ. of Georgia, 263 F.3d 1234, 1247-50, 1261 (11th Cir. 2001), with Smith v. University of Washington Law Sch., 233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002). On December 2, 2002, the Supreme Court agreed to decide this question in the Grutter case. The case will be argued before the Supreme Court on April 1, 2003, and a decision should be issued before the Court's summer recess. The Court's opinion in Grutter will provide the framework that I will be required to follow, and would follow, in assessing any challenge to the constitutionality of a university program that considers race as a factor in admissions. Of course, as explained above, the specific application of the Court's decision in Grutter will necessarily depend on the particular circumstances relevant to the classification challenged. 2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one. RESPONSE: Traditionally, it has not been considered appropriate to require judicial nominees to agree or disagree with specific Supreme Court precedents in the context of a 2 EXT-18-2091-C-000134 007104-000826 Document ID: 0.7.19343.9292-000001 nominee's confirmation hearings, particularly where, as in my case, the nominee would (if confirmed) serve on an inferior court. There are several reasons for this view. As I explained when I appeared before the Committee, a nominee is not really in a position to "criticize" the work of the Supreme Court-in the sense of asserting categorically that the Court got it "right" or "wrong"-without doing the intensive work that the judicial function requires: that is, coming to the case with an open mind, listening to the parties, examining and critically testing the parties' arguments, and independently examining the record and the case law. Judges, particularly inferior court judges, have no occasion, call or need to do that with respect to questions already decided. The job of a judge is to faithfully follow and build on precedent, not to question it. As Justice Cardozo once noted, "[ t]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." Benjamin Cardozo, The Nature of the Judicial Process 149 (1921). Perhaps more importantly, any statement by a nominee that a particular case is "wrong" not only is likely to be insufficiently informed, but also could easily lead to a perception that the nominee somehow has publicly committed or suggested that he will approach the relevant issues in a particular case with a jaundiced eye. I strongly believe, if I am confirmed, that I must enter judicial office (and must be believed by the public to have entered judicial office) completely unencumbered by any commitments to anyone other than compliance with the judicial oath. I can represent to you that no one at the White House or in the Executive Brach asked me to name any cases that I believe the Supreme Court got ''wrong." Had I been asked, I would have declined. For those reasons, I do not believe I can list for you cases of which I am "critical" in the sense of suggesting cases that I might decide differently if I were a judge. At the same time, I can identify cases in which I do not believe the Supreme Court has ideally discharged its role as expositor of the law for reasons wholly unrelated to whether or not the particular ruling was correct. One example is Furman v. Georgia, 408 U.S. 238 (1972), which narrowly invalidated existing death penalty statutes, but did so without providing any real guidance for legislatures, lower courts or members of the bar: the Court issued nine separate opinions (five in favor of overturning the sentences, and four in favor of upholding them) spanning nearly 250 pages in the United States Reports, but produced no reasoned majority opinion. The failure of the Court to provide a unifying rationale was especially unfortunate because the Court was breaking new ground, and See McGautha v. apparently departing from a very recent decision of the Court. California, 402 U.S. 183, 207-08 (1971). A similar example is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), a case involving the constitutionality of certain restrictions on advertising by liquor retailers. Although all nine Justices believed that the restrictions were not consistent with the First Amendment, the Justices issued a total of four opinions that variously disavowed the test for commercial speech restrictions previously set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm 'n of New York, 447 U.S. 557 (1980), applied that test "narrowly," and suggested a "less than strict" review was appropriate under Central 3 EXT-18-2091-C-000135 007104-000827 Document ID: 0.7.19343.9292-000001 nominee's confirmation hearings, particularly where, as in my case, the nominee would (if confirmed) serve on an inferior court. There are several reasons for this view. As I explained when I appeared before the Committee, a nominee is not really in a position to "criticize" the work of the Supreme Court-in the sense of asserting categorically that the Court got it "right" or "wrong"-without doing the intensive work that the judicial function requires: that is, coming to the case with an open mind, listening to the parties, examining and critically testing the parties' arguments, and independently examining the record and the case law. Judges, particularly inferior court judges, have no occasion, call or need to do that with respect to questions already decided. The job of a judge is to faithfully follow and build on precedent, not to question it. As Justice Cardozo once noted, "[ t]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." Benjamin Cardozo, The Nature of the Judicial Process 149 (1921). Perhaps more importantly, any statement by a nominee that a particular case is "wrong" not only is likely to be insufficiently informed, but also could easily lead to a perception that the nominee somehow has publicly committed or suggested that he will approach the relevant issues in a particular case with a jaundiced eye. I strongly believe, if I am confirmed, that I must enter judicial office (and must be believed by the public to have entered judicial office) completely unencumbered by any commitments to anyone other than compliance with the judicial oath. I can represent to you that no one at the White House or in the Executive Brach asked me to name any cases that I believe the Supreme Court got ''wrong." Had I been asked, I would have declined. For those reasons, I do not believe I can list for you cases of which I am "critical" in the sense of suggesting cases that I might decide differently if I were a judge. At the same time, I can identify cases in which I do not believe the Supreme Court has ideally discharged its role as expositor of the law for reasons wholly unrelated to whether or not the particular ruling was correct. One example is Furman v. Georgia, 408 U.S. 238 (1972), which narrowly invalidated existing death penalty statutes, but did so without providing any real guidance for legislatures, lower courts or members of the bar: the Court issued nine separate opinions (five in favor of overturning the sentences, and four in favor of upholding them) spanning nearly 250 pages in the United States Reports, but produced no reasoned majority opinion. The failure of the Court to provide a unifying rationale was especially unfortunate because the Court was breaking new ground, and See McGautha v. apparently departing from a very recent decision of the Court. California, 402 U.S. 183, 207-08 (1971). A similar example is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), a case involving the constitutionality of certain restrictions on advertising by liquor retailers. Although all nine Justices believed that the restrictions were not consistent with the First Amendment, the Justices issued a total of four opinions that variously disavowed the test for commercial speech restrictions previously set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm 'n of New York, 447 U.S. 557 (1980), applied that test "narrowly," and suggested a "less than strict" review was appropriate under Central 3 EXT-18-2091-C-000135 007104-000827 Document ID: 0.7.19343.9292-000001 Hudson. Seven justices, in two different plurality opinions, also "disavowed" or "distinguished" Posadas de Puerto Rico v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), another precedent that was barely a decade old. Again, while I hold no particular brief for any of the views advanced by the competing, overlapping opinions in 44 Liquormart, and certainly do not pretend to have the answer to the difficult questions confronted by the several opinions, I am critical of opinions like this one because they make it difficult for litigants and courts to derive needed guidance from Supreme Court pronouncements. A final example of the type of case in which I believe the Supreme Court has served its role in our legal system less than well-wholly apart from the merits of the issue or the correctness of any particular ruling-is a line of cases dealing with the extent to which it may be appropriate to permit courts, rather than juries, to find facts that increase a criminal defendant's sentence. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Jones v. United States, 526 U.S. 227 (1999), the Court in succeeding years narrowly divided (5 to 4) to permit and then apparently forbid such fact-finding by the court. A year later the Court, after a review of its precedents, again divided 5-4 in announcing that the Constitution requires the government to prove to a jury, beyond a reasonable doubt, any fact (other than a prior conviction) that increases the penalty for the crime beyond the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466 (2000). In so doing, the Apprendi Court strongly suggested that its ruling was fully consistent with Walton v. Arizona, 497 U.S. 639 (1990), for it noted that it had previously "rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges . . . to find aggravating factors before imposing a sentence of death." Apprendi, 530 U.S. at 496-97 (citing Walton). Barely two years later, however, the Court concluded that "Apprendi's reasoning is irreconcilable with Walton's holding" and accordingly "overrule[d] Walton in relevant part." Ring v. Arizona, 122 S. Ct. 2428, 2432 (2002). On the same day it decided Ring, the Court issued another fractured ruling applying (but this time distinguishing) Apprendi, with at least one Justice in the five-member majority apparently concurring in the result primarily on the basis of his disagreement with Apprendi. See Harris v. United States, 122 S. Ct. 2406 (2002); see id. at 2420-22 (Breyer, J., concurring in part and concurring in the judgment); see also id. at 2420 (O'Connor, J., concurring) ("As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner's arguments"). Again, without expressing any view on the merits of these difficult issues, it seems to me fairly plain that the Supreme Court's opinions in these cases make it extremely difficult for legislatures, lower courts and litigants to obtain reliable guidance in this important area of the law, particularly in light of the Court's decision to overrule a case that was barely a decade old and which seemingly was reaffirmed in Apprendi itself and in light of the fact that one half of the Court's latest word on the subject (the Harris case) appears to tum on the votes of Justices who reject the governing precedent (Apprendi). In cases like these, I believe the Court serves its institutional role as expositor of the law less than well. To sum up, my criticism of these cases reflects my strong belief than an appellate court is a court, not a collection of individual judges. The judges on an appellate court have a 4 EXT-18-2091-C-000136 007104-000828 Document ID: 0.7.19343.9292-000001 Hudson. Seven justices, in two different plurality opinions, also "disavowed" or "distinguished" Posadas de Puerto Rico v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986), another precedent that was barely a decade old. Again, while I hold no particular brief for any of the views advanced by the competing, overlapping opinions in 44 Liquormart, and certainly do not pretend to have the answer to the difficult questions confronted by the several opinions, I am critical of opinions like this one because they make it difficult for litigants and courts to derive needed guidance from Supreme Court pronouncements. A final example of the type of case in which I believe the Supreme Court has served its role in our legal system less than well-wholly apart from the merits of the issue or the correctness of any particular ruling-is a line of cases dealing with the extent to which it may be appropriate to permit courts, rather than juries, to find facts that increase a criminal defendant's sentence. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Jones v. United States, 526 U.S. 227 (1999), the Court in succeeding years narrowly divided (5 to 4) to permit and then apparently forbid such fact-finding by the court. A year later the Court, after a review of its precedents, again divided 5-4 in announcing that the Constitution requires the government to prove to a jury, beyond a reasonable doubt, any fact (other than a prior conviction) that increases the penalty for the crime beyond the statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466 (2000). In so doing, the Apprendi Court strongly suggested that its ruling was fully consistent with Walton v. Arizona, 497 U.S. 639 (1990), for it noted that it had previously "rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges . . . to find aggravating factors before imposing a sentence of death." Apprendi, 530 U.S. at 496-97 (citing Walton). Barely two years later, however, the Court concluded that "Apprendi's reasoning is irreconcilable with Walton's holding" and accordingly "overrule[d] Walton in relevant part." Ring v. Arizona, 122 S. Ct. 2428, 2432 (2002). On the same day it decided Ring, the Court issued another fractured ruling applying (but this time distinguishing) Apprendi, with at least one Justice in the five-member majority apparently concurring in the result primarily on the basis of his disagreement with Apprendi. See Harris v. United States, 122 S. Ct. 2406 (2002); see id. at 2420-22 (Breyer, J., concurring in part and concurring in the judgment); see also id. at 2420 (O'Connor, J., concurring) ("As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner's arguments"). Again, without expressing any view on the merits of these difficult issues, it seems to me fairly plain that the Supreme Court's opinions in these cases make it extremely difficult for legislatures, lower courts and litigants to obtain reliable guidance in this important area of the law, particularly in light of the Court's decision to overrule a case that was barely a decade old and which seemingly was reaffirmed in Apprendi itself and in light of the fact that one half of the Court's latest word on the subject (the Harris case) appears to tum on the votes of Justices who reject the governing precedent (Apprendi). In cases like these, I believe the Court serves its institutional role as expositor of the law less than well. To sum up, my criticism of these cases reflects my strong belief than an appellate court is a court, not a collection of individual judges. The judges on an appellate court have a 4 EXT-18-2091-C-000136 007104-000828 Document ID: 0.7.19343.9292-000001 solemn responsibility to act collegially to produce rulings that are as reasoned and clear as possible. If confirmed, I would always strive to keep this in mind and remember that I am just one member of a multi-judge court. I would work very hard and collaboratively with other judges on the court not only to reach the right answers in every case, but to do so in a manner that provides the most reasoned and clearest possible guidance for the people affected by the court's decisions. 3. Which judge bas served as a model for the way you would conduct yourself as a judge and why? RESPONSE: As I previously stated, I have a great deal of admiration for Justices Anthony Kennedy and Lewis Powell and for Judge Amalya Kearse-the judges for whom I worked as law clerk. Judge Kearse, who gave me my first job out of law school, was the first African American lawyer to become a partner in a major Wall Street law firm; she has one of the finest analytical minds of any lawyer with whom I ever have been privileged to work. Justices Kennedy and Powell, after distinguished careers at the bar, excelled as Justices in our highest Court; I deeply admire their life accomplishments, fair-mindedness, and collegiality. There is, however, no judge who would serve as a model for my conduct as a judge with respect to the adoption of a particular methodology, philosophy, or approach to constitutional or statutory issues. There are several reasons for that. First, precedent often dictates or requires a particular methodological approach to a given part of the Constitution. The required methodological approach for the particular question at hand may be result of doctrinal developments in which the views of a particular Justice whom I may personally admire-say, for example, the second Justice Harlan---did not prevail or prevailed only in modified form. Whatever admiration I might have for a particular judge or Justice, my duty as a judge would be to follow the approach to the question that was adopted by the Supreme Court. Second, I cannot honestly say that I am familiar enough with the entire body of work of any one particular judge to say without hesitation that I would "model" my work as judge on his or her approach. Many of our most renowned judges have lived prolific legal lives; Justices Holmes, Byron White, John Marshall and Thurgood Marshall, for example, served our country with distinction for several decades. I am fairly certain that most practicing lawyers (even those who, like me, are fortunate to practice regularly before the Supreme Court)----or, indeed, most court of appeals judges-generally would be able to offer only what might be loosely described as impressionistic judgments of the entire work-life of even our most renowned judges. To be sure, such judgments may be adequate to identify particular aspects of a judge's work that one admires. For example, I have often been struck by the rhetorical power of Justice Jackson's and Justice Scalia's opinions; by the judicial restraint of Justice Frankfurter and the second Justice Harlan; by Justice Brennan's thoroughness; by Chief Justice Rehnquist's ability to forge consensus in difficult questions; and by the vision displayed by the first Justice Harlan in Plessy. Last, but not least, I am very much my own man. If I am confirmed, I will view my job as getting the right answer to the cases that come before me-in light of the relevant text, 5 EXT-18-2091-C-000137 007104-000829 Document ID: 0.7.19343.9292-000001 solemn responsibility to act collegially to produce rulings that are as reasoned and clear as possible. If confirmed, I would always strive to keep this in mind and remember that I am just one member of a multi-judge court. I would work very hard and collaboratively with other judges on the court not only to reach the right answers in every case, but to do so in a manner that provides the most reasoned and clearest possible guidance for the people affected by the court's decisions. 3. Which judge bas served as a model for the way you would conduct yourself as a judge and why? RESPONSE: As I previously stated, I have a great deal of admiration for Justices Anthony Kennedy and Lewis Powell and for Judge Amalya Kearse-the judges for whom I worked as law clerk. Judge Kearse, who gave me my first job out of law school, was the first African American lawyer to become a partner in a major Wall Street law firm; she has one of the finest analytical minds of any lawyer with whom I ever have been privileged to work. Justices Kennedy and Powell, after distinguished careers at the bar, excelled as Justices in our highest Court; I deeply admire their life accomplishments, fair-mindedness, and collegiality. There is, however, no judge who would serve as a model for my conduct as a judge with respect to the adoption of a particular methodology, philosophy, or approach to constitutional or statutory issues. There are several reasons for that. First, precedent often dictates or requires a particular methodological approach to a given part of the Constitution. The required methodological approach for the particular question at hand may be result of doctrinal developments in which the views of a particular Justice whom I may personally admire-say, for example, the second Justice Harlan---did not prevail or prevailed only in modified form. Whatever admiration I might have for a particular judge or Justice, my duty as a judge would be to follow the approach to the question that was adopted by the Supreme Court. Second, I cannot honestly say that I am familiar enough with the entire body of work of any one particular judge to say without hesitation that I would "model" my work as judge on his or her approach. Many of our most renowned judges have lived prolific legal lives; Justices Holmes, Byron White, John Marshall and Thurgood Marshall, for example, served our country with distinction for several decades. I am fairly certain that most practicing lawyers (even those who, like me, are fortunate to practice regularly before the Supreme Court)----or, indeed, most court of appeals judges-generally would be able to offer only what might be loosely described as impressionistic judgments of the entire work-life of even our most renowned judges. To be sure, such judgments may be adequate to identify particular aspects of a judge's work that one admires. For example, I have often been struck by the rhetorical power of Justice Jackson's and Justice Scalia's opinions; by the judicial restraint of Justice Frankfurter and the second Justice Harlan; by Justice Brennan's thoroughness; by Chief Justice Rehnquist's ability to forge consensus in difficult questions; and by the vision displayed by the first Justice Harlan in Plessy. Last, but not least, I am very much my own man. If I am confirmed, I will view my job as getting the right answer to the cases that come before me-in light of the relevant text, 5 EXT-18-2091-C-000137 007104-000829 Document ID: 0.7.19343.9292-000001 iate history, precedent and any other interpretative aid that seems in my judgment appropr might in the circumstances-without any preconception as to how some other judge the before d appeare I approach the same or similar questions. As I stated when an have Committee, I believe one of the most important attributes of a judge is to an open appropriate process for decision-making. That entails coming to cases with and briefs those mind, listening to the parties, reading their briefs, going back behind as to what doing all of the legwork needed to ascertain who is right in his or her claims panels of in sit judges where court, te the law says and what the facts are. In an appella ues colleag of views the three, it also entails engaging in deliberations and giving ear to a as who may have come to different conclusions. In sum, I am committed to judging process that is intended to give us the right answer, not simply a result. 6 EXT-18-2091-C-000138 007104-000830 Document ID: 0.7.19343.9292-000001 iate history, precedent and any other interpretative aid that seems in my judgment appropr might in the circumstances-without any preconception as to how some other judge the before d appeare I approach the same or similar questions. As I stated when an have Committee, I believe one of the most important attributes of a judge is to an open appropriate process for decision-making. That entails coming to cases with and briefs those mind, listening to the parties, reading their briefs, going back behind as to what doing all of the legwork needed to ascertain who is right in his or her claims panels of in sit judges where court, te the law says and what the facts are. In an appella ues colleag of views the three, it also entails engaging in deliberations and giving ear to a as who may have come to different conclusions. In sum, I am committed to judging process that is intended to give us the right answer, not simply a result. 6 EXT-18-2091-C-000138 007104-000830 Document ID: 0.7.19343.9292-000001 Sales , Nathan From : Sales, Nathan Sent : Wednesday, March 12, 2003 12:31 PM To: 'Miranda, Manuel (Frist)'; Bencz.kowski, Brian A; Dinh, Viet; 'Brett _ M._ Kavanaugh@who.eop.gov'; ' Sean Rushton'; 'Wichterman, Bill {Frist}'; ' Dahl, Alex (Judiciary) '; ' Lundell, Jason (Judiciary)'; 'Tom Jipping' Subject : Rf: The modern confirm ation process I defy you to find one woman at NARALwho looks like that. -Original Message-From: Miranda, Manuel {Frist) [mailto :Manuel_Miranda@fr ist.senate .gov] Sent: Wednesday, March 12, 2003 11:27 AM To: Bencz.kowski, Brian A; Sales, Nathan; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Sean Rushton; Wichterman, Bill (Frist); Dahl, Alex (Judiciary); Lunde ll, Jason (Judiciary); Tom Jipping Subject: The modern confirmation process What it feels like to be a Bush judicial nominee - - EXT-18-2091-C-000139 007104-000831 Document ID: 0.7.19343.5603 Sales , Nathan From : Sales, Nathan Sent : Wednesday, March 12, 2003 12:31 PM To: 'Miranda, Manuel (Frist)'; Bencz.kowski, Brian A; Dinh, Viet; 'Brett _ M._ Kavanaugh@who.eop.gov'; ' Sean Rushton'; 'Wichterman, Bill {Frist}'; ' Dahl, Alex (Judiciary) '; ' Lundell, Jason (Judiciary)'; 'Tom Jipping' Subject : Rf: The modern confirm ation process I defy you to find one woman at NARALwho looks like that. -Original Message-From: Miranda, Manuel {Frist) [mailto :Manuel_Miranda@fr ist.senate .gov] Sent: Wednesday, March 12, 2003 11:27 AM To: Bencz.kowski, Brian A; Sales, Nathan; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Sean Rushton; Wichterman, Bill (Frist); Dahl, Alex (Judiciary); Lunde ll, Jason (Judiciary); Tom Jipping Subject: The modern confirmation process What it feels like to be a Bush judicial nominee - - EXT-18-2091-C-000139 007104-000831 Document ID: 0.7.19343.5603 Sales , Nathan From : Sales, Nathan Sent : Wednesday, March 12, 2003 11:10 PM To : 'M akan_Oe lrahim@Judiciary.senate.gov ' ; 'James_Ho@Judiciary.senate.gov'; t_M._ Kavanaugh@who.eop.gov' Cc: Brown, Jamie E (OLA); Koebele, Steve; Remington, Kristi L; Benczkowsk i, Brian A; 'Alex_Da hl@Judici ary.senate.gov '; 'Rena_Johnson_Comisac@Judiciary .senate. gov ' Subject : Re: Talke-rs on Countering Dem attacks on Justice Owen ' Bret -Ori ginal Message--From: Delrahim, Makan (Judiciary) To: Ho, James (Judiciary} ; Brett_M. _ Kavanaugh@who.eop.gov CC: Brown, Jamie E (OLA) ; Koebe le, Steve ; Sales , Nathan ; Remington, Krist i L ; Benczkowski, Brian A ; Dahl, Alex {Judiciary) ; Comisac, RenaJohnson (Judiciary) Sent : Wed Mar 12 22:03:03 2003 Subject: RE: Talkers on Countering Dem attacks on Justice Owen In a dear colleague that sen. Hatch will send tomorrow , he says judge Gonzales was referring to "oth er judgesri not one specific , and not himself. -Or iginal Message--From: Ho, James (Judiciary) Sent: Wednesday, March 12, 2003 10:0 1 PM To: ' Brett_ M._Kavanaugh@who.eop.gov ' Cc: Dahl, Alex (Judiciary}; Comisac, RenaJohnson (Judiciary); Delrahim, Makan (Judiciary); Miranda, Manuel (Frist}; brian.a.benczkowski@usdoj.gov; kristi.l.remington@usdoj .gov; nathan.sales@usdoj.gov; steve.koebele@usdoj.gov; jamie.e.brown@usdoj.gov Subject: RE:Talkers on Countering Dem attacks on Justice Owen --Or iginal Message--From: Brett_ M._ Kavanaugh@who.eop.gov (mailto:Brett_M._Kavanaugh@who .eop .gov) EXT-18-2091-C-000140 007104-000832 Documen t ID: 0.7.19343 .5616 Sales , Nathan From : Sales, Nathan Sent : Wednesday, March 12, 2003 11:10 PM To : 'M akan_Oe lrahim@Judiciary.senate.gov ' ; 'James_Ho@Judiciary.senate.gov'; t_M._ Kavanaugh@who.eop.gov' Cc: Brown, Jamie E (OLA); Koebele, Steve; Remington, Kristi L; Benczkowsk i, Brian A; 'Alex_Da hl@Judici ary.senate.gov '; 'Rena_Johnson_Comisac@Judiciary .senate. gov ' Subject : Re: Talke-rs on Countering Dem attacks on Justice Owen ' Bret -Ori ginal Message--From: Delrahim, Makan (Judiciary) To: Ho, James (Judiciary} ; Brett_M. _ Kavanaugh@who.eop.gov CC: Brown, Jamie E (OLA) ; Koebe le, Steve ; Sales , Nathan ; Remington, Krist i L ; Benczkowski, Brian A ; Dahl, Alex {Judiciary) ; Comisac, RenaJohnson (Judiciary) Sent : Wed Mar 12 22:03:03 2003 Subject: RE: Talkers on Countering Dem attacks on Justice Owen In a dear colleague that sen. Hatch will send tomorrow , he says judge Gonzales was referring to "oth er judgesri not one specific , and not himself. -Or iginal Message--From: Ho, James (Judiciary) Sent: Wednesday, March 12, 2003 10:0 1 PM To: ' Brett_ M._Kavanaugh@who.eop.gov ' Cc: Dahl, Alex (Judiciary}; Comisac, RenaJohnson (Judiciary); Delrahim, Makan (Judiciary); Miranda, Manuel (Frist}; brian.a.benczkowski@usdoj.gov; kristi.l.remington@usdoj .gov; nathan.sales@usdoj.gov; steve.koebele@usdoj.gov; jamie.e.brown@usdoj.gov Subject: RE:Talkers on Countering Dem attacks on Justice Owen --Or iginal Message--From: Brett_ M._ Kavanaugh@who.eop.gov (mailto:Brett_M._Kavanaugh@who .eop .gov) EXT-18-2091-C-000140 007104-000832 Documen t ID: 0.7.19343 .5616 Sent: Wednesday, March 12, 2003 9:04 PM To: Ho, James (Judiciary) Cc: Dahl, Alex (Judiciary); Comisac, RenaJohnson (Judiciary); Delrahim, Makan (Judiciary); Miranda, Manuel (Frist); brian.a.benczkowski@usdoj .gov; kristi.l.remington@usdoj.gov; nathan.sales@usdoj.gov; steve.koebele@usdoj.gov; jamie.e.b rown@usdoj.gov Subject: Re: Talkers on Counte ring Dem attacks on Justice Owen Couple of additional thoughts for a few of you. (Embedded image moved "Ho, James (Judiciary)" to file: pic25 153.pcx) 03/ 12/2003 08:25:35 PM Record Type: Record To: See the distribution list at the bottom of this message cc: See the distribution list at the bottom of this message Subject: Talkers on Countering Dem attacks on Justice Owen EXT-18-2091-C-000141 007104-000833 Document ID: 0.7.19343.5616 Sent: Wednesday, March 12, 2003 9:04 PM To: Ho, James (Judiciary) Cc: Dahl, Alex (Judiciary); Comisac, RenaJohnson (Judiciary); Delrahim, Makan (Judiciary); Miranda, Manuel (Frist); brian.a.benczkowski@usdoj .gov; kristi.l.remington@usdoj.gov; nathan.sales@usdoj.gov; steve.koebele@usdoj.gov; jamie.e.b rown@usdoj.gov Subject: Re: Talkers on Counte ring Dem attacks on Justice Owen Couple of additional thoughts for a few of you. (Embedded image moved "Ho, James (Judiciary)" to file: pic25 153.pcx) 03/ 12/2003 08:25:35 PM Record Type: Record To: See the distribution list at the bottom of this message cc: See the distribution list at the bottom of this message Subject: Talkers on Countering Dem attacks on Justice Owen EXT-18-2091-C-000141 007104-000833 Document ID: 0.7.19343.5616 Please find attached for your conven ience and use some talkers for responding to three likely avenues of attack against Justice Owen: 1. The Committee has already rejected this nominee, and we should not break precedent by consi dering her again. 2. Justice Owen is an activist pro--life judge who added words like "religion" to the statute, and who even Jus tice Gonzales accused of undertaking "an unconscionable act of judicial activism." 3. Even her own colleagues accuse Justice Owen of rewr iting statutes. James C. Ho Chief Counsel Senate Subcommittee on the Constitution, Civil Rights & Property Rights Chairman, Senator John Cornyn James_Ho@judiciary .senate.gov (202} 224 -2934 (Office of Senator John Comyn) {mobile) I home) EXT-18-2091-C-000142 007104-000834 Document ID: 0.7.19343.5616 Please find attached for your conven ience and use some talkers for responding to three likely avenues of attack against Justice Owen: 1. The Committee has already rejected this nominee, and we should not break precedent by consi dering her again. 2. Justice Owen is an activist pro--life judge who added words like "religion" to the statute, and who even Jus tice Gonzales accused of undertaking "an unconscionable act of judicial activism." 3. Even her own colleagues accuse Justice Owen of rewr iting statutes. James C. Ho Chief Counsel Senate Subcommittee on the Constitution, Civil Rights & Property Rights Chairman, Senator John Cornyn James_Ho@judiciary .senate.gov (202} 224 -2934 (Office of Senator John Comyn) {mobile) I home) EXT-18-2091-C-000142 007104-000834 Document ID: 0.7.19343.5616 Remington , Kristi L From : Remington, Kristi l Sent : Friday, March 14, 2003 9:51 AM To: 'Miranda, Manuel (Frist)'; Dinh, Viet; Goodling, Monica; Martinez , Jorge {OPA); Charnes, Adam; Benczkowski, Brian A; ' Duffield, Steven {RPC}';' rfernandez@rnchq.org'; 'Sharon Castillo - Communications '; 'UennessOlmos@rnchq.org ' ; 'Higgins, Stephen (Judiciary)'; 'Tapia, Margarita lex (Judiciary)'; 'Comisac, (.Judiciary)'; ' Carter , Josh {~ RenaJohnson (Judiciary)'; oStewart , Don (Cornyn)'; ' Wichterman, Bill (Frist)'; 'Jacobson, Paul {Frist)'; 'Stevenson, Bob {Frist}'; 'Ueland, Eric (Frist)'; 'Vogel, Alex (Frist)'; ' Bainwol, Mitch {Frist)'; ' Keys, Elizabeth (Republican-Conf)'; ' Ledeen, Barbara (Republican Conf)'; 'Abel_ Guerra@who.eop.gov '; oLeonard _ B._ Rodriguez@who.eop.gov'; oLeo nardo_F._Gorordo@who.eop.gov' ; ' Matthew_E._Sm ith@who.eop.gov'; 'Brett_M._ Kavanaugh@who.eop.gov'; ' asnee@who.eop.gov'; 'Wendy Grubbs (Email)'; 'Sean Rushton ' ; ' neil.bradley@mail.house.gov'; 'omar.franco@mail.house.gov '; ' Hoover , Margaret ' ; Dinh, Viet Cc: McNaught, Heather Subje ct: RE: Estrada Conf Call 10:00 am conference call Oialin passco de - Original Message- From: Miranda, Manuel {Frist) (mailto:Manuel_Mi randa@fr ist.senate.gov) Sent: Thursday, March 13, 2003 5:04 PM To: Dinh, Viet; Goodling , Monica ; Martinez , Jorge (OPA); Charnes, Adam; Remington, Kristi L; Benczkowsk i, Brian A; Duffield, Steven (RPC); rfernandez@rnchq.org; Sharon Castillo - Communications; Uenness-Olmos@rnchq.org; Higgins , Stephen (Judiciary); Tapia, Margarita (Judiciary); Carte r, Josh (Judiciary); Dahl, Alex {Judiciary); Comisac , RenaJohnson (Judiciary); tewart, Don {Comyn}; Wichterman, Bill (Frist); Jacobson, Paul {Frist); Stevenson, Bob (Frist); Ueland, Eric (Frist); Vogel, Alex {Frist}; Bainwol, Mitch (Frist); Keys, :Elizabeth (Republican -Conf); ledeen, Barbara (Republican-Conf); Abel_ Guerra@who.eop.gov; Leonar d_B._Rodriguez@who.eop.gov; Leonardo_F._Gorordo@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Brett_ M._Kavanaugh@who.eop.gov; asnee@who.eop.gov; Wendy Grubbs (E-mail); Sean Rushton; ne il.bradley@mail.house.gov; omar.franco@mail.house.gov; Hoover, Margaret; Dinh, Viet Subject: RE: Estrada Conf Call EXT-18-2091-C-000143 007104-000835 Document ID: 0.7.19343 .9299 Remington , Kristi L From : Remington, Kristi l Sent : Friday, March 14, 2003 9:51 AM To: 'Miranda, Manuel (Frist)'; Dinh, Viet; Goodling, Monica; Martinez , Jorge {OPA); Charnes, Adam; Benczkowski, Brian A; ' Duffield, Steven {RPC}';' rfernandez@rnchq.org'; 'Sharon Castillo - Communications '; 'UennessOlmos@rnchq.org ' ; 'Higgins, Stephen (Judiciary)'; 'Tapia, Margarita lex (Judiciary)'; 'Comisac, (.Judiciary)'; ' Carter , Josh {~ RenaJohnson (Judiciary)'; oStewart , Don (Cornyn)'; ' Wichterman, Bill (Frist)'; 'Jacobson, Paul {Frist)'; 'Stevenson, Bob {Frist}'; 'Ueland, Eric (Frist)'; 'Vogel, Alex (Frist)'; ' Bainwol, Mitch {Frist)'; ' Keys, Elizabeth (Republican-Conf)'; ' Ledeen, Barbara (Republican Conf)'; 'Abel_ Guerra@who.eop.gov '; oLeonard _ B._ Rodriguez@who.eop.gov'; oLeo nardo_F._Gorordo@who.eop.gov' ; ' Matthew_E._Sm ith@who.eop.gov'; 'Brett_M._ Kavanaugh@who.eop.gov'; ' asnee@who.eop.gov'; 'Wendy Grubbs (Email)'; 'Sean Rushton ' ; ' neil.bradley@mail.house.gov'; 'omar.franco@mail.house.gov '; ' Hoover , Margaret ' ; Dinh, Viet Cc: McNaught, Heather Subje ct: RE: Estrada Conf Call 10:00 am conference call Oialin passco de - Original Message- From: Miranda, Manuel {Frist) (mailto:Manuel_Mi randa@fr ist.senate.gov) Sent: Thursday, March 13, 2003 5:04 PM To: Dinh, Viet; Goodling , Monica ; Martinez , Jorge (OPA); Charnes, Adam; Remington, Kristi L; Benczkowsk i, Brian A; Duffield, Steven (RPC); rfernandez@rnchq.org; Sharon Castillo - Communications; Uenness-Olmos@rnchq.org; Higgins , Stephen (Judiciary); Tapia, Margarita (Judiciary); Carte r, Josh (Judiciary); Dahl, Alex {Judiciary); Comisac , RenaJohnson (Judiciary); tewart, Don {Comyn}; Wichterman, Bill (Frist); Jacobson, Paul {Frist); Stevenson, Bob (Frist); Ueland, Eric (Frist); Vogel, Alex {Frist}; Bainwol, Mitch (Frist); Keys, :Elizabeth (Republican -Conf); ledeen, Barbara (Republican-Conf); Abel_ Guerra@who.eop.gov; Leonar d_B._Rodriguez@who.eop.gov; Leonardo_F._Gorordo@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Brett_ M._Kavanaugh@who.eop.gov; asnee@who.eop.gov; Wendy Grubbs (E-mail); Sean Rushton; ne il.bradley@mail.house.gov; omar.franco@mail.house.gov; Hoover, Margaret; Dinh, Viet Subject: RE: Estrada Conf Call EXT-18-2091-C-000143 007104-000835 Document ID: 0.7.19343 .9299 Yes that will t,.e great. -- Original Message- -From: Benczkowski , Brian A [mailto:Brian.A.Benczkowski@usdoj.gov) Sent: Thursday, March 13, 2003 5:00 PM To: Remington, Kristi L; Chames, Adam; Martinez, Jorge {OPA); Goodling, Monica ; Dinh, Viet; Dinh, Viet; Duffield, Steven (RPC); ' rfernandez@rnchq.org ' ; 'Sharon Castillo - Communications '; 'Uenness-Olmos@rnchq.org '; Higgins, Stephen (Judiciary); Tapia, Margarita {Judiciary); Carter, Josh (Judiciary); Dahl, Alex {Judiciary); Comisac , RenaJohnson (Judiciary); ' Stewart , Don (Cornyn); Wichte rman , Bill (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist); Ueland, Eric (Frist); Vogel, Alex (Frist); Bainwol, Mitch (Frist) ; Miranda, Manuel (Frist}; Keys, Elizabeth (Republican-Conf); Ledeen , Barbara (Republican-Conf}; 'Abel_ Guerra@who.eop.gov '; 'Leonard_B._Rodriguez@who.eop.gov ' ; 'Leonardo_F._ Gorordo@who.eop.gov ' ; 'Matthew _ E._ Smith@who.eop.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'asnee@who.eop.gov ' ; ' Wendy Grubbs (E-mail)'; 'Sean Rushton '; ' neil.bradley@mail.house.gov'; ' omar.franco@mail.house .gov '; ' Hoover, Margaret ' Subject: RE: Estrada Conf Call MannyI am traveling tomorrow, but happy to have our office arrange the call. Others from OLP (perhaps Adam or Kristi} will participate. Please advise . BAB -Original Message-From: Miranda, Manue l (Frist) [mailto:Manuel _ Miranda@frist.senate.gov ) Sent : Thursday , March 13, 2003 4:36 PM To: Remington, Kristi L; Charnes, Adam; Martinez, Jorge (OPA); Goodling, Monica; Dinh, Viet; Benczkowski , Brian A; Ledeen , Barbara (Republican -Conf}; Comisac , RenaJohnson (Judiciary) ; Dahl, Alex (Judiciary); Wendy Grubbs (E-mail); asnee@who.eop.gov; Uenness-Olmos@rnchq.org; Sharon Castillo - Communications; Brett_M. _ Kavanaugh@ who.eop.gov; Matthew_E. _Smith@who.eop.gov; Keys, Elizabeth {Republican-Conf); Bainwol, Mitch (Frist); Vogel, Alex (Frist); Ueland, Eric (Frist); Stevenson , Bob (Frist); Jacobson, Paul (Frist); Leonardo _ F._ Gorordo@who.eop.gov; leonard _ B._Rodriguez@who.eop.gov; Abel_ Guerra@who.eop.gov; Hoover, ~ anco@mail.house.gov; neil.bradley@mail.house.gov; ---Carter, Jo.sh (Judiciary); Sean Rushton; Wichterman, Bill (Frist); Tapia, Margarita (Judiciary); Duffield, Steven (RPC); Higgins , Stephen (Judiciary}; Stewart , Don {Cornyn); rfernande z@rnch q.org; Dinh, Viet Subject: Estrada Conf Call EXT-18-2091-C-000144 007104-000836 Document ID: 0.7.19343.9299 Yes that will t,.e great. -- Original Message- -From: Benczkowski , Brian A [mailto:Brian.A.Benczkowski@usdoj.gov) Sent: Thursday, March 13, 2003 5:00 PM To: Remington, Kristi L; Chames, Adam; Martinez, Jorge {OPA); Goodling, Monica ; Dinh, Viet; Dinh, Viet; Duffield, Steven (RPC); ' rfernandez@rnchq.org ' ; 'Sharon Castillo - Communications '; 'Uenness-Olmos@rnchq.org '; Higgins, Stephen (Judiciary); Tapia, Margarita {Judiciary); Carter, Josh (Judiciary); Dahl, Alex {Judiciary); Comisac , RenaJohnson (Judiciary); ' Stewart , Don (Cornyn); Wichte rman , Bill (Frist); Jacobson , Paul (Frist); Stevenson, Bob (Frist); Ueland, Eric (Frist); Vogel, Alex (Frist); Bainwol, Mitch (Frist) ; Miranda, Manuel (Frist}; Keys, Elizabeth (Republican-Conf); Ledeen , Barbara (Republican-Conf}; 'Abel_ Guerra@who.eop.gov '; 'Leonard_B._Rodriguez@who.eop.gov ' ; 'Leonardo_F._ Gorordo@who.eop.gov ' ; 'Matthew _ E._ Smith@who.eop.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'asnee@who.eop.gov ' ; ' Wendy Grubbs (E-mail)'; 'Sean Rushton '; ' neil.bradley@mail.house.gov'; ' omar.franco@mail.house .gov '; ' Hoover, Margaret ' Subject: RE: Estrada Conf Call MannyI am traveling tomorrow, but happy to have our office arrange the call. Others from OLP (perhaps Adam or Kristi} will participate. Please advise . BAB -Original Message-From: Miranda, Manue l (Frist) [mailto:Manuel _ Miranda@frist.senate.gov ) Sent : Thursday , March 13, 2003 4:36 PM To: Remington, Kristi L; Charnes, Adam; Martinez, Jorge (OPA); Goodling, Monica; Dinh, Viet; Benczkowski , Brian A; Ledeen , Barbara (Republican -Conf}; Comisac , RenaJohnson (Judiciary) ; Dahl, Alex (Judiciary); Wendy Grubbs (E-mail); asnee@who.eop.gov; Uenness-Olmos@rnchq.org; Sharon Castillo - Communications; Brett_M. _ Kavanaugh@ who.eop.gov; Matthew_E. _Smith@who.eop.gov; Keys, Elizabeth {Republican-Conf); Bainwol, Mitch (Frist); Vogel, Alex (Frist); Ueland, Eric (Frist); Stevenson , Bob (Frist); Jacobson, Paul (Frist); Leonardo _ F._ Gorordo@who.eop.gov; leonard _ B._Rodriguez@who.eop.gov; Abel_ Guerra@who.eop.gov; Hoover, ~ anco@mail.house.gov; neil.bradley@mail.house.gov; ---Carter, Jo.sh (Judiciary); Sean Rushton; Wichterman, Bill (Frist); Tapia, Margarita (Judiciary); Duffield, Steven (RPC); Higgins , Stephen (Judiciary}; Stewart , Don {Cornyn); rfernande z@rnch q.org; Dinh, Viet Subject: Estrada Conf Call EXT-18-2091-C-000144 007104-000836 Document ID: 0.7.19343.9299 Brian or Brett, Could you set up a conference call for tomorrow morning say 10:00. 1) 2) Report Brainstorm 3) Specifics below and others - Original Message From: Ledeen, Barbara (Republican -Conf) Sent: Thurs day, March 13, 2003 3:41 PM To: brian. a. benczkowski@usdo j.gov (E-mail); Miranda, Manue l (Frist) Estrada plans Subject: Here is what we would like to do to mark the 50th day of the Estrada confirmation fight. Can we please have a meeting --or a telephone conference call-w ith the relevant peop le to get this accom lishe-d? Barbara Ledeen Director of Coalitions ... I ... ... : ... o o ... Conference EXT-18-2091-C-000145 007104-000837 Document ID: 0.7.19343.9299 Brian or Brett, Could you set up a conference call for tomorrow morning say 10:00. 1) 2) Report Brainstorm 3) Specifics below and others - Original Message From: Ledeen, Barbara (Republican -Conf) Sent: Thurs day, March 13, 2003 3:41 PM To: brian. a. benczkowski@usdo j.gov (E-mail); Miranda, Manue l (Frist) Estrada plans Subject: Here is what we would like to do to mark the 50th day of the Estrada confirmation fight. Can we please have a meeting --or a telephone conference call-w ith the relevant peop le to get this accom lishe-d? Barbara Ledeen Director of Coalitions ... I ... ... : ... o o ... Conference EXT-18-2091-C-000145 007104-000837 Document ID: 0.7.19343.9299 Washington, Tracy T Washington, Tracy T Monday, March 17, 2003 1:19 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; Manuel_Miranda@frist.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; Rena_Johnson_Comisac@Judiciary.senate.gov; Sheila Joy; Steve Koebele; Viet Dinh; Wendy_J._Grubbs@who.eop.gov; William Hall TODAY 4:00 p.m. Judicial Working Group Conference Call...agenda attached. Subject: Attachments: JCWG - agenda (3-17-03).doc From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000146 007104-000838 Document ID: 0.7.19343.5556 Washington, Tracy T Washington, Tracy T Monday, March 17, 2003 1:19 PM Adam Charnes; alex_dahl@judiciary.senate.gov; alex_vogel@frist.senate.gov; Andrew Schauder; ASnee@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Brian Benczkowski; Dan Bryant; Don Willett; H._Christopher_Bartolomucci@who.eop.gov; Heather Cutchens; Heather_Wingate@who.eop.gov; Jamie Brown; b(6) Jennifer Oschal email Kristi Remington; b(6) John Abegg Senate Email Kyle_Sampson@who.eop.gov; Lizette Benedi; Lori SharpeDay; makan_delrahim@judiciary.senate.gov; Manuel_Miranda@frist.senate.gov; Margarita_Tapia@Judiciary.senate.gov; Matthew_E._Smith@who.eop.gov; Monica Goodling; Nancy Scottfinan; Nathan Sales; Pat O'Brien; Rena_Johnson_Comisac@Judiciary.senate.gov; Sheila Joy; Steve Koebele; Viet Dinh; Wendy_J._Grubbs@who.eop.gov; William Hall TODAY 4:00 p.m. Judicial Working Group Conference Call...agenda attached. Subject: Attachments: JCWG - agenda (3-17-03).doc From: Sent: To: Tracy T. Washington U.S. Department of Justice Office of Legal Policy Main Building, Room 4234 (202) 514-2737 EXT-18-2091-C-000146 007104-000838 Document ID: 0.7.19343.5556 Agenda - Weekly Confe rence Call Judicial Confirmation Working Group 3-17-03 Dial-in: Passcode : ART. III COURTS Circuit Court District Court TOTAL 1. VACANCIES 24 ( of 179) - 13% 31 ( of 665) - 5% 55 (of862) - 6% NOMINATIONS 108th Cong. 107th Cong. (2001-02) (2003-04) 32 99 131 19 30 49 CONFIRMATIONS 1071h Cong. 108 th Cong. (2001-02) (2003-04) 17 83 100 1 10 11 FLOOR Miguel Estrada: Continu ed Floor debate; cloture on Tuesday; general respon se efforts Jeff S utton: Harkin hold John Rob erts/Deborah Cook: Status 2. MARCH20Tl1 BUSINESSMEETING Priscilla Owen Victor Wolsky 3. SJC CALENDAR ? Confirmation Hearin g Sc hedul e Status of next hearing Caro lyn Kuh l 4. PF A Activity 5. WH and DoJ Pre ss Activity 6. WH and DoJ Legislative Activity 7. New Busine ss EXT-18-2091-C-000147 007104-000839 Documen t ID: 0.7.19343 .5556-000001 Agenda - Weekly Confe rence Call Judicial Confirmation Working Group 3-17-03 Dial-in: Passcode : ART. III COURTS Circuit Court District Court TOTAL 1. VACANCIES 24 ( of 179) - 13% 31 ( of 665) - 5% 55 (of862) - 6% NOMINATIONS 108th Cong. 107th Cong. (2001-02) (2003-04) 32 99 131 19 30 49 CONFIRMATIONS 1071h Cong. 108 th Cong. (2001-02) (2003-04) 17 83 100 1 10 11 FLOOR Miguel Estrada: Continu ed Floor debate; cloture on Tuesday; general respon se efforts Jeff S utton: Harkin hold John Rob erts/Deborah Cook: Status 2. MARCH20Tl1 BUSINESSMEETING Priscilla Owen Victor Wolsky 3. SJC CALENDAR ? Confirmation Hearin g Sc hedul e Status of next hearing Caro lyn Kuh l 4. PF A Activity 5. WH and DoJ Pre ss Activity 6. WH and DoJ Legislative Activity 7. New Busine ss EXT-18-2091-C-000147 007104-000839 Documen t ID: 0.7.19343 .5556-000001 From : Sent : Thursday, April 10, 2003 11:49 AM To: Brown, Jamie E (OLA); Goodling, Monica; Dinh, Viet; Charnes, Adam; Remington, Kristi L; Benczkowski, Brian A; Manue l_ Miranda@frist.senate.gov; asnee@who.eop.gov; James_ Ho@Judiciary.senate.gov; Joe_Jacquot@hutchison.senate.gov; Rena _Johnson _ Comisac@Judiciary.senate.gov; Brett_M._Kavanaugh@who.eop.gov; wgrubbs@who.eop.gov; Alex_ Vogel@frist.senate.gov; Makan _ Delrahim@Judiciary.senate.gov; Ale><_Dahl@Judiciary.senate.gov; Tim_ Goeglein@w o.eop.gov; Matthew _ E._Smith@who .eop.gov; Abel_ Guerra@who.eop.gov; leonar d_ b._rodriguez@who.eop.gov; Leonardo_ F._ Gorordo@who.eop.gov ; Mercedes _ M._ Viana@who.eop.gov; Antonia _ Ferrier@frist.senate.gov ; Alex_ Vogel@frist.senate.gov; SRushton@CommitteeforJustice.org; joschal@dcigroup .com; SCastillo@mchq.org; rfemandez@mchq.org; Uenness _ Olmos@rnchq.org; Bill_Wichterman@frist.senate.gov Subject : RE: ConfCall, Fri 10 am/ Owen - Estrada --Or iginal Message--From: Brian.A.Benczkowski@usdoj.gov [mailto:Brian.A.Benczkowski@usdoj.gov} Sent: Thursday, April 10, 2003 9:21 AM To: Kristi.L.Remington@usdoj.gov; Adam.Charnes@usdoj.gov; Viet.Dinh@usdoj .gov; Monica.Goodling@usdoj.gov; Ja mie.E.Brown@usdoj.gov ; Miranda, Manuel {Frist); 'asnee@who .eop.gov'; Ho, James (Judiciary); Jacquot, Joe (Hutchison); Comisac, RenaJohnson (Judiciary); Ledeen , Barbara (Republican-Co nf); Keys, Elizabeth (Republican-Conf); 'Brett_M._Kavan augh@who.eop.gov '; 'wgrubbs@who.eop.gov ' ; Vogel, Alex Frist ; Delrahim, Makan Judiciary); Dahl, Alex (Judiciary); 'Tim_ Goeglein@who.eop.gov '; ' Matthew _ E._Smith@who .eop.gov'; 'Abel _ Guerra@who.eop .gov'; 'l eonard_b._rodriguez@who.eop.gov ' ; 'Leonardo _F._ Gorordo@who.eop.gov'; 'Mercedes_M._ Viana@who.eop.gov'; Ferrier, Antonia (Frist); Higgins, Stephen (Judiciary); Abegg, John (McConnell); Vogel, Alex {Frist); 'SRushton@CommitteeforJustice.org '; 'joschal@ dcigroup.co m' ; 'SCastillo@rnchq.org'; ' rfemandez@rnchq.org'; 'Uenness_O lmos@mchq.org '; Wichterman , Bill (Frist) Subject: RE: ConfCall, Fri 10 am/ Owen - Estrada n:~o=~EXT-18-2091-C-000148 00710 4-000840 Document ID: 0.7.19343.9662 From : Sent : Thursday, April 10, 2003 11:49 AM To: Brown, Jamie E (OLA); Goodling, Monica; Dinh, Viet; Charnes, Adam; Remington, Kristi L; Benczkowski, Brian A; Manue l_ Miranda@frist.senate.gov; asnee@who.eop.gov; James_ Ho@Judiciary.senate.gov; Joe_Jacquot@hutchison.senate.gov; Rena _Johnson _ Comisac@Judiciary.senate.gov; Brett_M._Kavanaugh@who.eop.gov; wgrubbs@who.eop.gov; Alex_ Vogel@frist.senate.gov; Makan _ Delrahim@Judiciary.senate.gov; Ale><_Dahl@Judiciary.senate.gov; Tim_ Goeglein@w o.eop.gov; Matthew _ E._Smith@who .eop.gov; Abel_ Guerra@who.eop.gov; leonar d_ b._rodriguez@who.eop.gov; Leonardo_ F._ Gorordo@who.eop.gov ; Mercedes _ M._ Viana@who.eop.gov; Antonia _ Ferrier@frist.senate.gov ; Alex_ Vogel@frist.senate.gov; SRushton@CommitteeforJustice.org; joschal@dcigroup .com; SCastillo@mchq.org; rfemandez@mchq.org; Uenness _ Olmos@rnchq.org; Bill_Wichterman@frist.senate.gov Subject : RE: ConfCall, Fri 10 am/ Owen - Estrada --Or iginal Message--From: Brian.A.Benczkowski@usdoj.gov [mailto:Brian.A.Benczkowski@usdoj.gov} Sent: Thursday, April 10, 2003 9:21 AM To: Kristi.L.Remington@usdoj.gov; Adam.Charnes@usdoj.gov; Viet.Dinh@usdoj .gov; Monica.Goodling@usdoj.gov; Ja mie.E.Brown@usdoj.gov ; Miranda, Manuel {Frist); 'asnee@who .eop.gov'; Ho, James (Judiciary); Jacquot, Joe (Hutchison); Comisac, RenaJohnson (Judiciary); Ledeen , Barbara (Republican-Co nf); Keys, Elizabeth (Republican-Conf); 'Brett_M._Kavan augh@who.eop.gov '; 'wgrubbs@who.eop.gov ' ; Vogel, Alex Frist ; Delrahim, Makan Judiciary); Dahl, Alex (Judiciary); 'Tim_ Goeglein@who.eop.gov '; ' Matthew _ E._Smith@who .eop.gov'; 'Abel _ Guerra@who.eop .gov'; 'l eonard_b._rodriguez@who.eop.gov ' ; 'Leonardo _F._ Gorordo@who.eop.gov'; 'Mercedes_M._ Viana@who.eop.gov'; Ferrier, Antonia (Frist); Higgins, Stephen (Judiciary); Abegg, John (McConnell); Vogel, Alex {Frist); 'SRushton@CommitteeforJustice.org '; 'joschal@ dcigroup.co m' ; 'SCastillo@rnchq.org'; ' rfemandez@rnchq.org'; 'Uenness_O lmos@mchq.org '; Wichterman , Bill (Frist) Subject: RE: ConfCall, Fri 10 am/ Owen - Estrada n:~o=~EXT-18-2091-C-000148 00710 4-000840 Document ID: 0.7.19343.9662 Uldl - 111. - PaSSCOde:- --Or iginal Message--From: Manuel _ Miranda@frist.senate.gov [ma ilto:Ma nuel_Miran da@fr ist. se nate.gov] Sent: Thursday, April 10, 2003 9:18 AM To: Remington, Kristi L; Koebele, Steve; Charnes, Adam; Dinh, Viet; Benczkowski, Brian A; Goodling, Monica; Brown, Jamie E (OLA); asnee@who.eop.gov; James_Ho@Judiciary.senate.gov; Joe_Jacquot@hutchison.senate.gov; Rena Johnson Comisac@Ju diciary.se nate .gov; 8rett _ M._ Kavanaugh@who .eop.gov; wgrubbs@who.eop.gov; Alex_Vogel@frist.senate.gov; Makan_Oelrahim@Judiciary.senate.gov; hi d iary.senate .gov;: Tim_Goeglein@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Abel_ Guerra@who.eop.gov; leonard_b._rodriguez@who.eop.gov; Leonardo _ F._ Gorordo@who.eop.gov; Mercedes M. Viana@who.eo Antonia Ferrier frist.senate. ov. lex_ Vogel@trist.senate.gov; SRushton@CommitteeforJustice.org; joschal@dcigroup.com; SCastillo@rnchq.org; rfernandez@rnchq.org; Uenness _ Olmos@rnchq.org; Bill_ Wichterman@frist.senate.gov Subject: ConfCall, Fri 10 am/ Owen - Estrada We will have a Conference Call tomorrow at 10 a m. that will last about 30 minutes. We will discuss Owen and then Estrada. The purpose of the call is to collect thoughts as to how best to maximize the recess with a view toward outside groups and media. We may have secondary meetings later through the day. Brian will send out the call numbers. EXT-18-2091-C-000149 007104-000841 Document ID: 0.7.19343.9662 Uldl - 111. - PaSSCOde:- --Or iginal Message--From: Manuel _ Miranda@frist.senate.gov [ma ilto:Ma nuel_Miran da@fr ist. se nate.gov] Sent: Thursday, April 10, 2003 9:18 AM To: Remington, Kristi L; Koebele, Steve; Charnes, Adam; Dinh, Viet; Benczkowski, Brian A; Goodling, Monica; Brown, Jamie E (OLA); asnee@who.eop.gov; James_Ho@Judiciary.senate.gov; Joe_Jacquot@hutchison.senate.gov; Rena Johnson Comisac@Ju diciary.se nate .gov; 8rett _ M._ Kavanaugh@who .eop.gov; wgrubbs@who.eop.gov; Alex_Vogel@frist.senate.gov; Makan_Oelrahim@Judiciary.senate.gov; hi d iary.senate .gov;: Tim_Goeglein@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Abel_ Guerra@who.eop.gov; leonard_b._rodriguez@who.eop.gov; Leonardo _ F._ Gorordo@who.eop.gov; Mercedes M. Viana@who.eo Antonia Ferrier frist.senate. ov? lex_ Vogel@trist.senate.gov; SRushton@CommitteeforJustice.org; joschal@dcigroup.com; SCastillo@rnchq.org; rfernandez@rnchq.org; Uenness _ Olmos@rnchq.org; Bill_ Wichterman@frist.senate.gov Subject: ConfCall, Fri 10 am/ Owen - Estrada We will have a Conference Call tomorrow at 10 a m. that will last about 30 minutes. We will discuss Owen and then Estrada. The purpose of the call is to collect thoughts as to how best to maximize the recess with a view toward outside groups and media. We may have secondary meetings later through the day. Brian will send out the call numbers. EXT-18-2091-C-000149 007104-000841 Document ID: 0.7.19343.9662 Brett_M ._Kavanaugh@who.eop .gov From : Brett _ M._Kavanaugh@who.eop.gov Sent : Friday, April 11, 2003 2:16 PM To: Manuel_Miranda@frist.senate.gov Cc: Charnes, Adam; Benczkowski, Brian A; Brown, Jamie E (OLA); Remington, Kristi L; Goodling, Monica; Dinh, Viet; Ashley _Snee@who.eop.gov; o o I james_ho@judiciary.senate.gov; joe_jacquot mo I I I oii. .senate .gov endy _J._ Grubbs@who.eop.gov ; alex_vogel@frist.senate.gov ; makan de lrahim@'udicia .senate.gov; alex _ dahl@judiciary.senate.gov; Tim_Goeglein@who.eop.gov; Matthew_ ._ mith who.eop.gov; Abel _ Guer ra@who.eop.gov; Leonard _ B._ Rodriguez@who.eop.gov; Merce des M. Viana@who.eo , . ov; srushton@committeeforjustice.org; joschal@dcigroup.com; scastillo@rnchq.org; rfernandez@rnchq.org; ljenness _ olmos@rnchq.org; bill_ wichte rman @frist. senate.gov; th ielen@ repu blicanlawyer.net; csburkhardt@sorlinglaw .com Subject : fyi The following lists the 18 Democrat Senators who have vote d for Estrada on cloture, Brooks Smith , Shedd , and/or Tymkovich. This gives you a decent roadmap for thinking about the Democrat Senators. (Keep in mind also that Senato r Feinstein, although not voting for any of those 4, has indica ted support for 3 nominees who have not yet received votes -- Roberts, Cook, and Sutton.) All4 no m inees (2} Zell Miller - Ga Ben Nelson -- Neb 3 of the 4 nominees (3) Breaux- La Lincoln -- Ark Pryor {voted for Tymkovich; was not yet in Senate for Smith and Shedd) - Ark 2 of the 4 nominees (5) Bayh- Ind Byrd-WVa Bob Graham - Fla Hollings -- SC Bill Nelson - Fla 1 of the 4 nominees (8) Biden {Smith) - Del Carper (Smith) - Del Con rad {Tymkovich) - Col EXT-18-2091-C-000150 007104 -000842 Document ID: 0.7.19343 .9664 Brett_M ._Kavanaugh@who.eop .gov From : Brett _ M._Kavanaugh@who.eop.gov Sent : Friday, April 11, 2003 2:16 PM To: Manuel_Miranda@frist.senate.gov Cc: Charnes, Adam; Benczkowski, Brian A; Brown, Jamie E (OLA); Remington, Kristi L; Goodling, Monica; Dinh, Viet; Ashley _Snee@who.eop.gov; o o I james_ho@judiciary.senate.gov; joe_jacquot mo I I I oii. .senate .gov endy _J._ Grubbs@who.eop.gov ; alex_vogel@frist.senate.gov ; makan de lrahim@'udicia .senate.gov; alex _ dahl@judiciary.senate.gov; Tim_Goeglein@who.eop.gov; Matthew_ ._ mith who.eop.gov; Abel _ Guer ra@who.eop.gov; Leonard _ B._ Rodriguez@who.eop.gov; Merce des M. Viana@who.eo , . ov; srushton@committeeforjustice.org; joschal@dcigroup.com; scastillo@rnchq.org; rfernandez@rnchq.org; ljenness _ olmos@rnchq.org; bill_ wichte rman @frist. senate.gov; th ielen@ repu blicanlawyer.net; csburkhardt@sorlinglaw .com Subject : fyi The following lists the 18 Democrat Senators who have vote d for Estrada on cloture, Brooks Smith , Shedd , and/or Tymkovich. This gives you a decent roadmap for thinking about the Democrat Senators. (Keep in mind also that Senato r Feinstein, although not voting for any of those 4, has indica ted support for 3 nominees who have not yet received votes -- Roberts, Cook, and Sutton.) All4 no m inees (2} Zell Miller - Ga Ben Nelson -- Neb 3 of the 4 nominees (3) Breaux- La Lincoln -- Ark Pryor {voted for Tymkovich; was not yet in Senate for Smith and Shedd) - Ark 2 of the 4 nominees (5) Bayh- Ind Byrd-WVa Bob Graham - Fla Hollings -- SC Bill Nelson - Fla 1 of the 4 nominees (8) Biden {Smith) - Del Carper (Smith) - Del Con rad {Tymkovich) - Col EXT-18-2091-C-000150 007104 -000842 Document ID: 0.7.19343 .9664 Dorgan (Smith) - NO Edwards (Smith) - NC Inouye (She dd) - Haw Kohl {Smith) -- Wisc lan drieu (Smith)- La Others (1) Feinstein - Cal EXT-18-2091-C-000151 007104-000843 Document ID: 0.7.19343 .9664 Dorgan (Smith) - NO Edwards (Smith) - NC Inouye (She dd) - Haw Kohl {Smith) -- Wisc lan drieu (Smith)- La Others (1) Feinstein - Cal EXT-18-2091-C-000151 007104-000843 Document ID: 0.7.19343 .9664 Dinh, Viet From : Dinh, Viet Sent : Friday, April 25, 2003 2:36 PM To: Brown, Jamie E (OLA) Cc: Benczkowski, Brian A; 'Wendy Grubbs (Email) ' ; 'Brett _ M._ Kavanaugh@who.eop.gov ' Su bject : RE: Scheduler notification from Capitol Correspond -Original Message-From: Brown, Jamie E (OLA) Sent: Friday, April 25, 2003 2:30 PM To: Dinh, Viet Cc: Benczkowsk i, Brian A; Wendy Grubbs (E-mail); 'Brett _ M._ Kavanaugh@who.eop.gov ' Subject: RE: Scheduler notification from Capitol Correspond My curiosity is pique d. What is a EXT-18-2091-C-000152 007104-000844 Document ID: 0.7.19343.9703 Dinh, Viet From : Dinh, Viet Sent : Friday, April 25, 2003 2:36 PM To: Brown, Jamie E (OLA) Cc: Benczkowski, Brian A; 'Wendy Grubbs (Email) ' ; 'Brett _ M._ Kavanaugh@who.eop.gov ' Su bject : RE: Scheduler notification from Capitol Correspond -Original Message-From: Brown, Jamie E (OLA) Sent: Friday, April 25, 2003 2:30 PM To: Dinh, Viet Cc: Benczkowsk i, Brian A; Wendy Grubbs (E-mail); 'Brett _ M._ Kavanaugh@who.eop.gov ' Subject: RE: Scheduler notification from Capitol Correspond My curiosity is pique d. What is a EXT-18-2091-C-000152 007104-000844 Document ID: 0.7.19343.9703 Sales , Nathan From : Sales, Nathan Sent : Tuesday, April 29, 2003 11:15 AM To: 'Manuel_Miranda@frist.sen ate.go v'; Benczkowski, Brian A; ' Brett_ M._ Kavanaugn@who.eop.gov '; 'Alex_ Dahl@Judiciary.senate.gov'; 'Rena _Johnson_Comisac@Judiciary.senate.gov'; 'Amy_Haywood@Judiciary.senate.gov ' ; 'Swen_Prior@Judiciary.senate.gov '; 'Steven_Duffield@rpc.senate.gov '; 'David_B est@Judiciary.senate.gov '; 'Katie_ Gumerson@rpc.senate.gov' Subject : RE: Sutton Talkers needed Attachments : Sutton TPs--positive.doc; Sutton TPs--disability.doc Here are the Sutton disability TPs, as well as some genera l pro-Jeff talkers. --Or iginal Message--From: Manuel_Miranda@frist.senate.gov {mailto:Manuel_Mir anda@fr ist.senate.gov] Sent: Tuesday , April 29, 2003 11:07 AM To: Benczkowski, Brian A; Sales, Nathan; Brett_M._Kavanaugh@who.eop.gov; Alex_Dahl@Judiciary.senate.gov; Rena_Johnson_ Comisac@Judiciary.senate.gov; Amy_Haywood@Judiciary.senate.gov; Swen_Prior@Judiciary.senate.gov; Steven _ Duffield@rpc.senate.gov; David_ Best@Judiciary.senate.gov; Katie_Gumerson@rpc.senate.gov Subject: Sutton Talkers needed Import ance: High We ne-ed general Sutton talkers dealing with handicapped issues distributed to GOP Senators. Please send whatever you have. Will RPC materials be distr ibuted at lunch? EXT-18-2091-C-000153 007104-000845 Document ID: 0.7.19343.574 1 Sales , Nathan From : Sales, Nathan Sent : Tuesday, April 29, 2003 11:15 AM To: 'Manuel_Miranda@frist.sen ate.go v'; Benczkowski, Brian A; ' Brett_ M._ Kavanaugn@who.eop.gov '; 'Alex_ Dahl@Judiciary.senate.gov'; 'Rena _Johnson_Comisac@Judiciary.senate.gov'; 'Amy_Haywood@Judiciary.senate.gov ' ; 'Swen_Prior@Judiciary.senate.gov '; 'Steven_Duffield@rpc.senate.gov '; 'David_B est@Judiciary.senate.gov '; 'Katie_ Gumerson@rpc.senate.gov' Subject : RE: Sutton Talkers needed Attachments : Sutton TPs--positive.doc; Sutton TPs--disability.doc Here are the Sutton disability TPs, as well as some genera l pro-Jeff talkers. --Or iginal Message--From: Manuel_Miranda@frist.senate.gov {mailto:Manuel_Mir anda@fr ist.senate.gov] Sent: Tuesday , April 29, 2003 11:07 AM To: Benczkowski, Brian A; Sales, Nathan; Brett_M._Kavanaugh@who.eop.gov; Alex_Dahl@Judiciary.senate.gov; Rena_Johnson_ Comisac@Judiciary.senate.gov; Amy_Haywood@Judiciary.senate.gov; Swen_Prior@Judiciary.senate.gov; Steven _ Duffield@rpc.senate.gov; David_ Best@Judiciary.senate.gov; Katie_Gumerson@rpc.senate.gov Subject: Sutton Talkers needed Import ance: High We ne-ed general Sutton talkers dealing with handicapped issues distributed to GOP Senators. Please send whatever you have. Will RPC materials be distr ibuted at lunch? EXT-18-2091-C-000153 007104-000845 Document ID: 0.7.19343.574 1 Dinh, Viet From : Dinh, Viet Sent : Monday, May 5, 2003 10:55 AM To: 'Wendy_J._Grubbs@who.eop.gov'; Brown, Jamie E (OLA);'Manuel _ Miranda@frist.senate.gov' ; 'bkavanau@who.eop.gov ' Subject : RE: Holmes OeWine's position is a surprise, at least to me. I think we may want to find out whether he intends to vote against Leon, just show up, or worse actively join the Dems in opposing him. Anything you all need , just let us know. --Original Message-From: Wendy_J._ Grubbs@who.eop.gov [mailto:Wendy _J._ Grubbs@who.eop.gov] Sent: Monday, May 05, 2003 9:59 AM To: Brown, Jamie E (OlA}; Dinh, Viet; Manuel_Miranda@frist.senate.gov; bkavanau@who.eop.gov Subject: RE: Holmes If he wants to oppose him fine , so what is there to explore? Do you think he would put a hold on him? - Original Message-From: Miranda , Manuel {Frist) [mailto:Manue l_ Miranda@frist.senate .gov] Sent: Friday, May 02, 2003 4 :50 PM To: Kavanaugh , Brett M.; Grubbs, Wendy J.; viet.dinh@usdoj.gov; jamie.e.brown@usdoj.gov Subject: Holmes The GOP res e rvist on Holmes was Dewine. This presents a problem because we may want to bring him up soon. Wendy, can you explore the mystery? EXT-18-2091-C-000154 007104-000846 Document ID: 0.7.19343.10014 Dinh, Viet From : Dinh, Viet Sent : Monday, May 5, 2003 10:55 AM To: 'Wendy_J._Grubbs@who.eop.gov'; Brown, Jamie E (OLA);'Manuel _ Miranda@frist.senate.gov' ; 'bkavanau@who.eop.gov ' Subject : RE: Holmes OeWine's position is a surprise, at least to me. I think we may want to find out whether he intends to vote against Leon, just show up, or worse actively join the Dems in opposing him. Anything you all need , just let us know. --Original Message-From: Wendy_J._ Grubbs@who.eop.gov [mailto:Wendy _J._ Grubbs@who.eop.gov] Sent: Monday, May 05, 2003 9:59 AM To: Brown, Jamie E (OlA}; Dinh, Viet; Manuel_Miranda@frist.senate.gov; bkavanau@who.eop.gov Subject: RE: Holmes If he wants to oppose him fine , so what is there to explore? Do you think he would put a hold on him? - Original Message-From: Miranda , Manuel {Frist) [mailto:Manue l_ Miranda@frist.senate .gov] Sent: Friday, May 02, 2003 4 :50 PM To: Kavanaugh , Brett M.; Grubbs, Wendy J.; viet.dinh@usdoj.gov; jamie.e.brown@usdoj.gov Subject: Holmes The GOP res e rvist on Holmes was Dewine. This presents a problem because we may want to bring him up soon. Wendy, can you explore the mystery? EXT-18-2091-C-000154 007104-000846 Document ID: 0.7.19343.10014 Sales, Nathan From : Sent : To : Boe: John Abegg {E-mail); Amanda Adams (E-mail); Tom Adams (E-mail); Jonathan Adler {E-mail); Asheesh Agarwal (E-mail); Claude Allen {E-mail 2}; Jennifer Ashworth (E-ma il); Alex M. Azar (E-mail 2}; Jay W. Baird (E-mail); Doug Benson {Email); Brad Berenson (E-mail}; Michael Berry (E-mail); Bracy Bersnak {E-mail); Katherine Bloemendal (E-mail); Michelle E. Boardman (E-mail}; Robert H. Bork {Email); Brian Bowcut (E-mai l}; Kristi Bowman (E-mail); David Bowsher (E-mail); Gerard Bradley (E-mail); Randall Brandt (E-mail); Frank Brown {E-mail); Michael Buckler (E-mail}; Scott G. Bullock (E-ma il); Nate Cash (E-mail); Anne & Clyde Castile (E-mail); Jeff Catalano (E-mail); Adam Chames (E-mail); Roderick Chen (Email); Nick Coleman (E-mail); Elisebeth Collins (E-mail); William J. Colwell (Email); Kate Comerford (E-mail); Shane Cortesi (E-ma il}; Collin Cox (E-mail); Doug Cox (E-mail); Tom Crowe (E-mail); Ted Cruz (E-mail); Alex Dahl (E-mail); Kay Daly (E-mail}; Jill Dash (E-mail}; Jonathan David (E-mail); Ross E. Davies (E-ma il); Walter Dellinger (E-mail); Christine M. DeMott (E-mail); Mike Dimino (E-mail}; Viet Dinh (E-mail); Scott Dodson (E-ma il};Susanna Dokupil {E-mail); Thomas H. Dupree (E-mail); Miguel Estrada (E-mail); Korin Ewing {E-mail); David Fenner (Ema il); Scott Galupo (E-mail); Scott Garlock (E-mail); Todd Gaziano (E-mail}; Robert P. George (E-mail); Andrew Gold (E-mail); Grannan, Eric; Boyden Gray (Ema il); Jonas Green (E-mail); Michael S. Greve (E-mail); Bill & Rhonda Grundemann (E-mail); James S. Gwin (E-mail 2); Ed Haden (E-mail); Todd Hausman (E-mail); Amy Haywood (E-mail); Michael Heath {E-mail);James C. Ho (E-mail}; Michael Horowitz (E-mail); John lnazu (E-mail); Mary lncontro (E-mail); KirkJensen (E-mail); Tom Jipping (E-mail}; Rena Johnson Comisac {E-mail); Myriah Jordan (E-mail); Craig Joseph (E-mail); Paul Kamenar (E-mail); Brett Kavanaugh {E-mail};Wendy Keefer (E-mail); Michael Kimme l (E-mail); Todd Kloots (E-mail); Traci Kloots (E-mail); Steve Koeble (E-mail); Michael Krempasky (E-mail); Rohit Kumar (E-mai l}; Ed LeClear (E-mail); Barbara Ledeen {E-mail); Lance Leggitt (E-mail}; Leonard A. Leo (E-mail); Curt A. Levey (E-mail); Eric Liang (E-mail); Jeff Lord (E-mail); Allyson M. Lowe (E-mail); Jason Lundell (E-mail); T. Kevin Marr (E-mail); Joe Matal (E-ma il); Andrew McBride (E-mai l); John McBroom (E-mail}; Scott Mccaleb (E-mail); Brent McIntosh (E-mail); Heather McNaught {Email); Edwin Meese (E-mail); Josh Mercer (E-mai l); Eugene 8. Meyer (E-mail); Adam Miller (E-mail); Manuel Miranda (E-mail); Amanda Mower (E-mail); Jim & Anne Murrin (E-mail); Jim & Anne Murrin {E-mail 2); Julie Myers (E-mai l); Jennifer Newstead (E-mail); Julie Niemeier {E-mail); John O'Quinn (E-mail); Jenni fer Oschal (E-mail); Ajit Pai (E-mail); William Paxton (E-mail); Benjamin Peltier (Email); Margaret Peterlin {E-mail); Roger Pilon (E-mail); John Putka (E-mail); Pammela S. Quinn (E-mail); Howard Radzely (E-mail); Neomi Rao (E-mail); Evan Rikhye (E-ma il); Christopher A. Roach (E-mai l); Andy Robinson (E-mail); Paul Rosenzweig (E-mail); Ron Rotunda {E-mail); Sean Rushton (E-mail); Alex & Marsha Sales (E-mail); Benjamin Sales (E-mail); Louise Sales {E-mail); Mark & Annie Sales (E-mai l); Eugene Scalia (E-mail); David Searle (E-ma il); Melissa Seckora (E-mail); David B. Sentelle (E-mail); John Shepherd {E-mail); Jennifer ,hirtPv IF-mail\? Natan ,h ldvar If-mail\? MirhaPI I ,iaric;t IF-mail\? C'nrv I EXT-18-2091-C-000155 007104-000847 Documen t ID: 0.7.19343.5795 Sales, Nathan From : Sent : To : Boe: John Abegg {E-mail); Amanda Adams (E-mail); Tom Adams (E-mail); Jonathan Adler {E-mail); Asheesh Agarwal (E-mail); Claude Allen {E-mail 2}; Jennifer Ashworth (E-ma il); Alex M. Azar (E-mail 2}; Jay W. Baird (E-mail); Doug Benson {Email); Brad Berenson (E-mail}; Michael Berry (E-mail); Bracy Bersnak {E-mail); Katherine Bloemendal (E-mail); Michelle E. Boardman (E-mail}; Robert H. Bork {Email); Brian Bowcut (E-mai l}; Kristi Bowman (E-mail); David Bowsher (E-mail); Gerard Bradley (E-mail); Randall Brandt (E-mail); Frank Brown {E-mail); Michael Buckler (E-mail}; Scott G. Bullock (E-ma il); Nate Cash (E-mail); Anne & Clyde Castile (E-mail); Jeff Catalano (E-mail); Adam Chames (E-mail); Roderick Chen (Email); Nick Coleman (E-mail); Elisebeth Collins (E-mail); William J. Colwell (Email); Kate Comerford (E-mail); Shane Cortesi (E-ma il}; Collin Cox (E-mail); Doug Cox (E-mail); Tom Crowe (E-mail); Ted Cruz (E-mail); Alex Dahl (E-mail); Kay Daly (E-mail}; Jill Dash (E-mail}; Jonathan David (E-mail); Ross E. Davies (E-ma il); Walter Dellinger (E-mail); Christine M. DeMott (E-mail); Mike Dimino (E-mail}; Viet Dinh (E-mail); Scott Dodson (E-ma il};Susanna Dokupil {E-mail); Thomas H. Dupree (E-mail); Miguel Estrada (E-mail); Korin Ewing {E-mail); David Fenner (Ema il); Scott Galupo (E-mail); Scott Garlock (E-mail); Todd Gaziano (E-mail}; Robert P. George (E-mail); Andrew Gold (E-mail); Grannan, Eric; Boyden Gray (Ema il); Jonas Green (E-mail); Michael S. Greve (E-mail); Bill & Rhonda Grundemann (E-mail); James S. Gwin (E-mail 2); Ed Haden (E-mail); Todd Hausman (E-mail); Amy Haywood (E-mail); Michael Heath {E-mail);James C. Ho (E-mail}; Michael Horowitz (E-mail); John lnazu (E-mail); Mary lncontro (E-mail); KirkJensen (E-mail); Tom Jipping (E-mail}; Rena Johnson Comisac {E-mail); Myriah Jordan (E-mail); Craig Joseph (E-mail); Paul Kamenar (E-mail); Brett Kavanaugh {E-mail};Wendy Keefer (E-mail); Michael Kimme l (E-mail); Todd Kloots (E-mail); Traci Kloots (E-mail); Steve Koeble (E-mail); Michael Krempasky (E-mail); Rohit Kumar (E-mai l}; Ed LeClear (E-mail); Barbara Ledeen {E-mail); Lance Leggitt (E-mail}; Leonard A. Leo (E-mail); Curt A. Levey (E-mail); Eric Liang (E-mail); Jeff Lord (E-mail); Allyson M. Lowe (E-mail); Jason Lundell (E-mail); T. Kevin Marr (E-mail); Joe Matal (E-ma il); Andrew McBride (E-mai l); John McBroom (E-mail}; Scott Mccaleb (E-mail); Brent McIntosh (E-mail); Heather McNaught {Email); Edwin Meese (E-mail); Josh Mercer (E-mai l); Eugene 8. Meyer (E-mail); Adam Miller (E-mail); Manuel Miranda (E-mail); Amanda Mower (E-mail); Jim & Anne Murrin (E-mail); Jim & Anne Murrin {E-mail 2); Julie Myers (E-mai l); Jennifer Newstead (E-mail); Julie Niemeier {E-mail); John O'Quinn (E-mail); Jenni fer Oschal (E-mail); Ajit Pai (E-mail); William Paxton (E-mail); Benjamin Peltier (Email); Margaret Peterlin {E-mail); Roger Pilon (E-mail); John Putka (E-mail); Pammela S. Quinn (E-mail); Howard Radzely (E-mail); Neomi Rao (E-mail); Evan Rikhye (E-ma il); Christopher A. Roach (E-mai l); Andy Robinson (E-mail); Paul Rosenzweig (E-mail); Ron Rotunda {E-mail); Sean Rushton (E-mail); Alex & Marsha Sales (E-mail); Benjamin Sales (E-mail); Louise Sales {E-mail); Mark & Annie Sales (E-mai l); Eugene Scalia (E-mail); David Searle (E-ma il); Melissa Seckora (E-mail); David B. Sentelle (E-mail); John Shepherd {E-mail); Jennifer ,hirtPv IF-mail\. Natan ,h ldvar If-mail\. MirhaPI I ,iaric;t IF-mail\. C'nrv I EXT-18-2091-C-000155 007104-000847 Documen t ID: 0.7.19343.5795 ~ .... , -1 ,- ... ~ .. ,, . .~ ~~ . . ~ '"" 1~ . , - ... ~ oo ,,....- .. ~-.,.~.a..~~,- ... ..,,~~.1,. ~ Skolnick (E-ma il}; D. Brooks Smith (E-mail); Loren Smith (E-mail); William Smith (Email) ; Ashley Snee {E-mail); To dd Snyder (E-mail); Mike Sommers (E-mail); Michael Song ( E-mail); Kevin M. St. John (E-mail); Emily Stimpson (E-ma il}; Aaron Streett (E-mail); Nea l Suit (E-mail); Jason Sutton (E-mail); Jef frey Sutton (E-mail); Scott A. Thompson (E-mail}; Victoria Toensing (E-ma il); Emin Toro (E-mail); Michael B. Treisman (E-mail) ; Sean P. Tren de (E-mail) ; Daniel E. Troy (E-m ail); Drew Tulumello {E-mail}; Donald P. Turoso (E-mail); Alex Vacca (E-ma il); William Van Alstyne (E-ma il); Ashley Varner (E-mail}; Helgi Walker (E-mail); Scott L. Watson (E-mail); Trevor Whetstone {E-mail); Don Willett (E-mail}; Solomon Wisenberg (E-ma il); Ellen Wray (E-ma il); Katie Zieg le r (E-mai l) Subj e ct: Update Dear friends, family , and colleagues, Sorry for t he impersonality of a mass email, but this is, after all, t he quickest way to get information to a large group of people. After two y ears at the Justi ce Department, t he ti me has come for me to join the ranks of private pract iti oners. My last day at t he Office of Legal Policy is October 1, and I'll start at the law firm of Wi ley, Rein & Fielding in early November. Meanwhile, I'll be spending a few weeks in --Before work starts , I can be reached at home - -or through the following lifetime email address : I'll send along my new cell number, work number, and work email and as soon as I get it. Best regards , Nathan EXT-18-2091-C-000156 007104-000848 Document ID: 0.7.19343 .5795 ~ .... , -1 ,- ... ~ .. ,, ? ?~ ~~ ? ? ~ '"" 1~ ? , - ... ~ oo ,,????- .. ~-?,.~?a??~~,- ... ..,,~~?1,. ~ Skolnick (E-ma il}; D. Brooks Smith (E-mail); Loren Smith (E-mail); William Smith (Email) ; Ashley Snee {E-mail); To dd Snyder (E-mail); Mike Sommers (E-mail); Michael Song ( E-mail); Kevin M. St. John (E-mail); Emily Stimpson (E-ma il}; Aaron Streett (E-mail); Nea l Suit (E-mail); Jason Sutton (E-mail); Jef frey Sutton (E-mail); Scott A. Thompson (E-mail}; Victoria Toensing (E-ma il); Emin Toro (E-mail); Michael B. Treisman (E-mail) ; Sean P. Tren de (E-mail) ; Daniel E. Troy (E-m ail); Drew Tulumello {E-mail}; Donald P. Turoso (E-mail); Alex Vacca (E-ma il); William Van Alstyne (E-ma il); Ashley Varner (E-mail}; Helgi Walker (E-mail); Scott L. Watson (E-mail); Trevor Whetstone {E-mail); Don Willett (E-mail}; Solomon Wisenberg (E-ma il); Ellen Wray (E-ma il); Katie Zieg le r (E-mai l) Subj e ct: Update Dear friends, family , and colleagues, Sorry for t he impersonality of a mass email, but this is, after all, t he quickest way to get information to a large group of people. After two y ears at the Justi ce Department, t he ti me has come for me to join the ranks of private pract iti oners. My last day at t he Office of Legal Policy is October 1, and I'll start at the law firm of Wi ley, Rein & Fielding in early November. Meanwhile, I'll be spending a few weeks in --Before work starts , I can be reached at home - -or through the following lifetime email address : I'll send along my new cell number, work number, and work email and as soon as I get it. Best regards , Nathan EXT-18-2091-C-000156 007104-000848 Document ID: 0.7.19343 .5795 Dinh, Viet From : Dinh, Viet Sent : Tuesday , July 31, 200111:32 AM To: 'Bradford_A._Berenson@who.eop.gov '; ' Brett_M._Kavanaugh@who.eop.gov ' Subje ct : FW: Resume RESUME.WPD Attachments : As I noted on the message machine - Original Messag e-From: Sent: Monday , July 30, 2001 7:36 PM To: Dinh, Viet Subject: Resume Sorry about the delay, I was out of to wn most of last wee k for a conference . As requested, please find en closed a copy of my resume for your file. Thank you. EXT-18-2091-C-000157 007104-000878 Document ID: 0.7.19343.5559 Dinh, Viet From : Dinh, Viet Sent : Tuesday , July 31, 200111:32 AM To: 'Bradford_A._Berenson@who.eop.gov '; ' Brett_M._Kavanaugh@who.eop.gov ' Subje ct : FW: Resume RESUME.WPD Attachments : As I noted on the message machine - Original Messag e-From: Sent: Monday , July 30, 2001 7:36 PM To: Dinh, Viet Subject: Resume Sorry about the delay, I was out of to wn most of last wee k for a conference . As requested, please find en closed a copy of my resume for your file. Thank you. EXT-18-2091-C-000157 007104-000878 Document ID: 0.7.19343.5559 Bradfo rd_A ._Be renson@ w ho .eop.go v From : Bradford_A._ Berenson@who.eop .gov Sent : Tuesday, September 25, 200 111 :05 AM To : Newstead , Jennifer; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Timothy_ E._ Flanigan@who.eop .gov Subject : Interesting documentation from PFAW Attachmen t s: att 1.htm; PFAW- Clear And Present Danger.doc; pic28484 .pcx; pic0866 1.pcx; pic16SOS.pcx; pic05237 .pcx FYI ------ Forwarded by Bradford A. Berenson/WHO/EOP on 09/25/200111:03 AM---- (Embe dded image moved to file: pic28484.pcx) Matthew E. Smith (Embedded image moved to file: pic08661.pcx) 09/24/2001 05:08:24 PM (Embedded image moved to file: pic16505.pcx) Record Type: Record To: Bra dford A. Berenson/WHO/EOP@EOP cc: Subject: Interesting documentation from PFAW ------ Forwarded by Matthew E. Smith/WHO/ EOP on 09/24/200 1 05:08 PM------ (Embedded image moved to file: 09/24/200 1 04:57:39 PM pic05237.pcx) Record Type: Record To: sreynolds@signatureagency.com, Goeglein/WHO/ EOP@EOP, Matthew E. Smith/WHO/ EOP@EOP im cc: EXT-18-2091-C-000158 007104-000879 Document ID: 0.7.19343.5844 Bradfo rd_A ._Be renson@ w ho .eop.go v From : Bradford_A._ Berenson@who.eop .gov Sent : Tuesday, September 25, 200 111 :05 AM To : Newstead , Jennifer; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov; Timothy_ E._ Flanigan@who.eop .gov Subject : Interesting documentation from PFAW Attachmen t s: att 1.htm; PFAW- Clear And Present Danger.doc; pic28484 .pcx; pic0866 1.pcx; pic16SOS.pcx; pic05237 .pcx FYI ------ Forwarded by Bradford A. Berenson/WHO/EOP on 09/25/200111:03 AM---- (Embe dded image moved to file: pic28484.pcx) Matthew E. Smith (Embedded image moved to file: pic08661.pcx) 09/24/2001 05:08:24 PM (Embedded image moved to file: pic16505.pcx) Record Type: Record To: Bra dford A. Berenson/WHO/EOP@EOP cc: Subject: Interesting documentation from PFAW ------ Forwarded by Matthew E. Smith/WHO/ EOP on 09/24/200 1 05:08 PM------ (Embedded image moved to file: 09/24/200 1 04:57:39 PM pic05237.pcx) Record Type: Record To: sreynolds@signatureagency.com, Goeglein/WHO/ EOP@EOP, Matthew E. Smith/WHO/ EOP@EOP im cc: EXT-18-2091-C-000158 007104-000879 Document ID: 0.7.19343.5844 From our friends at People for the America n W ay. (Att ached in Microsoft Word.) Apparently , in 1996, it was a bad thing to have a litmus test on j udicial nominees. Hmmm. Wonder why? Well , attached is a lengthy dissertation that I think may come in handy in t he coming weeks and mont hs. KRD EXT-18-2091-C-000159 007104-000880 Document ID: 0.7.19343 .5844-00000 1 From our friends at People for the America n W ay. (Att ached in Microsoft Word.) Apparently , in 1996, it was a bad thing to have a litmus test on j udicial nominees. Hmmm. Wonder why? Well , attached is a lengthy dissertation that I think may come in handy in t he coming weeks and mont hs. KRD EXT-18-2091-C-000159 007104-000880 Document ID: 0.7.19343 .5844-00000 1 Clear And Present Danger: The New Far Right Judicial Litmus Test August, 1996 Copyright 1996 by People For the American Way. All rights reserved. Table of Contents ? Introduction ? The Development of the New Far Right Judicial Litmus Test ? Dangers of the New Far Right Judicial Litmus Test ? ? Crime and Gun Control ? Freedom of Religion ? Freedom from Discrimination ? Abortion and Reproductive Freedom End Notes Clear and Present Danger: The New Far Right Judicial Litmus Test On April 19, in a speech before the American Society of Newspaper Editors (ASNE), Senator Bob Dole aimed a full-scale political attack at President Clinton's federal judicial appointments. 1 Several months earlier, spurred by a ruling excluding evidence in a major narcotics case by a judge nominated by President Clinton (and approved without objection by Senator Dole and his colleagues), Senator Dole and others had initiated the attack, claiming that the President's nominations proved that he was "soft on crime."2 The attacks have continued after the ASNE speech, and are likely to be a key part of Dole's campaign strategy in the 1996 campaign. One significant aspect of the recent attacks on judicial nominees, however, has gone largely unnoticed. An important stimulus and source of ammunition for the attack has been far right EXT-18-2091-C-000160 007104-000881 Document ID: 0.7.19343.5844-000002 Clear And Present Danger: The New Far Right Judicial Litmus Test August, 1996 Copyright 1996 by People For the American Way. All rights reserved. Table of Contents ? Introduction ? The Development of the New Far Right Judicial Litmus Test ? Dangers of the New Far Right Judicial Litmus Test ? ? Crime and Gun Control ? Freedom of Religion ? Freedom from Discrimination ? Abortion and Reproductive Freedom End Notes Clear and Present Danger: The New Far Right Judicial Litmus Test On April 19, in a speech before the American Society of Newspaper Editors (ASNE), Senator Bob Dole aimed a full-scale political attack at President Clinton's federal judicial appointments. 1 Several months earlier, spurred by a ruling excluding evidence in a major narcotics case by a judge nominated by President Clinton (and approved without objection by Senator Dole and his colleagues), Senator Dole and others had initiated the attack, claiming that the President's nominations proved that he was "soft on crime."2 The attacks have continued after the ASNE speech, and are likely to be a key part of Dole's campaign strategy in the 1996 campaign. One significant aspect of the recent attacks on judicial nominees, however, has gone largely unnoticed. An important stimulus and source of ammunition for the attack has been far right EXT-18-2091-C-000160 007104-000881 Document ID: 0.7.19343.5844-000002 political groups and operatives, ranging from Paul Weyrich's Free Congress Foundation to Gary Bauer's Family Research Council. This includes individuals and organizations that have formed close connections with Senator Dole and other Republicans, worked with the Reagan and Bush administrations on judicial selection, and played an important role in the conservative "litmus test" philosophy used in picking judges in the 1980s. In 1996, the evidence from their articles, direct mail, and other pronouncements makes clear that their objectives go far beyond simply using judicial nominations as an issue in the election, or even returning to the Reagan-Bush litmus test. Instead, the agenda of these advocates is to impose a new far right litmus test on judicial nominations, avoiding what they perceive as the imperfections of the Reagan-Bush era and ensuring that new Supreme Court justices and other federal judges have "an established commitment to the conservative legal movement."3 This report will trace the development of the new far right judicial litmus test, beginning with its origins in the Reagan Administration and continuing with recent efforts to press it on lawmakers (including Senator Dole and the Clinton Administration). It will also examine some of the serious potential consequences of this campaign. Even on the issue of crime control, the facts demonstrate that the right-wing attacks are without basis and that the imposition of a far right judicial litmus test would actually harm crime control efforts. In addition, it would seriously harm the fundamental rights of all Americans in such areas as religious freedom, civil rights, and reproductive rights. For example, as a result of the right-wing litmus test used under the Reagan and Bush administrations, we have already seen: ? Court decisions striking down federal crime control efforts, such as the Gun Free School Zones Act, the Child Support Recovery Act, and parts of the federal arson law ? Virtual exclusion of African-Americans from nomination as federal judges under Reagan and Bush ? A court ruling that the Violence Against Women Act, enacted by a bipartisan congressional majority in 1994, is unconstitutional ? A Supreme Court decision authorizing significant burdens on religion, overturned by an act of Congress which itself has been challenged as unconstitutional ? A state ban on all abortions at public facilities, including even at private hospitals or clinics which lease space from public agencies ? A Supreme Court ruling that even outright lies by an employer can rebut a case of job discrimination unless the victim can provide direct evidence of bias With numerous vacancies expected in the near future on the federal courts, including the Supreme Court, imposition of a new right wing judicial litmus test threatens to cause even more harm in the future. The Development of the New Far Right Judicial Litmust Test At least since the Supreme Court's 1973 decision in Roe v. Wade, religious right and other conservatives have focused on the federal courts as both an important source of and a potential solution to their complaints on such issues as abortion, religion, and federal authority. While Presidents throughout history have sought to put their stamp on EXT-18-2091-C-000161 007104-000882 Document ID: 0.7.19343.5844-000002 political groups and operatives, ranging from Paul Weyrich's Free Congress Foundation to Gary Bauer's Family Research Council. This includes individuals and organizations that have formed close connections with Senator Dole and other Republicans, worked with the Reagan and Bush administrations on judicial selection, and played an important role in the conservative "litmus test" philosophy used in picking judges in the 1980s. In 1996, the evidence from their articles, direct mail, and other pronouncements makes clear that their objectives go far beyond simply using judicial nominations as an issue in the election, or even returning to the Reagan-Bush litmus test. Instead, the agenda of these advocates is to impose a new far right litmus test on judicial nominations, avoiding what they perceive as the imperfections of the Reagan-Bush era and ensuring that new Supreme Court justices and other federal judges have "an established commitment to the conservative legal movement."3 This report will trace the development of the new far right judicial litmus test, beginning with its origins in the Reagan Administration and continuing with recent efforts to press it on lawmakers (including Senator Dole and the Clinton Administration). It will also examine some of the serious potential consequences of this campaign. Even on the issue of crime control, the facts demonstrate that the right-wing attacks are without basis and that the imposition of a far right judicial litmus test would actually harm crime control efforts. In addition, it would seriously harm the fundamental rights of all Americans in such areas as religious freedom, civil rights, and reproductive rights. For example, as a result of the right-wing litmus test used under the Reagan and Bush administrations, we have already seen: ? Court decisions striking down federal crime control efforts, such as the Gun Free School Zones Act, the Child Support Recovery Act, and parts of the federal arson law ? Virtual exclusion of African-Americans from nomination as federal judges under Reagan and Bush ? A court ruling that the Violence Against Women Act, enacted by a bipartisan congressional majority in 1994, is unconstitutional ? A Supreme Court decision authorizing significant burdens on religion, overturned by an act of Congress which itself has been challenged as unconstitutional ? A state ban on all abortions at public facilities, including even at private hospitals or clinics which lease space from public agencies ? A Supreme Court ruling that even outright lies by an employer can rebut a case of job discrimination unless the victim can provide direct evidence of bias With numerous vacancies expected in the near future on the federal courts, including the Supreme Court, imposition of a new right wing judicial litmus test threatens to cause even more harm in the future. The Development of the New Far Right Judicial Litmust Test At least since the Supreme Court's 1973 decision in Roe v. Wade, religious right and other conservatives have focused on the federal courts as both an important source of and a potential solution to their complaints on such issues as abortion, religion, and federal authority. While Presidents throughout history have sought to put their stamp on EXT-18-2091-C-000161 007104-000882 Document ID: 0.7.19343.5844-000002 the federal judiciary, the Reagan and Bush administrations took this to a new level, imposing a "litmus test" selection philosophy that itself already has produced substantial harm and has set the stage for today's new far right litmus test. The Reagan-Bush Litmus Test The history of judicial selection under Presidents Reagan and Bush begins at least as early as the 1980 Republican Party platform. The platform called for the President to appoint: women and men who respect and reflect the values of the American people, and whose judicial philosophy is characterized by the highest regard for protecting the rights of law-abiding citizens . . . [and] who respect traditional values and the sanctity of innocent human life. Candidate Reagan embraced this philosophy, whether discussing abortion ("the sanctity of innocent human life") or other issues. "There must be new Justices on the Court," Reagan proclaimed, "who respect and reflect the values of the American majority. I pledge to make such appointments." Once elected, President Reagan systematically sought to fulfill his pledge. Both the Reagan and Bush administrations took a concerted approach of selecting judges to seek to ensure a particular ideological bent. These administrations pre-screened candidates for ideology, appointed youthful conservative judges, looked for academics with proven conservative track records, and rejected insufficiently "pure" nominees. The Reagan administration subjected every candidate for the bench to a series of interviews with a battery of Justice Department lawyers. Those that survived this winnowing process went on to meet with the Attorney General and undergo scrutiny by a special White House standing committee. While the content of these interviews is a matter of some dispute, Reagan administration officials acknowledged that specific legal precedents were discussed. In particular, administration officials commonly asked candidates their views on Roe v. Wade, which established a woman's constitutional right to reproductive privacy. Although Reagan Attorney General Ed Meese claimed no interest in how prospective judges would rule in specific cases,4 several judicial EXT-18-2091-C-000162 007104-000883 Document ID: 0.7.19343.5844-000002 the federal judiciary, the Reagan and Bush administrations took this to a new level, imposing a "litmus test" selection philosophy that itself already has produced substantial harm and has set the stage for today's new far right litmus test. The Reagan-Bush Litmus Test The history of judicial selection under Presidents Reagan and Bush begins at least as early as the 1980 Republican Party platform. The platform called for the President to appoint: women and men who respect and reflect the values of the American people, and whose judicial philosophy is characterized by the highest regard for protecting the rights of law-abiding citizens . . . [and] who respect traditional values and the sanctity of innocent human life. Candidate Reagan embraced this philosophy, whether discussing abortion ("the sanctity of innocent human life") or other issues. "There must be new Justices on the Court," Reagan proclaimed, "who respect and reflect the values of the American majority. I pledge to make such appointments." Once elected, President Reagan systematically sought to fulfill his pledge. Both the Reagan and Bush administrations took a concerted approach of selecting judges to seek to ensure a particular ideological bent. These administrations pre-screened candidates for ideology, appointed youthful conservative judges, looked for academics with proven conservative track records, and rejected insufficiently "pure" nominees. The Reagan administration subjected every candidate for the bench to a series of interviews with a battery of Justice Department lawyers. Those that survived this winnowing process went on to meet with the Attorney General and undergo scrutiny by a special White House standing committee. While the content of these interviews is a matter of some dispute, Reagan administration officials acknowledged that specific legal precedents were discussed. In particular, administration officials commonly asked candidates their views on Roe v. Wade, which established a woman's constitutional right to reproductive privacy. Although Reagan Attorney General Ed Meese claimed no interest in how prospective judges would rule in specific cases,4 several judicial EXT-18-2091-C-000162 007104-000883 Document ID: 0.7.19343.5844-000002 nominees stated they were asked directly about their views on abortion.5 One rejected candidate stated: "I guess most of us have accepted that we're not going to get these judgeships unless we're willing to commit to a particular position, which we think would be improper."6 The second element of the Reagan appointment strategy was to select young nominees. According to the ABA Journal: Since the enactment of the Circuit Courts of Appeals Act of 1891, no other president, starting with Benjamin Harrison, appointed appeals court judges with a younger average age than has Ronald Reagan during his second term. And no other president has appointed such a high proportion of appeals court judges under the age of 45 (more than one-third during the second term).7 This emphasis on youth contributed to the ideological makeup of the federal judiciary in two ways. First, it gave judges time to build a proven track record for a possible nomination to the Supreme Court, which could also occur at a relatively early age. Second, even those judges who were not elevated to the Supreme Court could be expected to serve lengthy terms, preserving a conservative judiciary for future decades. A third prong of the Reagan judicial selection strategy was the reliance on law professors. At least until the rejection of Robert Bork's Supreme Court nomination, Reagan judge-pickers regarded academic careers as a means of predicting likely performance on the bench. Since most professors must publish or perish, they often have a long paper trail demonstrating their ideological preferences. Finally, and perhaps most important, the Reagan administration consistently rejected even mainstream Republicans who failed to tow the ideological line. One nominee, first in her law school class and highly rated by the ABA, was rejected because she had supported the Equal Rights Amendment (as had the Republican party itself until 1980) and several conservative groups had falsely charged her as being a closet Democrat. Another candidate, a former Deputy Solicitor General, was rejected by Administration supporters for having made small donations to Planned Parenthood and the National Coalition to Ban Handguns; thirteen senators demanded his withdrawal, and the EXT-18-2091-C-000163 007104-000884 Document ID: 0.7.19343.5844-000002 nominees stated they were asked directly about their views on abortion.5 One rejected candidate stated: "I guess most of us have accepted that we're not going to get these judgeships unless we're willing to commit to a particular position, which we think would be improper."6 The second element of the Reagan appointment strategy was to select young nominees. According to the ABA Journal: Since the enactment of the Circuit Courts of Appeals Act of 1891, no other president, starting with Benjamin Harrison, appointed appeals court judges with a younger average age than has Ronald Reagan during his second term. And no other president has appointed such a high proportion of appeals court judges under the age of 45 (more than one-third during the second term).7 This emphasis on youth contributed to the ideological makeup of the federal judiciary in two ways. First, it gave judges time to build a proven track record for a possible nomination to the Supreme Court, which could also occur at a relatively early age. Second, even those judges who were not elevated to the Supreme Court could be expected to serve lengthy terms, preserving a conservative judiciary for future decades. A third prong of the Reagan judicial selection strategy was the reliance on law professors. At least until the rejection of Robert Bork's Supreme Court nomination, Reagan judge-pickers regarded academic careers as a means of predicting likely performance on the bench. Since most professors must publish or perish, they often have a long paper trail demonstrating their ideological preferences. Finally, and perhaps most important, the Reagan administration consistently rejected even mainstream Republicans who failed to tow the ideological line. One nominee, first in her law school class and highly rated by the ABA, was rejected because she had supported the Equal Rights Amendment (as had the Republican party itself until 1980) and several conservative groups had falsely charged her as being a closet Democrat. Another candidate, a former Deputy Solicitor General, was rejected by Administration supporters for having made small donations to Planned Parenthood and the National Coalition to Ban Handguns; thirteen senators demanded his withdrawal, and the EXT-18-2091-C-000163 007104-000884 Document ID: 0.7.19343.5844-000002 President obliged. Prominent Republican Philip Lacovara, who had been appointed twice by Reagan to serve on the District of Columbia Nominating Commission, was rejected on the grounds that he was "too liberal" and "not politically reliable,"8 based on his membership in two decidedly establishment organizations, the Washington Lawyers Committee for Civil Rights Under Law and the ABA Section on Individual Rights and Responsibilities. Lacovara wrote in the New York Times that in the past: political affiliation has provided a source of recognition, not a litmus test for philosophical orthodoxy. Over time, this pattern has created a Federal judiciary rich in diversity and perspective. Today the message is quite different: ideology is the primary qualification, and it is a candidate's demonstrated orthodoxy that brings his name before the President and ultimately before the Senate. Unique in our nation's history, the current Justice Department has been processing any judicial candidate through a series of officials whose primary duty is to assess the candidate's ideological purity.9 The Bush administration continued the demand for ideological purity in judicial nominations. Just four days after Bush's inauguration, White House Counsel C. Boyden Gray declared that Bush "will continue to appoint judges in the Reagan manner."10 The editorial pages of the Wall Street Journal praised the young conservative lawyers from the Federalist Society and elsewhere chosen to staff the process,11 and conservative commentators lauded President Bush's appointments. Clint Bolick, Vice President of the right-wing Institute for Justice, described the Bush appointment record as "a tour de force . . . . He has been even better than Reagan. Bush has made the judiciary more solidly conservative without spending a lot of political capital on the issue."12 Former Reagan Attorney General Ed Meese stated that his successors "have done an excellent job . . . . The results are the same as in the Reagan administration."13 In large measure, the Reagan-Bush litmus test proved quite successful. During the 1980s and into the 1990s, the country witnessed a major retreat by the federal courts from their traditional role of defenders of liberty in such areas as civil rights, religious freedom, and reproductive choice.14 As the late Justice Thurgood Marshall wrote in his final dissent on the Supreme Court, the Court majority was sending a "clear signal that scores of established constitutional liberties are now ripe for EXT-18-2091-C-000164 007104-000885 Document ID: 0.7.19343.5844-000002 President obliged. Prominent Republican Philip Lacovara, who had been appointed twice by Reagan to serve on the District of Columbia Nominating Commission, was rejected on the grounds that he was "too liberal" and "not politically reliable,"8 based on his membership in two decidedly establishment organizations, the Washington Lawyers Committee for Civil Rights Under Law and the ABA Section on Individual Rights and Responsibilities. Lacovara wrote in the New York Times that in the past: political affiliation has provided a source of recognition, not a litmus test for philosophical orthodoxy. Over time, this pattern has created a Federal judiciary rich in diversity and perspective. Today the message is quite different: ideology is the primary qualification, and it is a candidate's demonstrated orthodoxy that brings his name before the President and ultimately before the Senate. Unique in our nation's history, the current Justice Department has been processing any judicial candidate through a series of officials whose primary duty is to assess the candidate's ideological purity.9 The Bush administration continued the demand for ideological purity in judicial nominations. Just four days after Bush's inauguration, White House Counsel C. Boyden Gray declared that Bush "will continue to appoint judges in the Reagan manner."10 The editorial pages of the Wall Street Journal praised the young conservative lawyers from the Federalist Society and elsewhere chosen to staff the process,11 and conservative commentators lauded President Bush's appointments. Clint Bolick, Vice President of the right-wing Institute for Justice, described the Bush appointment record as "a tour de force . . . . He has been even better than Reagan. Bush has made the judiciary more solidly conservative without spending a lot of political capital on the issue."12 Former Reagan Attorney General Ed Meese stated that his successors "have done an excellent job . . . . The results are the same as in the Reagan administration."13 In large measure, the Reagan-Bush litmus test proved quite successful. During the 1980s and into the 1990s, the country witnessed a major retreat by the federal courts from their traditional role of defenders of liberty in such areas as civil rights, religious freedom, and reproductive choice.14 As the late Justice Thurgood Marshall wrote in his final dissent on the Supreme Court, the Court majority was sending a "clear signal that scores of established constitutional liberties are now ripe for EXT-18-2091-C-000164 007104-000885 Document ID: 0.7.19343.5844-000002 reconsideration" as a result of changes in the Court's "personnel." Marshall concluded that "[p]ower, not reason, is the new currency of the Court's decision-making."15 Notwithstanding their victories, however, far right conservatives clearly were not satisfied. The Justices That Got Away: Souter and Kennedy Despite the efforts of right-wing activists, implementation of the conservative judicial litmus test was by no means perfect. Even though they had the backing of conservative groups at the time of their nominations, Justices David Souter and Anthony Kennedy have exhibited much more moderate tendencies than anticipated. It is precisely these Justices' more moderate positions that have raised the ire of the far right. Following on the heels of the rejection of the highly controversial Robert Bork and the subsequent withdrawal of nominee Douglas Ginsburg, the Reagan administration opted for the less controversial Anthony Kennedy in 1987. Despite this clear attempt to avoid the furor surrounding the two previous nominees, Justice Kennedy's nomination still had strong conservative backing. Richard Willard, a "strong conservative" who served as an assistant attorney general under Reagan Attorney General Edwin Meese, "lobbied strenuously" for Kennedy's nomination, and Grover Joseph Rees, a former Reagan judge picker, "predicted confidently that Kennedy would not disappoint conservatives on prayer, abortion, and other social and moral issues."16 But in the 1990s, both Kennedy and Bush appointee David Souter refused to join efforts led by Justice Scalia and Chief Justice Rehnquist that could have overruled Roe v. Wade, as well as key precedents in such areas as church-state separation, and joined with or wrote opinions in cases overturning a Colorado anti-gay initiative and singlesex education at VMI. As a result, the right wing now calls Justice Kennedy "Reagan's Biggest Disappointment" and accuses him of having "gone with the flow of elite liberal opinion."17 Writing about Justice Souter, Gary Bauer, head of the right-wing activist Family Research Council, stated that "you may remember that some of these nominees were stealth nominees . . . The idea was that they were secretly much more conservative than anybody thought but they were being nominated so they could get through the Senate more easily. It ends up they were stealth nominees but the stealth was in the other direction."18 EXT-18-2091-C-000165 007104-000886 Document ID: 0.7.19343.5844-000002 reconsideration" as a result of changes in the Court's "personnel." Marshall concluded that "[p]ower, not reason, is the new currency of the Court's decision-making."15 Notwithstanding their victories, however, far right conservatives clearly were not satisfied. The Justices That Got Away: Souter and Kennedy Despite the efforts of right-wing activists, implementation of the conservative judicial litmus test was by no means perfect. Even though they had the backing of conservative groups at the time of their nominations, Justices David Souter and Anthony Kennedy have exhibited much more moderate tendencies than anticipated. It is precisely these Justices' more moderate positions that have raised the ire of the far right. Following on the heels of the rejection of the highly controversial Robert Bork and the subsequent withdrawal of nominee Douglas Ginsburg, the Reagan administration opted for the less controversial Anthony Kennedy in 1987. Despite this clear attempt to avoid the furor surrounding the two previous nominees, Justice Kennedy's nomination still had strong conservative backing. Richard Willard, a "strong conservative" who served as an assistant attorney general under Reagan Attorney General Edwin Meese, "lobbied strenuously" for Kennedy's nomination, and Grover Joseph Rees, a former Reagan judge picker, "predicted confidently that Kennedy would not disappoint conservatives on prayer, abortion, and other social and moral issues."16 But in the 1990s, both Kennedy and Bush appointee David Souter refused to join efforts led by Justice Scalia and Chief Justice Rehnquist that could have overruled Roe v. Wade, as well as key precedents in such areas as church-state separation, and joined with or wrote opinions in cases overturning a Colorado anti-gay initiative and singlesex education at VMI. As a result, the right wing now calls Justice Kennedy "Reagan's Biggest Disappointment" and accuses him of having "gone with the flow of elite liberal opinion."17 Writing about Justice Souter, Gary Bauer, head of the right-wing activist Family Research Council, stated that "you may remember that some of these nominees were stealth nominees . . . The idea was that they were secretly much more conservative than anybody thought but they were being nominated so they could get through the Senate more easily. It ends up they were stealth nominees but the stealth was in the other direction."18 EXT-18-2091-C-000165 007104-000886 Document ID: 0.7.19343.5844-000002 The failure of Justices Kennedy and Souter to live up to conservative expectations has clearly disappointed and outraged right-wing activists. At the same time, activists have lavished praise on justices like Clarence Thomas and Antonin Scalia, whose predicted right-wing views have been right on the mark. Even before this year's Presidential campaign began, these activists have demanded an even stricter ideological litmus test for federal judicial appointments. The Call for a New Right-Wing Litmus Test: "in the mold of [Clarence] Thomas" Writing primarily in publications and direct mail addressed to their allies and believers, particularly as the 1996 election has approached, the right wing has been calling for the implementation of an ideological litmus test that would be even more severe than under Presidents Reagan and Bush. For instance, after lambasting Justice Kennedy's decisions on separation of church and state, reproductive freedom, and civil rights, one conservative publication advised that "[t]here is a crucial lesson in this for conservatives--and for Bob Dole should he become President: It is not enough for a potential judicial nominee to have a record on key issues that accords with the proper role of the courts. The potential nominee must also give some evidence of having the courage of his or her convictions--ideally, a record of sustained consistency."19 A more specific blueprint for a new right-wing litmus test was spelled out in 1995 in the Heritage Foundation magazine Policy Review, written by a former Reagan-Bush Justice Department official in one of the offices with major responsibility for judicial nominations during the 1980s. Impelled by the "prospects in 1996 for a new president inclined to appoint conservative justices," the article set out criteria and guidelines to help ensure that future nominees be "in the mold of [Justice] Thomas rather than [Justice] Souter."20 Future nominees "should show an established commitment to the conservative legal movement," evidenced by active participation in and "associations" with the conservative legal movement and "contribution to conservative legal thought" as in the case of Clarence Thomas.21 A nominee "should have been tested in Washington at some point in his career," as Thomas had been tested and "challenged by the liberal legal establishment."22 Based on such reliable indicators of commitment to conservatism, individuals could be nominated who would be "committed to seeking the original meaning of the Constitution"23 and would join "the pantheon of truly great Supreme Court justices," including Justices Scalia and Thomas.24 EXT-18-2091-C-000166 007104-000887 Document ID: 0.7.19343.5844-000002 The failure of Justices Kennedy and Souter to live up to conservative expectations has clearly disappointed and outraged right-wing activists. At the same time, activists have lavished praise on justices like Clarence Thomas and Antonin Scalia, whose predicted right-wing views have been right on the mark. Even before this year's Presidential campaign began, these activists have demanded an even stricter ideological litmus test for federal judicial appointments. The Call for a New Right-Wing Litmus Test: "in the mold of [Clarence] Thomas" Writing primarily in publications and direct mail addressed to their allies and believers, particularly as the 1996 election has approached, the right wing has been calling for the implementation of an ideological litmus test that would be even more severe than under Presidents Reagan and Bush. For instance, after lambasting Justice Kennedy's decisions on separation of church and state, reproductive freedom, and civil rights, one conservative publication advised that "[t]here is a crucial lesson in this for conservatives--and for Bob Dole should he become President: It is not enough for a potential judicial nominee to have a record on key issues that accords with the proper role of the courts. The potential nominee must also give some evidence of having the courage of his or her convictions--ideally, a record of sustained consistency."19 A more specific blueprint for a new right-wing litmus test was spelled out in 1995 in the Heritage Foundation magazine Policy Review, written by a former Reagan-Bush Justice Department official in one of the offices with major responsibility for judicial nominations during the 1980s. Impelled by the "prospects in 1996 for a new president inclined to appoint conservative justices," the article set out criteria and guidelines to help ensure that future nominees be "in the mold of [Justice] Thomas rather than [Justice] Souter."20 Future nominees "should show an established commitment to the conservative legal movement," evidenced by active participation in and "associations" with the conservative legal movement and "contribution to conservative legal thought" as in the case of Clarence Thomas.21 A nominee "should have been tested in Washington at some point in his career," as Thomas had been tested and "challenged by the liberal legal establishment."22 Based on such reliable indicators of commitment to conservatism, individuals could be nominated who would be "committed to seeking the original meaning of the Constitution"23 and would join "the pantheon of truly great Supreme Court justices," including Justices Scalia and Thomas.24 EXT-18-2091-C-000166 007104-000887 Document ID: 0.7.19343.5844-000002 As right-wing columnist and activist Don Feder more bluntly put it in a pointed "[m]emo to the next Republican president," be "damned sure you're putting a Scalia clone on the bench, and not another Kennedy."25 The FRC's Gary Bauer has related the judicial litmus test issue directly to the subject closest to the hearts of religious right activists in the Republican party this summer: the party's platform plank on abortion. In a letter to supporters last December, Bauer turned to history in defending against anticipated efforts to water down the anti-abortion plank. He noted specifically that beginning in 1980, the platform called for "the appointment of judges at all levels who respect traditional family values and the sanctity of human life," and that this "language has been part of the Republican platform ever since." Bauer exhorted his supporters to help retain the platform language because it will "help ensure that the next Republican President will appoint pro-life judges."26 Interestingly, while tolerance clauses and other possible changes have been discussed as genuine possibilities by Senator Dole and others in the party, neither Dole nor any other official has even hinted at any change in the provisions concerning appointment of judges.27 Bauer's ambitions for the new far right litmus test go even further, however. As he told a radio audience this May, the "pro-family movement needs to become so strong that whoever is President, they will get the clear strong unambiguous message that they better put more traditional judges on the Court or they're going to face a major battle with us in any confirmation proceedings."28 In fact, right-wing activists have already had a serious effect on judicial nominations during the Clinton Administration, and presidential candidate Dole so far appears to be following their wishes on judicial selection. The Far Right Flexes its Muscles and Influence Conservative activists have already begun to fulfill Bauer's prescription, particularly after Republicans took control of the Senate in 1994. Reports indicate that a number of candidates for Clinton judgeship nominations were dropped by the Administration itself because of conservative ideological objections, such as a state judge who had committed the unpardonable right-wing sin of awarding child custody to a male partner in one case. A Clinton Justice Department official has admitted that the Administration "steered clear of a few people who might have been fabulous judges, but who would have provoked a fight that we were likely to lose."29 EXT-18-2091-C-000167 007104-000888 Document ID: 0.7.19343.5844-000002 As right-wing columnist and activist Don Feder more bluntly put it in a pointed "[m]emo to the next Republican president," be "damned sure you're putting a Scalia clone on the bench, and not another Kennedy."25 The FRC's Gary Bauer has related the judicial litmus test issue directly to the subject closest to the hearts of religious right activists in the Republican party this summer: the party's platform plank on abortion. In a letter to supporters last December, Bauer turned to history in defending against anticipated efforts to water down the anti-abortion plank. He noted specifically that beginning in 1980, the platform called for "the appointment of judges at all levels who respect traditional family values and the sanctity of human life," and that this "language has been part of the Republican platform ever since." Bauer exhorted his supporters to help retain the platform language because it will "help ensure that the next Republican President will appoint pro-life judges."26 Interestingly, while tolerance clauses and other possible changes have been discussed as genuine possibilities by Senator Dole and others in the party, neither Dole nor any other official has even hinted at any change in the provisions concerning appointment of judges.27 Bauer's ambitions for the new far right litmus test go even further, however. As he told a radio audience this May, the "pro-family movement needs to become so strong that whoever is President, they will get the clear strong unambiguous message that they better put more traditional judges on the Court or they're going to face a major battle with us in any confirmation proceedings."28 In fact, right-wing activists have already had a serious effect on judicial nominations during the Clinton Administration, and presidential candidate Dole so far appears to be following their wishes on judicial selection. The Far Right Flexes its Muscles and Influence Conservative activists have already begun to fulfill Bauer's prescription, particularly after Republicans took control of the Senate in 1994. Reports indicate that a number of candidates for Clinton judgeship nominations were dropped by the Administration itself because of conservative ideological objections, such as a state judge who had committed the unpardonable right-wing sin of awarding child custody to a male partner in one case. A Clinton Justice Department official has admitted that the Administration "steered clear of a few people who might have been fabulous judges, but who would have provoked a fight that we were likely to lose."29 EXT-18-2091-C-000167 007104-000888 Document ID: 0.7.19343.5844-000002 The influence of far right activists' views on Senator Dole so far has been even more pronounced. Although Dole claimed in April that he would not employ a litmus test, and observers have noted that judges he recommended to Presidents Reagan and Bush were relatively moderate, his specific actions and campaign pronouncements clearly signal a willingness to comply with far right demands in this area. "When I am president," Dole proclaimed in May, "only conservative judges need apply."30 Dole identified Chief Justice Rehnquist, who is in many ways the leader of the Court's right wing, as his own judicial "ideal." 31 He has pledged to fulfill the far right's often-expressed crusade32 to eliminate the role of the American Bar Association in reviewing the qualifications of judicial nominees.33 Almost a year before his ASNE speech, Dole signed a fund-raising letter for the most active right-wing group on judicial nominations -- the Judicial Selection Monitoring Project of the right-wing Free Congress Foundation -- endorsing JSMP and attacking many of the very same judges he criticized in his speech and others as "handpicked liberal activists" seeking to "subvert the will of the voters."34 And Dole's rhetoric in discussing how he would appoint judges -- which refers to the need for judges who are "faithful to the text of the Constitution" and to conduct a "thorough screening" of candidates' "associations and past decision-making"35 -- echoes the advice of last year's Heritage article on avoiding nominees like Justice Souter. In fact, during the same Larry King interview in July in which he announced that a pro-choice Republican would deliver the convention keynote speech, Dole reassured the far right on judges. Notwithstanding his earlier disavowal of litmus tests, Dole proclaimed that he would have "litmus tests for all judges" to ensure that they are "tough on crime" and "interpret the Constitution, not try to amend it." Asked specifically about whether his judicial nominees would have to be anti-abortion, Dole stated, "that's going to be probably part of our platform -- they want us to consider that, it ought to be a consideration."36 If actions speak louder than words in this area, moreover, Dole's actions speak loudly indeed. During the first six months of 1996, including all of Dole's time as majority leader, not a single Clinton judicial nominee was approved by the Senate.37 As Attorney General Reno pointed out, this not only delayed court cases and hurt the administration of justice across the country, but was also completely different than the situation in past election years such as 1992, when 66 Republican-nominated judges were confirmed by a Democratic-controlled Senate. In the weeks EXT-18-2091-C-000168 007104-000889 Document ID: 0.7.19343.5844-000002 The influence of far right activists' views on Senator Dole so far has been even more pronounced. Although Dole claimed in April that he would not employ a litmus test, and observers have noted that judges he recommended to Presidents Reagan and Bush were relatively moderate, his specific actions and campaign pronouncements clearly signal a willingness to comply with far right demands in this area. "When I am president," Dole proclaimed in May, "only conservative judges need apply."30 Dole identified Chief Justice Rehnquist, who is in many ways the leader of the Court's right wing, as his own judicial "ideal." 31 He has pledged to fulfill the far right's often-expressed crusade32 to eliminate the role of the American Bar Association in reviewing the qualifications of judicial nominees.33 Almost a year before his ASNE speech, Dole signed a fund-raising letter for the most active right-wing group on judicial nominations -- the Judicial Selection Monitoring Project of the right-wing Free Congress Foundation -- endorsing JSMP and attacking many of the very same judges he criticized in his speech and others as "handpicked liberal activists" seeking to "subvert the will of the voters."34 And Dole's rhetoric in discussing how he would appoint judges -- which refers to the need for judges who are "faithful to the text of the Constitution" and to conduct a "thorough screening" of candidates' "associations and past decision-making"35 -- echoes the advice of last year's Heritage article on avoiding nominees like Justice Souter. In fact, during the same Larry King interview in July in which he announced that a pro-choice Republican would deliver the convention keynote speech, Dole reassured the far right on judges. Notwithstanding his earlier disavowal of litmus tests, Dole proclaimed that he would have "litmus tests for all judges" to ensure that they are "tough on crime" and "interpret the Constitution, not try to amend it." Asked specifically about whether his judicial nominees would have to be anti-abortion, Dole stated, "that's going to be probably part of our platform -- they want us to consider that, it ought to be a consideration."36 If actions speak louder than words in this area, moreover, Dole's actions speak loudly indeed. During the first six months of 1996, including all of Dole's time as majority leader, not a single Clinton judicial nominee was approved by the Senate.37 As Attorney General Reno pointed out, this not only delayed court cases and hurt the administration of justice across the country, but was also completely different than the situation in past election years such as 1992, when 66 Republican-nominated judges were confirmed by a Democratic-controlled Senate. In the weeks EXT-18-2091-C-000168 007104-000889 Document ID: 0.7.19343.5844-000002 before Senator Dole resigned as majority leader, rumors suggested that he might be willing to break the logjam. Groups like JSMP howled in protest38. The result: not a single confirmation until July, when minority leader Tom Daschle negotiated a partial confirmation resumption with Dole's successor Trent Lott, after Dole left the Senate.39 Lott has been criticized harshly for that compromise by Tom Jipping of the JSMP, who declared that "Mr. Lott and Mr. Hatch make Mr. Dole look positively principled."40 The most recent example of far right influence in this area is found in the draft Republican Party platform, released on August 5. The draft platform includes the traditional litmus test language supported by activists like Gary Bauer, as well as a repeat of Dole's pledge that upon his election, "only conservative judges need apply."41 But the draft platform goes even further. It specifically incorporates the radical proposals of Pat Buchanan and others that the federal courts should be stripped of jurisdiction over selected subjects and that the Constitution should be amended to eliminate life tenure for federal judges and require their "periodic reconfirmation."42 These platform provisions would seriously undermine the fundamental principle of judicial independence, which Chief Justice Rehnquist himself has characterized as "one of the crown jewels of our system of government"43 which should not be changed by threatening judges with removal because of their rulings. Not surprisingly, religious right and other activists have rewarded Dole's fealty on this issue by implicitly (if not explicitly) endorsing him and opposing Clinton, and urging their followers to do the same, for the sake of the courts. For example, in June, Christian Coalition founder Pat Robertson exhorted "Christian voters" to become involved in the presidential election in order to get "conservative Supreme Court judges put on the Court, which could indeed reverse Roe v. Wade" as well as decisions on school prayer and other subjects.44 An article by the Institute for Justice's Clint Bolick warned that "if Clinton wins again, one appointment could topple [the] highest court's conservative tilt."45 Jipping told his TV audience that "President Reagan gave us Justice Antonin Scalia and President Bush gave us Justice Clarence Thomas", but "President Clinton will never give us anything that comes close."46 Right-wing activists are clearly correct in at least one respect: the stakes are high indeed. Numerous vacancies are expected on the federal courts over the next several years, including on the Supreme Court. EXT-18-2091-C-000169 007104-000890 Document ID: 0.7.19343.5844-000002 before Senator Dole resigned as majority leader, rumors suggested that he might be willing to break the logjam. Groups like JSMP howled in protest38. The result: not a single confirmation until July, when minority leader Tom Daschle negotiated a partial confirmation resumption with Dole's successor Trent Lott, after Dole left the Senate.39 Lott has been criticized harshly for that compromise by Tom Jipping of the JSMP, who declared that "Mr. Lott and Mr. Hatch make Mr. Dole look positively principled."40 The most recent example of far right influence in this area is found in the draft Republican Party platform, released on August 5. The draft platform includes the traditional litmus test language supported by activists like Gary Bauer, as well as a repeat of Dole's pledge that upon his election, "only conservative judges need apply."41 But the draft platform goes even further. It specifically incorporates the radical proposals of Pat Buchanan and others that the federal courts should be stripped of jurisdiction over selected subjects and that the Constitution should be amended to eliminate life tenure for federal judges and require their "periodic reconfirmation."42 These platform provisions would seriously undermine the fundamental principle of judicial independence, which Chief Justice Rehnquist himself has characterized as "one of the crown jewels of our system of government"43 which should not be changed by threatening judges with removal because of their rulings. Not surprisingly, religious right and other activists have rewarded Dole's fealty on this issue by implicitly (if not explicitly) endorsing him and opposing Clinton, and urging their followers to do the same, for the sake of the courts. For example, in June, Christian Coalition founder Pat Robertson exhorted "Christian voters" to become involved in the presidential election in order to get "conservative Supreme Court judges put on the Court, which could indeed reverse Roe v. Wade" as well as decisions on school prayer and other subjects.44 An article by the Institute for Justice's Clint Bolick warned that "if Clinton wins again, one appointment could topple [the] highest court's conservative tilt."45 Jipping told his TV audience that "President Reagan gave us Justice Antonin Scalia and President Bush gave us Justice Clarence Thomas", but "President Clinton will never give us anything that comes close."46 Right-wing activists are clearly correct in at least one respect: the stakes are high indeed. Numerous vacancies are expected on the federal courts over the next several years, including on the Supreme Court. EXT-18-2091-C-000169 007104-000890 Document ID: 0.7.19343.5844-000002 Imposition of a new far right judicial litmus test, no matter who is President, risks serious damage to the rights and the safety of all Americans. Dangers of the New Far Right Judicial Litmus Test Right-wing activists, echoed by Senator Dole and other conservative political leaders, claim that their recipe for judicial selection is necessary to reverse the harm to crime control efforts allegedly caused by President Clinton's judicial nominations. In fact, the real danger comes from the critics themselves. Not only do the facts belie their attacks, but the record shows that in the area of crime control, as well as with respect to such areas as religious freedom, reproductive choice, and civil rights, the new far right judicial litmus test threatens all Americans. CRIME AND GUN CONTROL A central theme of recent attacks on federal judges nominated by President Clinton, both by far right advocacy groups and by Senator Dole and other Republican spokesmen, has been the charge that they are "soft on crime" compared with Reagan-Bush judges. In fact, almost precisely the opposite is true. The record of court decisions demonstrates that the "soft on crime" charge is fallacious. In addition, Reagan-Bush appointees to the Supreme Court and the lower courts have seriously hurt efforts to combat crime and gun-related violence by striking down important federal anti-crime laws. Imposition of a new far right judicial litmus test threatens to make the problem even worse in the future. The Far Right "Crime Control" Attack on Clinton Judges In his speech before the American Society of Newspaper Editors on April 19, 1996, Senator Dole spelled out in detail his attack on President Clinton's judicial nominees as allegedly soft on crime. Describing Americans' confidence in their courts and trust in the rule of law as perhaps the most important issue of the presidential campaign, Dole identified a number of Clinton's appointees, including New York Judge Harold Baer, Virginia Judge Leonie Brinkema, Third Circuit Judge H. Lee Sarokin, and Eleventh Circuit Judge Rosemary Barkett, as forming EXT-18-2091-C-000170 007104-000891 Document ID: 0.7.19343.5844-000002 Imposition of a new far right judicial litmus test, no matter who is President, risks serious damage to the rights and the safety of all Americans. Dangers of the New Far Right Judicial Litmus Test Right-wing activists, echoed by Senator Dole and other conservative political leaders, claim that their recipe for judicial selection is necessary to reverse the harm to crime control efforts allegedly caused by President Clinton's judicial nominations. In fact, the real danger comes from the critics themselves. Not only do the facts belie their attacks, but the record shows that in the area of crime control, as well as with respect to such areas as religious freedom, reproductive choice, and civil rights, the new far right judicial litmus test threatens all Americans. CRIME AND GUN CONTROL A central theme of recent attacks on federal judges nominated by President Clinton, both by far right advocacy groups and by Senator Dole and other Republican spokesmen, has been the charge that they are "soft on crime" compared with Reagan-Bush judges. In fact, almost precisely the opposite is true. The record of court decisions demonstrates that the "soft on crime" charge is fallacious. In addition, Reagan-Bush appointees to the Supreme Court and the lower courts have seriously hurt efforts to combat crime and gun-related violence by striking down important federal anti-crime laws. Imposition of a new far right judicial litmus test threatens to make the problem even worse in the future. The Far Right "Crime Control" Attack on Clinton Judges In his speech before the American Society of Newspaper Editors on April 19, 1996, Senator Dole spelled out in detail his attack on President Clinton's judicial nominees as allegedly soft on crime. Describing Americans' confidence in their courts and trust in the rule of law as perhaps the most important issue of the presidential campaign, Dole identified a number of Clinton's appointees, including New York Judge Harold Baer, Virginia Judge Leonie Brinkema, Third Circuit Judge H. Lee Sarokin, and Eleventh Circuit Judge Rosemary Barkett, as forming EXT-18-2091-C-000170 007104-000891 Document ID: 0.7.19343.5844-000002 a judicial "Hall of Shame" characterized by a willingness "to use technicalities to overturn death sentences for brutal murderers" and by an "outright hostility to law enforcement."47 Senator Dole's assault has been followed by similar accusations by other conservative political figures, including no less than three floor speeches by Senate Judiciary Committee Chairman Orrin Hatch. As discussed previously, these political attacks were, at the very least, clearly inspired by similar attacks from far right advocacy groups. For example, the fund-raising letter signed by Dole almost a year before his 1996 speech for the Judicial Selection Monitoring Project of the far right Free Congress Foundation specifically criticized Judges Barkett and Sarokin as well as other Clinton "activist judges," attacking their "liberal bias" on issues like "crime prevention."48 The same letter contained strong endorsements of JSMP by both Senator Dole and Senator Hatch. These attacks generally follow a common pattern. They begin with a gruesome description of the facts in individual criminal cases, leaving no room for doubt as to the guilt of the criminal defendants. They then proceed to describe in extremely derogatory terms how Clintonappointed judges have either reversed defendants' convictions or reduced their sentences. On the basis of a very small number of such anecdotal cases, it is concluded that Clinton's judicial appointees are liberal activists who regularly set free murderers, drug dealers, and other criminals, in contrast to Republican-appointed judges. The facts, however, belie these attacks on Clinton's judicial nominees. The attacks are contradicted by the voting record of Senator Dole and his colleagues. The entire Senate, including Senators Dole and Hatch, has approved unanimously 182 of Clinton's 185 appointments to the federal Courts of Appeals and District Courts. Included in the group of unanimously approved appointees are Judges Baer and Brinkema, both of whom Dole personally singled out for criticism, and North Carolina Judge James Beaty, whom Orrin Hatch and a number of far right advocacy groups have criticized.49 Indeed, Republican Senator Jesse Helms "lavishly praised" Judge Beaty during his nomination as "the kind of judge who applies the law as it is written and rules on the facts as they are presented."50 As for Judge Barkett, another member of Dole's judicial "Hall of Shame" and a frequent target for extremist conservatives, six of the seven criminal opinions for which she has been criticized during her tenure on the Eleventh Circuit were unanimous EXT-18-2091-C-000171 007104-000892 Document ID: 0.7.19343.5844-000002 a judicial "Hall of Shame" characterized by a willingness "to use technicalities to overturn death sentences for brutal murderers" and by an "outright hostility to law enforcement."47 Senator Dole's assault has been followed by similar accusations by other conservative political figures, including no less than three floor speeches by Senate Judiciary Committee Chairman Orrin Hatch. As discussed previously, these political attacks were, at the very least, clearly inspired by similar attacks from far right advocacy groups. For example, the fund-raising letter signed by Dole almost a year before his 1996 speech for the Judicial Selection Monitoring Project of the far right Free Congress Foundation specifically criticized Judges Barkett and Sarokin as well as other Clinton "activist judges," attacking their "liberal bias" on issues like "crime prevention."48 The same letter contained strong endorsements of JSMP by both Senator Dole and Senator Hatch. These attacks generally follow a common pattern. They begin with a gruesome description of the facts in individual criminal cases, leaving no room for doubt as to the guilt of the criminal defendants. They then proceed to describe in extremely derogatory terms how Clintonappointed judges have either reversed defendants' convictions or reduced their sentences. On the basis of a very small number of such anecdotal cases, it is concluded that Clinton's judicial appointees are liberal activists who regularly set free murderers, drug dealers, and other criminals, in contrast to Republican-appointed judges. The facts, however, belie these attacks on Clinton's judicial nominees. The attacks are contradicted by the voting record of Senator Dole and his colleagues. The entire Senate, including Senators Dole and Hatch, has approved unanimously 182 of Clinton's 185 appointments to the federal Courts of Appeals and District Courts. Included in the group of unanimously approved appointees are Judges Baer and Brinkema, both of whom Dole personally singled out for criticism, and North Carolina Judge James Beaty, whom Orrin Hatch and a number of far right advocacy groups have criticized.49 Indeed, Republican Senator Jesse Helms "lavishly praised" Judge Beaty during his nomination as "the kind of judge who applies the law as it is written and rules on the facts as they are presented."50 As for Judge Barkett, another member of Dole's judicial "Hall of Shame" and a frequent target for extremist conservatives, six of the seven criminal opinions for which she has been criticized during her tenure on the Eleventh Circuit were unanimous EXT-18-2091-C-000171 007104-000892 Document ID: 0.7.19343.5844-000002 decisions, with one or more Reagan-Bush appointees joining Barkett in all but one of those cases.51 Furthermore, as a member of the Florida Supreme Court, Barkett voted to affirm the death penalty in over 200 cases, and she voted to uphold a state contraband forfeiture law for drug traffickers which a lower court had declared unconstitutional.52 Judge Barkett received praise and support at her nomination hearing from conservative Senator Connie Mack.53 Even Judge Sarokin, whose recent resignation was cited as a triumph by the Dole campaign,54 received the approval of a number of conservative senators, such as Senator Alan Simpson.55 This discrepancy between rhetoric and reality highlights an even deeper methodological flaw in conservative attacks on the Clinton judiciary: the anecdotal approach of choosing a few criminal law cases with grisly facts and criticizing a judge who reversed a conviction or a death sentence due to legal error by police or prosecutors. Using that approach, any President in the history of the United States could be characterized as soft on crime, and even the most hard-line judge could end up in a judicial "Hall of Shame." Consider the following cases: ? ? In Quartararo v. Fogg and Quartararo v. Mantello, two brothers were convicted of the brutal murder of a thirteen year old boy. The victim caught the brothers and two other men stealing a bicycle. They proceeded to stomp the child to death and stifle his screams by pushing stones down his throat. Even though all four men were convicted in state court, and all their appeals were rejected, the U.S. District Court for the Eastern District of New York granted habeas corpus and freed them on $3,000 bail on the basis of socalled "troubling inconsistencies" in the story told by law enforcement officials. Were these decisions issued by "liberal" Clinton appointees? No; the decision in both cases was written by Judge Richard Korman, a Reagan appointee.56 In Joubert v. Hopkins, the death sentence of a three-time confessed child murderer was overturned. One of the victims was bound, gagged, and placed in the trunk of the defendant's car. He was later removed from the trunk, stripped to his underwear and pinned to the ground with a knife when he tried to roll away. The boy was then slashed and stabbed to death even as he begged for his life. Another of the victims suffered a similar fate, and his corpse was found with a drawing of a plant cut into the torso. The defendant confessed to both of these murders, as well as a third. EXT-18-2091-C-000172 007104-000893 Document ID: 0.7.19343.5844-000002 decisions, with one or more Reagan-Bush appointees joining Barkett in all but one of those cases.51 Furthermore, as a member of the Florida Supreme Court, Barkett voted to affirm the death penalty in over 200 cases, and she voted to uphold a state contraband forfeiture law for drug traffickers which a lower court had declared unconstitutional.52 Judge Barkett received praise and support at her nomination hearing from conservative Senator Connie Mack.53 Even Judge Sarokin, whose recent resignation was cited as a triumph by the Dole campaign,54 received the approval of a number of conservative senators, such as Senator Alan Simpson.55 This discrepancy between rhetoric and reality highlights an even deeper methodological flaw in conservative attacks on the Clinton judiciary: the anecdotal approach of choosing a few criminal law cases with grisly facts and criticizing a judge who reversed a conviction or a death sentence due to legal error by police or prosecutors. Using that approach, any President in the history of the United States could be characterized as soft on crime, and even the most hard-line judge could end up in a judicial "Hall of Shame." Consider the following cases: ? ? In Quartararo v. Fogg and Quartararo v. Mantello, two brothers were convicted of the brutal murder of a thirteen year old boy. The victim caught the brothers and two other men stealing a bicycle. They proceeded to stomp the child to death and stifle his screams by pushing stones down his throat. Even though all four men were convicted in state court, and all their appeals were rejected, the U.S. District Court for the Eastern District of New York granted habeas corpus and freed them on $3,000 bail on the basis of socalled "troubling inconsistencies" in the story told by law enforcement officials. Were these decisions issued by "liberal" Clinton appointees? No; the decision in both cases was written by Judge Richard Korman, a Reagan appointee.56 In Joubert v. Hopkins, the death sentence of a three-time confessed child murderer was overturned. One of the victims was bound, gagged, and placed in the trunk of the defendant's car. He was later removed from the trunk, stripped to his underwear and pinned to the ground with a knife when he tried to roll away. The boy was then slashed and stabbed to death even as he begged for his life. Another of the victims suffered a similar fate, and his corpse was found with a drawing of a plant cut into the torso. The defendant confessed to both of these murders, as well as a third. EXT-18-2091-C-000172 007104-000893 Document ID: 0.7.19343.5844-000002 ? ? ? He also said that he would kill again if he were ever set free. Nevertheless, the U.S. District Court for the District of Nebraska vacated the defendant's death sentence based on the legal technicality that the phrase "exceptional depravity" as used in the death penalty statute was too vague. This decision was issued by Judge William Cambridge, a Reagan appointee.57 Judge Cambridge was reversed and the death sentence was reinstated on appeal. The deciding vote to do so was cast by Eighth Circuit Judge Diane Murphy, a Clinton appointee.58 In Reeves v. Hopkins, a double murderer's death sentence was overturned. The defendant in this case was convicted of stabbing to death his cousin and her houseguest while he was trying to rape them. Even though the Nebraska Supreme Court twice rejected appeals in this case, the U.S. District Court for the District of Nebraska granted a petition for habeas corpus on the basis of a conclusion that the Nebraska Supreme Court had improperly weighed the aggravating and mitigating circumstances involved in the case. Judge Richard Kopf, a Bush appointee, wrote the decision.59 In United States v. Chen, the defendants were being prosecuted for crimes related to the seizure of 1,000 pounds of heroin, the largest heroin bust of all time. The trial court judge suppressed key pieces of evidence and released two defendants on bail. Was this another example of Clinton's Judge Harold Baer at work? No; the trial judge was Vaughn Walker, nominated by President Bush.60 In Hitchcock v. Dugger, an appellate judge wrote an opinion reversing the death sentence of a Florida man convicted of strangling his 13-year-old niece. The slayer had confessed that he killed the girl to prevent her from telling her parents that the defendant had statutorily raped her. Although the jury sentenced him to death and the judge agreed, the sentence was reversed because the appellate court found that several excuses offered by the killer were not satisfactorily considered, including even the claim that the murderer was allegedly a fond and affectionate uncle. Was this another case where Judge Barkett overruled a Florida death sentence? No; it was a decision reversing the Florida Supreme Court by Reagan-appointed Supreme Court Justice Antonin Scalia, joined by Reagan appointees Sandra Day O'Connor and Chief Justice Rehnquist.61 EXT-18-2091-C-000173 007104-000894 Document ID: 0.7.19343.5844-000002 ? ? ? He also said that he would kill again if he were ever set free. Nevertheless, the U.S. District Court for the District of Nebraska vacated the defendant's death sentence based on the legal technicality that the phrase "exceptional depravity" as used in the death penalty statute was too vague. This decision was issued by Judge William Cambridge, a Reagan appointee.57 Judge Cambridge was reversed and the death sentence was reinstated on appeal. The deciding vote to do so was cast by Eighth Circuit Judge Diane Murphy, a Clinton appointee.58 In Reeves v. Hopkins, a double murderer's death sentence was overturned. The defendant in this case was convicted of stabbing to death his cousin and her houseguest while he was trying to rape them. Even though the Nebraska Supreme Court twice rejected appeals in this case, the U.S. District Court for the District of Nebraska granted a petition for habeas corpus on the basis of a conclusion that the Nebraska Supreme Court had improperly weighed the aggravating and mitigating circumstances involved in the case. Judge Richard Kopf, a Bush appointee, wrote the decision.59 In United States v. Chen, the defendants were being prosecuted for crimes related to the seizure of 1,000 pounds of heroin, the largest heroin bust of all time. The trial court judge suppressed key pieces of evidence and released two defendants on bail. Was this another example of Clinton's Judge Harold Baer at work? No; the trial judge was Vaughn Walker, nominated by President Bush.60 In Hitchcock v. Dugger, an appellate judge wrote an opinion reversing the death sentence of a Florida man convicted of strangling his 13-year-old niece. The slayer had confessed that he killed the girl to prevent her from telling her parents that the defendant had statutorily raped her. Although the jury sentenced him to death and the judge agreed, the sentence was reversed because the appellate court found that several excuses offered by the killer were not satisfactorily considered, including even the claim that the murderer was allegedly a fond and affectionate uncle. Was this another case where Judge Barkett overruled a Florida death sentence? No; it was a decision reversing the Florida Supreme Court by Reagan-appointed Supreme Court Justice Antonin Scalia, joined by Reagan appointees Sandra Day O'Connor and Chief Justice Rehnquist.61 EXT-18-2091-C-000173 007104-000894 Document ID: 0.7.19343.5844-000002 What lessons can be derived from these examples? Should Judges Korman, Cambridge, Kopf, and Walker, as well as Justices Scalia, O'Connor, and Rehnquist, all be inducted into Dole's judicial "Hall of Shame?" Of course not. The true lesson of these examples is that individual cases cast in a negative light provide absolutely no legitimate basis from which to draw general conclusions about a judge's record. Any conscientious judge, regardless of which President appointed him or her, will eventually be confronted with a situation where the law requires that evidence be thrown out or a death sentence be overturned. Picking out a minute sample of such cases which happen to have fallen to Clinton appointees cannot provide an effective basis to measure their record. As Sentor Patrick Leahy explained, "no one should be making such statements or demagoging judges based on isolated decisions. We disserve our system of justice, our system of government, and the American people when we engage in such rhetoric."62 Instead of focusing on a handful of sensationalist-sounding cases, academic observers have utilized broader measuring tools and concluded that Clinton's judicial appointees have been middle-of-theroad, not liberal or "soft on crime." University of Houston political science professor Robert Carp and his colleagues have cataloged 36,500 judicial decisions since the Nixon administration. On the basis of this comprehensive study, Carp has described as "a bunch of nonsense" Dole's characterization of the Clinton judiciary.63 Professor Donald R. Songer, one of Carp's co-authors, has characterized Clinton's judicial appointees as "decidedly less liberal than [those of] other modern Democratic presidents" and as most resembling the appointees of President Ford.64 Along the spectrum of judicial decisions, Clinton judges have issued liberal decisions in criminal cases 33% of the time, about the same as Ford appointees (32%) and Nixon appointees (30%), and well below Carter appointees (38%).65 Additionally, forty percent of Clinton nominees in 1995 were former prosecutors, and 62% were deemed well qualified by the American Bar Association, compared to 52% in the Bush administration.66 These statistics demonstrate clearly the fallacy of the "soft on crime" charges by conservative critics of Clinton's nominees. Indeed, as the Washington Post has observed, most pre-election year complaints about Clinton's judges have come from liberals, including an appellate court judge appointed by President Carter, who believe that the President's nominees have been too EXT-18-2091-C-000174 007104-000895 Document ID: 0.7.19343.5844-000002 What lessons can be derived from these examples? Should Judges Korman, Cambridge, Kopf, and Walker, as well as Justices Scalia, O'Connor, and Rehnquist, all be inducted into Dole's judicial "Hall of Shame?" Of course not. The true lesson of these examples is that individual cases cast in a negative light provide absolutely no legitimate basis from which to draw general conclusions about a judge's record. Any conscientious judge, regardless of which President appointed him or her, will eventually be confronted with a situation where the law requires that evidence be thrown out or a death sentence be overturned. Picking out a minute sample of such cases which happen to have fallen to Clinton appointees cannot provide an effective basis to measure their record. As Sentor Patrick Leahy explained, "no one should be making such statements or demagoging judges based on isolated decisions. We disserve our system of justice, our system of government, and the American people when we engage in such rhetoric."62 Instead of focusing on a handful of sensationalist-sounding cases, academic observers have utilized broader measuring tools and concluded that Clinton's judicial appointees have been middle-of-theroad, not liberal or "soft on crime." University of Houston political science professor Robert Carp and his colleagues have cataloged 36,500 judicial decisions since the Nixon administration. On the basis of this comprehensive study, Carp has described as "a bunch of nonsense" Dole's characterization of the Clinton judiciary.63 Professor Donald R. Songer, one of Carp's co-authors, has characterized Clinton's judicial appointees as "decidedly less liberal than [those of] other modern Democratic presidents" and as most resembling the appointees of President Ford.64 Along the spectrum of judicial decisions, Clinton judges have issued liberal decisions in criminal cases 33% of the time, about the same as Ford appointees (32%) and Nixon appointees (30%), and well below Carter appointees (38%).65 Additionally, forty percent of Clinton nominees in 1995 were former prosecutors, and 62% were deemed well qualified by the American Bar Association, compared to 52% in the Bush administration.66 These statistics demonstrate clearly the fallacy of the "soft on crime" charges by conservative critics of Clinton's nominees. Indeed, as the Washington Post has observed, most pre-election year complaints about Clinton's judges have come from liberals, including an appellate court judge appointed by President Carter, who believe that the President's nominees have been too EXT-18-2091-C-000174 007104-000895 Document ID: 0.7.19343.5844-000002 moderate in light of the conservative Reagan-Bush judges who preceded them.67 Federal Crime Control Laws and the Reagan-Bush Courts Although a review of the facts concerning individual criminal cases thus shows little basis for "soft on crime" attacks on Clinton judges, the record does reveal a little-known fact about Reagan-Bush judges and crime control. A significant part of the ideological framework of jurists like Scalia, Thomas, and Rehnquist is their extremely narrow view of federal authority.68 In the area of crime control, that ideology threatens to significantly impair national anti-crime efforts. Perhaps the clearest example is the 1995 case of United States v. Lopez.69 In Lopez, the Supreme Court dramatically transformed the interpretation of the Constitution's Commerce Clause by striking down as unconstitutional the Gun Free School Zones Act of 1990, which forbade "any individual knowingly to possess a firearm at a place that [he or she] knows . . . is a school zone."70 The 5-4 decision in the case was written by Chief Justice Rehnquist, with all four of the other justices in the majority appointed by either President Reagan or President Bush. Lopez represents an extreme departure from decades of Supreme Court precedent, and poses a substantial threat to past and future anti-crime initiatives. The Supreme Court has recognized for decades that Congress has the power "to regulate those activities having a substantial relation to interstate commerce. . . i.e. those activities that substantially affect interstate commerce."71 In a series of decisions prior to Lopez, the Court found this power sufficiently broad to authorize a number of laws with far less connection to interstate commerce than the Gun Free School Zones Act, including a federal statute making it a crime to engage in local loan sharking, a federal statute prohibiting racial discrimination at local restaurants, and the application of a federal agricultural statute to prohibit the growth and consumption of wheat locally on one's own land.72 In finding the Gun Free School Zones Act unconstitutional, the Reagan-Bush majority chose to fly in the face of established law in order to establish a regime more in line with their conservative views. By choosing the conservative activist path, the Lopez Court has not only overruled one specific law aimed at combating violence in our nation's schools, but it has also called into question the validity of more than 100 sections of the United States Code, including at least 25 criminal statutes whose validity had previously seemed well settled.73 As Justice EXT-18-2091-C-000175 007104-000896 Document ID: 0.7.19343.5844-000002 moderate in light of the conservative Reagan-Bush judges who preceded them.67 Federal Crime Control Laws and the Reagan-Bush Courts Although a review of the facts concerning individual criminal cases thus shows little basis for "soft on crime" attacks on Clinton judges, the record does reveal a little-known fact about Reagan-Bush judges and crime control. A significant part of the ideological framework of jurists like Scalia, Thomas, and Rehnquist is their extremely narrow view of federal authority.68 In the area of crime control, that ideology threatens to significantly impair national anti-crime efforts. Perhaps the clearest example is the 1995 case of United States v. Lopez.69 In Lopez, the Supreme Court dramatically transformed the interpretation of the Constitution's Commerce Clause by striking down as unconstitutional the Gun Free School Zones Act of 1990, which forbade "any individual knowingly to possess a firearm at a place that [he or she] knows . . . is a school zone."70 The 5-4 decision in the case was written by Chief Justice Rehnquist, with all four of the other justices in the majority appointed by either President Reagan or President Bush. Lopez represents an extreme departure from decades of Supreme Court precedent, and poses a substantial threat to past and future anti-crime initiatives. The Supreme Court has recognized for decades that Congress has the power "to regulate those activities having a substantial relation to interstate commerce. . . i.e. those activities that substantially affect interstate commerce."71 In a series of decisions prior to Lopez, the Court found this power sufficiently broad to authorize a number of laws with far less connection to interstate commerce than the Gun Free School Zones Act, including a federal statute making it a crime to engage in local loan sharking, a federal statute prohibiting racial discrimination at local restaurants, and the application of a federal agricultural statute to prohibit the growth and consumption of wheat locally on one's own land.72 In finding the Gun Free School Zones Act unconstitutional, the Reagan-Bush majority chose to fly in the face of established law in order to establish a regime more in line with their conservative views. By choosing the conservative activist path, the Lopez Court has not only overruled one specific law aimed at combating violence in our nation's schools, but it has also called into question the validity of more than 100 sections of the United States Code, including at least 25 criminal statutes whose validity had previously seemed well settled.73 As Justice EXT-18-2091-C-000175 007104-000896 Document ID: 0.7.19343.5844-000002 Breyer explained in dissent, the endangered statutes include federal laws prohibiting arson of buildings used in activity affecting interstate commerce and forbidding possession of machine guns.74 Even though Lopez was issued only last year, it has already severely harmed anti-crime efforts. As a direct result of Chief Justice Rehnquist's decision in Lopez: ? ? ? ? Two appellate courts have ruled the federal arson law unconstitutional as applied to intentional burning of homes or other residences, reversing the conviction of one arsonist who maliciously burned down his neighbors' home and freeing another arsonist who conspired in the burning down of her own home to collect over $4 million in fraudulent insurance claims.75 The Child Support Recovery Act, which calls for criminal penalties for deadbeat parents who willfully fail to pay past due child support for children residing in other states, has been declared unconstitutional by a number of federal courts.76 One court has specifically suggested that the federal law banning machine gun possession may be invalid under Lopez.77 Another court has stated that Lopez may make unconstitutional the dual sovereignty doctrine, under which Rodney King's assailants were successfully prosecuted for federal criminal civil rights violations even though they were acquitted under state law.78 A recent ruling by Reagan-appointed Judge Jackson Kiser of the U.S. District Court for the Western District of Virginia in July provides a chilling omen of things to come under a far right judicial litmus test. In Brzonkala v. Virginia Polytechnic and State University79 Judge Kiser seized on the Supreme Court's holding in Lopez to declare unconstitutional the Violence Against Women Act (VAWA), which gives female victims of gender-motivated violent crime a federal cause of action against their attackers.80 Though technically a civil statute, VAWA "is criminal in nature . . . [It] was designed to address problems in the state criminal justice system, and, in attempting to supplement deficiencies in the state criminal system, it creates a civil cause of action that seeks to vindicate a criminal act."81 In Brzonkala, the plaintiff was raped by two adult male members of Virginia Polytechnic Institute's (VPI) football team. Despite twice audibly saying "no" to requests for sexual intercourse, she was pinned to her bed by her elbows and legs and forced to submit to vaginal intercourse three times. Even though EXT-18-2091-C-000176 007104-000897 Document ID: 0.7.19343.5844-000002 Breyer explained in dissent, the endangered statutes include federal laws prohibiting arson of buildings used in activity affecting interstate commerce and forbidding possession of machine guns.74 Even though Lopez was issued only last year, it has already severely harmed anti-crime efforts. As a direct result of Chief Justice Rehnquist's decision in Lopez: ? ? ? ? Two appellate courts have ruled the federal arson law unconstitutional as applied to intentional burning of homes or other residences, reversing the conviction of one arsonist who maliciously burned down his neighbors' home and freeing another arsonist who conspired in the burning down of her own home to collect over $4 million in fraudulent insurance claims.75 The Child Support Recovery Act, which calls for criminal penalties for deadbeat parents who willfully fail to pay past due child support for children residing in other states, has been declared unconstitutional by a number of federal courts.76 One court has specifically suggested that the federal law banning machine gun possession may be invalid under Lopez.77 Another court has stated that Lopez may make unconstitutional the dual sovereignty doctrine, under which Rodney King's assailants were successfully prosecuted for federal criminal civil rights violations even though they were acquitted under state law.78 A recent ruling by Reagan-appointed Judge Jackson Kiser of the U.S. District Court for the Western District of Virginia in July provides a chilling omen of things to come under a far right judicial litmus test. In Brzonkala v. Virginia Polytechnic and State University79 Judge Kiser seized on the Supreme Court's holding in Lopez to declare unconstitutional the Violence Against Women Act (VAWA), which gives female victims of gender-motivated violent crime a federal cause of action against their attackers.80 Though technically a civil statute, VAWA "is criminal in nature . . . [It] was designed to address problems in the state criminal justice system, and, in attempting to supplement deficiencies in the state criminal system, it creates a civil cause of action that seeks to vindicate a criminal act."81 In Brzonkala, the plaintiff was raped by two adult male members of Virginia Polytechnic Institute's (VPI) football team. Despite twice audibly saying "no" to requests for sexual intercourse, she was pinned to her bed by her elbows and legs and forced to submit to vaginal intercourse three times. Even though EXT-18-2091-C-000176 007104-000897 Document ID: 0.7.19343.5844-000002 one of the attackers confessed to the sexual contact and that he had been told "no" twice, neither attacker was ever prosecuted by the state. One was found guilty of sexual assault by the school's judicial committee and suspended from school for two semesters; this penalty was later set aside when the charge was reduced to "using abusive language," and the attacker was allowed to return to VPI without notice to the plaintiff. The net result was that the plaintiff, out of fear for her own safety, was forced to cancel her plans to return to VPI for the fall semester.82 Notwithstanding these facts, Judge Kiser dismissed the plaintiff's VAWA claim on the grounds that VAWA exceeded Congress' authority under the Commerce Clause. Disregarding Congressional findings that "[g]ender-based crimes and fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy" and that "studies report that almost 50 percent of rape victims lose their jobs or are forced to quit in the aftermath of the crime,"83 Judge Kiser relied on Lopez to declare VAWA unconstitutional.84 Judge Kiser is the same lower court judge who found constitutional the Virginia Military Institute's exclusion of female cadets, only to be reversed five years later by the Supreme Court.85 The ultimate result in Brzonkala is unclear. As these examples suggest, the conservative judicial activism that led to Lopez may well produce further harm to important federal anti-crime efforts, particularly if far right advocates are successful in imposing their version of the right-wing judicial litmus test on future nominations. Gun Control: The Brady Bill A similar problem is posed with respect to gun control efforts. In 1993, Congress enacted the Brady Handgun Violence Prevention Act as an amendment to the Gun Control Act of 1968. The Brady Act requires the Department of Justice within five years to establish and maintain an instant national criminal background check system for handgun purchasers. In the interim, the Brady Act imposes a waiting period of up to five days, and requires the chief law enforcement officer of the prospective purchaser's place of residence to perform a reasonable background check during that waiting period. According to the Bureau of Alcohol, Tobacco and Firearms, 44,274 felons have been prevented from illegally obtaining handguns under this procedure.86 Despite such reports of the Brady Act's significant success in keeping handguns out of the possession of convicted felons, it has regularly drawn criticism EXT-18-2091-C-000177 007104-000898 Document ID: 0.7.19343.5844-000002 one of the attackers confessed to the sexual contact and that he had been told "no" twice, neither attacker was ever prosecuted by the state. One was found guilty of sexual assault by the school's judicial committee and suspended from school for two semesters; this penalty was later set aside when the charge was reduced to "using abusive language," and the attacker was allowed to return to VPI without notice to the plaintiff. The net result was that the plaintiff, out of fear for her own safety, was forced to cancel her plans to return to VPI for the fall semester.82 Notwithstanding these facts, Judge Kiser dismissed the plaintiff's VAWA claim on the grounds that VAWA exceeded Congress' authority under the Commerce Clause. Disregarding Congressional findings that "[g]ender-based crimes and fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy" and that "studies report that almost 50 percent of rape victims lose their jobs or are forced to quit in the aftermath of the crime,"83 Judge Kiser relied on Lopez to declare VAWA unconstitutional.84 Judge Kiser is the same lower court judge who found constitutional the Virginia Military Institute's exclusion of female cadets, only to be reversed five years later by the Supreme Court.85 The ultimate result in Brzonkala is unclear. As these examples suggest, the conservative judicial activism that led to Lopez may well produce further harm to important federal anti-crime efforts, particularly if far right advocates are successful in imposing their version of the right-wing judicial litmus test on future nominations. Gun Control: The Brady Bill A similar problem is posed with respect to gun control efforts. In 1993, Congress enacted the Brady Handgun Violence Prevention Act as an amendment to the Gun Control Act of 1968. The Brady Act requires the Department of Justice within five years to establish and maintain an instant national criminal background check system for handgun purchasers. In the interim, the Brady Act imposes a waiting period of up to five days, and requires the chief law enforcement officer of the prospective purchaser's place of residence to perform a reasonable background check during that waiting period. According to the Bureau of Alcohol, Tobacco and Firearms, 44,274 felons have been prevented from illegally obtaining handguns under this procedure.86 Despite such reports of the Brady Act's significant success in keeping handguns out of the possession of convicted felons, it has regularly drawn criticism EXT-18-2091-C-000177 007104-000898 Document ID: 0.7.19343.5844-000002 from extremist conservatives who label it a violation of handgun owners' rights.87 Across the country, federal judges appointed by Presidents Reagan and Bush repeatedly have voted to invalidate the Brady Act on constitutional grounds. In Printz v. U.S., Reagan-appointed Judge Charles Lovell struck down the Brady Act on Tenth Amendment grounds, finding it to have "substantially commandeered state executive officers and indirectly commandeered the legislative processes of the states to administer a federal program."88 In Mack v. U.S., Bush-appointed Judge John Roll struck down the Brady Act on similar Tenth Amendment grounds, as well as Fifth Amendment Due Process grounds because of the Brady Act's allegedly "imprecise and indefinite" statutory duty.89 These two decisions were reversed in Mack v. U.S., with Bushappointed Circuit Judge Ferdinand Fernandez dissenting.90 The majority looked to established law and observed that "[t]he obligation imposed on state officers by the Brady Act is no more remarkable than, say, the federally-imposed duties of state officers to report missing children . . . or traffic fatalities."91 Such reasoning, however, did not prevent Bushappointed Judges Charles Pickering and Rebecca Doherty individually from striking down the Brady Act on Tenth Amendment grounds in McGee v. U.S.92 and Romero v. U.S.93 In Frank v. U.S. Bush-appointed Judge Fred Parker also found the Brady Act unconstitutional on Tenth Amendment grounds.94 Like Judges Lovell and Roll, but unlike Judges Pickering and Doherty, Judge Parker was reversed on appeal. A unanimous Second Circuit held that the Brady Act imposes neither "a structural burden inconsistent with the plan established by the Constitution," nor "an onerous quantitative burden on state or local officials."95 As of this summer, two federal courts of appeals have thus sustained the validity of the Brady Act, but one appellate court has ruled that the law is unconstitutional in an opinion by Reagan appointee E. Grady Jolly.96 The Supreme Court has decided to consider the issue in 199697, and will review the Ninth Circuit decision upholding the law in Mack v. U.S. At stake in this decision will be not only the Brady Act itself, but also the broader question of whether any such federal anti-crime and anti-gun violence laws can stand. Although it is unclear whether conservative judicial activists will prevail in Mack as in Lopez, there is no question that Reagan-Bush judges have already damaged federal EXT-18-2091-C-000178 007104-000899 Document ID: 0.7.19343.5844-000002 from extremist conservatives who label it a violation of handgun owners' rights.87 Across the country, federal judges appointed by Presidents Reagan and Bush repeatedly have voted to invalidate the Brady Act on constitutional grounds. In Printz v. U.S., Reagan-appointed Judge Charles Lovell struck down the Brady Act on Tenth Amendment grounds, finding it to have "substantially commandeered state executive officers and indirectly commandeered the legislative processes of the states to administer a federal program."88 In Mack v. U.S., Bush-appointed Judge John Roll struck down the Brady Act on similar Tenth Amendment grounds, as well as Fifth Amendment Due Process grounds because of the Brady Act's allegedly "imprecise and indefinite" statutory duty.89 These two decisions were reversed in Mack v. U.S., with Bushappointed Circuit Judge Ferdinand Fernandez dissenting.90 The majority looked to established law and observed that "[t]he obligation imposed on state officers by the Brady Act is no more remarkable than, say, the federally-imposed duties of state officers to report missing children . . . or traffic fatalities."91 Such reasoning, however, did not prevent Bushappointed Judges Charles Pickering and Rebecca Doherty individually from striking down the Brady Act on Tenth Amendment grounds in McGee v. U.S.92 and Romero v. U.S.93 In Frank v. U.S. Bush-appointed Judge Fred Parker also found the Brady Act unconstitutional on Tenth Amendment grounds.94 Like Judges Lovell and Roll, but unlike Judges Pickering and Doherty, Judge Parker was reversed on appeal. A unanimous Second Circuit held that the Brady Act imposes neither "a structural burden inconsistent with the plan established by the Constitution," nor "an onerous quantitative burden on state or local officials."95 As of this summer, two federal courts of appeals have thus sustained the validity of the Brady Act, but one appellate court has ruled that the law is unconstitutional in an opinion by Reagan appointee E. Grady Jolly.96 The Supreme Court has decided to consider the issue in 199697, and will review the Ninth Circuit decision upholding the law in Mack v. U.S. At stake in this decision will be not only the Brady Act itself, but also the broader question of whether any such federal anti-crime and anti-gun violence laws can stand. Although it is unclear whether conservative judicial activists will prevail in Mack as in Lopez, there is no question that Reagan-Bush judges have already damaged federal EXT-18-2091-C-000178 007104-000899 Document ID: 0.7.19343.5844-000002 crime control efforts and that imposition of a far right judicial litmus test threatens to cause even more harm in the future. FREEDOM OF RELIGION Religious freedom has long been a fundamental American value. The protections for religion embodied in the Establishment and Free Exercise Clauses of the Constitution, as interpreted by the Supreme Court over the years, have preserved and fostered a breadth and depth of religious expression and practice unrivaled in the modern world.97 But despite lip service to the principles of religious freedom, ReaganBush judges have in fact harmed religious freedom over the past fifteen years and threaten to do more harm in the future. Several years ago, the Supreme Court decided that government could pass laws which substantially interfere with an individual's ability to worship as he or she sees fit. It also, for the first time, allowed and in one case required direct government funding of religious activities, blurring the separation of church and state. And the more conservative members of the Court have expressly advocated a weak reading of the Establishment Clause that would permit a wide range of government-sponsored religious activities and allow religious majorities to use government to advance their religion at the expense of religious minorities and non-believers. The addition of several Justices to the Court based on a far right judicial litmus test could seriously threaten constitutional protection for freedom of religion. Free Exercise of Religion The Free Exercise Clause of the First Amendment was designed to protect individuals against government activity that interferes with their ability to practice their religion. In the 1963 case of Sherbert v. Verner,98 the Supreme Court ruled that a state law could not burden the free exercise of religion unless the law was narrowly tailored to achieve a compelling government interest. This rule subjected even laws of general application to the most exacting level of judicial scrutiny if the law burdened a free exercise right. For example, a local law prohibiting all consumption of alcoholic beverages would have to exempt the use of wine for religious ceremonies such as communion, unless the government could demonstrate a compelling justification for an absolute ban. EXT-18-2091-C-000179 007104-000900 Document ID: 0.7.19343.5844-000002 crime control efforts and that imposition of a far right judicial litmus test threatens to cause even more harm in the future. FREEDOM OF RELIGION Religious freedom has long been a fundamental American value. The protections for religion embodied in the Establishment and Free Exercise Clauses of the Constitution, as interpreted by the Supreme Court over the years, have preserved and fostered a breadth and depth of religious expression and practice unrivaled in the modern world.97 But despite lip service to the principles of religious freedom, ReaganBush judges have in fact harmed religious freedom over the past fifteen years and threaten to do more harm in the future. Several years ago, the Supreme Court decided that government could pass laws which substantially interfere with an individual's ability to worship as he or she sees fit. It also, for the first time, allowed and in one case required direct government funding of religious activities, blurring the separation of church and state. And the more conservative members of the Court have expressly advocated a weak reading of the Establishment Clause that would permit a wide range of government-sponsored religious activities and allow religious majorities to use government to advance their religion at the expense of religious minorities and non-believers. The addition of several Justices to the Court based on a far right judicial litmus test could seriously threaten constitutional protection for freedom of religion. Free Exercise of Religion The Free Exercise Clause of the First Amendment was designed to protect individuals against government activity that interferes with their ability to practice their religion. In the 1963 case of Sherbert v. Verner,98 the Supreme Court ruled that a state law could not burden the free exercise of religion unless the law was narrowly tailored to achieve a compelling government interest. This rule subjected even laws of general application to the most exacting level of judicial scrutiny if the law burdened a free exercise right. For example, a local law prohibiting all consumption of alcoholic beverages would have to exempt the use of wine for religious ceremonies such as communion, unless the government could demonstrate a compelling justification for an absolute ban. EXT-18-2091-C-000179 007104-000900 Document ID: 0.7.19343.5844-000002 But the Supreme Court reversed course and dealt a severe blow to religious liberty in 1990 with Employment Division v. Smith.99 In an opinion authored by Justice Scalia, a 5-4 majority of the Court ruled that the Free Exercise Clause does not prevent government from enforcing generally applicable criminal laws even when such enforcement effectively prevents individuals from practicing their religious beliefs or holding religious ceremonies. This new standard not only departed from the Court's settled First Amendment doctrine, but also, as Justice O'Connor pointed out, was an example of judicial activism because the Court could have reached the same result without declaring a new constitutional rule.100 The new constitutional rule announced in Smith left people of all faiths vulnerable to restrictive laws. For instance, courts have relied on Smith in authorizing government agencies to: ? ? ? ? Force families of accident victims and others to endure intrusive government autopsies of family members, even though the autopsies were directly contrary to their religious beliefs and there was no finding that the autopsies were necessary for government purposes;101 Dismiss the challenges of Catholic and Quaker groups to employer sanction provisions of the Immigration Reform and Control Act that they contended interfered with the operation of their religious facilities;102 Enforce boarding house rules that violated the religious practices of the Salvation Army;103 Require a religious student at a state veterinary school to perform fatal surgical operations on healthy animals, without even considering the student's religious objections.104 Disturbed by the result in Smith, Congress effectively reinstated the law as it existed prior to Smith by passing the Religious Freedom Restoration Act ("RFRA"), creating a statutory right to religious freedom equivalent to the constitutional protection that existed before Smith.105 But even this legislation may not be sufficient to safeguard religious freedom. Federal judges have disagreed on RFRA's constitutionality.106 Parties in one case have recently asked the Supreme Court to determine whether RFRA is constitutional.107 Since four of the five Justices from the Smith majority are still on the Court, any Supreme Court challenge to RFRA in the near future would likely be heard by these same EXT-18-2091-C-000180 007104-000901 Document ID: 0.7.19343.5844-000002 But the Supreme Court reversed course and dealt a severe blow to religious liberty in 1990 with Employment Division v. Smith.99 In an opinion authored by Justice Scalia, a 5-4 majority of the Court ruled that the Free Exercise Clause does not prevent government from enforcing generally applicable criminal laws even when such enforcement effectively prevents individuals from practicing their religious beliefs or holding religious ceremonies. This new standard not only departed from the Court's settled First Amendment doctrine, but also, as Justice O'Connor pointed out, was an example of judicial activism because the Court could have reached the same result without declaring a new constitutional rule.100 The new constitutional rule announced in Smith left people of all faiths vulnerable to restrictive laws. For instance, courts have relied on Smith in authorizing government agencies to: ? ? ? ? Force families of accident victims and others to endure intrusive government autopsies of family members, even though the autopsies were directly contrary to their religious beliefs and there was no finding that the autopsies were necessary for government purposes;101 Dismiss the challenges of Catholic and Quaker groups to employer sanction provisions of the Immigration Reform and Control Act that they contended interfered with the operation of their religious facilities;102 Enforce boarding house rules that violated the religious practices of the Salvation Army;103 Require a religious student at a state veterinary school to perform fatal surgical operations on healthy animals, without even considering the student's religious objections.104 Disturbed by the result in Smith, Congress effectively reinstated the law as it existed prior to Smith by passing the Religious Freedom Restoration Act ("RFRA"), creating a statutory right to religious freedom equivalent to the constitutional protection that existed before Smith.105 But even this legislation may not be sufficient to safeguard religious freedom. Federal judges have disagreed on RFRA's constitutionality.106 Parties in one case have recently asked the Supreme Court to determine whether RFRA is constitutional.107 Since four of the five Justices from the Smith majority are still on the Court, any Supreme Court challenge to RFRA in the near future would likely be heard by these same EXT-18-2091-C-000180 007104-000901 Document ID: 0.7.19343.5844-000002 Justices, along with one of the current Court's most conservative Justices, Clarence Thomas. Indeed, some right-wing commentators who have praised Justices Thomas and Scalia have criticized RFRA,108 suggesting possible danger to this statutory protection for religious freedom, particularly if a new right-wing judicial litmus test is used in selecting future Justices. Establishment Clause A. Vouchers and Government Funding of Religion From the time of the Framers of the Constitution, prohibition of government funding of religion has been at the heart of our nation's concept of religious liberty. James Madison vehemently opposed a tax assessment bill in Virginia which would have collected public funds for religious purposes. He wrote: "Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"109 After the defeat of the bill, Thomas Jefferson wrote the Virginia Bill for Establishing Religious Freedom. The bill's preamble declared that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," and its text provided "[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever."110 Supreme Court precedent has followed the lead of Madison and Jefferson by interpreting the Establishment Clause as prohibiting government funding of religion. When religious organizations received government funding as a part of a more general funding program, the Supreme Court traditionally examined whether the organization's religious activities could be separated from its secular activities, and whether the program ensured that the government funds would flow only to the secular ones.111 For instance, in Committee for Public Education v. Nyquist, the Court struck down a state tax credit for parents who sent their children to private schools; since many of these schools would have been sectarian, the program would have impermissibly used public funds for sectarian as well as secular purposes.112 By requiring that government funds be used only for secular activities, the Court safeguarded religious liberty by protecting religion from EXT-18-2091-C-000181 007104-000902 Document ID: 0.7.19343.5844-000002 Justices, along with one of the current Court's most conservative Justices, Clarence Thomas. Indeed, some right-wing commentators who have praised Justices Thomas and Scalia have criticized RFRA,108 suggesting possible danger to this statutory protection for religious freedom, particularly if a new right-wing judicial litmus test is used in selecting future Justices. Establishment Clause A. Vouchers and Government Funding of Religion From the time of the Framers of the Constitution, prohibition of government funding of religion has been at the heart of our nation's concept of religious liberty. James Madison vehemently opposed a tax assessment bill in Virginia which would have collected public funds for religious purposes. He wrote: "Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"109 After the defeat of the bill, Thomas Jefferson wrote the Virginia Bill for Establishing Religious Freedom. The bill's preamble declared that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical," and its text provided "[t]hat no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever."110 Supreme Court precedent has followed the lead of Madison and Jefferson by interpreting the Establishment Clause as prohibiting government funding of religion. When religious organizations received government funding as a part of a more general funding program, the Supreme Court traditionally examined whether the organization's religious activities could be separated from its secular activities, and whether the program ensured that the government funds would flow only to the secular ones.111 For instance, in Committee for Public Education v. Nyquist, the Court struck down a state tax credit for parents who sent their children to private schools; since many of these schools would have been sectarian, the program would have impermissibly used public funds for sectarian as well as secular purposes.112 By requiring that government funds be used only for secular activities, the Court safeguarded religious liberty by protecting religion from EXT-18-2091-C-000181 007104-000902 Document ID: 0.7.19343.5844-000002 government fiscal influence and protecting taxpayers from mandatory funding of religious beliefs and practices. But this basic principle of church-state separation has been thrown into doubt by two recent religious funding cases where the conservative members of the Supreme Court allowed government funding of religious activities. Both of these cases were decided by 5-4 votes. These decisions could have grave implications for more widespread government funding of religion, including government-funded school voucher programs that would appropriate public funds for sectarian education and which are opposed by most Americans.113 In Zobrest v. Catalina Foothills School District,114 parents enrolled their deaf child in a religious high school and claimed that federal law required the State of Arizona to provide a sign-language interpreter for the child. The State refused on the ground that providing a government employee to promote religious instruction would violate the Establishment Clause. The Court's conservative majority of Chief Justice Rehnquist, Justice White, and ReaganBush appointees Scalia, Kennedy, and Thomas rejected this argument and held that the Establishment Clause did not bar a State from providing an interpreter to advance the child's sectarian education.115 The Court relied in part on the theory that filtering of government funds through "private choices" of individual parents negated the government's role in supporting religious schools, despite the fact that such "choice" is made possible only through public financial assistance provided by the government and so is not truly private. Such reliance on "private choice"116 could open the floodgates to massive government funding of religion so long as the funds are first funneled through individual citizens. Zobrest has already had an important effect with respect to church-state separation. In Walker v. San Francisco Unified School District,117 the Ninth Circuit Court of Appeals relied on Zobrest as well as other Supreme Court cases in allowing the use of federal funds to provide certain materials and equipment to parochial schools--in spite of the court's recognition that prior Supreme Court precedent squarely prohibited such uses of government funds.118 According to the Walker court, Zobrest implied that the Supreme Court's prior prohibition on such funding EXT-18-2091-C-000182 007104-000903 Document ID: 0.7.19343.5844-000002 government fiscal influence and protecting taxpayers from mandatory funding of religious beliefs and practices. But this basic principle of church-state separation has been thrown into doubt by two recent religious funding cases where the conservative members of the Supreme Court allowed government funding of religious activities. Both of these cases were decided by 5-4 votes. These decisions could have grave implications for more widespread government funding of religion, including government-funded school voucher programs that would appropriate public funds for sectarian education and which are opposed by most Americans.113 In Zobrest v. Catalina Foothills School District,114 parents enrolled their deaf child in a religious high school and claimed that federal law required the State of Arizona to provide a sign-language interpreter for the child. The State refused on the ground that providing a government employee to promote religious instruction would violate the Establishment Clause. The Court's conservative majority of Chief Justice Rehnquist, Justice White, and ReaganBush appointees Scalia, Kennedy, and Thomas rejected this argument and held that the Establishment Clause did not bar a State from providing an interpreter to advance the child's sectarian education.115 The Court relied in part on the theory that filtering of government funds through "private choices" of individual parents negated the government's role in supporting religious schools, despite the fact that such "choice" is made possible only through public financial assistance provided by the government and so is not truly private. Such reliance on "private choice"116 could open the floodgates to massive government funding of religion so long as the funds are first funneled through individual citizens. Zobrest has already had an important effect with respect to church-state separation. In Walker v. San Francisco Unified School District,117 the Ninth Circuit Court of Appeals relied on Zobrest as well as other Supreme Court cases in allowing the use of federal funds to provide certain materials and equipment to parochial schools--in spite of the court's recognition that prior Supreme Court precedent squarely prohibited such uses of government funds.118 According to the Walker court, Zobrest implied that the Supreme Court's prior prohibition on such funding EXT-18-2091-C-000182 007104-000903 Document ID: 0.7.19343.5844-000002 had been implicitly overruled, even though the Court had not yet done so itself.119 In Rosenberger v. Rector and Visitors of the University of Virginia,120 the conservative bloc of the Court in another 5-4 decision again eroded the wall of separation between church and state by actually requiring government funding of a student religious publication. Although the University of Virginia reimbursed expenditures by some student groups through a Student Activities Fund, it refused to reimburse the expenses of a student newspaper dedicated to discussing and promoting Christian perspectives and beliefs on the ground that such funding would violate the Establishment Clause. Chief Justice Rehnquist and Reagan-Bush appointees Kennedy, O'Connor, Scalia, and Thomas struck down the school's refusal to fund religious student publications as unconstitutional. While the Court focused on free speech concerns, the Court's decision may not only allow but require government funding of religion in some circumstances. The potential consequences of Rosenberger were recognized by Justice Souter in dissent, who stated that the Court's reasoning "would commit the Court to approving direct religious aid beyond anything justifiable for the sake of access to speaking forums."121 Chief Justice Rehnquist, Justice Scalia, and Justice Thomas have already made clear that they would allow virtually any government funding of religious activities, regardless of the potentially substantial benefits received by religious groups, so long as the grants are made without explicit reference to religion. Justice Kennedy's decision to join the majority in Zobrest and his authorship of the opinion in Rosenberger cast considerable doubt on his willingness to protect the independence of religion and the consciences of taxpayers by prohibiting government funding of religious activities. Justice O'Connor's emphasis on a case-bycase analysis122 makes it difficult to evaluate what her position would be concerning a voucher program including sectarian schools, but voucher advocates clearly hope to win her vote based on her concurring opinion in Rosenberger. Consequently, there are at least three votes on the Court, and possibly four or five, that would support a voucher program including sectarian schools. Several voucher cases are already winding their way through the judicial system, including an Ohio EXT-18-2091-C-000183 007104-000904 Document ID: 0.7.19343.5844-000002 had been implicitly overruled, even though the Court had not yet done so itself.119 In Rosenberger v. Rector and Visitors of the University of Virginia,120 the conservative bloc of the Court in another 5-4 decision again eroded the wall of separation between church and state by actually requiring government funding of a student religious publication. Although the University of Virginia reimbursed expenditures by some student groups through a Student Activities Fund, it refused to reimburse the expenses of a student newspaper dedicated to discussing and promoting Christian perspectives and beliefs on the ground that such funding would violate the Establishment Clause. Chief Justice Rehnquist and Reagan-Bush appointees Kennedy, O'Connor, Scalia, and Thomas struck down the school's refusal to fund religious student publications as unconstitutional. While the Court focused on free speech concerns, the Court's decision may not only allow but require government funding of religion in some circumstances. The potential consequences of Rosenberger were recognized by Justice Souter in dissent, who stated that the Court's reasoning "would commit the Court to approving direct religious aid beyond anything justifiable for the sake of access to speaking forums."121 Chief Justice Rehnquist, Justice Scalia, and Justice Thomas have already made clear that they would allow virtually any government funding of religious activities, regardless of the potentially substantial benefits received by religious groups, so long as the grants are made without explicit reference to religion. Justice Kennedy's decision to join the majority in Zobrest and his authorship of the opinion in Rosenberger cast considerable doubt on his willingness to protect the independence of religion and the consciences of taxpayers by prohibiting government funding of religious activities. Justice O'Connor's emphasis on a case-bycase analysis122 makes it difficult to evaluate what her position would be concerning a voucher program including sectarian schools, but voucher advocates clearly hope to win her vote based on her concurring opinion in Rosenberger. Consequently, there are at least three votes on the Court, and possibly four or five, that would support a voucher program including sectarian schools. Several voucher cases are already winding their way through the judicial system, including an Ohio EXT-18-2091-C-000183 007104-000904 Document ID: 0.7.19343.5844-000002 case in which a lower court judge has approved a voucher plan, and may very well be heard by the Supreme Court in the near future. Imposing a new right-wing litmus test for judicial appointments would almost certainly lock in a Supreme Court majority that would authorize vouchers and other significant government funding of religion, dismantling the historic separation of church and state and eroding religious liberty. B. Weakening the Establishment Clause: The Coercion Test For the past generation, federal courts have required government neutrality in religious matters by applying a three-part test enunciated in the 1971 Supreme Court decision of Lemon v. Kurtzman, written by Chief Justice Burger.124 Under the Lemon test, government violates religious freedom and neutrality when its action has a primarily religious reason, has the primary effect of advancing or inhibiting religion, or results in excessive government entanglement with religion.125 Although Lemon itself has been applied inconsistently by the Supreme Court and criticized by a number of Justices and commentators, a majority of Justices have continued to rely on key principles underlying the decision, such as the principle that government should not endorse religion.126 If the conservative wing of the Court had its way, however, such principles would be disregarded entirely and replaced by a much more permissive "coercion" test which would allow government involvement in and promotion of all but the most invasive religious activities. In Lee v. Weisman, Justice Scalia wrote for four dissenters (three of whom remain on the Court) that the Establishment Clause should not apply whatsoever to state promotion of religion unless the state threatens to impose a penalty on nonparticipants. Under this view, the Constitution would permit a wide range of government-sponsored religious activities. In the public schools, officials could require that the school day begin with sectarian devotionals, teachers could proselytize to their students, and student religious majorities could determine what religious service or which religious leader to have at school events regardless of the beliefs of religious minorities, so long as objecting students faced no formal punishment. In other contexts, a coercion test would allow government-erected symbols of a single faith to the exclusion of others on public EXT-18-2091-C-000184 007104-000905 Document ID: 0.7.19343.5844-000002 case in which a lower court judge has approved a voucher plan, and may very well be heard by the Supreme Court in the near future. Imposing a new right-wing litmus test for judicial appointments would almost certainly lock in a Supreme Court majority that would authorize vouchers and other significant government funding of religion, dismantling the historic separation of church and state and eroding religious liberty. B. Weakening the Establishment Clause: The Coercion Test For the past generation, federal courts have required government neutrality in religious matters by applying a three-part test enunciated in the 1971 Supreme Court decision of Lemon v. Kurtzman, written by Chief Justice Burger.124 Under the Lemon test, government violates religious freedom and neutrality when its action has a primarily religious reason, has the primary effect of advancing or inhibiting religion, or results in excessive government entanglement with religion.125 Although Lemon itself has been applied inconsistently by the Supreme Court and criticized by a number of Justices and commentators, a majority of Justices have continued to rely on key principles underlying the decision, such as the principle that government should not endorse religion.126 If the conservative wing of the Court had its way, however, such principles would be disregarded entirely and replaced by a much more permissive "coercion" test which would allow government involvement in and promotion of all but the most invasive religious activities. In Lee v. Weisman, Justice Scalia wrote for four dissenters (three of whom remain on the Court) that the Establishment Clause should not apply whatsoever to state promotion of religion unless the state threatens to impose a penalty on nonparticipants. Under this view, the Constitution would permit a wide range of government-sponsored religious activities. In the public schools, officials could require that the school day begin with sectarian devotionals, teachers could proselytize to their students, and student religious majorities could determine what religious service or which religious leader to have at school events regardless of the beliefs of religious minorities, so long as objecting students faced no formal punishment. In other contexts, a coercion test would allow government-erected symbols of a single faith to the exclusion of others on public EXT-18-2091-C-000184 007104-000905 Document ID: 0.7.19343.5844-000002 buildings and in public space, and judges, military officers, and government employers could proselytize to those under their supervision. The support for such an interpretation of the Establishment Clause by three present members of the Court raises serious concerns about the future of religious liberty in America. If rightwing groups are successful in establishing their litmus test for judicial appointments, this coercion test could command a majority on the Court, allowing public officials and whoever can effectively pressure those pubic officials to use the machinery of government to advance their beliefs at the expense of those with other beliefs. In a nation with such a variety of religious beliefs and practices, where shifting populations can cause today's religious majority to become tomorrow's religious minority, it is more important than ever for our federal judges to ensure that our basic religious freedoms do not become subject to the popular whims of the moment. This protection for religious liberty would clearly be endangered by a new right-wing judicial litmus test for federal judges. FREEDOM FROM DISCRIMINATION128 The far right's objective of imposing right-wing litmus tests on future judicial appointments poses great danger to Americans' freedom from arbitrary discrimination. Even putting aside the issue of affirmative action, and focusing only on decisions since 1992, in a wide variety of cases the Reagan-Bush federal courts have demonstrated a startling inclination to overturn or otherwise erode long-settled protections of individual liberties.129 Reagan-Bush appointees to the federal courts have emasculated both statutory and constitutional protection of minority voting power, called into question the very basis for the nation's civil rights laws, and sanctioned significant encroachments on statutory and constitutional protections against discrimination and against arbitrary interference in Americans' private affairs. Just as important, dissenting views in civil rights cases that now command only three or four votes on the Supreme Court offer a chilling forecast of the future damage that could be done by one or two additional appointments to the Court based on a far-right judicial litmus test, which would also threaten civil rights and diversity on the courts themselves. EXT-18-2091-C-000185 007104-000906 Document ID: 0.7.19343.5844-000002 buildings and in public space, and judges, military officers, and government employers could proselytize to those under their supervision. The support for such an interpretation of the Establishment Clause by three present members of the Court raises serious concerns about the future of religious liberty in America. If rightwing groups are successful in establishing their litmus test for judicial appointments, this coercion test could command a majority on the Court, allowing public officials and whoever can effectively pressure those pubic officials to use the machinery of government to advance their beliefs at the expense of those with other beliefs. In a nation with such a variety of religious beliefs and practices, where shifting populations can cause today's religious majority to become tomorrow's religious minority, it is more important than ever for our federal judges to ensure that our basic religious freedoms do not become subject to the popular whims of the moment. This protection for religious liberty would clearly be endangered by a new right-wing judicial litmus test for federal judges. FREEDOM FROM DISCRIMINATION128 The far right's objective of imposing right-wing litmus tests on future judicial appointments poses great danger to Americans' freedom from arbitrary discrimination. Even putting aside the issue of affirmative action, and focusing only on decisions since 1992, in a wide variety of cases the Reagan-Bush federal courts have demonstrated a startling inclination to overturn or otherwise erode long-settled protections of individual liberties.129 Reagan-Bush appointees to the federal courts have emasculated both statutory and constitutional protection of minority voting power, called into question the very basis for the nation's civil rights laws, and sanctioned significant encroachments on statutory and constitutional protections against discrimination and against arbitrary interference in Americans' private affairs. Just as important, dissenting views in civil rights cases that now command only three or four votes on the Supreme Court offer a chilling forecast of the future damage that could be done by one or two additional appointments to the Court based on a far-right judicial litmus test, which would also threaten civil rights and diversity on the courts themselves. EXT-18-2091-C-000185 007104-000906 Document ID: 0.7.19343.5844-000002 Voting Rights and Racial Discrimination Nowhere is the retreat from the Supreme Court's traditional commitment to equality more evident than when considering the voting rights of minority citizens. Since 1992, the Supreme Court has rendered virtually meaningless some of the protections afforded by the Voting Rights Act. In Holder v. Hall,130 the Supreme Court ruled that the Voting Rights Act could not be used to challenge a single-commissioner form of government. In that case, the Court rejected the complaint of AfricanAmerican voters of Bleckley County, Georgia, who comprise 22 percent of the county's population, that its single-commissioner form of county government illegally diluted their voting power. Bleckley County's county commissioner, who always has been white, controls all county property, levies taxes, spends public money, builds and repairs roads and bridges and makes the legal rules governing county government operations. The oppressiveness of such a system on the articulation of minority interests has deterred many of the African-American voters in that county from running for office because of their relatively weak voting strength and even from voting because all poll watchers in the county are white. Nonetheless, the five-member Reagan-Bush majority of the Court failed to recognize, much less advance, the statute's primary purpose of augmenting minority representation to remedy past discrimination. The Court has also systematically invalidated so-called "majorityminority" districts drawn by state legislatures to remedy past discrimination by boosting minority representation. In a series of cases since 1992, the Reagan-Bush appointees on the Supreme Court have imposed the most rigorous standards on these districts and, consequently, left such attempts at increasing minority representation highly vulnerable to constitutional attack. Prior to these decisions, the federal courts intervened in voting district cases only to enforce the oneperson-one-vote requirement and to prevent dilution of a minority group's voting strength.132 The Reagan-Bush majority, though, has added a third category to the list of when federal courts may intervene in these cases: whenever white voters feel disenfranchised by the creation of majority-minority districts, even if they are intended to remedy proven discrimination and even if such voters cannot show a dilution of their voting strength. In Shaw v. Reno,133 the Court held that if white plaintiffs could show that a voting district scheme was so irrational on its face or so bizarre in geographical contour that it can only be understood as an EXT-18-2091-C-000186 007104-000907 Document ID: 0.7.19343.5844-000002 Voting Rights and Racial Discrimination Nowhere is the retreat from the Supreme Court's traditional commitment to equality more evident than when considering the voting rights of minority citizens. Since 1992, the Supreme Court has rendered virtually meaningless some of the protections afforded by the Voting Rights Act. In Holder v. Hall,130 the Supreme Court ruled that the Voting Rights Act could not be used to challenge a single-commissioner form of government. In that case, the Court rejected the complaint of AfricanAmerican voters of Bleckley County, Georgia, who comprise 22 percent of the county's population, that its single-commissioner form of county government illegally diluted their voting power. Bleckley County's county commissioner, who always has been white, controls all county property, levies taxes, spends public money, builds and repairs roads and bridges and makes the legal rules governing county government operations. The oppressiveness of such a system on the articulation of minority interests has deterred many of the African-American voters in that county from running for office because of their relatively weak voting strength and even from voting because all poll watchers in the county are white. Nonetheless, the five-member Reagan-Bush majority of the Court failed to recognize, much less advance, the statute's primary purpose of augmenting minority representation to remedy past discrimination. The Court has also systematically invalidated so-called "majorityminority" districts drawn by state legislatures to remedy past discrimination by boosting minority representation. In a series of cases since 1992, the Reagan-Bush appointees on the Supreme Court have imposed the most rigorous standards on these districts and, consequently, left such attempts at increasing minority representation highly vulnerable to constitutional attack. Prior to these decisions, the federal courts intervened in voting district cases only to enforce the oneperson-one-vote requirement and to prevent dilution of a minority group's voting strength.132 The Reagan-Bush majority, though, has added a third category to the list of when federal courts may intervene in these cases: whenever white voters feel disenfranchised by the creation of majority-minority districts, even if they are intended to remedy proven discrimination and even if such voters cannot show a dilution of their voting strength. In Shaw v. Reno,133 the Court held that if white plaintiffs could show that a voting district scheme was so irrational on its face or so bizarre in geographical contour that it can only be understood as an EXT-18-2091-C-000186 007104-000907 Document ID: 0.7.19343.5844-000002 effort to segregate voters into separate voting districts because of their race, such districts would be invalidated unless it was shown to be narrowly tailored to further a compelling governmental interest. The Court further sharpened that standard, however, in Miller v. Johnson,134 when it determined that white voters need not show that a voting district is bizarrely shaped, but only that race was the dominant and controlling rationale in drawing voting district lines. Although the Court acknowledged that eradicating the effects of past racial discrimination was a "significant" state interest, the Court rejected the notion that it rose to the level of a "compelling" state interest. On this basis, the Court invalidated the majority-minority voting district at issue. In its most recent term, the 5-4 Court majority solidified its work in Bush v. Vera135 and Shaw v. Hunt.136 In those cases, the majority struck down four congressional districts designed to augment Hispanic and Black representation. The Bush opinion seems to indicate that even when other traditional political and geographical factors influence state officials' district line drawing, the presence of race as a major factor will trigger strict judicial investigation into the plan. In dissent, Justice Stevens aptly stated that "I [do not] see how our constitutional tradition can countenance the suggestion that a State may draw unsightly lines to favor farmers or city dwellers, but not to create districts that benefit the very group whose history inspired the Amendment that the Voting Rights Act was designed to implement."137 Particularly if a new far-right litmus test is used to select future Supreme Court justices, the protections of the Voting Rights Act are likely to be even further eviscerated. Similar problems are evident in other recent Supreme Court decisions on racial discrimination. In Purkett v. Elem,138 the Court eroded the protections afforded by a decade-old precedent which forbids the use of race in peremptory challenge settings. Under Batson v. Kentucky,139 once the opponent of a peremptory challenge has made out a case of racial discrimination, the proponent of the challenge may counter with a race-neutral explanation for such challenge. In Purkett, the Court undermined Batson's protections by ruling that a race-neutral explanation tendered by a proponent of a peremptory challenge need not be persuasive. Indeed, any race-neutral explanation, no matter how "implausible or fantastic" or "silly or superstitious" is sufficient to rebut a case of racial discrimination!140 EXT-18-2091-C-000187 007104-000908 Document ID: 0.7.19343.5844-000002 effort to segregate voters into separate voting districts because of their race, such districts would be invalidated unless it was shown to be narrowly tailored to further a compelling governmental interest. The Court further sharpened that standard, however, in Miller v. Johnson,134 when it determined that white voters need not show that a voting district is bizarrely shaped, but only that race was the dominant and controlling rationale in drawing voting district lines. Although the Court acknowledged that eradicating the effects of past racial discrimination was a "significant" state interest, the Court rejected the notion that it rose to the level of a "compelling" state interest. On this basis, the Court invalidated the majority-minority voting district at issue. In its most recent term, the 5-4 Court majority solidified its work in Bush v. Vera135 and Shaw v. Hunt.136 In those cases, the majority struck down four congressional districts designed to augment Hispanic and Black representation. The Bush opinion seems to indicate that even when other traditional political and geographical factors influence state officials' district line drawing, the presence of race as a major factor will trigger strict judicial investigation into the plan. In dissent, Justice Stevens aptly stated that "I [do not] see how our constitutional tradition can countenance the suggestion that a State may draw unsightly lines to favor farmers or city dwellers, but not to create districts that benefit the very group whose history inspired the Amendment that the Voting Rights Act was designed to implement."137 Particularly if a new far-right litmus test is used to select future Supreme Court justices, the protections of the Voting Rights Act are likely to be even further eviscerated. Similar problems are evident in other recent Supreme Court decisions on racial discrimination. In Purkett v. Elem,138 the Court eroded the protections afforded by a decade-old precedent which forbids the use of race in peremptory challenge settings. Under Batson v. Kentucky,139 once the opponent of a peremptory challenge has made out a case of racial discrimination, the proponent of the challenge may counter with a race-neutral explanation for such challenge. In Purkett, the Court undermined Batson's protections by ruling that a race-neutral explanation tendered by a proponent of a peremptory challenge need not be persuasive. Indeed, any race-neutral explanation, no matter how "implausible or fantastic" or "silly or superstitious" is sufficient to rebut a case of racial discrimination!140 EXT-18-2091-C-000187 007104-000908 Document ID: 0.7.19343.5844-000002 In United States v. Armstrong,141 Chief Justice Rehnquist wrote for the Supreme Court that African-American criminal defendants who presented evidence that only minorities were being prosecuted on crack charges in federal court were not even entitled to discovery on their claim of selective prosecution unless they could show the existence of similarly situated white criminal defendants who could have been prosecuted but were not. In dissent, Justice Stevens noted that "it is undisputed that the brunt of the elevated federal penalties [for trafficking crack cocaine as opposed to powder cocaine] falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black."142 Justice Stevens countered the Rehnquist-led majority in asserting that the stark disparity of such statistics raises an inference of racial discrimination for which the trial judge properly ordered discovery but which the Supreme Court disregarded. In another area of deep and divisive concern over racial equality, the Supreme Court recently ordered that a federal district judge exceeded his authority in trying to desegregate the Kansas City public schools. In Missouri v. Jenkins,143 the Court vacated the district court's orders designed to attract, not coerce, white students back into the inner city school district. In writing for the majority, Chief Justice Rehnquist equated the goal of returning local control of the schools to the goal of remedying the effects of past racial segregation in public schools. As the dissent pointed out, the majority's opinion will seriously harm efforts to remedy the vestiges of racial segregation. Employment Discrimination The Constitution does not protect against arbitrary discrimination in most private sector employment decisions. Rather, workers unfairly treated because of their religion, race, or gender must resort to statutory remedies adopted by Congress, the states, and localities. However, even though Congress adopted the 1964 Civil Rights Act as a broad remedial measure for such injustices, the Supreme Court has appeared intent on narrowing the Act's protections and forcing workers to meet seemingly insurmountable burdens of proof in support of their claims. Recently, in St. Mary's Honor Center v. Hicks,144 the Supreme Court, in an opinion written by Justice Antonin Scalia, determined that a fired worker does not automatically win his case even if he proves that his former employer is lying in its defense of a job discrimination claim. EXT-18-2091-C-000188 007104-000909 Document ID: 0.7.19343.5844-000002 In United States v. Armstrong,141 Chief Justice Rehnquist wrote for the Supreme Court that African-American criminal defendants who presented evidence that only minorities were being prosecuted on crack charges in federal court were not even entitled to discovery on their claim of selective prosecution unless they could show the existence of similarly situated white criminal defendants who could have been prosecuted but were not. In dissent, Justice Stevens noted that "it is undisputed that the brunt of the elevated federal penalties [for trafficking crack cocaine as opposed to powder cocaine] falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black."142 Justice Stevens countered the Rehnquist-led majority in asserting that the stark disparity of such statistics raises an inference of racial discrimination for which the trial judge properly ordered discovery but which the Supreme Court disregarded. In another area of deep and divisive concern over racial equality, the Supreme Court recently ordered that a federal district judge exceeded his authority in trying to desegregate the Kansas City public schools. In Missouri v. Jenkins,143 the Court vacated the district court's orders designed to attract, not coerce, white students back into the inner city school district. In writing for the majority, Chief Justice Rehnquist equated the goal of returning local control of the schools to the goal of remedying the effects of past racial segregation in public schools. As the dissent pointed out, the majority's opinion will seriously harm efforts to remedy the vestiges of racial segregation. Employment Discrimination The Constitution does not protect against arbitrary discrimination in most private sector employment decisions. Rather, workers unfairly treated because of their religion, race, or gender must resort to statutory remedies adopted by Congress, the states, and localities. However, even though Congress adopted the 1964 Civil Rights Act as a broad remedial measure for such injustices, the Supreme Court has appeared intent on narrowing the Act's protections and forcing workers to meet seemingly insurmountable burdens of proof in support of their claims. Recently, in St. Mary's Honor Center v. Hicks,144 the Supreme Court, in an opinion written by Justice Antonin Scalia, determined that a fired worker does not automatically win his case even if he proves that his former employer is lying in its defense of a job discrimination claim. EXT-18-2091-C-000188 007104-000909 Document ID: 0.7.19343.5844-000002 Beyond evidence that the former employer's excuse for the firing is merely a ruse, a worker alleging arbitrary discrimination now needs direct evidence of impermissible bias. Hicks, an African-American supervisor at a Missouri prison, had a satisfactory work record until a new boss, who was white, took over. Thereafter, Hicks was frequently disciplined, then demoted. After a confrontation with his supervisor, Hicks was fired and replaced with a white worker. Hicks proved in a lower court that his employer's case was based on outright falsehoods. The prison administration asserted that the severity and frequency of Hicks' rulebreaking was the reason for his termination. But Hicks proved that similar or more serious infractions were often ignored when committed by white workers. He also proved his white supervisor manufactured a confrontation in order to fire him. The Supreme Court nevertheless ruled that Hicks failed to prove that the discrimination was racially motivated and that the fact that his employer lied in court yielded nothing. As a result of Hicks, in such a case the fired employee must now produce more, direct evidence of discrimination. This not only contradicts two decades of established precedent, but it also has the effect of sanctioning lying as a defense in bias suits and of requiring fired workers to produce concrete evidence of a typically subtle and difficult to prove occurrence. Justice Souter, in dissent, lamented that the Court's decision placed fired workers in an impossible position "for the simple reason that employers . . . are not likely to announce their discriminatory motive."145 The Validity of Anti-Discrimination Statutes In United States v. Lopez,146 Chief Justice Rehnquist, writing for a fivemember Reagan-Bush majority, struck down the federal Gun-Free School Zones Act on the basis that Congress exceeded its authority under the Commerce Clause of the Constitution in enacting the legislation. Lopez marks the first time since 1936 that the Court has relied on the Commerce Clause to invalidate federal legislation. Although Congress presumably believed that gun violence interjected in a school environment interfered with the quality of education which, in turn, is intimately tied to the future economic viability of individuals, the Supreme Court struck down the statute because such concerns do not "substantially" affect interstate commerce. EXT-18-2091-C-000189 007104-000910 Document ID: 0.7.19343.5844-000002 Beyond evidence that the former employer's excuse for the firing is merely a ruse, a worker alleging arbitrary discrimination now needs direct evidence of impermissible bias. Hicks, an African-American supervisor at a Missouri prison, had a satisfactory work record until a new boss, who was white, took over. Thereafter, Hicks was frequently disciplined, then demoted. After a confrontation with his supervisor, Hicks was fired and replaced with a white worker. Hicks proved in a lower court that his employer's case was based on outright falsehoods. The prison administration asserted that the severity and frequency of Hicks' rulebreaking was the reason for his termination. But Hicks proved that similar or more serious infractions were often ignored when committed by white workers. He also proved his white supervisor manufactured a confrontation in order to fire him. The Supreme Court nevertheless ruled that Hicks failed to prove that the discrimination was racially motivated and that the fact that his employer lied in court yielded nothing. As a result of Hicks, in such a case the fired employee must now produce more, direct evidence of discrimination. This not only contradicts two decades of established precedent, but it also has the effect of sanctioning lying as a defense in bias suits and of requiring fired workers to produce concrete evidence of a typically subtle and difficult to prove occurrence. Justice Souter, in dissent, lamented that the Court's decision placed fired workers in an impossible position "for the simple reason that employers . . . are not likely to announce their discriminatory motive."145 The Validity of Anti-Discrimination Statutes In United States v. Lopez,146 Chief Justice Rehnquist, writing for a fivemember Reagan-Bush majority, struck down the federal Gun-Free School Zones Act on the basis that Congress exceeded its authority under the Commerce Clause of the Constitution in enacting the legislation. Lopez marks the first time since 1936 that the Court has relied on the Commerce Clause to invalidate federal legislation. Although Congress presumably believed that gun violence interjected in a school environment interfered with the quality of education which, in turn, is intimately tied to the future economic viability of individuals, the Supreme Court struck down the statute because such concerns do not "substantially" affect interstate commerce. EXT-18-2091-C-000189 007104-000910 Document ID: 0.7.19343.5844-000002 The troubling aspects of the Lopez decision lie not only in the Court's evident reversal of 60 years of settled Commerce Clause jurisprudence, but also in the fact that Congress has passed major pieces of civil rights legislation upheld by prior Supreme Court opinions on the basis of Congress' power to regulate interstate commerce. For instance, Title II of the 1964 Civil Rights Act bans discrimination in places of public accommodation by covering any establishment which serves interstate commerce. In Heart of Atlanta Motel v. United States,147 and Katzenbach v. McClung,148 the Supreme Court upheld the 1964 Civil Rights Act against a commerce clause attack. While Lopez itself does not speak to this issue, the addition of right-wing justices to the Court could well threaten Congress' authority to enact anti-discrimination statutes. Very recently, this threat has proven much more than hypothetical. In 1994, Congress passed the Violence Against Women Act, a measure intended to create federal crimes for those who attack women. Congress enacted this piece of legislation based in part on its power to regulate interstate commerce, postulating that violence against women affected their job performance and therefore had a substantial effect on interstate commerce. However, in a July 29, 1996 decision, Reaganappointed district court judge Jackson L. Kiser invalidated the Violence Against Women Act, citing Lopez as the authority to conclude that Congress exceeded its authority in enacting the Act because violence against women bears no rational relationship to interstate commerce.149 Imposition of a far right judicial litmus test threatens to produce many more such decisions. Gender and Sexual Orientation Discrimination In J.E.B. v. Alabama,150 the Supreme Court held that intentional discrimination on the basis of gender in the use of peremptory strikes in jury selection violates the constitutional guarantee of equal protection. Like race-based exclusions in jury selections, the Court determined that gender is "an unconstitutional proxy for juror competence and impartiality."151 But the Court's three most conservative justices dissented from this seemingly uncontroversial proposition. Chief Justice Rehnquist and Justices Scalia and Thomas charged sarcastically that "[t]oday's opinion is an inspiring demonstration of how thoroughly up-todate and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors."152 EXT-18-2091-C-000190 007104-000911 Document ID: 0.7.19343.5844-000002 The troubling aspects of the Lopez decision lie not only in the Court's evident reversal of 60 years of settled Commerce Clause jurisprudence, but also in the fact that Congress has passed major pieces of civil rights legislation upheld by prior Supreme Court opinions on the basis of Congress' power to regulate interstate commerce. For instance, Title II of the 1964 Civil Rights Act bans discrimination in places of public accommodation by covering any establishment which serves interstate commerce. In Heart of Atlanta Motel v. United States,147 and Katzenbach v. McClung,148 the Supreme Court upheld the 1964 Civil Rights Act against a commerce clause attack. While Lopez itself does not speak to this issue, the addition of right-wing justices to the Court could well threaten Congress' authority to enact anti-discrimination statutes. Very recently, this threat has proven much more than hypothetical. In 1994, Congress passed the Violence Against Women Act, a measure intended to create federal crimes for those who attack women. Congress enacted this piece of legislation based in part on its power to regulate interstate commerce, postulating that violence against women affected their job performance and therefore had a substantial effect on interstate commerce. However, in a July 29, 1996 decision, Reaganappointed district court judge Jackson L. Kiser invalidated the Violence Against Women Act, citing Lopez as the authority to conclude that Congress exceeded its authority in enacting the Act because violence against women bears no rational relationship to interstate commerce.149 Imposition of a far right judicial litmus test threatens to produce many more such decisions. Gender and Sexual Orientation Discrimination In J.E.B. v. Alabama,150 the Supreme Court held that intentional discrimination on the basis of gender in the use of peremptory strikes in jury selection violates the constitutional guarantee of equal protection. Like race-based exclusions in jury selections, the Court determined that gender is "an unconstitutional proxy for juror competence and impartiality."151 But the Court's three most conservative justices dissented from this seemingly uncontroversial proposition. Chief Justice Rehnquist and Justices Scalia and Thomas charged sarcastically that "[t]oday's opinion is an inspiring demonstration of how thoroughly up-todate and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors."152 EXT-18-2091-C-000190 007104-000911 Document ID: 0.7.19343.5844-000002 The complaints of Justice Scalia and his colleagues about compelling a state to treat equally its women and its men are the same complaints that have been used to deny opportunities to women seeking admission to the bar, access to legal and medical educations, entrance to the federal military service academies or to police academies. Although the Supreme Court majority ruled favorably on this issue of gender discrimination, the dissent's venomous attacks on the legal basis for such conclusions illustrate the potential consequences if as few as two new justices are added using a right-wing judicial litmus test. So, too, does the dissent in the landmark case of Romer v. Evans,153 in which a 6-3 majority of the Supreme Court invalidated an amendment to the Colorado state constitution which attempted to forbid any component of state government from extending civil rights protections on the basis of sexual orientation. Writing for the majority, Justice Anthony Kennedy quoted the dissent in Plessy v. Ferguson, the case in which the Supreme Court articulated its infamous "separate but equal" principle of racial "equality," asserting that "the Constitution 'neither knows nor tolerates classes among citizens.'"154 The opinion in Romer upheld the basic principle that "[a] State cannot so deem a class of persons a stranger to its laws."155 However basic the principle laid down in Romer may appear, however, the dissent joined by Chief Justice Rehnquist and Justices Scalia and Thomas found much with which to disagree. Eeringly noting that the majority "has mistaken a Kulturkampf for a fit of spite," Justice Scalia characterized Colorado's attempt at excluding gays and lesbians as simply a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."156 Justice Scalia appeared to criticize gays and lesbians for having high disposable income, political power in disproportionate measure to their numbers, and enjoying enormous influence in American media and politics. Besides the fact that these points in the dissent have little or no relevance to the equality principle at hand in the case, they are astonishing because of their conformity to the rhetoric of some of the far right's worst gay-baiters.157 In light of its decision in Romer, the Supreme Court ordered the U.S. Court of Appeals for the Sixth Circuit to reconsider its decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati.158 In Equality Foundation, Reagan appointee Robert Krupansky, writing for EXT-18-2091-C-000191 007104-000912 Document ID: 0.7.19343.5844-000002 The complaints of Justice Scalia and his colleagues about compelling a state to treat equally its women and its men are the same complaints that have been used to deny opportunities to women seeking admission to the bar, access to legal and medical educations, entrance to the federal military service academies or to police academies. Although the Supreme Court majority ruled favorably on this issue of gender discrimination, the dissent's venomous attacks on the legal basis for such conclusions illustrate the potential consequences if as few as two new justices are added using a right-wing judicial litmus test. So, too, does the dissent in the landmark case of Romer v. Evans,153 in which a 6-3 majority of the Supreme Court invalidated an amendment to the Colorado state constitution which attempted to forbid any component of state government from extending civil rights protections on the basis of sexual orientation. Writing for the majority, Justice Anthony Kennedy quoted the dissent in Plessy v. Ferguson, the case in which the Supreme Court articulated its infamous "separate but equal" principle of racial "equality," asserting that "the Constitution 'neither knows nor tolerates classes among citizens.'"154 The opinion in Romer upheld the basic principle that "[a] State cannot so deem a class of persons a stranger to its laws."155 However basic the principle laid down in Romer may appear, however, the dissent joined by Chief Justice Rehnquist and Justices Scalia and Thomas found much with which to disagree. Eeringly noting that the majority "has mistaken a Kulturkampf for a fit of spite," Justice Scalia characterized Colorado's attempt at excluding gays and lesbians as simply a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws."156 Justice Scalia appeared to criticize gays and lesbians for having high disposable income, political power in disproportionate measure to their numbers, and enjoying enormous influence in American media and politics. Besides the fact that these points in the dissent have little or no relevance to the equality principle at hand in the case, they are astonishing because of their conformity to the rhetoric of some of the far right's worst gay-baiters.157 In light of its decision in Romer, the Supreme Court ordered the U.S. Court of Appeals for the Sixth Circuit to reconsider its decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati.158 In Equality Foundation, Reagan appointee Robert Krupansky, writing for EXT-18-2091-C-000191 007104-000912 Document ID: 0.7.19343.5844-000002 the three-judge panel, rejected an equal protection claim out of hand in circumstances closely similar to those in Romer, finding that the Constitution affords no protection to gays, lesbians, and bisexuals and that a gay person's interest in participating in the political process like any other citizen was not sufficiently "fundamental" to warrant heightened constitutional protection. Acting in part on the advice of rejected Reagan Supreme Court nominee Robert Bork, who authored a "friend of the court" brief in Equality Foundation, the Sixth Circuit relied extensively on the Supreme Court's decision in Bowers v. Hardwick,159 in which the Court dismissed a gay man's claim that the Georgia sodomy statute unconstitutionally infringed on his right to privacy as against arbitrary governmental intrusions. Although the Bowers Court expressly declined to consider equal protection arguments, the Equality Foundation Court nonetheless equated sodomy with sexual orientation and rejected the claim that gays deserve constitutional protection against electoral majorities which ride roughshod over rights non-gay Americans take for granted. The federal courts have similarly used Bowers to reject the claim that the wholesale exclusion of gays from the military and the "Don't Ask, Don't Tell" exclusion of gays from the military violates the constitutional guarantee of equal protection.160 To the extent that the far right succeeds in imposing a new judicial litmus test on future judicial appointments, these decisions merely signal the beginning of what will no doubt be a long line of cases curtailing even the most fundamental civil liberties of gay and lesbian Americans. Disability Rights The disabled have similarly seen their statutory and constitutional rights damaged by Reagan-Bush judges. In Lane v. Pena,161 the Supreme Court rejected a plaintiff's claim that he was entitled to compensatory damages from the federal government under the Rehabilitation Act for an unlawful separation from the Merchant Marine Academy. The Court ruled that because the text of the statute does not expressly waive the federal government's routine exemption from the payment of such damages, the disabled plaintiff could not recover damages. In dissent, Justice Stevens pointed out that the Court failed to credit the clear purpose of Congress in enacting and amending the Rehabilitation Act to authorize an award of damages against a federal agency that violates the Act's provisions. EXT-18-2091-C-000192 007104-000913 Document ID: 0.7.19343.5844-000002 the three-judge panel, rejected an equal protection claim out of hand in circumstances closely similar to those in Romer, finding that the Constitution affords no protection to gays, lesbians, and bisexuals and that a gay person's interest in participating in the political process like any other citizen was not sufficiently "fundamental" to warrant heightened constitutional protection. Acting in part on the advice of rejected Reagan Supreme Court nominee Robert Bork, who authored a "friend of the court" brief in Equality Foundation, the Sixth Circuit relied extensively on the Supreme Court's decision in Bowers v. Hardwick,159 in which the Court dismissed a gay man's claim that the Georgia sodomy statute unconstitutionally infringed on his right to privacy as against arbitrary governmental intrusions. Although the Bowers Court expressly declined to consider equal protection arguments, the Equality Foundation Court nonetheless equated sodomy with sexual orientation and rejected the claim that gays deserve constitutional protection against electoral majorities which ride roughshod over rights non-gay Americans take for granted. The federal courts have similarly used Bowers to reject the claim that the wholesale exclusion of gays from the military and the "Don't Ask, Don't Tell" exclusion of gays from the military violates the constitutional guarantee of equal protection.160 To the extent that the far right succeeds in imposing a new judicial litmus test on future judicial appointments, these decisions merely signal the beginning of what will no doubt be a long line of cases curtailing even the most fundamental civil liberties of gay and lesbian Americans. Disability Rights The disabled have similarly seen their statutory and constitutional rights damaged by Reagan-Bush judges. In Lane v. Pena,161 the Supreme Court rejected a plaintiff's claim that he was entitled to compensatory damages from the federal government under the Rehabilitation Act for an unlawful separation from the Merchant Marine Academy. The Court ruled that because the text of the statute does not expressly waive the federal government's routine exemption from the payment of such damages, the disabled plaintiff could not recover damages. In dissent, Justice Stevens pointed out that the Court failed to credit the clear purpose of Congress in enacting and amending the Rehabilitation Act to authorize an award of damages against a federal agency that violates the Act's provisions. EXT-18-2091-C-000192 007104-000913 Document ID: 0.7.19343.5844-000002 In Heller v. Doe,162 the Supreme Court decided against the rights of mentally retarded citizens, upholding a Kentucky statute which set forth a dubious distinction between mentally ill individuals and mentally retarded individuals. In Heller, the Court approved the statute's scheme by which a mentally retarded individual could be involuntarily committed to a state facility upon a showing of "convincing" evidence that such citizen presented a danger to himself or others but a mentally ill individual could be involuntarily committed to a state facility only upon a much higher standard of showing evidence "beyond a reasonable doubt" that such citizen presented a danger to himself or others. The Court further approved the statute's scheme by which the family and guardians of a mentally retarded individual could team up with the state as a "second prosecutor" in prosecuting an involuntary commitment motion but the family and guardians of a mentally ill individual could not. Essentially, the Court refused to entertain the notion that a mentally retarded individual's interest in avoiding involuntary commitment did not rise to the level of a "fundamental right" subject to heightened constitutional protection. In dissent, Justice Souter contended that no rational justification supported the distinction between mentally ill and mentally retarded individuals. He argued that a statute's allocation of burdens of proof reflected not the ease with which some fact may be proved (a contention Kentucky used to support the distinction at issue), but that a statute's allocation of burdens of proof reflected the relative importance of the interests asserted in different cases. Justice Souter referred to the "more likely than not" burden of proof in civil cases to the "beyond a reasonable doubt" burden of proof in criminal cases. He explained that our legal system assigns the much more stringent "beyond a reasonable doubt" standard to criminal cases because a criminal case is relatively harder to prove than a civil case. Rather, our legal system does not assign the much more stringent "beyond a reasonable doubt" standard to criminal cases because an erroneous criminal case verdict routinely results in the deprivation of liberty to the convicted defendant. In civil cases, on the other hand, an erroneous verdict routinely results merely in the payment of damages. Justice Souter convincingly argued that because there existed no distinction between the involuntary commitment of a mentally ill individual and the involuntary commitment of a mentally retarded individual, the burdens of proof should likewise reflect no distinction. EXT-18-2091-C-000193 007104-000914 Document ID: 0.7.19343.5844-000002 In Heller v. Doe,162 the Supreme Court decided against the rights of mentally retarded citizens, upholding a Kentucky statute which set forth a dubious distinction between mentally ill individuals and mentally retarded individuals. In Heller, the Court approved the statute's scheme by which a mentally retarded individual could be involuntarily committed to a state facility upon a showing of "convincing" evidence that such citizen presented a danger to himself or others but a mentally ill individual could be involuntarily committed to a state facility only upon a much higher standard of showing evidence "beyond a reasonable doubt" that such citizen presented a danger to himself or others. The Court further approved the statute's scheme by which the family and guardians of a mentally retarded individual could team up with the state as a "second prosecutor" in prosecuting an involuntary commitment motion but the family and guardians of a mentally ill individual could not. Essentially, the Court refused to entertain the notion that a mentally retarded individual's interest in avoiding involuntary commitment did not rise to the level of a "fundamental right" subject to heightened constitutional protection. In dissent, Justice Souter contended that no rational justification supported the distinction between mentally ill and mentally retarded individuals. He argued that a statute's allocation of burdens of proof reflected not the ease with which some fact may be proved (a contention Kentucky used to support the distinction at issue), but that a statute's allocation of burdens of proof reflected the relative importance of the interests asserted in different cases. Justice Souter referred to the "more likely than not" burden of proof in civil cases to the "beyond a reasonable doubt" burden of proof in criminal cases. He explained that our legal system assigns the much more stringent "beyond a reasonable doubt" standard to criminal cases because a criminal case is relatively harder to prove than a civil case. Rather, our legal system does not assign the much more stringent "beyond a reasonable doubt" standard to criminal cases because an erroneous criminal case verdict routinely results in the deprivation of liberty to the convicted defendant. In civil cases, on the other hand, an erroneous verdict routinely results merely in the payment of damages. Justice Souter convincingly argued that because there existed no distinction between the involuntary commitment of a mentally ill individual and the involuntary commitment of a mentally retarded individual, the burdens of proof should likewise reflect no distinction. EXT-18-2091-C-000193 007104-000914 Document ID: 0.7.19343.5844-000002 Civil Rights and Diversity On the Federal Courts Another important consequence of the Reagan-Bush judicial litmus test was that Reagan-Bush nominees were overwhelmingly white and male, with women and minorities largely excluded from nomination. The statistics are striking. Out of more than 600 judges nominated by Presidents Reagan and Bush, less than one in every twenty was African-American and less than one in every eight was a woman. In fact, after twelve years of Reagan-Bush appointments, there were actually less African-American judges on the federal courts of appeals than in 1981. As then-Senior Judge Leon Higginbotham wrote in July, 1992: I am forced to conclude that the record of appointments of African-Americans to the Courts of Appeals during the past 12 years demonstrates that, by intentional Presidential action, African-American judges have been turned into an endangered species, soon to become extinct.163 This dire prediction did not come true, however, because of the significant increase in diversity on the federal bench under President Clinton. In his first year in office, President Clinton nominated more African-American judges than President Reagan did in eight years. Overall, as of July, 1996, Clinton had made 231 judicial nominations, of whom more than one in four were minorities and more than three in ten were women. At the same time, more than 65% of Clinton's nominees were rated "well qualified" by the ABA, a higher rating than under Presidents Bush, Reagan, or Carter.164 Neutral observers such as Professor Sheldon Goldman have praised Clinton's efforts.165 Yet proponents of a new far right judicial litmus test have specifically criticized Clinton's nominations because of the increased number of women and minorities. JSMP's Tom Jipping has actually accused President Clinton of "race and sex discrimination," and conservative activists are urging that efforts to promote diversity on the federal bench should be ended.166 As Judge Higginbotham has written, diversity in the federal judiciary is important to ensure that litigants "benefit from the experience of those whose backgrounds reflect the breadth of the American experience" and to help build a judiciary "that is both substantively excellent and respected by the general population."167 Both the Reagan-Bush record EXT-18-2091-C-000194 007104-000915 Document ID: 0.7.19343.5844-000002 Civil Rights and Diversity On the Federal Courts Another important consequence of the Reagan-Bush judicial litmus test was that Reagan-Bush nominees were overwhelmingly white and male, with women and minorities largely excluded from nomination. The statistics are striking. Out of more than 600 judges nominated by Presidents Reagan and Bush, less than one in every twenty was African-American and less than one in every eight was a woman. In fact, after twelve years of Reagan-Bush appointments, there were actually less African-American judges on the federal courts of appeals than in 1981. As then-Senior Judge Leon Higginbotham wrote in July, 1992: I am forced to conclude that the record of appointments of African-Americans to the Courts of Appeals during the past 12 years demonstrates that, by intentional Presidential action, African-American judges have been turned into an endangered species, soon to become extinct.163 This dire prediction did not come true, however, because of the significant increase in diversity on the federal bench under President Clinton. In his first year in office, President Clinton nominated more African-American judges than President Reagan did in eight years. Overall, as of July, 1996, Clinton had made 231 judicial nominations, of whom more than one in four were minorities and more than three in ten were women. At the same time, more than 65% of Clinton's nominees were rated "well qualified" by the ABA, a higher rating than under Presidents Bush, Reagan, or Carter.164 Neutral observers such as Professor Sheldon Goldman have praised Clinton's efforts.165 Yet proponents of a new far right judicial litmus test have specifically criticized Clinton's nominations because of the increased number of women and minorities. JSMP's Tom Jipping has actually accused President Clinton of "race and sex discrimination," and conservative activists are urging that efforts to promote diversity on the federal bench should be ended.166 As Judge Higginbotham has written, diversity in the federal judiciary is important to ensure that litigants "benefit from the experience of those whose backgrounds reflect the breadth of the American experience" and to help build a judiciary "that is both substantively excellent and respected by the general population."167 Both the Reagan-Bush record EXT-18-2091-C-000194 007104-000915 Document ID: 0.7.19343.5844-000002 and the rhetoric of right-wing activists indicate, however, that imposition of a new far right judicial litmus test threatens to re-transform America's courts into an overwhelmingly white male province, with minorities again becoming, in Judge Higginbotham's words, an endangered species. ABORTION AND REPRODUCTIVE FREEDOM The issue of reproductive privacy and freedom of choice has been a central one for right-wing activists seeking to influence the Supreme Court. Although judicial nominations efforts during the Reagan-Bush administrations did not succeed in actually overturning Roe v. Wade, freedom of reproductive choice has been severely cut back as a result of Reagan-Bush appointments to the Court, and further erosion of reproductive freedom is threatened in the future. In addition, right-wing activists have made clear that Roe v. Wade remains high on their judicial hit list, and if they are able to succeed in implementing a new far right judicial litmus test, constitutional protection for reproductive privacy is likely to disappear altogether. Restrictions on Reproductive Choice When the Supreme Court decided Planned Parenthood v. Casey in 1992, headlines proclaimed that despite Reagan-Bush appointments, the Court did not overturn Roe v. Wade. While these headlines were correct, they told only half the story. Although declining to overturn Roe, the majority in Casey approved severe restrictions on reproductive choice, overturning a previous Supreme Court ruling as recent as 1986.168 As a result of Casey, as well as several other Court rulings before and since that decision, the High Court has specifically approved a number of significant restrictions on reproductive freedom, including laws and regulations which: ? ? ? Ban all abortions at public facilities, including even at private hospitals or clinics which lease space from public agencies, foreclosing the availability of abortions to many women;169 Impose requirements on abortion providers which, according to a federal district court, would likely produce increased harassment of providers, unjustifiably interfere with the exercise of proper medical judgment, and make it more difficult for poor women to obtain abortions;170 Require that doctors performing abortions effectively try to discourage them by informing patients about details of fetal EXT-18-2091-C-000195 007104-000916 Document ID: 0.7.19343.5844-000002 and the rhetoric of right-wing activists indicate, however, that imposition of a new far right judicial litmus test threatens to re-transform America's courts into an overwhelmingly white male province, with minorities again becoming, in Judge Higginbotham's words, an endangered species. ABORTION AND REPRODUCTIVE FREEDOM The issue of reproductive privacy and freedom of choice has been a central one for right-wing activists seeking to influence the Supreme Court. Although judicial nominations efforts during the Reagan-Bush administrations did not succeed in actually overturning Roe v. Wade, freedom of reproductive choice has been severely cut back as a result of Reagan-Bush appointments to the Court, and further erosion of reproductive freedom is threatened in the future. In addition, right-wing activists have made clear that Roe v. Wade remains high on their judicial hit list, and if they are able to succeed in implementing a new far right judicial litmus test, constitutional protection for reproductive privacy is likely to disappear altogether. Restrictions on Reproductive Choice When the Supreme Court decided Planned Parenthood v. Casey in 1992, headlines proclaimed that despite Reagan-Bush appointments, the Court did not overturn Roe v. Wade. While these headlines were correct, they told only half the story. Although declining to overturn Roe, the majority in Casey approved severe restrictions on reproductive choice, overturning a previous Supreme Court ruling as recent as 1986.168 As a result of Casey, as well as several other Court rulings before and since that decision, the High Court has specifically approved a number of significant restrictions on reproductive freedom, including laws and regulations which: ? ? ? Ban all abortions at public facilities, including even at private hospitals or clinics which lease space from public agencies, foreclosing the availability of abortions to many women;169 Impose requirements on abortion providers which, according to a federal district court, would likely produce increased harassment of providers, unjustifiably interfere with the exercise of proper medical judgment, and make it more difficult for poor women to obtain abortions;170 Require that doctors performing abortions effectively try to discourage them by informing patients about details of fetal EXT-18-2091-C-000195 007104-000916 Document ID: 0.7.19343.5844-000002 ? development, alternatives to abortion, and entitlement to public aid and child support if a pregnancy is carried to term, despite a federal judge's finding that such a practice may mislead or confuse patients and is generally inappropriate;171 Prohibit abortions after 20 weeks even in cases of rape or incest, or for any reason other than significant threats to maternal life or health and grave fetal abnormalities.172 Perhaps the most serious damage done by the majority in Casey was its proclamation that government restrictions on a woman's right of choice are permissible, even during the first trimester of pregnancy, as long as no "undue burden" is imposed upon her. As a result of Casey, restrictions on the availability of abortions are no longer subject to strict scrutiny as originally prescribed by Roe, and thus no longer need to be "narrowly drawn" to promote a "compelling state interest."173 Based on this standard, the lower courts have upheld a variety of abortion restrictions, such as: ? ? ? State regulation of abortions for the purpose of persuading women not to have them;174 A requirement that a woman be counseled at least 24 hours in advance of her abortion to allow for the state's expression of its preference for childbirth, despite the fact that plaintiffs complained that the result was "demeaning and patronizing" and was "at best useless" given evidence that no patient has ever canceled her plans or changed her decision because of the mandated information.175 Informed consent and waiting period provisions that provide no exceptions for cases of rape or for women upon whom the requirement would have serious adverse effects,176 such as women battered by their husbands. Another way in which reproductive freedom is threatened concerns action by abortion opponents to block access to medical facilities, threaten or injure patients and staff, far beyond legitimate First Amendment protest activities. In one of the most extreme cases to date, antiabortionist Paul Jennings Hill shot a physician and his two escorts outside a Florida clinic. Hill tried to raise the legal defense of necessity, involving necessary action to prevent imminent harm to another. Although Reagan-appointed Judge Roger Vinson rejected the defense in Hill itself, he specifically ruled that Hill or any other such defendant could raise a necessity defense to a charge of shooting clinic personnel, EXT-18-2091-C-000196 007104-000917 Document ID: 0.7.19343.5844-000002 ? development, alternatives to abortion, and entitlement to public aid and child support if a pregnancy is carried to term, despite a federal judge's finding that such a practice may mislead or confuse patients and is generally inappropriate;171 Prohibit abortions after 20 weeks even in cases of rape or incest, or for any reason other than significant threats to maternal life or health and grave fetal abnormalities.172 Perhaps the most serious damage done by the majority in Casey was its proclamation that government restrictions on a woman's right of choice are permissible, even during the first trimester of pregnancy, as long as no "undue burden" is imposed upon her. As a result of Casey, restrictions on the availability of abortions are no longer subject to strict scrutiny as originally prescribed by Roe, and thus no longer need to be "narrowly drawn" to promote a "compelling state interest."173 Based on this standard, the lower courts have upheld a variety of abortion restrictions, such as: ? ? ? State regulation of abortions for the purpose of persuading women not to have them;174 A requirement that a woman be counseled at least 24 hours in advance of her abortion to allow for the state's expression of its preference for childbirth, despite the fact that plaintiffs complained that the result was "demeaning and patronizing" and was "at best useless" given evidence that no patient has ever canceled her plans or changed her decision because of the mandated information.175 Informed consent and waiting period provisions that provide no exceptions for cases of rape or for women upon whom the requirement would have serious adverse effects,176 such as women battered by their husbands. Another way in which reproductive freedom is threatened concerns action by abortion opponents to block access to medical facilities, threaten or injure patients and staff, far beyond legitimate First Amendment protest activities. In one of the most extreme cases to date, antiabortionist Paul Jennings Hill shot a physician and his two escorts outside a Florida clinic. Hill tried to raise the legal defense of necessity, involving necessary action to prevent imminent harm to another. Although Reagan-appointed Judge Roger Vinson rejected the defense in Hill itself, he specifically ruled that Hill or any other such defendant could raise a necessity defense to a charge of shooting clinic personnel, EXT-18-2091-C-000196 007104-000917 Document ID: 0.7.19343.5844-000002 and potentially be acquitted of all charges, if he could prove that he had exhausted all available legal alternatives to preventing abortions over a long period and that abortions were about to be performed by his victims.177 Particularly if followed by other judges, this decision threatens not only reproductive freedom, but also the very health and lives of doctors, nurses, and other clinic personnel. Even if Roe v. Wade is not overruled, therefore, Reagan-Bush judges and justices have already severely restricted reproductive freedom, and are likely to continue to do so in the future. This trend can only be accelerated if additional judges are added to the federal courts based on a far right litmus test. Overturning Roe v. Wade Beyond simply restricting reproductive choice, right-wing activists seeking to impose a new far-right judicial litmus test have made clear that Roe v. Wade is a primary target of their efforts. A key reason for their praise of Reagan-Bush Supreme Court nominees like Clarence Thomas, as well as their criticism of justices such as David Souter, has been the justices' voting records on abortion. In advocating that the Republican Party platform plank on abortion remain precisely as is for 1996, right-wing advocates have specifically pointed to the plank's call for the "appointment of judges at all levels who respect traditional family values and the sanctity of innocent human life."178 Earlier this summer, religious right leader Pat Robertson specifically urged "Christian voters" to get involved in the presidential election because "we have a chance right now in this coming election to see three Supreme Court [justices], conservative Supreme Court judges put on the Court, which could indeed reverse Roe v. Wade...."179 In fact, only two additional conservative Supreme Court justices like those on the current Court right wing would result in overturning Roe v. Wade, since Chief Justice Rehnquist and Justices Scalia and Thomas have already voted for that result in Casey. The consequences of such a decision would be devastating to women and families. Women could literally be considered criminals by state legislatures for deciding to have an abortion, even in the case of rape or incest. A doctor could be put in jail for performing an abortion, even if necessary to preserve a woman's health. Imposition of a far-right judicial litmus test clearly risks such results in the area of reproductive freedom. EXT-18-2091-C-000197 007104-000918 Document ID: 0.7.19343.5844-000002 and potentially be acquitted of all charges, if he could prove that he had exhausted all available legal alternatives to preventing abortions over a long period and that abortions were about to be performed by his victims.177 Particularly if followed by other judges, this decision threatens not only reproductive freedom, but also the very health and lives of doctors, nurses, and other clinic personnel. Even if Roe v. Wade is not overruled, therefore, Reagan-Bush judges and justices have already severely restricted reproductive freedom, and are likely to continue to do so in the future. This trend can only be accelerated if additional judges are added to the federal courts based on a far right litmus test. Overturning Roe v. Wade Beyond simply restricting reproductive choice, right-wing activists seeking to impose a new far-right judicial litmus test have made clear that Roe v. Wade is a primary target of their efforts. A key reason for their praise of Reagan-Bush Supreme Court nominees like Clarence Thomas, as well as their criticism of justices such as David Souter, has been the justices' voting records on abortion. In advocating that the Republican Party platform plank on abortion remain precisely as is for 1996, right-wing advocates have specifically pointed to the plank's call for the "appointment of judges at all levels who respect traditional family values and the sanctity of innocent human life."178 Earlier this summer, religious right leader Pat Robertson specifically urged "Christian voters" to get involved in the presidential election because "we have a chance right now in this coming election to see three Supreme Court [justices], conservative Supreme Court judges put on the Court, which could indeed reverse Roe v. Wade...."179 In fact, only two additional conservative Supreme Court justices like those on the current Court right wing would result in overturning Roe v. Wade, since Chief Justice Rehnquist and Justices Scalia and Thomas have already voted for that result in Casey. The consequences of such a decision would be devastating to women and families. Women could literally be considered criminals by state legislatures for deciding to have an abortion, even in the case of rape or incest. A doctor could be put in jail for performing an abortion, even if necessary to preserve a woman's health. Imposition of a far-right judicial litmus test clearly risks such results in the area of reproductive freedom. EXT-18-2091-C-000197 007104-000918 Document ID: 0.7.19343.5844-000002 End Notes 1 "Excerpts From Speech: On the Judiciary," New York Times, April 20, 1996, at 10. See, e.g., Ted Gest, "Disorder in the courts?", U.S. News & World Report, February 12, 1996, at 40; Eric Schmitt, "Senator Renews Attack on Clinton's Judges," New York Times, March 26, 1996, at 9. 3 John McGinnis, "Original Thomas, Conventional Souter," Policy Review, Fall, 1995, at 28. 4 Glen Elsasser, "Wanted: Judges With 'Restraint'; Meese: No Ideological 'Litmus Test' for Candidates," Chicago Tribune, February 11, 1986, at 14. 5 Transcript of "All Things Considered" broadcast, National Public Radio report, August 28, 1985. 6 Id. 7 Sheldon Goldman, "The Age of Judges: Reagan's Second Term Appointees," ABA Journal, October 1, 1987, at 94. 8 Philip Lacovara, "The Wrong Way to Pick Judges," New York Times, October 3, 1986, at 31. 9 Id. 10 Tony Mauro, "Conservative Tilt Marks Remade Court," USA Today, January 24, 1989, at 1A. 11 Paul Gigot, "Supreme Court: An Emerging Case of Poetic Justice," Wall Street Journal, January 27, 1989, at 14. 12 W. John Moore, "Righting the Courts," The National Journal, January 25, 1992, at 200. 13 "Bush Boosts Bench Strength of Conservative Judges," Congressional Quarterly, January 19, 1991. 14 See People For the American Way, Assault on Liberty: The Record of the Reagan-Bush Courts (1992). 15 Payne v. Tennessee, 111 S. Ct. 2597, 2619 (1991) (Marshall, J., dissenting). 16 "Justice Anthony Kennedy: Surely Reagan's Biggest Disappointment," Human Events, May 31 & June 7, 1996, at 3. 17 Id. at 3-4. 18 "Family News in Focus" (radio program), May 21, 1996. 19 "Justice Anthony Kennedy: Surely Reagan's Biggest Disappointment," supra note 16, at 4. 20 McGinnis, supra note 3, at 24. 21 Id. at 28. 22 Id. at 28-29. 23 Id. at 24. 24 Id. at 29. 25 Don Feder, "Assault on Ethics," Washington Times, May 30, 1996. 26 Gary Bauer, "A Message from Gary L. Bauer" (letter), December 8, 1995. 27 "Abortion: Dole Tries to Get It Right," The Hotline, July 15, 1996. 28 Gary Bauer, "Focus on the Family" (radio program), May 30, 1996. 29 Gest, supra note 2, at 40. 30 Guy Kelly, "Dole Attacks Clinton's 'Liberal Philosophy' Against Crime," Rocky Mountain News, May 29, 1996, at 5. 31 Clint Bolick, "Control of Federal Courts Key Issue in Election," USA Today, January, 9, 1996, at 11A. 32 See, e.g., Daniel Troy, "Reconsidering the ABA's Formal Involvement in Judicial Selection Will Enhance the Cause of Federalism," Federalist Paper, May, 1996; Thomas Sowell, "Tilted Judicial Endorsements," Washington Times, May 9, 1996. 33 See Sen. Bob Dole (R-KS), speech to American Society of Newspaper Editors, April 19, 1996. 34 See JSMP fund-raising letter (June, 1995) (available in PFAW files). 35 Bob Dole, "Dole Tells How He Would Pick Judges," Insight, April 29, 1996, at 11. 36 "Molinari: Dole Reaches Out to Women, Pro-Choicers," The Hotline, July 16, 1996 (Larry King Live, July 15, 1996). 2 EXT-18-2091-C-000198 007104-000919 Document ID: 0.7.19343.5844-000002 End Notes 1 "Excerpts From Speech: On the Judiciary," New York Times, April 20, 1996, at 10. See, e.g., Ted Gest, "Disorder in the courts?", U.S. News & World Report, February 12, 1996, at 40; Eric Schmitt, "Senator Renews Attack on Clinton's Judges," New York Times, March 26, 1996, at 9. 3 John McGinnis, "Original Thomas, Conventional Souter," Policy Review, Fall, 1995, at 28. 4 Glen Elsasser, "Wanted: Judges With 'Restraint'; Meese: No Ideological 'Litmus Test' for Candidates," Chicago Tribune, February 11, 1986, at 14. 5 Transcript of "All Things Considered" broadcast, National Public Radio report, August 28, 1985. 6 Id. 7 Sheldon Goldman, "The Age of Judges: Reagan's Second Term Appointees," ABA Journal, October 1, 1987, at 94. 8 Philip Lacovara, "The Wrong Way to Pick Judges," New York Times, October 3, 1986, at 31. 9 Id. 10 Tony Mauro, "Conservative Tilt Marks Remade Court," USA Today, January 24, 1989, at 1A. 11 Paul Gigot, "Supreme Court: An Emerging Case of Poetic Justice," Wall Street Journal, January 27, 1989, at 14. 12 W. John Moore, "Righting the Courts," The National Journal, January 25, 1992, at 200. 13 "Bush Boosts Bench Strength of Conservative Judges," Congressional Quarterly, January 19, 1991. 14 See People For the American Way, Assault on Liberty: The Record of the Reagan-Bush Courts (1992). 15 Payne v. Tennessee, 111 S. Ct. 2597, 2619 (1991) (Marshall, J., dissenting). 16 "Justice Anthony Kennedy: Surely Reagan's Biggest Disappointment," Human Events, May 31 & June 7, 1996, at 3. 17 Id. at 3-4. 18 "Family News in Focus" (radio program), May 21, 1996. 19 "Justice Anthony Kennedy: Surely Reagan's Biggest Disappointment," supra note 16, at 4. 20 McGinnis, supra note 3, at 24. 21 Id. at 28. 22 Id. at 28-29. 23 Id. at 24. 24 Id. at 29. 25 Don Feder, "Assault on Ethics," Washington Times, May 30, 1996. 26 Gary Bauer, "A Message from Gary L. Bauer" (letter), December 8, 1995. 27 "Abortion: Dole Tries to Get It Right," The Hotline, July 15, 1996. 28 Gary Bauer, "Focus on the Family" (radio program), May 30, 1996. 29 Gest, supra note 2, at 40. 30 Guy Kelly, "Dole Attacks Clinton's 'Liberal Philosophy' Against Crime," Rocky Mountain News, May 29, 1996, at 5. 31 Clint Bolick, "Control of Federal Courts Key Issue in Election," USA Today, January, 9, 1996, at 11A. 32 See, e.g., Daniel Troy, "Reconsidering the ABA's Formal Involvement in Judicial Selection Will Enhance the Cause of Federalism," Federalist Paper, May, 1996; Thomas Sowell, "Tilted Judicial Endorsements," Washington Times, May 9, 1996. 33 See Sen. Bob Dole (R-KS), speech to American Society of Newspaper Editors, April 19, 1996. 34 See JSMP fund-raising letter (June, 1995) (available in PFAW files). 35 Bob Dole, "Dole Tells How He Would Pick Judges," Insight, April 29, 1996, at 11. 36 "Molinari: Dole Reaches Out to Women, Pro-Choicers," The Hotline, July 16, 1996 (Larry King Live, July 15, 1996). 2 EXT-18-2091-C-000198 007104-000919 Document ID: 0.7.19343.5844-000002 37 Michael J. Sniffen, "Reno Chides Senate on Judges," Associated Press, June 27, 1996. See, e.g., Thomas Jipping, "Dole's Record on Judicial Nominations," Legal Notebook (online), June 10, 1996. 39 "Logjam Broken - At Least Long Enough to Confirm Two Judges," CQ's Congressional Monitor, July 11, 1996, at 5-6. 40 Thomas Jipping, "Why Were These Judges Approved?" Washington Times, August 1, 1996. 41 See draft Republican Party platform, August 5, 1996, at 5. 42 Id. at 6. See also Pat Buchanan, "Ending Judicial Dictatorship," Heritage Lecture No. 553, January 29, 1996, at 4; Guy Gugliotta, "Congress Has the Constitution for Amendments," Washington Post, April 23, 1996, at A15. 43 Linda Greenhouse, "Rehnquist Joins Fray on Rulings, Defending Judicial Independence," New York Times, April 10, 1996. 44 Pat Robertson, "The 700 Club," Christian Broadcasting Network, June 21, 1996. 45 Bolick, supra note 31, at 11A. 46 Thomas Jipping, "The Case Against Stack," Legal Notebook (online), April 22, 1996. 47 Dole, supra note 33. 48 See JSMP fund-raising letter, supra note 34. 49 Alan Elsner, "Dole Hits Clinton on Judges," Reuters, April 19, 1996. 50 "Partisan Hatchet Job Victimized N.C. Judge," News & Record, March 1, 1996, at A12. 51 Jack Quinn, "GOP Playing Politics on Clinton Judicial Choices," USA Today, April 23, 1996, at 11A. 52 See Department of Law Enforcement v. Real Property, 588 So.2d 957 (1991). 53 See Sen. Connie Mack (R-FL), testimony before the Senate Judiciary Committee, Hearings on the Nomination of Rosemary Barkett, Federal Document Clearing House Congressional Testimony, February 3, 1994 ("I believe Justice Barkett will bring to the Eleventh Circuit a demonstrated capacity for intellectual curiosity, for fair-minded and robust debate, and for honesty, all of which will serve our federal judiciary well. Chief justice Barkett deserves to be confirmed.") 54 See Neil MacFarquhar, "Federal Judge to Resign, Citing Political Attacks," New York Times, June 5, 1996, at B4. 55 See Congressional Record, October 4, 1994, at S. 14022 (statement of Sen. Alan Simpson) ("I believe Judge Sarokin has the education and the judicial experience to be a very capable appellate judge."). 56 See Quartararo v. Fogg, 679 F. Supp. 212 (E.D. N.Y. 1988); Quartararo v. Mantello, 715 F. Supp. 449 (E.D. N.Y. 1989). 57 See Joubert v. Hopkins, District of Nebraska Dist. No. 8: CV 91-00350. 58 See Joubert v. Hopkins, 75 F.3d 1232 (8th Cir. 1996). 59 See Reeves v. Hopkins, 871 F. Supp. 1182 (D. Neb. 1994), rev'd. 76 F.3d 1424 (8th Cir. 1996). 60 See United States v. Chen, Northern District of California D.C. No. CR-91-00296-VRW, rev'd., 979 F.2d 714 (9th Cir. 1992). 61 See Hitchcock v. Dugger, 481 U.S. 393 (1987). 62 Congressional Record, April 19, 1996, at S. 3725 (statement of Sen. Patrick Leahy). 63 Tony Mauro, "Experts Warn that Ranking Jurists is Risky," USA Today, May 7, 1996, at 1A. 64 Neil Lewis, "In Selecting Federal Judges, Clinton Has Not Tried to Be the Anti-Reagan," New York Times, August 1, 1996, at 1. 65 Id.; See also Robert Carp, Donald Songer, and Ronald Stidham, The Voting Behavior of Judges Appointed By President Clinton, March 21, 1996. 66 Mauro, supra note 63. 67 "Senator Dole and the Judges," Washington Post, April 23, 1996, at A16. 68 See, e.g., City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (Scalia, J.) (rejecting any application of the Sherman Antitrust Act to anticompetitive restraints imposed by the states, even where those restraints are imposed as part of a conspiracy with a private corporation); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 311 (1981) (Rehnquist, J. concurring) ("[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so."); Morrison v. Olson, 108 S. Ct. 2597, 2622 (1988) (Scalia, J., dissenting) (arguing that Congress does not have 38 EXT-18-2091-C-000199 007104-000920 Document ID: 0.7.19343.5844-000002 37 Michael J. Sniffen, "Reno Chides Senate on Judges," Associated Press, June 27, 1996. See, e.g., Thomas Jipping, "Dole's Record on Judicial Nominations," Legal Notebook (online), June 10, 1996. 39 "Logjam Broken - At Least Long Enough to Confirm Two Judges," CQ's Congressional Monitor, July 11, 1996, at 5-6. 40 Thomas Jipping, "Why Were These Judges Approved?" Washington Times, August 1, 1996. 41 See draft Republican Party platform, August 5, 1996, at 5. 42 Id. at 6. See also Pat Buchanan, "Ending Judicial Dictatorship," Heritage Lecture No. 553, January 29, 1996, at 4; Guy Gugliotta, "Congress Has the Constitution for Amendments," Washington Post, April 23, 1996, at A15. 43 Linda Greenhouse, "Rehnquist Joins Fray on Rulings, Defending Judicial Independence," New York Times, April 10, 1996. 44 Pat Robertson, "The 700 Club," Christian Broadcasting Network, June 21, 1996. 45 Bolick, supra note 31, at 11A. 46 Thomas Jipping, "The Case Against Stack," Legal Notebook (online), April 22, 1996. 47 Dole, supra note 33. 48 See JSMP fund-raising letter, supra note 34. 49 Alan Elsner, "Dole Hits Clinton on Judges," Reuters, April 19, 1996. 50 "Partisan Hatchet Job Victimized N.C. Judge," News & Record, March 1, 1996, at A12. 51 Jack Quinn, "GOP Playing Politics on Clinton Judicial Choices," USA Today, April 23, 1996, at 11A. 52 See Department of Law Enforcement v. Real Property, 588 So.2d 957 (1991). 53 See Sen. Connie Mack (R-FL), testimony before the Senate Judiciary Committee, Hearings on the Nomination of Rosemary Barkett, Federal Document Clearing House Congressional Testimony, February 3, 1994 ("I believe Justice Barkett will bring to the Eleventh Circuit a demonstrated capacity for intellectual curiosity, for fair-minded and robust debate, and for honesty, all of which will serve our federal judiciary well. Chief justice Barkett deserves to be confirmed.") 54 See Neil MacFarquhar, "Federal Judge to Resign, Citing Political Attacks," New York Times, June 5, 1996, at B4. 55 See Congressional Record, October 4, 1994, at S. 14022 (statement of Sen. Alan Simpson) ("I believe Judge Sarokin has the education and the judicial experience to be a very capable appellate judge."). 56 See Quartararo v. Fogg, 679 F. Supp. 212 (E.D. N.Y. 1988); Quartararo v. Mantello, 715 F. Supp. 449 (E.D. N.Y. 1989). 57 See Joubert v. Hopkins, District of Nebraska Dist. No. 8: CV 91-00350. 58 See Joubert v. Hopkins, 75 F.3d 1232 (8th Cir. 1996). 59 See Reeves v. Hopkins, 871 F. Supp. 1182 (D. Neb. 1994), rev'd. 76 F.3d 1424 (8th Cir. 1996). 60 See United States v. Chen, Northern District of California D.C. No. CR-91-00296-VRW, rev'd., 979 F.2d 714 (9th Cir. 1992). 61 See Hitchcock v. Dugger, 481 U.S. 393 (1987). 62 Congressional Record, April 19, 1996, at S. 3725 (statement of Sen. Patrick Leahy). 63 Tony Mauro, "Experts Warn that Ranking Jurists is Risky," USA Today, May 7, 1996, at 1A. 64 Neil Lewis, "In Selecting Federal Judges, Clinton Has Not Tried to Be the Anti-Reagan," New York Times, August 1, 1996, at 1. 65 Id.; See also Robert Carp, Donald Songer, and Ronald Stidham, The Voting Behavior of Judges Appointed By President Clinton, March 21, 1996. 66 Mauro, supra note 63. 67 "Senator Dole and the Judges," Washington Post, April 23, 1996, at A16. 68 See, e.g., City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) (Scalia, J.) (rejecting any application of the Sherman Antitrust Act to anticompetitive restraints imposed by the states, even where those restraints are imposed as part of a conspiracy with a private corporation); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 311 (1981) (Rehnquist, J. concurring) ("[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so."); Morrison v. Olson, 108 S. Ct. 2597, 2622 (1988) (Scalia, J., dissenting) (arguing that Congress does not have 38 EXT-18-2091-C-000199 007104-000920 Document ID: 0.7.19343.5844-000002 the authority to appoint a special prosecutor); Clarence Thomas, speech to the Pacific Research Institute, August 4, 1988, at 13 (praising Scalia's dissent in Morrison); Clarence Thomas, speech to University of Virginia Federalist Society, March 5, 1988, at 13 (referring to Congress as "out of control"). 69 115 S. Ct. 1624 (1995). 70 18 U.S.C. ? 922(q)(2)(A) (1990). 71 Lopez, supra note 69, at 1630. 72 Id. at 1662-63 (Breyer, J., dissenting). 73 Id. at 1664. 74 Id. 75 See U.S. v. Denalli, 73 F.3d 328 (11th Cir. 1996); U.S. v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995). 76 Three of the opinions ruling the Act unconstitutional under Lopez were by Reagan appointee Paul Rosenblatt. See U.S. v. Schroeder, 894 F. Supp. 360, 364 (D. Ariz. 1995); U.S. v. Mussari, 894 F. Supp. 1360, 1368 (D. Ariz. 1995); U.S. v. Schroeder (II), 912 F. Supp. 1240, 1244 (D. Ariz. 1995). See also U.S. v. Parker, 911 F. Supp. 830, 835 (E.D. Pa. 1995); U.S. v. Bailey, 902 F. Supp. 727, 730 (W.D. Tex. 1995). Despite these holdings, several courts have nevertheless found the Child Support Recovery Act constitutional under Lopez. See, e.g., U.S. v. Hampshire, 892 F. Supp. 1327 (D. Kan. 1995); U.S. v. Murphy, 893 F. Supp. 614 (W.D. Va. 1995); U.S. v. Hopper, 899 F. Supp. 389 (S.D. Ind. 1995). 77 U.S. v. Gambill, 912 F.Supp. 287, 290 n. 4 (S.D. Ohio 1996). 78 U.S. v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 499 (9th Cir. 1995). 79 Civ. A. No. 95-1358-R (W.D. Va. July 29, 1996). 80 See 42 U.S.C. ? 13981(c) (1994). 81 Brzonkala, supra note 79. 82 Id. 83 Id. (quoting S. Rep. 138, 103d Cong., 1st Sess. 54 (1993)). 84 Id. Judge Kiser's decision runs directly contrary to an earlier decision by Judge Janet Arterton of the U.S. District Court for the District of Connecticut, which held VAWA constitutional under the Commerce Clause. Doe v. Doe, 1996 U.S. Dist. LEXIS 8601 (D. Conn. 1996). Judge Kiser also rejected VAWA's constitutionality under the enforcement clause of the Fourteenth Amendment. The validity of this conclusion is equally suspect given the Supreme Court's holding in Katzenbach v. Morgan, 384 U.S. 641 (1966) (declaring constitutional under the enforcement clause Section 4(e) of the Voting Rights Act of 1965). 85 Virginia v. United States, 766 F. Supp. 1407 (W.D. Va. 1991), rev'd. 64 U.S.L.W. 4638 (1996). 86 John Farrell, "Clinton's Record: A Reality Check," Boston Globe, March 10, 1996, at 1. 87 See, e.g., Jeffrey Snyder, "A Nation of Cowards," American Civilization, April, 1995. 88 854 F. Supp. 1503, 1519 (D. Mont. 1994), rev'd. 66 F.3d 1025 (9th Cir. 1995). 89 856 F. Supp. 1372, 1381-82 (D. Ariz. 1994), rev'd. 66 F.3d 1025 (9th Cir. 1995). 90 66 F.3d 1025, 1034 (9th Cir. 1995). 91 Id. at 1029-31. 92 863 F. Supp. 321, 327 (S.D. Miss. 1994), aff'd. 79 F.3d 452 (5th Cir. 1996). 93 883 F. Supp. 1076, 1082-83 (W.D. La. 1994). 94 860 F. Supp. 1030, 1042 (D. Vt. 1994), rev'd. 78 F.3d 815 (2nd Cir. 1996). 95 Frank v. U.S., 78 F.3d 815, 827 (2nd Cir. 1996). 96 Koog v. U.S., 79 F.3d 452, 461 (5th Cir. 1996). 97 The Establishment and Free Exercise Clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. 98 374 U.S. 398 (1963). 99 494 U.S. 872 (1990). 100 Id. at 903 (O'Connor, J., concurring) ("The Court's holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case."). 101 See Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6th Cir. 1991); Yang v. Sturner, 750 F. Supp. 558 (D.R.I. 1990). 102 See Intercommunity Center for Justice and Peace v. I.N.S., 910 F.2d 42 (2d Cir. 1990); American Friends Serv. Comm. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991). EXT-18-2091-C-000200 007104-000921 Document ID: 0.7.19343.5844-000002 the authority to appoint a special prosecutor); Clarence Thomas, speech to the Pacific Research Institute, August 4, 1988, at 13 (praising Scalia's dissent in Morrison); Clarence Thomas, speech to University of Virginia Federalist Society, March 5, 1988, at 13 (referring to Congress as "out of control"). 69 115 S. Ct. 1624 (1995). 70 18 U.S.C. ? 922(q)(2)(A) (1990). 71 Lopez, supra note 69, at 1630. 72 Id. at 1662-63 (Breyer, J., dissenting). 73 Id. at 1664. 74 Id. 75 See U.S. v. Denalli, 73 F.3d 328 (11th Cir. 1996); U.S. v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995). 76 Three of the opinions ruling the Act unconstitutional under Lopez were by Reagan appointee Paul Rosenblatt. See U.S. v. Schroeder, 894 F. Supp. 360, 364 (D. Ariz. 1995); U.S. v. Mussari, 894 F. Supp. 1360, 1368 (D. Ariz. 1995); U.S. v. Schroeder (II), 912 F. Supp. 1240, 1244 (D. Ariz. 1995). See also U.S. v. Parker, 911 F. Supp. 830, 835 (E.D. Pa. 1995); U.S. v. Bailey, 902 F. Supp. 727, 730 (W.D. Tex. 1995). Despite these holdings, several courts have nevertheless found the Child Support Recovery Act constitutional under Lopez. See, e.g., U.S. v. Hampshire, 892 F. Supp. 1327 (D. Kan. 1995); U.S. v. Murphy, 893 F. Supp. 614 (W.D. Va. 1995); U.S. v. Hopper, 899 F. Supp. 389 (S.D. Ind. 1995). 77 U.S. v. Gambill, 912 F.Supp. 287, 290 n. 4 (S.D. Ohio 1996). 78 U.S. v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 499 (9th Cir. 1995). 79 Civ. A. No. 95-1358-R (W.D. Va. July 29, 1996). 80 See 42 U.S.C. ? 13981(c) (1994). 81 Brzonkala, supra note 79. 82 Id. 83 Id. (quoting S. Rep. 138, 103d Cong., 1st Sess. 54 (1993)). 84 Id. Judge Kiser's decision runs directly contrary to an earlier decision by Judge Janet Arterton of the U.S. District Court for the District of Connecticut, which held VAWA constitutional under the Commerce Clause. Doe v. Doe, 1996 U.S. Dist. LEXIS 8601 (D. Conn. 1996). Judge Kiser also rejected VAWA's constitutionality under the enforcement clause of the Fourteenth Amendment. The validity of this conclusion is equally suspect given the Supreme Court's holding in Katzenbach v. Morgan, 384 U.S. 641 (1966) (declaring constitutional under the enforcement clause Section 4(e) of the Voting Rights Act of 1965). 85 Virginia v. United States, 766 F. Supp. 1407 (W.D. Va. 1991), rev'd. 64 U.S.L.W. 4638 (1996). 86 John Farrell, "Clinton's Record: A Reality Check," Boston Globe, March 10, 1996, at 1. 87 See, e.g., Jeffrey Snyder, "A Nation of Cowards," American Civilization, April, 1995. 88 854 F. Supp. 1503, 1519 (D. Mont. 1994), rev'd. 66 F.3d 1025 (9th Cir. 1995). 89 856 F. Supp. 1372, 1381-82 (D. Ariz. 1994), rev'd. 66 F.3d 1025 (9th Cir. 1995). 90 66 F.3d 1025, 1034 (9th Cir. 1995). 91 Id. at 1029-31. 92 863 F. Supp. 321, 327 (S.D. Miss. 1994), aff'd. 79 F.3d 452 (5th Cir. 1996). 93 883 F. Supp. 1076, 1082-83 (W.D. La. 1994). 94 860 F. Supp. 1030, 1042 (D. Vt. 1994), rev'd. 78 F.3d 815 (2nd Cir. 1996). 95 Frank v. U.S., 78 F.3d 815, 827 (2nd Cir. 1996). 96 Koog v. U.S., 79 F.3d 452, 461 (5th Cir. 1996). 97 The Establishment and Free Exercise Clauses state: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. 98 374 U.S. 398 (1963). 99 494 U.S. 872 (1990). 100 Id. at 903 (O'Connor, J., concurring) ("The Court's holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case."). 101 See Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), aff'd, 940 F.2d 661 (6th Cir. 1991); Yang v. Sturner, 750 F. Supp. 558 (D.R.I. 1990). 102 See Intercommunity Center for Justice and Peace v. I.N.S., 910 F.2d 42 (2d Cir. 1990); American Friends Serv. Comm. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991). EXT-18-2091-C-000200 007104-000921 Document ID: 0.7.19343.5844-000002 103 See Salvation Army v. Department of Community Affairs, 919 F.2d 183 (3d Cir. 1990). See Kissinger v. Board of Trustees of the Ohio State University, College of Veterinary Medicine, 5 F.3d 177 (6th Cir. 1993). 105 RFRA is codified at 42 U.S.C. ? 2000bb et seq. (1993). 106 See, e.g., Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996) (RFRA constitutional); Abordo v. State of Hawaii, 902 F. Supp 1220, 1229-34 (D. Hawaii 1995); Sasnett v. Department of Corrections, 891 F. Supp. 1305, 1315-21 (W.D. Wis. 1995) (same); Belgard v. Hawaii, 883 F. Supp. 510, 512-17 (D. Hawaii 1995) (same). But see Keeler v. Mayor & City Council of Cumberland, Civ. A. No. S-96-167, 1996 WL 311701 (D. Md. June 10, 1996) (decision by Reagan appointee Frederic Smalkin finding RFRA unconstitutional). 107 Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996), petition for cert. filed, __ U.S.L.W. __ (June 25, 1996). 108 See, e.g., "Court Protects 'Religious' Marijuana Use," Human Events, February 23, 1996, at 5. 109 James Madison, Memorial and Remonstrance Against Religious Assessments ? 3, reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 65-66 (appendix to dissent of Rutledge, J.). 110 Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution, 84-85 (P. Kurland & R. Lerner, eds. 1987). See generally Everson, 330 U.S. at 13. 111 See Rosenberger v. Rector & Visitors of the University of Virginia, 115 S. Ct. 2510, 2543-44 (1995) (Souter, J., dissenting). 112 413 U.S. 756, 780 (1973). 113 See Stanley Elam, "Phi Delta Kappa's Young Leaders of 1980 Tackle Today's Issues," Phi Delta Kappan, May, 1996, at 610 (poll result showing 65% of the public opposes allowing students and parents to choose a private school to attend at public expense). 114 113 S. Ct. 2462 (1993). 115 Zobrest is another example of conservative judicial activism because the Court did not need to reach the Establishment Clause issue at all. As an alternative to the Establishment Clause rationale, the State argued that the federal law at issue, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ? 1400 et seq., did not even require it to provide an interpreter at any private school if special education services were available at the local public school. If true, this contention would have eliminated the Establishment Clause problem. Although the State had neglected to raise this argument in the lower courts, the Supreme Court could have adhered to the general rule against deciding constitutional issues except where absolutely necessary by remanding the case for a determination of the statutory question. Instead, the Court reached out to decide a constitutional question that could have been avoided entirely. Existing federal precedent uniformly holds that the IDEA does not requires a state to provide an interpreter under such circumstances. See K.R. v. Anderson Community Sch. Corp., 81 F.3d 673 (7th Cir. 1996); Goodall v. Stafford County Sch. Bd., 930 F.2d 363 (4th Cir.), cert. denied, 112 S. Ct. 188 (1991); McNair v. Cardimone, 676 F. Supp. 1361 (S.D. Ohio 1987), aff'd on other grounds, 872 F.2d 153 (6th Cir. 1989); Work v. McKenzie, 661 F. Supp. 225 (D.D.C. 1987). Justice O'Connor criticized the majority for reaching the constitutional issue and refused to reach it herself. 113 S. Ct. at 2475 (O'Connor, J. dissenting). 116 The Court's reliance on "private" choice ignores the fact that such "choice" is made possible only through public financial assistance provided by the government and so is not truly private. 117 46 F.3d 1449 (9th Cir. 1995). 118 Id. at 1464-65. 119 In their dissent from the Ninth Circuit's refusal to rehear the case, three judges recited the controlling Supreme Court precedent and stated that "the Court has squarely held that the state may not do what it is doing here. We are simply not free to ignore that ruling." Walker v. San Francisco Unified School District, 62 F.3d 300, 302 (9th Cir. 1995) (Reinhardt, J., dissenting from denial of petition for rehearing en banc, joined by Pregerson, C.J., and Hawkins, J.). 120 Rosenberger, supra note 111. 121 Id. at 2534 (Souter, J., dissenting). 122 See, e.g., Id. at 2525-26 (O'Connor, J., concurring). 123 See Gatton v. Goff, No. 96CVH-01-193 (Ct. of Common Pleas, Franklin Co. Ohio) (July 31, 1996), app. pending (upholding Ohio state voucher program in Cleveland). See also Jackson v. Benson, No. 95cv1982 (Cir. Ct. Dane County, Wis.) (Wisconsin State voucher program in 104 EXT-18-2091-C-000201 007104-000922 Document ID: 0.7.19343.5844-000002 103 See Salvation Army v. Department of Community Affairs, 919 F.2d 183 (3d Cir. 1990). See Kissinger v. Board of Trustees of the Ohio State University, College of Veterinary Medicine, 5 F.3d 177 (6th Cir. 1993). 105 RFRA is codified at 42 U.S.C. ? 2000bb et seq. (1993). 106 See, e.g., Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996) (RFRA constitutional); Abordo v. State of Hawaii, 902 F. Supp 1220, 1229-34 (D. Hawaii 1995); Sasnett v. Department of Corrections, 891 F. Supp. 1305, 1315-21 (W.D. Wis. 1995) (same); Belgard v. Hawaii, 883 F. Supp. 510, 512-17 (D. Hawaii 1995) (same). But see Keeler v. Mayor & City Council of Cumberland, Civ. A. No. S-96-167, 1996 WL 311701 (D. Md. June 10, 1996) (decision by Reagan appointee Frederic Smalkin finding RFRA unconstitutional). 107 Flores v. City of Boerne, Texas, 73 F.3d 1352 (5th Cir. 1996), petition for cert. filed, __ U.S.L.W. __ (June 25, 1996). 108 See, e.g., "Court Protects 'Religious' Marijuana Use," Human Events, February 23, 1996, at 5. 109 James Madison, Memorial and Remonstrance Against Religious Assessments ? 3, reprinted in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 65-66 (appendix to dissent of Rutledge, J.). 110 Jefferson, A Bill for Establishing Religious Freedom, reprinted in 5 The Founder's Constitution, 84-85 (P. Kurland & R. Lerner, eds. 1987). See generally Everson, 330 U.S. at 13. 111 See Rosenberger v. Rector & Visitors of the University of Virginia, 115 S. Ct. 2510, 2543-44 (1995) (Souter, J., dissenting). 112 413 U.S. 756, 780 (1973). 113 See Stanley Elam, "Phi Delta Kappa's Young Leaders of 1980 Tackle Today's Issues," Phi Delta Kappan, May, 1996, at 610 (poll result showing 65% of the public opposes allowing students and parents to choose a private school to attend at public expense). 114 113 S. Ct. 2462 (1993). 115 Zobrest is another example of conservative judicial activism because the Court did not need to reach the Establishment Clause issue at all. As an alternative to the Establishment Clause rationale, the State argued that the federal law at issue, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ? 1400 et seq., did not even require it to provide an interpreter at any private school if special education services were available at the local public school. If true, this contention would have eliminated the Establishment Clause problem. Although the State had neglected to raise this argument in the lower courts, the Supreme Court could have adhered to the general rule against deciding constitutional issues except where absolutely necessary by remanding the case for a determination of the statutory question. Instead, the Court reached out to decide a constitutional question that could have been avoided entirely. Existing federal precedent uniformly holds that the IDEA does not requires a state to provide an interpreter under such circumstances. See K.R. v. Anderson Community Sch. Corp., 81 F.3d 673 (7th Cir. 1996); Goodall v. Stafford County Sch. Bd., 930 F.2d 363 (4th Cir.), cert. denied, 112 S. Ct. 188 (1991); McNair v. Cardimone, 676 F. Supp. 1361 (S.D. Ohio 1987), aff'd on other grounds, 872 F.2d 153 (6th Cir. 1989); Work v. McKenzie, 661 F. Supp. 225 (D.D.C. 1987). Justice O'Connor criticized the majority for reaching the constitutional issue and refused to reach it herself. 113 S. Ct. at 2475 (O'Connor, J. dissenting). 116 The Court's reliance on "private" choice ignores the fact that such "choice" is made possible only through public financial assistance provided by the government and so is not truly private. 117 46 F.3d 1449 (9th Cir. 1995). 118 Id. at 1464-65. 119 In their dissent from the Ninth Circuit's refusal to rehear the case, three judges recited the controlling Supreme Court precedent and stated that "the Court has squarely held that the state may not do what it is doing here. We are simply not free to ignore that ruling." Walker v. San Francisco Unified School District, 62 F.3d 300, 302 (9th Cir. 1995) (Reinhardt, J., dissenting from denial of petition for rehearing en banc, joined by Pregerson, C.J., and Hawkins, J.). 120 Rosenberger, supra note 111. 121 Id. at 2534 (Souter, J., dissenting). 122 See, e.g., Id. at 2525-26 (O'Connor, J., concurring). 123 See Gatton v. Goff, No. 96CVH-01-193 (Ct. of Common Pleas, Franklin Co. Ohio) (July 31, 1996), app. pending (upholding Ohio state voucher program in Cleveland). See also Jackson v. Benson, No. 95cv1982 (Cir. Ct. Dane County, Wis.) (Wisconsin State voucher program in 104 EXT-18-2091-C-000201 007104-000922 Document ID: 0.7.19343.5844-000002 Milwaukee). 124 403 U.S. 602 (1971). 125 Id. at 612-13 (1971). 126 See, e.g., Wallace v Jaffree, 472 U.S. 38, 69 (O'Connor, J., concurring). 127 112 S. Ct. 2649, 2684 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., Thomas, J., and White, J.). 128 This section was drafted by David M. Pierce, Esq. The views expressed herein are solely those of the author and People For the American Way, and do not necessarily reflect the views of his firm or other attorneys with the firm. People For the American Way also gratefully acknowledges the work of attorney Daniel Simon and law students Gregory Ostfeld and Melissa Kopff on this report. 129 For a discussion of pre-1992 decisions in the area of civil rights, see People for the American Way, Assault on Liberty: The Record of the Reagan-Bush Courts (1992). 130 114 S. Ct. 2581 (1994). 131 See, e.g., Reynolds v. Sims, 84 S. Ct. 1362 (1964). 132 See, e.g., Gomillion v. Lightfoot, 81 S. Ct. 125 (1960). 133 113 S. Ct. 2816 (1993). 134 115 S. Ct. 2475 (1995). 135 1996 U.S. LEXIS 3882, 64 U.S.L.W. 4452 (1996). 136 1996 U.S. LEXIS 3880, 64 U.S.L.W. 4437 (1996). 137 Id. at *89 (Stevens, J., dissenting). 138 115 S. Ct. 1769 (1995). 139 106 S. Ct. 1712 (1986). 140 115 S. Ct. at 1771. 141 116 S. Ct. 1480 (1996). 142 Id. at 1493. 143 115 S. Ct. 2038 (1995). 144 113 S. Ct. 2742 (1993). 145 Id. at 2762 (Souter, J., dissenting). 146 Supra note 69. 147 379 U.S. 241 (1964). 148 379 U.S. 294 (1964). 149 See notes 79-85 and accompanying text for a more complete discussion of this case. 150 114 S. Ct. 1419 (1994). 151 Id. at 1421. 152 Id. at 1436 (Scalia, J., dissenting). 153 116 S. Ct. 1620 (1996). 154 Id. at 1623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)). 155 Id. at 1629. 156 Id. (Scalia, J., dissenting). 157 See, e.g., St. George Crosse, "Perspective: A Disaster for American People; Homosexuals Aren't Disadvantaged; The Supreme Court and Gay Rights," Baltimore Sun, June 2, 1996, at 6F. 158 54 F.3d 261 (6th Cir. 1995). 159 106 S. Ct. 2841 (1986). 160 See, e.g., Steffan v. Perry, 41 F.3d 677, 684 n. 3 (D.C. Cir. 1994) (en banc) (following Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) ("It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause.")). 161 135 L.Ed.2d 486 (1996). 162 113 S. Ct. 2637 (1993). 163 A. Leon Higginbotham, "The Case of the Missing Black Judges," New York Times, July 29, 1992, at A21. See also PFAW Action Fund, Federal Judicial Nominees in the 102d Congress and the Bush Administration (October, 1992), at 1-2; PFAW, The First Year of Federal Judicial Nominees by President Clinton (December, 1993), at 1-2. 164 Id. See also White House, Clinton Administration Judicial Record (July 25, 1996). 165 See, e.g., Sheldon Goldman, "Judicial Selection Under Clinton," Judicature, May-June, 1995. EXT-18-2091-C-000202 007104-000923 Document ID: 0.7.19343.5844-000002 Milwaukee). 124 403 U.S. 602 (1971). 125 Id. at 612-13 (1971). 126 See, e.g., Wallace v Jaffree, 472 U.S. 38, 69 (O'Connor, J., concurring). 127 112 S. Ct. 2649, 2684 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., Thomas, J., and White, J.). 128 This section was drafted by David M. Pierce, Esq. The views expressed herein are solely those of the author and People For the American Way, and do not necessarily reflect the views of his firm or other attorneys with the firm. People For the American Way also gratefully acknowledges the work of attorney Daniel Simon and law students Gregory Ostfeld and Melissa Kopff on this report. 129 For a discussion of pre-1992 decisions in the area of civil rights, see People for the American Way, Assault on Liberty: The Record of the Reagan-Bush Courts (1992). 130 114 S. Ct. 2581 (1994). 131 See, e.g., Reynolds v. Sims, 84 S. Ct. 1362 (1964). 132 See, e.g., Gomillion v. Lightfoot, 81 S. Ct. 125 (1960). 133 113 S. Ct. 2816 (1993). 134 115 S. Ct. 2475 (1995). 135 1996 U.S. LEXIS 3882, 64 U.S.L.W. 4452 (1996). 136 1996 U.S. LEXIS 3880, 64 U.S.L.W. 4437 (1996). 137 Id. at *89 (Stevens, J., dissenting). 138 115 S. Ct. 1769 (1995). 139 106 S. Ct. 1712 (1986). 140 115 S. Ct. at 1771. 141 116 S. Ct. 1480 (1996). 142 Id. at 1493. 143 115 S. Ct. 2038 (1995). 144 113 S. Ct. 2742 (1993). 145 Id. at 2762 (Souter, J., dissenting). 146 Supra note 69. 147 379 U.S. 241 (1964). 148 379 U.S. 294 (1964). 149 See notes 79-85 and accompanying text for a more complete discussion of this case. 150 114 S. Ct. 1419 (1994). 151 Id. at 1421. 152 Id. at 1436 (Scalia, J., dissenting). 153 116 S. Ct. 1620 (1996). 154 Id. at 1623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896)). 155 Id. at 1629. 156 Id. (Scalia, J., dissenting). 157 See, e.g., St. George Crosse, "Perspective: A Disaster for American People; Homosexuals Aren't Disadvantaged; The Supreme Court and Gay Rights," Baltimore Sun, June 2, 1996, at 6F. 158 54 F.3d 261 (6th Cir. 1995). 159 106 S. Ct. 2841 (1986). 160 See, e.g., Steffan v. Perry, 41 F.3d 677, 684 n. 3 (D.C. Cir. 1994) (en banc) (following Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987) ("It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause.")). 161 135 L.Ed.2d 486 (1996). 162 113 S. Ct. 2637 (1993). 163 A. Leon Higginbotham, "The Case of the Missing Black Judges," New York Times, July 29, 1992, at A21. See also PFAW Action Fund, Federal Judicial Nominees in the 102d Congress and the Bush Administration (October, 1992), at 1-2; PFAW, The First Year of Federal Judicial Nominees by President Clinton (December, 1993), at 1-2. 164 Id. See also White House, Clinton Administration Judicial Record (July 25, 1996). 165 See, e.g., Sheldon Goldman, "Judicial Selection Under Clinton," Judicature, May-June, 1995. EXT-18-2091-C-000202 007104-000923 Document ID: 0.7.19343.5844-000002 166 Thomas Jipping, "The Case Against Stack," supra note 46. See also Thomas Jipping, The Clinton Judicial Legacy (July, 1996), at 7; James Kilpatrick, "Clinton Busy Trying to Remake Courts," Human Events, September 22, 1995, at 10. 167 Higginbotham, supra note 163. 160 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882 (1992) (opinion of O'Connor, Kennedy, and Souter, JJ., with the Chief Justice and three Justices concurring in the judgment) (discussing the overturning of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 762 (1986) and Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450 (1983) in which the Court had found rigid informational requirements and a 24-hour waiting period to be unconstitutional). 169 Webster v. Reproductive Health Services, 492 U.S. 490, 508-511, 539-540 (1989). 170 Casey, 505 U.S. at 886-887. See also Casey, 744 F. Supp. at 1367-68, 1370-72, 1392. 171 See Casey, 505 U.S. at 883; 947 F.2d 682; 744 F. Supp. at 1350, 1353-55. 172 Leavitt v. Jane L., 1996 U.S. LEXIS 3885, 64 U.S.L.W. 3834 (1996). As the four non ReaganBush justices who dissented in Leavitt explained, the majority's decision reversed a lower court ruling on state law severability in a manner which violated a Supreme Court practice of judicial restraint on such issues followed consistently for almost fifty years. 64 U.S.L.W. at 3836. 173 Roe v. Wade, 410 U.S. 113, 155 (1973). 174 A Woman's Choice - East Side Women's Clinic v. Newman, 904 F. Supp. 1434 (S.D. Ind. 1995). 175 Id. at 1450. 176 Planned Parenthood, Sioux Falls Clinic v. Miller, 860 F. Supp. 1409 (D.S.D. 1994). 177 United States v. Hill, 893 F. Supp. 1044, 1047-48 (N.D. Fla. 1994). 178 "Party Stresses Family Values, Decentralized Authority," Congressional Quarterly, August 22, 1992, at 2567. 179 "The 700 Club," Christian Broadcasting Network, June 21, 1996. EXT-18-2091-C-000203 007104-000924 Document ID: 0.7.19343.5844-000002 166 Thomas Jipping, "The Case Against Stack," supra note 46. See also Thomas Jipping, The Clinton Judicial Legacy (July, 1996), at 7; James Kilpatrick, "Clinton Busy Trying to Remake Courts," Human Events, September 22, 1995, at 10. 167 Higginbotham, supra note 163. 160 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882 (1992) (opinion of O'Connor, Kennedy, and Souter, JJ., with the Chief Justice and three Justices concurring in the judgment) (discussing the overturning of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 762 (1986) and Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 450 (1983) in which the Court had found rigid informational requirements and a 24-hour waiting period to be unconstitutional). 169 Webster v. Reproductive Health Services, 492 U.S. 490, 508-511, 539-540 (1989). 170 Casey, 505 U.S. at 886-887. See also Casey, 744 F. Supp. at 1367-68, 1370-72, 1392. 171 See Casey, 505 U.S. at 883; 947 F.2d 682; 744 F. Supp. at 1350, 1353-55. 172 Leavitt v. Jane L., 1996 U.S. LEXIS 3885, 64 U.S.L.W. 3834 (1996). As the four non ReaganBush justices who dissented in Leavitt explained, the majority's decision reversed a lower court ruling on state law severability in a manner which violated a Supreme Court practice of judicial restraint on such issues followed consistently for almost fifty years. 64 U.S.L.W. at 3836. 173 Roe v. Wade, 410 U.S. 113, 155 (1973). 174 A Woman's Choice - East Side Women's Clinic v. Newman, 904 F. Supp. 1434 (S.D. Ind. 1995). 175 Id. at 1450. 176 Planned Parenthood, Sioux Falls Clinic v. Miller, 860 F. Supp. 1409 (D.S.D. 1994). 177 United States v. Hill, 893 F. Supp. 1044, 1047-48 (N.D. Fla. 1994). 178 "Party Stresses Family Values, Decentralized Authority," Congressional Quarterly, August 22, 1992, at 2567. 179 "The 700 Club," Christian Broadcasting Network, June 21, 1996. EXT-18-2091-C-000203 007104-000924 Document ID: 0.7.19343.5844-000002 00710 4-000925 Document ID: 0.7.19343.5844-000003 00710 4-000925 Document ID: 0.7.19343.5844-000003 007104-000926 Document ID: 0.7.19343.5844-000004 007104-000926 Document ID: 0.7.19343.5844-000004 0071 4-000927 Document ID: 0.7.19343.5844-000005 071 4-000927 Document ID: 0.7.19343.5844-000005 0071 4-000928 Document ID: 0.7.19343.5844-000006 071 4-000928 Document ID: 0.7.19343.5844-000006 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Wednesday, January 23, 2002 2:50 PM To: Newstead, Jennifer; Dinh, Viet; Alberto_R._Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Noel_J._ Francisco@who.eop.gov; Anne_ Womack@who.eop.gov; Helgard_ C._Walker@who.eop.gov; Sradford_A._Berenson@who.eop.gov; Heather_ Wingate@who.eop.gov Subject : Pickering - warning sign Ben Wittes of Washington Post editorial page just left me a message. "Thinking about Charles Pickering. Trying to figure out why we should not oppose him. Not writing today." EXT-18-2091-C-000208 007104-000929 Document ID: 0.7.19343.7056 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Wednesday, January 23, 2002 2:50 PM To: Newstead, Jennifer; Dinh, Viet; Alberto_R._Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Noel_J._ Francisco@who.eop.gov; Anne_ Womack@who.eop.gov; Helgard_ C._Walker@who.eop.gov; Sradford_A._Berenson@who.eop.gov; Heather_ Wingate@who.eop.gov Subject : Pickering - warning sign Ben Wittes of Washington Post editorial page just left me a message. "Thinking about Charles Pickering. Trying to figure out why we should not oppose him. Not writing today." EXT-18-2091-C-000208 007104-000929 Document ID: 0.7.19343.7056 M cMa hon, Lori From : McMahon , Lori Sent : Wednesday, January 23, 2002 3:03 PM To: 'Bre-tt_M._Kavanaugh@who.eop.gov'; Cc: Newstead, Jennifer Subject : FW: INFO ON JUDICIAL NOMSSNEWZER Importance: High Dinh, Viet My voice mail is full of reporters looking for comment on the press con feren ce tomorrow by the liberal groups. Let's put our hea ds together on this one. James Meek from the LADaily Journal sent me this pres release for the event. Lori -Original Messa From: James Meek , Sent: Wednesday, January 23, 2002 2:33 PM To: McMahon, Lori Subject: INFO ON JUDICIALNOMS SNEWZER hiya lori. here's the info on thursday's snewzer. again, i'm not interested so much in reax to pickering blasts as i am to the broader notion that this is the opening salvo by the lefties to 2002's judicial nominations fight ... secondary concern is reax to what i've been told by demo crats: that carolyn kuhl is not going to be confirmed for a 9th circuit judgsh ip. cheers, james FIRST BUSHJUDGE BATTLEIS LAUNCHEDTOMORROW The first major fight against a right -wing ideologue Bush nominee for the federal a ppe als courts will be launched on Thursday , when a coalition of civil rights leaders announces opposition to the nominat ion of Jud ge Charles Pickering to the 5th Circuit Court of Appeals. Sen. Minority Leader Trent Lott is pushing for quick approval of Pickering. Several national organizations will release detailed reports analyzing Pickering 's record on civil rights, access to justice, reproductive choice, and more. Speakers will include Ralph G. Neas; President , People For the American Way; Wade Henderson, Executive Director, Leadership Confe ren ce on Civil Rights; Nan Aron, President , Alliance for Justice; and Kate Michelman , President, NARALWHERE: Nat ional Press Club 529 14th Street, NW Washington, DC Holeman Lounge WHEN: EXT-18-2091-C-000209 007104-000930 Document ID: 0.7.19343.7057 M cMa hon, Lori From : McMahon , Lori Sent : Wednesday, January 23, 2002 3:03 PM To: 'Bre-tt_M._Kavanaugh@who.eop.gov'; Cc: Newstead, Jennifer Subject : FW: INFO ON JUDICIAL NOMSSNEWZER Importance: High Dinh, Viet My voice mail is full of reporters looking for comment on the press con feren ce tomorrow by the liberal groups. Let's put our hea ds together on this one. James Meek from the LADaily Journal sent me this pres release for the event. Lori -Original Messa From: James Meek , Sent: Wednesday, January 23, 2002 2:33 PM To: McMahon, Lori Subject: INFO ON JUDICIALNOMS SNEWZER hiya lori. here's the info on thursday's snewzer. again, i'm not interested so much in reax to pickering blasts as i am to the broader notion that this is the opening salvo by the lefties to 2002's judicial nominations fight ... secondary concern is reax to what i've been told by demo crats: that carolyn kuhl is not going to be confirmed for a 9th circuit judgsh ip. cheers, james FIRST BUSHJUDGE BATTLEIS LAUNCHEDTOMORROW The first major fight against a right -wing ideologue Bush nominee for the federal a ppe als courts will be launched on Thursday , when a coalition of civil rights leaders announces opposition to the nominat ion of Jud ge Charles Pickering to the 5th Circuit Court of Appeals. Sen. Minority Leader Trent Lott is pushing for quick approval of Pickering. Several national organizations will release detailed reports analyzing Pickering 's record on civil rights, access to justice, reproductive choice, and more. Speakers will include Ralph G. Neas; President , People For the American Way; Wade Henderson, Executive Director, Leadership Confe ren ce on Civil Rights; Nan Aron, President , Alliance for Justice; and Kate Michelman , President, NARALWHERE: Nat ional Press Club 529 14th Street, NW Washington, DC Holeman Lounge WHEN: EXT-18-2091-C-000209 007104-000930 Document ID: 0.7.19343.7057 Thursday, January 24, 2002 10:00AM http://www.pfaw.org/issues/democ racy/Rig htWingJu dges1.shtml Why The Senate Should Reject Attempts To Pack the Federal Judiciary with Right-Wing Judges Achieving ideological domination of the federal ju diciary is the top goal of right-wing politicians an d political groups. Virtually all federal courts could soon be controlled by right -wing judges, a situation that would threaten the rights and impact the da ily lives of all Americans, the ir children and their gran dchildren. . The Supreme Court and other federal courts exercise enormous power in deciding cases on such issues as civil rights, the right to privacy, reproduct ive freedom, women 's rights, religious liberty, consumer and worker protection, and the environment. . Because most cases that ra ise fundamental constitutional quest ions are now decided by slim majorities, more than 100 Supreme Court precedents could be overturned with just one or two more appointments who share the judicial philosophy of Justices Antonin Scalia and Clarence Thomas. It has now been more than seven years since the most recent Supreme Court appointment, the longest interval since the administration of James Monroe 178 years ago. . The vast majority of fede ral cases never make it to the Supreme Court, but are decided by lower federal courts. These lower federal courts are extremely important, and every year decide thousands of cases that affect our lives. In 2000, for example, the federa l appellate courts decided more than 27,000 cases, many of which were important rulings on privacy, the environment, and human and civil rights. This is in sharp contrast to the United States Supreme Court, which handed down only 74 opinions last term. In effect, many appeals court rulings stand as the final word governing the law in their regions. . As a result of right-wing Senators ' unprecedented campaign, 35 percent of President Clinton's appellate court nominees were blocked from 1995-2000; 45 percent failed to receive a vote in the cong ressiona l session during which they we re nominated. Right-wing groups hope the White House will take advantage of the vacancies their Senate allies perpetuated by filling them with right-wing ideologues. Republican-nominated judges currently hold a majority on seven of the 13 circuit courts of appeal. If all President Bush's current nominees are approved, such judges will make up a majority on 11 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals. . The result is that we are in an unprecedented situation in which the future of many of our civil rights and constitutional freedoms is literally at risk. Many of President Bush's nominees to the appellate courts, recommen ded by the Federalist Society and other right -wing advocates, have troubling records and could cause serious damage to our rights and liberties. For example: . Charles Pickering, who is currently a fe deral trial ju dge and was previously chair of the Mississippi Republican Party, has been nominated to the Fifth Circuit Court of Appeals . His nomination has been opposed by the Mississippi state NAACPand the Congressional Black Caucus because of his "career and record on civil rights." This has included , for example, criticism as a judge of the one-person onevote principle and aspects of the Voting Rights Act, as well as an earlier law review article advocating the strengthening of a Mississippi law banning interracial marriage. Pickering ha s also opposed women 's right to choose, including chairin g the first national Republican platform committee that called for a constitutional amendment to ban abortion. o r<>rnlun 1(11hl <> ~c~or<> lict <;,nriah, mamhcr <>n~ r11rr0nth,,.. r-..lifnrni-.. c::t-..tc t r i-..1 rn11rt i11~aa h-..c:: hoan EXT-18-2091-C-000210 007104-000931 Document ID: 0.7.19343 .7057 Thursday, January 24, 2002 10:00AM http://www.pfaw.org/issues/democ racy/Rig htWingJu dges1.shtml Why The Senate Should Reject Attempts To Pack the Federal Judiciary with Right-Wing Judges Achieving ideological domination of the federal ju diciary is the top goal of right-wing politicians an d political groups. Virtually all federal courts could soon be controlled by right -wing judges, a situation that would threaten the rights and impact the da ily lives of all Americans, the ir children and their gran dchildren. ? The Supreme Court and other federal courts exercise enormous power in deciding cases on such issues as civil rights, the right to privacy, reproduct ive freedom, women 's rights, religious liberty, consumer and worker protection, and the environment. ? Because most cases that ra ise fundamental constitutional quest ions are now decided by slim majorities, more than 100 Supreme Court precedents could be overturned with just one or two more appointments who share the judicial philosophy of Justices Antonin Scalia and Clarence Thomas. It has now been more than seven years since the most recent Supreme Court appointment, the longest interval since the administration of James Monroe 178 years ago. ? The vast majority of fede ral cases never make it to the Supreme Court, but are decided by lower federal courts. These lower federal courts are extremely important, and every year decide thousands of cases that affect our lives. In 2000, for example, the federa l appellate courts decided more than 27,000 cases, many of which were important rulings on privacy, the environment, and human and civil rights. This is in sharp contrast to the United States Supreme Court, which handed down only 74 opinions last term. In effect, many appeals court rulings stand as the final word governing the law in their regions. ? As a result of right-wing Senators ' unprecedented campaign, 35 percent of President Clinton's appellate court nominees were blocked from 1995-2000; 45 percent failed to receive a vote in the cong ressiona l session during which they we re nominated. Right-wing groups hope the White House will take advantage of the vacancies their Senate allies perpetuated by filling them with right-wing ideologues. Republican-nominated judges currently hold a majority on seven of the 13 circuit courts of appeal. If all President Bush's current nominees are approved, such judges will make up a majority on 11 circuit courts. And by the end of 2004, Republican-appointed judges could make up a majority on every one of the 13 circuit courts of appeals. ? The result is that we are in an unprecedented situation in which the future of many of our civil rights and constitutional freedoms is literally at risk. Many of President Bush's nominees to the appellate courts, recommen ded by the Federalist Society and other right -wing advocates, have troubling records and could cause serious damage to our rights and liberties. For example: ? Charles Pickering, who is currently a fe deral trial ju dge and was previously chair of the Mississippi Republican Party, has been nominated to the Fifth Circuit Court of Appeals . His nomination has been opposed by the Mississippi state NAACPand the Congressional Black Caucus because of his "career and record on civil rights." This has included , for example, criticism as a judge of the one-person onevote principle and aspects of the Voting Rights Act, as well as an earlier law review article advocating the strengthening of a Mississippi law banning interracial marriage. Pickering ha s also opposed women 's right to choose, including chairin g the first national Republican platform committee that called for a constitutional amendment to ban abortion. o r<>rnlun 1(11hl <> ~c~or<> lict <;,nriah, mamhcr <>n~ r11rr0nth,,.. r-..lifnrni-.. c::t-..tc t r i-..1 rn11rt i11~aa h-..c:: hoan EXT-18-2091-C-000210 007104-000931 Document ID: 0.7.19343 .7057 '-'Qf\.llf l l ''""' '' .1g. \; U 'l;tQll.;;,-.-vvw,11;1,. 7 Jl l 'Cll l tJ C-1 CIIIU \.o\,,-IIICll .. lf Q ....... g11,v1 , , 1 1g ,;;, .. ca .. c- ... ,c;a, \,,rVUI .. JU'-"0 "-.1 I IQ.;1' a., 11;-.::, 1 nominated to the Ninth Circuit Court of Appeals. She has be e n severely criticized for her record on civil rights and abortion. For example , while in the Justice Department under the Reagan Administration, Kuhl urged the Supreme Court to overturn Roe v. Wade as "flawed." She also reportedly played a key role in convincing then-Attorney Genera l Smith to reve rse prior policy and support the granting of tax -exempt status to Bob Jones University despite its racially discriminatory practices. A Supreme Court decision late r rejected the Reagan administration 's policy by an 8-1 vote. . Jeffrey Sutton , an officer in the Federalist Society's Separation of Powers an d Federalism practice group, has been nominated to the Sixth Circuit Court of Appeals. Sutton is well known for his efforts as a lawyer to severely limit federal protections against discriminat ion and injury based on disabi lity, race , age, sex , and religion. More than 50 nationa l organ izat ions and over 220 regional , state, and local groups have opposed his confirmation, including the American Asso ciation of Persons with Disabilities, the Nation al Rehabilitation Asso ciation , the National Women 's Political Caucus, and the Welfare Law Center. . Prisci lla Owen, a Federa list Society member an d currently a justice on the Texas Supreme Court, has been nominated to the Fifth Circuit Court of Appeals. Owen has been criticized as one of two judges on the "far right wing" of the Texas court, further to the right than Pres ident Bush's own appointees to that court when he was governor. In one decision in which she dissented, Owen called for a very narrow view of a state law concerning the abi lity of minors to obtain an abortion without pa renta l consent. Then-Texas Supreme Court Justice Alberto Gonzalez - who is now chief White House counsel warned that adopting the dissenters' view would be an "unconscionable act of ju dicial activ ism. " Careful review and scrutiny of federal judicial nominees is critical to protecting our rights. In our system of checks and balances , the Senate has a co-equal role with the President in appo inting federal ju dges , since it must provide its "a dvice and consent" before any nominee becomes a judge. It is imperative that the Senate carries out this constitutional role in a careful, thorough and diligent manner. Judicial nominees - who are confirmed for lifetime appointments - must be carefully scruti nized . . No nominee is presumptively entitled to confirmation to a lifetime appo intment to any fede ra l court. Particu larly for the courts of appeals and the Supreme Court, a nominee bears the burden of demonstrating that he or she meets the appropriate qual ifications, which should include a demonstrated commitment to civil rights and individual liberties, and a clear respect for Congress ' proper constitutional role in protecting constitutional and civil rights and the health and safety of a ll Americans. More than 200 law professors have written to the Senate, sett ing fort h these qualificat ions . . In carrying out its role, the Senate must ensure that judicial nominees are subject to the highest standard of scrutiny. The de cis ions of judges last long after they and the Presi dent who appointed them have retired. The American people must be assured that judges who are given the solemn constitut ional responsib ility of protecting their rights and upholding the Constitution are unequivocally comm itted to justice and equality for al l. . Each nominee's record must be examined carefully , including unpub lished op inions and other information that may not be rea dily avai lab le . By its very nature, this sometimes is a time consuming process but one that is essential to the Senate 's ob ligation to evaluate the full record of a nominee. The mere absen ce of disqua lifying evidence in a nominee 's re cord should not constitute sufficient groun ds for confirmat ion. . The Senate shou ld reject far right court-pa cking efforts , and shoul d withhold its consent from right wing nominees who do not demonstrate a commitment to civil rights and liberties. Senators should take a clear and unequivocal stand , including discuss ing openly the potent ial impact of right-w ing domination of the federal courts and the importance of opposing nominees whose lifetime appo intments would threaten America's rights and libert ies. More moderate, mainstream nominees EXT-18-2091-C-000211 007104-000932 Document ID: 0.7.19343 .7057 '-'Qf\.llf l l ''""' '' .1g. \; U 'l;tQll.;;,-.-vvw,11;1,. 7 Jl l 'Cll l tJ C-1 CIIIU \.o\,,-IIICll .. lf Q ....... g11,v1 , , 1 1g ,;;, .. ca .. c- ... ,c;a, \,,rVUI .. JU'-"0 "-.1 I IQ.;1' a., 11;-.::, 1 nominated to the Ninth Circuit Court of Appeals. She has be e n severely criticized for her record on civil rights and abortion. For example , while in the Justice Department under the Reagan Administration, Kuhl urged the Supreme Court to overturn Roe v. Wade as "flawed." She also reportedly played a key role in convincing then-Attorney Genera l Smith to reve rse prior policy and support the granting of tax -exempt status to Bob Jones University despite its racially discriminatory practices. A Supreme Court decision late r rejected the Reagan administration 's policy by an 8-1 vote. ? Jeffrey Sutton , an officer in the Federalist Society's Separation of Powers an d Federalism practice group, has been nominated to the Sixth Circuit Court of Appeals. Sutton is well known for his efforts as a lawyer to severely limit federal protections against discriminat ion and injury based on disabi lity, race , age, sex , and religion. More than 50 nationa l organ izat ions and over 220 regional , state, and local groups have opposed his confirmation, including the American Asso ciation of Persons with Disabilities, the Nation al Rehabilitation Asso ciation , the National Women 's Political Caucus, and the Welfare Law Center. ? Prisci lla Owen, a Federa list Society member an d currently a justice on the Texas Supreme Court, has been nominated to the Fifth Circuit Court of Appeals. Owen has been criticized as one of two judges on the "far right wing" of the Texas court, further to the right than Pres ident Bush's own appointees to that court when he was governor. In one decision in which she dissented, Owen called for a very narrow view of a state law concerning the abi lity of minors to obtain an abortion without pa renta l consent. Then-Texas Supreme Court Justice Alberto Gonzalez - who is now chief White House counsel warned that adopting the dissenters' view would be an "unconscionable act of ju dicial activ ism. " Careful review and scrutiny of federal judicial nominees is critical to protecting our rights. In our system of checks and balances , the Senate has a co-equal role with the President in appo inting federal ju dges , since it must provide its "a dvice and consent" before any nominee becomes a judge. It is imperative that the Senate carries out this constitutional role in a careful, thorough and diligent manner. Judicial nominees - who are confirmed for lifetime appointments - must be carefully scruti nized . ? No nominee is presumptively entitled to confirmation to a lifetime appo intment to any fede ra l court. Particu larly for the courts of appeals and the Supreme Court, a nominee bears the burden of demonstrating that he or she meets the appropriate qual ifications, which should include a demonstrated commitment to civil rights and individual liberties, and a clear respect for Congress ' proper constitutional role in protecting constitutional and civil rights and the health and safety of a ll Americans. More than 200 law professors have written to the Senate, sett ing fort h these qualificat ions . ? In carrying out its role, the Senate must ensure that judicial nominees are subject to the highest standard of scrutiny. The de cis ions of judges last long after they and the Presi dent who appointed them have retired. The American people must be assured that judges who are given the solemn constitut ional responsib ility of protecting their rights and upholding the Constitution are unequivocally comm itted to justice and equality for al l. ? Each nominee's record must be examined carefully , including unpub lished op inions and other information that may not be rea dily avai lab le . By its very nature, this sometimes is a time consuming process but one that is essential to the Senate 's ob ligation to evaluate the full record of a nominee. The mere absen ce of disqua lifying evidence in a nominee 's re cord should not constitute sufficient groun ds for confirmat ion. ? The Senate shou ld reject far right court-pa cking efforts , and shoul d withhold its consent from right wing nominees who do not demonstrate a commitment to civil rights and liberties. Senators should take a clear and unequivocal stand , including discuss ing openly the potent ial impact of right-w ing domination of the federal courts and the importance of opposing nominees whose lifetime appo intments would threaten America's rights and libert ies. More moderate, mainstream nominees EXT-18-2091-C-000211 007104-000932 Document ID: 0.7.19343 .7057 who reflect genuine bipartisan consultation should receive priority in processing. Since taking control of the U. S. Senate and the Senate Judiciary Committee in July 2001, Senators Daschle and Leahy have moved judicial nominees promptly and responsibly. The far right is wrong to charge Daschle and Leahy with improper delay and then use these cha rges to stampede nominations through the Senate. ? The current pace of confirmations is on par with the first years of other administrations. Since Democrats assumed control of the Senate in July 2001, the Senate- has confirmed 28 nominations to the federal judiciary -and several more nominations have been sent to the Senate floor by the Judiciary Committee . These 28 confi rmat ions are almost twice the number confirmed during the entire first year of the first Bush administration (1989 ), and one more than the number confirme d during the first year of the Clinton administration (1993) . The pace is significantly ahead of what occurred when Republican Senators de liberately de laye d the process in the late 1990s . For example, more Republican -nom inated judges were confirmed in less than six months last year than the number of Democratic-nominated judges that were confirmed in all of 1996. ? Since the shift in control of the Senate last July, the Judiciary committee has held 11 hearings. In less than six months, Senator Leahy has held 11 nomination hearings, averaging more than two every month-despite the serious disruptions in Senate business and distractions caused by the September 11 and anthrax attacks. In contrast, during the previous six and one-half years of Republican Senate control, the Committee averaged only about nine hearings during a full year. ? Under Democratic control, the Senate has reversed the significant rise in judicial vacancies caused by the previous Republican-controlled Senate. As a result of the serious delays during the six and one-half years that the Republican Senate majority controlled the process, the total number of fe dera l court vaca ncies increased from 65 to 111 last July, an increase of over 70 percent . Just since July, when Senate Democrats resumed control, the number of vacancies has de creased from 111 to 94 as of December 21, 2001, when the Senate completed its work for the year. ? Recently, right-wing groups and their Senate Republican allies have hel d press conferences and issued statements attempting to push confirmation of Administration nominees by trying to link the war on terrorism and judicial nominations. They have accused Senate Majority Leader Tom Daschle and Senate Judiciary Committee Chairman Patrick Leahy of improper delay and being unpatriotic, claiming that there may not be enough federa l judges to issue necessary search wa rrants and wiretap orders. They have asserted t hat Chief Justice Rehnquist supports their claim that the pace of confirmations has somehow harmed the war on terrorism. ? These claims are false, and there is no evidence that the pace of confirmat ions has had even the slightest impact on law enforcement and the war on terrorism. Almost all of the right wing's complaints about the pace of confirmations concern nominees to the fede ra l courts of appeals-judges who don't even consider requests for wiretaps and search warrants. In fact, federal magistrates and trial court judges consider such requests. Magistrates are not confirmed by the Senate, and any backlog in the confirmation of federal trial judges is attributable to the Bush Administration, not the Senate. As of January 4, the administration had submitted nominees for only 20 percent of the federal trial court vacancies (14 of 68}. In contrast, the Senate had confirmed almost two -t hirds of th e nominees (22 out of 36) selected for these federal trial courts. Although Chief Justice Rehnquist recently calle d for filling judicial vacancies promptly at this critical time, he did not suggest that the current Senate pace is harming the war on terrorism, and did not even mention the Administration's failure to submit nominations for most federal trial court vacancies. The current unprecedented situation calls for an unprecedented bipartisan solution. The President should reject the demands of the far right, and submit more moderate nominees who are truly qualified for the federal bench. This should include genuine consultation with Senators of both parties both before and after nominations are made. EXT-18-2091-C-000212 007104-000933 Document ID: 0.7.19343 .7057 who reflect genuine bipartisan consultation should receive priority in processing. Since taking control of the U. S. Senate and the Senate Judiciary Committee in July 2001, Senators Daschle and Leahy have moved judicial nominees promptly and responsibly. The far right is wrong to charge Daschle and Leahy with improper delay and then use these cha rges to stampede nominations through the Senate. . The current pace of confirmations is on par with the first years of other administrations. Since Democrats assumed control of the Senate in July 2001, the Senate- has confirmed 28 nominations to the federal judiciary -and several more nominations have been sent to the Senate floor by the Judiciary Committee . These 28 confi rmat ions are almost twice the number confirmed during the entire first year of the first Bush administration (1989 ), and one more than the number confirme d during the first year of the Clinton administration (1993) . The pace is significantly ahead of what occurred when Republican Senators de liberately de laye d the process in the late 1990s . For example, more Republican -nom inated judges were confirmed in less than six months last year than the number of Democratic-nominated judges that were confirmed in all of 1996. . Since the shift in control of the Senate last July, the Judiciary committee has held 11 hearings. In less than six months, Senator Leahy has held 11 nomination hearings, averaging more than two every month-despite the serious disruptions in Senate business and distractions caused by the September 11 and anthrax attacks. In contrast, during the previous six and one-half years of Republican Senate control, the Committee averaged only about nine hearings during a full year. . Under Democratic control, the Senate has reversed the significant rise in judicial vacancies caused by the previous Republican-controlled Senate. As a result of the serious delays during the six and one-half years that the Republican Senate majority controlled the process, the total number of fe dera l court vaca ncies increased from 65 to 111 last July, an increase of over 70 percent . Just since July, when Senate Democrats resumed control, the number of vacancies has de creased from 111 to 94 as of December 21, 2001, when the Senate completed its work for the year. . Recently, right-wing groups and their Senate Republican allies have hel d press conferences and issued statements attempting to push confirmation of Administration nominees by trying to link the war on terrorism and judicial nominations. They have accused Senate Majority Leader Tom Daschle and Senate Judiciary Committee Chairman Patrick Leahy of improper delay and being unpatriotic, claiming that there may not be enough federa l judges to issue necessary search wa rrants and wiretap orders. They have asserted t hat Chief Justice Rehnquist supports their claim that the pace of confirmations has somehow harmed the war on terrorism. . These claims are false, and there is no evidence that the pace of confirmat ions has had even the slightest impact on law enforcement and the war on terrorism. Almost all of the right wing's complaints about the pace of confirmations concern nominees to the fede ra l courts of appeals-judges who don't even consider requests for wiretaps and search warrants. In fact, federal magistrates and trial court judges consider such requests. Magistrates are not confirmed by the Senate, and any backlog in the confirmation of federal trial judges is attributable to the Bush Administration, not the Senate. As of January 4, the administration had submitted nominees for only 20 percent of the federal trial court vacancies (14 of 68}. In contrast, the Senate had confirmed almost two -t hirds of th e nominees (22 out of 36) selected for these federal trial courts. Although Chief Justice Rehnquist recently calle d for filling judicial vacancies promptly at this critical time, he did not suggest that the current Senate pace is harming the war on terrorism, and did not even mention the Administration's failure to submit nominations for most federal trial court vacancies. The current unprecedented situation calls for an unprecedented bipartisan solution. The President should reject the demands of the far right, and submit more moderate nominees who are truly qualified for the federal bench. This should include genuine consultation with Senators of both parties both before and after nominations are made. EXT-18-2091-C-000212 007104-000933 Document ID: 0.7.19343 .7057 3 007104-000934 Document ID: 0.7.19343.7057 3 007104-000934 Document ID: 01193431057 Dinh, Viet From : Dinh, Viet Sent : Thursday, January 24, 2002 3:58 PM To: Newstead, Jennifer; 'Brett_M._Kavanaugh@who.eop.gov '; Benczkowski, Brian A Subje ct : FW:FW: Basic background -- Pickering FYI. Jen , can you get me talkers on this? thanks -Original Message-From: Ben Wittes (mailto:wittesb@washpost.com) Sent: Thursday, January 24, 2002 3:09 PM To: Dinh, Viet Subject: Re: FW: Basic background - Pickering I've just finished reading Pickering's decision in Fairley ( 814 F. Supp. 1327). I have to say, it's not a model of what I think of when I think of judicial restraint. It seems , rather, like a lengthy policy essay decrying voting rights history-all totally unnecessary to resolve the matter before him. Have you looked at it? And are you willing to defend it? /b Benjamin Wittes Editorial Writer The Washington Post 1150 15th Street, NW Washington DC 20071 phone: 202-334-4134 fax: 202-334-5269 "Dinh, Viet" gov> (Receipt Notification Requested) (1PMReturn Requested) cc: 01/24/2002 02:55 Subject: FW: Basic background - Pickering PM EXT-18-2091-C-000214 007104-000935 Document ID: 0.7.19343.7078 Dinh, Viet From : Dinh, Viet Sent : Thursday, January 24, 2002 3:58 PM To: Newstead, Jennifer; 'Brett_M._Kavanaugh@who.eop.gov '; Benczkowski, Brian A Subje ct : FW:FW: Basic background -- Pickering FYI. Jen , can you get me talkers on this? thanks -Original Message-From: Ben Wittes (mailto:wittesb@washpost.com) Sent: Thursday, January 24, 2002 3:09 PM To: Dinh, Viet Subject: Re: FW: Basic background - Pickering I've just finished reading Pickering's decision in Fairley ( 814 F. Supp. 1327). I have to say, it's not a model of what I think of when I think of judicial restraint. It seems , rather, like a lengthy policy essay decrying voting rights history-all totally unnecessary to resolve the matter before him. Have you looked at it? And are you willing to defend it? /b Benjamin Wittes Editorial Writer The Washington Post 1150 15th Street, NW Washington DC 20071 phone: 202-334-4134 fax: 202-334-5269 "Dinh, Viet" gov> (Receipt Notification Requested) (1PMReturn Requested) cc: 01/24/2002 02:55 Subject: FW: Basic background - Pickering PM EXT-18-2091-C-000214 007104-000935 Document ID: 0.7.19343.7078 o I . n. oo. -Or From: Sent: Thursda To: Subject: Basic background - Pickering ] Charles W. Pickering Nominee to the United States Circuit Court of Appeals for the Fifth Circuit Legal an d Personal Backgroun d U. S. District Judge Charles W. Picker ing, Sr., has served on the federal trial bench since his nomination to that position on October 2, 1990. Prior to his appointment, he practiced law for almost thirty yea rs, gaining extensive trial experience. Judge Pickerin g graduated at the top of his law school class at the University of Mississippi in 1961. While in law school, he was on the law Journal and served as Chairman of the Moot Court Board. Upon graduating, he became a partner in a law firm in Mississippi an d in 1969 he be-came a City of laurel Municipal Court Judge. Judge Pickering was appointed and served as City Prosecuting Attorney of Laurel and was elected and served four years as County Prosecuting Attorney of Jones County. In addition , he was elected to two terms in the Mississippi State Senate, 1972 to 1980; was the Republican nominee for Attorney General in 1979; and served as Chairman of the Mississippi Republican Party from 1976 to 1978. Throughout his career Judge Pickering has shown a commitment to his community in both a professional an d personal capacity. His numerous civic contributions include serving as the hea d of the March of Dimes campaign in Jones County; as the Chairman of the Jones County Chapter of the American National Red Cross; and as the Chairman of the Jones County Heart Fund. In 1963 he was recognized as one of the three Outstanding Young Men in Mississippi. Judge Pickering is active in his church and has served many years as a Sunday School teacher, as Chairman of the Deacons, Sunday School Superintendent , and Church Treasurer. Jud ge Pickering is married and has three daughters and one son. They have eighteen grandchildren. EXT-18-2091-C-000215 007104-000936 Document ID: 0.7.19343.7078 o I . n. oo. -Or From: Sent: Thursda To: Subject: Basic background - Pickering ] Charles W. Pickering Nominee to the United States Circuit Court of Appeals for the Fifth Circuit Legal an d Personal Backgroun d U. S. District Judge Charles W. Picker ing, Sr., has served on the federal trial bench since his nomination to that position on October 2, 1990. Prior to his appointment, he practiced law for almost thirty yea rs, gaining extensive trial experience. Judge Pickerin g graduated at the top of his law school class at the University of Mississippi in 1961. While in law school, he was on the law Journal and served as Chairman of the Moot Court Board. Upon graduating, he became a partner in a law firm in Mississippi an d in 1969 he be-came a City of laurel Municipal Court Judge. Judge Pickering was appointed and served as City Prosecuting Attorney of Laurel and was elected and served four years as County Prosecuting Attorney of Jones County. In addition , he was elected to two terms in the Mississippi State Senate, 1972 to 1980; was the Republican nominee for Attorney General in 1979; and served as Chairman of the Mississippi Republican Party from 1976 to 1978. Throughout his career Judge Pickering has shown a commitment to his community in both a professional an d personal capacity. His numerous civic contributions include serving as the hea d of the March of Dimes campaign in Jones County; as the Chairman of the Jones County Chapter of the American National Red Cross; and as the Chairman of the Jones County Heart Fund. In 1963 he was recognized as one of the three Outstanding Young Men in Mississippi. Judge Pickering is active in his church and has served many years as a Sunday School teacher, as Chairman of the Deacons, Sunday School Superintendent , and Church Treasurer. Jud ge Pickering is married and has three daughters and one son. They have eighteen grandchildren. EXT-18-2091-C-000215 007104-000936 Document ID: 0.7.19343.7078 The Facts on Judge Pickering Judge Pickeringa??s reco rd in his community and as a judge indicates that he is fu lly committe d to improving racial relations and enforcing laws protecting civil rights. Judge Pickering has expressed his commitment to civil rights through S consecutive decades of action. Pickering: Testified against the Imperial Wizard of the KKKfor fire bombing a civil rights act ivist in Mississippi in 1967 , at great risk to both himself and his family Worked with the FBIto investigate and prosecute other KKKmembers Hired the first African -American Republican politica l worker in Mississippi in 1976 Represented a black man falsely accused of robbing a 16-year-old white girl in 1981 Chaired a race relations committee for Jones County Mississippi in 1988 Served on the board of the Institute for Racial Reconciliation at the University of Mississippi s ince 1999 Worked with at-risk African -American youth in laurel , Mississippi in 2000 This is why there has been a broad outpouring of support for Judge Pickeringa?? s nomination to the 5th Circuit from the African-Americans who know him best. Federal District Judge Henry Wingate of Jackson, Mississippi Sixth Circuit Court of Appeals Judge Damon Keith Thaddeus Edmonson, presi dent of the city council in laurel, Mississippi Melvin Mack, member of the Board of Supervisors for Jones County, MS Deborah Gambrell , a civil rights attorney who has practiced before Judge Pickering in Mississippi Reverend Nathan Jordan , a former President of an NAACPchapter in the Southern District of Mississippi EXT-18-2091-C-000216 007104-000937 Document ID: 0.7.19343 .7078 The Facts on Judge Pickering Judge Pickeringa??s reco rd in his community and as a judge indicates that he is fu lly committe d to improving racial relations and enforcing laws protecting civil rights. Judge Pickering has expressed his commitment to civil rights through S consecutive decades of action. Pickering: Testified against the Imperial Wizard of the KKKfor fire bombing a civil rights act ivist in Mississippi in 1967 , at great risk to both himself and his family Worked with the FBIto investigate and prosecute other KKKmembers Hired the first African -American Republican politica l worker in Mississippi in 1976 Represented a black man falsely accused of robbing a 16-year-old white girl in 1981 Chaired a race relations committee for Jones County Mississippi in 1988 Served on the board of the Institute for Racial Reconciliation at the University of Mississippi s ince 1999 Worked with at-risk African -American youth in laurel , Mississippi in 2000 This is why there has been a broad outpouring of support for Judge Pickeringa?? s nomination to the 5th Circuit from the African-Americans who know him best. Federal District Judge Henry Wingate of Jackson, Mississippi Sixth Circuit Court of Appeals Judge Damon Keith Thaddeus Edmonson, presi dent of the city council in laurel, Mississippi Melvin Mack, member of the Board of Supervisors for Jones County, MS Deborah Gambrell , a civil rights attorney who has practiced before Judge Pickering in Mississippi Reverend Nathan Jordan , a former President of an NAACPchapter in the Southern District of Mississippi EXT-18-2091-C-000216 007104-000937 Document ID: 0.7.19343 .7078 and his family for years Judge Pickering is committed to following controlling precedent of the Supreme Court and of his Circuit, even when he may not personally agree with it. Judge Pickering has served as a district court judge for over eleven years and has handled approximately 4000 to 4500 cases. Yet in all of these years, and after all of these cases, he has been reversed about 28 times. Thus , Judge Pickeringa??s reversal rate is one half of one percentage point (.05%). Judge Pickering understands an d appreciates the dist incti on between a political stance that one takes as an advocate , and the role of an appellate court judge. Judge Pickering, who has 3 daughters and 9 granddaughters , has shown a strong commitment to ensur ing equal rights for women. More than 25 years ago , Judge Pickering worked to include a recommendation in the Re-publican platform that women should receive equal pay and equal rights. Numerous women who know and have worked with Judge Pickering have endorsed his nomination, including civil rights attorney Deborah Gambrell , and Deputy U.S. Marshal Melanie Rube. Judge Pickering , through a career of service to this community, is well-qualifie d for the position to which he has been nominated. The American Bar Associat ion has rated Judge Pickering a??well qualified ,a?? the highest rating a nominee can receive. In his 1990 confirmation hearing, he was unanimously voted out of the Senate Committee on the Judiciary. Judge Pickeringa??s nomination has received support from a wide array of individuals, including: Numerous past Presidents of The Mississippi Bar Association William Winter, the former Democratic Governor of Mississippi Danny Cupit, former Chairman of the Miss iss ippi Democratic Party Carroll Ingram, female Democratic attorney and former State Senator, who served with Pickering in State Senate EXT-18-2091-C-000217 007104-000938 Document ID: 0.7.19343 .7078 and his family for years Judge Pickering is committed to following controlling precedent of the Supreme Court and of his Circuit, even when he may not personally agree with it. Judge Pickering has served as a district court judge for over eleven years and has handled approximately 4000 to 4500 cases. Yet in all of these years, and after all of these cases, he has been reversed about 28 times. Thus , Judge Pickeringa??s reversal rate is one half of one percentage point (.05%). Judge Pickering understands an d appreciates the dist incti on between a political stance that one takes as an advocate , and the role of an appellate court judge. Judge Pickering, who has 3 daughters and 9 granddaughters , has shown a strong commitment to ensur ing equal rights for women. More than 25 years ago , Judge Pickering worked to include a recommendation in the Re-publican platform that women should receive equal pay and equal rights. Numerous women who know and have worked with Judge Pickering have endorsed his nomination, including civil rights attorney Deborah Gambrell , and Deputy U.S. Marshal Melanie Rube. Judge Pickering , through a career of service to this community, is well-qualifie d for the position to which he has been nominated. The American Bar Associat ion has rated Judge Pickering a??well qualified ,a?? the highest rating a nominee can receive. In his 1990 confirmation hearing, he was unanimously voted out of the Senate Committee on the Judiciary. Judge Pickeringa??s nomination has received support from a wide array of individuals, including: Numerous past Presidents of The Mississippi Bar Association William Winter, the former Democratic Governor of Mississippi Danny Cupit, former Chairman of the Miss iss ippi Democratic Party Carroll Ingram, female Democratic attorney and former State Senator, who served with Pickering in State Senate EXT-18-2091-C-000217 007104-000938 Document ID: 0.7.19343 .7078 8 007104-000939 Document ID: 0.7.19343.7078 8 007104-000939 Document ID: 01193431078 Dinh, Viet From : Dinh, Viet Sent : Thursday , February 28, 2002 9:15 AM To : Oinh Viet; 'Bradfo rd_A._Berenson@who.eop.gov '; Newstead , Jennifer; 'Alberto_ R._Gonzales@who.eop.gov '; 'Timothy_ E._ Flanigan@who.eop.g ov'; 'Brett_M._Kavanaugh@who.eop.gov '; 'Kyle_Sampson@who.eop.gov '; 'anne_ womack@who.eop.gov '; 'Todd Baustert '; 'Matt Smith' Subjec t : RE: 1 Judge Pickering's Statement of 2/27/02: "I have given no thought to withdrawing. There has been too much mean-spirited mischaracterization of my record by interest groups . I inted to fight for my reputation to the end. I will not withdraw." --Or iginal Message--From: Dinh, Viet Sent: Wednesday, February 27, 2002 6:24 PM To: ' Bradford_A._Berenson@who.eop.gov '; Newstead, Jenn ifer; 'Alberto _ R._ Gonzales@who.eop.gov '; 'Timothy_ E._ Flanigan@who.eop .gov'; 'Brett_M._Kavanaugh@who .eop.gov '; 'Kyle_Sampson@who.eop.gov ' Subject: RE: -Or iginal Message--From: Bradford_A._Berenson@who.eop.gov [ma ilto:Bradford_A._Berenson@who.eop.gov] Sent; Wednesday, February 27, 2002 6:07 PM To: Newstead, Jennifer; Dinh, Viet; Alberto_R._Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Brett_ M ._ Kavanaugh@who.eop.gov; Kyle_Sampson@who.eop.gov Subject: RE: ------ Forwarded by Bradford A. Berenson/WHO/EOP on 02/27/2002 06:06 PM ----- EXT-18-2091-C-000219 007104-000940 Document ID: 0.7.19343.7248 Dinh, Viet From : Dinh, Viet Sent : Thursday , February 28, 2002 9:15 AM To : Oinh Viet; 'Bradfo rd_A._Berenson@who.eop.gov '; Newstead , Jennifer; 'Alberto_ R._Gonzales@who.eop.gov '; 'Timothy_ E._ Flanigan@who.eop.g ov'; 'Brett_M._Kavanaugh@who.eop.gov '; 'Kyle_Sampson@who.eop.gov '; 'anne_ womack@who.eop.gov '; 'Todd Baustert '; 'Matt Smith' Subjec t : RE: 1 Judge Pickering's Statement of 2/27/02: "I have given no thought to withdrawing. There has been too much mean-spirited mischaracterization of my record by interest groups . I inted to fight for my reputation to the end. I will not withdraw." --Or iginal Message--From: Dinh, Viet Sent: Wednesday, February 27, 2002 6:24 PM To: ' Bradford_A._Berenson@who.eop.gov '; Newstead, Jenn ifer; 'Alberto _ R._ Gonzales@who.eop.gov '; 'Timothy_ E._ Flanigan@who.eop .gov'; 'Brett_M._Kavanaugh@who .eop.gov '; 'Kyle_Sampson@who.eop.gov ' Subject: RE: -Or iginal Message--From: Bradford_A._Berenson@who.eop.gov [ma ilto:Bradford_A._Berenson@who.eop.gov] Sent; Wednesday, February 27, 2002 6:07 PM To: Newstead, Jennifer; Dinh, Viet; Alberto_R._Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Brett_ M ._ Kavanaugh@who.eop.gov; Kyle_Sampson@who.eop.gov Subject: RE: ------ Forwarded by Bradford A. Berenson/WHO/EOP on 02/27/2002 06:06 PM ----- EXT-18-2091-C-000219 007104-000940 Document ID: 0.7.19343.7248 \ CII IU~UU~U image moved Jennifer Oschal < to file: 02/27/2002 04:22: 12 PM pic19003.pcx) Please respond to Recor d Type: Recor d To: See the distribution list at the bottom of this message cc: Subject: RE: this canNOT happen. it's all about "setting the tone" as GWB does so nicely. if he withdraws, what doe.s that say? besides, those on the call we just had have not been let loose yet - once that happens, things could turn around. i know you all know this, but i just need to reiterate! ---Original Message--From: Tim_ Goeglein@who.eop.gov [mailto :Tim_ Goeglein@who.eop.gov) Sent: Wednesday, February 27, 2002 4:16 PM To: Matthew _A._ Schlapp@who.eop.gov; Susan _ B._ Ralston@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Heather _ Wingate@who.eop.gov Subject: colleagues fyi warmly tsg LOTTHINTSPICKERINGMIGHT WITHDRAWIF LOSSLIKELY IN JUDICIARYCOMMITTEE Senate Minority Leader Trent Lott, Miss., indicated today that Charles W. Pickering Sr., an embattled Mississippi nominee for the 5th U.S. EXT-18-2091-C-000220 007104-000941 Document ID: 0.7.19343.7248 \ CII IU~UU~U image moved Jennifer Oschal < to file: 02/27/2002 04:22: 12 PM pic19003.pcx) Please respond to Recor d Type: Recor d To: See the distribution list at the bottom of this message cc: Subject: RE: this canNOT happen. it's all about "setting the tone" as GWB does so nicely. if he withdraws, what doe.s that say? besides, those on the call we just had have not been let loose yet - once that happens, things could turn around. i know you all know this, but i just need to reiterate! ---Original Message--From: Tim_ Goeglein@who.eop.gov [mailto :Tim_ Goeglein@who.eop.gov) Sent: Wednesday, February 27, 2002 4:16 PM To: Matthew _A._ Schlapp@who.eop.gov; Susan _ B._ Ralston@who.eop.gov; Matthew _ E._ Smith@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Heather _ Wingate@who.eop.gov Subject: colleagues fyi warmly tsg LOTTHINTSPICKERINGMIGHT WITHDRAWIF LOSSLIKELY IN JUDICIARYCOMMITTEE Senate Minority Leader Trent Lott, Miss., indicated today that Charles W. Pickering Sr., an embattled Mississippi nominee for the 5th U.S. EXT-18-2091-C-000220 007104-000941 Document ID: 0.7.19343.7248 Circuit Court of Appeals, might withdraw if it becomes clear the Judiciary Committee will reject his nomination. Lott, who yesterday obtained a one-week delay in the committee's vote on Pickering's nomin at ion, said he still hopes the panel will send the nomination to the full Senate. But he said Pickering has to think about his choices. "I'm not advocating this, but he 's got to de cide whether he wants to go forward wit h a vote if the votes aren't there, wheth er he wants to terminate the process," Lott said. He also said after meeting with President Bush this morning that Bush is "disgusted" with the way Senate Democrats have treate d Pickering's nomination. Lott said the president expressed concern about the slow pace of action on appellate court nominees in general and "weighe d in on a personal basis" on Pickering. Message Sent To:___________________________ _ Tim Goeglein/WHO/EOP@EOP Matthew A Schlapp/WHO/EOP@EOP Susan B. Ralston/WHO/EOP@EOP Matthew E. Smith/WHO/EOP@EOP Bradford A Berenson/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP EXT-18-2091-C-000221 007104-000942 Document ID: 0.7.19343 .7248 Circuit Court of Appeals, might withdraw if it becomes clear the Judiciary Committee will reject his nomination. Lott, who yesterday obtained a one-week delay in the committee's vote on Pickering's nomin at ion, said he still hopes the panel will send the nomination to the full Senate. But he said Pickering has to think about his choices. "I'm not advocating this, but he 's got to de cide whether he wants to go forward wit h a vote if the votes aren't there, wheth er he wants to terminate the process," Lott said. He also said after meeting with President Bush this morning that Bush is "disgusted" with the way Senate Democrats have treate d Pickering's nomination. Lott said the president expressed concern about the slow pace of action on appellate court nominees in general and "weighe d in on a personal basis" on Pickering. Message Sent To:___________________________ _ Tim Goeglein/WHO/EOP@EOP Matthew A Schlapp/WHO/EOP@EOP Susan B. Ralston/WHO/EOP@EOP Matthew E. Smith/WHO/EOP@EOP Bradford A Berenson/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP EXT-18-2091-C-000221 007104-000942 Document ID: 0.7.19343 .7248 Newstead, Jennifer From: Sent: To: Cc: Subject: Newstead, Jennifer Thursday, March 7, 2002 12:27 PM 'Timothy_E._Flanigan@who.eop.gov'; 'Heather_Wingate@who.eop.gov'; 'Bradford_A._Berenson@who.eop.gov'; 'Anne_Womack@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'Kyle_Sampson@who.eop.gov'; 'Noel_J._Francisco@who.eop.gov'; 'Rachel_L._Brand@who.eop.gov'; 'Courtney_S._Elwood@who.eop.gov'; 'Helgard_C._Walker@who.eop.gov'; 'h._christopher_bartolomucci@who.eop.gov' Dinh, Viet; Willett, Don; Benedi, Lizette D; Benczkowski, Brian A; Sales, Nathan; Keefer, Wendy J; Goodling, Monica FW: Nominations For your information, here is the report we received from DOJ/Leg Affairs on the Judiciary Committee meeting today. -----Original Message----Scottfinan, Nancy From: Sent: Thursday, March 07, 2002 12:21 PM To: Bryant, Dan; Thompson, Larry D; O'Brien, Pat; Thorsen, Carl; Dinh, Viet; Newstead, Jennifer; Joy, Sheila; Ayres, David; Higbee, David; DeFalaise, Lou; Naimon, David; Bertucci, Theresa; Sheorn, Douglas; Gambatesa, Donald; Peacock, Claudia; Rybicki, James E; Williams, Paula; 'kyle sampson@who.eop.gov' Nominations Subject: At the Senate Judiciary Committee markup on March 7, the nomination of Charles Pickering was held over by Senator Hatch. Senator Specter raised the issue that there should be a Committee rule that a nomination goes to the floor if the vote is along party lines and also raised the issue of what is the Senate's advise and consent role, stating that he and Senator Biden had been discussing this on their train rides. Senator McConnell also stated that they needed to rescue the process and that he wanted to join any discussions. Senator Brownback suggested that there should be a meeting with the Chairman before the next business meeting about this. Senator DeWine stated that they ought to stand back and set down some broad principles with regard to circuit nominees, specifically on holds, when hearings will be held, and who gets to the floor. He mentioned the problems with the Sixth Circuit. Senator Biden said that he would still vote "no" on the nomination; that he had concerns about judgment and judicial temperament. Senator Schumer stated that any debate about advise and consent was a rationale to abolish committees and that the nominee just did not meet the bar on excellence, diversity and moderation. He also stated that there ought to be more consultation between the White House and the Senate. Senator Durbin disagreed about the process and stated that the nominee just does not have support, that this was the White House testing them. Senator Feinstein said that the issues around this nominee were deeply polarized and were sending the signal that there needed to be nominees in the mainstream. She also talked about the lack of consultation with Democrats on the issue of nominees and said it was insulting. She made reference to Washington and Wisconsin. Senator Edwards stated that Pickering was not willing to apply the law in a fair and impartial way. He stated that in the Swan case, Judge Pickering made an effort to avoid applying the law when it was in conflict with his personal opinion. Senator Leahy concluded the debate stating that there needed to be talented mainsteam men and women appointed to the judiciary to keep the judiciary independent. Following the debate, the Committee approved the following judicial nominees, each by a roll call vote of 19-0: Ralph Beistline, to be a United States District Judge for the District of Alaska; David C. Bury, to be a United States District Judge for the District of Arizona; and Randy Crane, to be a United States District Judge for the Southern District of Texas. En banc, by unanimous consent, the Committee approved: EXT-18-2091-C-000222 007104-000943 Document ID: 0.7.19343.5005 Newstead, Jennifer From: Sent: To: Cc: Subject: Newstead, Jennifer Thursday, March 7, 2002 12:27 PM 'Timothy_E._Flanigan@who.eop.gov'; 'Heather_Wingate@who.eop.gov'; 'Bradford_A._Berenson@who.eop.gov'; 'Anne_Womack@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'Kyle_Sampson@who.eop.gov'; 'Noel_J._Francisco@who.eop.gov'; 'Rachel_L._Brand@who.eop.gov'; 'Courtney_S._Elwood@who.eop.gov'; 'Helgard_C._Walker@who.eop.gov'; 'h._christopher_bartolomucci@who.eop.gov' Dinh, Viet; Willett, Don; Benedi, Lizette D; Benczkowski, Brian A; Sales, Nathan; Keefer, Wendy J; Goodling, Monica FW: Nominations For your information, here is the report we received from DOJ/Leg Affairs on the Judiciary Committee meeting today. -----Original Message----Scottfinan, Nancy From: Sent: Thursday, March 07, 2002 12:21 PM To: Bryant, Dan; Thompson, Larry D; O'Brien, Pat; Thorsen, Carl; Dinh, Viet; Newstead, Jennifer; Joy, Sheila; Ayres, David; Higbee, David; DeFalaise, Lou; Naimon, David; Bertucci, Theresa; Sheorn, Douglas; Gambatesa, Donald; Peacock, Claudia; Rybicki, James E; Williams, Paula; 'kyle sampson@who.eop.gov' Nominations Subject: At the Senate Judiciary Committee markup on March 7, the nomination of Charles Pickering was held over by Senator Hatch. Senator Specter raised the issue that there should be a Committee rule that a nomination goes to the floor if the vote is along party lines and also raised the issue of what is the Senate's advise and consent role, stating that he and Senator Biden had been discussing this on their train rides. Senator McConnell also stated that they needed to rescue the process and that he wanted to join any discussions. Senator Brownback suggested that there should be a meeting with the Chairman before the next business meeting about this. Senator DeWine stated that they ought to stand back and set down some broad principles with regard to circuit nominees, specifically on holds, when hearings will be held, and who gets to the floor. He mentioned the problems with the Sixth Circuit. Senator Biden said that he would still vote "no" on the nomination; that he had concerns about judgment and judicial temperament. Senator Schumer stated that any debate about advise and consent was a rationale to abolish committees and that the nominee just did not meet the bar on excellence, diversity and moderation. He also stated that there ought to be more consultation between the White House and the Senate. Senator Durbin disagreed about the process and stated that the nominee just does not have support, that this was the White House testing them. Senator Feinstein said that the issues around this nominee were deeply polarized and were sending the signal that there needed to be nominees in the mainstream. She also talked about the lack of consultation with Democrats on the issue of nominees and said it was insulting. She made reference to Washington and Wisconsin. Senator Edwards stated that Pickering was not willing to apply the law in a fair and impartial way. He stated that in the Swan case, Judge Pickering made an effort to avoid applying the law when it was in conflict with his personal opinion. Senator Leahy concluded the debate stating that there needed to be talented mainsteam men and women appointed to the judiciary to keep the judiciary independent. Following the debate, the Committee approved the following judicial nominees, each by a roll call vote of 19-0: Ralph Beistline, to be a United States District Judge for the District of Alaska; David C. Bury, to be a United States District Judge for the District of Arizona; and Randy Crane, to be a United States District Judge for the Southern District of Texas. En banc, by unanimous consent, the Committee approved: EXT-18-2091-C-000222 007104-000943 Document ID: 0.7.19343.5005 Eric Melgren, to be U.S. Attorney for the District of Kansas; Paul Perez, to be U.S. Attorney for the Middle District of Florida; Theophile A. Duroncelet, to be U.S. Marshal for the Eastern District of Louisiana; John Edwards, to be U.S. Marshal for the District of Vermont; Steven G. Fitzgerald, to be U.S. Marshal for the Western District of Wisconsin; Gregory Forest, to be U.S. Marshal for the Western District of North Carolina; James L. Kennedy, to be U.S. Marshal for the Southern District of Indiana; Dennis Merrill, to be U.S. Marshal for the District of Oregon; James Plousis, to be U.S. Marshal for the District of New Jersey; J. C. Rafferty, to be U.S. Marshal for the Northern District of West Virginia; Charles R. Reavis, to be U.S. Marshal for the Eastern District of North Carolina; Michael R. Regan, to be U.S. Marshal for the Middle District of Pennsylvania; James A. Rose, to be U.S. Marshal for the District of Wyoming; John Schickel, to be U.S. Marshal for the Eastern District of Kentucky; Jesse Seroyer, to be U.S. Marshal for the Middle District of Alabama; Timothy D. Welch, to be U.S. Marshal for the Northern District of Oklahoma; and William R. Whittington, to be U.S. Marshal for the Western District of Louisiana. EXT-18-2091-C-000223 007104-000944 Document ID: 0.7.19343.5005 Eric Melgren, to be U.S. Attorney for the District of Kansas; Paul Perez, to be U.S. Attorney for the Middle District of Florida; Theophile A. Duroncelet, to be U.S. Marshal for the Eastern District of Louisiana; John Edwards, to be U.S. Marshal for the District of Vermont; Steven G. Fitzgerald, to be U.S. Marshal for the Western District of Wisconsin; Gregory Forest, to be U.S. Marshal for the Western District of North Carolina; James L. Kennedy, to be U.S. Marshal for the Southern District of Indiana; Dennis Merrill, to be U.S. Marshal for the District of Oregon; James Plousis, to be U.S. Marshal for the District of New Jersey; J. C. Rafferty, to be U.S. Marshal for the Northern District of West Virginia; Charles R. Reavis, to be U.S. Marshal for the Eastern District of North Carolina; Michael R. Regan, to be U.S. Marshal for the Middle District of Pennsylvania; James A. Rose, to be U.S. Marshal for the District of Wyoming; John Schickel, to be U.S. Marshal for the Eastern District of Kentucky; Jesse Seroyer, to be U.S. Marshal for the Middle District of Alabama; Timothy D. Welch, to be U.S. Marshal for the Northern District of Oklahoma; and William R. Whittington, to be U.S. Marshal for the Western District of Louisiana. EXT-18-2091-C-000223 007104-000944 Document ID: 0.7.19343.5005 Dinh, Viet Dinh, Viet Tuesday, March 12, 2002 11:45 AM Benczkowski, Brian A; Newstead, Jennifer Goodling, Monica; O'Brien, Pat; 'Heather_Wingate@who.eop.gov'; 'Matthew_A._Schlapp@who.eop.gov'; 'Tim_Goeglein@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'Douglas_L._Hoelscher@who.eop.gov'; b(6) Jennifer Oschal email '; 'Anne_Womack@who.eop.gov'; 'Rena_Johnson@judiciary.senate.gov'; 'Ed_Haden@judiciary.senate.gov' R (b) (5) piece Subject: Attachments: (b) (5) .wpd From: Sent: To: Cc: All, This is a piece Brian Benczkowski prepared in the hopes tha (b) (5) not approache (b) (5) (b) (5) (b) (5) o 1111 will sign. we have Rena (b) (5) -----Original Message----From: Benczkowski, Brian A Sent: Tuesday, March 12, 2002 10:35 AM To: Dinh, Viet Subject: (b) (5) piece << File (b) (5) - .wpd >> EXT-18-2091-C-000224 007104-000945 Document ID: 0.7.19343.7276 Dinh, Viet Dinh, Viet Tuesday, March 12, 2002 11:45 AM Benczkowski, Brian A; Newstead, Jennifer Goodling, Monica; O'Brien, Pat; 'Heather_Wingate@who.eop.gov'; 'Matthew_A._Schlapp@who.eop.gov'; 'Tim_Goeglein@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov'; 'Douglas_L._Hoelscher@who.eop.gov'; b(6) Jennifer Oschal email '; 'Anne_Womack@who.eop.gov'; 'Rena_Johnson@judiciary.senate.gov'; 'Ed_Haden@judiciary.senate.gov' R (b) (5) piece Subject: Attachments: (b) (5) .wpd From: Sent: To: Cc: All, This is a piece Brian Benczkowski prepared in the hopes tha (b) (5) not approache (b) (5) (b) (5) (b) (5) o 1111 will sign. we have Rena (b) (5) -----Original Message----From: Benczkowski, Brian A Sent: Tuesday, March 12, 2002 10:35 AM To: Dinh, Viet Subject: (b) (5) piece << File (b) (5) - .wpd >> EXT-18-2091-C-000224 007104-000945 Document ID: 0.7.19343.7276 Newstead , Jennifer From: Sent : To: Cc: Subject: Attachments: Newstea d, Jenn ifer Tuesday, March 12, 2002 12:18 PM Goo dli ng, Mon ica Benedi, Lizette D; O'Br ien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@who .eop .gov '; 'Brett _M ._Kavanaugh@who .eop .gov'; 'Doug las_ L._ Hoelscher@who .eop .gov'; 'Anne_ Womack@who .eop .gov'; 'Rena_Johnson@ju diciary .senate .gov'; 'Ed_ Haden@ju d iciary .senate .gov'; Dinh, Viet Op-Ed on Picker ing picker ing.ope d Monica, Jennifer - Thanks Jen EXT-18-2091-C-000225 007104-000946 Document ID: 0.7.19343.7278 Newstead , Jennifer From: Sent : To: Cc: Subject: Attachments: Newstea d, Jenn ifer Tuesday, March 12, 2002 12:18 PM Goo dli ng, Mon ica Benedi, Lizette D; O'Br ien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@who .eop .gov '; 'Brett _M ._Kavanaugh@who .eop .gov'; 'Doug las_ L._ Hoelscher@who .eop .gov'; 'Anne_ Womack@who .eop .gov'; 'Rena_Johnson@ju diciary .senate .gov'; 'Ed_ Haden@ju d iciary .senate .gov'; Dinh, Viet Op-Ed on Picker ing picker ing.ope d Monica, Jennifer - Thanks Jen EXT-18-2091-C-000225 007104-000946 Document ID: 0.7.19343.7278 Dinh, Viet From : Sent : To : Cc: Subject : Dinh, Viet Tuesday, March 12, 2002 12:34 PM Newstead, Jennifer; Good ling, Mon ie Benedi, Lizette D; O'Brien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@who .eop .gov'; 'Brett _M._ Kavanaugh@who .eop.gov '; 'Douglas_ L._ Hoelscher@who .eop .gov '; 'Anne_Womack@who .eop .gov'; 'Rena_Johnson@jud iciary .senate .gov '; 'Ed_ Haden@jud iciary.senate .gov' RE:Op-Ed on Picker ing That would b ---O riginal Message--From: Newstead, Jennifer Sent: Tuesday, March 1~ To: Goodling, Monie -Cc: Benedi, Lizette D; O'Brien, Pat; 'Heather Wingate@who.eop.gov'; 'Matthew A. Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who .eop.gov'; 'Rena John&in@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subject: Op-Ed on Pickering EXT-18-2091-C-000226 007104-000947 Document ID: 0.7.19343.7279 Dinh, Viet From : Sent : To : Cc: Subject : Dinh, Viet Tuesday, March 12, 2002 12:34 PM Newstead, Jennifer; Good ling, Mon ie Benedi, Lizette D; O'Brien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@who .eop .gov'; 'Brett _M._ Kavanaugh@who .eop.gov '; 'Douglas_ L._ Hoelscher@who .eop .gov '; 'Anne_Womack@who .eop .gov'; 'Rena_Johnson@jud iciary .senate .gov '; 'Ed_ Haden@jud iciary.senate .gov' RE:Op-Ed on Picker ing That would b ---O riginal Message--From: Newstead, Jennifer Sent: Tuesday, March 1~ To: Goodling, Monie -Cc: Benedi, Lizette D; O'Brien, Pat; 'Heather Wingate@who.eop.gov'; 'Matthew A. Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who .eop.gov'; 'Rena John&in@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subject: Op-Ed on Pickering EXT-18-2091-C-000226 007104-000947 Document ID: 0.7.19343.7279 Dinh, Viet From : Sent : To : Cc: Subject : Dinh, Viet Tuesday, March 12, 2002 12:43 PM Good li ng, Mon ica; Newstead, Jenn ifer Bened i, Lizette D; O'Br ien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@w ho .eop .gov'; 'Brett _M ._Kavanaugh@w ho.eop .gov'; 'Douglas_ L._ Hoelscher@who .eop .gov'; 'Anne_ Womack@w ho.eop .gov'; 'Rena_Johnson@jud iciary .senate .gov '; 'Ed_ Haden@ju diciary .senate .gov' RE: Op-Ed on Picker ing Monica, Viet ---O riginal Message--Goodling, Monica Tuesday, March 12, To : Newstead, Jenni e Cc: Benedi, Lizette D; O n en, ; r Wingate@who.eop.gov'; 'Matthew A. Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who.eop.gov'; 'Rena Johnson@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subje ct: RE: Op-Ed on Pickering From: Sent: Let me know. Thanks. ---O riginal Message--Newstead, Jennifer Tuesday, March 12, 2002 11 :18 AM To : Goodling, Monie 1 Cc: Benedi, Lizette D; O'Brien, Pat; 'Heather Wingate@who.eop .gov'; 'Matthew A . Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who .eop .gov'; 'Rena Johnson@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subje ct: Op-Ed on Pickering From: Sent : EXT-18-2091-C-000227 007104-000948 Document ID : 0 .7 .19343.7280 Dinh, Viet From : Sent : To : Cc: Subject : Dinh, Viet Tuesday, March 12, 2002 12:43 PM Good li ng, Mon ica; Newstead, Jenn ifer Bened i, Lizette D; O'Br ien, Pat; 'Heather _W ingate@who .eop .gov'; 'Matthew _A._Schlapp@who .eop .gov'; 'Tim_Goeglein@w ho .eop .gov'; 'Brett _M ._Kavanaugh@w ho.eop .gov'; 'Douglas_ L._ Hoelscher@who .eop .gov'; 'Anne_ Womack@w ho.eop .gov'; 'Rena_Johnson@jud iciary .senate .gov '; 'Ed_ Haden@ju diciary .senate .gov' RE: Op-Ed on Picker ing Monica, Viet ---O riginal Message--Goodling, Monica Tuesday, March 12, To : Newstead, Jenni e Cc: Benedi, Lizette D; O n en, ; r Wingate@who.eop.gov'; 'Matthew A. Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who.eop.gov'; 'Rena Johnson@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subje ct: RE: Op-Ed on Pickering From: Sent: Let me know. Thanks. ---O riginal Message--Newstead, Jennifer Tuesday, March 12, 2002 11 :18 AM To : Goodling, Monie 1 Cc: Benedi, Lizette D; O'Brien, Pat; 'Heather Wingate@who.eop .gov'; 'Matthew A . Schlapp@who.eop.gov'; 'Tim Goeglein@who.eop.gov'; 'Brett M. Kavanaugh@who.eop.gov'; 'Douglas L. Hoelscher@who.eop.gov'; 'Anne Womack@who .eop .gov'; 'Rena Johnson@j udiciary.senate.gov'; 'Ed Haden@j udiciary.senate.gov'; Dinh, Viet Subje ct: Op-Ed on Pickering From: Sent : EXT-18-2091-C-000227 007104-000948 Document ID : 0 .7 .19343.7280 Dinh, Viet From : Dinh, Viet Sent : Wednesday, March 13, 2002 11:04 AM To: 'Heather _Wingate@who.eop.gov '; O' Brie-n, Pat; 'Brett _ M._ Kavanaugh@who.eop.gov '; 'Ziad_S._Ojakli@who.eop.gov ' Subject : FW: RE: Re(2]: Judicial Nominations & The Biz Community FYI -Original Message-From: Dinh, Viet Sent: Wednesday, March 13, 2002 10:02 AM To: 'Chris Myers ' Cc: Keefer, Wendy J Subject: RE: RE: Re{2): Judicial Nominat ions & The- Biz Community Take-care, my friend, Vie-t - Original Message-From: Chris Myers [mailto:Chris_Myers@src.senate.gov) Sent: Tuesday, March 12, 2002 6:17 PM To: Dinh, Viet Subject: Re:RE: Re(2]: Judicial Nominations & The Biz Community Sir, that's super news. And I should not be re-prioritizing your schedule - I know that you're very busy ! I simply appreciate you dedicating some of your already-stretched resources to trying to strengthen our document in the next couple weeks. I very much appreciate your enthusiasm. chris myers, sen repub conference 224.2928 _________ Reply Separator _________ Subject: RE: Re[2]: Judicial Nominations & The Biz Community Author: "Dinh; Viet Date: 3/12/02 5:15 PM 0 "prioritize" means Highest! Thanks for the fax. EXT-18-2091-C-000228 007104-000949 Documen t ID: 0.7.19343.7286 Dinh, Viet From : Dinh, Viet Sent : Wednesday, March 13, 2002 11:04 AM To: 'Heather _Wingate@who.eop.gov '; O' Brie-n, Pat; 'Brett _ M._ Kavanaugh@who.eop.gov '; 'Ziad_S._Ojakli@who.eop.gov ' Subject : FW: RE: Re(2]: Judicial Nominations & The Biz Community FYI -Original Message-From: Dinh, Viet Sent: Wednesday, March 13, 2002 10:02 AM To: 'Chris Myers ' Cc: Keefer, Wendy J Subject: RE: RE: Re{2): Judicial Nominat ions & The- Biz Community Take-care, my friend, Vie-t - Original Message-From: Chris Myers [mailto:Chris_Myers@src.senate.gov) Sent: Tuesday, March 12, 2002 6:17 PM To: Dinh, Viet Subject: Re:RE: Re(2]: Judicial Nominations & The Biz Community Sir, that's super news. And I should not be re-prioritizing your schedule - I know that you're very busy ! I simply appreciate you dedicating some of your already-stretched resources to trying to strengthen our document in the next couple weeks. I very much appreciate your enthusiasm. chris myers, sen repub conference 224.2928 _________ Reply Separator _________ Subject: RE: Re[2]: Judicial Nominations & The Biz Community Author: "Dinh; Viet Date: 3/12/02 5:15 PM 0 "prioritize" means Highest! Thanks for the fax. EXT-18-2091-C-000228 007104-000949 Documen t ID: 0.7.19343.7286 -v1 11:,1r 1d1 1v1~:.:.d1:,o=--- From: Chris Myers (mailto:Chris _ Myers@src.senate.gov] Sent: Tuesday, March 12, 2002 2:59 PM To: Dinh, Viet; Bradford_A._ Berenson@who.eop.gov Cc: Barbara Ledeen Subject: Re(2]: Judicial Nominations & The Biz Community Hope this helps. thanks , chris _________ Reply Separator _________ The Biz Community Author: Bradford_ A._8erenson@who.eop.gov Subject: Re: Judicial Nominations & Date: 3/12/02 2:28 PM Viet Dinh at DOJ-OLP is your best source. (Embedded image moved Chris_ Myers@s rc.senate.gov (Chris Myers) to file: 03/12/2002 02:15:24 PM pic03684.pcx) Record Type: Record EXT-18-2091-C-000229 007104-000950 Documen t ID: 0.7.19343.7286 -v1 11:,1r 1d1 1v1~:.:.d1:,o=--- From: Chris Myers (mailto:Chris _ Myers@src.senate.gov] Sent: Tuesday, March 12, 2002 2:59 PM To: Dinh, Viet; Bradford_A._ Berenson@who.eop.gov Cc: Barbara Ledeen Subject: Re(2]: Judicial Nominations & The Biz Community Hope this helps. thanks , chris _________ Reply Separator _________ The Biz Community Author: Bradford_ A._8erenson@who.eop.gov Subject: Re: Judicial Nominations & Date: 3/12/02 2:28 PM Viet Dinh at DOJ-OLP is your best source. (Embedded image moved Chris_ Myers@s rc.senate.gov (Chris Myers) to file: 03/12/2002 02:15:24 PM pic03684.pcx) Record Type: Record EXT-18-2091-C-000229 007104-000950 Documen t ID: 0.7.19343.7286 To: See the distribution list at the bottom of this message cc: I Barbara ledeen}, Heather Wingate/WHO/EOP@EOP, Ziad S. Ojakli/WHO/EOP@EOP Subject: Judicial Nominations & The Biz Community To: Dept of Justice & White House Ofc of legal Counsel Fr: Chris Myers (42928) & Barbara ledeen (42763}, Sen Repub Conference------("It would be helpful for (judicial nominations) to become more of a priority downtown." Roll Call, 3/11/02. If you haven't see it, I've pasted the complete article below.) E-mail me your fax# and I'll send you what we have. As always, we look forward to working with you on this. Roll Call; March 11, 2002 GOP Seeks Higher Profile for Bush on Judicial Nominees Senators and Administration Consider Joint 'War Room' to Fight for Future Nominations By Paul Kane With the nomination of U.S. District Judge Charles Pickering facing pending defeat, Senate Republicans are demanding that President Bush make a stronger, higher-profile pitch for controversial nominees in the fut ure. GOP Senators an d administration officials acknowledged last week that they weren 't prepare d for attacks on Pickering from liberal interest groups and that success on future nominees, particularly in a Supreme Court fight, will require a much different effort. "I think the President is going to have to further emphasi ze the delays and the tactics used, the politics of personal destruction," said Minority Leade r Trent Lott (R-Miss.}, a personal friend of Pickering's. "He's going to have to raise the rhetoric," Lott added. Republicans say a more engaged Bush can use the presidential bully pulpit for ju dicial nominations, highlightin g an issue for the public at large so that voters will understand what's at stake when the GOP uses parliamentary tactics, such as shutting down the Senate floor, to fight for their nominees. "It would be helpful for this to become more of a priority downtown," said Sen. Mitch McConnell (R-Ky.), a member of the Judiciary Committee. The White House believes the problem with the Pickering nomination, which is scheduled for defeat Thursday unless he withdraws beforehand, was not a lack of effort on anyone's part but a lack of EXT-18-2091-C-000230 007104-000951 Document ID: 0.7.19343.7286 To: See the distribution list at the bottom of this message cc: I Barbara ledeen}, Heather Wingate/WHO/EOP@EOP, Ziad S. Ojakli/WHO/EOP@EOP Subject: Judicial Nominations & The Biz Community To: Dept of Justice & White House Ofc of legal Counsel Fr: Chris Myers (42928) & Barbara ledeen (42763}, Sen Repub Conference------("It would be helpful for (judicial nominations) to become more of a priority downtown." Roll Call, 3/11/02. If you haven't see it, I've pasted the complete article below.) E-mail me your fax# and I'll send you what we have. As always, we look forward to working with you on this. Roll Call; March 11, 2002 GOP Seeks Higher Profile for Bush on Judicial Nominees Senators and Administration Consider Joint 'War Room' to Fight for Future Nominations By Paul Kane With the nomination of U.S. District Judge Charles Pickering facing pending defeat, Senate Republicans are demanding that President Bush make a stronger, higher-profile pitch for controversial nominees in the fut ure. GOP Senators an d administration officials acknowledged last week that they weren 't prepare d for attacks on Pickering from liberal interest groups and that success on future nominees, particularly in a Supreme Court fight, will require a much different effort. "I think the President is going to have to further emphasi ze the delays and the tactics used, the politics of personal destruction," said Minority Leade r Trent Lott (R-Miss.}, a personal friend of Pickering's. "He's going to have to raise the rhetoric," Lott added. Republicans say a more engaged Bush can use the presidential bully pulpit for ju dicial nominations, highlightin g an issue for the public at large so that voters will understand what's at stake when the GOP uses parliamentary tactics, such as shutting down the Senate floor, to fight for their nominees. "It would be helpful for this to become more of a priority downtown," said Sen. Mitch McConnell (R-Ky.), a member of the Judiciary Committee. The White House believes the problem with the Pickering nomination, which is scheduled for defeat Thursday unless he withdraws beforehand, was not a lack of effort on anyone's part but a lack of EXT-18-2091-C-000230 007104-000951 Document ID: 0.7.19343.7286 \..UVI U II IQl.CU C:I IU I l.1 Q\..\.,.Vf Ull lb \.U 01 1 au,1 11111.::>\. 1 auv 1 I u, 1n .. 1a1. nC-t,JULJll\..01 l.:t 01 C l l VVY t.01"-lr 'b OUUU\. \..I COl.111,b a "war room" to handle controversial judicial nominations, linking White House officials, the Justice Department and Senate Republicans in a combined effort to push nominees. Some in the administration are eyeing the space in the Dirksen Senate Office Building that is set aside for Vice President Cheney but is rarely used now as the actual war room to handle the effort. "Coordination is essential," the administration official said. "We are moving toward a structure that more closely knits the a dministration and the Senate [Republicans] togethe r." The White House and Senate Republicans were essentially caught flat-footed by the Pickering onslaught. Led by People for the American Way and the National Association for the Advancement of Colored People, liberal interest groups picked away at the Judge 's recor d, issuing reports and holding press conferences to con demn his alleged insensitivity on civil rights issues. By the time of his Feb. 7 hearing, Pickering's fate was mostly sealed as Democrats on Judiciary pelted him with tough questions for several hours. For weeks the only people in Washington mounting a public defense of Pickering were Lott, a fellow Mississippian who has known the judge for more than 30 years, and the judge's son, Rep. Chip Pickering {R-Miss.). Bush did prod Majority le ader Thomas Daschle {D-S.0.) on the Pickering nomination, but only once, at one of their regular breakfast meetings that covered many topics. Last Wednes day, the day before the scheduled vote in Judiciary, Bush brought Pickering to the White House along with a diverse group of Mississippi lea ders supporting the judge. But Senate Republicans wer e not happy with the meeting. Dismissing it as too little too late, many Senators angrily voiced thei r frustration with the lack of White House input on judicial nominations at the weekly meeting of the GOP's Steering Committee, according to one Senator who atten ded. At the request of the White House and Lott, Sen. Orrin Hatch {R-Utah), ranking member on Judiciary, held up the vote on the nomination an extra week, until this Thursday . Lott sai d the extra time was necessary for more of a push to get the votes for Pickering, not to give him time to withdraw rather than face ce rtain defeat. Even Democrats were surprise d that there was not more of a push for Pickering from the White House. "It certainly is a late effort. I don't understand why they're dra wing this out unless it's for him to withdraw," said Sen. Dick Durbin (D-111.),a Judiciary member. The liberal inte rest groups have already signaled that they will wage a similar war on other nominees to the circuit courts, particularly Priscilla Owen of Texas, Jeffrey Sutton of Ohio an d Miguel Estrada of Virginia. Sen. Jeff Sessions (R-Ala.), a Judiciary member, said those battles will be even more intense and will require a focused effort, particularly in terms of media strategy. If the White House and the Senate GOP adopt a war-room strategy, he noted, then they must be able to mount quick media campaigns on behalf of nominees, strik ing back anytime there are new allegations from liberal groups. "I think it's important for the White House or the nominee or the nominee's friends to respond imme diately to any allegations," Sessions said. "Once it gets out in one news cycle, it's almost impossible to get the genie back into the bottle." Message Sent To:____________________________ _ Viet.Dinh@usdoj.gov Pat.O' Brien@usdoj.gov Jennifer.Newst ead@usdoj.gov dan.bryant@usdoj.gov EXT-18-2091-C-000231 007104-000952 Document ID: 0.7.19343 .7286 \..UVI U II IQl.CU C:I IU I l.1 Q\..\.,.Vf Ull lb \.U 01 1 au,1 11111.::>\. 1 auv 1 I u, 1n .. 1a1. nC-t,JULJll\..01 l.:t 01 C l l VVY t.01"-lr 'b OUUU\. \..I COl.111,b a "war room" to handle controversial judicial nominations, linking White House officials, the Justice Department and Senate Republicans in a combined effort to push nominees. Some in the administration are eyeing the space in the Dirksen Senate Office Building that is set aside for Vice President Cheney but is rarely used now as the actual war room to handle the effort. "Coordination is essential," the administration official said. "We are moving toward a structure that more closely knits the a dministration and the Senate [Republicans] togethe r." The White House and Senate Republicans were essentially caught flat-footed by the Pickering onslaught. Led by People for the American Way and the National Association for the Advancement of Colored People, liberal interest groups picked away at the Judge 's recor d, issuing reports and holding press conferences to con demn his alleged insensitivity on civil rights issues. By the time of his Feb. 7 hearing, Pickering's fate was mostly sealed as Democrats on Judiciary pelted him with tough questions for several hours. For weeks the only people in Washington mounting a public defense of Pickering were Lott, a fellow Mississippian who has known the judge for more than 30 years, and the judge's son, Rep. Chip Pickering {R-Miss.). Bush did prod Majority le ader Thomas Daschle {D-S.0.) on the Pickering nomination, but only once, at one of their regular breakfast meetings that covered many topics. Last Wednes day, the day before the scheduled vote in Judiciary, Bush brought Pickering to the White House along with a diverse group of Mississippi lea ders supporting the judge. But Senate Republicans wer e not happy with the meeting. Dismissing it as too little too late, many Senators angrily voiced thei r frustration with the lack of White House input on judicial nominations at the weekly meeting of the GOP's Steering Committee, according to one Senator who atten ded. At the request of the White House and Lott, Sen. Orrin Hatch {R-Utah), ranking member on Judiciary, held up the vote on the nomination an extra week, until this Thursday . Lott sai d the extra time was necessary for more of a push to get the votes for Pickering, not to give him time to withdraw rather than face ce rtain defeat. Even Democrats were surprise d that there was not more of a push for Pickering from the White House. "It certainly is a late effort. I don't understand why they're dra wing this out unless it's for him to withdraw," said Sen. Dick Durbin (D-111.),a Judiciary member. The liberal inte rest groups have already signaled that they will wage a similar war on other nominees to the circuit courts, particularly Priscilla Owen of Texas, Jeffrey Sutton of Ohio an d Miguel Estrada of Virginia. Sen. Jeff Sessions (R-Ala.), a Judiciary member, said those battles will be even more intense and will require a focused effort, particularly in terms of media strategy. If the White House and the Senate GOP adopt a war-room strategy, he noted, then they must be able to mount quick media campaigns on behalf of nominees, strik ing back anytime there are new allegations from liberal groups. "I think it's important for the White House or the nominee or the nominee's friends to respond imme diately to any allegations," Sessions said. "Once it gets out in one news cycle, it's almost impossible to get the genie back into the bottle." Message Sent To:____________________________ _ Viet.Dinh@usdoj.gov Pat.O' Brien@usdoj.gov Jennifer.Newst ead@usdoj.gov dan.bryant@usdoj.gov EXT-18-2091-C-000231 007104-000952 Document ID: 0.7.19343 .7286 brett _m._cavanau gh@who.eop.gov Bradford A. Berenson/WHO/EOP@EOP Tim Goeglein/WHO/EOP@EOP Received: from mailsims1.senate.gov ({156.33.203 .10]) by IMAEXC2.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00 1DODFE; Tue, 12 Mar 2002 14:30:53 -0500 Received: from eop2.eop.gov (eop253.eop.gov} by mailsimsl .senate .gov (Sun Internet Mail Server sims.3.5.2000.03.23. 18.03.p l O) with SMTP id <0GSV0080TLOPNR@mailsims1.senate .gov> for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:34:01 -0500 (EST) Received: from conversion.EOP2 .EOP.GOV by EOP.GOV (PMDF V5.2-33 #41062) id <01KF9YP08Q009COL45@EOP. GOV> for Cnris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:29:50-0500 (EST) Received: from mhub2 .eop.gov ((198 .137.241.11)) by EOP.GOV (PMDF VS.2-33 #41062) with ESMTPid <01Kf9YOOZV659D5N1R@EOP.GOV>for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:29: 16 0500 (EST) Received: from sgeop01.eop.gov ([165 .119.1.33]) by mhub.eop.gov (PMOF V5.2-33 #40371) with SMTP id <01KF9YOBVOXl920Y90@mhub.eop.gov> for Chris_ Myers@src.senate.g ov; Tue, 12 Mar 2002 14:29:11 -0500 (EST) Received: by sgeop01.eop.gov(Lotus SMTP MTA v4.6.7 (934 .112-30-1999)) id 85256B7A.006B08A3; Tue , 12 Mar 2002 14:29 :05 -0500 Date : Tue, 12 Mar 2002 14:28:52 -0500 From: Bradford_A._Berenson@who.eop.gov Subject: Re: Judicial Nominations & The Biz Community To: Chris_ Myers@src.senate.gov {Chris Myers) Message-id: <85256B7 A.006B04E8.00@sgeop0 1.eop.gov> MIME-version: 1.0 Content-type: MULTlPART/MIXED; BOUNDARY="Boundary_(ID_WAtVrGYtsSIWjfox+9pX+g) " X-lotus -FromDomain: EOP Received: from mailsims1.senate .gov ((156.33.203.101) by IMAEXC2.senate .gov with SMTP (IMA lntemet Exchange 3.13) id 00 1D3DOF;Tue, 12 Mar 2002 17:16:44 -0500 Received: from wdcsun022.usdoj.gov (wdcsun4.us doj.gov) by mailsimsl.senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23. 18.03.p l O) with SMTP id <0GSV00836SPU70@mailsims1.senate.gov> for Chris_ Myers@src.senate.gov; Tue, 12 Mar 2002 17:20:19 -0500 {EST)Received : from wt6 .usdoj.gov (localhost [127.0.0. 1)) by wdcsun022.usdoj.gov {Netscape Messa ging Server 4.15) with ESMTP id GSVSJK01.Q9Cfor ; Tue, 12 Mar 2002 17:16:32 -0500 Received: (from x400@1ocalhost) by wt6.usdoj .gov (8.9.3 (PHNE_ 18546}/8.9.3} id RAA01173 for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 17: 16:32 -0500 (EST) Received: by TELEMAIL;Tue, 12 Ma r 2002 17:15:39 -0500 Date: Tue, 12 Mar 2002 17:15:39 -0500 From: noinh, Viet" Subject: RE: Re{2]: Judicial Nominations & The Biz Community To: 'Chris Myers ' {Receipt Notification Requested) (1PM Return Re-quested) Message-id: <"JM0008 1-02031222 1539Z-96972*/PRMO=USOOJ-JCON/AOMD= /C=US/"@MHS> Autoforwarded: FALSEContent -identifier: RE: Re{2 MIME-version: 1.0 X-Mailer: NetJunction (NetJunctio n 5.1.1-pO)/MIME Content-type-: TEXT/PLAIN;CHARSET=US-ASCII Importance: Normal Original-encoded-information-types: IA5-Text Priority: Normal Precedence: first-class UA-content-id: RE: Re(2 X400-MTS--identifier: [/P=USDOJ-JCON/A= /C =US/;JMD0081-020312221539Z-96972] XPriority : 3 (Normal) EXT-18-2091-C-000232 007104-000953 Document ID: 0.7.19343.7286 brett _m._cavanau gh@who.eop.gov Bradford A. Berenson/WHO/EOP@EOP Tim Goeglein/WHO/EOP@EOP Received: from mailsims1.senate.gov ({156.33.203 .10]) by IMAEXC2.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00 1DODFE; Tue, 12 Mar 2002 14:30:53 -0500 Received: from eop2.eop.gov (eop253.eop.gov} by mailsimsl .senate .gov (Sun Internet Mail Server sims.3.5.2000.03.23. 18.03.p l O) with SMTP id <0GSV0080TLOPNR@mailsims1.senate .gov> for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:34:01 -0500 (EST) Received: from conversion.EOP2 .EOP.GOV by EOP.GOV (PMDF V5.2-33 #41062) id <01KF9YP08Q009COL45@EOP. GOV> for Cnris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:29:50-0500 (EST) Received: from mhub2 .eop.gov ((198 .137.241.11)) by EOP.GOV (PMDF VS.2-33 #41062) with ESMTPid <01Kf9YOOZV659D5N1R@EOP.GOV>for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 14:29: 16 0500 (EST) Received: from sgeop01.eop.gov ([165 .119.1.33]) by mhub.eop.gov (PMOF V5.2-33 #40371) with SMTP id <01KF9YOBVOXl920Y90@mhub.eop.gov> for Chris_ Myers@src.senate.g ov; Tue, 12 Mar 2002 14:29:11 -0500 (EST) Received: by sgeop01.eop.gov(Lotus SMTP MTA v4.6.7 (934 .112-30-1999)) id 85256B7A.006B08A3; Tue , 12 Mar 2002 14:29 :05 -0500 Date : Tue, 12 Mar 2002 14:28:52 -0500 From: Bradford_A._Berenson@who.eop.gov Subject: Re: Judicial Nominations & The Biz Community To: Chris_ Myers@src.senate.gov {Chris Myers) Message-id: <85256B7 A.006B04E8.00@sgeop0 1.eop.gov> MIME-version: 1.0 Content-type: MULTlPART/MIXED; BOUNDARY="Boundary_(ID_WAtVrGYtsSIWjfox+9pX+g) " X-lotus -FromDomain: EOP Received: from mailsims1.senate .gov ((156.33.203.101) by IMAEXC2.senate .gov with SMTP (IMA lntemet Exchange 3.13) id 00 1D3DOF;Tue, 12 Mar 2002 17:16:44 -0500 Received: from wdcsun022.usdoj.gov (wdcsun4.us doj.gov) by mailsimsl.senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23. 18.03.p l O) with SMTP id <0GSV00836SPU70@mailsims1.senate.gov> for Chris_ Myers@src.senate.gov; Tue, 12 Mar 2002 17:20:19 -0500 {EST)Received : from wt6 .usdoj.gov (localhost [127.0.0. 1)) by wdcsun022.usdoj.gov {Netscape Messa ging Server 4.15) with ESMTP id GSVSJK01.Q9Cfor ; Tue, 12 Mar 2002 17:16:32 -0500 Received: (from x400@1ocalhost) by wt6.usdoj .gov (8.9.3 (PHNE_ 18546}/8.9.3} id RAA01173 for Chris_Myers@src.senate.gov; Tue, 12 Mar 2002 17: 16:32 -0500 (EST) Received: by TELEMAIL;Tue, 12 Ma r 2002 17:15:39 -0500 Date: Tue, 12 Mar 2002 17:15:39 -0500 From: noinh, Viet" Subject: RE: Re{2]: Judicial Nominations & The Biz Community To: 'Chris Myers ' {Receipt Notification Requested) (1PM Return Re-quested) Message-id: <"JM0008 1-02031222 1539Z-96972*/PRMO=USOOJ-JCON/AOMD= /C=US/"@MHS> Autoforwarded: FALSEContent -identifier: RE: Re{2 MIME-version: 1.0 X-Mailer: NetJunction (NetJunctio n 5.1.1-pO)/MIME Content-type-: TEXT/PLAIN;CHARSET=US-ASCII Importance: Normal Original-encoded-information-types: IA5-Text Priority: Normal Precedence: first-class UA-content-id: RE: Re(2 X400-MTS--identifier: [/P=USDOJ-JCON/A= /C =US/;JMD0081-020312221539Z-96972] XPriority : 3 (Normal) EXT-18-2091-C-000232 007104-000953 Document ID: 0.7.19343.7286 Willett, Don Willett, Don Thursday, March 28, 2002 8:06 PM b(6) Jennifer Oschal email 'anne_womack@who.eop.gov'; 'tim_goeglein@who.eop.gov'; Goodling, Monica; 'Brett_' Cc: Dinh, Viet; Newstead, Jennifer Subject: separating fact from fiction on judges Attachments: judges myth v. reality (Neal).wpd From: Sent: To: hot off the OLP press ... EXT-18-2091-C-000233 007104-000954 Document ID: 0.7.19343.7391 Willett, Don Willett, Don Thursday, March 28, 2002 8:06 PM b(6) Jennifer Oschal email 'anne_womack@who.eop.gov'; 'tim_goeglein@who.eop.gov'; Goodling, Monica; 'Brett_' Cc: Dinh, Viet; Newstead, Jennifer Subject: separating fact from fiction on judges Attachments: judges myth v. reality (Neal).wpd From: Sent: To: hot off the OLP press ... EXT-18-2091-C-000233 007104-000954 Document ID: 0.7.19343.7391 Willett, Don Willett, Don Friday, March 29, 2002 4:28 PM Heather Wingate (E-mail); 'brett_m._kavanaugh@who.eop.gov'; 'tim_goeglein@who.eop.gov'; 'anne_womack@who.eop.gov b(6) Jennifer Oschal email Newstead, Jennifer; Dinh, Viet; Rena Johnson (E-mail); Joy, Sheila; Goodling, Monica updated TPs (as of today) on the vacancy crisis Subject: Attachments: Vacancy Crisis TPs -- Neal Suit (3-29-02).doc From: Sent: To: EXT-18-2091-C-000234 007104-000955 Document ID: 0.7.19343.7393 Willett, Don Willett, Don Friday, March 29, 2002 4:28 PM Heather Wingate (E-mail); 'brett_m._kavanaugh@who.eop.gov'; 'tim_goeglein@who.eop.gov'; 'anne_womack@who.eop.gov b(6) Jennifer Oschal email Newstead, Jennifer; Dinh, Viet; Rena Johnson (E-mail); Joy, Sheila; Goodling, Monica updated TPs (as of today) on the vacancy crisis Subject: Attachments: Vacancy Crisis TPs -- Neal Suit (3-29-02).doc From: Sent: To: EXT-18-2091-C-000234 007104-000955 Document ID: 0.7.19343.7393 Sales , Nathan From : Sales, Nathan Sent : Sunday, April 14, 2002 10:19 AM To: 'Brett_M._Kavanaug h@who.eop.gov ' Cc: Dinh, Viet Subject : Viet 's essay Attachments: Viet Drake essay. doc Brett, Viet would like to publ ish the attache d essay on judicial confirmations in the Drake Law Review. He wanted me to give you a heads up. If you have any comments, please let me know by Monday at noon ; we need to get the essay to the Drake folks so they can cite-,check it Monday PM. I'm afra id time is very much of the essen ce. Best , Nathan EXT-18-2091-C-000235 007104-000956 Document ID: 0.7.19343 .5025 Sales , Nathan From : Sales, Nathan Sent : Sunday, April 14, 2002 10:19 AM To: 'Brett_M._Kavanaug h@who.eop.gov ' Cc: Dinh, Viet Subject : Viet 's essay Attachments: Viet Drake essay. doc Brett, Viet would like to publ ish the attache d essay on judicial confirmations in the Drake Law Review. He wanted me to give you a heads up. If you have any comments, please let me know by Monday at noon ; we need to get the essay to the Drake folks so they can cite-,check it Monday PM. I'm afra id time is very much of the essen ce. Best , Nathan EXT-18-2091-C-000235 007104-000956 Document ID: 0.7.19343 .5025 O'Brien, Pat From : O'Brien, Pat Sent : Thursday , May 2, 2002 6:17 PM To: Sales , Nathan; Willett, Don; Dinh, Viet; Keefer, Wendy J; Benczkowski , Brian A; Benedi , Lizette D; Koebele, Steve; Goodling, Monica; Loughlin, Ann L {OLP); 'Anne Womack (Email)'; 'brett_m._kavanaugh@who.eop.gov '; ' Bartolomucci {E-mail)'; 'Tim Goeglein (E-mail)' Subject : RE: Fwd[2]:Notice of Courts Subcommittee Hear ing -Original Message-From: Sales , Nathan Sent: Thursday, May 02, 2002 6:12 PM To: Willett , Don; Dinh, Viet; Keefer , Wendy J; Benczkowski, Brian A; Benedi, Lizette D; Koebele , Steve; Goodling, Monica; O'Brien, Pat; Loughlin, Ann L (OLP); 'Anne Womack {E-mail)'; 'b rett_m. _ kavanaugh@who.eop.gov '; ' Bartolomucci (?-mail) '; 'Tim Goeglein (E-mail)' Subject: RE: Fwd[2]:Notice of Courts Subcommittee Hearing So, there 's a subcommittee meeting in the AM, and a full committee meeting in the PM. I presume this means that Judge Smith will not be marked up next Thursday? Message---Original From: Willett , Don Sent: Thursday, May 02, 2002 6:09 PM To: Dinh, Viet; Keefer, Wendy J;Sales , Nathan; Benczkowski, Brian A; Benedi, Lizette D; Koebele, Steve; Goodling, Monica; O'Brien, Pat; Loughlin, Ann L (OLP); Anne Womack (E-mail); ' brett _m._ kavanaugh@who.eop .gov '; Bartolomucci (E-mail); Tim Goeglein (E-mail) Subject: FW: Fwd[2):Notice of Courts Subcommittee Hearing May 9, 2002 NOTICE OF SUBCOMMITTEEHEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts will hold a hearin g on Thursday, May 9, 2002 , at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "Ghosts of Nominations Past: Setting .. i..~ o~~~~.J c .. -~ : ~i.. .. " EXT-18-2091-C-000236 007104-000957 Document ID: 0.7.19343 .752 1 O'Brien, Pat From : O'Brien, Pat Sent : Thursday , May 2, 2002 6:17 PM To: Sales , Nathan; Willett, Don; Dinh, Viet; Keefer, Wendy J; Benczkowski , Brian A; Benedi , Lizette D; Koebele, Steve; Goodling, Monica; Loughlin, Ann L {OLP); 'Anne Womack (Email)'; 'brett_m._kavanaugh@who.eop.gov '; ' Bartolomucci {E-mail)'; 'Tim Goeglein (E-mail)' Subject : RE: Fwd[2]:Notice of Courts Subcommittee Hear ing -Original Message-From: Sales , Nathan Sent: Thursday, May 02, 2002 6:12 PM To: Willett , Don; Dinh, Viet; Keefer , Wendy J; Benczkowski, Brian A; Benedi, Lizette D; Koebele , Steve; Goodling, Monica; O'Brien, Pat; Loughlin, Ann L (OLP); 'Anne Womack {E-mail)'; 'b rett_m. _ kavanaugh@who.eop.gov '; ' Bartolomucci (GBP-mail) '; 'Tim Goeglein (E-mail)' Subject: RE: Fwd[2]:Notice of Courts Subcommittee Hearing So, there 's a subcommittee meeting in the AM, and a full committee meeting in the PM. I presume this means that Judge Smith will not be marked up next Thursday? Message---Original From: Willett , Don Sent: Thursday, May 02, 2002 6:09 PM To: Dinh, Viet; Keefer, Wendy J;Sales , Nathan; Benczkowski, Brian A; Benedi, Lizette D; Koebele, Steve; Goodling, Monica; O'Brien, Pat; Loughlin, Ann L (OLP); Anne Womack (E-mail); ' brett _m._ kavanaugh@who.eop .gov '; Bartolomucci (E-mail); Tim Goeglein (E-mail) Subject: FW: Fwd[2):Notice of Courts Subcommittee Hearing May 9, 2002 NOTICE OF SUBCOMMITTEEHEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts will hold a hearin g on Thursday, May 9, 2002 , at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "Ghosts of Nominations Past: Setting .. i..~ o~~~~.J c .. -~ : ~i.. .. " EXT-18-2091-C-000236 007104-000957 Document ID: 0.7.19343 .752 1 Senator Schumer will preside. By order of the Chairman -O riginal Message--From: Barbara Ledeen (mailto Sent: Thursday, May 02, 2002 5:41 PM To: Comstock, Barbara; Willett, Don; Matthew_A._Schlapp@who.eop.gov; heather _ wingat e@who .eop .gov; katie ~gumerson@am l.senate.gov; ed_haden@judiciary.senate.gov; Subject: Fwd(2):Notice of Courts Subcommittee Hearing This is rea lly something .... Barbara Ledeen Director of Coalitions Senate Republican Conferen ce _________ Forward Header __________ Subject: Fwd:Notice of Courts Subcommittee Hearing Author: Manuel Miranda Date: 5/2/2002 5:26 PM For tomo rrow's meeting. _________ Forward Header _ _ _ ___ __ __ Subject: Notice of Courts Subcommittee Hearing Author: Jane Butterfield Date: 5/2/2002 5:07 PM Mary 9, 2002 NOTICEOF SUBCOMMITTEE HEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts will hold a hearing on Thursday, May 9, 2002, at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "Ghosts of Nominations Past: Setting the Record Straight." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000237 007104-000958 Document ID: 0.7.19343.752 1 Senator Schumer will preside. By order of the Chairman -O riginal Message--From: Barbara Ledeen (mailto Sent: Thursday, May 02, 2002 5:41 PM To: Comstock, Barbara; Willett, Don; Matthew_A._Schlapp@who.eop.gov; heather _ wingat e@who .eop .gov; katie ~gumerson@am l.senate.gov; ed_haden@judiciary.senate.gov; Subject: Fwd(2):Notice of Courts Subcommittee Hearing This is rea lly something .... Barbara Ledeen Director of Coalitions Senate Republican Conferen ce _________ Forward Header __________ Subject: Fwd:Notice of Courts Subcommittee Hearing Author: Manuel Miranda Date: 5/2/2002 5:26 PM For tomo rrow's meeting. _________ Forward Header _ _ _ ___ __ __ Subject: Notice of Courts Subcommittee Hearing Author: Jane Butterfield Date: 5/2/2002 5:07 PM Mary 9, 2002 NOTICEOF SUBCOMMITTEE HEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts will hold a hearing on Thursday, May 9, 2002, at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "Ghosts of Nominations Past: Setting the Record Straight." Senator Schumer will preside. By order of the Chairman EXT-18-2091-C-000237 007104-000958 Document ID: 0.7.19343.752 1 Sales, Nathan From: Sent: To: Subject: Attachments: Sales, Nathan Wednesday, May 8, 2002 6:30 PM 'Brett_M._Kavanaugh@who.eop.gov'; 'Anne_Womack@who.eop.gov' FW: TPs for Schumer hearing Schumer May 9 hearing TPs.doc -----Original Message----From: Sales, Nathan Wednesday, May 08, 2002 6:26 PM Sent: To: Dinh, Viet; Willett, Don; Benczkowski, Brian A; Keefer, Wendy J; Benedi, Lizette D; O'Brien, Pat; Brad Berenson (E-mail); Chris Bartolomucci (E-mail); Heather Wingate (E-mail); Goodling, Monica; Manuel Miranda (E-mail); Ed Haden (E-mail); Joe Matal (E-mail) Subject: TPs for Schumer hearing All, In anticipation of tomorrow's Schumer hearing, I've put together some talkers that compare how poorly the Senate treated Bush 41 nominees with how Clinton nominees fared. I hope they help put to bed the notion that Clinton's nominees received unprecedentedly bad treatment at the hands of the GOP Senate. I'm sure there are other folks at Justice, WH Counsel, WH leg affairs, and the Hill who would find these useful. Please feel free to forward them to anyone I've inadvertently left off the list. Best, Nathan EXT-18-2091-C-000238 007104-000959 Document ID: 0.7.19343.5070 Sales, Nathan From: Sent: To: Subject: Attachments: Sales, Nathan Wednesday, May 8, 2002 6:30 PM 'Brett_M._Kavanaugh@who.eop.gov'; 'Anne_Womack@who.eop.gov' FW: TPs for Schumer hearing Schumer May 9 hearing TPs.doc -----Original Message----From: Sales, Nathan Wednesday, May 08, 2002 6:26 PM Sent: To: Dinh, Viet; Willett, Don; Benczkowski, Brian A; Keefer, Wendy J; Benedi, Lizette D; O'Brien, Pat; Brad Berenson (E-mail); Chris Bartolomucci (E-mail); Heather Wingate (E-mail); Goodling, Monica; Manuel Miranda (E-mail); Ed Haden (E-mail); Joe Matal (E-mail) Subject: TPs for Schumer hearing All, In anticipation of tomorrow's Schumer hearing, I've put together some talkers that compare how poorly the Senate treated Bush 41 nominees with how Clinton nominees fared. I hope they help put to bed the notion that Clinton's nominees received unprecedentedly bad treatment at the hands of the GOP Senate. I'm sure there are other folks at Justice, WH Counsel, WH leg affairs, and the Hill who would find these useful. Please feel free to forward them to anyone I've inadvertently left off the list. Best, Nathan EXT-18-2091-C-000238 007104-000959 Document ID: 0.7.19343.5070 Confirmations and Hearings During the First Bush and Clinton Administrations Rhetoric: During President Clinton's term in office, the United States Senate refused to confirm or even grant hearings to an unprecedented number of judicial nominees. Reality: ? During the first Bush Administration, the Senate confirmed 77% (192 out of 249) of the President's district and circuit nominees. By contrast, President Clinton saw 83% (368 out of 443) of his nominees confirmed by the Senate. ? ? The Senate refused to confirm 57 of President Bush's nominees to the federal district and circuit courts an average of over 14 nominees for each of the 4 years he was in office. By contrast, the Senate did not confirm 75 of President Clinton's district- and circuit-court nominees an average of only about 9 nominees for each of his 8 years in office. During the first Bush Administration, the Senate denied confirmation hearings to over 22% (56 out of 249) of the President's district and circuit nominees. By contrast, not even 13% (56 out of 443) of President Clinton's nominees went without confirmation hearings. ? ? The same number of district and circuit nominees 56 was denied confirmation hearings in both the first Bush and Clinton Administrations. But whereas President Bush served just one term in office, President Clinton served two. Hence the first President Bush saw an average of 14 nominees per year languish in the Senate without so much as a hearing. In the Clinton Administration, the figure was half as large: an average of just 7 nominees per year. Terrence Boyle and John Roberts, who were nominated during the first Bush Administration, waited for a confirmation hearing for nearly a year (11.5 months for Boyle, 8.5 months for Roberts) before the President's term ended. Following President Clinton's eight years in office, President George W. Bush renominated both on May 9 of last year. Both are still awaiting a hearing. ? On May 9 of last year, while announcing his first group of circuit nominees, the President urged members of both parties to restore "civility and dignity" to the confirmation process: "I urge senators of both parties to rise above the bitterness of the past, to provide a fair hearing and a prompt vote to every nominee. That should be the case for no matter who lives in this house, and no matter who controls the Senate." ? Initially, Senate Democrats indicated that they would heed the President's call, and that they approved of the May 9 nominees. Senator Leahy, who was at the White House when the nominations were announced, stated: "Had I not been encouraged, I would not have been here today." EXT-18-2091-C-000239 007104-000960 Document ID: 0.7.19343.5070-000001 Confirmations and Hearings During the First Bush and Clinton Administrations Rhetoric: During President Clinton's term in office, the United States Senate refused to confirm or even grant hearings to an unprecedented number of judicial nominees. Reality: ? During the first Bush Administration, the Senate confirmed 77% (192 out of 249) of the President's district and circuit nominees. By contrast, President Clinton saw 83% (368 out of 443) of his nominees confirmed by the Senate. ? ? The Senate refused to confirm 57 of President Bush's nominees to the federal district and circuit courts an average of over 14 nominees for each of the 4 years he was in office. By contrast, the Senate did not confirm 75 of President Clinton's district- and circuit-court nominees an average of only about 9 nominees for each of his 8 years in office. During the first Bush Administration, the Senate denied confirmation hearings to over 22% (56 out of 249) of the President's district and circuit nominees. By contrast, not even 13% (56 out of 443) of President Clinton's nominees went without confirmation hearings. ? ? The same number of district and circuit nominees 56 was denied confirmation hearings in both the first Bush and Clinton Administrations. But whereas President Bush served just one term in office, President Clinton served two. Hence the first President Bush saw an average of 14 nominees per year languish in the Senate without so much as a hearing. In the Clinton Administration, the figure was half as large: an average of just 7 nominees per year. Terrence Boyle and John Roberts, who were nominated during the first Bush Administration, waited for a confirmation hearing for nearly a year (11.5 months for Boyle, 8.5 months for Roberts) before the President's term ended. Following President Clinton's eight years in office, President George W. Bush renominated both on May 9 of last year. Both are still awaiting a hearing. ? On May 9 of last year, while announcing his first group of circuit nominees, the President urged members of both parties to restore "civility and dignity" to the confirmation process: "I urge senators of both parties to rise above the bitterness of the past, to provide a fair hearing and a prompt vote to every nominee. That should be the case for no matter who lives in this house, and no matter who controls the Senate." ? Initially, Senate Democrats indicated that they would heed the President's call, and that they approved of the May 9 nominees. Senator Leahy, who was at the White House when the nominations were announced, stated: "Had I not been encouraged, I would not have been here today." EXT-18-2091-C-000239 007104-000960 Document ID: 0.7.19343.5070-000001 ? Press accounts of the May 9 nominees confirm that they are all capable and mainstream jurists. The Associated Press reported that "Democrats appeared content with the choices," and predicted that "President Bush's first slate of judicial nominees appears headed for confirmation." The Washington Post further reported that Senate Democrats had "no wholesale plans to hinder consideration of the White House's candidates." ? Since May 9, only 3 of the original 11 nominees have been confirmed a total of 27%. (Two of the confirmed judges originally were nominated by President Clinton, and were renominated by President Bush in a gesture of bipartisanship.) The remaining 8 have not even received confirmation hearings. ? By contrast, each of the three previous Presidents enjoyed a 100% confirmation rate on their first 11 circuit nominees, and all were confirmed within a year. President Reagan's first 11 were confirmed in an average of 39 days, President Bush's first 11 averaged 88 days, and President Clinton's first 11 averaged 115 days. None waited longer than 199 days. EXT-18-2091-C-000240 007104-000961 Document ID: 0.7.19343.5070-000001 ? Press accounts of the May 9 nominees confirm that they are all capable and mainstream jurists. The Associated Press reported that "Democrats appeared content with the choices," and predicted that "President Bush's first slate of judicial nominees appears headed for confirmation." The Washington Post further reported that Senate Democrats had "no wholesale plans to hinder consideration of the White House's candidates." ? Since May 9, only 3 of the original 11 nominees have been confirmed a total of 27%. (Two of the confirmed judges originally were nominated by President Clinton, and were renominated by President Bush in a gesture of bipartisanship.) The remaining 8 have not even received confirmation hearings. ? By contrast, each of the three previous Presidents enjoyed a 100% confirmation rate on their first 11 circuit nominees, and all were confirmed within a year. President Reagan's first 11 were confirmed in an average of 39 days, President Bush's first 11 averaged 88 days, and President Clinton's first 11 averaged 115 days. None waited longer than 199 days. EXT-18-2091-C-000240 007104-000961 Document ID: 0.7.19343.5070-000001 Willett , Don From : Willett, Don Sent : Tuesday, July 16, 2002 8:21 PM To: Anne Womack (E-mail); Goodling, Monica Cc: Brett Kavanaugh (E-ma il); Dinh, Viet Subject : FW: Response to Texans for Public Justice Attachments: CFJreport.pdf From: Sent~ 002 6:51 PM To: 1---Subject: Response to Texans for Public Justice Coalition for a Fair Judiciary is releasing a report in response to the Texans for Public Justice report on Priscilla Owen. Copy of the report is attached in .pdf. KRD EXT-18-2091-C-000241 007104-000962 Document ID: 0.7.19343 .8067 Willett , Don From : Willett, Don Sent : Tuesday, July 16, 2002 8:21 PM To: Anne Womack (E-mail); Goodling, Monica Cc: Brett Kavanaugh (E-ma il); Dinh, Viet Subject : FW: Response to Texans for Public Justice Attachments: CFJreport.pdf From: Sent~ 002 6:51 PM To: 1---Subject: Response to Texans for Public Justice Coalition for a Fair Judiciary is releasing a report in response to the Texans for Public Justice report on Priscilla Owen. Copy of the report is attached in .pdf. KRD EXT-18-2091-C-000241 007104-000962 Document ID: 0.7.19343 .8067 - Coalition for a Fair Judiciary JUSTICE PRISCILLA OWEN: MYTH VS. REALITY Table of Contents The Real Priscilla Owen ......................................................................................................... 1 I. II. A. B. C. D. The TPJ Caricature ................................................................................................................. 3 Justice Owen's Judicial Restraint ....................................................................................... 4 A Balanced Approach to Consumer Lawsuits .................................................................... 5 Allocating Responsibilities Among Judges and Juries ....................................................... 7 Impartiality Toward Campaign Contributors...................................................................... 9 III. Conclusion ............................................................................................................................ 11 Appendix....................................................................................................................................... 12 I. The Real Priscilla Owen The colleagues of Texas Supreme Court Justice Priscilla Owen know her to be a common-sense, restrained jurist who strives to follow the law in all cases, defers to the precedents of the United States Supreme Court, and refuses to interfere with the policy choices of the people's elected representatives in the legislature. Justice Owen, whom the President has nominated to the U.S. Court of Appeals for the Fifth Circuit, neither reflexively bends the law to benefit the interests of ordinary citizens, nor does she instinctively strain to rule in favor of businesses. Instead, a fair-minded assessment of her eight-year career on the Texas Supreme Court reveals her to be a balanced jurist well within the mainstream of Texas, and American, law. Justice Owen has written or joined a number of opinions that protected the safety and well-being of children. In Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999), she rejected a manufacturer's claim that it had no duty to ensure that its cigarette lighters were child resistant since they were only intended for use by adults. In In re D.A.S., 973 S.W.2d 296 (Tex. 1998), she extended the right of indigent juveniles to have the assistance of counsel on appeal. And in Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000), a bitterly contested child custody battle, she applied statutory protections denying access to the child's mental health records, because releasing them would have harmed the child's physical, mental, or emotional health. EXT-18-2091-C-000242 007104-000963 Document ID: 0.7.19343.8067-000001 - Coalition for a Fair Judiciary JUSTICE PRISCILLA OWEN: MYTH VS. REALITY Table of Contents The Real Priscilla Owen ......................................................................................................... 1 I. II. A. B. C. D. The TPJ Caricature ................................................................................................................. 3 Justice Owen's Judicial Restraint ....................................................................................... 4 A Balanced Approach to Consumer Lawsuits .................................................................... 5 Allocating Responsibilities Among Judges and Juries ....................................................... 7 Impartiality Toward Campaign Contributors...................................................................... 9 III. Conclusion ............................................................................................................................ 11 Appendix....................................................................................................................................... 12 I. The Real Priscilla Owen The colleagues of Texas Supreme Court Justice Priscilla Owen know her to be a common-sense, restrained jurist who strives to follow the law in all cases, defers to the precedents of the United States Supreme Court, and refuses to interfere with the policy choices of the people's elected representatives in the legislature. Justice Owen, whom the President has nominated to the U.S. Court of Appeals for the Fifth Circuit, neither reflexively bends the law to benefit the interests of ordinary citizens, nor does she instinctively strain to rule in favor of businesses. Instead, a fair-minded assessment of her eight-year career on the Texas Supreme Court reveals her to be a balanced jurist well within the mainstream of Texas, and American, law. Justice Owen has written or joined a number of opinions that protected the safety and well-being of children. In Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999), she rejected a manufacturer's claim that it had no duty to ensure that its cigarette lighters were child resistant since they were only intended for use by adults. In In re D.A.S., 973 S.W.2d 296 (Tex. 1998), she extended the right of indigent juveniles to have the assistance of counsel on appeal. And in Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000), a bitterly contested child custody battle, she applied statutory protections denying access to the child's mental health records, because releasing them would have harmed the child's physical, mental, or emotional health. EXT-18-2091-C-000242 007104-000963 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 During her tenure on the Texas Supreme Court, Justice Owen has also actively protected the legal rights of workers and employees. To name only a few examples, in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), she prohibited employers from raising "comparative negligence" defenses under which employees could be held responsible for their own injuries if they opt out of the workers' compensation insurance system. In Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000), she ruled that a worker who developed asbestos-related cancer could pursue his claims against asbestos suppliers, even though he had received an earlier settlement from another asbestos supplier. And in Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), she upheld a $12.9 million jury verdict $5 million of which was punitive damages in a case where a construction worker died after the general contractor had knowledge of, but refused to stop, the use of an extremely dangerous device. Justice Owen likewise has helped ensure that consumers get a fair shake before the Texas Supreme Court. In Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999), for instance, Justice Owen held that a defendant doctor could not escape a valid lawsuit simply because the plaintiff sued him personally, rather than his physician's association. And in Mid-Century Insurance Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), she required an insurance company to pay $50,000 in uninsured motorist coverage, because she concluded that the policy's coverage of "accidents" included a boy's inadvertent act. Finally, Justice Owen has faithfully enforced Texas statutes and ordinances designed to protect the environment. In Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618 (Tex. 1996), Justice Owen upheld the constitutionality of the Edwards Aquifer Act, which regulates withdrawals of water from wells drilled in the aquifer and limits the drilling of future wells. In doing so, she rejected landowners' claims that the Act deprived them of their property rights, and concluded that the state has the authority to regulate and conserve groundwater usage. Similarly, in Quick v. City ofAustin, 7 S.W.3d 109 (Tex. 1999), she rejected landowners' challenges to a city ordinance that was designed to protect water quality and control pollution. These rulings, and many others like them, do not suggest that Justice Owen sets out in any given case to rule in favor of children, workers, consumers, or the environment. But they give the lie to any claim that she instinctively favors any one type of litigant. Instead, Justice Owen decides cases according to the governing law by applying U.S. Supreme Court precedents, or by deferring to the wishes of the legislature and follows those authorities wherever they might lead her. The people of Texas have benefited from more than Justice Owen's legal rulings. In addition, Justice Owen has gone to great lengths to improve the quality of legal services provided to the poor. In Griffin Industries v. Honorable Thirteenth Court ofAppeals, 934 S.W.2d 349 (Tex. 1996), Justice Owen stressed that "[o]ur state Constitution and our rules of procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the fees to get in." Id. at 353. These are not mere words to Justice Owen; she has put them into practice. Justice Owen has served on the Texas Supreme Court's EXT-18-2091-C-000243 007104-000964 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 During her tenure on the Texas Supreme Court, Justice Owen has also actively protected the legal rights of workers and employees. To name only a few examples, in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), she prohibited employers from raising "comparative negligence" defenses under which employees could be held responsible for their own injuries if they opt out of the workers' compensation insurance system. In Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000), she ruled that a worker who developed asbestos-related cancer could pursue his claims against asbestos suppliers, even though he had received an earlier settlement from another asbestos supplier. And in Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), she upheld a $12.9 million jury verdict $5 million of which was punitive damages in a case where a construction worker died after the general contractor had knowledge of, but refused to stop, the use of an extremely dangerous device. Justice Owen likewise has helped ensure that consumers get a fair shake before the Texas Supreme Court. In Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999), for instance, Justice Owen held that a defendant doctor could not escape a valid lawsuit simply because the plaintiff sued him personally, rather than his physician's association. And in Mid-Century Insurance Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), she required an insurance company to pay $50,000 in uninsured motorist coverage, because she concluded that the policy's coverage of "accidents" included a boy's inadvertent act. Finally, Justice Owen has faithfully enforced Texas statutes and ordinances designed to protect the environment. In Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618 (Tex. 1996), Justice Owen upheld the constitutionality of the Edwards Aquifer Act, which regulates withdrawals of water from wells drilled in the aquifer and limits the drilling of future wells. In doing so, she rejected landowners' claims that the Act deprived them of their property rights, and concluded that the state has the authority to regulate and conserve groundwater usage. Similarly, in Quick v. City ofAustin, 7 S.W.3d 109 (Tex. 1999), she rejected landowners' challenges to a city ordinance that was designed to protect water quality and control pollution. These rulings, and many others like them, do not suggest that Justice Owen sets out in any given case to rule in favor of children, workers, consumers, or the environment. But they give the lie to any claim that she instinctively favors any one type of litigant. Instead, Justice Owen decides cases according to the governing law by applying U.S. Supreme Court precedents, or by deferring to the wishes of the legislature and follows those authorities wherever they might lead her. The people of Texas have benefited from more than Justice Owen's legal rulings. In addition, Justice Owen has gone to great lengths to improve the quality of legal services provided to the poor. In Griffin Industries v. Honorable Thirteenth Court ofAppeals, 934 S.W.2d 349 (Tex. 1996), Justice Owen stressed that "[o]ur state Constitution and our rules of procedure recognize that our courts must be open to all with legitimate disputes, not just those who can afford to pay the fees to get in." Id. at 353. These are not mere words to Justice Owen; she has put them into practice. Justice Owen has served on the Texas Supreme Court's EXT-18-2091-C-000243 007104-000964 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 Mediation Task Force, and on statewide committees that focus on providing pro bono legal services to the less fortunate. She successfully urged the Texas Legislature to pass a law that has resulted in millions of dollars per year in additional funds for those who provider legal services to the poor. In recognition of her dedicated service, a past president of Legal Aid of Central Texas wrote to the Senate Judiciary Committee that "Justice Owen has an understanding of and a commitment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of insight and empathy that Justice Owen will bring to the Fifth Circuit." Justice Owen also has distinguished herself as one of the strongest voices in Texas calling for the overhaul of the state's judicial selection system. As is true in many states, the people of Texas, through their constitution, have chosen to select their judges in partisan, contested elections. See TEX. CONST. art. V, ? 2(c). For that reason, Texas law specifically provides that judicial candidates may solicit and accept campaign contributions. See TEX. CODE OF JUDICIAL CONDUCT, Canon 4D(1). Since first taking the bench in 1994, Justice Owen unwaveringly has urged that the Texas judicial selection system be reformed, to minimize any possible appearances of impropriety that could arise when judges preside over cases involving contributors to their campaigns. In 1994, when Texas law imposed no limits on contributions to judicial candidates, Justice Owen voluntarily signed a judicial reform pledge to limit the contributions she would accept. She has publicly supported a number of proposed amendments to the Texas constitution, one of which would require judges to run in uncontested, nonpartisan, retention elections. And after the 2000 election, in which she did not draw a major-party opponent, Justice Owen went so far as to return a significant portion of her campaign contributions. II. The TPJ Caricature Given Justice Owen's sterling pro-reform credentials, one would expect to count among her supporters Texans for Public Justice, or "TPJ," a group that characterizes itself as "promot[ing] campaign finance and judicial-selection reforms." Regrettably, TPJ's recent report on Justice Owen is riddled with half truths and outright distortions. Although the organization is innocuously named, TPJ is in fact an advocacy group for trial lawyers. TPJ habitually denounces Texas judges who accept campaign contributions from businesses, but steadfastly refuses to criticize judges whose campaigns are funded by trial lawyers. Earlier in 2002, Elizabeth Ray ran for a seat on the Texas Supreme Court, and received 83% of her campaign contributions from trial lawyers. According to the Austin American-Statesman, "Ray's top donors have been four plaintiffs' firms, which gave her a total of $100,000." AUSTIN AM.STATESMAN, Mar. 27, 2002, at B1. Yet TPJ's director refused to criticize her as beholden to trial lawyers, instead arguing that: "It shows she's not locked into an anti-consumer, pro-tort reform agenda." Id. TPJ's officers have admitted publicly that their principal sources of funding are trial lawyers and liberal foundations. According to the Houston Chronicle, TPJ's director "has said that $273,000 of his organization's operating budget of $326,200 was raised mostly from liberal EXT-18-2091-C-000244 007104-000965 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 Mediation Task Force, and on statewide committees that focus on providing pro bono legal services to the less fortunate. She successfully urged the Texas Legislature to pass a law that has resulted in millions of dollars per year in additional funds for those who provider legal services to the poor. In recognition of her dedicated service, a past president of Legal Aid of Central Texas wrote to the Senate Judiciary Committee that "Justice Owen has an understanding of and a commitment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of insight and empathy that Justice Owen will bring to the Fifth Circuit." Justice Owen also has distinguished herself as one of the strongest voices in Texas calling for the overhaul of the state's judicial selection system. As is true in many states, the people of Texas, through their constitution, have chosen to select their judges in partisan, contested elections. See TEX. CONST. art. V, ? 2(c). For that reason, Texas law specifically provides that judicial candidates may solicit and accept campaign contributions. See TEX. CODE OF JUDICIAL CONDUCT, Canon 4D(1). Since first taking the bench in 1994, Justice Owen unwaveringly has urged that the Texas judicial selection system be reformed, to minimize any possible appearances of impropriety that could arise when judges preside over cases involving contributors to their campaigns. In 1994, when Texas law imposed no limits on contributions to judicial candidates, Justice Owen voluntarily signed a judicial reform pledge to limit the contributions she would accept. She has publicly supported a number of proposed amendments to the Texas constitution, one of which would require judges to run in uncontested, nonpartisan, retention elections. And after the 2000 election, in which she did not draw a major-party opponent, Justice Owen went so far as to return a significant portion of her campaign contributions. II. The TPJ Caricature Given Justice Owen's sterling pro-reform credentials, one would expect to count among her supporters Texans for Public Justice, or "TPJ," a group that characterizes itself as "promot[ing] campaign finance and judicial-selection reforms." Regrettably, TPJ's recent report on Justice Owen is riddled with half truths and outright distortions. Although the organization is innocuously named, TPJ is in fact an advocacy group for trial lawyers. TPJ habitually denounces Texas judges who accept campaign contributions from businesses, but steadfastly refuses to criticize judges whose campaigns are funded by trial lawyers. Earlier in 2002, Elizabeth Ray ran for a seat on the Texas Supreme Court, and received 83% of her campaign contributions from trial lawyers. According to the Austin American-Statesman, "Ray's top donors have been four plaintiffs' firms, which gave her a total of $100,000." AUSTIN AM.STATESMAN, Mar. 27, 2002, at B1. Yet TPJ's director refused to criticize her as beholden to trial lawyers, instead arguing that: "It shows she's not locked into an anti-consumer, pro-tort reform agenda." Id. TPJ's officers have admitted publicly that their principal sources of funding are trial lawyers and liberal foundations. According to the Houston Chronicle, TPJ's director "has said that $273,000 of his organization's operating budget of $326,200 was raised mostly from liberal EXT-18-2091-C-000244 007104-000965 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4 or progressive, public interest-type foundations." HOUSTON CHRON., Nov. 28, 2001, at A29. The director further has acknowledged that: "There are some wealthy liberal individuals, including trial lawyers, who have given to me over the years." HOUSTON CHRON., Nov. 4, 2001, at 2. And in an extraordinary moment of candor, TPJ's spokesman during an August 14, 1998 press event admitted the following: Are we getting money from lawyers? I mean, that's the question here. Sure. Yeah. We've gotten money from trial lawyers, absolutely. And we solicit money from trial lawyers. . . . If you want to talk about trial lawyers, uh, you know, there are trial lawyers in this state who just made a lot of money on the tobacco case. And, frankly, we'd like to get a lot more money from those people. We feel that they have a duty to support groups like ours. No wonder the Legal Times recently described TPJ as "a liberal activist group." LEGAL TIMES, July 8, 2002, at 1. Despite TPJ's repeated calls for public officials to come clean on their sources of funding, the group refuses to respond to media requests that it identify its individual contributors. TPJ makes no effort to live up to the standards it seeks to impose on others. For this reason, the Houston Chronicle recently labeled the group "hypocritical because it doesn't fully make public its own list of donors." HOUSTON CHRON., Nov. 4, 2001, at 2. The Chronicle also took TPJ's director to task for suggesting that publicizing his donors' names would expose them to the same dangers as civil rights activists in the Jim Crow South: "Whatever differences he may have with Texas officialdom, his contributors don't have to fear being lynched or seeing their houses burned." Id. TPJ is hardly a disinterested observer of the legal system. Instead, it brings a particular mindset to bear when weighing in on important matters of public concern. No one would argue that groups like TPJ should be silenced, or have no legitimate role to play in public debates, including debates over judicial nominations. But neither should TPJ be mistaken for an objective, impartial voice. The group's pronouncements, like those of any activist group with a particular ideological orientation, should be taken with a grain of salt. A. Justice Owen's Judicial Restraint Judicial restraint means that judges have a proper understanding of the scope of their own powers. Judging is not the same as legislating. When deciding a case, judges are required to give effect to the intent of the lawgiver, whether the people themselves through a constitution, or the people's elected representatives through a statute. Judged by this standard, Justice Owen certainly qualifies as a practitioner of judicial restraint. She consistently defers to the policy choices of the Texas Legislature, refusing to substitute the Court's policy preferences. And she consistently applies the authoritative precedents of the U.S. Supreme Court. TPJ proposes that Justice Owen's concurrence in In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000), is somehow evidence of "judicial activism." Nothing could be further from the truth. In EXT-18-2091-C-000245 007104-000966 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4 or progressive, public interest-type foundations." HOUSTON CHRON., Nov. 28, 2001, at A29. The director further has acknowledged that: "There are some wealthy liberal individuals, including trial lawyers, who have given to me over the years." HOUSTON CHRON., Nov. 4, 2001, at 2. And in an extraordinary moment of candor, TPJ's spokesman during an August 14, 1998 press event admitted the following: Are we getting money from lawyers? I mean, that's the question here. Sure. Yeah. We've gotten money from trial lawyers, absolutely. And we solicit money from trial lawyers. . . . If you want to talk about trial lawyers, uh, you know, there are trial lawyers in this state who just made a lot of money on the tobacco case. And, frankly, we'd like to get a lot more money from those people. We feel that they have a duty to support groups like ours. No wonder the Legal Times recently described TPJ as "a liberal activist group." LEGAL TIMES, July 8, 2002, at 1. Despite TPJ's repeated calls for public officials to come clean on their sources of funding, the group refuses to respond to media requests that it identify its individual contributors. TPJ makes no effort to live up to the standards it seeks to impose on others. For this reason, the Houston Chronicle recently labeled the group "hypocritical because it doesn't fully make public its own list of donors." HOUSTON CHRON., Nov. 4, 2001, at 2. The Chronicle also took TPJ's director to task for suggesting that publicizing his donors' names would expose them to the same dangers as civil rights activists in the Jim Crow South: "Whatever differences he may have with Texas officialdom, his contributors don't have to fear being lynched or seeing their houses burned." Id. TPJ is hardly a disinterested observer of the legal system. Instead, it brings a particular mindset to bear when weighing in on important matters of public concern. No one would argue that groups like TPJ should be silenced, or have no legitimate role to play in public debates, including debates over judicial nominations. But neither should TPJ be mistaken for an objective, impartial voice. The group's pronouncements, like those of any activist group with a particular ideological orientation, should be taken with a grain of salt. A. Justice Owen's Judicial Restraint Judicial restraint means that judges have a proper understanding of the scope of their own powers. Judging is not the same as legislating. When deciding a case, judges are required to give effect to the intent of the lawgiver, whether the people themselves through a constitution, or the people's elected representatives through a statute. Judged by this standard, Justice Owen certainly qualifies as a practitioner of judicial restraint. She consistently defers to the policy choices of the Texas Legislature, refusing to substitute the Court's policy preferences. And she consistently applies the authoritative precedents of the U.S. Supreme Court. TPJ proposes that Justice Owen's concurrence in In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000), is somehow evidence of "judicial activism." Nothing could be further from the truth. In EXT-18-2091-C-000245 007104-000966 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 fact, Doe 2 reveals Justice Owen's demonstrated commitment to following and applying the precedents of the United States Supreme Court. In Doe 2, Justice Owen concluded that an exception to Texas's Parental Notification Act, which permits an underage girl to have an abortion without telling a parent when doing so is in her "best interest," required the Court to consider both whether abortion is in her best interest, and whether notification is not. She came to this conclusion by citing the U.S. Supreme Court's decision in Lambert v. Wicklund, 520 U.S. 292 (1997) (per curiam). In that case, the Court interpreted an identical "best interest" exception in a Montana statute, and concluded that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest." Id. at 297. "Judicial restraint" involves deferring to and applying the precedents of a superior tribunal, and that is precisely what Justice Owen did in Doe 2. In Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998), a products liability case arising out of an automobile accident, a bipartisan majority of the Texas Supreme Court held that the lawsuit had been filed in the wrong county, and therefore remanded for transfer and a new trial in a different county. It must be stressed that this decision did not eliminate the plaintiffs' ability to sue for the injuries they had suffered; it simply ordered that the case be reassigned to the appropriate venue. See id. at 389 ("remand[ing] this case to the trial court for transfer to Dallas County and a new trial.") Justice Owen's majority opinion, which was joined by Justices from both major political parties, concluded that the plaintiffs should have filed suit in Dallas County (where the plaintiffs lived, the car was purchased, and the accident occurred), rather than Rusk County (where an unrelated Ford dealership was located). Indeed, the plaintiffs even "concede[d] that the Rusk County dealership has no connection with the collision or to the Ranger." Id. at 379. Because, as the plaintiffs themselves admitted, the Ford dealership in Rusk County had "no connection" to their case, the Court concluded that the lawsuit should have been filed elsewhere. Significantly, the dissenting Justices agreed that the majority "cite[d] the correct standard of review for venue determinations," and disagreed only as to the proper application of that standard. Id. at 390 (Hankinson, J., dissenting). Both the majority and the dissent agreed that it was appropriate to resolve the venue issue, even though the Court did not grant review solely for the purpose of addressing that question; no member argued that the Court should not consider whether venue was appropriate. B. A Balanced Approach to Consumer Lawsuits Justice Owen's voting tendencies in lawsuits filed by consumers defies easy categorization. As discussed above, she has rejected the claim of a cigarette lighter manufacturer that it had no duty to make its products child resistant; she has held that doctors cannot escape valid lawsuits simply because a plaintiff fails to name the physician's associations as defendants; and she has upheld a multimillion-dollar jury verdict against a general contractor who allowed workers to use dangerous devices that resulted in one worker's death. Justice Owen did not EXT-18-2091-C-000246 007104-000967 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 fact, Doe 2 reveals Justice Owen's demonstrated commitment to following and applying the precedents of the United States Supreme Court. In Doe 2, Justice Owen concluded that an exception to Texas's Parental Notification Act, which permits an underage girl to have an abortion without telling a parent when doing so is in her "best interest," required the Court to consider both whether abortion is in her best interest, and whether notification is not. She came to this conclusion by citing the U.S. Supreme Court's decision in Lambert v. Wicklund, 520 U.S. 292 (1997) (per curiam). In that case, the Court interpreted an identical "best interest" exception in a Montana statute, and concluded that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest." Id. at 297. "Judicial restraint" involves deferring to and applying the precedents of a superior tribunal, and that is precisely what Justice Owen did in Doe 2. In Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998), a products liability case arising out of an automobile accident, a bipartisan majority of the Texas Supreme Court held that the lawsuit had been filed in the wrong county, and therefore remanded for transfer and a new trial in a different county. It must be stressed that this decision did not eliminate the plaintiffs' ability to sue for the injuries they had suffered; it simply ordered that the case be reassigned to the appropriate venue. See id. at 389 ("remand[ing] this case to the trial court for transfer to Dallas County and a new trial.") Justice Owen's majority opinion, which was joined by Justices from both major political parties, concluded that the plaintiffs should have filed suit in Dallas County (where the plaintiffs lived, the car was purchased, and the accident occurred), rather than Rusk County (where an unrelated Ford dealership was located). Indeed, the plaintiffs even "concede[d] that the Rusk County dealership has no connection with the collision or to the Ranger." Id. at 379. Because, as the plaintiffs themselves admitted, the Ford dealership in Rusk County had "no connection" to their case, the Court concluded that the lawsuit should have been filed elsewhere. Significantly, the dissenting Justices agreed that the majority "cite[d] the correct standard of review for venue determinations," and disagreed only as to the proper application of that standard. Id. at 390 (Hankinson, J., dissenting). Both the majority and the dissent agreed that it was appropriate to resolve the venue issue, even though the Court did not grant review solely for the purpose of addressing that question; no member argued that the Court should not consider whether venue was appropriate. B. A Balanced Approach to Consumer Lawsuits Justice Owen's voting tendencies in lawsuits filed by consumers defies easy categorization. As discussed above, she has rejected the claim of a cigarette lighter manufacturer that it had no duty to make its products child resistant; she has held that doctors cannot escape valid lawsuits simply because a plaintiff fails to name the physician's associations as defendants; and she has upheld a multimillion-dollar jury verdict against a general contractor who allowed workers to use dangerous devices that resulted in one worker's death. Justice Owen did not EXT-18-2091-C-000246 007104-000967 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6 reach these conclusions because she wanted to assist any particular party. Rather, these and other cases illustrate Justice Owen's commitment to faithfully applying the law regardless of the parties' identities. In Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998), a substantial majority of the Texas Supreme Court (only two members dissented) agreed with Justice Owen that an insurance company did not act in bad faith when it denied a young woman's claim under a policy that, by its very terms, did not apply to her illness. After the court of appeals reversed in part the trial court's decision to award her $150,000 in money damages, the Supreme Court reversed the remainder of the decision. The very first paragraph of Denise Castaneda's policy expressly stated that the policy only provided benefits for an illness "which first manifests itself more than thirty (30) days after the effective date of this Policy." Id. at 193 n.20. But the "undisputed evidence" showed that Denise's hemolytic spherocytosis (a blood disease) had manifested itself long before the 30-day period passed. In fact, she experienced symptoms years before her father even applied for the policy. As her father explained in a letter to the insurance company: "Denise and [her brother] had their skin a little yellow throughout their whole lifes [sic]." Id. at 195. And, again according to the letter, Denise was "checked and diagnosed" by a physician on July 20, 1991 just three days after the 30-day period expired. Because Denise's illness had manifested itself well before the end of the 30-day waiting period, her insurance company had no legal obligation to cover it. In In re City ofGeorgetown, 53 S.W.3d 328 (Tex. 2001), Justice Owen's six-member majority concluded that Texas law did not require a city to disclose a report that was covered by the attorney-client and work-product privileges. In doing so, Justice Owen deferred to and applied the precedents of the U.S. Supreme Court, as well as Texas's rules of evidence and civil procedure. Texas law specifically provides that cities need not disclose to the public "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." TEX. GOV' T CODE ? 552.103(a). That certainly describes Georgetown, which had prepared the report in connection with two then-pending lawsuits over discharges at a water treatment plant, and which expected to be named in several other suits. In addition, Texas law allows cities to keep private any information that is "expressly confidential under other law." Id. ? 552.022(a). According to the six-Justice majority, the phrase "other law" includes the Texas rules of evidence and civil procedure, both of which specifically deem certain work product and certain attorney-client communications including the report at issue in the case to be confidential. Significantly, Justice Owen interpreted the phrase "expressly confidential under other law" in light of Norfolk & Western Railway v. American Train Dispatchers Association, 499 U.S. 117 (1991), where the U.S. Supreme Court held that similar language included federal statutes, state statutes, municipal ordinances, and judicial decisions. Justice Owen also relied on the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947), where the Court recognized the confidentiality of work product prepared in anticipation of litigation. EXT-18-2091-C-000247 007104-000968 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6 reach these conclusions because she wanted to assist any particular party. Rather, these and other cases illustrate Justice Owen's commitment to faithfully applying the law regardless of the parties' identities. In Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998), a substantial majority of the Texas Supreme Court (only two members dissented) agreed with Justice Owen that an insurance company did not act in bad faith when it denied a young woman's claim under a policy that, by its very terms, did not apply to her illness. After the court of appeals reversed in part the trial court's decision to award her $150,000 in money damages, the Supreme Court reversed the remainder of the decision. The very first paragraph of Denise Castaneda's policy expressly stated that the policy only provided benefits for an illness "which first manifests itself more than thirty (30) days after the effective date of this Policy." Id. at 193 n.20. But the "undisputed evidence" showed that Denise's hemolytic spherocytosis (a blood disease) had manifested itself long before the 30-day period passed. In fact, she experienced symptoms years before her father even applied for the policy. As her father explained in a letter to the insurance company: "Denise and [her brother] had their skin a little yellow throughout their whole lifes [sic]." Id. at 195. And, again according to the letter, Denise was "checked and diagnosed" by a physician on July 20, 1991 just three days after the 30-day period expired. Because Denise's illness had manifested itself well before the end of the 30-day waiting period, her insurance company had no legal obligation to cover it. In In re City ofGeorgetown, 53 S.W.3d 328 (Tex. 2001), Justice Owen's six-member majority concluded that Texas law did not require a city to disclose a report that was covered by the attorney-client and work-product privileges. In doing so, Justice Owen deferred to and applied the precedents of the U.S. Supreme Court, as well as Texas's rules of evidence and civil procedure. Texas law specifically provides that cities need not disclose to the public "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." TEX. GOV' T CODE ? 552.103(a). That certainly describes Georgetown, which had prepared the report in connection with two then-pending lawsuits over discharges at a water treatment plant, and which expected to be named in several other suits. In addition, Texas law allows cities to keep private any information that is "expressly confidential under other law." Id. ? 552.022(a). According to the six-Justice majority, the phrase "other law" includes the Texas rules of evidence and civil procedure, both of which specifically deem certain work product and certain attorney-client communications including the report at issue in the case to be confidential. Significantly, Justice Owen interpreted the phrase "expressly confidential under other law" in light of Norfolk & Western Railway v. American Train Dispatchers Association, 499 U.S. 117 (1991), where the U.S. Supreme Court held that similar language included federal statutes, state statutes, municipal ordinances, and judicial decisions. Justice Owen also relied on the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947), where the Court recognized the confidentiality of work product prepared in anticipation of litigation. EXT-18-2091-C-000247 007104-000968 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 Justice Owen dissented in FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) from the majority's decision to hold unconstitutional a Texas law that allowed private entities to designate their land as "water quality protection zones." In doing so, she refused to interfere with the choices of the people's elected representatives in the state Legislature. Justice Owen disagreed that the law was an unconstitutional delegation of "legislative power" to landowners. Indeed, the Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." Id. at 873. In essence, Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation. "How the Legislature chooses to regulate is left to the Legislature, not this Court." Id. at 915 (Owen, J., dissenting). Justice Owen thus rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. Nor is it proper to describe Justice Owen's opinion as favoring a past campaign contributor. In fact, Justice Owen sided with the state of Texas, whose Attorney General Dan Morales, a Democrat had intervened in the proceedings to defend the law's constitutionality. The majority's decision to invalidate the law, she argued, "usurps authority that is reserved to another branch of government the Legislature." Justice Owen's willingness to defer to the politically accountable branches of government is a hallmark of judicial restraint. C. Allocating Responsibilities Among Judges and Juries Judges and juries perform very different functions at trial. As a general matter, judges are charged with the task of ruling on questions of law e.g., whether a particular piece of evidence should be admitted whereas the jury's function is limited to making findings of fact. Justice Owen has sought to respect this traditional distinction, and to faithfully apply more recent U.S. Supreme Court decisions on the respective responsibilities of judges and juries. In Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997), the members of the Texas Supreme Court including both Republicans and Democrats unanimously concluded that a girl born with birth defects had not proven that a drug manufactured by the defendant was responsible for her injuries. The opinion, authored by Justice Owen, assiduously followed the precedents of the U.S. Supreme Court, as well as the lower federal courts. According to the unanimous Court, there was no reliable evidence that Bendectin a drug taken by pregnant women to combat morning sickness was responsible for birth defects. As Justice Owen pointed out, the federal courts have heard identical lawsuits over the years, and every single one ultimately has failed: "The federal courts have dealt extensively with Bendectin litigation. To date, no plaintiff has ultimately prevailed in federal court. The evidence in those cases has been similar to that offered by the Havners." Id. at 709-10 (citing 19 federal cases in which Merrell Dow was exonerated). EXT-18-2091-C-000248 007104-000969 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 Justice Owen dissented in FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) from the majority's decision to hold unconstitutional a Texas law that allowed private entities to designate their land as "water quality protection zones." In doing so, she refused to interfere with the choices of the people's elected representatives in the state Legislature. Justice Owen disagreed that the law was an unconstitutional delegation of "legislative power" to landowners. Indeed, the Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." Id. at 873. In essence, Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation. "How the Legislature chooses to regulate is left to the Legislature, not this Court." Id. at 915 (Owen, J., dissenting). Justice Owen thus rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. Nor is it proper to describe Justice Owen's opinion as favoring a past campaign contributor. In fact, Justice Owen sided with the state of Texas, whose Attorney General Dan Morales, a Democrat had intervened in the proceedings to defend the law's constitutionality. The majority's decision to invalidate the law, she argued, "usurps authority that is reserved to another branch of government the Legislature." Justice Owen's willingness to defer to the politically accountable branches of government is a hallmark of judicial restraint. C. Allocating Responsibilities Among Judges and Juries Judges and juries perform very different functions at trial. As a general matter, judges are charged with the task of ruling on questions of law e.g., whether a particular piece of evidence should be admitted whereas the jury's function is limited to making findings of fact. Justice Owen has sought to respect this traditional distinction, and to faithfully apply more recent U.S. Supreme Court decisions on the respective responsibilities of judges and juries. In Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997), the members of the Texas Supreme Court including both Republicans and Democrats unanimously concluded that a girl born with birth defects had not proven that a drug manufactured by the defendant was responsible for her injuries. The opinion, authored by Justice Owen, assiduously followed the precedents of the U.S. Supreme Court, as well as the lower federal courts. According to the unanimous Court, there was no reliable evidence that Bendectin a drug taken by pregnant women to combat morning sickness was responsible for birth defects. As Justice Owen pointed out, the federal courts have heard identical lawsuits over the years, and every single one ultimately has failed: "The federal courts have dealt extensively with Bendectin litigation. To date, no plaintiff has ultimately prevailed in federal court. The evidence in those cases has been similar to that offered by the Havners." Id. at 709-10 (citing 19 federal cases in which Merrell Dow was exonerated). EXT-18-2091-C-000248 007104-000969 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8 In concluding that the plaintiffs had not proven that Bendectin caused the injuries, Justice Owen's opinion applied the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That decision instructs courts to disregard evidence, offered by self-described scientific experts, that is not based on "valid science." Because the plaintiffs' evidence did not satisfy the U.S. Supreme Court's standard of reliability, the Texas Supreme Court unanimously concluded that Merrell Dow could not be held responsible. A bipartisan majority of the Texas Supreme Court agreed with Justice Owen's conclusion in State Farm Insurance Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995), that, because the plaintiff's husband decided not to renew his insurance policy, the plaintiff was not entitled to receive benefits after her husband's death. David Beaston failed to pay the premium on his life insurance policy by its due date of December 28, 1983. The policy lapsed on that day, and the 31-day grace period expired on January 28, 1984 three days before the husband died. Because the husband's death occurred after the expiration of his life insurance policy, the Court held, the wife had no right to receive benefits. An even larger majority (with just two Justices dissenting) joined Justice Owen in ruling that the wife was not entitled to recover "mental anguish damages," since the jury did not find that the insurance company had acted knowingly. Justice Owen reasoned that, under Texas common law and other statutes, plaintiffs are not entitled to such damages unless they convince a jury that the defendant acted knowingly; she therefore concluded that the Texas Insurance Code likewise requires a showing of willful action. In other words, Justice Owen simply construed the Texas Insurance Code to be consistent with another act of the Legislature (which was passed at the same time as the Insurance Code), and with the common law of tort. (In this respect, Justice Owen agreed with the trial judge, who likewise concluded that mental anguish damages are available only if the jury finds that the defendant acted knowingly.) In Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997), Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." Along with three other colleagues from both political parties, she also joined a concurring opinion, which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. (Justice Owen joined, but did not author, the concurrence.) According to the concurrence, allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. This is so because Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court; appellate courts can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." The concurrence hardly reflects a disdain for the prerogatives of juries, as TPJ now claims. It reflects the well-settled legal principle that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. EXT-18-2091-C-000249 007104-000970 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8 In concluding that the plaintiffs had not proven that Bendectin caused the injuries, Justice Owen's opinion applied the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That decision instructs courts to disregard evidence, offered by self-described scientific experts, that is not based on "valid science." Because the plaintiffs' evidence did not satisfy the U.S. Supreme Court's standard of reliability, the Texas Supreme Court unanimously concluded that Merrell Dow could not be held responsible. A bipartisan majority of the Texas Supreme Court agreed with Justice Owen's conclusion in State Farm Insurance Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995), that, because the plaintiff's husband decided not to renew his insurance policy, the plaintiff was not entitled to receive benefits after her husband's death. David Beaston failed to pay the premium on his life insurance policy by its due date of December 28, 1983. The policy lapsed on that day, and the 31-day grace period expired on January 28, 1984 three days before the husband died. Because the husband's death occurred after the expiration of his life insurance policy, the Court held, the wife had no right to receive benefits. An even larger majority (with just two Justices dissenting) joined Justice Owen in ruling that the wife was not entitled to recover "mental anguish damages," since the jury did not find that the insurance company had acted knowingly. Justice Owen reasoned that, under Texas common law and other statutes, plaintiffs are not entitled to such damages unless they convince a jury that the defendant acted knowingly; she therefore concluded that the Texas Insurance Code likewise requires a showing of willful action. In other words, Justice Owen simply construed the Texas Insurance Code to be consistent with another act of the Legislature (which was passed at the same time as the Insurance Code), and with the common law of tort. (In this respect, Justice Owen agreed with the trial judge, who likewise concluded that mental anguish damages are available only if the jury finds that the defendant acted knowingly.) In Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997), Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." Along with three other colleagues from both political parties, she also joined a concurring opinion, which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. (Justice Owen joined, but did not author, the concurrence.) According to the concurrence, allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. This is so because Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court; appellate courts can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." The concurrence hardly reflects a disdain for the prerogatives of juries, as TPJ now claims. It reflects the well-settled legal principle that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. EXT-18-2091-C-000249 007104-000970 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9 Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. In other words, the majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. D. Impartiality Toward Campaign Contributors For better or worse, the people of Texas have chosen to elect their judges in contested, partisan elections. Texas law therefore explicitly authorizes judicial candidates to solicit and receive campaign contributions. See TEX. CODE OF JUDICIAL CONDUCT, Canon 4D(1). In her eight years as a member of the Texas Supreme Court, Justice Owen consistently has called for reform of the state's judicial-selection laws, believing that judges should never be in a position where observers, with or without reason, could doubt their integrity and impartiality. Justice Owen's commitment to impartially resolving legal questions is equally apparent in the evenhanded, disinterested way she has ruled in cases involving contributors to her own judicial campaigns. TPJ hits farthest from the mark when it suggests that Justice Owen has been influenced by campaign contributions to rule favorably toward her donors. These charges are no more than insinuation: TPJ has not alleged, let alone produced any evidence of, a quid pro quo. Nor has it proposed that any contributor-related case was legally incorrect i.e., that it involved an erroneous application of law to fact. Indeed, no litigant has ever so much as asked Justice Owen to recuse herself from a case involving a contributor. And by way of clarification, Justice Owen has never received a contribution from a corporation, which is not permitted under Texas law. She has only received contributions from the employees of corporations, either individually or collectively through their political action committees. In a word, then, Justice Owen has done no more than comply with Texas law which allows judicial candidates to receive campaign contributions, and which Justice Owen consistently has sought to reform. In Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), the Texas Supreme Court held that criminal convicts cannot sue their defense attorneys for malpractice if they are guilty of the offenses for which they were convicted. In so ruling, the Court aligned itself with the vast majority of states that overwhelmingly have concluded that guilty clients may not bring malpractice claims. According to the Court's ruling, which Justice Owen joined, public policy weighs against allowing those who are guilty to sue their lawyers for malpractice: "convicts may not shift the consequences of their crime to a third party." Id. at 498. For this reason, only two states allowed guilty clients to bring malpractice claims. In fact, the dissent agreed that ordinarily, only the innocent should be able to sue their lawyers for malpractice: "In most cases the law should not permit a person convicted of a crime to recover for legal malpractice." Id. at 501 (Phillips, C.J., dissenting). Because Carol Peeler never even asserted that she was innocent of federal tax fraud and indeed admitted to many other crimes the Court therefore concluded that her EXT-18-2091-C-000250 007104-000971 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9 Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. In other words, the majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. D. Impartiality Toward Campaign Contributors For better or worse, the people of Texas have chosen to elect their judges in contested, partisan elections. Texas law therefore explicitly authorizes judicial candidates to solicit and receive campaign contributions. See TEX. CODE OF JUDICIAL CONDUCT, Canon 4D(1). In her eight years as a member of the Texas Supreme Court, Justice Owen consistently has called for reform of the state's judicial-selection laws, believing that judges should never be in a position where observers, with or without reason, could doubt their integrity and impartiality. Justice Owen's commitment to impartially resolving legal questions is equally apparent in the evenhanded, disinterested way she has ruled in cases involving contributors to her own judicial campaigns. TPJ hits farthest from the mark when it suggests that Justice Owen has been influenced by campaign contributions to rule favorably toward her donors. These charges are no more than insinuation: TPJ has not alleged, let alone produced any evidence of, a quid pro quo. Nor has it proposed that any contributor-related case was legally incorrect i.e., that it involved an erroneous application of law to fact. Indeed, no litigant has ever so much as asked Justice Owen to recuse herself from a case involving a contributor. And by way of clarification, Justice Owen has never received a contribution from a corporation, which is not permitted under Texas law. She has only received contributions from the employees of corporations, either individually or collectively through their political action committees. In a word, then, Justice Owen has done no more than comply with Texas law which allows judicial candidates to receive campaign contributions, and which Justice Owen consistently has sought to reform. In Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), the Texas Supreme Court held that criminal convicts cannot sue their defense attorneys for malpractice if they are guilty of the offenses for which they were convicted. In so ruling, the Court aligned itself with the vast majority of states that overwhelmingly have concluded that guilty clients may not bring malpractice claims. According to the Court's ruling, which Justice Owen joined, public policy weighs against allowing those who are guilty to sue their lawyers for malpractice: "convicts may not shift the consequences of their crime to a third party." Id. at 498. For this reason, only two states allowed guilty clients to bring malpractice claims. In fact, the dissent agreed that ordinarily, only the innocent should be able to sue their lawyers for malpractice: "In most cases the law should not permit a person convicted of a crime to recover for legal malpractice." Id. at 501 (Phillips, C.J., dissenting). Because Carol Peeler never even asserted that she was innocent of federal tax fraud and indeed admitted to many other crimes the Court therefore concluded that her EXT-18-2091-C-000250 007104-000971 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10 malpractice claim was without merit. (The trial court and court of appeals both had reached the same conclusion.) Nor can the Peeler case be characterized as an attempt by Justice Owen to shield the law firm, which had contributed to her campaign, from the consequences of its actions. The Court went out of its way to emphasize that the convict's claims about her lawyer's misconduct "merit review by the State Bar." Id. at 500. And the Court specifically instructed that, even though there was no basis for a malpractice lawsuit, the lawyer still could be disciplined under state ethics rules. Efforts to portray Justice Owen's opinion in Enron Corp. v. Spring Independent School District, 922 S.W.2d 931 (Tex. 1996), as a payoff to a campaign contributor are no more credible. In that arcane tax case, the unanimous Texas Supreme Court, Republicans and Democrats alike, applied two on-point rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. The specific issue in Spring I.S.D. was whether the Texas Legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). As a result, Enron's tax liability was lowered by about $200,000. Again, Spring I.S.D. was decided unanimously, and Justice Owen's opinion for the Court was joined by members of both political parties. The lawyer for the losing school district recently wrote the Senate Judiciary Committee to dispel any suggestion that the Court was influenced in its rulings by the campaign contributions its members received. Although he was disappointed with the outcome in Spring I.S.D., the lawyer had no reason to doubt the integrity of the process that produced that result. I have been disturbed by the suggestions that Justice Priscilla Owen's decision in this case was influenced by the campaign contributions she received from Enron employees. I personally believe that such suggestions are nonsense. Justice Owen authored the opinion of a unanimous court consisting of both Democrats and Republicans. While my clients and I disagreed with the decision, we were not surprised. The decision of the Court was to uphold an act of the Legislature regarding property valuation. It was based upon United States Supreme Court precedent, of which we were fully aware when we argued the case. I firmly believe there is absolutely no reason to question Justice Owen's integrity based upon the decision in this case. Nor can any discernable pattern be seen in the 13 other Enron-related cases the Texas Supreme Court has heard during Justice Owen's tenure. Six of the 14 cases (including Spring I.S.D.) could be characterized as "favorable" to Enron (although three were simply decisions to deny review, and hence did not involve any analysis of the parties' rights and responsibilities). Five of the 14 cases could be characterized as "unfavorable" to Enron. And the remaining three EXT-18-2091-C-000251 007104-000972 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10 malpractice claim was without merit. (The trial court and court of appeals both had reached the same conclusion.) Nor can the Peeler case be characterized as an attempt by Justice Owen to shield the law firm, which had contributed to her campaign, from the consequences of its actions. The Court went out of its way to emphasize that the convict's claims about her lawyer's misconduct "merit review by the State Bar." Id. at 500. And the Court specifically instructed that, even though there was no basis for a malpractice lawsuit, the lawyer still could be disciplined under state ethics rules. Efforts to portray Justice Owen's opinion in Enron Corp. v. Spring Independent School District, 922 S.W.2d 931 (Tex. 1996), as a payoff to a campaign contributor are no more credible. In that arcane tax case, the unanimous Texas Supreme Court, Republicans and Democrats alike, applied two on-point rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. The specific issue in Spring I.S.D. was whether the Texas Legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). As a result, Enron's tax liability was lowered by about $200,000. Again, Spring I.S.D. was decided unanimously, and Justice Owen's opinion for the Court was joined by members of both political parties. The lawyer for the losing school district recently wrote the Senate Judiciary Committee to dispel any suggestion that the Court was influenced in its rulings by the campaign contributions its members received. Although he was disappointed with the outcome in Spring I.S.D., the lawyer had no reason to doubt the integrity of the process that produced that result. I have been disturbed by the suggestions that Justice Priscilla Owen's decision in this case was influenced by the campaign contributions she received from Enron employees. I personally believe that such suggestions are nonsense. Justice Owen authored the opinion of a unanimous court consisting of both Democrats and Republicans. While my clients and I disagreed with the decision, we were not surprised. The decision of the Court was to uphold an act of the Legislature regarding property valuation. It was based upon United States Supreme Court precedent, of which we were fully aware when we argued the case. I firmly believe there is absolutely no reason to question Justice Owen's integrity based upon the decision in this case. Nor can any discernable pattern be seen in the 13 other Enron-related cases the Texas Supreme Court has heard during Justice Owen's tenure. Six of the 14 cases (including Spring I.S.D.) could be characterized as "favorable" to Enron (although three were simply decisions to deny review, and hence did not involve any analysis of the parties' rights and responsibilities). Five of the 14 cases could be characterized as "unfavorable" to Enron. And the remaining three EXT-18-2091-C-000251 007104-000972 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11 cases neither benefited nor harmed Enron. (Justice Owen did not participate in one of the three cases because her former law firm was involved in the litigation, and another case was dismissed by agreement of the parties.) On the same day the unanimous Spring I.S.D. decision was handed down, the Texas Supreme Court decided another tax-valuation case without recorded dissent: H.E. Butt Grocery Co. v. Jefferson County Appraisal District, 922 S.W.2d 941 (Tex. 1996). As was true of the Spring I.S.D. case, the HEB ruling was the unanimous and bipartisan decision of the Court. And, again like Spring I.S.D., HEB was based on two on-point decisions of the U.S. Supreme Court, as well as a ruling by another state's supreme court. In a closely divided HEB case handed down two years later, H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998), Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. In effect, the dissents sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." But when charging the jury in a lawsuit involving a man who slipped at an HEB grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. In fact, it had been long-settled Texas law that to tell jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, is to impermissibly tell them the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). The separate opinions thus were based on time-tested principles regarding the allocation of responsibilities among judges and juries. III. Conclusion Judged by any standard, Justice Priscilla Owen is a restrained, common-sense jurist with a deep and abiding commitment to deciding cases consistent with the rule of law. According to Al Gonzales, currently the White House Counsel and Justice Owen's former colleague on the Texas Supreme Court, Justice Owen "possesses exceptional integrity, character and intellect" and "extensive experience as a judge and lawyer in private practice." "She is an outstanding jurist and will perform superbly as a federal appeals court judge." DALLAS MORNING NEWS, July 16, 2002. As Gonzales knows from first-hand experience, Justice Owen disinterestedly follows the law wherever it leads including to rulings that benefit children, workers, consumers, and the environment because she takes seriously her obligation to adhere to the precedents of the U.S. Supreme Court, and to give effect to the choices of the people's representatives in the legislature. Moreover, Justice Owen has proven herself to be an unswerving champion of reforming the Texas judicial-selection system to preserve the integrity and independence of the courts. We enthusiastically support her nomination to the U.S. Court of Appeals for the Fifth Circuit, and call on the Senate to approve her immediately. EXT-18-2091-C-000252 007104-000973 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11 cases neither benefited nor harmed Enron. (Justice Owen did not participate in one of the three cases because her former law firm was involved in the litigation, and another case was dismissed by agreement of the parties.) On the same day the unanimous Spring I.S.D. decision was handed down, the Texas Supreme Court decided another tax-valuation case without recorded dissent: H.E. Butt Grocery Co. v. Jefferson County Appraisal District, 922 S.W.2d 941 (Tex. 1996). As was true of the Spring I.S.D. case, the HEB ruling was the unanimous and bipartisan decision of the Court. And, again like Spring I.S.D., HEB was based on two on-point decisions of the U.S. Supreme Court, as well as a ruling by another state's supreme court. In a closely divided HEB case handed down two years later, H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998), Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. In effect, the dissents sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." But when charging the jury in a lawsuit involving a man who slipped at an HEB grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. In fact, it had been long-settled Texas law that to tell jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, is to impermissibly tell them the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). The separate opinions thus were based on time-tested principles regarding the allocation of responsibilities among judges and juries. III. Conclusion Judged by any standard, Justice Priscilla Owen is a restrained, common-sense jurist with a deep and abiding commitment to deciding cases consistent with the rule of law. According to Al Gonzales, currently the White House Counsel and Justice Owen's former colleague on the Texas Supreme Court, Justice Owen "possesses exceptional integrity, character and intellect" and "extensive experience as a judge and lawyer in private practice." "She is an outstanding jurist and will perform superbly as a federal appeals court judge." DALLAS MORNING NEWS, July 16, 2002. As Gonzales knows from first-hand experience, Justice Owen disinterestedly follows the law wherever it leads including to rulings that benefit children, workers, consumers, and the environment because she takes seriously her obligation to adhere to the precedents of the U.S. Supreme Court, and to give effect to the choices of the people's representatives in the legislature. Moreover, Justice Owen has proven herself to be an unswerving champion of reforming the Texas judicial-selection system to preserve the integrity and independence of the courts. We enthusiastically support her nomination to the U.S. Court of Appeals for the Fifth Circuit, and call on the Senate to approve her immediately. EXT-18-2091-C-000252 007104-000973 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 Appendix City ofMcAllen v. De La Garza Landowner's Duty to Warn Allegation: Justice Owen, writing for the majority, held without oral argument, that the city had no duty to warn drivers of the roadside danger where there was a limestone pit at the side of a road. Facts: City ofMcAllen v. De La Garza, 898 S.W.2d 809 (Tex. 1995) % Justice Owen's opinion, joined by six other Justices, upheld the trial court's initial grant of summary judgment for defendant, which had been overturned by the Court of Appeals. % Justice Owen's opinion applied the First and Second Restatement of Torts, which had been relied upon by the Texas Supreme Court in numerous other settings, to the facts of this case. The Restatement makes clear that the town's duty of care only applied to passengers in the "ordinary course of travel." Travelers who "intentionally deviate[] from the highway for a purpose not reasonably connected with travel upon it" are not subject to a duty of care. u The decedent was a passenger in a vehicle driven by an intoxicated man (over the legal limit). The driver either blacked out or fell asleep, veered off the left side of the road onto adjoining land, traveled 100 feet, went through a wire fence (knocking over seven fence poles), traveled another 110 feet, became airborne, and landed in a limestone caliche pit. The decedent passenger was not wearing a safety belt. % The majority opinion did not hold that the defendant city owed no duty to decedent. In fact, it reestablished the principle that the city owed a duty of reasonable care to those traveling on the highway or those who foreseeably deviate from it in the ordinary course of travel. % Justice Owen examined numerous other cases on the subject from other jurisdictions and came to the conclusion that the trial court was correct. The driver, by driving while intoxicated, blacking out or falling asleep and driving through a fence, was "not traveling in the ordinary course of travel." Because of this conclusion, the court never reached the question of whether the placement of the city's caliche pit would violate a duty of care to travelers operating their vehicles in a proper fashion. % Justice Cornyn's dissent claimed that oral argument was necessary in the case. However, as Justice Owen noted in her opinion, the Texas Supreme Court had already established in a prior case the legal duty of reasonable care of landowners to travelers who deviate from an adjoining roadway onto the landowner's property. EXT-18-2091-C-000253 007104-000974 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 Appendix City ofMcAllen v. De La Garza Landowner's Duty to Warn Allegation: Justice Owen, writing for the majority, held without oral argument, that the city had no duty to warn drivers of the roadside danger where there was a limestone pit at the side of a road. Facts: City ofMcAllen v. De La Garza, 898 S.W.2d 809 (Tex. 1995) % Justice Owen's opinion, joined by six other Justices, upheld the trial court's initial grant of summary judgment for defendant, which had been overturned by the Court of Appeals. % Justice Owen's opinion applied the First and Second Restatement of Torts, which had been relied upon by the Texas Supreme Court in numerous other settings, to the facts of this case. The Restatement makes clear that the town's duty of care only applied to passengers in the "ordinary course of travel." Travelers who "intentionally deviate[] from the highway for a purpose not reasonably connected with travel upon it" are not subject to a duty of care. u The decedent was a passenger in a vehicle driven by an intoxicated man (over the legal limit). The driver either blacked out or fell asleep, veered off the left side of the road onto adjoining land, traveled 100 feet, went through a wire fence (knocking over seven fence poles), traveled another 110 feet, became airborne, and landed in a limestone caliche pit. The decedent passenger was not wearing a safety belt. % The majority opinion did not hold that the defendant city owed no duty to decedent. In fact, it reestablished the principle that the city owed a duty of reasonable care to those traveling on the highway or those who foreseeably deviate from it in the ordinary course of travel. % Justice Owen examined numerous other cases on the subject from other jurisdictions and came to the conclusion that the trial court was correct. The driver, by driving while intoxicated, blacking out or falling asleep and driving through a fence, was "not traveling in the ordinary course of travel." Because of this conclusion, the court never reached the question of whether the placement of the city's caliche pit would violate a duty of care to travelers operating their vehicles in a proper fashion. % Justice Cornyn's dissent claimed that oral argument was necessary in the case. However, as Justice Owen noted in her opinion, the Texas Supreme Court had already established in a prior case the legal duty of reasonable care of landowners to travelers who deviate from an adjoining roadway onto the landowner's property. EXT-18-2091-C-000253 007104-000974 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 13 Clayton W. Williams, Jr., Inc. v. Olivo Premises Defects/Workers Injuries Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court reversed the damage award to a man paralyzed in a fall from an oil rig, trumping the jury's factual findings. Facts: Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) % All nine Justices on the Texas Supreme Court - Democrats and Republicans alike - agreed that the plaintiff had sued under the wrong theory of law. Only one judge would have remanded for a new trial. % The plaintiff was an employee of an independent contractor and the injury resulted from a premises defect that the independent contractor created, unbeknownst to the general contractor -- the defendant in the case. u The Court reversed the jury award because the plaintiff sued the general contractor for negligence rather than obtaining jury answers about the premises defect as the law requires. u The opinion specifically noted that "there are no jury findings against Williams" on the issue of premises defects. % In their appeal to the Texas Supreme Court, the plaintiffs did not "complain, even conditionally, that the trial court should have submitted their proposed question" on premises defects elements to the jury, thus waiving that argument for appeal. % Issues regarding punitive damages were disposed of in the Court of Appeals and were not before the Texas Supreme Court. % The United States Supreme Court denied certiorari in the case. Bossley v. Dallas County Mental Health, 525 U.S. 1017 (1998). EXT-18-2091-C-000254 007104-000975 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 13 Clayton W. Williams, Jr., Inc. v. Olivo Premises Defects/Workers Injuries Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court reversed the damage award to a man paralyzed in a fall from an oil rig, trumping the jury's factual findings. Facts: Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) % All nine Justices on the Texas Supreme Court - Democrats and Republicans alike - agreed that the plaintiff had sued under the wrong theory of law. Only one judge would have remanded for a new trial. % The plaintiff was an employee of an independent contractor and the injury resulted from a premises defect that the independent contractor created, unbeknownst to the general contractor -- the defendant in the case. u The Court reversed the jury award because the plaintiff sued the general contractor for negligence rather than obtaining jury answers about the premises defect as the law requires. u The opinion specifically noted that "there are no jury findings against Williams" on the issue of premises defects. % In their appeal to the Texas Supreme Court, the plaintiffs did not "complain, even conditionally, that the trial court should have submitted their proposed question" on premises defects elements to the jury, thus waiving that argument for appeal. % Issues regarding punitive damages were disposed of in the Court of Appeals and were not before the Texas Supreme Court. % The United States Supreme Court denied certiorari in the case. Bossley v. Dallas County Mental Health, 525 U.S. 1017 (1998). EXT-18-2091-C-000254 007104-000975 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 Concord Oil Co. v. Pennzoil Exploration & Production Co. Contract Interpretation Allegation: In an plurality opinion authored by Justice Owen, the Texas Supreme Court reversed a trial court judgment in a contract dispute. Justice Owen found ambiguity in a contract in which there was no ambiguity, and in the process overturned a jury verdict. Facts: Concord Oil Co. v. Pennzoil Exploration & Production Co., 966 S.W.2d 451 (Tex. 1998) % This case concerned a 1937 minerals deed. The granting clause of the deed describes the interest conveyed as a 1/96 interest in minerals, but a subsequent clause stated that the conveyance covered and included 1/12 of all rentals and royalty of every kind and character. Concord Oil claimed through the grantee, and Pennzoil claimed an interest in a portion of the remainder of the estate. % At trial, the parties stipulated to the facts, and the trial court ruled in favor of Pennzoil. The case was tried by the court and not by a jury. No allegations that the decision usurped the power of the jury can be made. Additionally, since the parties stipulated to the operative facts, the trial court's decision was, in essence, a purely legal determination. % Justice Owen relied on controlling Texas Supreme Court precedent in overruling the trial court's legal determination. u In Luckel v. White, 819 S.W.2d 459, the Court recognized that the intent of the parties must be determined from what the expressed in the instrument, read as a whole, and that the labels given to clauses in a deed (e.g., "granting") would not be relied upon. u Justice Owen concluded that the only proper way to read the contract would be to find that the grantor intended to convey a 1/12 interest in the entire estate. u She followed Texas Supreme Court precedent that dealt with the arcane subject of the types of errors made in fractionation in the drafting of old mineral rights deeds. (Garrett v. Dils Co., 199 S.W.2d 904 (Tex. 1957)). % The dissenters in this case claimed that Justice Owen "complicate[d] the deed's plain language to create a false conflict." However, in her opinion, Justice Owen criticizes the dissent's approach, which would have awarded Concord Oil only 1/96th of the mineral estate (and 1/12 of all other rentals and royalties of the estate). u Justice Owen notes that there must have been a clear conflict in the deed, for a very simple reason: if the strict language of both clauses of the deed were followed, Concord Oil would end up with more than 1/12 of the mineral estate (1/96 of the mineral estate, plus 1/12 of the royalties of the mineral estate i.e., 9/96ths of the mineral estate). EXT-18-2091-C-000255 007104-000976 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 Concord Oil Co. v. Pennzoil Exploration & Production Co. Contract Interpretation Allegation: In an plurality opinion authored by Justice Owen, the Texas Supreme Court reversed a trial court judgment in a contract dispute. Justice Owen found ambiguity in a contract in which there was no ambiguity, and in the process overturned a jury verdict. Facts: Concord Oil Co. v. Pennzoil Exploration & Production Co., 966 S.W.2d 451 (Tex. 1998) % This case concerned a 1937 minerals deed. The granting clause of the deed describes the interest conveyed as a 1/96 interest in minerals, but a subsequent clause stated that the conveyance covered and included 1/12 of all rentals and royalty of every kind and character. Concord Oil claimed through the grantee, and Pennzoil claimed an interest in a portion of the remainder of the estate. % At trial, the parties stipulated to the facts, and the trial court ruled in favor of Pennzoil. The case was tried by the court and not by a jury. No allegations that the decision usurped the power of the jury can be made. Additionally, since the parties stipulated to the operative facts, the trial court's decision was, in essence, a purely legal determination. % Justice Owen relied on controlling Texas Supreme Court precedent in overruling the trial court's legal determination. u In Luckel v. White, 819 S.W.2d 459, the Court recognized that the intent of the parties must be determined from what the expressed in the instrument, read as a whole, and that the labels given to clauses in a deed (e.g., "granting") would not be relied upon. u Justice Owen concluded that the only proper way to read the contract would be to find that the grantor intended to convey a 1/12 interest in the entire estate. u She followed Texas Supreme Court precedent that dealt with the arcane subject of the types of errors made in fractionation in the drafting of old mineral rights deeds. (Garrett v. Dils Co., 199 S.W.2d 904 (Tex. 1957)). % The dissenters in this case claimed that Justice Owen "complicate[d] the deed's plain language to create a false conflict." However, in her opinion, Justice Owen criticizes the dissent's approach, which would have awarded Concord Oil only 1/96th of the mineral estate (and 1/12 of all other rentals and royalties of the estate). u Justice Owen notes that there must have been a clear conflict in the deed, for a very simple reason: if the strict language of both clauses of the deed were followed, Concord Oil would end up with more than 1/12 of the mineral estate (1/96 of the mineral estate, plus 1/12 of the royalties of the mineral estate i.e., 9/96ths of the mineral estate). EXT-18-2091-C-000255 007104-000976 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 Continental Coffee Products v. Cazarez Employment Law Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court reversed the award of $500,000 in punitive damages to a woman fired in retaliation for the filing of a workman's compensation claim. Facts: Continental Coffee Products v. Cazarez, 937 S.W.2d 444 (Tex. 1996) % All Texas Supreme Court Justices signed the unanimous and bipartisan opinion. % This trial was before a judge, not a jury, so no allegations that the decision usurped the power of the jury can be made. % The Supreme Court allowed the trial court's actual damages award of $150,000, but vacated the additional $500,000 punitive award as not permissible under clear Texas law, which requires a showing of actual malice to award punitive damages. % The plaintiff sued her employer and a manager for allegedly firing her in retaliation for filing a workers' compensation claim, alleging such retaliation violated state law. u % The Court denied the punitive damages claim because of the absence of evidence of ill-will, spite, or specific intent to cause the injury (actual malice). The Court noted that they "found nothing to indicate that the [Texas] Legislature intended that heightened conduct necessary for damages under the Texas Anti-Retaliation law may be implied from the employer's intentional wrongdoing" without a showing of actual malice. u The employer's agent who fired the plaintiff in this case "had never met [the plaintiff] before he fired her . . . , nor did he even review her file before the firing." This evidence was insufficient to show that the employer acted with "illwill, spite, or specific intent to cause the injury." EXT-18-2091-C-000256 007104-000977 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 Continental Coffee Products v. Cazarez Employment Law Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court reversed the award of $500,000 in punitive damages to a woman fired in retaliation for the filing of a workman's compensation claim. Facts: Continental Coffee Products v. Cazarez, 937 S.W.2d 444 (Tex. 1996) % All Texas Supreme Court Justices signed the unanimous and bipartisan opinion. % This trial was before a judge, not a jury, so no allegations that the decision usurped the power of the jury can be made. % The Supreme Court allowed the trial court's actual damages award of $150,000, but vacated the additional $500,000 punitive award as not permissible under clear Texas law, which requires a showing of actual malice to award punitive damages. % The plaintiff sued her employer and a manager for allegedly firing her in retaliation for filing a workers' compensation claim, alleging such retaliation violated state law. u % The Court denied the punitive damages claim because of the absence of evidence of ill-will, spite, or specific intent to cause the injury (actual malice). The Court noted that they "found nothing to indicate that the [Texas] Legislature intended that heightened conduct necessary for damages under the Texas Anti-Retaliation law may be implied from the employer's intentional wrongdoing" without a showing of actual malice. u The employer's agent who fired the plaintiff in this case "had never met [the plaintiff] before he fired her . . . , nor did he even review her file before the firing." This evidence was insufficient to show that the employer acted with "illwill, spite, or specific intent to cause the injury." EXT-18-2091-C-000256 007104-000977 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 Dallas County Mental Health v. Bossley Sovereign Immunity Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court barred the estate of a suicidal mental patient from collecting against defendant mental hospital. It found no causal link between the mental hospital leaving its doors open, and the patient escaping and killing himself. Facts: Dallas County Mental Health v. Bossley, 968 S.W.2d 339 (Tex. 1998) % This case concerned a deceased mental patient at a governmental mental health care facility. The patient had been recovering from a recent suicide attempt. The front door of the facility was normally kept locked by center employees. One day, when an employee was unlocking the door so as to permit herself to leave, the patient approached her, pushed her aside, and ran out of the facility. On foot, he led police on a mile-and-ahalf long chase before he jumped in front of a passing truck and was killed. % The trial court granted summary judgment for the government hospital based on sovereign immunity. The Texas legislature has proscribed that government immunity is waived only for "personal injury or death so caused by a condition or use of tangible or real property." % u Under Texas Supreme Court precedent, property does not cause injury if it does no more than furnish the condition that makes the injury possible. u Because the momentarily open door did not "cause" decedent's suicide under controlling Texas Supreme Court precedent, the Court agreed with the trial court that the claim was barred, reversing the Texas Court of Appeals. The majority went on to note that "[t]he real substance of plaintiff's complaint is that [decedent]'s death was caused, not by the condition or use of the property, but by the failure of [the government hospital]'s staff to restrain him once they learned he was suicidal." u Deferring to the decision made by the Texas legislature, the court stated, "The Tort Claims Act does not waive Dallas County['s] immunity from such a complaint." To have permitted decedent's claim to proceed, the Court would have had to ignore and reject the legislature's considered decision to bar such claims. EXT-18-2091-C-000257 007104-000978 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 Dallas County Mental Health v. Bossley Sovereign Immunity Allegation: In a majority opinion joined by Justice Owen, the Texas Supreme Court barred the estate of a suicidal mental patient from collecting against defendant mental hospital. It found no causal link between the mental hospital leaving its doors open, and the patient escaping and killing himself. Facts: Dallas County Mental Health v. Bossley, 968 S.W.2d 339 (Tex. 1998) % This case concerned a deceased mental patient at a governmental mental health care facility. The patient had been recovering from a recent suicide attempt. The front door of the facility was normally kept locked by center employees. One day, when an employee was unlocking the door so as to permit herself to leave, the patient approached her, pushed her aside, and ran out of the facility. On foot, he led police on a mile-and-ahalf long chase before he jumped in front of a passing truck and was killed. % The trial court granted summary judgment for the government hospital based on sovereign immunity. The Texas legislature has proscribed that government immunity is waived only for "personal injury or death so caused by a condition or use of tangible or real property." % u Under Texas Supreme Court precedent, property does not cause injury if it does no more than furnish the condition that makes the injury possible. u Because the momentarily open door did not "cause" decedent's suicide under controlling Texas Supreme Court precedent, the Court agreed with the trial court that the claim was barred, reversing the Texas Court of Appeals. The majority went on to note that "[t]he real substance of plaintiff's complaint is that [decedent]'s death was caused, not by the condition or use of the property, but by the failure of [the government hospital]'s staff to restrain him once they learned he was suicidal." u Deferring to the decision made by the Texas legislature, the court stated, "The Tort Claims Act does not waive Dallas County['s] immunity from such a complaint." To have permitted decedent's claim to proceed, the Court would have had to ignore and reject the legislature's considered decision to bar such claims. EXT-18-2091-C-000257 007104-000978 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 17 Dickinson Arms-Reo., L.P. v. Campbell Landlord Liability for Crimes Allegation: Justice Owen joined a dissent from the denial of petition for review that would have reviewed (likely to overturn) a court of appeals opinion that held an apartment complex owner liable for a murder on his property. Facts: Dickinson Arms-Reo., L.P. v. Campbell, 35 S.W.3d 633 (Tex. 2000). % % The dissent sought to apply Supreme Court of Texas precedent to this case to determine whether third-party criminal conduct is foreseeable so that an owner must anticipate and protect others against that criminal conduct. u A visitor to an apartment complex was shot and killed in the parking lot while waiting in his truck by another visitor who had left a party at the complex. The owner of the complex was held liable at the trial court. u There was a dissent in the court of appeals and two justices dissented from the refusal to grant a hearing en banc. The dissent from the denial of petition for review noted that there was no evidence of the type of crime that would support a judgment in this case. There had not been a murder in the entire town in years, and no murder at this apartment complex ever. u % Additionally, although there had been reports of crime at the complex, there had been no reports of "violent crimes" (as defined by the FBI) at the complex in the three-and-a-half years before the incident in question. The dissent also noted that a grant of review was necessary to resolve conflicts in the Texas lower courts, which were "troubled" over the issue of the extent to which a landowner may be liable for a crime committed on his or her premises. EXT-18-2091-C-000258 007104-000979 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 17 Dickinson Arms-Reo., L.P. v. Campbell Landlord Liability for Crimes Allegation: Justice Owen joined a dissent from the denial of petition for review that would have reviewed (likely to overturn) a court of appeals opinion that held an apartment complex owner liable for a murder on his property. Facts: Dickinson Arms-Reo., L.P. v. Campbell, 35 S.W.3d 633 (Tex. 2000). % % The dissent sought to apply Supreme Court of Texas precedent to this case to determine whether third-party criminal conduct is foreseeable so that an owner must anticipate and protect others against that criminal conduct. u A visitor to an apartment complex was shot and killed in the parking lot while waiting in his truck by another visitor who had left a party at the complex. The owner of the complex was held liable at the trial court. u There was a dissent in the court of appeals and two justices dissented from the refusal to grant a hearing en banc. The dissent from the denial of petition for review noted that there was no evidence of the type of crime that would support a judgment in this case. There had not been a murder in the entire town in years, and no murder at this apartment complex ever. u % Additionally, although there had been reports of crime at the complex, there had been no reports of "violent crimes" (as defined by the FBI) at the complex in the three-and-a-half years before the incident in question. The dissent also noted that a grant of review was necessary to resolve conflicts in the Texas lower courts, which were "troubled" over the issue of the extent to which a landowner may be liable for a crime committed on his or her premises. EXT-18-2091-C-000258 007104-000979 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18 Enron Corp. v. Spring Independent School District Valuation of Property for Tax Purposes Allegation: "Both opinions overturned lower appeals court rulings against Enron and both occurred in 1996, two years after Owen and consultant Karl Rove raised $8,600 from Enron's PAC and executives. In the court's first Enron ruling, Owen wrote a unanimous opinion that prevented Enron from having to pay $224,989 in school taxes." Facts: Enron Corp. v. Spring Independent School District, 922 S.W.2d 931 (Tex. 1996) ? ? The unanimous Texas Supreme Court, Republicans and Democrats alike, applied two arcane rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. u The specific issue was whether the Texas legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. u The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). The lawyer for the losing school district recently wrote the Senate Judiciary Committee to dispel any suggestion that the Court was influenced in its rulings by the campaign contributions its members received: u "I have been disturbed by the suggestions that Justice Priscilla Owen's decision in this case was influenced by the campaign contributions she received from Enron Employees. I personally believe that such suggestions are nonsense. Justice Owen authored the opinion of a unanimous court consisting of both Democrats and Republicans. While my clients and I disagreed with the decision, we were not surprised. The decision of the Court was to uphold an act of the Legislature regarding property valuation. It was based upon United States Supreme Court precedent, of which we were fully aware when we argued the case. I firmly believe there is absolutely no reason to question Justice Owen's integrity based upon the decision in this case." ? No discernable pattern can be seen in the 14 Enron-related cases the Texas Supreme Court has heard during Justice Owen's tenure. ? Six of the 14 cases could be characterized as "favorable" to Enron. Five of the 14 cases could be characterized as "unfavorable" to Enron. And the remaining three cases neither benefited nor harmed Enron. EXT-18-2091-C-000259 007104-000980 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18 Enron Corp. v. Spring Independent School District Valuation of Property for Tax Purposes Allegation: "Both opinions overturned lower appeals court rulings against Enron and both occurred in 1996, two years after Owen and consultant Karl Rove raised $8,600 from Enron's PAC and executives. In the court's first Enron ruling, Owen wrote a unanimous opinion that prevented Enron from having to pay $224,989 in school taxes." Facts: Enron Corp. v. Spring Independent School District, 922 S.W.2d 931 (Tex. 1996) O O The unanimous Texas Supreme Court, Republicans and Democrats alike, applied two arcane rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. u The specific issue was whether the Texas legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. u The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). The lawyer for the losing school district recently wrote the Senate Judiciary Committee to dispel any suggestion that the Court was influenced in its rulings by the campaign contributions its members received: u "I have been disturbed by the suggestions that Justice Priscilla Owen's decision in this case was influenced by the campaign contributions she received from Enron Employees. I personally believe that such suggestions are nonsense. Justice Owen authored the opinion of a unanimous court consisting of both Democrats and Republicans. While my clients and I disagreed with the decision, we were not surprised. The decision of the Court was to uphold an act of the Legislature regarding property valuation. It was based upon United States Supreme Court precedent, of which we were fully aware when we argued the case. I firmly believe there is absolutely no reason to question Justice Owen's integrity based upon the decision in this case." O No discernable pattern can be seen in the 14 Enron-related cases the Texas Supreme Court has heard during Justice Owen's tenure. O Six of the 14 cases could be characterized as "favorable" to Enron. Five of the 14 cases could be characterized as "unfavorable" to Enron. And the remaining three cases neither benefited nor harmed Enron. EXT-18-2091-C-000259 007104-000980 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19 Ford Motor Co. v. Miles Remand for New Trial in Proper Venue Allegation: "Owen's activist plurality opinion in Ford Motor Co. v. Miles overturned a $40 million jury verdict, a court of appeals affirmance and years of well-established venue precedents. Although the court did not grant review on the venue issue (which had not been argued or briefed), Owen's opinion nevertheless reversed and remanded on this issue." Facts: Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) ? A bipartisan majority of the Texas Supreme Court held that the lawsuit, which arose out of a car accident, was filed in the wrong county, and therefore remanded for transfer and a new trial in a different county. u The Court concluded that the plaintiffs should have filed suit in Dallas County (where the plaintiffs lived, the car was purchased, and the accident occurred), rather than Rusk County (where an unrelated Ford dealership was located). u Indeed, the plaintiffs even "concede[d] that the Rusk County dealership has no connection with the collision or to the Ranger." Id. at 379. u The dissenting Justices agreed that the majority "cite[d] the correct standard of review for venue determinations," and disagreed only as to the proper application of that standard. ? The decision did not eliminate the plaintiffs' ability to sue for the injuries they had suffered; it simply ordered that the case be reassigned to the appropriate venue. See id. at 389 ("remand[ing] this case to the trial court for transfer to Dallas County and a new trial.") ? Both the majority and the dissent agreed that it was appropriate to resolve the venue issue. No member argued that the Court should not consider whether venue was appropriate. ? Justice Owen's majority opinion was joined by Justices from both major political parties. EXT-18-2091-C-000260 007104-000981 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19 Ford Motor Co. v. Miles Remand for New Trial in Proper Venue Allegation: "Owen's activist plurality opinion in Ford Motor Co. v. Miles overturned a $40 million jury verdict, a court of appeals affirmance and years of well-established venue precedents. Although the court did not grant review on the venue issue (which had not been argued or briefed), Owen's opinion nevertheless reversed and remanded on this issue." Facts: Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998) O A bipartisan majority of the Texas Supreme Court held that the lawsuit, which arose out of a car accident, was filed in the wrong county, and therefore remanded for transfer and a new trial in a different county. u The Court concluded that the plaintiffs should have filed suit in Dallas County (where the plaintiffs lived, the car was purchased, and the accident occurred), rather than Rusk County (where an unrelated Ford dealership was located). u Indeed, the plaintiffs even "concede[d] that the Rusk County dealership has no connection with the collision or to the Ranger." Id. at 379. u The dissenting Justices agreed that the majority "cite[d] the correct standard of review for venue determinations," and disagreed only as to the proper application of that standard. O The decision did not eliminate the plaintiffs' ability to sue for the injuries they had suffered; it simply ordered that the case be reassigned to the appropriate venue. See id. at 389 ("remand[ing] this case to the trial court for transfer to Dallas County and a new trial.") O Both the majority and the dissent agreed that it was appropriate to resolve the venue issue. No member argued that the Court should not consider whether venue was appropriate. O Justice Owen's majority opinion was joined by Justices from both major political parties. EXT-18-2091-C-000260 007104-000981 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 20 FM Properties Operating Co. v. City ofAustin Deferring to Legislative Policy Choices Allegation: "In a test of the constitutionality of a state law tailored to exempt a specific land developer from the City of Austin's water quality rules, Owen wrote a forceful dissent that decried the majority for finding this special-interest statute unconstitutional (FM Properties Operating Co. v. City ofAustin). The dissenting Owen, who received $2,500 in campaign contributions from the same developer and $45,000 from the developer's attorneys, criticized the majority for curtailing the developer's private property rights." Facts: FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) O Justice Owen dissented from the majority's decision that a Texas law, which allowed landowners to designate their property as "water quality protection zones," was an unconstitutional delegation of legislative power. u O The Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation. u "How the Legislature chooses to regulate is left to the Legislature, not this Court." u The majority's decision to invalidate the law "usurps authority that is reserved to another branch of government the Legislature." O Justice Owen rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. O Texas Attorney General Dan Morales, a Democrat, had intervened in the proceedings to defend the law's constitutionality. EXT-18-2091-C-000261 007104-000982 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 20 FM Properties Operating Co. v. City ofAustin Deferring to Legislative Policy Choices Allegation: "In a test of the constitutionality of a state law tailored to exempt a specific land developer from the City of Austin's water quality rules, Owen wrote a forceful dissent that decried the majority for finding this special-interest statute unconstitutional (FM Properties Operating Co. v. City ofAustin). The dissenting Owen, who received $2,500 in campaign contributions from the same developer and $45,000 from the developer's attorneys, criticized the majority for curtailing the developer's private property rights." Facts: FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) ? Justice Owen dissented from the majority's decision that a Texas law, which allowed landowners to designate their property as "water quality protection zones," was an unconstitutional delegation of legislative power. u ? The Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation. u "How the Legislature chooses to regulate is left to the Legislature, not this Court." u The majority's decision to invalidate the law "usurps authority that is reserved to another branch of government the Legislature." ? Justice Owen rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. ? Texas Attorney General Dan Morales, a Democrat, had intervened in the proceedings to defend the law's constitutionality. EXT-18-2091-C-000261 007104-000982 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 21 Grain Dealers Mutual Insurance Co. v. McKee Insurer's Contractual Right to Deny a Claim Allegation: Refusing to let a jury decide the issue, Justice Owen reversed both the trial court and the appellate court deciding that the insurer, a contributor to Justice Owen's campaign, was entitled to summary judgment on the issue of whether Mr. McKee's daughter, who was injured in an automobile accident, was covered by an insurance policy issued to a company owned by Mr. McKee. Facts: Grain Dealers Mutual Insurance Co. v. McKee, 943 S.W.2d 455 (Tex. 1997) & Mr. McKee wanted to recover for injuries to his daughter the underinsured/uninsured motorists coverage and the personal injury protection coverage from an insurance policy issued to his corporation. Mr. McKee's daughter was injured in a one-car accident, in which her step sister was driving a car not insured by Mr. McKee. The car was owned by her step-sister's husband, not by Mr. McKee's business. u & & In addition to suing his company's insurer, Mr. McKee also sued his personal automobile insurance carrier and the step sister of his injured daughter, both of whom settled and provided recovery for the eleven year old daughter of Mr. McKee. The court held that the insurance policy was unambiguous and that the daughter was not a designated person or a family member under the policy. u As the sole shareholder of Future Investments, Mr. McKee was responsible for the insurance policy that the company obtained, which insured only the company, any family members of the company (of which a corporate entity has none), any designated persons designated by the insured company, and their family members. u Mr. McKee failed to designate himself or any family members; thus, the insurance coverage applied only to the corporate entity and any property owned by it. u The court found that the child would have been covered as passenger in a covered auto or as family member of a designated person, if her father, the president of the company, had been designated on the policy. Most, if not all, jurisdictions leave interpretation of an insurance contract to the courts and not to juries, unless the contract is ambiguous. u Although the trial court and appellate court's concluded that the contract's provision for coverage for "family members" was ambiguous, the Texas Supreme Court, with only one dissenting member, disagreed based on well established law that a corporation is a separate and distinct entity from its shareholders and that EXT-18-2091-C-000262 007104-000983 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 21 Grain Dealers Mutual Insurance Co. v. McKee Insurer's Contractual Right to Deny a Claim Allegation: Refusing to let a jury decide the issue, Justice Owen reversed both the trial court and the appellate court deciding that the insurer, a contributor to Justice Owen's campaign, was entitled to summary judgment on the issue of whether Mr. McKee's daughter, who was injured in an automobile accident, was covered by an insurance policy issued to a company owned by Mr. McKee. Facts: Grain Dealers Mutual Insurance Co. v. McKee, 943 S.W.2d 455 (Tex. 1997) & Mr. McKee wanted to recover for injuries to his daughter the underinsured/uninsured motorists coverage and the personal injury protection coverage from an insurance policy issued to his corporation. Mr. McKee's daughter was injured in a one-car accident, in which her step sister was driving a car not insured by Mr. McKee. The car was owned by her step-sister's husband, not by Mr. McKee's business. u & & In addition to suing his company's insurer, Mr. McKee also sued his personal automobile insurance carrier and the step sister of his injured daughter, both of whom settled and provided recovery for the eleven year old daughter of Mr. McKee. The court held that the insurance policy was unambiguous and that the daughter was not a designated person or a family member under the policy. u As the sole shareholder of Future Investments, Mr. McKee was responsible for the insurance policy that the company obtained, which insured only the company, any family members of the company (of which a corporate entity has none), any designated persons designated by the insured company, and their family members. u Mr. McKee failed to designate himself or any family members; thus, the insurance coverage applied only to the corporate entity and any property owned by it. u The court found that the child would have been covered as passenger in a covered auto or as family member of a designated person, if her father, the president of the company, had been designated on the policy. Most, if not all, jurisdictions leave interpretation of an insurance contract to the courts and not to juries, unless the contract is ambiguous. u Although the trial court and appellate court's concluded that the contract's provision for coverage for "family members" was ambiguous, the Texas Supreme Court, with only one dissenting member, disagreed based on well established law that a corporation is a separate and distinct entity from its shareholders and that EXT-18-2091-C-000262 007104-000983 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 22 the contract used in this case was a form contract and not tailored to the relationship between Grain Dealers and Future Investments. & & Addressing an issue of insurance contract interpretation similar to the one in this case, over 10 other jurisdictions, a majority of courts to decide the issue, agreed with the Texas Supreme Court's conclusion. u The courts agreeing with the Texas Supreme Court included state and federal courts and courts located across the country, including Pennsylvania, Florida, Georgia, Illinois, Indiana, Massachusetts, New Hampshire, New York, North Carolina, Oregon, and Washington. u Only courts in Montana, Connecticut, Colorado, Minnesota and Ohio could be said to have disagreed with the Texas Supreme Court's rationale. Justice Owen did not author this opinion, but merely joined all but one of her colleagues in applying settled Texas law to the interpretation of a contract. EXT-18-2091-C-000263 007104-000984 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 22 the contract used in this case was a form contract and not tailored to the relationship between Grain Dealers and Future Investments. & & Addressing an issue of insurance contract interpretation similar to the one in this case, over 10 other jurisdictions, a majority of courts to decide the issue, agreed with the Texas Supreme Court's conclusion. u The courts agreeing with the Texas Supreme Court included state and federal courts and courts located across the country, including Pennsylvania, Florida, Georgia, Illinois, Indiana, Massachusetts, New Hampshire, New York, North Carolina, Oregon, and Washington. u Only courts in Montana, Connecticut, Colorado, Minnesota and Ohio could be said to have disagreed with the Texas Supreme Court's rationale. Justice Owen did not author this opinion, but merely joined all but one of her colleagues in applying settled Texas law to the interpretation of a contract. EXT-18-2091-C-000263 007104-000984 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 23 GTE Southwest, Inc. v. Bruce, et al. Intentional Infliction of Emotional Distress Allegation: Justice Owen refused to qualify profanity, bullying, and harassing behavior as rising to the level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. Facts: GTE Southwest, Inc. v. Bruce, et al., 998 S.W.2d 605 (Tex. 1999) & In a unanimous result, with which Justice Owen concurred, the Texas Supreme Court affirmed the court of appeals decision to uphold a jury verdict against GTE in favor of three employees on their claims for intentional infliction of emotional distress, who suffered extreme abuse at the hands of their supervisor, including physical threats and sexual harassment. & Voting in favor of these employees, Justice Owen disagreed with GTE's contention that the employees' injuries were compensable through workers' compensation, which would have limited their recovery to statutory levels and would have barred this suit. & Justice Owen also disagreed with other claims of GTE, including its claim that the statute of limitations barred the plaintiff employees' claim. & In a brief concurrence, Justice Owen wrote only to explain that much of the supervisor's actions in this case, such as the mere use of profanity, yelling, and making threats of termination were not, by themselves or categorically, extreme enough to support a claim of intentional infliction of emotional distress. & In this case, Justice Owen voted against the appeal of GTE, from whose "Good Government Club" Justice Owen had received $1,000, concluding that the abuse suffered by these employees was enough to support the claim. EXT-18-2091-C-000264 007104-000985 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 23 GTE Southwest, Inc. v. Bruce, et al. Intentional Infliction of Emotional Distress Allegation: Justice Owen refused to qualify profanity, bullying, and harassing behavior as rising to the level of extreme and outrageous conduct necessary to support a claim for intentional infliction of emotional distress. Facts: GTE Southwest, Inc. v. Bruce, et al., 998 S.W.2d 605 (Tex. 1999) & In a unanimous result, with which Justice Owen concurred, the Texas Supreme Court affirmed the court of appeals decision to uphold a jury verdict against GTE in favor of three employees on their claims for intentional infliction of emotional distress, who suffered extreme abuse at the hands of their supervisor, including physical threats and sexual harassment. & Voting in favor of these employees, Justice Owen disagreed with GTE's contention that the employees' injuries were compensable through workers' compensation, which would have limited their recovery to statutory levels and would have barred this suit. & Justice Owen also disagreed with other claims of GTE, including its claim that the statute of limitations barred the plaintiff employees' claim. & In a brief concurrence, Justice Owen wrote only to explain that much of the supervisor's actions in this case, such as the mere use of profanity, yelling, and making threats of termination were not, by themselves or categorically, extreme enough to support a claim of intentional infliction of emotional distress. & In this case, Justice Owen voted against the appeal of GTE, from whose "Good Government Club" Justice Owen had received $1,000, concluding that the abuse suffered by these employees was enough to support the claim. EXT-18-2091-C-000264 007104-000985 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 24 Gunn Infiniti, Inc. v. O'Byrne Deceptive Trade Practices Act Allegation: Justice Owen, in an activist opinion, determined that insufficient evidence existed for the jury's verdict in favor of the plaintiff under the Texas Deceptive Trade Practices Act. Facts: Gunn Infiniti, Inc. v. O'Byrne, 996 S.W. 2d 854 (Tex. 1999) & The plaintiff, a resident of Louisiana, purchased an Infiniti automobile from a Texas dealership. The dealership assured the plaintiff that the car had never been wrecked, an assertion that turned to be false. When the plaintiff inquired after the vehicle's purchase, the dealership admitted the car had been wrecked and offered a number of options to the plaintiff, including at one point a full refund. The plaintiff refused the offers, choosing to sue under the Texas Deceptive Trade Practices Act, which permitted additional damages. & A jury found in favor of the plaintiff and awarded him $10,500 to make him whole with respect to the car purchase, plus $11,000 for mental anguish and $50,000 in additional damages under the TDTPA. & Justice Owen, writing for all but one member of the court, reversed only with respect to the mental anguish damages, which in turn reduced by a fraction the additional damages, which under the Act must be tied to total recovery awarded to the plaintiff. Thus, once mental anguish damages are eliminated the appeals court was directed to reassess these additional damages. & Every day appellate courts determine the legal sufficiency of the evidence heard by juries. Evidence of the plaintiff's mental anguish came largely from his own testimony, which reflected the true reason for his mental anguish was unrelated to any misrepresentation of the dealership, but was instead due to the reaction of the plaintiff's friends to his having purchased an Infiniti. u The plaintiff testified that "my friends pick on me a lot." u He further testified that this activity of his friends took the form of their telling him, even before he purchased the car, that he should not buy an Infiniti. u Since his mental anguish was unconnected to the defendant's conduct, the damages awarded on this claim could not under the law be permitted to stand. EXT-18-2091-C-000265 007104-000986 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 24 Gunn Infiniti, Inc. v. O'Byrne Deceptive Trade Practices Act Allegation: Justice Owen, in an activist opinion, determined that insufficient evidence existed for the jury's verdict in favor of the plaintiff under the Texas Deceptive Trade Practices Act. Facts: Gunn Infiniti, Inc. v. O'Byrne, 996 S.W. 2d 854 (Tex. 1999) & The plaintiff, a resident of Louisiana, purchased an Infiniti automobile from a Texas dealership. The dealership assured the plaintiff that the car had never been wrecked, an assertion that turned to be false. When the plaintiff inquired after the vehicle's purchase, the dealership admitted the car had been wrecked and offered a number of options to the plaintiff, including at one point a full refund. The plaintiff refused the offers, choosing to sue under the Texas Deceptive Trade Practices Act, which permitted additional damages. & A jury found in favor of the plaintiff and awarded him $10,500 to make him whole with respect to the car purchase, plus $11,000 for mental anguish and $50,000 in additional damages under the TDTPA. & Justice Owen, writing for all but one member of the court, reversed only with respect to the mental anguish damages, which in turn reduced by a fraction the additional damages, which under the Act must be tied to total recovery awarded to the plaintiff. Thus, once mental anguish damages are eliminated the appeals court was directed to reassess these additional damages. & Every day appellate courts determine the legal sufficiency of the evidence heard by juries. Evidence of the plaintiff's mental anguish came largely from his own testimony, which reflected the true reason for his mental anguish was unrelated to any misrepresentation of the dealership, but was instead due to the reaction of the plaintiff's friends to his having purchased an Infiniti. u The plaintiff testified that "my friends pick on me a lot." u He further testified that this activity of his friends took the form of their telling him, even before he purchased the car, that he should not buy an Infiniti. u Since his mental anguish was unconnected to the defendant's conduct, the damages awarded on this claim could not under the law be permitted to stand. EXT-18-2091-C-000265 007104-000986 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25 Haynes & Boone v. Bowser Bouldin Assessing Damages for Legal Malpractice Allegation: Justice Owen overturned a jury award of damages stemming from a legal malpractice suit against a law firm from which she received over $16,000 in contributions. Facts: Haynes & Boone v. Bowser Bouldin, 896 S.W.2d 179 (Tex. 1995) & Justice Owen joined a unanimous decision in which the court upheld the finding of legal malpractice but reversed a judgment of $4.4 million due to the lack of evidence to support the finding. & The damage award to Bouldin (which was overturned by the Court) was based on the loss of investment from the foreclosure on a mall, not from the loss of the lease with a particular store -- Blockbuster. It was therefore necessary for Bouldin to prove not only that Haynes & Boone's representation was deficient, but that the loss of the litigation against Blockbuster was the reason that the entire mall project was subsequently foreclosed upon. & The unanimous court in this case, applying Texas law on producing cause, logically concluded that the loss of the suit with Blockbuster, which Haynes & Boone was responsible for, was not the same thing as the loss of Blockbuster as a tenant. Indeed, it was undisputed that Blockbuster intended to quit the premises before the Haynes & Boone associate who performed deficiently was ever even retained. & Unable to prove that the loss of the litigation against Blockbuster led to the foreclosure, the damages awarded to Bouldin legally could not be sustained. EXT-18-2091-C-000266 007104-000987 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25 Haynes & Boone v. Bowser Bouldin Assessing Damages for Legal Malpractice Allegation: Justice Owen overturned a jury award of damages stemming from a legal malpractice suit against a law firm from which she received over $16,000 in contributions. Facts: Haynes & Boone v. Bowser Bouldin, 896 S.W.2d 179 (Tex. 1995) & Justice Owen joined a unanimous decision in which the court upheld the finding of legal malpractice but reversed a judgment of $4.4 million due to the lack of evidence to support the finding. & The damage award to Bouldin (which was overturned by the Court) was based on the loss of investment from the foreclosure on a mall, not from the loss of the lease with a particular store -- Blockbuster. It was therefore necessary for Bouldin to prove not only that Haynes & Boone's representation was deficient, but that the loss of the litigation against Blockbuster was the reason that the entire mall project was subsequently foreclosed upon. & The unanimous court in this case, applying Texas law on producing cause, logically concluded that the loss of the suit with Blockbuster, which Haynes & Boone was responsible for, was not the same thing as the loss of Blockbuster as a tenant. Indeed, it was undisputed that Blockbuster intended to quit the premises before the Haynes & Boone associate who performed deficiently was ever even retained. & Unable to prove that the loss of the litigation against Blockbuster led to the foreclosure, the damages awarded to Bouldin legally could not be sustained. EXT-18-2091-C-000266 007104-000987 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 26 H.E. Butt Grocery Co. v. Bilotto Jury Charges Allegation: "In HEB Grocery Co. v. Vinnie Bilotto, an appeals court and a Supreme Court majority both affirmed a trial court judgment that granted $91,000 in actual damages to a customer who was injured in a grocery store fall. Owen joined two dissents in the case that argued that damages questions to the jury should not have been predicated on the degree of negligence attributed to the defendant." Facts: H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998) O Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. u Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." u When charging the jury in a lawsuit involving a man who slipped at a grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. u Under long-settled Texas law, telling jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, impermissibly advises them about the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). O In effect, the dissent sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. EXT-18-2091-C-000267 007104-000988 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 26 H.E. Butt Grocery Co. v. Bilotto Jury Charges Allegation: "In HEB Grocery Co. v. Vinnie Bilotto, an appeals court and a Supreme Court majority both affirmed a trial court judgment that granted $91,000 in actual damages to a customer who was injured in a grocery store fall. Owen joined two dissents in the case that argued that damages questions to the jury should not have been predicated on the degree of negligence attributed to the defendant." Facts: H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998) ? Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. u Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." u When charging the jury in a lawsuit involving a man who slipped at a grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. u Under long-settled Texas law, telling jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, impermissibly advises them about the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). ? In effect, the dissent sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. EXT-18-2091-C-000267 007104-000988 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 27 H.E. Butt Grocery Co. v. Jefferson County Appraisal District Valuation of Property for Tax Purposes Allegation: "HEB Grocery Co. v. Jefferson County allowed a grocery store chain to pay taxes on just one of six stores that it operated in Jefferson County. This decision benefited HEB Chair Charles Butt, who has hosted fundraisers for justices in his home and who was the justices' second-largest individual donor at the time. The Butt family had given the justices $53,098, including $2,000 to Owen." Facts: H.E. Butt Grocery Co. v. Jefferson County Appraisal District, 922 S.W.2d 941 (Tex. 1996) O In HEB, the Court simply applied its ruling in Enron Spring Independent School, which was handed down on the same day. As was true in Spring Independent School case, the HEB ruling was the unanimous and bipartisan decision of the Court. O The Texas Supreme Court applied two arcane rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. u The specific issue was whether the Texas legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. u The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). EXT-18-2091-C-000268 007104-000989 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 27 H.E. Butt Grocery Co. v. Jefferson County Appraisal District Valuation of Property for Tax Purposes Allegation: "HEB Grocery Co. v. Jefferson County allowed a grocery store chain to pay taxes on just one of six stores that it operated in Jefferson County. This decision benefited HEB Chair Charles Butt, who has hosted fundraisers for justices in his home and who was the justices' second-largest individual donor at the time. The Butt family had given the justices $53,098, including $2,000 to Owen." Facts: H.E. Butt Grocery Co. v. Jefferson County Appraisal District, 922 S.W.2d 941 (Tex. 1996) ? In HEB, the Court simply applied its ruling in Enron Spring Independent School, which was handed down on the same day. As was true in Spring Independent School case, the HEB ruling was the unanimous and bipartisan decision of the Court. ? The Texas Supreme Court applied two arcane rulings of the U.S. Supreme Court to determine the manner in which business property should be valued for tax purposes. u The specific issue was whether the Texas legislature violated the state constitution when it enacted a law that allowed business to choose whether their inventories will be valued for tax purposes on January 1 or September 1. u The Court concluded that the statute passed constitutional muster, in large measure by applying the U.S. Supreme Court's decisions in Thomas v. Gay, 169 U.S. 264 (1897), and Shotwell v. Moore, 129 U.S. 590 (1889). EXT-18-2091-C-000268 007104-000989 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 28 Hernandez v. Tokai Corp. Child Safety and Product Liability Allegation: Owen joined a majority opinion that severely curtails the responsibility of manufacturers to incorporate child safety into the design of products intended for adult use. Facts: Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999) & A federal trial court had granted the defendant's motion for summary judgment thereby not allowing the matter to go to a jury. & However, the Fifth Circuit Court of Appeals, seeking clarification of Texas law on this matter, certified the question to the Supreme Court of Texas to see whether a defectivedesign products liability claim could be maintained. & Contrary to the allegation, a unanimous court rejected the product manufacturer's argument that it could not be held liable. Instead, what the Supreme Court of Texas found was that such a claim could indeed be maintained and applying both statutory and common law, the proper analysis in deciding upon such issues was to engage in a riskutility analysis. u As stated by the Court, this analysis includes considerations of the intended users of the product, safer alternative designs, whether the design defect makes the product unreasonably dangerous, and whether the defect is the producing cause of the injury. u The court rejected the manufacturer's argument that it had no duty to make its product child resistant if it was intended only for adult use. EXT-18-2091-C-000269 007104-000990 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 28 Hernandez v. Tokai Corp. Child Safety and Product Liability Allegation: Owen joined a majority opinion that severely curtails the responsibility of manufacturers to incorporate child safety into the design of products intended for adult use. Facts: Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999) & A federal trial court had granted the defendant's motion for summary judgment thereby not allowing the matter to go to a jury. & However, the Fifth Circuit Court of Appeals, seeking clarification of Texas law on this matter, certified the question to the Supreme Court of Texas to see whether a defectivedesign products liability claim could be maintained. & Contrary to the allegation, a unanimous court rejected the product manufacturer's argument that it could not be held liable. Instead, what the Supreme Court of Texas found was that such a claim could indeed be maintained and applying both statutory and common law, the proper analysis in deciding upon such issues was to engage in a riskutility analysis. u As stated by the Court, this analysis includes considerations of the intended users of the product, safer alternative designs, whether the design defect makes the product unreasonably dangerous, and whether the defect is the producing cause of the injury. u The court rejected the manufacturer's argument that it had no duty to make its product child resistant if it was intended only for adult use. EXT-18-2091-C-000269 007104-000990 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 29 In Re City of Georgetown Confidential Government Reports Allegation: "In this opinion, Owen rewrote the Texas Public Information Act to block the media from seeing an engineering report that a city commissioned in response to a lawsuit over sewage discharges. To reach this result, Owen had to overrule the trial court and the state Attorney General and plowed under statutory language that said that the courts could not bar from disclosure any information that is not expressly made confidential by the statute." Facts: In re City ofGeorgetown, 53 S.W.3d 328 (Tex. 2001) ? Justice Owen's six-member majority concluded that Texas law did not require a city to disclose a report that was covered by the attorney-client and work-product privileges. In doing so, Justice Owen deferred to and applied the precedents of the U.S. Supreme Court, as well as Texas's rules of evidence and civil procedure. ? Texas law specifically provides that cities need not disclose to the public "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." TEX. GOV' T CODE ? 552.103(a). u ? Georgetown prepared the report in connection with two then-pending lawsuits over discharges at a water treatment plant, and expected to be named in several other suits. Texas law also allows cities to keep private any information that is "expressly confidential under other law." Id. ? 552.022(a). u The Texas rules of evidence and civil procedure both specifically deem certain work product and certain attorney-client communications including the report at issue in the case to be confidential. u Justice Owen interpreted the phrase "expressly confidential under other law" in light of Norfolk & Western Railway v. American Train Dispatchers Association, 499 U.S. 117 (1991). u Justice Owen also relied on the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947), where the Court recognized the confidentiality of work product prepared in anticipation of litigation. EXT-18-2091-C-000270 007104-000991 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 29 In Re City of Georgetown Confidential Government Reports Allegation: "In this opinion, Owen rewrote the Texas Public Information Act to block the media from seeing an engineering report that a city commissioned in response to a lawsuit over sewage discharges. To reach this result, Owen had to overrule the trial court and the state Attorney General and plowed under statutory language that said that the courts could not bar from disclosure any information that is not expressly made confidential by the statute." Facts: In re City ofGeorgetown, 53 S.W.3d 328 (Tex. 2001) O Justice Owen's six-member majority concluded that Texas law did not require a city to disclose a report that was covered by the attorney-client and work-product privileges. In doing so, Justice Owen deferred to and applied the precedents of the U.S. Supreme Court, as well as Texas's rules of evidence and civil procedure. O Texas law specifically provides that cities need not disclose to the public "information relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party." TEX. GOV' T CODE ? 552.103(a). u O Georgetown prepared the report in connection with two then-pending lawsuits over discharges at a water treatment plant, and expected to be named in several other suits. Texas law also allows cities to keep private any information that is "expressly confidential under other law." Id. ? 552.022(a). u The Texas rules of evidence and civil procedure both specifically deem certain work product and certain attorney-client communications including the report at issue in the case to be confidential. u Justice Owen interpreted the phrase "expressly confidential under other law" in light of Norfolk & Western Railway v. American Train Dispatchers Association, 499 U.S. 117 (1991). u Justice Owen also relied on the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947), where the Court recognized the confidentiality of work product prepared in anticipation of litigation. EXT-18-2091-C-000270 007104-000991 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 In Re Jane Doe 2 Parental Notification Act Allegation: "The majority opinion in In re Jane Doe 2 instructed trial courts on how to judge if notification would be in a minor's best interest. Although the statute mentioned no such criteria, Owen's concurring opinion criticized the majority for not requiring judges to find that the abortion itself would be in the applicant's best interest." Facts: In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000) O Justice Owen concluded that an exception to Texas's Parental Notification Act, which permits an underage girl to have an abortion without telling a parent when doing so is in her "best interest," required the court to consider both whether abortion is in her best interest, and whether notification is not. O Justice Owen reached this conclusion by applying the U.S. Supreme Court's decision in Lambert v. Wicklund, 520 U.S. 292 (1997) (per curiam), which interpreted a similar Montana statute. u O In Lambert, the Court concluded that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest." The fact that the Lambert Court required the girl to prove both that abortion is in her best interest, and that notification is not, is indicated by Justice Stevens's separate opinion. u Concurring in the judgment, Justice Stevens faulted the majority for concluding that "a young woman must demonstrate both that abortion is in her best interest and that notification is not." EXT-18-2091-C-000271 007104-000992 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 In Re Jane Doe 2 Parental Notification Act Allegation: "The majority opinion in In re Jane Doe 2 instructed trial courts on how to judge if notification would be in a minor's best interest. Although the statute mentioned no such criteria, Owen's concurring opinion criticized the majority for not requiring judges to find that the abortion itself would be in the applicant's best interest." Facts: In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000) ? Justice Owen concluded that an exception to Texas's Parental Notification Act, which permits an underage girl to have an abortion without telling a parent when doing so is in her "best interest," required the court to consider both whether abortion is in her best interest, and whether notification is not. ? Justice Owen reached this conclusion by applying the U.S. Supreme Court's decision in Lambert v. Wicklund, 520 U.S. 292 (1997) (per curiam), which interpreted a similar Montana statute. u ? In Lambert, the Court concluded that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest." The fact that the Lambert Court required the girl to prove both that abortion is in her best interest, and that notification is not, is indicated by Justice Stevens's separate opinion. u Concurring in the judgment, Justice Stevens faulted the majority for concluding that "a young woman must demonstrate both that abortion is in her best interest and that notification is not." EXT-18-2091-C-000271 007104-000992 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 31 Johnson & Johnson Medical v. Sanchez Wrongful Termination of an Injured Worker Allegation: Justice Owen's dissent argued that a wrongful termination suit of an injured worker was unequivocally barred by the statute of limitations, an issue that the majority deemed ambiguous, demonstrating her reluctance to recognize employees' rights. Facts: Johnson & Johnson Medical v. Sanchez, 924 S.W.2d 925 (Tex. 1996) & The fact that the decision regarding the running of the statute limitations was a 5 to 4 decision demonstrates that this was a very close question and that Justice Owen, joined by three other justices, was not deciding in an arbitrary manner. & Under Texas law, a suit for wrongful termination must be commenced within two years after such cause of action accrues. A cause of action accrues when the employee receives unequivocal notice of his or her termination or when a reasonable person should have known ofhis or her termination. & Sanchez was put on "indefinite medical layoff" on November 20, 1987, but was informed that she had "recall rights," meaning that if a position became available she would be rehired. The slim five justice majority found that because she had these recall rights, it could not definitively determine at what point she should have known that she had been terminated, thus triggering accrual of the cause of action. & In rendering her dissent, Justice Owen pointed to a number of facts contained in the record which indicated that not only would a reasonable person have known she had been terminated more than two years before filing the suit, but that Sanchez's own actions showed that she had actual knowledge that she was no longer employed by the defendant. These facts included: u In the letter advising her that she had been placed on "indefinite medical lay-off," she was also notified that her medical benefits would terminate at the end of the month and they were indeed terminated. She therefore knew more than three years before her suit that she no longer had a job or any source of income from Johnson & Johnson. u In March of 1988, three years before the suit was initiated, Sanchez was again told by Johnson & Johnson that they did not have a position for her. She therefore filed for and received unemployment benefits. u When she received permission from her doctor to begin work again, Sanchez filed an application with Johnson & Johnson and when asked on the form if she had ever worked there before, she indicated yes and wrote "1981-1987," evincing the fact that she knew that she was no longer employed there after 1987. EXT-18-2091-C-000272 007104-000993 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 31 Johnson & Johnson Medical v. Sanchez Wrongful Termination of an Injured Worker Allegation: Justice Owen's dissent argued that a wrongful termination suit of an injured worker was unequivocally barred by the statute of limitations, an issue that the majority deemed ambiguous, demonstrating her reluctance to recognize employees' rights. Facts: Johnson & Johnson Medical v. Sanchez, 924 S.W.2d 925 (Tex. 1996) & The fact that the decision regarding the running of the statute limitations was a 5 to 4 decision demonstrates that this was a very close question and that Justice Owen, joined by three other justices, was not deciding in an arbitrary manner. & Under Texas law, a suit for wrongful termination must be commenced within two years after such cause of action accrues. A cause of action accrues when the employee receives unequivocal notice of his or her termination or when a reasonable person should have known ofhis or her termination. & Sanchez was put on "indefinite medical layoff" on November 20, 1987, but was informed that she had "recall rights," meaning that if a position became available she would be rehired. The slim five justice majority found that because she had these recall rights, it could not definitively determine at what point she should have known that she had been terminated, thus triggering accrual of the cause of action. & In rendering her dissent, Justice Owen pointed to a number of facts contained in the record which indicated that not only would a reasonable person have known she had been terminated more than two years before filing the suit, but that Sanchez's own actions showed that she had actual knowledge that she was no longer employed by the defendant. These facts included: u In the letter advising her that she had been placed on "indefinite medical lay-off," she was also notified that her medical benefits would terminate at the end of the month and they were indeed terminated. She therefore knew more than three years before her suit that she no longer had a job or any source of income from Johnson & Johnson. u In March of 1988, three years before the suit was initiated, Sanchez was again told by Johnson & Johnson that they did not have a position for her. She therefore filed for and received unemployment benefits. u When she received permission from her doctor to begin work again, Sanchez filed an application with Johnson & Johnson and when asked on the form if she had ever worked there before, she indicated yes and wrote "1981-1987," evincing the fact that she knew that she was no longer employed there after 1987. EXT-18-2091-C-000272 007104-000993 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 32 Kerrville State Hosp. v. Clark Sovereign Immunity Allegation: Justice Owen joined an anti-consumer and anti-jury majority opinion which held that a state mental hospital was immune from a wrongful death claim brought by the family of a woman who was murdered by a mental patient. Facts: Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) & Plaintiffs in this case alleged that the state mental hospital was liable for the death of their daughter, Rebecca, because it had released her husband after administering short-term drugs rather than longer-term drugs. Evidence was presented at trial that longer-term drugs lasting more than a month were available and might have prevented the murder. & In a 5-4 decision authored by Democrat Justice Raul Gonzalez, the court held that the state mental hospital was entitled to sovereign immunity unless it could be construed to have waived its immunity under the Texas Tort Claims Act. This Act waives immunity for "death . . . caused by a condition or use of tangible personal or real property." & The court concluded that a failure to prescribe a certain form of drug did not fall within the definition of "use" under the Act, and that the state mental hospital had therefore not waived immunity. O The court also explains that to hold otherwise would extend the Tort Claims Act's waiver provision to almost every case in which the state mental hospital had dispensed a drug, because a patient could always claim that a different treatment regime would have been preferable. O The dissent argues that the patient in question had a history of not taking his medicine, and that this history of non-use and misuse accounted to "use of tangible property." EXT-18-2091-C-000273 007104-000994 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 32 Kerrville State Hosp. v. Clark Sovereign Immunity Allegation: Justice Owen joined an anti-consumer and anti-jury majority opinion which held that a state mental hospital was immune from a wrongful death claim brought by the family of a woman who was murdered by a mental patient. Facts: Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) & Plaintiffs in this case alleged that the state mental hospital was liable for the death of their daughter, Rebecca, because it had released her husband after administering short-term drugs rather than longer-term drugs. Evidence was presented at trial that longer-term drugs lasting more than a month were available and might have prevented the murder. & In a 5-4 decision authored by Democrat Justice Raul Gonzalez, the court held that the state mental hospital was entitled to sovereign immunity unless it could be construed to have waived its immunity under the Texas Tort Claims Act. This Act waives immunity for "death . . . caused by a condition or use of tangible personal or real property." & The court concluded that a failure to prescribe a certain form of drug did not fall within the definition of "use" under the Act, and that the state mental hospital had therefore not waived immunity. ? The court also explains that to hold otherwise would extend the Tort Claims Act's waiver provision to almost every case in which the state mental hospital had dispensed a drug, because a patient could always claim that a different treatment regime would have been preferable. ? The dissent argues that the patient in question had a history of not taking his medicine, and that this history of non-use and misuse accounted to "use of tangible property." EXT-18-2091-C-000273 007104-000994 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 33 Lozano v. Lozano Equal Inference Rule Allegation: Justice Owen joined in a dissent from a per curiam opinion reinterpreting the "equal inference rule" in a case concerning liability for interfering with child custody rights. Justice Owen's view would severely curtail the fact-finding function of juries. Facts: Lozano v. Lozano, 52 S.W.3rd 141 (Tex. 2001) O The "equal inference rule," a longstanding principle in Texas jurisprudence, provides that a jury "may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another." O The opinion in the case would be confusing to even the most experienced lawyer. Of the seven Justices participating in this case, five concurred in Chief Justice Phillips' opinion which is the opinion that sets forth the novel interpretation of the equal inference rule. u Chief Justice Phillips' opinion asserts that, under the equal inference rule, "if circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable." O The four jurists who joined in Chief Justice Phillips' opinion concurred in a second opinion, not relying on the equal inference rule, that set forth a different interpretation of the use of circumstantial evidence. O Justice Owen joined a dissenting opinion that criticized Justice Phillips' interpretation of the equal inference rule. The dissent asserts that the equal inference rule bars a jury from drawing conclusions based on circumstantial evidence from which more than one reasonable inference can be drawn. O u The dissenting opinion joined by Justice Owen agrees with a majority of the court that the finder of fact must consider the totality of the evidence and that additional evidence may make one of multiple possible inferences more probable. u Critics therefore misconstrue this opinion as "anti-jury" the dissent explicitly states that juries should weigh the evidence where a reasonable conclusion can be drawn from it. The Texas Supreme Court has issued at least 10 other opinions in the past twenty-five years construing the equal inference rule and supporting the interpretation of the rule joined by Justice Owen. EXT-18-2091-C-000274 007104-000995 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 33 Lozano v. Lozano Equal Inference Rule Allegation: Justice Owen joined in a dissent from a per curiam opinion reinterpreting the "equal inference rule" in a case concerning liability for interfering with child custody rights. Justice Owen's view would severely curtail the fact-finding function of juries. Facts: Lozano v. Lozano, 52 S.W.3rd 141 (Tex. 2001) ? The "equal inference rule," a longstanding principle in Texas jurisprudence, provides that a jury "may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another." ? The opinion in the case would be confusing to even the most experienced lawyer. Of the seven Justices participating in this case, five concurred in Chief Justice Phillips' opinion which is the opinion that sets forth the novel interpretation of the equal inference rule. u Chief Justice Phillips' opinion asserts that, under the equal inference rule, "if circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable." ? The four jurists who joined in Chief Justice Phillips' opinion concurred in a second opinion, not relying on the equal inference rule, that set forth a different interpretation of the use of circumstantial evidence. ? Justice Owen joined a dissenting opinion that criticized Justice Phillips' interpretation of the equal inference rule. The dissent asserts that the equal inference rule bars a jury from drawing conclusions based on circumstantial evidence from which more than one reasonable inference can be drawn. ? u The dissenting opinion joined by Justice Owen agrees with a majority of the court that the finder of fact must consider the totality of the evidence and that additional evidence may make one of multiple possible inferences more probable. u Critics therefore misconstrue this opinion as "anti-jury" the dissent explicitly states that juries should weigh the evidence where a reasonable conclusion can be drawn from it. The Texas Supreme Court has issued at least 10 other opinions in the past twenty-five years construing the equal inference rule and supporting the interpretation of the rule joined by Justice Owen. EXT-18-2091-C-000274 007104-000995 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34 Merrell Dow Pharmaceuticals v. Havner Reliability of Scientific Experts Allegation: "The Havner family alleged that the morning sickness drug Bendectin caused severe birth defects in their daughter, Kelly. Owen's opinion used extremely strict limits on the admissibility of expert testimony to overturn a jury award (after trial court modification) of $3.75 million in actual damages and $15 million in punitive damages." Facts: Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997) ? The Texas Supreme Court including both Republicans and Democrats unanimously concluded that a girl born with birth defects had not proven that a drug manufactured by the defendant was responsible for her injuries. The opinion, authored by Justice Owen, followed the precedents of the U.S. Supreme Court, as well as the lower federal courts. ? There was no reliable evidence that Bendectin a drug taken by pregnant women to combat morning sickness was responsible for birth defects. ? u The federal courts have heard identical lawsuits over the years, and every single one ultimately has failed: "The federal courts have dealt extensively with Bendectin litigation. To date, no plaintiff has ultimately prevailed in federal court. The evidence in those cases has been similar to that offered by the Havners." Id. at 709 u Justice Owen cited 19 federal cases in which Merrell Dow was exonerated. Justice Owen's opinion applied the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That decision instructs courts to disregard evidence, offered by self-described scientific experts, that is not based on "valid science." EXT-18-2091-C-000275 007104-000996 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 34 Merrell Dow Pharmaceuticals v. Havner Reliability of Scientific Experts Allegation: "The Havner family alleged that the morning sickness drug Bendectin caused severe birth defects in their daughter, Kelly. Owen's opinion used extremely strict limits on the admissibility of expert testimony to overturn a jury award (after trial court modification) of $3.75 million in actual damages and $15 million in punitive damages." Facts: Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997) O The Texas Supreme Court including both Republicans and Democrats unanimously concluded that a girl born with birth defects had not proven that a drug manufactured by the defendant was responsible for her injuries. The opinion, authored by Justice Owen, followed the precedents of the U.S. Supreme Court, as well as the lower federal courts. O There was no reliable evidence that Bendectin a drug taken by pregnant women to combat morning sickness was responsible for birth defects. O u The federal courts have heard identical lawsuits over the years, and every single one ultimately has failed: "The federal courts have dealt extensively with Bendectin litigation. To date, no plaintiff has ultimately prevailed in federal court. The evidence in those cases has been similar to that offered by the Havners." Id. at 709 u Justice Owen cited 19 federal cases in which Merrell Dow was exonerated. Justice Owen's opinion applied the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). That decision instructs courts to disregard evidence, offered by self-described scientific experts, that is not based on "valid science." EXT-18-2091-C-000275 007104-000996 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 35 Mid-American Indemnity Ins. Co. v. King Minimum Capital Requirements for Insurers Allegation: Justice Owen dissented from a majority opinion interpreting an insurance statute setting forth minimum capital requirements for certain types of insurers. Justice Owen's "activist" and "anti-consumer" dissent would have allowed then-existing insurance policies to grandfather out of the new requirements. Facts: Mid-American Indemnity Ins. Co. v. King, 22 S.W.3d 321 (Tex. 1995) & The Texas Insurance Code requires unlicensed and unauthorized insurers "surplus insurers" to post a bond in an amount determined by the court before filing a pleading in a lawsuit. u & The majority construed this statute to require that insurers meet the minimum capital requirements to be considered an "eligible surplus line insurer" both at the time the applicable coverage was issued and at the time the lawsuit was filed. u & The majority based its interpretation on its view that the Texas legislature had intended to make a prerequisite for appearance in court that an insurer have the means to satisfy any potential judgment. Justice Owen, joined by four other justices, including Democrat Justice Raul Gonzalez, argued that the plain language of the statute was unambiguous and that it required the insurer to be eligible only at the time the original policy was issued. Because the language of the statute was unambiguous, making it unnecessary to look to the legislature's intent. Her analysis of the statute at issue in this case is entirely consistent with the well-settled principles of statutory construction. u & According to the unambiguous language of the statute, the requirement "does not apply to . . . insurers which were deemed eligible surplus line insurers . . . at the date applicable coverage was issued." Justice Owen followed well-settled principles of statutory review in looking to the plain meaning of an unambiguous statute. In the dissent, Justice Owen specifically voiced her support for the legislature's "compelling" intent "to give the broadest possible protection to Texas policyholders." EXT-18-2091-C-000276 007104-000997 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 35 Mid-American Indemnity Ins. Co. v. King Minimum Capital Requirements for Insurers Allegation: Justice Owen dissented from a majority opinion interpreting an insurance statute setting forth minimum capital requirements for certain types of insurers. Justice Owen's "activist" and "anti-consumer" dissent would have allowed then-existing insurance policies to grandfather out of the new requirements. Facts: Mid-American Indemnity Ins. Co. v. King, 22 S.W.3d 321 (Tex. 1995) & The Texas Insurance Code requires unlicensed and unauthorized insurers "surplus insurers" to post a bond in an amount determined by the court before filing a pleading in a lawsuit. u & The majority construed this statute to require that insurers meet the minimum capital requirements to be considered an "eligible surplus line insurer" both at the time the applicable coverage was issued and at the time the lawsuit was filed. u & The majority based its interpretation on its view that the Texas legislature had intended to make a prerequisite for appearance in court that an insurer have the means to satisfy any potential judgment. Justice Owen, joined by four other justices, including Democrat Justice Raul Gonzalez, argued that the plain language of the statute was unambiguous and that it required the insurer to be eligible only at the time the original policy was issued. Because the language of the statute was unambiguous, making it unnecessary to look to the legislature's intent. Her analysis of the statute at issue in this case is entirely consistent with the well-settled principles of statutory construction. u & According to the unambiguous language of the statute, the requirement "does not apply to . . . insurers which were deemed eligible surplus line insurers . . . at the date applicable coverage was issued." Justice Owen followed well-settled principles of statutory review in looking to the plain meaning of an unambiguous statute. In the dissent, Justice Owen specifically voiced her support for the legislature's "compelling" intent "to give the broadest possible protection to Texas policyholders." EXT-18-2091-C-000276 007104-000997 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 36 Operation Rescue v. Planned Parenthood Buffer Zones Between Clinics and Protestors Allegation: Justice Owen supported the elimination and narrowing of buffer zones around reproductive health care clinics in Houston. Facts: Operation Rescue v. Planned Parenthood, 975 S.W.2d 546 (Tex. 1998) ? Justice Owen joined the majority opinion in the Texas case upholding virtually all of the buffer zones established in the trial court's permanent injunction, with some limited modifications. ? Leading abortion rights supporters hailed the Court's decision at the time it was handed down. "Planned Parenthood officials cheered the court's decision to leave the monetary damages intact. 'This is a complete and total victory,' said Judy Reiner, senior vice president for Planned Parenthood of Houston and Southeast Texas." (Austin AmericanStatesman, p. B2, July 4, 1998). ? "Neal Manne, attorney for Planned Parenthood of Houston and Southeast Texas, said he believes this is the first time the Texas Supreme Court has upheld punitive damages against anti-abortion protesters. 'It wasn't a home run. It was a grand slam,' he said. Manne said the order correctly balanced the right to peaceful protest against the legitimate business interests of the clinics. Planned Parenthood operates one of the clinics targeted by the protesters." (Houston Chronicle, p. A1, July 4, 1998). ? A headline in a Planned Parenthood Newsletter released at the time the buffer zone holding was released stated that: "Anti-abortion protestors lose in Texas Supreme Court: $1.2 million in damages upheld; protestor restrictions remain." u ? The newsletter specifically stated that, "minor changes were made to injunction limits on protestors activities. Buffer zones were lifted around five clinics but left in place around Planned Parenthood and three other clinics and the homes of four physicians." They added, "[r]estrictions on protestors' aggressive behavior remain in effect." The Court's decision upheld most of the restrictions set out in the permanent injunction ordered by the trial court, but in some of the instances directed modification of the injunction to permit a limited number of peaceful demonstrators to approach patients to discuss the issue as long as upon request by the patient such conversations were ended by the demonstrators. EXT-18-2091-C-000277 007104-000998 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 36 Operation Rescue v. Planned Parenthood Buffer Zones Between Clinics and Protestors Allegation: Justice Owen supported the elimination and narrowing of buffer zones around reproductive health care clinics in Houston. Facts: Operation Rescue v. Planned Parenthood, 975 S.W.2d 546 (Tex. 1998) O Justice Owen joined the majority opinion in the Texas case upholding virtually all of the buffer zones established in the trial court's permanent injunction, with some limited modifications. O Leading abortion rights supporters hailed the Court's decision at the time it was handed down. "Planned Parenthood officials cheered the court's decision to leave the monetary damages intact. 'This is a complete and total victory,' said Judy Reiner, senior vice president for Planned Parenthood of Houston and Southeast Texas." (Austin AmericanStatesman, p. B2, July 4, 1998). O "Neal Manne, attorney for Planned Parenthood of Houston and Southeast Texas, said he believes this is the first time the Texas Supreme Court has upheld punitive damages against anti-abortion protesters. 'It wasn't a home run. It was a grand slam,' he said. Manne said the order correctly balanced the right to peaceful protest against the legitimate business interests of the clinics. Planned Parenthood operates one of the clinics targeted by the protesters." (Houston Chronicle, p. A1, July 4, 1998). O A headline in a Planned Parenthood Newsletter released at the time the buffer zone holding was released stated that: "Anti-abortion protestors lose in Texas Supreme Court: $1.2 million in damages upheld; protestor restrictions remain." u O The newsletter specifically stated that, "minor changes were made to injunction limits on protestors activities. Buffer zones were lifted around five clinics but left in place around Planned Parenthood and three other clinics and the homes of four physicians." They added, "[r]estrictions on protestors' aggressive behavior remain in effect." The Court's decision upheld most of the restrictions set out in the permanent injunction ordered by the trial court, but in some of the instances directed modification of the injunction to permit a limited number of peaceful demonstrators to approach patients to discuss the issue as long as upon request by the patient such conversations were ended by the demonstrators. EXT-18-2091-C-000277 007104-000998 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 37 Peeler v. Hughes & Luce Malpractice Lawsuits by Criminal Convicts Allegation: "After pleading guilty to federal tax fraud, a securities worker tried to sue Hughes & Luce (which this plaintiff had retained for $250,000) for failing to tell her that a prosecutor had offered her immunity in exchange for her testimony in a wider probe. After taking $14,236 from Hughes & Luce in her 1994 race, Owen joined the court's plurality opinion that ruled that convicted criminals cannot bring malpractice lawsuits. Three dissenting justices pointed out that the plaintiff arguably never would have been indicted or convicted if her attorney had told her about the immunity offer." Facts: Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) O The Court held that criminal convicts cannot sue their defense attorneys for malpractice if they are guilty of the offenses for which they were convicted. This decision is consistent with the vast majority of states, which overwhelmingly have concluded that guilty clients may not bring malpractice claims. u According to the Court's ruling public policy weighs against allowing those who are guilty to sue their lawyers for malpractice: "convicts may not shift the consequences of their crime to a third party." Id. at 498. u Only two states allowed guilty clients to bring malpractice claims. O The dissent agreed that ordinarily, only the innocent should be able to sue their lawyers for malpractice: "In most cases the law should not permit a person convicted of a crime to recover for legal malpractice." O The Peeler case cannot be characterized as an attempt by Justice Owen to shield the law firm, which had contributed to her campaign, from the consequences of its actions. O u The Court went out of its way to emphasize that the convict's claims about her lawyer's misconduct "merit review by the State Bar." Id. at 500. u The Court specifically instructed that, even though there was no basis for a malpractice lawsuit, the lawyer still could be disciplined under state ethics rules. The trial court and court of appeals both reached the same conclusion as the Texas Supreme Court. EXT-18-2091-C-000278 007104-000999 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 37 Peeler v. Hughes & Luce Malpractice Lawsuits by Criminal Convicts Allegation: "After pleading guilty to federal tax fraud, a securities worker tried to sue Hughes & Luce (which this plaintiff had retained for $250,000) for failing to tell her that a prosecutor had offered her immunity in exchange for her testimony in a wider probe. After taking $14,236 from Hughes & Luce in her 1994 race, Owen joined the court's plurality opinion that ruled that convicted criminals cannot bring malpractice lawsuits. Three dissenting justices pointed out that the plaintiff arguably never would have been indicted or convicted if her attorney had told her about the immunity offer." Facts: Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) ? The Court held that criminal convicts cannot sue their defense attorneys for malpractice if they are guilty of the offenses for which they were convicted. This decision is consistent with the vast majority of states, which overwhelmingly have concluded that guilty clients may not bring malpractice claims. u According to the Court's ruling public policy weighs against allowing those who are guilty to sue their lawyers for malpractice: "convicts may not shift the consequences of their crime to a third party." Id. at 498. u Only two states allowed guilty clients to bring malpractice claims. ? The dissent agreed that ordinarily, only the innocent should be able to sue their lawyers for malpractice: "In most cases the law should not permit a person convicted of a crime to recover for legal malpractice." ? The Peeler case cannot be characterized as an attempt by Justice Owen to shield the law firm, which had contributed to her campaign, from the consequences of its actions. ? u The Court went out of its way to emphasize that the convict's claims about her lawyer's misconduct "merit review by the State Bar." Id. at 500. u The Court specifically instructed that, even though there was no basis for a malpractice lawsuit, the lawyer still could be disciplined under state ethics rules. The trial court and court of appeals both reached the same conclusion as the Texas Supreme Court. EXT-18-2091-C-000278 007104-000999 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 38 Praesel v. Johnson Physician's Duties Allegation: Justice Owen wrote the majority opinion in this case, holding that three doctors who had treated a man with epilepsy did not have a duty to third parties to keep the epileptic man from driving. Facts: Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) & Justice Owen wrote the majority opinion, which was joined by seven other justices, including Democrat Justices Raul Gonzalez and Rose Spector. The ninth Justice concurred. & As Justice Owen recognized in her opinion, it is well-settled in common law that physicians do not bear a duty to unidentified third parties. & u Some courts have held that a psychiatrist, for instance, has a duty to warn an identified party when a patient poses a threat to that party. u For instance, if a mental patient tells a psychiatrist that he is going to kill his girlfriend, the psychiatrist has a duty to warn the girlfriend. u But if the mental patient tells the psychiatrist that he is going to kill "someone" or "everyone," the psychiatrist has no duty to inform the general public of the threat. In Praesel, Justice Owen applied the well-settled principle that there is no duty to unidentified third parties. She held that the three physicians in this case did not have a duty to inform the Medical Advisory Board that the patient was an epileptic. u It was clear from the evidence that the Medical Advisory Board would not have automatically revoked the patient's license even if it had been informed of his epilepsy. & Justice Owen relied in part on medical evidence that demonstrates that individuals who have been seizure-free for three or more years suffer seizures at a very low rate. & Justice Owen also held that the duty to determine whether an individual should continue to drive rests with the individual. She, along with seven other members of the court, found that the physicians had no duty to warn the patient himself that his epilepsy posed a risk to driving. u Justice Owen's opinion reinstated the trial court's original grant of summary judgment to the defendants. EXT-18-2091-C-000279 007104-001000 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 38 Praesel v. Johnson Physician's Duties Allegation: Justice Owen wrote the majority opinion in this case, holding that three doctors who had treated a man with epilepsy did not have a duty to third parties to keep the epileptic man from driving. Facts: Praesel v. Johnson, 967 S.W.2d 391 (Tex. 1998) & Justice Owen wrote the majority opinion, which was joined by seven other justices, including Democrat Justices Raul Gonzalez and Rose Spector. The ninth Justice concurred. & As Justice Owen recognized in her opinion, it is well-settled in common law that physicians do not bear a duty to unidentified third parties. & u Some courts have held that a psychiatrist, for instance, has a duty to warn an identified party when a patient poses a threat to that party. u For instance, if a mental patient tells a psychiatrist that he is going to kill his girlfriend, the psychiatrist has a duty to warn the girlfriend. u But if the mental patient tells the psychiatrist that he is going to kill "someone" or "everyone," the psychiatrist has no duty to inform the general public of the threat. In Praesel, Justice Owen applied the well-settled principle that there is no duty to unidentified third parties. She held that the three physicians in this case did not have a duty to inform the Medical Advisory Board that the patient was an epileptic. u It was clear from the evidence that the Medical Advisory Board would not have automatically revoked the patient's license even if it had been informed of his epilepsy. & Justice Owen relied in part on medical evidence that demonstrates that individuals who have been seizure-free for three or more years suffer seizures at a very low rate. & Justice Owen also held that the duty to determine whether an individual should continue to drive rests with the individual. She, along with seven other members of the court, found that the physicians had no duty to warn the patient himself that his epilepsy posed a risk to driving. u Justice Owen's opinion reinstated the trial court's original grant of summary judgment to the defendants. EXT-18-2091-C-000279 007104-001000 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 39 Provident American Ins. Co. v. Castaneda Scope of Coverage Under Insurance Policy Allegation: "In Provident American Ins. v. Castaneda, Denise Castaneda sued her insurer for not covering her medical costs after she had her spleen and gallbladder removed due to a hereditary blood disease. A jury awarded her $50,000 in damages, which the trial court trebled under the Deceptive Trade Practices Act. But Owen's majority opinion overturned two lower courts, finding insufficient evidence of liability and creating a new defense for insurers to deny claims on pre-existing conditions." Facts: Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998) O O A substantial majority of the Texas Supreme Court agreed with Justice Owen that an insurance company did not act in bad faith when it denied a young woman's claim under a policy that, by its very terms, did not apply to her illness. u The very first paragraph of Denise Castaneda's policy expressly stated that the policy only provided benefits for an illness "which first manifests itself more than thirty (30) days after the effective date of this Policy." u The "undisputed evidence" showed that Denise's hemolytic spherocytosis (a blood disease) had manifested itself long before the 30-day period passed. In fact, she experienced symptoms years before her father even applied for the policy. u As her father explained in a letter to the insurance company: "Denise and [her brother] had their skin a little yellow throughout their whole lifes [sic]." Id. at 195. And, again according to the letter, Denise was "checked and diagnosed" by a physician on July 20, 1991 just three days after the 30-day period expired. Only two members of the Court dissented from Justice Owen's ruling. EXT-18-2091-C-000280 007104-001001 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 39 Provident American Ins. Co. v. Castaneda Scope of Coverage Under Insurance Policy Allegation: "In Provident American Ins. v. Castaneda, Denise Castaneda sued her insurer for not covering her medical costs after she had her spleen and gallbladder removed due to a hereditary blood disease. A jury awarded her $50,000 in damages, which the trial court trebled under the Deceptive Trade Practices Act. But Owen's majority opinion overturned two lower courts, finding insufficient evidence of liability and creating a new defense for insurers to deny claims on pre-existing conditions." Facts: Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998) ? ? A substantial majority of the Texas Supreme Court agreed with Justice Owen that an insurance company did not act in bad faith when it denied a young woman's claim under a policy that, by its very terms, did not apply to her illness. u The very first paragraph of Denise Castaneda's policy expressly stated that the policy only provided benefits for an illness "which first manifests itself more than thirty (30) days after the effective date of this Policy." u The "undisputed evidence" showed that Denise's hemolytic spherocytosis (a blood disease) had manifested itself long before the 30-day period passed. In fact, she experienced symptoms years before her father even applied for the policy. u As her father explained in a letter to the insurance company: "Denise and [her brother] had their skin a little yellow throughout their whole lifes [sic]." Id. at 195. And, again according to the letter, Denise was "checked and diagnosed" by a physician on July 20, 1991 just three days after the 30-day period expired. Only two members of the Court dissented from Justice Owen's ruling. EXT-18-2091-C-000280 007104-001001 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 40 Read v. The Scott Fetzer Co. Manufacturer Liability for Sexual Assaults by Independent Contractor Salesmen Allegation: Justice Owen joined an "extreme dissent" in a case involving business liability for the acts of a door-to-door vacuum cleaner salesman who raped a customer. The dissent argued that a distributor had no legal duty to perform background checks on door-to-door salesmen, and that failure to perform these checks could not result in foreseeable assaults. Facts: Read v. The Scott Fetzer Co., 990 S.W. 2d 732 (Tex. 1998) & Ms. Read was raped at her home by a vacuum cleaner salesman, Mr. Carter. She sued the vacuum manufacturer, Kirby, and Kirby's distributor who hired Mr. Carter as an independent contractor/salesman. ? The issue was whether a company that requires in-home sales but markets through an independent contractor, who in turn, retains other independent contractors to make the sales exercises sufficient control to subject it to liability. & Justice Owen attempted to follow what she believed was settled Texas law in this case. She believed that this case was governed by and indistinguishable from two prior decisions of the Texas Supreme Court, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996) and Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990). u In Akins, the Court held that the Boys Scouts of America had no duty to monitor its independent local volunteer councils' selection of troop leaders to prevent sexual assaults by these leaders, even though the Boy Scouts created an organization in which the risk of misconduct by troop leaders was inherently possible. u In Phillips, the Court rejected the argument that the Yellow Cab Company of Houston should have known that it was likely that one of its drivers would carry a gun, get into an altercation while on the job, and shoot someone. Despite the fact that the Yellow Cab Company had operated in Houston for nearly twenty years, and was involved in nearly 1,000 traffic accidents per year, the Court held that the company had no duty to warn its cab drivers not to carry guns. & Justice Owen specifically agreed in the case that a contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work. & In addition, she noted that the plaintiff had suffered "a terrible injury" and that it was beyond doubt that the victim was due compensation from her rapist AND the local distributor for failing to exercise reasonable care in hiring him. EXT-18-2091-C-000281 007104-001002 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 40 Read v. The Scott Fetzer Co. Manufacturer Liability for Sexual Assaults by Independent Contractor Salesmen Allegation: Justice Owen joined an "extreme dissent" in a case involving business liability for the acts of a door-to-door vacuum cleaner salesman who raped a customer. The dissent argued that a distributor had no legal duty to perform background checks on door-to-door salesmen, and that failure to perform these checks could not result in foreseeable assaults. Facts: Read v. The Scott Fetzer Co., 990 S.W. 2d 732 (Tex. 1998) & Ms. Read was raped at her home by a vacuum cleaner salesman, Mr. Carter. She sued the vacuum manufacturer, Kirby, and Kirby's distributor who hired Mr. Carter as an independent contractor/salesman. O The issue was whether a company that requires in-home sales but markets through an independent contractor, who in turn, retains other independent contractors to make the sales exercises sufficient control to subject it to liability. & Justice Owen attempted to follow what she believed was settled Texas law in this case. She believed that this case was governed by and indistinguishable from two prior decisions of the Texas Supreme Court, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996) and Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990). u In Akins, the Court held that the Boys Scouts of America had no duty to monitor its independent local volunteer councils' selection of troop leaders to prevent sexual assaults by these leaders, even though the Boy Scouts created an organization in which the risk of misconduct by troop leaders was inherently possible. u In Phillips, the Court rejected the argument that the Yellow Cab Company of Houston should have known that it was likely that one of its drivers would carry a gun, get into an altercation while on the job, and shoot someone. Despite the fact that the Yellow Cab Company had operated in Houston for nearly twenty years, and was involved in nearly 1,000 traffic accidents per year, the Court held that the company had no duty to warn its cab drivers not to carry guns. & Justice Owen specifically agreed in the case that a contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work. & In addition, she noted that the plaintiff had suffered "a terrible injury" and that it was beyond doubt that the victim was due compensation from her rapist AND the local distributor for failing to exercise reasonable care in hiring him. EXT-18-2091-C-000281 007104-001002 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 41 u Kirby, however, did not control the hiring of Mr. Carter. Ms. Read sued for injuries related to the selection of Mr. Carter as a salesman without a background check. u The contract between Kirby and its distributors says that Kirby "shall exercise no control over the selection of ... Dealers," and that distributors have the "full ... responsibility for recruiting, hiring, firing, terminating ... independent contractors. Id. at 745. EXT-18-2091-C-000282 007104-001003 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 41 u Kirby, however, did not control the hiring of Mr. Carter. Ms. Read sued for injuries related to the selection of Mr. Carter as a salesman without a background check. u The contract between Kirby and its distributors says that Kirby "shall exercise no control over the selection of ... Dealers," and that distributors have the "full ... responsibility for recruiting, hiring, firing, terminating ... independent contractors. Id. at 745. EXT-18-2091-C-000282 007104-001003 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 42 Saenz v. Fidelity Insurance Underwriters Workers Compensation: Reversed Jury Award for Mental Anguish Allegation: Justice Owen joined a concurring/dissenting opinion which reversed a jury award for mental anguish in a worker's compensation case. The opinion "reversed Texas case law, which previously relied on juries to assess mental anguish awards." Facts: Saenz v. Fidelity Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996) & Justice Owen joined an opinion concurring in part and dissenting in part, which reversed a jury's finding that the plaintiff was entitled to $250,000 in damages for mental anguish arising out of her insurance carrier's alleged fraudulent conduct in inducing her to settle her worker's compensation claim. & Justice Owen's view of this case was MORE generous to the plaintiff than the view adopted by the majority opinion. & u The majority opinion reversed a $5 million jury verdict -- including $250,000 for mental anguish, $500,000 for future medical bills and $4.25 million in punitives -and rendered a take nothing judgment against the plaintiff. u Justice Owen joined a concurring/dissenting opinion which would have given the plaintiff another bite at the apple. u While they agreed that the plaintiff could not recover for actual or punitive damages for fraud, Justice Owen and Chief Justice Phillips believed that the interests of justice required that the case be remanded back to the trial court to allow the plaintiff to rescind and re-open her worker's compensation settlement. u They so argued despite testimony presented at trial by the state hearing examiner with decades of experience that he "had never seen a compromise settlement as high" as plaintiff's original settlement, and "had never seen one that high since." The opinion in Saenz was limited to the facts presented in the case. It did not, as alleged, create new Texas law and did not affect the ability of juries to make mental anguish awards in future cases. u Later Texas appellate cases affirmed jury awards for mental anguish. See Hoffman-LaRoche v. Zeltwanger, 69 S.W.3d 634 (Tex.App.-Corpus Christi 2002)(affirming a jury award of $1 million for mental anguish arising out of a case of extreme and outrageous sexual harassment); Lone Star Ford v. Wilson, 2002 WL 356711 (Tex.App.-Houston 2002)(affirming a jury award of $250,000 for mental anguish arising out of wrongful termination); Haskett v. Butts, 2002 WL 1485290 (Tex.App.-Waco 2002)(affirming a jury's award of $250,000 for EXT-18-2091-C-000283 007104-001004 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 42 Saenz v. Fidelity Insurance Underwriters Workers Compensation: Reversed Jury Award for Mental Anguish Allegation: Justice Owen joined a concurring/dissenting opinion which reversed a jury award for mental anguish in a worker's compensation case. The opinion "reversed Texas case law, which previously relied on juries to assess mental anguish awards." Facts: Saenz v. Fidelity Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996) & Justice Owen joined an opinion concurring in part and dissenting in part, which reversed a jury's finding that the plaintiff was entitled to $250,000 in damages for mental anguish arising out of her insurance carrier's alleged fraudulent conduct in inducing her to settle her worker's compensation claim. & Justice Owen's view of this case was MORE generous to the plaintiff than the view adopted by the majority opinion. & u The majority opinion reversed a $5 million jury verdict -- including $250,000 for mental anguish, $500,000 for future medical bills and $4.25 million in punitives -and rendered a take nothing judgment against the plaintiff. u Justice Owen joined a concurring/dissenting opinion which would have given the plaintiff another bite at the apple. u While they agreed that the plaintiff could not recover for actual or punitive damages for fraud, Justice Owen and Chief Justice Phillips believed that the interests of justice required that the case be remanded back to the trial court to allow the plaintiff to rescind and re-open her worker's compensation settlement. u They so argued despite testimony presented at trial by the state hearing examiner with decades of experience that he "had never seen a compromise settlement as high" as plaintiff's original settlement, and "had never seen one that high since." The opinion in Saenz was limited to the facts presented in the case. It did not, as alleged, create new Texas law and did not affect the ability of juries to make mental anguish awards in future cases. u Later Texas appellate cases affirmed jury awards for mental anguish. See Hoffman-LaRoche v. Zeltwanger, 69 S.W.3d 634 (Tex.App.-Corpus Christi 2002)(affirming a jury award of $1 million for mental anguish arising out of a case of extreme and outrageous sexual harassment); Lone Star Ford v. Wilson, 2002 WL 356711 (Tex.App.-Houston 2002)(affirming a jury award of $250,000 for mental anguish arising out of wrongful termination); Haskett v. Butts, 2002 WL 1485290 (Tex.App.-Waco 2002)(affirming a jury's award of $250,000 for EXT-18-2091-C-000283 007104-001004 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 43 mental anguish arising out of a medical malpractice case involving a still-born child). & The Texas Supreme Court reversed the mental anguish award in this case because it was based on insufficient evidence at trial- which appellate courts do every day across the country. u ? To support an award of mental anguish damages under Texas law, a plaintiff must either present "direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff's daily routine," or "evidence of 'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" The only evidence of mental anguish presented during the three-day trial in Saenz consisted of ONE question to the plaintiff by her attorney: Q: Can you tell the jury what it is that you were concerned about this lifetime medical benefits and who was going to wind up paying for the lifetime medical benefits that you were told you were going to incur? A: I worried about that a lot. My husband was already working two jobs, and I was worried also that we were going to lose our house because when we bought it we had two incomes and, I knew that we couldn't afford the medical bills that we were going to have. ? Because this testimony did not specifically address the plaintiff's mental anguish, the evidence presented at trial in this case was clearly insufficient to support an award of damages for mental anguish. EXT-18-2091-C-000284 007104-001005 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 43 mental anguish arising out of a medical malpractice case involving a still-born child). & The Texas Supreme Court reversed the mental anguish award in this case because it was based on insufficient evidence at trial- which appellate courts do every day across the country. u O To support an award of mental anguish damages under Texas law, a plaintiff must either present "direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff's daily routine," or "evidence of 'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" The only evidence of mental anguish presented during the three-day trial in Saenz consisted of ONE question to the plaintiff by her attorney: Q: Can you tell the jury what it is that you were concerned about this lifetime medical benefits and who was going to wind up paying for the lifetime medical benefits that you were told you were going to incur? A: I worried about that a lot. My husband was already working two jobs, and I was worried also that we were going to lose our house because when we bought it we had two incomes and, I knew that we couldn't afford the medical bills that we were going to have. O Because this testimony did not specifically address the plaintiff's mental anguish, the evidence presented at trial in this case was clearly insufficient to support an award of damages for mental anguish. EXT-18-2091-C-000284 007104-001005 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 44 Sonnier v. Chisholm-Ryder Statute of Repose in a Products Liability Case Allegation: Owen joined an "activist dissent" in arguing that all manufacturers who construct or repair improvements to real property should be subject to a ten-year statute of repose. Facts: Sonnier v. Chisholm-Ryder, 909 S.W.2d 475 (Tex. 1995) & In Sonnier, an employee injured by a tomato chopper installed by the Texas Department of Corrections sued the chopper's manufacturer some 25 years after the manufacturer constructed the machine. & This case turned on the interpretation of section 16.009 of the Texas Civil Practice and Remedies Code, which stated that "a claimant must bring suit for damages.... against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement...." & Justice Owen and her three fellow dissenters (which included Democrat Justice Gonzalez) attempted to follow what they believed was well-settled Texas law. u According to the dissent, the activist majority opinion ignored a prior decision of the Texas Supreme Court and no fewer than seven Texas courts of appeals. u In Conkle v. Builders Concrete Products, 749 S.W.2d 489 (Tex. 1988), the Court held that off-site manufacturers were protected by Section 16.009's repose, but only if the manufacturer constructed the entire improvement and not a component part of it. u Seven Texas courts of appeal had issued similar holdings. See Karisch v. Allied-Signal, Inc., 837 S.W.2d 679 (Tex.App.-- Corpus Christi 1992); Big West Oil Co. v. Willborn Bros. Co., 836 S.W.2d 800 (Tex.App.--Amarillo 1992); Ablin v. Morton Southwest Co., 802 S.W.2d 788 (Tex.App.--San Antonio 1990); Dubin v. Carrier Corp., 798 S.W.2d 1 (Tex.App.--Houston [14th Dist.] 1989); Rodarte v. Carrier Corp., 786 S.W.2d 94 (Tex.App.--El Paso 1990); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex.App.-- Houston [1st Dist.] 1987); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.App.--Houston [1st Dist.] 1981). EXT-18-2091-C-000285 007104-001006 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 44 Sonnier v. Chisholm-Ryder Statute of Repose in a Products Liability Case Allegation: Owen joined an "activist dissent" in arguing that all manufacturers who construct or repair improvements to real property should be subject to a ten-year statute of repose. Facts: Sonnier v. Chisholm-Ryder, 909 S.W.2d 475 (Tex. 1995) & In Sonnier, an employee injured by a tomato chopper installed by the Texas Department of Corrections sued the chopper's manufacturer some 25 years after the manufacturer constructed the machine. & This case turned on the interpretation of section 16.009 of the Texas Civil Practice and Remedies Code, which stated that "a claimant must bring suit for damages.... against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement...." & Justice Owen and her three fellow dissenters (which included Democrat Justice Gonzalez) attempted to follow what they believed was well-settled Texas law. u According to the dissent, the activist majority opinion ignored a prior decision of the Texas Supreme Court and no fewer than seven Texas courts of appeals. u In Conkle v. Builders Concrete Products, 749 S.W.2d 489 (Tex. 1988), the Court held that off-site manufacturers were protected by Section 16.009's repose, but only if the manufacturer constructed the entire improvement and not a component part of it. u Seven Texas courts of appeal had issued similar holdings. See Karisch v. Allied-Signal, Inc., 837 S.W.2d 679 (Tex.App.-- Corpus Christi 1992); Big West Oil Co. v. Willborn Bros. Co., 836 S.W.2d 800 (Tex.App.--Amarillo 1992); Ablin v. Morton Southwest Co., 802 S.W.2d 788 (Tex.App.--San Antonio 1990); Dubin v. Carrier Corp., 798 S.W.2d 1 (Tex.App.--Houston [14th Dist.] 1989); Rodarte v. Carrier Corp., 786 S.W.2d 94 (Tex.App.--El Paso 1990); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex.App.-- Houston [1st Dist.] 1987); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.App.--Houston [1st Dist.] 1981). EXT-18-2091-C-000285 007104-001006 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 45 St. Luke's Episcopal Hosp. v. Agbor Medical Malpractice Claim Barred Allegation: Justice Owen joined a majority opinion that utilized an activist interpretation of a patient protection law to harm malpractice victims. The majority's twisted summary judgment reversed an appeals court and kept the case from the jury. The opinion was activist, anti-consumer, and anti-jury. Facts: St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) & & & Justice Owen joined four other justices in a majority opinion written by Democrat Raul Gonzalez. u The majority found that the Texas Medical Practice Act barred a patient's claim against a hospital for its credentialing of a doctor. u During birth, the plaintiffs' baby suffered an injury that permanently disabled one arm. The plaintiffs alleged that the hospital should not have renewed the doctor's staff privileges because she had been the subject of other malpractice cases and was not properly insured. The majority, far from being activist, followed a well-established rule of law that "when a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning." u On its face, the Texas statute was clear and unambiguous. u The dissent agreed that the statute was clear and unambiguous: "Read literally, these provisions do bar the Agbor's claims." u It was the dissent that then pursued an activist approach, stating, "we must consider the entire act, its nature and object, and the consequences that would follow from a proposed construction." The majority, including Justice Owen, recognized that it must take a statute as it finds it: "[courts] are not responsible for omissions in the legislation. They are responsible for a true and fair interpretation of the written law." u & Based on the plain meaning of the language used by the legislature, the statute provided the hospital immunity in this case. The majority's opinion agreed with the trial court's original decision in granting summary judgment. u There was no factual issue for the jury to decide in this case because, as a matter of law, the hospital had immunity in this case. EXT-18-2091-C-000286 007104-001007 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 45 St. Luke's Episcopal Hosp. v. Agbor Medical Malpractice Claim Barred Allegation: Justice Owen joined a majority opinion that utilized an activist interpretation of a patient protection law to harm malpractice victims. The majority's twisted summary judgment reversed an appeals court and kept the case from the jury. The opinion was activist, anti-consumer, and anti-jury. Facts: St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) & & & Justice Owen joined four other justices in a majority opinion written by Democrat Raul Gonzalez. u The majority found that the Texas Medical Practice Act barred a patient's claim against a hospital for its credentialing of a doctor. u During birth, the plaintiffs' baby suffered an injury that permanently disabled one arm. The plaintiffs alleged that the hospital should not have renewed the doctor's staff privileges because she had been the subject of other malpractice cases and was not properly insured. The majority, far from being activist, followed a well-established rule of law that "when a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning." u On its face, the Texas statute was clear and unambiguous. u The dissent agreed that the statute was clear and unambiguous: "Read literally, these provisions do bar the Agbor's claims." u It was the dissent that then pursued an activist approach, stating, "we must consider the entire act, its nature and object, and the consequences that would follow from a proposed construction." The majority, including Justice Owen, recognized that it must take a statute as it finds it: "[courts] are not responsible for omissions in the legislation. They are responsible for a true and fair interpretation of the written law." u & Based on the plain meaning of the language used by the legislature, the statute provided the hospital immunity in this case. The majority's opinion agreed with the trial court's original decision in granting summary judgment. u There was no factual issue for the jury to decide in this case because, as a matter of law, the hospital had immunity in this case. EXT-18-2091-C-000286 007104-001007 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 46 State Farm Fire & Cas. Co. v. Simmons Bad Faith by Insurers Allegation: In a case where an insurer refused to pay the claim of a family whose home had burned to the ground, Justice Owen joined an extreme dissent that questioned the damages awarded by the jury for the bad faith of the insurer. The case shows that Justice Owen is activist, anti-consumer, and anti-jury. Facts: State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998) & The trial court in this case found that there was not legally sufficient evidence to support a jury's finding that the insurer breached its duty of good faith and the jury's award of $2 million in punitive damages. u & Justice Owen joined a dissent that argued that the majority opinion did not consider the bad faith claim under the standards the Texas Supreme Court itself had established. u & & The majority opinion, written by Democrat Justice Rose Spector, reversed the jury's punitive damages award, but left the bad faith finding under a revised legal standard. The court in earlier opinions held that there are two elements to proving bad faith: (1) the insurer had no reasonable basis for denying the claim and that it knew or should have known that fact; (2) an insurer denied a claim after liability was reasonably clear. The dissent criticized the majority opinion for being driven not by legal principles, but rather, by the belief that the insurer had not been entirely fair and therefore should pay some money to the plaintiffs. u The dissent joined by Justice Owen applied the law as it was established in precedent. It was the majority opinion which ignored the legal standards and created an exception unique to the case. u Although Justice Owen had dissented from the opinion setting forth the original standard, once it became precedent, she faithfully applied the standard. Both the majority opinion, written by Democrat Justice Rose Spector, and the dissent found that there was insufficient evidence to support the jury's verdict, a decision made by appellate courts every day. EXT-18-2091-C-000287 007104-001008 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 46 State Farm Fire & Cas. Co. v. Simmons Bad Faith by Insurers Allegation: In a case where an insurer refused to pay the claim of a family whose home had burned to the ground, Justice Owen joined an extreme dissent that questioned the damages awarded by the jury for the bad faith of the insurer. The case shows that Justice Owen is activist, anti-consumer, and anti-jury. Facts: State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998) & The trial court in this case found that there was not legally sufficient evidence to support a jury's finding that the insurer breached its duty of good faith and the jury's award of $2 million in punitive damages. u & Justice Owen joined a dissent that argued that the majority opinion did not consider the bad faith claim under the standards the Texas Supreme Court itself had established. u & & The majority opinion, written by Democrat Justice Rose Spector, reversed the jury's punitive damages award, but left the bad faith finding under a revised legal standard. The court in earlier opinions held that there are two elements to proving bad faith: (1) the insurer had no reasonable basis for denying the claim and that it knew or should have known that fact; (2) an insurer denied a claim after liability was reasonably clear. The dissent criticized the majority opinion for being driven not by legal principles, but rather, by the belief that the insurer had not been entirely fair and therefore should pay some money to the plaintiffs. u The dissent joined by Justice Owen applied the law as it was established in precedent. It was the majority opinion which ignored the legal standards and created an exception unique to the case. u Although Justice Owen had dissented from the opinion setting forth the original standard, once it became precedent, she faithfully applied the standard. Both the majority opinion, written by Democrat Justice Rose Spector, and the dissent found that there was insufficient evidence to support the jury's verdict, a decision made by appellate courts every day. EXT-18-2091-C-000287 007104-001008 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 47 State Farm Insurance Co. v. Beaston Scope of Policy Coverage and Mental Anguish Damages Allegation: "Terri Beaston sued an insurer that denied a life insurance claim after her husband died in a car crash. The trial court judgment granted Beaston the $250,000 value of her husband's policy but overruled a jury award of $200,000 in mental anguish damages on the grounds that there was no finding that the defendants acted knowingly. A court of appeals reinstated the mental anguish award and trebled it under a state Insurance Code provision. Owen's majority opinion overturned the jury and two lower courts to rule that Beaston take nothing. This opinion created new obstacles for consumers who are deceived by insurers." Facts: State Farm Insurance Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995) O O A bipartisan majority of the Texas Supreme Court agreed that, because the plaintiff's husband decided not to renew his insurance policy, the plaintiff was not entitled to receive benefits after her husband's death. u David Beaston failed to pay the premium on his life insurance policy by its due date of December 28, 1983. The policy lapsed on that day, and the 31-day grace period expired on January 28, 1984 three days before the husband died. u Because the husband's death occurred after the expiration of his life insurance policy, the Court held, the wife had no right to receive benefits. An even larger majority (with just two Justices dissenting) joined Justice Owen in ruling that the wife was not entitled to recover "mental anguish damages," since the jury did not find that the insurance company had acted knowingly. u Under Texas common law and other statutes, plaintiffs are not entitled to "mental anguish damages" unless they convince a jury that the defendant acted knowingly. u Justice Owen simply construed the Texas Insurance Code to be consistent with another act of the legislature (which was passed at the same time as the Insurance Code), and with the common law of tort. u The trial judge likewise had concluded that mental anguish damages are available only if the jury finds that the defendant acted knowingly. EXT-18-2091-C-000288 007104-001009 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 47 State Farm Insurance Co. v. Beaston Scope of Policy Coverage and Mental Anguish Damages Allegation: "Terri Beaston sued an insurer that denied a life insurance claim after her husband died in a car crash. The trial court judgment granted Beaston the $250,000 value of her husband's policy but overruled a jury award of $200,000 in mental anguish damages on the grounds that there was no finding that the defendants acted knowingly. A court of appeals reinstated the mental anguish award and trebled it under a state Insurance Code provision. Owen's majority opinion overturned the jury and two lower courts to rule that Beaston take nothing. This opinion created new obstacles for consumers who are deceived by insurers." Facts: State Farm Insurance Co. v. Beaston, 907 S.W.2d 430 (Tex. 1995) ? ? A bipartisan majority of the Texas Supreme Court agreed that, because the plaintiff's husband decided not to renew his insurance policy, the plaintiff was not entitled to receive benefits after her husband's death. u David Beaston failed to pay the premium on his life insurance policy by its due date of December 28, 1983. The policy lapsed on that day, and the 31-day grace period expired on January 28, 1984 three days before the husband died. u Because the husband's death occurred after the expiration of his life insurance policy, the Court held, the wife had no right to receive benefits. An even larger majority (with just two Justices dissenting) joined Justice Owen in ruling that the wife was not entitled to recover "mental anguish damages," since the jury did not find that the insurance company had acted knowingly. u Under Texas common law and other statutes, plaintiffs are not entitled to "mental anguish damages" unless they convince a jury that the defendant acted knowingly. u Justice Owen simply construed the Texas Insurance Code to be consistent with another act of the legislature (which was passed at the same time as the Insurance Code), and with the common law of tort. u The trial judge likewise had concluded that mental anguish damages are available only if the jury finds that the defendant acted knowingly. EXT-18-2091-C-000288 007104-001009 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 48 State Farm Lloyds v. Nicolau Bad Faith by Insurers Allegation: In a case finding that an insurer breached its contract and acted in bad faith in denying most of the plaintiff's claims for foundation damage to their home, Justice Owen joined a dissent that reweighed the trial court evidence and found that no tort was committed at all. The dissent itself was striking in its disdain for plaintiffs in general. Facts: State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997) & The dissent, joined by Justice Owen and 3 other justices including Democrat Raul Gonzalez, focused on the Texas Supreme Court's failure to define the limits of bad faith liability. u The opinion stated: "Individuals and entities, even insurance companies, are entitled to know before they act what the law expects of them, what behavior is culpable and what is not. A legal cause of action must be adequately defined by principles and standards." u A court of appeals also noted the problem, stating that the Texas Supreme Court "has ultimately done little to provide lower courts with any guidance for conducting a legal sufficiency review in bad faith cases." & The dissent specifically stated that as a reviewing court, it was not reweighing the evidence, "as that is the province of the jury." The dissent, following well-settled principles, viewed the evidence in the light most favorable to the plaintiffs, and determined that the evidence did not support the jury's finding of bad faith a finding also arrived at by the trial court. & Rather than criticizing the jury finding, the dissent sympathized with jurors who had to grapple with a decision on bad faith liability without being told what the clear legal standard was to apply. & The dissent found that, even using the bad faith standard set forth in the majority opinion that an insurer breaches its duty when it "fails to settle a claim if [it] knew or should have known that it was reasonably clear that a claim was covered," the insurance company should not have been liable. u & The dissent argued that the evidence showed that there was a legitimate dispute among the experts hired by each side. The dissent, far from attacking plaintiffs, criticizes a system that encourages attorneys to add an allegation of bad faith to the complaint, because the odds of recovery regardless of the facts are good. EXT-18-2091-C-000289 007104-001010 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 48 State Farm Lloyds v. Nicolau Bad Faith by Insurers Allegation: In a case finding that an insurer breached its contract and acted in bad faith in denying most of the plaintiff's claims for foundation damage to their home, Justice Owen joined a dissent that reweighed the trial court evidence and found that no tort was committed at all. The dissent itself was striking in its disdain for plaintiffs in general. Facts: State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997) & The dissent, joined by Justice Owen and 3 other justices including Democrat Raul Gonzalez, focused on the Texas Supreme Court's failure to define the limits of bad faith liability. u The opinion stated: "Individuals and entities, even insurance companies, are entitled to know before they act what the law expects of them, what behavior is culpable and what is not. A legal cause of action must be adequately defined by principles and standards." u A court of appeals also noted the problem, stating that the Texas Supreme Court "has ultimately done little to provide lower courts with any guidance for conducting a legal sufficiency review in bad faith cases." & The dissent specifically stated that as a reviewing court, it was not reweighing the evidence, "as that is the province of the jury." The dissent, following well-settled principles, viewed the evidence in the light most favorable to the plaintiffs, and determined that the evidence did not support the jury's finding of bad faith a finding also arrived at by the trial court. & Rather than criticizing the jury finding, the dissent sympathized with jurors who had to grapple with a decision on bad faith liability without being told what the clear legal standard was to apply. & The dissent found that, even using the bad faith standard set forth in the majority opinion that an insurer breaches its duty when it "fails to settle a claim if [it] knew or should have known that it was reasonably clear that a claim was covered," the insurance company should not have been liable. u & The dissent argued that the evidence showed that there was a legitimate dispute among the experts hired by each side. The dissent, far from attacking plaintiffs, criticizes a system that encourages attorneys to add an allegation of bad faith to the complaint, because the odds of recovery regardless of the facts are good. EXT-18-2091-C-000289 007104-001010 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 49 Stier v. Reading & Bates Corp. Federal Preemption and Workplace Injury Allegation: Justice Owen wrote the majority opinion holding that the federal Jones Act (which provides broad remedies to injured seamen) preempted the state claims of a German worker injured near Trinidad on an off-shore drilling rig owned by a Texas company. Facts: Stier v. Reading & Bates Corp., 992 S.W.2d 423 (Tex. 1999) O The plaintiff was a German citizen, resided in Brazil, was not a citizen of the U.S., was not a resident of the U.S., and was injured on an offshore drilling vessel berthed in Trinidad. The plaintiff sued his employer, a Texas company, for injuries suffered on the deck of a rig when he was hit in the head by a hook on a sling operated by others. O Under the specific case facts, federal law mandates that the case not be heard in Texas because federal law preempts state law. O Justice Owen's opinion relied, among other law, upon two United States Supreme Court decisions, American Dredging Co. v. Miller, 510 U.S. 443 (1994) and Southern Pacific Co. v. Jensen, 244 U.S. 205, 61 L. Ed. 1086, 37 S. Ct. 524 (1917). O The plaintiff, Mr. Stier, does not dispute that he was a foreign seaman employed in the exploration of offshore energy sources or that he has remedy for his injuries under the laws of Trinidad, Germany, or Brazil. EXT-18-2091-C-000290 007104-001011 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 49 Stier v. Reading & Bates Corp. Federal Preemption and Workplace Injury Allegation: Justice Owen wrote the majority opinion holding that the federal Jones Act (which provides broad remedies to injured seamen) preempted the state claims of a German worker injured near Trinidad on an off-shore drilling rig owned by a Texas company. Facts: Stier v. Reading & Bates Corp., 992 S.W.2d 423 (Tex. 1999) ? The plaintiff was a German citizen, resided in Brazil, was not a citizen of the U.S., was not a resident of the U.S., and was injured on an offshore drilling vessel berthed in Trinidad. The plaintiff sued his employer, a Texas company, for injuries suffered on the deck of a rig when he was hit in the head by a hook on a sling operated by others. ? Under the specific case facts, federal law mandates that the case not be heard in Texas because federal law preempts state law. ? Justice Owen's opinion relied, among other law, upon two United States Supreme Court decisions, American Dredging Co. v. Miller, 510 U.S. 443 (1994) and Southern Pacific Co. v. Jensen, 244 U.S. 205, 61 L. Ed. 1086, 37 S. Ct. 524 (1917). ? The plaintiff, Mr. Stier, does not dispute that he was a foreign seaman employed in the exploration of offshore energy sources or that he has remedy for his injuries under the laws of Trinidad, Germany, or Brazil. EXT-18-2091-C-000290 007104-001011 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 50 Stringer v. Cendant Mortgage Corp. Consumer Protections from Home Equity Lenders Allegation: Justice Owen joined a majority opinion gutting the consumer protections in a Texas state constitutional amendment in which home equity lenders were prohibited from forcing borrowers to apply home equity loan funds to other debts. The opinion was activist and anti-consumer. Facts: Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353 (Tex. 2000) O The Fifth Circuit Court of Appeals, seeking clarification of Texas law, certified the question to the Texas Supreme Court of whether a home-equity lender may require the borrower to pay off third party debt that is not secured by the home with the proceeds of the home equity loan. u O O The Texas Supreme Court, in a unanimous opinion, applied well-settled rules of constitutional interpretation and relied upon the plain meaning of the text. u The court found that the first section, which provided the substantive rights and obligations of lenders and borrowers, allowed lenders to require a borrower to pay off debts secured by the home or debts to third party creditors. u The second section only provided the language for the mandatory notice to borrowers, and laid out no rights or obligation under the Amendment. The unanimous court held that the substantive provisions of the amendment, which allowed lenders to require a borrower to pay off debts to third party creditors, prevailed over the notice provision. u O The Fifth Circuit found that two sections of the constitutional amendment conflict and could not be reconciled. The Regulatory Commentary on Equity Lending Procedures, which represents four Texas administrative agencies' interpretation of the Home Equity Constitutional Amendment, supported the court's interpretation. In an extra effort to provide protection to consumers, the unanimous court required all home equity lenders to include in their notice to borrowers, information about the conflict in the amendment and the court's ruling on the conflict. EXT-18-2091-C-000291 007104-001012 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 50 Stringer v. Cendant Mortgage Corp. Consumer Protections from Home Equity Lenders Allegation: Justice Owen joined a majority opinion gutting the consumer protections in a Texas state constitutional amendment in which home equity lenders were prohibited from forcing borrowers to apply home equity loan funds to other debts. The opinion was activist and anti-consumer. Facts: Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353 (Tex. 2000) ? The Fifth Circuit Court of Appeals, seeking clarification of Texas law, certified the question to the Texas Supreme Court of whether a home-equity lender may require the borrower to pay off third party debt that is not secured by the home with the proceeds of the home equity loan. u ? ? The Texas Supreme Court, in a unanimous opinion, applied well-settled rules of constitutional interpretation and relied upon the plain meaning of the text. u The court found that the first section, which provided the substantive rights and obligations of lenders and borrowers, allowed lenders to require a borrower to pay off debts secured by the home or debts to third party creditors. u The second section only provided the language for the mandatory notice to borrowers, and laid out no rights or obligation under the Amendment. The unanimous court held that the substantive provisions of the amendment, which allowed lenders to require a borrower to pay off debts to third party creditors, prevailed over the notice provision. u ? The Fifth Circuit found that two sections of the constitutional amendment conflict and could not be reconciled. The Regulatory Commentary on Equity Lending Procedures, which represents four Texas administrative agencies' interpretation of the Home Equity Constitutional Amendment, supported the court's interpretation. In an extra effort to provide protection to consumers, the unanimous court required all home equity lenders to include in their notice to borrowers, information about the conflict in the amendment and the court's ruling on the conflict. EXT-18-2091-C-000291 007104-001012 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 51 Texas Utilities Electric Co. v. Timmons Attractive Nuisance Doctrine Allegation: Justice Owen joined a majority opinion that reinstated a trial court's summary judgment for the power company in a case where a 14 year-old boy was electrocuted while climbing an electric tower in his neighborhood. The opinion failed to follow precedent on "attractive nuisance," and was activist, anticonsumer, and anti-jury. Facts: Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997) & The majority opinion, joined by Justice Owen and six other justices, agreed with the trial court, which granted summary judgment to the utility. The Texas Supreme Court held that based on precedent, the boy's mother could not invoke the attractive nuisance doctrine. & The majority applied well-settled law on the attractive nuisance doctrine, where a landowner may be held liable for physical harm to a trespassing child caused by a dangerous condition on the land if, among other requirements, the child, because of his youth, did not realize the risk. & The majority found that the boy, who was 14 years-old, was mature enough to be aware of the risk and was actually aware of the risk. & u There was testimony that the boy's family and friends had repeatedly warned the boy not to climb the tower because it was dangerous. u There was testimony that while he was climbing the tower, the boy acknowledged but refused to heed his friends' warnings to him that he could be electrocuted and that he should come down. u Prior to climbing the tower, the 14 year-old boy had spent the evening drinking beer and malt liquor at a friends house. His blood alcohol level was .10, Texas' legal standard for intoxication. The court had previously refused to apply the attractive nuisance doctrine to a youth who had climbed an electrical tower and was injured by electrical arcing, as this boy was, because the youth realized the risk of being near electrical wires, even if he was not aware of arcing where the electricity could arc from a line into a nearby object that was not touching the line. u The majority distinguished cases applying the doctrine in other electrical tower cases that did not include similar warnings and barricades. EXT-18-2091-C-000292 007104-001013 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 51 Texas Utilities Electric Co. v. Timmons Attractive Nuisance Doctrine Allegation: Justice Owen joined a majority opinion that reinstated a trial court's summary judgment for the power company in a case where a 14 year-old boy was electrocuted while climbing an electric tower in his neighborhood. The opinion failed to follow precedent on "attractive nuisance," and was activist, anticonsumer, and anti-jury. Facts: Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997) & The majority opinion, joined by Justice Owen and six other justices, agreed with the trial court, which granted summary judgment to the utility. The Texas Supreme Court held that based on precedent, the boy's mother could not invoke the attractive nuisance doctrine. & The majority applied well-settled law on the attractive nuisance doctrine, where a landowner may be held liable for physical harm to a trespassing child caused by a dangerous condition on the land if, among other requirements, the child, because of his youth, did not realize the risk. & The majority found that the boy, who was 14 years-old, was mature enough to be aware of the risk and was actually aware of the risk. & u There was testimony that the boy's family and friends had repeatedly warned the boy not to climb the tower because it was dangerous. u There was testimony that while he was climbing the tower, the boy acknowledged but refused to heed his friends' warnings to him that he could be electrocuted and that he should come down. u Prior to climbing the tower, the 14 year-old boy had spent the evening drinking beer and malt liquor at a friends house. His blood alcohol level was .10, Texas' legal standard for intoxication. The court had previously refused to apply the attractive nuisance doctrine to a youth who had climbed an electrical tower and was injured by electrical arcing, as this boy was, because the youth realized the risk of being near electrical wires, even if he was not aware of arcing where the electricity could arc from a line into a nearby object that was not touching the line. u The majority distinguished cases applying the doctrine in other electrical tower cases that did not include similar warnings and barricades. EXT-18-2091-C-000292 007104-001013 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 52 u In this case, the tower was 90 feet tall and did not have a ladder allowing access to the top. The boy had to climb the actual tower by using the metal braces supporting each side. u The utility had erected a 12 1/2 foot barricade around the tower that was encircled by barbed wire. u There were signs posted on the barricade stating: "KEEP AWAY" "DANGER" "WIRES HEAVILY ELECTRIFIED" EXT-18-2091-C-000293 007104-001014 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 52 u In this case, the tower was 90 feet tall and did not have a ladder allowing access to the top. The boy had to climb the actual tower by using the metal braces supporting each side. u The utility had erected a 12 1/2 foot barricade around the tower that was encircled by barbed wire. u There were signs posted on the barricade stating: "KEEP AWAY" "DANGER" "WIRES HEAVILY ELECTRIFIED" EXT-18-2091-C-000293 007104-001014 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 53 Timberwalk Apartments v. Cain Duty of Landlords to Protect against Crime Allegation: In a case where a woman alleged that she was raped in her apartment because her landlord failed to provide adequate security, Justice Owen joined in the majority opinion overruling the court of appeals' grant of a new trial to the plaintiff. Ruling that, as a matter of law, the defendant owed no duty to provide additional security, the majority took what should have been a factual finding away from a jury. Facts: Timberwalk Apartments v. Cain, 972 S.W.2d 749 (Tex. 1998) & The Texas Supreme Court unanimously found that the risk that a tenant would be sexually assaulted was not foreseeable to Timberwalk, the apartment owners. It is well settled law, that if there is not a foreseeable risk of the crime in question, there can be no duty to provide security measures against such a crime. ? Justice Spector, a Democrat, analyzed in her concurrence whether there was a duty under her own broader criteria and came to the same conclusion as the majority: "Cain presented no evidence that the character, use made, or location of the apartment complex created a heightened risk of foreseeable criminal conduct. I therefore concur in the Court's rendition of judgment for Timberwalk." & The court unanimously agreed that whether a duty exists is a question of law for the court to decide under the facts surrounding the occurrence in question. The court followed well-settled law, its own precedent, and the Restatement (Second) of Torts. & The second defendant in the case, the apartment management company, had not argued on appeal that it had no duty to provide special security measures against the crime in question. The court unanimously agreed that the case as to the second defendant would be remanded for a new trial. ? Rather than being hostile to the decisions made by juries, the court, including Justice Owen, recognized that an improper jury instruction was reversible error in the case and sent the case against the second defendant back for a new trial. & Critics claim that Justice Spector's concurrence criticized the majority's opinion for ignoring caselaw on other foreseeability evidence. She does cite caselaw from other states not binding on Texas, but ultimately agrees with the majority that there was no duty under her more stringent standard as well. EXT-18-2091-C-000294 007104-001015 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 53 Timberwalk Apartments v. Cain Duty of Landlords to Protect against Crime Allegation: In a case where a woman alleged that she was raped in her apartment because her landlord failed to provide adequate security, Justice Owen joined in the majority opinion overruling the court of appeals' grant of a new trial to the plaintiff. Ruling that, as a matter of law, the defendant owed no duty to provide additional security, the majority took what should have been a factual finding away from a jury. Facts: Timberwalk Apartments v. Cain, 972 S.W.2d 749 (Tex. 1998) & The Texas Supreme Court unanimously found that the risk that a tenant would be sexually assaulted was not foreseeable to Timberwalk, the apartment owners. It is well settled law, that if there is not a foreseeable risk of the crime in question, there can be no duty to provide security measures against such a crime. O Justice Spector, a Democrat, analyzed in her concurrence whether there was a duty under her own broader criteria and came to the same conclusion as the majority: "Cain presented no evidence that the character, use made, or location of the apartment complex created a heightened risk of foreseeable criminal conduct. I therefore concur in the Court's rendition of judgment for Timberwalk." & The court unanimously agreed that whether a duty exists is a question of law for the court to decide under the facts surrounding the occurrence in question. The court followed well-settled law, its own precedent, and the Restatement (Second) of Torts. & The second defendant in the case, the apartment management company, had not argued on appeal that it had no duty to provide special security measures against the crime in question. The court unanimously agreed that the case as to the second defendant would be remanded for a new trial. O Rather than being hostile to the decisions made by juries, the court, including Justice Owen, recognized that an improper jury instruction was reversible error in the case and sent the case against the second defendant back for a new trial. & Critics claim that Justice Spector's concurrence criticized the majority's opinion for ignoring caselaw on other foreseeability evidence. She does cite caselaw from other states not binding on Texas, but ultimately agrees with the majority that there was no duty under her more stringent standard as well. EXT-18-2091-C-000294 007104-001015 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 54 Universe Life Insurance Co. v. Giles "Bad Faith" in Insurance Cases Allegation: "In this bad-faith insurance case, the majority overturned the jury's punitive damages award citing a lack of evidence. Owen joined a more extreme dissent that would have directed judges to replace juries in making bad-faith determinations. The majority criticized this dissent, saying it 'would take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.'" Facts: Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) ? Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." ? She also joined a concurring opinion along with other colleagues from both political parties which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. ? ? u Allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. u Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court. They can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). u To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." u The concurrence reflects the view that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." u According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. u The majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. Justice Owen joined, but did not author, the concurrence. EXT-18-2091-C-000295 007104-001016 Document ID: 0.7.19343.8067-000001 Priscilla Owen: Myth vs. Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 54 Universe Life Insurance Co. v. Giles "Bad Faith" in Insurance Cases Allegation: "In this bad-faith insurance case, the majority overturned the jury's punitive damages award citing a lack of evidence. Owen joined a more extreme dissent that would have directed judges to replace juries in making bad-faith determinations. The majority criticized this dissent, saying it 'would take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.'" Facts: Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) O Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." O She also joined a concurring opinion along with other colleagues from both political parties which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. O O u Allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. u Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court. They can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). u To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." u The concurrence reflects the view that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." u According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. u The majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. Justice Owen joined, but did not author, the concurrence. EXT-18-2091-C-000295 007104-001016 Document ID: 0.7.19343.8067-000001 Sales, Nathan From: Sent: To: Subject: Attachments: Sales, Nathan Monday, July 22, 2002 4:57 PM Brett Kavanaugh (E-mail) Owen reports boydengrayreport.pdf; cfjreport.pdf; cfjreport2.pdf; cwfareport.pdf EXT-18-2091-C-000296 007104-001017 Document ID: 0.7.19343.5135 Sales, Nathan From: Sent: To: Subject: Attachments: Sales, Nathan Monday, July 22, 2002 4:57 PM Brett Kavanaugh (E-mail) Owen reports boydengrayreport.pdf; cfjreport.pdf; cfjreport2.pdf; cwfareport.pdf EXT-18-2091-C-000296 007104-001017 Document ID: 0.7.19343.5135 PRISCILLA OWEN: A RESTRAINED, PRINCIPLED J URIST BY C. BOYDEN GRAY Mr. C. Boyden Gray served as Counsel to President George H.W. Bush from 1989-1993. Mr. Gray is a graduate ofHarvard University (A.B. 1964, magna cum laude) and the University of North Carolina (J.D. 1968), where he served as Editor-in-Chief ofthe UNC Law Review. Following graduation from law school, he clerked for ChiefJustice Earl Warren of the U.S. Supreme Court. EXT-18-2091-C-000297 007104-001018 Document ID: 0.7.19343.5135-000001 PRISCILLA OWEN: A RESTRAINED, PRINCIPLED J URIST BY C. BOYDEN GRAY Mr. C. Boyden Gray served as Counsel to President George H.W. Bush from 1989-1993. Mr. Gray is a graduate ofHarvard University (A.B. 1964, magna cum laude) and the University of North Carolina (J.D. 1968), where he served as Editor-in-Chief ofthe UNC Law Review. Following graduation from law school, he clerked for ChiefJustice Earl Warren of the U.S. Supreme Court. EXT-18-2091-C-000297 007104-001018 Document ID: 0.7.19343.5135-000001 The Ninth Circuit's recent decision to hold the pledge of allegiance unconstitutional1 serves as a vivid reminder that the federal bench must be staffed by jurists who are committed to deciding cases according to the law, not their personal policy preferences. Judges are neither legislators nor constitutional drafters, and it is an abuse of power to use the judicial office to impose one's political views in the guise of legal interpretation. Though startling, and inconsistent with America's constitutional traditions, the Ninth Circuit's ruling has provoked a nationwide civics lesson. The pledge decision presents an opportunity for the American people to reconsider what sort of judges should be confirmed to the federal bench. And at a more general level, it is an occasion to revisit the issues of the judiciary's proper role in a democratic system of government, and what is meant by "judicial activism" and "judicial restraint." Ultimately, judicial restraint is an appreciation for the judiciary's limited powers, and a reluctance to usurp prerogatives that the Constitution assigns or reserves to the other branches of government. In particular, restrained judges: . . . . . . adhere faithfully to binding precedent issued by higher courts, especially the United States Supreme Court; defer to the policy choices the legislature enacts into positive law, and refrain from substituting their views for those of the legislature; interpret the Constitution and laws enacted by the legislature as intended by those who wrote them; respect the traditional authority of trial courts, which are in the best position to assess the credibility and demeanor of witnesses, to make factual findings; uphold the right of individuals to take actions which the law permits them to take; and approach each case without any preconceived notions, or reflexively siding with any one litigant. Judged by any of these criteria, Justice Priscilla Owen of the Texas Supreme Court, whom the President has nominated to a vacancy on the U.S. Court of Appeals for the Fifth Circuit, undoubtedly is a restrained and principled jurist. Time and again, in her opinions Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver. Justice Owen consistently has interpreted Texas statutes in light of the binding precedents of the United States Supreme Court. She has deferred to the enactments of the Texas Legislature, denying that judges legitimately can interpret statutory language to reflect their own political or ideological commitments. And she has declined, as an appellate judge, to meddle with the traditional prerogative of the trial courts to make findings of fact. 1 See Newdow v. U.S. Congress, No. 00 16423 (9th Cir. June 26, 2002). 2 EXT-18-2091-C-000298 007104-001019 Document ID: 0.7.19343.5135-000001 The Ninth Circuit's recent decision to hold the pledge of allegiance unconstitutional1 serves as a vivid reminder that the federal bench must be staffed by jurists who are committed to deciding cases according to the law, not their personal policy preferences. Judges are neither legislators nor constitutional drafters, and it is an abuse of power to use the judicial office to impose one's political views in the guise of legal interpretation. Though startling, and inconsistent with America's constitutional traditions, the Ninth Circuit's ruling has provoked a nationwide civics lesson. The pledge decision presents an opportunity for the American people to reconsider what sort of judges should be confirmed to the federal bench. And at a more general level, it is an occasion to revisit the issues of the judiciary's proper role in a democratic system of government, and what is meant by "judicial activism" and "judicial restraint." Ultimately, judicial restraint is an appreciation for the judiciary's limited powers, and a reluctance to usurp prerogatives that the Constitution assigns or reserves to the other branches of government. In particular, restrained judges: ? ? ? ? ? ? adhere faithfully to binding precedent issued by higher courts, especially the United States Supreme Court; defer to the policy choices the legislature enacts into positive law, and refrain from substituting their views for those of the legislature; interpret the Constitution and laws enacted by the legislature as intended by those who wrote them; respect the traditional authority of trial courts, which are in the best position to assess the credibility and demeanor of witnesses, to make factual findings; uphold the right of individuals to take actions which the law permits them to take; and approach each case without any preconceived notions, or reflexively siding with any one litigant. Judged by any of these criteria, Justice Priscilla Owen of the Texas Supreme Court, whom the President has nominated to a vacancy on the U.S. Court of Appeals for the Fifth Circuit, undoubtedly is a restrained and principled jurist. Time and again, in her opinions Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver. Justice Owen consistently has interpreted Texas statutes in light of the binding precedents of the United States Supreme Court. She has deferred to the enactments of the Texas Legislature, denying that judges legitimately can interpret statutory language to reflect their own political or ideological commitments. And she has declined, as an appellate judge, to meddle with the traditional prerogative of the trial courts to make findings of fact. 1 See Newdow v. U.S. Congress, No. 00 16423 (9th Cir. June 26, 2002). 2 EXT-18-2091-C-000298 007104-001019 Document ID: 0.7.19343.5135-000001 The discussion below demonstrates Justice Owen's fidelity to these and other jurisprudential pillars, a fidelity that earned her a unanimous "well-qualified" rating from the American Bar Association, the highest rating a judicial nominee can possibly achieve. We agree that Justice Owen is superlatively well suited to occupy a seat on the Fifth Circuit, and we urge the Senate to approve her nomination as soon as possible. I. Balancing the Rights of Protesters and Patients: Operation Rescue v. Planned Parenthood Judges often are faced with difficult cases where the rights of individual parties collide. The judge is left with the delicate task of balancing the rights of both parties in accordance with the law. Justice Owen's decision to join the majority in Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc. 2 is compelling evidence of her commitment to decide cases according to the governing law. Consistent with the rule of law, the majority neutrally balanced the competing interests of two mutually antagonistic sets of litigants: abortion providers and pro-life activists. According to the Court, "[a]ccommodating interests like property and privacy rights along with free expression often necessitates limitations on all of them."3 In Operation Rescue, the Court upheld the vast majority of restrictions the trial judge imposed on the pro-life protesters. Although the majority made several modifications to the trial court's order for example, reducing the size of buffer zones surrounding abortion clinics it ultimately approved an injunction that (1 ) established buffer zones around certain abortion clinics and providers' homes, where active protests were taking place; (2) prohibited more than two activists from entering a protest zone at any given time; (3) prohibited protesters from shouting or yelling; (4) prohibited more than a single demonstrator from approaching patients to offer "sidewalk counseling"; (5) prohibited demonstrators from approaching a given patient more than once when she enters the clinic and once when she leaves; and (6) required demonstrators to stop talking to patients when they indicated a desire to be left alone. According to the Court, the modified injunction "protects the demonstrators' right to engage in peaceful speech. At the same time, the provision ensures that the demonstrators will not interfere with the significant government interests protected by the buffer zone."4 The majority including Justice Owen also upheld the trial court's decision to assess over $1 million in punitive damages against the protesters. 5 At the time it was handed down, the Operation Rescue decision was universally regarded as a victory for the abortion providers, even though some groups now claim that the majority's opinion "displayed unwillingness to protect abortion clinics from 2 975 S.W.2d 546 (Tex. 1998). Id. at 555. 4 Id. at 567 5 See id. at 569. 3 3 EXT-18-2091-C-000299 007104-001020 Document ID: 0.7.19343.5135-000001 The discussion below demonstrates Justice Owen's fidelity to these and other jurisprudential pillars, a fidelity that earned her a unanimous "well-qualified" rating from the American Bar Association, the highest rating a judicial nominee can possibly achieve. We agree that Justice Owen is superlatively well suited to occupy a seat on the Fifth Circuit, and we urge the Senate to approve her nomination as soon as possible. I. Balancing the Rights of Protesters and Patients: Operation Rescue v. Planned Parenthood Judges often are faced with difficult cases where the rights of individual parties collide. The judge is left with the delicate task of balancing the rights of both parties in accordance with the law. Justice Owen's decision to join the majority in Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc. 2 is compelling evidence of her commitment to decide cases according to the governing law. Consistent with the rule of law, the majority neutrally balanced the competing interests of two mutually antagonistic sets of litigants: abortion providers and pro-life activists. According to the Court, "[a]ccommodating interests like property and privacy rights along with free expression often necessitates limitations on all of them."3 In Operation Rescue, the Court upheld the vast majority of restrictions the trial judge imposed on the pro-life protesters. Although the majority made several modifications to the trial court's order for example, reducing the size of buffer zones surrounding abortion clinics it ultimately approved an injunction that (1 ) established buffer zones around certain abortion clinics and providers' homes, where active protests were taking place; (2) prohibited more than two activists from entering a protest zone at any given time; (3) prohibited protesters from shouting or yelling; (4) prohibited more than a single demonstrator from approaching patients to offer "sidewalk counseling"; (5) prohibited demonstrators from approaching a given patient more than once when she enters the clinic and once when she leaves; and (6) required demonstrators to stop talking to patients when they indicated a desire to be left alone. According to the Court, the modified injunction "protects the demonstrators' right to engage in peaceful speech. At the same time, the provision ensures that the demonstrators will not interfere with the significant government interests protected by the buffer zone."4 The majority including Justice Owen also upheld the trial court's decision to assess over $1 million in punitive damages against the protesters. 5 At the time it was handed down, the Operation Rescue decision was universally regarded as a victory for the abortion providers, even though some groups now claim that the majority's opinion "displayed unwillingness to protect abortion clinics from 2 975 S.W.2d 546 (Tex. 1998). Id. at 555. 4 Id. at 567 5 See id. at 569. 3 3 EXT-18-2091-C-000299 007104-001020 Document ID: 0.7.19343.5135-000001 harassing protesters."6 For instance, at the time, a Planned Parenthood officer hailed the decision as "a complete and total victory."7 Planned Parenthood's attorney in the case said of the ruling: "It wasn't a home run. It was a grand slam."8 Moreover, Justice Owen declined to join Justice Raul Gonzales's partial dissent, which argued that the injunction offended the protesters' free speech rights. 9 The political expediency of the group's revised interpretation, which distorts the decision beyond all recognition, is apparent. II. Deference to the United States Supreme Court: Doe 1(I) and Doe 2 Judicial restraint and indeed the rule of law requires that judges on lower courts commit themselves to following the binding precedents of superior tribunals: "As applied in a hierarchical system of courts, the duty of a subordinate court to follow the laws as announced by superior courts is theoretically absolute."1 0 In both In re Jane Doe ("Doe 1(I)")1 1 and In re Jane Doe 2 ("Doe 2"), 1 2 Justice Owen conscientiously applied U.S. Supreme Court precedents dealing with what underage girls must prove before they can have an abortion without telling their parents. Her opinions recognized that the U.S. Supreme Court had interpreted the precise language used in the Texas Parental Notification Act in other cases before the law was enacted. In such a case, canons of judicial construction require that a judge presume that the legislature was aware of the precedent and intended to incorporate it into the legislation. In a word, Justice Owen was reading the Texas statute in light of the pronouncements of the highest court in the land. Needless to say, Justice Owen's reading of the statute is not the only reasonable interpretation of what the Legislature intended; other members of the Court could, and certainly did, reach different conclusions about the Legislature's intent. But Justice Owen's stated commitment to implement the Legislature's will belies any claim that she was seeking to substitute her views, whatever they may be, for those of the people's elected representatives. Like all of the twelve Parental Notification Act cases the Texas Supreme Court has handed down to date, Doe 1(I) and Doe 2 required the Court to interpret a Texas statute that lays down the general rule that at least one parent of an underage girl must 6 See National Abortion Federation Report on Priscilla Owen at 2 (2002) ("NAF Report"). Juan B. Elizondo Jr., Abortion Clinic Buffers Reined in, AUSTIN AM. STATESMAN, July 4, 1998, at B2 (quoting Judy Reiner, senior vice president for Planned Parenthood of Houston and Southeast Texas). 8 Clay Robinson, Anti Abortion Protesters Lose '92 Case Ruling; $1.2 Million in Damages Upheld, HOUSTON CHRON., July 4, 1998, at A1 (quoting Neal Manne, attorney for Planned Parenthood of Houston and Southeast Texas). 9 See Operation Rescue, 975 S.W.2d at 573 84 (Gonzales, J., concurring in part and dissenting in part). 10 1B JAMES W. MOORE ET AL., MOORE' S FEDERAL PRACTICE ? 0.401, at I 2 (2d ed. 1993). 11 19 S.W.3d 249 (Tex. 2000). The Texas Supreme Court uses Arabic and Roman numerals to differentiate the multiple parental notification cases it has heard. In a given case, the Arabic numeral refers to the identity of the girl, and the Roman numeral specifies which appearance the girl is making before the Texas Supreme Court. So, for example, "Doe 1(I)" signifies the first Jane Doe plaintiff in her first appearance before the Court. 12 19 S.W.3d 278 (Tex. 2000). 7 4 EXT-18-2091-C-000300 007104-001021 Document ID: 0.7.19343.5135-000001 harassing protesters."6 For instance, at the time, a Planned Parenthood officer hailed the decision as "a complete and total victory."7 Planned Parenthood's attorney in the case said of the ruling: "It wasn't a home run. It was a grand slam."8 Moreover, Justice Owen declined to join Justice Raul Gonzales's partial dissent, which argued that the injunction offended the protesters' free speech rights. 9 The political expediency of the group's revised interpretation, which distorts the decision beyond all recognition, is apparent. II. Deference to the United States Supreme Court: Doe 1(I) and Doe 2 Judicial restraint and indeed the rule of law requires that judges on lower courts commit themselves to following the binding precedents of superior tribunals: "As applied in a hierarchical system of courts, the duty of a subordinate court to follow the laws as announced by superior courts is theoretically absolute."1 0 In both In re Jane Doe ("Doe 1(I)")1 1 and In re Jane Doe 2 ("Doe 2"), 1 2 Justice Owen conscientiously applied U.S. Supreme Court precedents dealing with what underage girls must prove before they can have an abortion without telling their parents. Her opinions recognized that the U.S. Supreme Court had interpreted the precise language used in the Texas Parental Notification Act in other cases before the law was enacted. In such a case, canons of judicial construction require that a judge presume that the legislature was aware of the precedent and intended to incorporate it into the legislation. In a word, Justice Owen was reading the Texas statute in light of the pronouncements of the highest court in the land. Needless to say, Justice Owen's reading of the statute is not the only reasonable interpretation of what the Legislature intended; other members of the Court could, and certainly did, reach different conclusions about the Legislature's intent. But Justice Owen's stated commitment to implement the Legislature's will belies any claim that she was seeking to substitute her views, whatever they may be, for those of the people's elected representatives. Like all of the twelve Parental Notification Act cases the Texas Supreme Court has handed down to date, Doe 1(I) and Doe 2 required the Court to interpret a Texas statute that lays down the general rule that at least one parent of an underage girl must 6 See National Abortion Federation Report on Priscilla Owen at 2 (2002) ("NAF Report"). Juan B. Elizondo Jr., Abortion Clinic Buffers Reined in, AUSTIN AM. STATESMAN, July 4, 1998, at B2 (quoting Judy Reiner, senior vice president for Planned Parenthood of Houston and Southeast Texas). 8 Clay Robinson, Anti Abortion Protesters Lose '92 Case Ruling; $1.2 Million in Damages Upheld, HOUSTON CHRON., July 4, 1998, at A1 (quoting Neal Manne, attorney for Planned Parenthood of Houston and Southeast Texas). 9 See Operation Rescue, 975 S.W.2d at 573 84 (Gonzales, J., concurring in part and dissenting in part). 10 1B JAMES W. MOORE ET AL., MOORE' S FEDERAL PRACTICE ? 0.401, at I 2 (2d ed. 1993). 11 19 S.W.3d 249 (Tex. 2000). The Texas Supreme Court uses Arabic and Roman numerals to differentiate the multiple parental notification cases it has heard. In a given case, the Arabic numeral refers to the identity of the girl, and the Roman numeral specifies which appearance the girl is making before the Texas Supreme Court. So, for example, "Doe 1(I)" signifies the first Jane Doe plaintiff in her first appearance before the Court. 12 19 S.W.3d 278 (Tex. 2000). 7 4 EXT-18-2091-C-000300 007104-001021 Document ID: 0.7.19343.5135-000001 be notified before the girl can have an abortion. 1 3 The statute contains three exceptions to that rule: a parent need not be notified if: (1 ) the girl is "mature and sufficiently well informed"; (2) "notification would not be in the best interest of the minor"; or (3) "notification may lead to physical, sexual, or emotional abuse of the minor."1 4 None of the parental notification cases involved any dispute over whether the Constitution guarantees the right to an abortion, or even the scope of that right. Instead, the cases dealt with routine legal issues such as the proper method of interpreting a statute, and the degree of deference an appellate court owes to a trial court's factual findings.1 5 As the majority in Doe 1(I) emphasized, "[w]e are not called upon to decide the constitutionality or wisdom of abortion. Arguments for or against abortion do not advance the issue of statutory construction presented by this case. Instead, our sole function is to interpret and apply the statute enacted by our Legislature."1 6 It should go without saying that a decision to deny a girl a judicial bypass, pursuant to standards established by the state Legislature, does not prevent her from having an abortion; it only requires that one of her parents know about it before she does so. In Doe 1(I), the Court interpreted the first exception to the general rule that parents must receive notice that their minor daughter is seeking an abortion: notice is not necessary when the girl is "mature and sufficiently well informed."1 7 Justice Owen 13 See TEX. FAM. CODE ? 33.002(1) (2000): (a) A physician may not perform an abortion on a pregnant unemancipated minor unless: (1) the physician performing the abortion gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to: (A) a parent of the minor, if the minor has no managing conservator or guardian; or (B) a court appointed managing conservator or guardian. 14 Id. ? 33.003(i). The complete text of the exceptions reads as follows: The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, or whether notification may lead to physical, sexual, or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor's best interest, or that notification may lead to physical, sexual, or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents or a managing conservator or guardian and shall execute the required forms. 15 In some of these cases, Justice Owen has gone out of her way to express her view that certain statutory restrictions on abortion would violate the Constitution. For instance, the U.S. Supreme Court has held that a parental consent statute must contain a judicial bypass provision to be constitutional, see Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 439 42 (1983) ("Akron I"), but it has left unsettled whether parental notification statutes, like Texas's, must allow for judicial bypass, see Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 510 (1990) ("Akron II"). Nevertheless, Justice Owen reasoned that "there is reasoning in [Supreme Court precedent] that would suggest that the United States Supreme Court might hold that bypass procedures are necessary in notification statutes." Doe 1(I), 19 S.W.3d at 262 (Owen, J., concurring). Justice Owen also has expressed her view that "[t]he constitutionality of requiring a minor to notify both parents is questionable." Doe 2, 19 S.W.3d at 287 (Owen, J., concurring) (citing Hodgson v. Minnesota, 497 U.S. 417, 450 55 (1990)); see also In re Doe 3, 19 S.W.3d 300, 320 (Tex. 2000) (Owen, J., concurring). 16 Doe 1(I), 19 S.W.3d at 251. 17 TEX. FAM. CODE ? 33.003(i). 5 EXT-18-2091-C-000301 007104-001022 Document ID: 0.7.19343.5135-000001 be notified before the girl can have an abortion. 1 3 The statute contains three exceptions to that rule: a parent need not be notified if: (1 ) the girl is "mature and sufficiently well informed"; (2) "notification would not be in the best interest of the minor"; or (3) "notification may lead to physical, sexual, or emotional abuse of the minor."1 4 None of the parental notification cases involved any dispute over whether the Constitution guarantees the right to an abortion, or even the scope of that right. Instead, the cases dealt with routine legal issues such as the proper method of interpreting a statute, and the degree of deference an appellate court owes to a trial court's factual findings.1 5 As the majority in Doe 1(I) emphasized, "[w]e are not called upon to decide the constitutionality or wisdom of abortion. Arguments for or against abortion do not advance the issue of statutory construction presented by this case. Instead, our sole function is to interpret and apply the statute enacted by our Legislature."1 6 It should go without saying that a decision to deny a girl a judicial bypass, pursuant to standards established by the state Legislature, does not prevent her from having an abortion; it only requires that one of her parents know about it before she does so. In Doe 1(I), the Court interpreted the first exception to the general rule that parents must receive notice that their minor daughter is seeking an abortion: notice is not necessary when the girl is "mature and sufficiently well informed."1 7 Justice Owen 13 See TEX. FAM. CODE ? 33.002(1) (2000): (a) A physician may not perform an abortion on a pregnant unemancipated minor unless: (1) the physician performing the abortion gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to: (A) a parent of the minor, if the minor has no managing conservator or guardian; or (B) a court appointed managing conservator or guardian. 14 Id. ? 33.003(i). The complete text of the exceptions reads as follows: The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, or whether notification may lead to physical, sexual, or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor's best interest, or that notification may lead to physical, sexual, or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents or a managing conservator or guardian and shall execute the required forms. 15 In some of these cases, Justice Owen has gone out of her way to express her view that certain statutory restrictions on abortion would violate the Constitution. For instance, the U.S. Supreme Court has held that a parental consent statute must contain a judicial bypass provision to be constitutional, see Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 439 42 (1983) ("Akron I"), but it has left unsettled whether parental notification statutes, like Texas's, must allow for judicial bypass, see Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 510 (1990) ("Akron II"). Nevertheless, Justice Owen reasoned that "there is reasoning in [Supreme Court precedent] that would suggest that the United States Supreme Court might hold that bypass procedures are necessary in notification statutes." Doe 1(I), 19 S.W.3d at 262 (Owen, J., concurring). Justice Owen also has expressed her view that "[t]he constitutionality of requiring a minor to notify both parents is questionable." Doe 2, 19 S.W.3d at 287 (Owen, J., concurring) (citing Hodgson v. Minnesota, 497 U.S. 417, 450 55 (1990)); see also In re Doe 3, 19 S.W.3d 300, 320 (Tex. 2000) (Owen, J., concurring). 16 Doe 1(I), 19 S.W.3d at 251. 17 TEX. FAM. CODE ? 33.003(i). 5 EXT-18-2091-C-000301 007104-001022 Document ID: 0.7.19343.5135-000001 while agreeing with the result reached by the Court majority wrote separately to emphasize that by using the language "mature and sufficiently well informed," the Legislature intended to ensure that girls be exposed to the widest possible range of information when deciding whether to have an abortion without telling their parents. According to Owen, "the Legislature intended to require minors to be informed about the decision to have an abortion to the full extent that the law, as interpreted by the United States Supreme Court, will allow."1 8 Justice Owen simply deferred to and applied the precedent of a superior tribunal. Because the language of the parental notification statute itself tracks language from Supreme Court caselaw, 1 9 Justice Owen reasonably concluded that the Legislature meant to incorporate the full body of Supreme Court parental notification precedent. The majority also recognized that the Legislature intended to incorporate the Supreme Court's jurisprudence.20 Specifically, Justice Owen argued that the Legislature meant to require that girls be exposed to the "profound philosophic arguments surrounding abortion."21 This requirement derives from the Supreme Court's decision in Planned Parenthood v. Casey, 22 where, after reaffirming the validity of Roe v. Wade, 23 it held that "the state may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children."24 Justice Owen never suggested that the Legislature intended for girls to be exposed to any particular viewpoint: they should learn about arguments "surrounding" abortion, not "against" abortion. And Justice Owen expressly denied that courts could coerce girls into following any particular set of views, religious or otherwise: "A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to profess any religious beliefs."25 Astonishingly, an interest group's report on Justice Owen excises this crucial sentence from its quotation of her concurrence, replacing it with an ellipsis. 26 18 Doe 1(I), 19 S.W.3d at 262 (Owen, J., concurring). Compare Bellotti v. Baird, 443 U.S. 622, 643 44 (1979) (plurality opinion) ("Bellotti II") (holding that a minor girl seeking an abortion must be able to show "that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes"), with TEX. FAM. CODE ? 33.003(i) ("The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian."). 20 Doe 1(I), 19 S.W.3d at 254 ("Our Legislature was obviously aware of this jurisprudence when it drafted the statute before us."). 21 Id. at 263 (Owen, J., concurring). 22 505 U.S. 833 (1992). 23 410 U.S. 113 (1973). 24 Casey, 505 U.S. at 872 73 (plurality opinion); see also Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam) ("[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth."). 25 Doe 1(I), 19 S.W.3d at 264 (Owen, J., concurring); see also id. at 265 ("I agree with the Court that she should not be required to obtain counseling or other services from a particular provider."). 26 See NAF Report at 10 (quoting Doe 1(I), 19 S.W.3d at 264 65 (Owen, J., concurring)): 19 6 EXT-18-2091-C-000302 007104-001023 Document ID: 0.7.19343.5135-000001 while agreeing with the result reached by the Court majority wrote separately to emphasize that by using the language "mature and sufficiently well informed," the Legislature intended to ensure that girls be exposed to the widest possible range of information when deciding whether to have an abortion without telling their parents. According to Owen, "the Legislature intended to require minors to be informed about the decision to have an abortion to the full extent that the law, as interpreted by the United States Supreme Court, will allow."1 8 Justice Owen simply deferred to and applied the precedent of a superior tribunal. Because the language of the parental notification statute itself tracks language from Supreme Court caselaw, 1 9 Justice Owen reasonably concluded that the Legislature meant to incorporate the full body of Supreme Court parental notification precedent. The majority also recognized that the Legislature intended to incorporate the Supreme Court's jurisprudence.20 Specifically, Justice Owen argued that the Legislature meant to require that girls be exposed to the "profound philosophic arguments surrounding abortion."21 This requirement derives from the Supreme Court's decision in Planned Parenthood v. Casey, 22 where, after reaffirming the validity of Roe v. Wade, 23 it held that "the state may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children."24 Justice Owen never suggested that the Legislature intended for girls to be exposed to any particular viewpoint: they should learn about arguments "surrounding" abortion, not "against" abortion. And Justice Owen expressly denied that courts could coerce girls into following any particular set of views, religious or otherwise: "A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to profess any religious beliefs."25 Astonishingly, an interest group's report on Justice Owen excises this crucial sentence from its quotation of her concurrence, replacing it with an ellipsis. 26 18 Doe 1(I), 19 S.W.3d at 262 (Owen, J., concurring). Compare Bellotti v. Baird, 443 U.S. 622, 643 44 (1979) (plurality opinion) ("Bellotti II") (holding that a minor girl seeking an abortion must be able to show "that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes"), with TEX. FAM. CODE ? 33.003(i) ("The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian."). 20 Doe 1(I), 19 S.W.3d at 254 ("Our Legislature was obviously aware of this jurisprudence when it drafted the statute before us."). 21 Id. at 263 (Owen, J., concurring). 22 505 U.S. 833 (1992). 23 410 U.S. 113 (1973). 24 Casey, 505 U.S. at 872 73 (plurality opinion); see also Poelker v. Doe, 432 U.S. 519, 521 (1977) (per curiam) ("[T]he Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth."). 25 Doe 1(I), 19 S.W.3d at 264 (Owen, J., concurring); see also id. at 265 ("I agree with the Court that she should not be required to obtain counseling or other services from a particular provider."). 26 See NAF Report at 10 (quoting Doe 1(I), 19 S.W.3d at 264 65 (Owen, J., concurring)): 19 6 EXT-18-2091-C-000302 007104-001023 Document ID: 0.7.19343.5135-000001 Nor did Justice Owen "reject Planned Parenthood as a 'qualified source of information'" about abortion, as an interest group now claims. 27 She simply quoted a decision of the U.S. Supreme Court, which specifically acknowledged that abortion clinics are unlikely to provide girls with all of the information they need to make an informed decision about whether to have an abortion: "[i]t seems unlikely that [a girl] will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place."28 Justice Owen's conclusion that the Legislature meant for girls to learn about the impact an abortion will have on the fetus29 likewise derives from the Supreme Court's decision in Casey: Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.30 Justice Owen's concurrence in Doe 2 is equally compelling evidence of her commitment to following the established precedents of the U.S. Supreme Court. In Doe 2, the Texas Supreme Court interpreted a second exception to the general rule that a girl's parents must be notified before she can have an abortion: "whether notification would not be in the best interest of the minor."31 Again agreeing with the judgment issued by the Court's majority, Justice Owen wrote separately to emphasize that this exception reflects the Legislature's intent that courts should evaluate two factors: (1 ) She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion. . . [R]equiring a minor to exhibit an awareness that there are issues, including religious ones, surround [sic; error in NAF Report] the abortion decision is not prohibited by the Establishment Clause. The group is fortunate that its audience is the public at large, not the federal judiciary; a number of courts have held that attorneys can be sanctioned for using ellipses to mischaracterize the views of their opponents. See, e.g., Napoli v. Sears, Roebuck & Co., 835 F. Supp. 1053, 1063 (N.D. Ill. 1993) (faulting counsel for "the manipulative use of ellipses and omissions," and emphasizing that "[m]isrepresenting a court's opinion is unwise; indeed, it clearly provides the basis for sanctions under Fed. R. Civ. P. 11"); Angelico v. Lehigh Valley Hosp. Ass'n, No. CIV.A 96 2861, 1996 WL 524112, at *4 *5 (E.D. Pa. Sept. 13, 1996) (stating that "[e]llipses in quotes from opposing parties' briefs that completely distort the original are inappropriate," and admonishing the plaintiff's counsel to refrain from "attempting to gain an advantage in argument by mischaracterizing the positions of opposing parties"). 27 See NAF Report at 10. 28 H.L. v. Matheson, 450 U.S. 398, 410 (1981) (citation omitted). 29 Doe 1(I), 19 S.W.3d at 265 (Owen, J., concurring). 30 Casey, 505 U.S. at 882 (plurality opinion). 31 See TEX. FAM. CODE ? 33.001(i) (2000). 7 EXT-18-2091-C-000303 007104-001024 Document ID: 0.7.19343.5135-000001 Nor did Justice Owen "reject Planned Parenthood as a 'qualified source of information'" about abortion, as an interest group now claims. 27 She simply quoted a decision of the U.S. Supreme Court, which specifically acknowledged that abortion clinics are unlikely to provide girls with all of the information they need to make an informed decision about whether to have an abortion: "[i]t seems unlikely that [a girl] will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place."28 Justice Owen's conclusion that the Legislature meant for girls to learn about the impact an abortion will have on the fetus29 likewise derives from the Supreme Court's decision in Casey: Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.30 Justice Owen's concurrence in Doe 2 is equally compelling evidence of her commitment to following the established precedents of the U.S. Supreme Court. In Doe 2, the Texas Supreme Court interpreted a second exception to the general rule that a girl's parents must be notified before she can have an abortion: "whether notification would not be in the best interest of the minor."31 Again agreeing with the judgment issued by the Court's majority, Justice Owen wrote separately to emphasize that this exception reflects the Legislature's intent that courts should evaluate two factors: (1 ) She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion. . . [R]equiring a minor to exhibit an awareness that there are issues, including religious ones, surround [sic; error in NAF Report] the abortion decision is not prohibited by the Establishment Clause. The group is fortunate that its audience is the public at large, not the federal judiciary; a number of courts have held that attorneys can be sanctioned for using ellipses to mischaracterize the views of their opponents. See, e.g., Napoli v. Sears, Roebuck & Co., 835 F. Supp. 1053, 1063 (N.D. Ill. 1993) (faulting counsel for "the manipulative use of ellipses and omissions," and emphasizing that "[m]isrepresenting a court's opinion is unwise; indeed, it clearly provides the basis for sanctions under Fed. R. Civ. P. 11"); Angelico v. Lehigh Valley Hosp. Ass'n, No. CIV.A 96 2861, 1996 WL 524112, at *4 *5 (E.D. Pa. Sept. 13, 1996) (stating that "[e]llipses in quotes from opposing parties' briefs that completely distort the original are inappropriate," and admonishing the plaintiff's counsel to refrain from "attempting to gain an advantage in argument by mischaracterizing the positions of opposing parties"). 27 See NAF Report at 10. 28 H.L. v. Matheson, 450 U.S. 398, 410 (1981) (citation omitted). 29 Doe 1(I), 19 S.W.3d at 265 (Owen, J., concurring). 30 Casey, 505 U.S. at 882 (plurality opinion). 31 See TEX. FAM. CODE ? 33.001(i) (2000). 7 EXT-18-2091-C-000303 007104-001024 Document ID: 0.7.19343.5135-000001 whether notifying the girl's parents is not in her best interest, and (2) whether the abortion itself is in her best interest.32 The Legislature's belief that this exception would be available only to girls who can prove both that abortion is in their best interest and that notifying a parent is not, derives from the U.S. Supreme Court's decision in Lambert v. Wicklund.33 In that case, the Court interpreted a Montana statute that, like Texas's, allowed a girl to have an abortion without notification if "the notification of a parent or guardian is not in the best interests of the [girl]."34 The Lambert Court interpreted this language to require the girl to prove that abortion without notification (not just the failure to provide notification) was in her best interest. According to the Court, "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest."35 The Lambert Court further reasoned that nothing in Montana's statute "permits a court to separate the question whether parental notification is not in a minor's best interest from an inquiry into whether abortion (without notification) is in the minor's best interest."36 Ironically, in a later Jane Doe case, the members of the Doe 2 majority themselves came to embrace Justice Owen's interpretation of the "best interest" exception. In In re Jane Doe 4 ("Doe 4(II)"), 37 the Court considered both whether the abortion itself was in the girl's best interest specifically, whether her medical condition made abortion prohibitively risky38 and whether notifying her parents was not in her best interest. 39 The Court's implicit conclusion that the health risks of abortion were relevant to whether the girl was entitled to a "best interest" judicial bypass suggests that Justice Owen's interpretation of that provision has carried the day. Statements in the legislative history made by members of both parties confirm Justice Owen's conclusion that the exceptions to the parental notification requirement were intended to be just that: exceptions, not the rule. Representative Phil King 32 See In re Doe 2, 19 S.W.3d 278, 285 (Tex. 2000) (Owen, J., concurring) ("The inquiry under the 'best interest' provision is not simply whether notifying a parent that the minor is pregnant and is seeking an abortion would be in the minor's best interest. The inquiry is whether proceeding with an abortion without notification of a parent is in the minor's best interest."). 33 520 U.S. 292 (1997) (per curiam). 34 MON. CODE ANN. ? 50 20 212(5) (1995), quoted in Lambert, 520 U.S. at 294. 35 Lambert, 520 U.S. at 297. 36 Id. at 298. The fact that the Lambert Court construed Montana's statute to require that the girl prove two elements, not just one, is further indicated by Justice Stevens's separate opinion in that case. Concurring in the judgment, Justice Stevens faulted the majority for concluding that "a young woman must demonstrate both that abortion is in her best interest and that notification is not." Id. at 302 (Stevens, J., concurring in the judgment). There would have been no need for Justice Stevens to write separately if the majority had held that a girl was entitled to the "best interest" exception simply by showing that notification was not in her best interest, with no analysis of whether the abortion itself was in her best interest. 37 19 S.W.3d 337 (Tex. 2000). 38 See id. at 340 (reasoning that "if she does have a current health risk, then her physical needs and the potential dangers may weigh in favor of involving her parents in her decision"). 39 See id. (speculating that "notifying her parents could cause harm to their family structure and potentially lead her parents to withdraw support"). 8 EXT-18-2091-C-000304 007104-001025 Document ID: 0.7.19343.5135-000001 whether notifying the girl's parents is not in her best interest, and (2) whether the abortion itself is in her best interest.32 The Legislature's belief that this exception would be available only to girls who can prove both that abortion is in their best interest and that notifying a parent is not, derives from the U.S. Supreme Court's decision in Lambert v. Wicklund.33 In that case, the Court interpreted a Montana statute that, like Texas's, allowed a girl to have an abortion without notification if "the notification of a parent or guardian is not in the best interests of the [girl]."34 The Lambert Court interpreted this language to require the girl to prove that abortion without notification (not just the failure to provide notification) was in her best interest. According to the Court, "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest."35 The Lambert Court further reasoned that nothing in Montana's statute "permits a court to separate the question whether parental notification is not in a minor's best interest from an inquiry into whether abortion (without notification) is in the minor's best interest."36 Ironically, in a later Jane Doe case, the members of the Doe 2 majority themselves came to embrace Justice Owen's interpretation of the "best interest" exception. In In re Jane Doe 4 ("Doe 4(II)"), 37 the Court considered both whether the abortion itself was in the girl's best interest specifically, whether her medical condition made abortion prohibitively risky38 and whether notifying her parents was not in her best interest. 39 The Court's implicit conclusion that the health risks of abortion were relevant to whether the girl was entitled to a "best interest" judicial bypass suggests that Justice Owen's interpretation of that provision has carried the day. Statements in the legislative history made by members of both parties confirm Justice Owen's conclusion that the exceptions to the parental notification requirement were intended to be just that: exceptions, not the rule. Representative Phil King 32 See In re Doe 2, 19 S.W.3d 278, 285 (Tex. 2000) (Owen, J., concurring) ("The inquiry under the 'best interest' provision is not simply whether notifying a parent that the minor is pregnant and is seeking an abortion would be in the minor's best interest. The inquiry is whether proceeding with an abortion without notification of a parent is in the minor's best interest."). 33 520 U.S. 292 (1997) (per curiam). 34 MON. CODE ANN. ? 50 20 212(5) (1995), quoted in Lambert, 520 U.S. at 294. 35 Lambert, 520 U.S. at 297. 36 Id. at 298. The fact that the Lambert Court construed Montana's statute to require that the girl prove two elements, not just one, is further indicated by Justice Stevens's separate opinion in that case. Concurring in the judgment, Justice Stevens faulted the majority for concluding that "a young woman must demonstrate both that abortion is in her best interest and that notification is not." Id. at 302 (Stevens, J., concurring in the judgment). There would have been no need for Justice Stevens to write separately if the majority had held that a girl was entitled to the "best interest" exception simply by showing that notification was not in her best interest, with no analysis of whether the abortion itself was in her best interest. 37 19 S.W.3d 337 (Tex. 2000). 38 See id. at 340 (reasoning that "if she does have a current health risk, then her physical needs and the potential dangers may weigh in favor of involving her parents in her decision"). 39 See id. (speculating that "notifying her parents could cause harm to their family structure and potentially lead her parents to withdraw support"). 8 EXT-18-2091-C-000304 007104-001025 Document ID: 0.7.19343.5135-000001 predicted that parents would be told that their minor daughter was planning to have an abortion in the "vast, vast, vast majority of cases."40 Representative Dianne White Delisi, the Parental Notification Act's sponsor, indicated that judges would grant bypasses only "in rare cases."41 Representative Patricia Gray called the bypass procedures "exceptional,"42 and Senator David Bernsen likewise referred to them as "small exceptions."43 Indeed, the mere fact that the law was passed is evidence that the Texas Legislature intended to make it more difficult for minor girls to have abortions without their parents' knowledge. Before the law was enacted, girls were free to have abortions without telling their parents. If the Legislature meant to "assist minors in their attempt to obtain abortions," as one interest group now claims, 44 rather than to enable parents to play a part in one of the most important decisions their daughters will ever make, it would have had no need to pass the statute. Justice Owen's willingness to give effect to the Legislature's expressed intent in adopting the Parental Notification Act reveals her to be the sort of restrained jurist who deserves a seat on the federal bench. III. Deference to the Texas Legislature: Doe 3 One of the most important aspects of judicial restraint is a judge's commitment to interpreting statutes and the Constitution in light of the text, structure, and context, and the judge's corresponding reluctance to cobble together meanings based on nothing more than judicial fiat. In re Doe 3 ("Doe 3")45 reveals that, when called upon to construe statutory language, Justice Owen interprets it consistently with similar language appearing in analogous statutes. She rejects the proposition that judges can interpret a statute to bear a meaning that they would have assigned it had they been members of the legislature. Doe 3 saw the Texas Supreme Court interpret the final of the three exceptions to the parental notification requirement: "whether notification may lead to physical, sexual, or emotional abuse of the minor."46 The majority could not agree on an appropriate 40 Hearings on Senate Bill 30 Before the House State Affairs Comm., 76th Leg., tape 3, side B (Tex. Apr. 19, 1999) (statement of Rep. King). The Texas Legislature made audiotape recordings of the proceedings surrounding the adoption of the Parental Notification Act, but apparently did not produce written transcripts. The Texas Supreme Court transcribed a number of the materials at its own expense. See In re Doe 1(II), 19 S.W.2d 346. 373 (Tex. 2000) (Hecht, J., dissenting) ("Doe 1(II)"). The materials are extensively quoted in Justice Abbott's dissent in Doe 1(II). See id. at 383 93 (Abbott, J., dissenting). 41 Hearings on Senate Bill 30 Before the House State Affairs Comm., 76th Leg., tape 1, side A (Tex. Apr. 19, 1999) (statement of Rep. Delisi). 42 Id. tape 3, side B (Apr. 19, 1999) (statement of Rep. Gray). 43 Hearings on Senate Bill 30 Before the Senate Human Services Comm., 76th Leg., tape 3, at 4 (Mar. 10, 1999) (statement of Sen. Bernsen). 44 NAF Report at 4. 45 19 S.W.3d 300 (Tex. 2000). 46 TEX. FAM. CODE ? 33.001(i) (2000). 9 EXT-18-2091-C-000305 007104-001026 Document ID: 0.7.19343.5135-000001 predicted that parents would be told that their minor daughter was planning to have an abortion in the "vast, vast, vast majority of cases."40 Representative Dianne White Delisi, the Parental Notification Act's sponsor, indicated that judges would grant bypasses only "in rare cases."41 Representative Patricia Gray called the bypass procedures "exceptional,"42 and Senator David Bernsen likewise referred to them as "small exceptions."43 Indeed, the mere fact that the law was passed is evidence that the Texas Legislature intended to make it more difficult for minor girls to have abortions without their parents' knowledge. Before the law was enacted, girls were free to have abortions without telling their parents. If the Legislature meant to "assist minors in their attempt to obtain abortions," as one interest group now claims, 44 rather than to enable parents to play a part in one of the most important decisions their daughters will ever make, it would have had no need to pass the statute. Justice Owen's willingness to give effect to the Legislature's expressed intent in adopting the Parental Notification Act reveals her to be the sort of restrained jurist who deserves a seat on the federal bench. III. Deference to the Texas Legislature: Doe 3 One of the most important aspects of judicial restraint is a judge's commitment to interpreting statutes and the Constitution in light of the text, structure, and context, and the judge's corresponding reluctance to cobble together meanings based on nothing more than judicial fiat. In re Doe 3 ("Doe 3")45 reveals that, when called upon to construe statutory language, Justice Owen interprets it consistently with similar language appearing in analogous statutes. She rejects the proposition that judges can interpret a statute to bear a meaning that they would have assigned it had they been members of the legislature. Doe 3 saw the Texas Supreme Court interpret the final of the three exceptions to the parental notification requirement: "whether notification may lead to physical, sexual, or emotional abuse of the minor."46 The majority could not agree on an appropriate 40 Hearings on Senate Bill 30 Before the House State Affairs Comm., 76th Leg., tape 3, side B (Tex. Apr. 19, 1999) (statement of Rep. King). The Texas Legislature made audiotape recordings of the proceedings surrounding the adoption of the Parental Notification Act, but apparently did not produce written transcripts. The Texas Supreme Court transcribed a number of the materials at its own expense. See In re Doe 1(II), 19 S.W.2d 346. 373 (Tex. 2000) (Hecht, J., dissenting) ("Doe 1(II)"). The materials are extensively quoted in Justice Abbott's dissent in Doe 1(II). See id. at 383 93 (Abbott, J., dissenting). 41 Hearings on Senate Bill 30 Before the House State Affairs Comm., 76th Leg., tape 1, side A (Tex. Apr. 19, 1999) (statement of Rep. Delisi). 42 Id. tape 3, side B (Apr. 19, 1999) (statement of Rep. Gray). 43 Hearings on Senate Bill 30 Before the Senate Human Services Comm., 76th Leg., tape 3, at 4 (Mar. 10, 1999) (statement of Sen. Bernsen). 44 NAF Report at 4. 45 19 S.W.3d 300 (Tex. 2000). 46 TEX. FAM. CODE ? 33.001(i) (2000). 9 EXT-18-2091-C-000305 007104-001026 Document ID: 0.7.19343.5135-000001 definition of "abuse."47 For her part, Justice Owen looked to an analogous definition contained in section 261 of the Texas Family Code, located just a few chapters away from the Parental Notification Act, also a part of the Family Code. Under the Legislature's definition, conduct constitutes "abuse" if it produces "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning."48 The U.S. Supreme Court has long recognized as a "fundamental canon of statutory construction" that judges should construe the words of a statute "in their context and with a view to their place in the overall statutory scheme."49 In particular, "[i]dentical words used in different parts of the same act are intended to have the same meaning."50 Relying on the Legislature's pre-existing statutory definition, Justice Owen argued, was preferable to the Court fabricating an entirely new one: "rather than fashioning its own definition, a Court should apply the Legislature's definition of 'abuse' when interpreting other provisions of the same Code unless there is a good reason for not doing so."51 As the Legislature already had defined "abuse" in a related section of the Texas Family Code, the objective standard it had laid out would be the most appropriate to use in these circumstances. 52 A number of statements in the legislative history made by members of both parties attest that Justice Owen correctly surmised that the members of the Texas Legislature intended "abuse" to be read in light of section 261 . These statements indicate that the Legislature intended the "abuse" exception to be available only to girls who stood to suffer the severest and most traumatic physical and emotional injuries. During a floor debate, Representative Helen Giddings offered an example of a minor who would qualify as having been "abused": I know we have provisions in this bill for abused girls when abuse is suspected or detected to get help, but there are cases where the abuse is not known. . . . [W]e had a case where a mother had a Norplant put into 47 One group of judges cited a definition of "abuse" contained in the Texas Human Resources Code, whose relevance to the parental notification context is neither apparent nor explained. See Doe 3, 19 S.W.3d at 304 (Gonzales, J., concurring in the judgment) (arguing that "emotional abuse contemplates unreasonable conduct causing serious emotional injury" (citing TEX. HUM. RES. CODE ? 48.3002(2) (2000))). Another group of judges declined to identify any sort of statutory tether for their favored definition, and proposed simply that "abuse is abuse." See id. at 307 (Enoch, J., concurring and dissenting). 48 TEX. FAM. CODE ? 261.001(1)(A) (2000) (emphasis added); see also id. ? 261.001(1)(B) (providing that "abuse" includes "causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning"). 49 Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). 50 Stenberg v. Carhart, 530 U.S. 914, 944 (2000) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)). 51 Doe 3, 19 S.W.3d at 319 (Owen, J., dissenting); see also id. (urging "[d]eference to the Legislature's definition of emotional abuse"). 52 Id. at 320. 10 EXT-18-2091-C-000306 007104-001027 Document ID: 0.7.19343.5135-000001 definition of "abuse."47 For her part, Justice Owen looked to an analogous definition contained in section 261 of the Texas Family Code, located just a few chapters away from the Parental Notification Act, also a part of the Family Code. Under the Legislature's definition, conduct constitutes "abuse" if it produces "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning."48 The U.S. Supreme Court has long recognized as a "fundamental canon of statutory construction" that judges should construe the words of a statute "in their context and with a view to their place in the overall statutory scheme."49 In particular, "[i]dentical words used in different parts of the same act are intended to have the same meaning."50 Relying on the Legislature's pre-existing statutory definition, Justice Owen argued, was preferable to the Court fabricating an entirely new one: "rather than fashioning its own definition, a Court should apply the Legislature's definition of 'abuse' when interpreting other provisions of the same Code unless there is a good reason for not doing so."51 As the Legislature already had defined "abuse" in a related section of the Texas Family Code, the objective standard it had laid out would be the most appropriate to use in these circumstances. 52 A number of statements in the legislative history made by members of both parties attest that Justice Owen correctly surmised that the members of the Texas Legislature intended "abuse" to be read in light of section 261 . These statements indicate that the Legislature intended the "abuse" exception to be available only to girls who stood to suffer the severest and most traumatic physical and emotional injuries. During a floor debate, Representative Helen Giddings offered an example of a minor who would qualify as having been "abused": I know we have provisions in this bill for abused girls when abuse is suspected or detected to get help, but there are cases where the abuse is not known. . . . [W]e had a case where a mother had a Norplant put into 47 One group of judges cited a definition of "abuse" contained in the Texas Human Resources Code, whose relevance to the parental notification context is neither apparent nor explained. See Doe 3, 19 S.W.3d at 304 (Gonzales, J., concurring in the judgment) (arguing that "emotional abuse contemplates unreasonable conduct causing serious emotional injury" (citing TEX. HUM. RES. CODE ? 48.3002(2) (2000))). Another group of judges declined to identify any sort of statutory tether for their favored definition, and proposed simply that "abuse is abuse." See id. at 307 (Enoch, J., concurring and dissenting). 48 TEX. FAM. CODE ? 261.001(1)(A) (2000) (emphasis added); see also id. ? 261.001(1)(B) (providing that "abuse" includes "causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning"). 49 Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989). 50 Stenberg v. Carhart, 530 U.S. 914, 944 (2000) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995)). 51 Doe 3, 19 S.W.3d at 319 (Owen, J., dissenting); see also id. (urging "[d]eference to the Legislature's definition of emotional abuse"). 52 Id. at 320. 10 EXT-18-2091-C-000306 007104-001027 Document ID: 0.7.19343.5135-000001 the arm of her child so that the father could have sex with that child without fear of pregnancy. 53 Two days later, another member cited Representative Giddings' example as evidence of the need for a judicial bypass provision: "Look, the parent is abusive, the parent, in Ms. Giddings' case is selling the child, we need a judicial bypass."54 And Senator Mario Gallegos repeatedly expressed concern about parents who would kill their daughters, or injure them so severely that they required hospitalization, after learning that they were pregnant. 55 Thus Justice Owen's conclusion that Jane Doe 3 had not established that she could be "abused" hardly reflects "a lack of compassion for victims of abuse."56 In fact, the girl in that case conceded that she had never been abused either physically or emotionally, and that she had no idea how her father would react to the news of her pregnancy. 57 Justice Owen therefore concluded that the girl's fears about her father's temper simply did not rise to the level of severity the Legislature had in mind when it created an exception for girls who may suffer "observable and material" abuse that would "impair the child's growth, development, or psychological functioning."58 IV. Upholding the Prerogatives of Trial Courts: Doe 1(II) Justice Owen's dissent in In re Jane Doe ("Doe 1(II)")59 indicates that she not only respects the institutional prerogatives of the legislature and of superior courts. She also refuses to interfere with the unique fact-finding function of trial courts. Unlike courts of appeals, which typically resolve pure questions of law, trial courts have the additional responsibility of determining what took place as a factual matter. Appellate courts are loath to interfere with this fact-finding function, because trial judges are better equipped to observe the girl's maturity and assess the demeanor and credibility of witnesses than are appellate judges, who merely review a paper record. 60 In Doe 1(II), the majority held that Jane Doe 1 whose case had returned to the Court after the initial 53 See House Debate on Committee Substitute Senate Bill 30, 76th Leg., tape 147, side A (Tex. May 19, 1999) (statement of Rep. Giddings). 54 See id. tape 158, side B (May 21, 1999) (statement of Rep. Clark). 55 See, e.g., Hearings on Senate Bill 30 Before the Senate Human Services Comm., 76th Leg., tape 1, at 22; tape 2, at 14; tape 2, at 25 (Mar. 10, 1999) (statement of Sen. Gallegos). 56 NAF Report at 9. 57 Jane Doe 3 testified as follows before the trial court: Q Has your dad ever physically abused you? A Me, no. *** Q Don't you think he's going to be even more upset when he finds out that this occurred without his knowledge? A I guess. I don't know. See Doe 3, 19 S.W.3d at 312 (Hecht, J., dissenting). 58 See TEX. FAM. CODE ? 261.001(1)(A) (2000). 59 19 S.W.3d 346 (Tex. 2000). 60 See, e.g., Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955). 11 EXT-18-2091-C-000307 007104-001028 Document ID: 0.7.19343.5135-000001 the arm of her child so that the father could have sex with that child without fear of pregnancy. 53 Two days later, another member cited Representative Giddings' example as evidence of the need for a judicial bypass provision: "Look, the parent is abusive, the parent, in Ms. Giddings' case is selling the child, we need a judicial bypass."54 And Senator Mario Gallegos repeatedly expressed concern about parents who would kill their daughters, or injure them so severely that they required hospitalization, after learning that they were pregnant. 55 Thus Justice Owen's conclusion that Jane Doe 3 had not established that she could be "abused" hardly reflects "a lack of compassion for victims of abuse."56 In fact, the girl in that case conceded that she had never been abused either physically or emotionally, and that she had no idea how her father would react to the news of her pregnancy. 57 Justice Owen therefore concluded that the girl's fears about her father's temper simply did not rise to the level of severity the Legislature had in mind when it created an exception for girls who may suffer "observable and material" abuse that would "impair the child's growth, development, or psychological functioning."58 IV. Upholding the Prerogatives of Trial Courts: Doe 1(II) Justice Owen's dissent in In re Jane Doe ("Doe 1(II)")59 indicates that she not only respects the institutional prerogatives of the legislature and of superior courts. She also refuses to interfere with the unique fact-finding function of trial courts. Unlike courts of appeals, which typically resolve pure questions of law, trial courts have the additional responsibility of determining what took place as a factual matter. Appellate courts are loath to interfere with this fact-finding function, because trial judges are better equipped to observe the girl's maturity and assess the demeanor and credibility of witnesses than are appellate judges, who merely review a paper record. 60 In Doe 1(II), the majority held that Jane Doe 1 whose case had returned to the Court after the initial 53 See House Debate on Committee Substitute Senate Bill 30, 76th Leg., tape 147, side A (Tex. May 19, 1999) (statement of Rep. Giddings). 54 See id. tape 158, side B (May 21, 1999) (statement of Rep. Clark). 55 See, e.g., Hearings on Senate Bill 30 Before the Senate Human Services Comm., 76th Leg., tape 1, at 22; tape 2, at 14; tape 2, at 25 (Mar. 10, 1999) (statement of Sen. Gallegos). 56 NAF Report at 9. 57 Jane Doe 3 testified as follows before the trial court: Q Has your dad ever physically abused you? A Me, no. *** Q Don't you think he's going to be even more upset when he finds out that this occurred without his knowledge? A I guess. I don't know. See Doe 3, 19 S.W.3d at 312 (Hecht, J., dissenting). 58 See TEX. FAM. CODE ? 261.001(1)(A) (2000). 59 19 S.W.3d 346 (Tex. 2000). 60 See, e.g., Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955). 11 EXT-18-2091-C-000307 007104-001028 Document ID: 0.7.19343.5135-000001 remand had established that she was "mature and sufficiently well informed" to have an abortion without telling her parents. Justice Owen dissented, criticizing the majority for itself evaluating the evidence before the trial court, rather than following the customary practice of deferring to that court's factual findings. According to Justice Owen, the majority "has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusion" a practice that was contrary to "more than fifty years of precedent regarding appellate review of a trial court's factual findings."61 According to well-settled Texas law, the Texas Supreme Court may disregard a trial court's factual findings only if there is "no evidence" in the record to support them. In making that determination, the Court is "required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions."62 Ultimately, the Court cannot disturb a trial judge's findings unless no reasonable person could have reached the same conclusion.63 Justice Owen's commitment to upholding the powers of the trial courts and not any hostility to the rights of minors is what informs her decisions. Although Justice Owen acknowledged that it was "a close case,"64 she concluded that the appellate record contained enough evidence to support the trial court's finding that Jane Doe 1 was not well enough informed to have an abortion without involving one of her parents in the decision. For instance, the girl gave little indication that she had considered the alternatives to abortion, such as giving the infant up for adoption or keeping it. Jane Doe 1 did not know that adoptive parents are thoroughly screened before and after a child is placed with them, and had not considered whether her parents would help, financially or otherwise, raise the child. 65 It must be stressed that Justice Owen did not herself conclude that the girl was not sufficiently well informed; rather, Justice Owen concluded that evidence supported the trial court's finding that the girl was not sufficiently well informed: The question in this case is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes. 66 61 Doe 1(II), 19 S.W.3d at 376, 377 (Owen, J., dissenting); see also id. at 383 ("Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court and or [sic] to ignore the evidence, as it has done."). 62 Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994); see also Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Burt v. Lochausen, 249 S.W.2d 194, 199 (1952). 63 See, e.g., Moriel, 879 S.W.2d at 25 ("[T]he court must be persuaded that reasonable minds could not differ on the matter . . . ." (citation omitted)); id. ("The rule as generally stated is that if reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will be held to be the legal equivalent of no evidence." (citation omitted)). 64 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 65 See id. at 382 83. 66 Id. at 383. 12 EXT-18-2091-C-000308 007104-001029 Document ID: 0.7.19343.5135-000001 remand had established that she was "mature and sufficiently well informed" to have an abortion without telling her parents. Justice Owen dissented, criticizing the majority for itself evaluating the evidence before the trial court, rather than following the customary practice of deferring to that court's factual findings. According to Justice Owen, the majority "has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusion" a practice that was contrary to "more than fifty years of precedent regarding appellate review of a trial court's factual findings."61 According to well-settled Texas law, the Texas Supreme Court may disregard a trial court's factual findings only if there is "no evidence" in the record to support them. In making that determination, the Court is "required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions."62 Ultimately, the Court cannot disturb a trial judge's findings unless no reasonable person could have reached the same conclusion.63 Justice Owen's commitment to upholding the powers of the trial courts and not any hostility to the rights of minors is what informs her decisions. Although Justice Owen acknowledged that it was "a close case,"64 she concluded that the appellate record contained enough evidence to support the trial court's finding that Jane Doe 1 was not well enough informed to have an abortion without involving one of her parents in the decision. For instance, the girl gave little indication that she had considered the alternatives to abortion, such as giving the infant up for adoption or keeping it. Jane Doe 1 did not know that adoptive parents are thoroughly screened before and after a child is placed with them, and had not considered whether her parents would help, financially or otherwise, raise the child. 65 It must be stressed that Justice Owen did not herself conclude that the girl was not sufficiently well informed; rather, Justice Owen concluded that evidence supported the trial court's finding that the girl was not sufficiently well informed: The question in this case is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes. 66 61 Doe 1(II), 19 S.W.3d at 376, 377 (Owen, J., dissenting); see also id. at 383 ("Longstanding principles of appellate review and our Texas Constitution do not permit this Court to substitute its judgment for that of the trial court and or [sic] to ignore the evidence, as it has done."). 62 Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994); see also Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); Burt v. Lochausen, 249 S.W.2d 194, 199 (1952). 63 See, e.g., Moriel, 879 S.W.2d at 25 ("[T]he court must be persuaded that reasonable minds could not differ on the matter . . . ." (citation omitted)); id. ("The rule as generally stated is that if reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will be held to be the legal equivalent of no evidence." (citation omitted)). 64 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 65 See id. at 382 83. 66 Id. at 383. 12 EXT-18-2091-C-000308 007104-001029 Document ID: 0.7.19343.5135-000001 Justice Owen further faulted the majority for failing to defer to the trial court's implicit factual finding that the girl was not sufficiently "mature" to have an abortion without telling her parents the other element a girl must prove before she can invoke the "mature and sufficiently well informed" exception. Although the trial court found, as a factual matter, that the girl was not "well informed," it made no explicit finding as to whether she was "mature." The majority therefore held that it could presume that the minor was mature enough to have an abortion without parental involvement. 67 In fact, under well-settled Texas law, when a trial court issues factual findings, appellate courts are required to presume that there is evidence to support "not only the express findings . . . but also any omitted findings which are necessary to support the judgment."68 As such, the Supreme Court could not presume that the girl was mature unless, based on the evidence before the trial court, no reasonable person could have reached the opposite conclusion. As was the case with the "well informed" prong, Justice Owen concluded that the record contained enough evidence to support the trial judge's failure to find that the girl was mature. In particular, there was evidence that the girl's reason for not wanting her parents to know about her intent to have an abortion was her fear that they would stop paying for her automobile and her car insurance.69 Again, Justice Owen did not herself make a finding that the girl was not mature, nor did she suggest that the girl's attempt to obtain a judicial bypass was itself evidence of a lack of maturity. 70 She simply deferred to the trial court's implicit finding for which the record contained some supporting evidence that the girl was not mature: given the evidence in the record, "[t]he trial court could reasonably find that Doe was not mature enough to make the abortion decision without telling one of her parents."71 Justice Owen also criticized the procedurally irregular manner in which the majority decided the case. After the initial remand of February 25, 2000 in which Justice Owen concurred Jane Doe 1 's application for a judicial bypass was denied by the trial and appellate courts. On March 1 0, 2000, the Supreme Court issued an order, without opinion, approving the girl's request to have an abortion without telling her parents.72 The Court did not explain its reasons for denying parental notification until June 22, 2000, over three months later. Justice Owen rejected the majority's claim that an expedited ruling would enable the girl to have a "vacuum aspiration" or "suction curettage" abortion, a less intrusive procedure that, according to Planned Parenthood, 67 See id. at 357 58. Wisdom v. Smith, 209 S.W.2d 164, 166 67 (Tex. 1948); see also Cates v. Clark, 33 S.W.2d 1065, 1066 (Tex. 1931) (invoking the "well recognized rule of law" that appellate courts must presume that all facts were found in support of a trial court's judgment, when the trial court has issued findings of fact and evidence in the record supports the judgment). 69 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 70 NAF Report at 6. 71 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 72 See In re Jane Doe 1, 19 S.W.3d 300 (Tex. 2000). 68 13 EXT-18-2091-C-000309 007104-001030 Document ID: 0.7.19343.5135-000001 Justice Owen further faulted the majority for failing to defer to the trial court's implicit factual finding that the girl was not sufficiently "mature" to have an abortion without telling her parents the other element a girl must prove before she can invoke the "mature and sufficiently well informed" exception. Although the trial court found, as a factual matter, that the girl was not "well informed," it made no explicit finding as to whether she was "mature." The majority therefore held that it could presume that the minor was mature enough to have an abortion without parental involvement. 67 In fact, under well-settled Texas law, when a trial court issues factual findings, appellate courts are required to presume that there is evidence to support "not only the express findings . . . but also any omitted findings which are necessary to support the judgment."68 As such, the Supreme Court could not presume that the girl was mature unless, based on the evidence before the trial court, no reasonable person could have reached the opposite conclusion. As was the case with the "well informed" prong, Justice Owen concluded that the record contained enough evidence to support the trial judge's failure to find that the girl was mature. In particular, there was evidence that the girl's reason for not wanting her parents to know about her intent to have an abortion was her fear that they would stop paying for her automobile and her car insurance.69 Again, Justice Owen did not herself make a finding that the girl was not mature, nor did she suggest that the girl's attempt to obtain a judicial bypass was itself evidence of a lack of maturity. 70 She simply deferred to the trial court's implicit finding for which the record contained some supporting evidence that the girl was not mature: given the evidence in the record, "[t]he trial court could reasonably find that Doe was not mature enough to make the abortion decision without telling one of her parents."71 Justice Owen also criticized the procedurally irregular manner in which the majority decided the case. After the initial remand of February 25, 2000 in which Justice Owen concurred Jane Doe 1 's application for a judicial bypass was denied by the trial and appellate courts. On March 1 0, 2000, the Supreme Court issued an order, without opinion, approving the girl's request to have an abortion without telling her parents.72 The Court did not explain its reasons for denying parental notification until June 22, 2000, over three months later. Justice Owen rejected the majority's claim that an expedited ruling would enable the girl to have a "vacuum aspiration" or "suction curettage" abortion, a less intrusive procedure that, according to Planned Parenthood, 67 See id. at 357 58. Wisdom v. Smith, 209 S.W.2d 164, 166 67 (Tex. 1948); see also Cates v. Clark, 33 S.W.2d 1065, 1066 (Tex. 1931) (invoking the "well recognized rule of law" that appellate courts must presume that all facts were found in support of a trial court's judgment, when the trial court has issued findings of fact and evidence in the record supports the judgment). 69 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 70 NAF Report at 6. 71 Doe 1(II), 19 S.W.3d at 381 (Owen, J., dissenting). 72 See In re Jane Doe 1, 19 S.W.3d 300 (Tex. 2000). 68 13 EXT-18-2091-C-000309 007104-001030 Document ID: 0.7.19343.5135-000001 can be performed until the end of the thirteenth week of pregnancy. 73 On the date the Court issued its opinionless order, Jane Doe 1 was already into her fifteenth week of pregnancy. The thirteen-week deadline had passed some two weeks prior, and the girl was no longer eligible for a vacuum aspiration or suction curettage abortion. 74 Nor was there any indication that the girl sought an immediate ruling from the Supreme Court. She never indicated to the Court that a delay would prevent her from undergoing a particular type of abortion procedure, or otherwise would risk damaging her health. In fact, she requested and was granted a seven-day continuance by the court of appeals.75 The girl's notice of appeal to the Supreme Court did state "ATTENTION CLERK: PLEASE EXPEDITE" but that language appears on the standard notice of appeal form, promulgated by the Supreme Court itself, used in all parental notification cases.76 V. Respecting the Legal Rights of Parents: Doe 4(I) Justice Owen's dissent in In re Jane Doe 4 ("Doe 4(I)")77 demonstrates her respect for parents' right under the law to decide how to best bring up their children. In Doe 4(I), the majority concluded that a seventeen-year-old girl was entitled to another opportunity to attempt to prove that having an abortion without telling her parents was in her "best interest." Some evidence in the record indicated that the girl's parents might stop supporting her financially if they learned that she had become pregnant. As the majority recognized, however, the girl's testimony "largely consisted of monosyllabic responses to leading questions."78 In dissent, Justice Owen denied that "this Court has the authority, statutory or otherwise, to decide that parents will not be permitted to exercise their right to withhold support from their children when those children become adults in the eyes of the law."79 She repeatedly expressed her "fervent hope that no matter what the transgressions of the child have been, no parent would sever all contact with an adult child."80 But parents have no legal obligation under Texas law to support their children once they 73 According to the Planned Parenthood pamphlet submitted to the Supreme Court as part of the record, vacuum aspiration or suction curettage is available "through the end of the 13th week of pregnancy." Quoted in Doe 1(II), 19 S.W.3d at 378 (Owen, J., dissenting). 74 The girl testified that a February 19 sonogram revealed that she had been pregnant for eleven weeks and one day. See id. As such, she completed her thirteenth week of pregnancy and hence her eligibility for vacuum aspiration or suction curettage on March 3. By March 10, the date of the Court's opinionless decision, the girl had been pregnant for fully fourteen weeks, and had entered her fifteenth week. 75 See id. 76 See id. at 377; see also id. at 370 & n.24 (Hecht, J., dissenting) (citing PARENTAL NOTIFICATION R., Forms 3A & 4A (Tex. 2000)). 77 19 S.W.3d 322 (Tex. 2000). 78 Id. at 323 24. 79 Id. at 334 (Owen, J., dissenting). 80 Id.; see also id. at 335 ("I would hope that parents continue to provide love and support to their children beyond the age of eighteen and to provide funds for an education beyond high school if the parents are able to do so . . . ."). 14 EXT-18-2091-C-000310 007104-001031 Document ID: 0.7.19343.5135-000001 can be performed until the end of the thirteenth week of pregnancy. 73 On the date the Court issued its opinionless order, Jane Doe 1 was already into her fifteenth week of pregnancy. The thirteen-week deadline had passed some two weeks prior, and the girl was no longer eligible for a vacuum aspiration or suction curettage abortion. 74 Nor was there any indication that the girl sought an immediate ruling from the Supreme Court. She never indicated to the Court that a delay would prevent her from undergoing a particular type of abortion procedure, or otherwise would risk damaging her health. In fact, she requested and was granted a seven-day continuance by the court of appeals.75 The girl's notice of appeal to the Supreme Court did state "ATTENTION CLERK: PLEASE EXPEDITE" but that language appears on the standard notice of appeal form, promulgated by the Supreme Court itself, used in all parental notification cases.76 V. Respecting the Legal Rights of Parents: Doe 4(I) Justice Owen's dissent in In re Jane Doe 4 ("Doe 4(I)")77 demonstrates her respect for parents' right under the law to decide how to best bring up their children. In Doe 4(I), the majority concluded that a seventeen-year-old girl was entitled to another opportunity to attempt to prove that having an abortion without telling her parents was in her "best interest." Some evidence in the record indicated that the girl's parents might stop supporting her financially if they learned that she had become pregnant. As the majority recognized, however, the girl's testimony "largely consisted of monosyllabic responses to leading questions."78 In dissent, Justice Owen denied that "this Court has the authority, statutory or otherwise, to decide that parents will not be permitted to exercise their right to withhold support from their children when those children become adults in the eyes of the law."79 She repeatedly expressed her "fervent hope that no matter what the transgressions of the child have been, no parent would sever all contact with an adult child."80 But parents have no legal obligation under Texas law to support their children once they 73 According to the Planned Parenthood pamphlet submitted to the Supreme Court as part of the record, vacuum aspiration or suction curettage is available "through the end of the 13th week of pregnancy." Quoted in Doe 1(II), 19 S.W.3d at 378 (Owen, J., dissenting). 74 The girl testified that a February 19 sonogram revealed that she had been pregnant for eleven weeks and one day. See id. As such, she completed her thirteenth week of pregnancy and hence her eligibility for vacuum aspiration or suction curettage on March 3. By March 10, the date of the Court's opinionless decision, the girl had been pregnant for fully fourteen weeks, and had entered her fifteenth week. 75 See id. 76 See id. at 377; see also id. at 370 & n.24 (Hecht, J., dissenting) (citing PARENTAL NOTIFICATION R., Forms 3A & 4A (Tex. 2000)). 77 19 S.W.3d 322 (Tex. 2000). 78 Id. at 323 24. 79 Id. at 334 (Owen, J., dissenting). 80 Id.; see also id. at 335 ("I would hope that parents continue to provide love and support to their children beyond the age of eighteen and to provide funds for an education beyond high school if the parents are able to do so . . . ."). 14 EXT-18-2091-C-000310 007104-001031 Document ID: 0.7.19343.5135-000001 turn 1 8 and graduate from high school81 which the girl would soon do. Justice Owen therefore concluded that the girl would not be entitled to a "best interest" exception if her parents would withhold financial support after she reached the age of majority. (By negative implication, Justice Owen would hold that a girl is entitled to an abortion without notification if her parents would stop supporting her before she turned 1 8.) According to Justice Owen, "it is not the business of courts to interject their own values into the lives of the citizens of this State."82 Instead, "[w]hether parents do or do not provide support for their children who are considered adults in the eyes of the law is a parental call, not a call for the courts in determining the best interests of a child."83 Nor is it the case, as an interest group now claims, that in a later stage of the same litigation Justice Owen concluded that the girl's medical condition was not relevant to whether she was entitled to have an abortion without notifying her parents. In In re Jane Doe 4 ("Doe 4(II)"), 84 the Court unanimously held that the girl had not proven that she was "mature and sufficiently well informed," principally because she could not explain how her medical condition made abortion a riskier option for her. Because of the girl's lack of understanding, the Court concluded, it was best to involve her parents in the decision.85 Justice Owen joined an opinion concurring in the judgment, which argued that the girl should be required to tell her parents that she wanted an abortion, not because she did not understand the health risks in particular, but because as a general matter she had shown "no depth of understanding that a minor should be expected to have before making the 'grave and indelible' decision to have an abortion."86 This is hardly evidence of "Owen's apparent stance that even health risks should not be taken as seriously by the courts." 87 On the contrary, the majority opinion concluded that the girl was not entitled to a judicial bypass on the ground that she lacked knowledge about how her medical condition would affect her abortion. 88 The concurrence Justice Owen joined quite expressly denied that the girl's apparent confusion about her medical condition was the reason she was not entitled to keep the abortion secret from her parents: "the deficit in Doe's testimony is not that she could not explain whether and how her prior treatment for a medical condition would affect her having an abortion."89 81 See TEX. FAM. CODE ? 151.003(b) (2000). Doe 4(I), 19 S.W.3d at 334 (Owen, J., dissenting). 83 Id. at 335. 84 19 S.W.3d 337 (Tex. 2000). 85 See id. at 339. 86 Id. at 342 (Hecht, J., concurring) (quoting Bellotti v. Baird, 443 U.S. 622, 642 (1979) ("Bellotti II")). 87 NAF Report at 9. 88 See Doe 4(II), 19 S.W.3d at 340 (reasoning that "if she does have a current health risk, then her physical needs and the potential dangers may way in favor of involving her parents in her decision"). 89 Id. at 342 (Hecht, J., concurring). 82 15 EXT-18-2091-C-000311 007104-001032 Document ID: 0.7.19343.5135-000001 turn 1 8 and graduate from high school81 which the girl would soon do. Justice Owen therefore concluded that the girl would not be entitled to a "best interest" exception if her parents would withhold financial support after she reached the age of majority. (By negative implication, Justice Owen would hold that a girl is entitled to an abortion without notification if her parents would stop supporting her before she turned 1 8.) According to Justice Owen, "it is not the business of courts to interject their own values into the lives of the citizens of this State."82 Instead, "[w]hether parents do or do not provide support for their children who are considered adults in the eyes of the law is a parental call, not a call for the courts in determining the best interests of a child."83 Nor is it the case, as an interest group now claims, that in a later stage of the same litigation Justice Owen concluded that the girl's medical condition was not relevant to whether she was entitled to have an abortion without notifying her parents. In In re Jane Doe 4 ("Doe 4(II)"), 84 the Court unanimously held that the girl had not proven that she was "mature and sufficiently well informed," principally because she could not explain how her medical condition made abortion a riskier option for her. Because of the girl's lack of understanding, the Court concluded, it was best to involve her parents in the decision.85 Justice Owen joined an opinion concurring in the judgment, which argued that the girl should be required to tell her parents that she wanted an abortion, not because she did not understand the health risks in particular, but because as a general matter she had shown "no depth of understanding that a minor should be expected to have before making the 'grave and indelible' decision to have an abortion."86 This is hardly evidence of "Owen's apparent stance that even health risks should not be taken as seriously by the courts." 87 On the contrary, the majority opinion concluded that the girl was not entitled to a judicial bypass on the ground that she lacked knowledge about how her medical condition would affect her abortion. 88 The concurrence Justice Owen joined quite expressly denied that the girl's apparent confusion about her medical condition was the reason she was not entitled to keep the abortion secret from her parents: "the deficit in Doe's testimony is not that she could not explain whether and how her prior treatment for a medical condition would affect her having an abortion."89 81 See TEX. FAM. CODE ? 151.003(b) (2000). Doe 4(I), 19 S.W.3d at 334 (Owen, J., dissenting). 83 Id. at 335. 84 19 S.W.3d 337 (Tex. 2000). 85 See id. at 339. 86 Id. at 342 (Hecht, J., concurring) (quoting Bellotti v. Baird, 443 U.S. 622, 642 (1979) ("Bellotti II")). 87 NAF Report at 9. 88 See Doe 4(II), 19 S.W.3d at 340 (reasoning that "if she does have a current health risk, then her physical needs and the potential dangers may way in favor of involving her parents in her decision"). 89 Id. at 342 (Hecht, J., concurring). 82 15 EXT-18-2091-C-000311 007104-001032 Document ID: 0.7.19343.5135-000001 VI. A Final Note on "Unconscionable Judicial Activism" The members of the Texas legal community know Justice Owen to be a jurist of the highest integrity, one who is committed to following the law no matter where it leads, and subordinating her personal policy preferences, whatever they may be, to the expressed intent of the legislature. In fact, every major newspaper in Texas endorsed Justice Owen during her reelection campaign in 2000. With respect to her nomination to the Fifth Circuit, the Dallas Morning News editorialized that "Justice Owen's lifelong record is one of accomplishment and integrity. She is one of the few judicial nominees to receive a unanimous 'well qualified' rating from the American Bar Association."90 Likewise, Texas Chief Justice Tom Phillips agreed that Justice Owen "tries to follow the legislative will in every case and apply the law, not invent it."91 Baylor University President Herbert Reynolds who formerly served as Chairman of the Texas Commission on Judicial Efficiency wrote: "Based on my knowledge of Justice Owen for the past 30 years, I believe that you simply cannot make a more solid choice for the 5th U.S. Circuit Court of Appeals."92 Despite these testimonials to Justice Owen's temperance, interest groups have seized on a single sentence from Justice Gonzales's concurrence in Doe 1(II) in an effort to disparage her commitment to practicing judicial restraint. Justice Gonzales's concurrence must be read in the context of Justice Hecht's dissent in that same case (a dissent that Justice Owen did not join). The Hecht dissent expressly accused the members in the majority including Justice Gonzales, whom the dissent individually names of reading their policy preferences into the Parental Notification Act. 93 Justice Gonzales wrote separately to deny Justice Hecht's allegation; that is, to dispute the "suggest[ion] that the Court's decisions are motivated by personal ideology. See 1 9 S.W.3d 367 (Hecht, J., dissenting)."94 Justice Gonzales further explained that he disputed "Justice Hecht['s] charge[ ] that our decision demonstrates the Court's determination to construe the Parental Notification Act as the Court believes the Act should be construed and not as the Legislature intended."95 According to Justice Gonzales, the dispute among the Justices reflected no more than disagreement over the proper way to interpret a statute. He explained that "every member of this Court agrees that the duty of a judge is to follow the law as written by 90 Editorial, Stop the Payback; Senate Needs to Move on Judicial Nominees, DALLAS MORNING NEWS, Feb. 10, 2002, at 2J. 91 Mary Flood, Judicial Nominee Takes Issue with Conservative Label, HOUSTON CHRON., May 10, 2001, at A37. 92 Letter from Herbert H. Reynolds, Baylor University President and Chancellor Emeritus, to All Members of the Senate Judiciary Committee (March 25, 2002). 93 See In re Jane Doe, 19 S.W.3d 346, 367 (Tex. 2000) (Hecht, J., dissenting) ("Doe 1(II)"): The Court adamantly refuses to listen to all reason, and the only plausible explanation is that the Justices who comprise the majority Chief Justice Phillips, Justice Enoch, Justice Baker, Justice Hankinson, Justice O'Neill, and Justice Gonzales have resolved to impair the Legislature's purposes in passing the Parental Notification Act, which were to reduce teenage abortions and increase parental involvement in their children's decisions. 94 Id. at 365 (Gonzales, J., dissenting). 95 Id. at 366. 16 EXT-18-2091-C-000312 007104-001033 Document ID: 0.7.19343.5135-000001 VI. A Final Note on "Unconscionable Judicial Activism" The members of the Texas legal community know Justice Owen to be a jurist of the highest integrity, one who is committed to following the law no matter where it leads, and subordinating her personal policy preferences, whatever they may be, to the expressed intent of the legislature. In fact, every major newspaper in Texas endorsed Justice Owen during her reelection campaign in 2000. With respect to her nomination to the Fifth Circuit, the Dallas Morning News editorialized that "Justice Owen's lifelong record is one of accomplishment and integrity. She is one of the few judicial nominees to receive a unanimous 'well qualified' rating from the American Bar Association."90 Likewise, Texas Chief Justice Tom Phillips agreed that Justice Owen "tries to follow the legislative will in every case and apply the law, not invent it."91 Baylor University President Herbert Reynolds who formerly served as Chairman of the Texas Commission on Judicial Efficiency wrote: "Based on my knowledge of Justice Owen for the past 30 years, I believe that you simply cannot make a more solid choice for the 5th U.S. Circuit Court of Appeals."92 Despite these testimonials to Justice Owen's temperance, interest groups have seized on a single sentence from Justice Gonzales's concurrence in Doe 1(II) in an effort to disparage her commitment to practicing judicial restraint. Justice Gonzales's concurrence must be read in the context of Justice Hecht's dissent in that same case (a dissent that Justice Owen did not join). The Hecht dissent expressly accused the members in the majority including Justice Gonzales, whom the dissent individually names of reading their policy preferences into the Parental Notification Act. 93 Justice Gonzales wrote separately to deny Justice Hecht's allegation; that is, to dispute the "suggest[ion] that the Court's decisions are motivated by personal ideology. See 1 9 S.W.3d 367 (Hecht, J., dissenting)."94 Justice Gonzales further explained that he disputed "Justice Hecht['s] charge[ ] that our decision demonstrates the Court's determination to construe the Parental Notification Act as the Court believes the Act should be construed and not as the Legislature intended."95 According to Justice Gonzales, the dispute among the Justices reflected no more than disagreement over the proper way to interpret a statute. He explained that "every member of this Court agrees that the duty of a judge is to follow the law as written by 90 Editorial, Stop the Payback; Senate Needs to Move on Judicial Nominees, DALLAS MORNING NEWS, Feb. 10, 2002, at 2J. 91 Mary Flood, Judicial Nominee Takes Issue with Conservative Label, HOUSTON CHRON., May 10, 2001, at A37. 92 Letter from Herbert H. Reynolds, Baylor University President and Chancellor Emeritus, to All Members of the Senate Judiciary Committee (March 25, 2002). 93 See In re Jane Doe, 19 S.W.3d 346, 367 (Tex. 2000) (Hecht, J., dissenting) ("Doe 1(II)"): The Court adamantly refuses to listen to all reason, and the only plausible explanation is that the Justices who comprise the majority Chief Justice Phillips, Justice Enoch, Justice Baker, Justice Hankinson, Justice O'Neill, and Justice Gonzales have resolved to impair the Legislature's purposes in passing the Parental Notification Act, which were to reduce teenage abortions and increase parental involvement in their children's decisions. 94 Id. at 365 (Gonzales, J., dissenting). 95 Id. at 366. 16 EXT-18-2091-C-000312 007104-001033 Document ID: 0.7.19343.5135-000001 the Legislature. This case is no different."96 Justice Gonzales then explained that it was his duty to follow the law as he interpreted it, regardless of what his policy views may or may not have been, and regardless of how other Justices interpreted the Act: [T]o construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so. . . . While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge impartially to apply the laws of this state without imposing my moral view on the decisions of the Legislature. Justice Hecht charges that our decision demonstrates the Court's determination to construe the Parental Notification Act as the Court believes the Act should be construed and not as the Legislature intended. I respectfully disagree. This decision demonstrates the Court's determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will that is reflected in the words of the Parental Notification Act, including the provisions allowing a judicial bypass. 97 The interest groups wrongly interpret the first sentence quoted above to mean that Justice Gonzales was charging other members of the Court with engaging in inappropriate judicial activism. But that reading ignores the subsequent sentences, as well as the broader context of Justice Hecht's accusations against the majority of the Court for engaging in judicial activism. Rightly read, Justice Gonzales's concurrence does not charge any other Justice with being judicial activists; it simply denies Justice Hecht's allegations that the majority was interpreting the Parental Notification Act in light of their political or ideological commitments. Justice Owen's voting record and opinions in the parental notification cases defy easy categorization. Justice Owen voted to allow abortions without notification more than some of her colleagues, and less than others. 98 The record therefore belies any 96 Id. at 365. Id. at 366 (emphasis added). 98 In the twelve rulings the Texas Supreme Court has issued as of July 9, 2002, Justice Owen was with the majority nine times, and recorded a dissent just three times. (By way of contrast, Justice Hecht joined the majority in seven cases, and recorded a dissent in five.) Justice Owen joined the majority in Doe 1(I), Doe 2, Doe 4(II), Doe 5, Doe 6, Doe 7, Doe 8, Doe 9, and Doe 10. She dissented in Doe 1(II), Doe 3, and Doe 4(I). In three cases, Justice Owen joined or authored an opinion that facilitated a girl's attempt to procure an abortion without telling her parents. In nine cases, she joined or authored an opinion that required (or, in the case of a dissent, would have required) a girl to notify her parents before having an abortion. (The numbers for Justice Hecht, by contrast, are one and eleven, 97 17 EXT-18-2091-C-000313 007104-001034 Document ID: 0.7.19343.5135-000001 the Legislature. This case is no different."96 Justice Gonzales then explained that it was his duty to follow the law as he interpreted it, regardless of what his policy views may or may not have been, and regardless of how other Justices interpreted the Act: [T]o construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so. . . . While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge impartially to apply the laws of this state without imposing my moral view on the decisions of the Legislature. Justice Hecht charges that our decision demonstrates the Court's determination to construe the Parental Notification Act as the Court believes the Act should be construed and not as the Legislature intended. I respectfully disagree. This decision demonstrates the Court's determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will that is reflected in the words of the Parental Notification Act, including the provisions allowing a judicial bypass. 97 The interest groups wrongly interpret the first sentence quoted above to mean that Justice Gonzales was charging other members of the Court with engaging in inappropriate judicial activism. But that reading ignores the subsequent sentences, as well as the broader context of Justice Hecht's accusations against the majority of the Court for engaging in judicial activism. Rightly read, Justice Gonzales's concurrence does not charge any other Justice with being judicial activists; it simply denies Justice Hecht's allegations that the majority was interpreting the Parental Notification Act in light of their political or ideological commitments. Justice Owen's voting record and opinions in the parental notification cases defy easy categorization. Justice Owen voted to allow abortions without notification more than some of her colleagues, and less than others. 98 The record therefore belies any 96 Id. at 365. Id. at 366 (emphasis added). 98 In the twelve rulings the Texas Supreme Court has issued as of July 9, 2002, Justice Owen was with the majority nine times, and recorded a dissent just three times. (By way of contrast, Justice Hecht joined the majority in seven cases, and recorded a dissent in five.) Justice Owen joined the majority in Doe 1(I), Doe 2, Doe 4(II), Doe 5, Doe 6, Doe 7, Doe 8, Doe 9, and Doe 10. She dissented in Doe 1(II), Doe 3, and Doe 4(I). In three cases, Justice Owen joined or authored an opinion that facilitated a girl's attempt to procure an abortion without telling her parents. In nine cases, she joined or authored an opinion that required (or, in the case of a dissent, would have required) a girl to notify her parents before having an abortion. (The numbers for Justice Hecht, by contrast, are one and eleven, 97 17 EXT-18-2091-C-000313 007104-001034 Document ID: 0.7.19343.5135-000001 assertion that she reflexively adopts any one position in parental notification cases. But more fundamentally, a Justice's "batting average" in parental notification cases is a poor indicator of his or her views on the frequency with which judicial bypasses should be granted.99 Under Texas law, parental notification cases can be appealed to the Texas Supreme Court only when a trial court has denied a girl's request to have an abortion without telling one of her parents, and an appellate court has affirmed that denial. There is no appeal if the lower courts approve the bypass. 1 00 Thus, the only opportunities the Supreme Court has to consider whether to grant judicial bypass are in cases where two lower courts have already determined that the girl's parents must be notified before she can have an abortion. Put another way, the cases that reach the Texas Supreme Court are disproportionately likely to present a situation where the statute requires a girl to inform her parents that she plans to have an abortion. VII. Conclusion As long ago as 1 835, Alexis de Tocqueville recognized the close interrelationship between American law and American politics. "Scarcely any political question arises in the United States," he wrote, "that is not resolved, sooner or later, into a judicial question."1 01 But the fact that judges decide politically charged issues does not mean that they should decide them politically. Instead, consistent with the rule of law and the limited role of the judiciary in a democratic system of government, judges must refrain from reading their personal beliefs into the law, and instead must give effect to the intent of the lawgiver. Justice Pricilla Owen's demonstrated commitment to doing just that reveals her to be the sort of jurist the American people have come to expect should occupy the federal bench. She has balanced the competing interests of pro-life activists and abortion providers, refusing to side reflexively with either group of litigants, and rejecting the proposition that the First Amendment is an excuse for unlawful protests. She has interpreted the Texas Parental Notification Act consistently with the U.S. Supreme Court's pronouncements on whether an underage girl is "mature" and "well informed," and whether a girl's plan to have an abortion without telling her parents is in her "best interest." She has interpreted "abuse" in the Parental Notification Act consistently with that term's definition in a similar Texas statute, refusing to manufacture a definition herself. She has deferred to the factual findings of the trial courts, which are in a unique position to assess the demeanor and credibility of witnesses, and has denied that appellate courts can reweigh the evidence themselves. respectively.) Justice Owen voted to facilitate abortion without notification in Doe 1(I), Doe 2, and Doe 10. She voted to require notification in Doe 1(II), Doe 3, Doe 4(I), Doe 4(II), Doe 5, Doe 6, Doe 7, Doe 8, and Doe 9. 99 It goes without saying that the "batting average" is even worse evidence of members' views about abortion generally, since the parental notification cases involve no question about whether the Constitution guarantees the right to abortion, or the scope of that right. 100 See TEX. FAM. CODE ? 33.004 (2000). 101 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 280 (Phillips Bradley trans., Alfred A. Knopf 1994) (1835). 18 EXT-18-2091-C-000314 007104-001035 Document ID: 0.7.19343.5135-000001 assertion that she reflexively adopts any one position in parental notification cases. But more fundamentally, a Justice's "batting average" in parental notification cases is a poor indicator of his or her views on the frequency with which judicial bypasses should be granted.99 Under Texas law, parental notification cases can be appealed to the Texas Supreme Court only when a trial court has denied a girl's request to have an abortion without telling one of her parents, and an appellate court has affirmed that denial. There is no appeal if the lower courts approve the bypass. 1 00 Thus, the only opportunities the Supreme Court has to consider whether to grant judicial bypass are in cases where two lower courts have already determined that the girl's parents must be notified before she can have an abortion. Put another way, the cases that reach the Texas Supreme Court are disproportionately likely to present a situation where the statute requires a girl to inform her parents that she plans to have an abortion. VII. Conclusion As long ago as 1 835, Alexis de Tocqueville recognized the close interrelationship between American law and American politics. "Scarcely any political question arises in the United States," he wrote, "that is not resolved, sooner or later, into a judicial question."1 01 But the fact that judges decide politically charged issues does not mean that they should decide them politically. Instead, consistent with the rule of law and the limited role of the judiciary in a democratic system of government, judges must refrain from reading their personal beliefs into the law, and instead must give effect to the intent of the lawgiver. Justice Pricilla Owen's demonstrated commitment to doing just that reveals her to be the sort of jurist the American people have come to expect should occupy the federal bench. She has balanced the competing interests of pro-life activists and abortion providers, refusing to side reflexively with either group of litigants, and rejecting the proposition that the First Amendment is an excuse for unlawful protests. She has interpreted the Texas Parental Notification Act consistently with the U.S. Supreme Court's pronouncements on whether an underage girl is "mature" and "well informed," and whether a girl's plan to have an abortion without telling her parents is in her "best interest." She has interpreted "abuse" in the Parental Notification Act consistently with that term's definition in a similar Texas statute, refusing to manufacture a definition herself. She has deferred to the factual findings of the trial courts, which are in a unique position to assess the demeanor and credibility of witnesses, and has denied that appellate courts can reweigh the evidence themselves. respectively.) Justice Owen voted to facilitate abortion without notification in Doe 1(I), Doe 2, and Doe 10. She voted to require notification in Doe 1(II), Doe 3, Doe 4(I), Doe 4(II), Doe 5, Doe 6, Doe 7, Doe 8, and Doe 9. 99 It goes without saying that the "batting average" is even worse evidence of members' views about abortion generally, since the parental notification cases involve no question about whether the Constitution guarantees the right to abortion, or the scope of that right. 100 See TEX. FAM. CODE ? 33.004 (2000). 101 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 280 (Phillips Bradley trans., Alfred A. Knopf 1994) (1835). 18 EXT-18-2091-C-000314 007104-001035 Document ID: 0.7.19343.5135-000001 Any one of these rulings, standing alone, would be compelling evidence of the author's understanding of the modest powers of the judiciary. And any one of these jurisprudential pillars dedication to Supreme Court precedent, deference to the legislature, respect for the trial courts' factual findings would qualify the author for a seat on the federal bench. Fortunately for the people of the Fifth Circuit, Justice Owen is committed to them all. I enthusiastically support Justice Owen's nomination to the Fifth Circuit, and urge the Senate to consider and approve her without additional delay. 19 EXT-18-2091-C-000315 007104-001036 Document ID: 0.7.19343.5135-000001 Any one of these rulings, standing alone, would be compelling evidence of the author's understanding of the modest powers of the judiciary. And any one of these jurisprudential pillars dedication to Supreme Court precedent, deference to the legislature, respect for the trial courts' factual findings would qualify the author for a seat on the federal bench. Fortunately for the people of the Fifth Circuit, Justice Owen is committed to them all. I enthusiastically support Justice Owen's nomination to the Fifth Circuit, and urge the Senate to consider and approve her without additional delay. 19 EXT-18-2091-C-000315 007104-001036 Document ID: 0.7.19343.5135-000001 Coalition for a Fair Judiciary JUSTICE OWEN'S EVENHANDED APPROACH TO THE LAW Table of Contents I. II. III. IV. V. VI. I. Introduction............................................................................................................................. 1 Defending the Rights of Employees ....................................................................................... 2 Parental Notification ............................................................................................................... 7 Maintaining the Integrity of Governmental Decisionmaking................................................. 8 Protecting Texas Consumers................................................................................................. 11 Conclusion ............................................................................................................................ 30 Introduction In the eight years she has served as a Justice of the Texas Supreme Court, Priscilla Owen has proven herself to be a common-sense, evenhanded jurist who strives to practice judicial restraint, and who succeeds in doing so. Justice Owen follows the law wherever it leads her, steadfastly enforcing the decisions of the United States Supreme Court, and unwaveringly implementing the expressed intent of the people's representatives in the legislature. Contrary to the eleventh-hour accusations of People for the American Way which has cornered the market in the industry of maligning universally esteemed and highly qualified judicial nominees Justice Owen has authored and joined a number of rulings that have preserved the rights of working Texans, given effect to the legislature's policy choices, afforded maximum flexibility to duly elected government officials, and protected consumers and other citizens. Needless to say, Justice Owen did not set out to reach pro-plaintiff outcomes in these cases. She did what she does in every case: faithfully apply the law equally to all who come before her, regardless of what may be publicly popular or politically expedient. Justice Owen's mission, as she sees it, is to implement the law as defined by the Texas Legislature and the U.S. Supreme Court, not to give effect to a PFAW-approved judicial ideology. To paraphrase another great practitioner of judicial restraint: the Texas Constitution does not enact Mr. Ralph Neas's policy preferences. Coalition for a Fair Judiciary Contact: Kay Dal (b) (6) EXT-18-2091-C-000316 007104-001037 Document ID: 0.7.19343.5135-000003 Coalition for a Fair Judiciary JUSTICE OWEN'S EVENHANDED APPROACH TO THE LAW Table of Contents I. II. III. IV. V. VI. I. Introduction............................................................................................................................. 1 Defending the Rights of Employees ....................................................................................... 2 Parental Notification ............................................................................................................... 7 Maintaining the Integrity of Governmental Decisionmaking................................................. 8 Protecting Texas Consumers................................................................................................. 11 Conclusion ............................................................................................................................ 30 Introduction In the eight years she has served as a Justice of the Texas Supreme Court, Priscilla Owen has proven herself to be a common-sense, evenhanded jurist who strives to practice judicial restraint, and who succeeds in doing so. Justice Owen follows the law wherever it leads her, steadfastly enforcing the decisions of the United States Supreme Court, and unwaveringly implementing the expressed intent of the people's representatives in the legislature. Contrary to the eleventh-hour accusations of People for the American Way which has cornered the market in the industry of maligning universally esteemed and highly qualified judicial nominees Justice Owen has authored and joined a number of rulings that have preserved the rights of working Texans, given effect to the legislature's policy choices, afforded maximum flexibility to duly elected government officials, and protected consumers and other citizens. Needless to say, Justice Owen did not set out to reach pro-plaintiff outcomes in these cases. She did what she does in every case: faithfully apply the law equally to all who come before her, regardless of what may be publicly popular or politically expedient. Justice Owen's mission, as she sees it, is to implement the law as defined by the Texas Legislature and the U.S. Supreme Court, not to give effect to a PFAW-approved judicial ideology. To paraphrase another great practitioner of judicial restraint: the Texas Constitution does not enact Mr. Ralph Neas's policy preferences. Coalition for a Fair Judiciary Contact: Kay Dal (b) (6) EXT-18-2091-C-000316 007104-001037 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 II. Defending the Rights of Employees As Texans know, Justice Owen's eight years on the Texas Supreme Court have seen her actively defend the rights of employees and working people. For instance, in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), she ruled that employers that opt out of the workers' compensation insurance system cannot raise "comparative negligence" defenses. A contrary decision would have prevented employees from recovering damages resulting from on-the-job injuries. In Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000), Justice Owen agreed that a worker who was suffering from asbestos-related cancer could sue certain asbestos suppliers, despite the fact that he had already settled with a different asbestos supplier. And in Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), a case where a construction worker died after the general contractor refused to prohibit the use of a dangerous device, Justice Owen upheld a $12.9 million jury verdict including $5 million in punitive damages. The cases cited by PFAW indicate nothing to the contrary. In fact, they reveal Justice Owen's demonstrated commitment to resolving legal disputes according to the prevailing law, regardless of whatever result the law ordains. Justice Owen consistently defers to the expressed intentions of the legislature, and she also looks to the federal courts including the U.S. Supreme Court for interpretive guidance. QUANTUM CHEM. CORP. V. TOENNIES Age Discrimination Allegation: Justice Owen dissented in an age discrimination suit brought under the Texas civil rights statute. Facts: Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex 2001) O A 55 year-old terminated employee won a lawsuit by showing circumstantial evidence that age discrimination motivated his termination. The issue was whether a plaintiff needs to show that the age discrimination was (1) "a motivating factor" or (2) "the determinative factor" for his job loss. O The employee sued under a state law that is patterned after the federal law. O Justice Owen joined a dissenting opinion that interpreted the state law consistently with a virtually identical federal law, as would ordinarily be done, on the grounds that the federal courts are closely divided on the issue. O Justice Owen agreed with the position that the Texas Supreme Court should follow the opinions of two federal circuits and indications in two United States Supreme Court opinions interpreting similar language in federal statutes. The Court majority, however, followed the opinion of one federal circuit and the ambiguous opinion of another. EXT-18-2091-C-000317 007104-001038 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2 II. Defending the Rights of Employees As Texans know, Justice Owen's eight years on the Texas Supreme Court have seen her actively defend the rights of employees and working people. For instance, in Kroger Co. v. Keng, 23 S.W.3d 347 (Tex. 2000), she ruled that employers that opt out of the workers' compensation insurance system cannot raise "comparative negligence" defenses. A contrary decision would have prevented employees from recovering damages resulting from on-the-job injuries. In Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000), Justice Owen agreed that a worker who was suffering from asbestos-related cancer could sue certain asbestos suppliers, despite the fact that he had already settled with a different asbestos supplier. And in Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), a case where a construction worker died after the general contractor refused to prohibit the use of a dangerous device, Justice Owen upheld a $12.9 million jury verdict including $5 million in punitive damages. The cases cited by PFAW indicate nothing to the contrary. In fact, they reveal Justice Owen's demonstrated commitment to resolving legal disputes according to the prevailing law, regardless of whatever result the law ordains. Justice Owen consistently defers to the expressed intentions of the legislature, and she also looks to the federal courts including the U.S. Supreme Court for interpretive guidance. QUANTUM CHEM. CORP. V. TOENNIES Age Discrimination Allegation: Justice Owen dissented in an age discrimination suit brought under the Texas civil rights statute. Facts: Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473 (Tex 2001) ? A 55 year-old terminated employee won a lawsuit by showing circumstantial evidence that age discrimination motivated his termination. The issue was whether a plaintiff needs to show that the age discrimination was (1) "a motivating factor" or (2) "the determinative factor" for his job loss. ? The employee sued under a state law that is patterned after the federal law. ? Justice Owen joined a dissenting opinion that interpreted the state law consistently with a virtually identical federal law, as would ordinarily be done, on the grounds that the federal courts are closely divided on the issue. ? Justice Owen agreed with the position that the Texas Supreme Court should follow the opinions of two federal circuits and indications in two United States Supreme Court opinions interpreting similar language in federal statutes. The Court majority, however, followed the opinion of one federal circuit and the ambiguous opinion of another. EXT-18-2091-C-000317 007104-001038 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 MONTGOMERY INDEPENDENT SCHOOL DISTRICT V. DAVIS Findings of Fact in Education Employment Law Cases Justice Owen wrote a dissent arguing that a school board may supplement findings of fact in education employment contract cases, to the detriment of teachers and in defiance of clear statutory language. Allegation: Facts: Montgomery Independent School District v. Davis, 34 S.W.3d 559 (Tex. 2000) ? In this case, a teacher was notified of the School Board's tentative decision not to renew her teaching contract, and opted to challenge the Board's decision. A state hearing examiner heard the challenge, but failed to make specific findings of fact on several key issues in the case. The hearing examiner recommended that the contract be renewed, but after holding its own hearing, the Board supplemented the examiner's factual findings and opted not to renew the contract. The teacher appealed to district court, which reversed, and the court of appeals affirmed the district court's decision. ? The majority held that the Board acted improperly in supplementing the deficient findings of fact, as it was not permitted to "sit in effect as a second factfinder." Statutory language that entitled the amendment of the findings of fact under certain circumstances was, in the majority's opinion, inapplicable because the hearing examiner's factual findings were supported by substantial evidence, which barred the Board from supplementing the factual findings. ? In dissent, Justice Owen argued that the examiner had refused to make specific findings of fact on several key issues in the case (i.e., requests from students to transfer out of the teacher's class, student complaints about the teacher, and the teacher's use of obscene language in the classroom). The dissent further noted that "[t]he upshot of the Court's decision is this: a hearing examiner will now be able to make findings of fact about matters that support his or her ultimate recommendation and can ignore parts of the record that do not support those recommendations." ? Justice Owen noted that the practical effect of the decision would be to wrest power away from local school boards. She stated, "Control of schools should remain where the Legislature has placed it, with local school boards." EXT-18-2091-C-000318 007104-001039 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 3 MONTGOMERY INDEPENDENT SCHOOL DISTRICT V. DAVIS Findings of Fact in Education Employment Law Cases Justice Owen wrote a dissent arguing that a school board may supplement findings of fact in education employment contract cases, to the detriment of teachers and in defiance of clear statutory language. Allegation: Facts: Montgomery Independent School District v. Davis, 34 S.W.3d 559 (Tex. 2000) O In this case, a teacher was notified of the School Board's tentative decision not to renew her teaching contract, and opted to challenge the Board's decision. A state hearing examiner heard the challenge, but failed to make specific findings of fact on several key issues in the case. The hearing examiner recommended that the contract be renewed, but after holding its own hearing, the Board supplemented the examiner's factual findings and opted not to renew the contract. The teacher appealed to district court, which reversed, and the court of appeals affirmed the district court's decision. O The majority held that the Board acted improperly in supplementing the deficient findings of fact, as it was not permitted to "sit in effect as a second factfinder." Statutory language that entitled the amendment of the findings of fact under certain circumstances was, in the majority's opinion, inapplicable because the hearing examiner's factual findings were supported by substantial evidence, which barred the Board from supplementing the factual findings. O In dissent, Justice Owen argued that the examiner had refused to make specific findings of fact on several key issues in the case (i.e., requests from students to transfer out of the teacher's class, student complaints about the teacher, and the teacher's use of obscene language in the classroom). The dissent further noted that "[t]he upshot of the Court's decision is this: a hearing examiner will now be able to make findings of fact about matters that support his or her ultimate recommendation and can ignore parts of the record that do not support those recommendations." O Justice Owen noted that the practical effect of the decision would be to wrest power away from local school boards. She stated, "Control of schools should remain where the Legislature has placed it, with local school boards." EXT-18-2091-C-000318 007104-001039 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4 COLLINS V. ISON-NEWSOME Jurisdiction to Hear Interlocutory Appeals Allegation: Justice Owen joined a dissent declaring that the Texas Supreme Court should take an interlocutory appeal filed by a defendant school district in an employment discrimination case, despite a prohibition by the Legislature on the exercise of such jurisdiction. Facts: Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001) ? The dissent joined by Justice Owen did not concern the validity of the plaintiff's underlying employment discrimination claim. It simply addressed the issue of jurisdiction to hear defendant's appeal. The trial court denied the defendant's summary judgment motion, and the Texas Court of Appeals affirmed the denial. ? Under a Texas statute, the Supreme Court has jurisdiction to hear an interlocutory appeal in circumstances where "one of the courts of appeals holds differently from a prior decision of another court of appeals . . . ." u The majority opinion concluded that the Court lacked jurisdiction to hear the case, because one of the opinions cited by defendant as being in conflict with another Court of Appeals decision was not, in fact, a "prior decision." Another of the opinions could not be addressed because it was an example of a conflict between two panels of the same Court of Appeals, not "another" Court of Appeals. The majority noted that other opinions cited by defendant as being in conflict could not be addressed, as they were unpublished. ? The dissent joined by Justice Owen argued that another jurisdictional statute, which provides for jurisdiction over "a case in which the justices of a court of appeals disagree on a question of law material to the decision," provided for jurisdiction in this case. The conflicting opinions, even if they were not published prior decisions from a different appeals court, would permit the exercise of jurisdiction under this other statute, the dissent argued. ? Additionally, the dissenters saw no basis in law for the conclusion that conflicts in unpublished opinions could not be used as a basis for jurisdiction. The dissent notes, "The Court cannot use a rule of procedure . . . to reduce categorically its statutory jurisdiction." The dissenters also noted that the Court adopted its own rule limiting the precedential value of unpublished opinions in 1982, and "[n]o argument can be made that before 1982 unpublished opinions could not give rise to 'conflicts jurisdiction' . . . ." u Two justices, in a concurring opinion, agreed with the general view that conflicts in unpublished opinions were a basis for jurisdiction. EXT-18-2091-C-000319 007104-001040 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4 COLLINS V. ISON-NEWSOME Jurisdiction to Hear Interlocutory Appeals Allegation: Justice Owen joined a dissent declaring that the Texas Supreme Court should take an interlocutory appeal filed by a defendant school district in an employment discrimination case, despite a prohibition by the Legislature on the exercise of such jurisdiction. Facts: Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001) O The dissent joined by Justice Owen did not concern the validity of the plaintiff's underlying employment discrimination claim. It simply addressed the issue of jurisdiction to hear defendant's appeal. The trial court denied the defendant's summary judgment motion, and the Texas Court of Appeals affirmed the denial. O Under a Texas statute, the Supreme Court has jurisdiction to hear an interlocutory appeal in circumstances where "one of the courts of appeals holds differently from a prior decision of another court of appeals . . . ." u The majority opinion concluded that the Court lacked jurisdiction to hear the case, because one of the opinions cited by defendant as being in conflict with another Court of Appeals decision was not, in fact, a "prior decision." Another of the opinions could not be addressed because it was an example of a conflict between two panels of the same Court of Appeals, not "another" Court of Appeals. The majority noted that other opinions cited by defendant as being in conflict could not be addressed, as they were unpublished. O The dissent joined by Justice Owen argued that another jurisdictional statute, which provides for jurisdiction over "a case in which the justices of a court of appeals disagree on a question of law material to the decision," provided for jurisdiction in this case. The conflicting opinions, even if they were not published prior decisions from a different appeals court, would permit the exercise of jurisdiction under this other statute, the dissent argued. O Additionally, the dissenters saw no basis in law for the conclusion that conflicts in unpublished opinions could not be used as a basis for jurisdiction. The dissent notes, "The Court cannot use a rule of procedure . . . to reduce categorically its statutory jurisdiction." The dissenters also noted that the Court adopted its own rule limiting the precedential value of unpublished opinions in 1982, and "[n]o argument can be made that before 1982 unpublished opinions could not give rise to 'conflicts jurisdiction' . . . ." u Two justices, in a concurring opinion, agreed with the general view that conflicts in unpublished opinions were a basis for jurisdiction. EXT-18-2091-C-000319 007104-001040 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 CONTINENTAL CASUALTY COMPANY V. DOWNS Lack of Timeliness as a Bar to Challenge of a Worker's Compensation Claim Allegation: Justice Owen joined a dissent stating that a workman's compensation carrier may challenge a worker's compensation claim despite the fact that the carrier failed to notify the worker of the refusal of the claim in the time limit proscribed by law. Facts: Continental Casualty Company v. Downs, 2001 WL 1876345 (Tex. 2001) ? The claim at issue in the case was rejected by the carrier, but the carrier did not send its notice of refusal to the worker within seven days of its receipt of notice of the injury, as required by state law. The trial court granted summary judgment for the carrier, holding that the failure to send notice in a timely fashion did not necessarily mandate that the claim be granted. The Texas Court of Appeals reversed, holding that the carrier had forfeited its right to contest the claim, and rendered judgment for the worker. ? Neither the majority opinion nor the dissent joined by Justice Owen addressed the factual predicate supporting the claim. ? The majority held that the failure to notify the worker of the refusal of the claim in the time limit proscribed by law barred the carrier from contesting the claim, despite the fact that the statute imposing the deadline did not mandate the forfeiture of a carrier's right to contest a claim. u The majority opined that creating this penalty was an "interpret[ation] of the legislative scheme" and "str[uck] a balance between the injured employee's interest in obtaining prompt payment of benefits or notice of refusal and the carrier's interest in investigating valid grounds for refusal." ? The dissent joined by Justice Owen noted that the Legislature had already proscribed a penalty for the failure to notify the worker of the refusal of the claim in the time limit proscribed by law - an administrative violation to be determined by the Texas Workers' Compensation Commission. The dissent noted, "No other consequence is mentioned in the statute." The dissent concluded, "The Court unjustifiably dispenses with the statute's plain language and enacts a forfeiture provision that the Legislature never promulgated. In doing so, it alters a fundamental aspect of the Workers' Compensation System that has been applied consistently for over a decade." ? The dissent also chastised the majority for "consider[ing] whether the penalties are sufficient," for "[p]olitical questions such as those should not infect our analysis of the statute's meaning." Quoting another Texas Supreme Court case, the dissenters stated, "'The wisdom or expediency of the law is the Legislature's prerogative, not ours.'" ? The Texas Workers' Compensation Commission, a state agency, filed an amicus curiae brief that essentially agreed with the dissenters' position. EXT-18-2091-C-000320 007104-001041 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5 CONTINENTAL CASUALTY COMPANY V. DOWNS Lack of Timeliness as a Bar to Challenge of a Worker's Compensation Claim Allegation: Justice Owen joined a dissent stating that a workman's compensation carrier may challenge a worker's compensation claim despite the fact that the carrier failed to notify the worker of the refusal of the claim in the time limit proscribed by law. Facts: Continental Casualty Company v. Downs, 2001 WL 1876345 (Tex. 2001) O The claim at issue in the case was rejected by the carrier, but the carrier did not send its notice of refusal to the worker within seven days of its receipt of notice of the injury, as required by state law. The trial court granted summary judgment for the carrier, holding that the failure to send notice in a timely fashion did not necessarily mandate that the claim be granted. The Texas Court of Appeals reversed, holding that the carrier had forfeited its right to contest the claim, and rendered judgment for the worker. O Neither the majority opinion nor the dissent joined by Justice Owen addressed the factual predicate supporting the claim. O The majority held that the failure to notify the worker of the refusal of the claim in the time limit proscribed by law barred the carrier from contesting the claim, despite the fact that the statute imposing the deadline did not mandate the forfeiture of a carrier's right to contest a claim. u The majority opined that creating this penalty was an "interpret[ation] of the legislative scheme" and "str[uck] a balance between the injured employee's interest in obtaining prompt payment of benefits or notice of refusal and the carrier's interest in investigating valid grounds for refusal." O The dissent joined by Justice Owen noted that the Legislature had already proscribed a penalty for the failure to notify the worker of the refusal of the claim in the time limit proscribed by law - an administrative violation to be determined by the Texas Workers' Compensation Commission. The dissent noted, "No other consequence is mentioned in the statute." The dissent concluded, "The Court unjustifiably dispenses with the statute's plain language and enacts a forfeiture provision that the Legislature never promulgated. In doing so, it alters a fundamental aspect of the Workers' Compensation System that has been applied consistently for over a decade." O The dissent also chastised the majority for "consider[ing] whether the penalties are sufficient," for "[p]olitical questions such as those should not infect our analysis of the statute's meaning." Quoting another Texas Supreme Court case, the dissenters stated, "'The wisdom or expediency of the law is the Legislature's prerogative, not ours.'" O The Texas Workers' Compensation Commission, a state agency, filed an amicus curiae brief that essentially agreed with the dissenters' position. EXT-18-2091-C-000320 007104-001041 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6 TEXAS MUN. LEAGUE RISK POOL V. TEXAS WORKERS' COMP. COMM'N Constitutionality of the Texas Subsequent Injury Fund and Its Rules As Applied to a Municipal Risk Pool Allegation: Justice Owen dissented from the Court's holding that the Texas Subsequent Injury Fund and its rules requiring municipal risk pools to pay unclaimed death benefits to the Fund were constitutional. Facts: Texas Mun. League Risk Pool v. Texas Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) ? This case turned on the complex state constitutional question of whether the Texas legislature could require municipal risk pools to contribute unclaimed death benefits to the State Subsequent Injury Fund, or whether such requirement violated provisions of the Texas Constitution prohibiting state laws authorizing a political subdivision to "lend its credit or grant public money or thing or value.... to any individual, association or corporation whatsoever." ? Justice Owen's dissent relied on the plain meaning of the Texas Constitution, which prohibits any payments by municipalities unless the governmental unit has an independent obligation to make them. ? In this case, political subdivisions were required to transfer funds from their risk pools (unclaimed death benefits) to be used to pay for injuries for which the political subdivisions may have had no liability i.e. workers compensation benefits paid to injured employees outside of the municipality. ? Following the principle of stare decisis, Justice Owen believed that the case was governed by long-standing precedent handed down in City ofTyler v. Texas Employers' Insurance Association, 288 S.W.2d 409 (Tex. Comm'n App. 1926, judgment adopted). u ? In City ofTyler, the court concluded that political subdivisions have no common law or contractual obligation to provide benefits to workers other than their own employees, and that the Texas Legislature was prohibited from requiring a political subdivision to divert public funds for those purposes. Recognizing the fact that the Texas Subsequent Injury Fund serves a "laudable purpose" in that it encourages employers to hire disabled employees without fear that later injuries will expose them to greater liability, Justice Owen nonetheless sought to remain faithful to the plain meaning of the Texas Constitution as she saw it, and as she interpreted existing Texas case law. EXT-18-2091-C-000321 007104-001042 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 6 TEXAS MUN. LEAGUE RISK POOL V. TEXAS WORKERS' COMP. COMM'N Constitutionality of the Texas Subsequent Injury Fund and Its Rules As Applied to a Municipal Risk Pool Allegation: Justice Owen dissented from the Court's holding that the Texas Subsequent Injury Fund and its rules requiring municipal risk pools to pay unclaimed death benefits to the Fund were constitutional. Facts: Texas Mun. League Risk Pool v. Texas Workers' Comp. Comm'n, 74 S.W.3d 377 (Tex. 2002) O This case turned on the complex state constitutional question of whether the Texas legislature could require municipal risk pools to contribute unclaimed death benefits to the State Subsequent Injury Fund, or whether such requirement violated provisions of the Texas Constitution prohibiting state laws authorizing a political subdivision to "lend its credit or grant public money or thing or value.... to any individual, association or corporation whatsoever." O Justice Owen's dissent relied on the plain meaning of the Texas Constitution, which prohibits any payments by municipalities unless the governmental unit has an independent obligation to make them. O In this case, political subdivisions were required to transfer funds from their risk pools (unclaimed death benefits) to be used to pay for injuries for which the political subdivisions may have had no liability i.e. workers compensation benefits paid to injured employees outside of the municipality. O Following the principle of stare decisis, Justice Owen believed that the case was governed by long-standing precedent handed down in City ofTyler v. Texas Employers' Insurance Association, 288 S.W.2d 409 (Tex. Comm'n App. 1926, judgment adopted). u O In City ofTyler, the court concluded that political subdivisions have no common law or contractual obligation to provide benefits to workers other than their own employees, and that the Texas Legislature was prohibited from requiring a political subdivision to divert public funds for those purposes. Recognizing the fact that the Texas Subsequent Injury Fund serves a "laudable purpose" in that it encourages employers to hire disabled employees without fear that later injuries will expose them to greater liability, Justice Owen nonetheless sought to remain faithful to the plain meaning of the Texas Constitution as she saw it, and as she interpreted existing Texas case law. EXT-18-2091-C-000321 007104-001042 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 III. Parental Notification Justice Owen's unswerving dedication to enforcing the intent of the legislature, and abiding commitment to the precedents of the U.S. Supreme Court, are perhaps most evident in the Texas Supreme Court's parental notification cases. Texas is one of more than 40 states whose legislatures have chosen to require that, as a general rule, minor girls must notify a parent before they have an abortion. (Some of these states additionally require minors to obtain parental consent, but Texas is not one of them.) None of the notification cases required the Texas Supreme Court to decide whether the Constitution protects the right to abortion a question that has been clearly settled by the U.S. Supreme Court. Instead, the Court had to interpret a new parental notification statute governing the exercise of that right. Texas state Senator Florence Shapiro, a chief author of the Parental Notification Act who rallied lawmakers on both sides of the abortion debate, recently explained as much in a letter to the Senate Judiciary Committee. According to Senator Shapiro: The Parental Notification Act is emphatically not about whether a minor is able to have an abortion, but whether her parent should be notified. The Act nowhere presents the question of whether the Constitution guarantees the right to abortion or the scope of such a right; in fact, it recognizes that a girl may have an abortion. In addition, it is important to bear in mind that a finding that a minor has not met the legislature's standard for a judicial bypass does not prevent her from having an abortion. It only requires her to tell one parent before she does so. In determining the meaning of the Parental Notification Act, Justice Owen consistently looked to the stated intentions of the Texas Legislature, and also applied decisions handed down by the U.S. Supreme Court. The definitive rebuttal to PFAW's misrepresentations appears in a report entitled "Priscilla Owen: A Restrained, Principled Jurist," authored by former White House Counsel C. Boyden Gray. (The Department of Justice has posted a copy of Mr. Gray's report on the web at: http://www.usdoj.gov/olp/boydengrayreport.pdf.) As Senator Shapiro whom no one would mistake for a pro-life activist has affirmed, Justice Owen's "opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint." EXT-18-2091-C-000322 007104-001043 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 7 III. Parental Notification Justice Owen's unswerving dedication to enforcing the intent of the legislature, and abiding commitment to the precedents of the U.S. Supreme Court, are perhaps most evident in the Texas Supreme Court's parental notification cases. Texas is one of more than 40 states whose legislatures have chosen to require that, as a general rule, minor girls must notify a parent before they have an abortion. (Some of these states additionally require minors to obtain parental consent, but Texas is not one of them.) None of the notification cases required the Texas Supreme Court to decide whether the Constitution protects the right to abortion a question that has been clearly settled by the U.S. Supreme Court. Instead, the Court had to interpret a new parental notification statute governing the exercise of that right. Texas state Senator Florence Shapiro, a chief author of the Parental Notification Act who rallied lawmakers on both sides of the abortion debate, recently explained as much in a letter to the Senate Judiciary Committee. According to Senator Shapiro: The Parental Notification Act is emphatically not about whether a minor is able to have an abortion, but whether her parent should be notified. The Act nowhere presents the question of whether the Constitution guarantees the right to abortion or the scope of such a right; in fact, it recognizes that a girl may have an abortion. In addition, it is important to bear in mind that a finding that a minor has not met the legislature's standard for a judicial bypass does not prevent her from having an abortion. It only requires her to tell one parent before she does so. In determining the meaning of the Parental Notification Act, Justice Owen consistently looked to the stated intentions of the Texas Legislature, and also applied decisions handed down by the U.S. Supreme Court. The definitive rebuttal to PFAW's misrepresentations appears in a report entitled "Priscilla Owen: A Restrained, Principled Jurist," authored by former White House Counsel C. Boyden Gray. (The Department of Justice has posted a copy of Mr. Gray's report on the web at: http://www.usdoj.gov/olp/boydengrayreport.pdf.) As Senator Shapiro whom no one would mistake for a pro-life activist has affirmed, Justice Owen's "opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint." EXT-18-2091-C-000322 007104-001043 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8 IV. Maintaining the Integrity of Governmental Decisionmaking As a state judge, Justice Owen has endeavored to preserve the integrity of the processes by which governmental bodies reach and implement political decisions. In doing so, she has rejected the use of the "nondelegation doctrine" an arcane theory of constitutional law that would prevent legislatures from developing creative, innovative solutions to new and unanticipated social problems. (Coincidentally, the U.S. Supreme Court came to the same result in the recent case of Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001).) And Justice Owen has applied U.S. Supreme Court precedents affirming the confidentiality of certain privileged governmental documents. FM Properties Operating Co. v. City ofAustin Deferring to Legislative Policy Choices Allegation: "In a test of the constitutionality of a state law tailored to exempt a specific land developer from the City of Austin's water quality rules, Owen wrote a forceful dissent that decried the majority for finding this special-interest statute unconstitutional (FM Properties Operating Co. v. City ofAustin). The dissenting Owen, who received $2,500 in campaign contributions from the same developer and $45,000 from the developer's attorneys, criticized the majority for curtailing the developer's private property rights." Facts: FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) ? Justice Owen dissented from the majority's decision that a Texas law, which allowed landowners to designate their property as "water quality protection zones," was an unconstitutional delegation of legislative power. u The Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." ? Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation: "How the Legislature chooses to regulate is left to the Legislature, not this Court." The majority's decision to invalidate the law "usurps authority that is reserved to another branch of government the Legislature." ? Justice Owen rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. ? Texas Attorney General Dan Morales, a Democrat, had intervened in the proceedings to defend the law's constitutionality. EXT-18-2091-C-000323 007104-001044 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8 IV. Maintaining the Integrity of Governmental Decisionmaking As a state judge, Justice Owen has endeavored to preserve the integrity of the processes by which governmental bodies reach and implement political decisions. In doing so, she has rejected the use of the "nondelegation doctrine" an arcane theory of constitutional law that would prevent legislatures from developing creative, innovative solutions to new and unanticipated social problems. (Coincidentally, the U.S. Supreme Court came to the same result in the recent case of Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001).) And Justice Owen has applied U.S. Supreme Court precedents affirming the confidentiality of certain privileged governmental documents. FM Properties Operating Co. v. City ofAustin Deferring to Legislative Policy Choices Allegation: "In a test of the constitutionality of a state law tailored to exempt a specific land developer from the City of Austin's water quality rules, Owen wrote a forceful dissent that decried the majority for finding this special-interest statute unconstitutional (FM Properties Operating Co. v. City ofAustin). The dissenting Owen, who received $2,500 in campaign contributions from the same developer and $45,000 from the developer's attorneys, criticized the majority for curtailing the developer's private property rights." Facts: FM Properties Operating Co. v. City ofAustin, 22 S.W.3d 868 (Tex. 2000) O Justice Owen dissented from the majority's decision that a Texas law, which allowed landowners to designate their property as "water quality protection zones," was an unconstitutional delegation of legislative power. u The Justices in the majority themselves conceded that "[d]efining what legislative power is or when it has been delegated is no easy task." O Justice Owen argued that legislatures should be allowed the flexibility to develop creative, innovative solutions to pressing social problems, and that courts should not interfere with such experimentation: "How the Legislature chooses to regulate is left to the Legislature, not this Court." The majority's decision to invalidate the law "usurps authority that is reserved to another branch of government the Legislature." O Justice Owen rejected the majority's "nondelegation doctrine" a theory that, if adopted by the federal courts, would imperil Congress's ability to delegate lawmaking authority to all manner of administrative agencies. O Texas Attorney General Dan Morales, a Democrat, had intervened in the proceedings to defend the law's constitutionality. EXT-18-2091-C-000323 007104-001044 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9 City ofGarland v. Dallas Morning News Texas Public Information Act Allegation: Justice Owen's dissent would have severely restricted the public's access to information in a case involving the Texas Public Information Act. Specifically, the issue was whether a memorandum concerning the termination of the employment of a city finance director was public information within the meaning of the Texas Public Information Act, and, if so, whether it was exempt from disclosure under the "deliberative process privilege." Facts: City ofGarland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) ? The plurality opinion acknowledges that the questions of whether the deliberative process privilege existed in Texas and, if so, the scope of such privilege, were issues of first impression. The entire court agreed that the Texas Public Information Act ("TPIA") incorporated the deliberative process privilege, however, it could not agree on whether documents used in making personnel decisions were included within the privilege. u The memo at issue was a draft written to the city's director of finance from the city manager stating that the director of finance was being removed from his position and the reasons for the removal. The memo was prepared for the purposes of discussion with city council members to determine whether to pursue a course of action consistent with the memo. Ultimately, the city decided to pursue a different course of action and never went forward with the memorandum. ? The TPIA was modeled on the federal Freedom of Information Act, and therefore, the plurality agreed with Justice Owen that it was proper to look to federal caselaw for guidance. ? The key exception to this case, which would exempt agency communications falling under the deliberative process privilege, was interpreted by the Supreme Court to promote "frank discussion of legal and policy matters." EPA v. Mink, 410 U.S. 73 (1973). u The plurality asserted that despite the federal caselaw holding to the contrary, it would not consider personnel issues as policy matters. u The plurality indicated that the federal courts had too broadly interpreted the exception, so that it would not follow their precedent, stating: "the increasing scope of the deliberative process privilege in federal courts is in itself a reason to not follow post-1973 federal court cases." u The concurring opinion of three justices expressed its concerns with the plurality's broad analysis, stating: "I join in the result of the plurality's analysis of whether the exceptions apply, but not in all of its writing." EXT-18-2091-C-000324 007104-001045 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9 City ofGarland v. Dallas Morning News Texas Public Information Act Allegation: Justice Owen's dissent would have severely restricted the public's access to information in a case involving the Texas Public Information Act. Specifically, the issue was whether a memorandum concerning the termination of the employment of a city finance director was public information within the meaning of the Texas Public Information Act, and, if so, whether it was exempt from disclosure under the "deliberative process privilege." Facts: City ofGarland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) O The plurality opinion acknowledges that the questions of whether the deliberative process privilege existed in Texas and, if so, the scope of such privilege, were issues of first impression. The entire court agreed that the Texas Public Information Act ("TPIA") incorporated the deliberative process privilege, however, it could not agree on whether documents used in making personnel decisions were included within the privilege. u The memo at issue was a draft written to the city's director of finance from the city manager stating that the director of finance was being removed from his position and the reasons for the removal. The memo was prepared for the purposes of discussion with city council members to determine whether to pursue a course of action consistent with the memo. Ultimately, the city decided to pursue a different course of action and never went forward with the memorandum. O The TPIA was modeled on the federal Freedom of Information Act, and therefore, the plurality agreed with Justice Owen that it was proper to look to federal caselaw for guidance. O The key exception to this case, which would exempt agency communications falling under the deliberative process privilege, was interpreted by the Supreme Court to promote "frank discussion of legal and policy matters." EPA v. Mink, 410 U.S. 73 (1973). u The plurality asserted that despite the federal caselaw holding to the contrary, it would not consider personnel issues as policy matters. u The plurality indicated that the federal courts had too broadly interpreted the exception, so that it would not follow their precedent, stating: "the increasing scope of the deliberative process privilege in federal courts is in itself a reason to not follow post-1973 federal court cases." u The concurring opinion of three justices expressed its concerns with the plurality's broad analysis, stating: "I join in the result of the plurality's analysis of whether the exceptions apply, but not in all of its writing." EXT-18-2091-C-000324 007104-001045 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10 O O Justice Owen cited numerous examples of federal cases in which the courts held that documents used to make personnel decisions were included within the deliberative process privilege. Justice Owen would have had the courts follow the rationale of the federal circuit court opinions. u In May v. Department ofAir Force, 777 F.2d 1012 (5th Cir. 1985), the court held that the deliberative process exemption applied to evaluations and recommendations that the Air Force kept on file and used in deciding to promote officers. In American Federation ofGovernment Employees, Local 2782 v. U.S. Department ofCommerce, 907 F.2d 203 (D.C. Cir. 1990), the court held that forms on which recommendations of particular employees for specific promotions were recorded were exempt under the deliberative process privilege. Similarly, in Kalmin v. Department ofNavy, 605 F. Supp. 1492 (D.D.C. 1985), the court found that documents used by the Navy in making personnel decisions were part of the deliberative process and therefore exempt. u The D.C. Circuit's AFGE decision further explained: "The exemption . . . covers recommendations, drafts, documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as an agency position that which is as yet only a person position." AFGE at 208. Justice Owen also argued that the Open Records Act or TPIA should be read together with the Open Meetings Act. The Texas Open Meetings Act specifically allows employment matters to be discussed in closed meetings. Justice Owen made the point that it would have been inconsistent for the Legislature to exempt from public disclosure an oral presentation, but not the identical presentation in writing. u O Justice Owen specifically agreed with the plurality opinion that a document that would otherwise be public information could not be brought within the deliberative process exemption by discussing it at a closed session. In this case of first impression, Justice Owen would have had the court follow federal precedent and adopt the interpretation of deliberative process privilege to include documents relating to personnel matters. Justice Owen's dissent did not comment on other possible exceptions to the deliberative process privilege and she narrowly tailored her language to personnel matters only. EXT-18-2091-C-000325 007104-001046 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 10 ? ? Justice Owen cited numerous examples of federal cases in which the courts held that documents used to make personnel decisions were included within the deliberative process privilege. Justice Owen would have had the courts follow the rationale of the federal circuit court opinions. u In May v. Department ofAir Force, 777 F.2d 1012 (5th Cir. 1985), the court held that the deliberative process exemption applied to evaluations and recommendations that the Air Force kept on file and used in deciding to promote officers. In American Federation ofGovernment Employees, Local 2782 v. U.S. Department ofCommerce, 907 F.2d 203 (D.C. Cir. 1990), the court held that forms on which recommendations of particular employees for specific promotions were recorded were exempt under the deliberative process privilege. Similarly, in Kalmin v. Department ofNavy, 605 F. Supp. 1492 (D.D.C. 1985), the court found that documents used by the Navy in making personnel decisions were part of the deliberative process and therefore exempt. u The D.C. Circuit's AFGE decision further explained: "The exemption . . . covers recommendations, drafts, documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as an agency position that which is as yet only a person position." AFGE at 208. Justice Owen also argued that the Open Records Act or TPIA should be read together with the Open Meetings Act. The Texas Open Meetings Act specifically allows employment matters to be discussed in closed meetings. Justice Owen made the point that it would have been inconsistent for the Legislature to exempt from public disclosure an oral presentation, but not the identical presentation in writing. u ? Justice Owen specifically agreed with the plurality opinion that a document that would otherwise be public information could not be brought within the deliberative process exemption by discussing it at a closed session. In this case of first impression, Justice Owen would have had the court follow federal precedent and adopt the interpretation of deliberative process privilege to include documents relating to personnel matters. Justice Owen's dissent did not comment on other possible exceptions to the deliberative process privilege and she narrowly tailored her language to personnel matters only. EXT-18-2091-C-000325 007104-001046 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11 V. Protecting Texas Consumers Justice Owen strives to ensure that all parties in Texas, including consumers, get a fair shake before their state's courts. To name just a few examples, in Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999), she held that a manufacturer of cigarette lighters has a duty to make sure that its products are child resistant, even though they were intended for use only by adults. In Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999), she ruled that a medical malpractice victim could bring a suit against the doctor, even though the plaintiff sued the doctor personally and not the physician's association. And in Mid-Century Insurance Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), she required an insurance company to pay $50,000 in uninsured motorist coverage, because she concluded that the policy's coverage of "accidents" included a boy's inadvertent act. Again, it must be stressed that Justice Owen did not set out in these cases to issue decisions that were consumer-friendly, or that would benefit a litigant whom she wanted to see prevail. Instead, Justice Owen reasoned her way to these conclusions the same way she does in every case: by dispassionately applying the law, as defined by the legislature and the U.S. Supreme Court, to the facts of an individual case. TEXAS DOT V. ABLE State Waiver of Sovereign Immunity under the Texas Tort Claims Act Allegation: Owen dissented from an opinion finding that a state agency that entered into a joint enterprise with another governmental entity could be found vicariously liable for the negligent acts of that entity because the state waived sovereign immunity for such agreements under the Texas Tort Claims Act. Facts: Texas DOT v. Able, 35 S.W.3d 608 (Tex. 2000) ? ? In Able, a 6-3 majority of the Court held that under the Texas Tort Claims Act, State agencies could be held vicariously liable for the acts of state political subdivisions, if the State had entered into a joint enterprise with the subdivision. u In this case, several victims injured in a car accident sued the Texas DOT (TxDOT), and several other government entities, including the Houston Metropolitan Transit Authority (Metro), alleging negligence and gross negligence and that the governmental entities participated in a joint enterprise in constructing and maintaining the Houston highway system. u A jury found that TxDOT was not negligent, but that it engaged in a joint enterprise with Metro, and was thus vicariously liable for Metro's negligence. Justice Owen, joined in her dissent by two other Justices, argued that the relationship between TxDOT and Metro was not a joint enterprise because it failed to meet two of the necessary elements of such a relationship- namely that members have an equal right of control over and a pecuniary interest in the enterprise. EXT-18-2091-C-000326 007104-001047 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 11 V. Protecting Texas Consumers Justice Owen strives to ensure that all parties in Texas, including consumers, get a fair shake before their state's courts. To name just a few examples, in Hernandez v. Tokai Corp., 2 S.W.3d 251 (Tex. 1999), she held that a manufacturer of cigarette lighters has a duty to make sure that its products are child resistant, even though they were intended for use only by adults. In Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999), she ruled that a medical malpractice victim could bring a suit against the doctor, even though the plaintiff sued the doctor personally and not the physician's association. And in Mid-Century Insurance Co. v. Lindsey, 997 S.W.2d 153 (Tex. 1999), she required an insurance company to pay $50,000 in uninsured motorist coverage, because she concluded that the policy's coverage of "accidents" included a boy's inadvertent act. Again, it must be stressed that Justice Owen did not set out in these cases to issue decisions that were consumer-friendly, or that would benefit a litigant whom she wanted to see prevail. Instead, Justice Owen reasoned her way to these conclusions the same way she does in every case: by dispassionately applying the law, as defined by the legislature and the U.S. Supreme Court, to the facts of an individual case. TEXAS DOT V. ABLE State Waiver of Sovereign Immunity under the Texas Tort Claims Act Allegation: Owen dissented from an opinion finding that a state agency that entered into a joint enterprise with another governmental entity could be found vicariously liable for the negligent acts of that entity because the state waived sovereign immunity for such agreements under the Texas Tort Claims Act. Facts: Texas DOT v. Able, 35 S.W.3d 608 (Tex. 2000) O O In Able, a 6-3 majority of the Court held that under the Texas Tort Claims Act, State agencies could be held vicariously liable for the acts of state political subdivisions, if the State had entered into a joint enterprise with the subdivision. u In this case, several victims injured in a car accident sued the Texas DOT (TxDOT), and several other government entities, including the Houston Metropolitan Transit Authority (Metro), alleging negligence and gross negligence and that the governmental entities participated in a joint enterprise in constructing and maintaining the Houston highway system. u A jury found that TxDOT was not negligent, but that it engaged in a joint enterprise with Metro, and was thus vicariously liable for Metro's negligence. Justice Owen, joined in her dissent by two other Justices, argued that the relationship between TxDOT and Metro was not a joint enterprise because it failed to meet two of the necessary elements of such a relationship- namely that members have an equal right of control over and a pecuniary interest in the enterprise. EXT-18-2091-C-000326 007104-001047 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 u Her dissent did not argue that such a relationship could never exist between a state and a political subdivision--only that it did not exist in this case. ? Equal control. In this case, Justice Owen found that the operational agreement between the state and Metro recognized expressly that the state had ultimate control over the highway on which the plaintiffs were injured. She also noted that the traditional relationship between the state and its political subdivisions was one where the State had a superior right of control. Without such an equal right, no joint enterprise can exist. ? Pecuniary interest. Justice Owen, relied on existing case law holding that a joint enterprise can only arise in commercial situations. Since providing, operating and maintaining public highways is not truly a commercial enterprise it is a core governmental function it was arguable whether a joint enterprise existed in this case. EXT-18-2091-C-000327 007104-001048 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 12 u Her dissent did not argue that such a relationship could never exist between a state and a political subdivision--only that it did not exist in this case. O Equal control. In this case, Justice Owen found that the operational agreement between the state and Metro recognized expressly that the state had ultimate control over the highway on which the plaintiffs were injured. She also noted that the traditional relationship between the state and its political subdivisions was one where the State had a superior right of control. Without such an equal right, no joint enterprise can exist. O Pecuniary interest. Justice Owen, relied on existing case law holding that a joint enterprise can only arise in commercial situations. Since providing, operating and maintaining public highways is not truly a commercial enterprise it is a core governmental function it was arguable whether a joint enterprise existed in this case. EXT-18-2091-C-000327 007104-001048 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 13 HELENA CHEMICAL CO. V. WILKINS Texas Seed Arbitration Act Allegation: Justice Owen joined a dissent that would have held that the Texas Seed Arbitration Act barred a farmer's claims because the farmer delayed the submission of his claim to the arbitration board. The dissent would have accepted the manufacturer's argument that the Board's refusal to arbitrate was a jurisdictional bar to litigation. Facts: Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001) O This was a case of first impression involving the Texas Seed Arbitration Act ("Seed Act") where the 6-3 majority held that the timeliness requirement for submitting claims to arbitration did not jurisdictionally bar their court claim. u In this case, a farmer sued a seed company when the seeds did not perform as the company had suggested they would. The Seed Act was controlling on all such claims. u The farmer knew about the alleged problem with the seed sold to him by defendant, and knew that the Seed Act required complaints to be submitted to arbitration. Nevertheless, the farmer delayed submitting his complaint to arbitration until years after he discovered the problem making it impossible for the arbitration Board to inspect his crops. u Unable to do an inspection because the crops were no longer in "field condition," the arbitration Board declined to arbitrate allowing the farmer to go directly to court. O The statute set forth arbitration requirements on individuals bringing defective seed complaints. The seed purchaser "must submit the claim to arbitration as provided by this chapter as a prerequisite to the exercise of the purchaser's rights to maintain legal action against the labeler." "Except in the case of seed that has not been planted, the complaint must be filed within the time necessary to permit effective inspection of the field conditions." O The dissent joined by Justice Owen argued that the statute should be given its plain meaning and that the use of the word must in the relevant portions of the statute indicated that the legislature intended that two things would happen: (1) claim would be submitted; AND (2) the claim would be submitted within the time necessary to permit an effective inspection. u The dissent made the point that the purpose of the Seed Act is to "provide[] for an unbiased third party investigation by the State Seed and Plant Board of the Texas Department of Agriculture of complaints concerning seed performance." If the EXT-18-2091-C-000328 007104-001049 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 13 HELENA CHEMICAL CO. V. WILKINS Texas Seed Arbitration Act Allegation: Justice Owen joined a dissent that would have held that the Texas Seed Arbitration Act barred a farmer's claims because the farmer delayed the submission of his claim to the arbitration board. The dissent would have accepted the manufacturer's argument that the Board's refusal to arbitrate was a jurisdictional bar to litigation. Facts: Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001) ? This was a case of first impression involving the Texas Seed Arbitration Act ("Seed Act") where the 6-3 majority held that the timeliness requirement for submitting claims to arbitration did not jurisdictionally bar their court claim. u In this case, a farmer sued a seed company when the seeds did not perform as the company had suggested they would. The Seed Act was controlling on all such claims. u The farmer knew about the alleged problem with the seed sold to him by defendant, and knew that the Seed Act required complaints to be submitted to arbitration. Nevertheless, the farmer delayed submitting his complaint to arbitration until years after he discovered the problem making it impossible for the arbitration Board to inspect his crops. u Unable to do an inspection because the crops were no longer in "field condition," the arbitration Board declined to arbitrate allowing the farmer to go directly to court. ? The statute set forth arbitration requirements on individuals bringing defective seed complaints. The seed purchaser "must submit the claim to arbitration as provided by this chapter as a prerequisite to the exercise of the purchaser's rights to maintain legal action against the labeler." "Except in the case of seed that has not been planted, the complaint must be filed within the time necessary to permit effective inspection of the field conditions." ? The dissent joined by Justice Owen argued that the statute should be given its plain meaning and that the use of the word must in the relevant portions of the statute indicated that the legislature intended that two things would happen: (1) claim would be submitted; AND (2) the claim would be submitted within the time necessary to permit an effective inspection. u The dissent made the point that the purpose of the Seed Act is to "provide[] for an unbiased third party investigation by the State Seed and Plant Board of the Texas Department of Agriculture of complaints concerning seed performance." If the EXT-18-2091-C-000328 007104-001049 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 seed purchaser fails to timely submit the claim, the Board cannot arbitrate and "the sole purpose of the Act is thwarted." u The dissent argues that the majority's interpretation of the Seed Act would allow an individual to get around the requirement of arbitration simply by filing the claim too late to allow for an inspection. u The dissent asserted that following Texas precedent, "when two constructions are possible, we should choose the one most consistent with the Act's purpose over the construction completely at odds with it." EXT-18-2091-C-000329 007104-001050 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 14 seed purchaser fails to timely submit the claim, the Board cannot arbitrate and "the sole purpose of the Act is thwarted." u The dissent argues that the majority's interpretation of the Seed Act would allow an individual to get around the requirement of arbitration simply by filing the claim too late to allow for an inspection. u The dissent asserted that following Texas precedent, "when two constructions are possible, we should choose the one most consistent with the Act's purpose over the construction completely at odds with it." EXT-18-2091-C-000329 007104-001050 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 UNIROYAL GOODRICH TIRE CO. V. MARTINEZ Products Liability: Defective Design Allegation: Justice Owen joined a dissent declaring that the Texas Supreme Court improperly applied the law of product defects when it upheld a multi-million dollar judgment in favor of the plaintiff, who had suffered injuries when a tire manufactured by the defendant exploded. Justice Owen would have denied the plaintiff recovery merely due to warnings on the tire and despite the existence of a safer design for the tire. Facts: Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998) ? ? The dissent joined by Justice Owen relied on warnings that clearly appeared on the tire and of which the plaintiff admittedly was aware. Those warnings stated: "NEVER MOUNT A 16" DIAMETER TIRE ON A 16.5" RIM;" NEVER inflate a tire which is lying on the floor or other flat surface. Always use a tire mounting machine with a holddown device or safety cage or bolt to vehicle axle;" "NEVER inflate to seat beads without using an extension hose with gauge and clip-on chuck;" "NEVER stand, lean or reach over assembly during inflation;" and that "Failure to comply with these safety precautions can cause the bead to break and the assembly to burst with sufficient force to cause serious injury or death." u The Plaintiff, as recognized even by the majority, ignored every one of these warnings. u In addition, the Plaintiff had admittedly changed about a thousand tires and admitted he knew better than to lean over a tire while inflating it, which is what he was doing in this case when the tire burst. The dissent relied on Restatement (Second) of Torts, an authority relied upon by a majority of courts in the United States. u Restatement (Second) of Torts ? 402, comment j, addressed the very issue facing the court in this case. It states that "Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." u Thus, the dissent opined that the tire at issue, given the extensive warnings which warned of the exact event encountered by the plaintiff, was not defectively designed and that when adequate warnings are provided and seen by a plaintiff, the product manufacturer should not face liability based on the existence of an alternative, but possibly equally dangerous, design. ? The tire rim at issue was not manufactured by the defendant, but rather by parties who settled with the plaintiff and had been dismissed from the suit. Contrary to the extensive EXT-18-2091-C-000330 007104-001051 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 15 UNIROYAL GOODRICH TIRE CO. V. MARTINEZ Products Liability: Defective Design Allegation: Justice Owen joined a dissent declaring that the Texas Supreme Court improperly applied the law of product defects when it upheld a multi-million dollar judgment in favor of the plaintiff, who had suffered injuries when a tire manufactured by the defendant exploded. Justice Owen would have denied the plaintiff recovery merely due to warnings on the tire and despite the existence of a safer design for the tire. Facts: Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998) O O The dissent joined by Justice Owen relied on warnings that clearly appeared on the tire and of which the plaintiff admittedly was aware. Those warnings stated: "NEVER MOUNT A 16" DIAMETER TIRE ON A 16.5" RIM;" NEVER inflate a tire which is lying on the floor or other flat surface. Always use a tire mounting machine with a holddown device or safety cage or bolt to vehicle axle;" "NEVER inflate to seat beads without using an extension hose with gauge and clip-on chuck;" "NEVER stand, lean or reach over assembly during inflation;" and that "Failure to comply with these safety precautions can cause the bead to break and the assembly to burst with sufficient force to cause serious injury or death." u The Plaintiff, as recognized even by the majority, ignored every one of these warnings. u In addition, the Plaintiff had admittedly changed about a thousand tires and admitted he knew better than to lean over a tire while inflating it, which is what he was doing in this case when the tire burst. The dissent relied on Restatement (Second) of Torts, an authority relied upon by a majority of courts in the United States. u Restatement (Second) of Torts ? 402, comment j, addressed the very issue facing the court in this case. It states that "Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous." u Thus, the dissent opined that the tire at issue, given the extensive warnings which warned of the exact event encountered by the plaintiff, was not defectively designed and that when adequate warnings are provided and seen by a plaintiff, the product manufacturer should not face liability based on the existence of an alternative, but possibly equally dangerous, design. O The tire rim at issue was not manufactured by the defendant, but rather by parties who settled with the plaintiff and had been dismissed from the suit. Contrary to the extensive EXT-18-2091-C-000330 007104-001051 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 warnings on the defendant's product, the tire rim on which the plaintiff was attempting to mount the tire failed to contain any label as to its size, which would have further alerted the plaintiff to the danger of mounting a 16" tire on a 16.5" rim. Although the other dissenters concluded these other parties were liable as a matter of law and should have been determined by the jury to be responsible, that issue was not directly before the court as the court was faced only with whether sufficient evidence of liability on the part of the defendant existed. u Justice Owen did not join in that portion of the dissent, restraining herself only to the question at hand. EXT-18-2091-C-000331 007104-001052 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 16 warnings on the defendant's product, the tire rim on which the plaintiff was attempting to mount the tire failed to contain any label as to its size, which would have further alerted the plaintiff to the danger of mounting a 16" tire on a 16.5" rim. Although the other dissenters concluded these other parties were liable as a matter of law and should have been determined by the jury to be responsible, that issue was not directly before the court as the court was faced only with whether sufficient evidence of liability on the part of the defendant existed. u Justice Owen did not join in that portion of the dissent, restraining herself only to the question at hand. EXT-18-2091-C-000331 007104-001052 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 17 H.E. Butt Grocery Co. v. Bilotto Jury Charges Allegation: "In HEB Grocery Co. v. Vinnie Bilotto, an appeals court and a Supreme Court majority both affirmed a trial court judgment that granted $91,000 in actual damages to a customer who was injured in a grocery store fall. Owen joined two dissents in the case that argued that damages questions to the jury should not have been predicated on the degree of negligence attributed to the defendant." Facts: H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998) O Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. u O Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." u When charging the jury in a lawsuit involving a man who slipped at a grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. u Under long-settled Texas law, telling jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, impermissibly advises them about the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). In effect, the dissent sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. EXT-18-2091-C-000332 007104-001053 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 17 H.E. Butt Grocery Co. v. Bilotto Jury Charges Allegation: "In HEB Grocery Co. v. Vinnie Bilotto, an appeals court and a Supreme Court majority both affirmed a trial court judgment that granted $91,000 in actual damages to a customer who was injured in a grocery store fall. Owen joined two dissents in the case that argued that damages questions to the jury should not have been predicated on the degree of negligence attributed to the defendant." Facts: H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998) ? Justice Owen joined dissents that faithfully applied a Texas procedural rule forbidding trial judges from informing juries about the legal effect of their factual findings. u ? Texas Rule of Civil Procedure 277 prohibits a judge from "advis[ing] the jury of the effect of their answers." u When charging the jury in a lawsuit involving a man who slipped at a grocery store, the trial judge's instructions implied that the plaintiff could not recover damages unless the jury found him 50% or less responsible for the injuries he suffered. u Under long-settled Texas law, telling jurors that a certain amount of negligence on the plaintiff's part will bar his recovery, impermissibly advises them about the legal effect of their answers. See Grasso v. Cannon Ball Motor Freight Lines, 81 S.W.2d 482 (Tex. 1935). In effect, the dissent sought to preserve the unique role of the jury as the finder of fact, without assigning it the power of a judge to resolve questions of law. EXT-18-2091-C-000332 007104-001053 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18 WEINER V. WASSON Medical Malpractice Statute of Limitations Allegation: Justice Owen wrote the dissent from a 6-3 opinion striking down as unconstitutional the state's statute of limitations for medical malpractice claims applied to minors. Justice Owen's dissent would have limited the ability of minors to enforce their legal rights. Facts: Weiner v. Wasson, 900 S.W.2d 316 (1995) O Justice Owen's opinion recognized that parents and guardians are responsible for enforcing their minor children's rights in almost all circumstances. She found that the manner in which the statute was written, allowed for a minor's rights to be pursued by the parent or guardian. Justice Owen specifically found that if a plaintiff could show that he did not have a competent parent or guardian, or one that could not act in his best interest, that statute would be unconstitutional as to that plaintiff. O The majority found that under the open courts provision of the Texas Constitution, the statute of limitations of the Medical Liability and Insurance Improvement Act was unconstitutional as applied to minors. The majority decided that an earlier case holding that a predecessor statute also was unconstitutional as to the statute of limitations for minors was controlling in Wasson. Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) u The statute indicated that there was a 2-year statute of limitation on health care liability claims, "provided that minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim." O In this case, the plaintiff was operated on by a doctor in May 1988, when he was a 15 year-old minor. In August, 1998 the plaintiff and his parents went to another doctor who told them that the original surgery had left surgical pins protruding into his hip. The minor turned 18 in December 1990, and a few months later underwent hip replacement surgery. The plaintiff did not file suit against the original doctor until August 1992, four years after he was put on notice of the malpractice. O Justice Owen expressed concern that the majority's view of the open courts provision was so expansive that no statute of limitations aimed at limiting the claims of minors would be constitutional. u Justice Owen cautioned that the court should not presume that new statute of limitations for minors was unconstitutional just because the result in Sax was to find the old statute unconstitutional. She found that when the Legislature enacted the changes to the Medical Liability Act, it was aware of the Texas Supreme Court's holding in Sax, and therefore articulated strong policy considerations to explain the changes it had made. EXT-18-2091-C-000333 007104-001054 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 18 WEINER V. WASSON Medical Malpractice Statute of Limitations Allegation: Justice Owen wrote the dissent from a 6-3 opinion striking down as unconstitutional the state's statute of limitations for medical malpractice claims applied to minors. Justice Owen's dissent would have limited the ability of minors to enforce their legal rights. Facts: Weiner v. Wasson, 900 S.W.2d 316 (1995) ? Justice Owen's opinion recognized that parents and guardians are responsible for enforcing their minor children's rights in almost all circumstances. She found that the manner in which the statute was written, allowed for a minor's rights to be pursued by the parent or guardian. Justice Owen specifically found that if a plaintiff could show that he did not have a competent parent or guardian, or one that could not act in his best interest, that statute would be unconstitutional as to that plaintiff. ? The majority found that under the open courts provision of the Texas Constitution, the statute of limitations of the Medical Liability and Insurance Improvement Act was unconstitutional as applied to minors. The majority decided that an earlier case holding that a predecessor statute also was unconstitutional as to the statute of limitations for minors was controlling in Wasson. Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983) u The statute indicated that there was a 2-year statute of limitation on health care liability claims, "provided that minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim." ? In this case, the plaintiff was operated on by a doctor in May 1988, when he was a 15 year-old minor. In August, 1998 the plaintiff and his parents went to another doctor who told them that the original surgery had left surgical pins protruding into his hip. The minor turned 18 in December 1990, and a few months later underwent hip replacement surgery. The plaintiff did not file suit against the original doctor until August 1992, four years after he was put on notice of the malpractice. ? Justice Owen expressed concern that the majority's view of the open courts provision was so expansive that no statute of limitations aimed at limiting the claims of minors would be constitutional. u Justice Owen cautioned that the court should not presume that new statute of limitations for minors was unconstitutional just because the result in Sax was to find the old statute unconstitutional. She found that when the Legislature enacted the changes to the Medical Liability Act, it was aware of the Texas Supreme Court's holding in Sax, and therefore articulated strong policy considerations to explain the changes it had made. EXT-18-2091-C-000333 007104-001054 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19 u ? Justice Owen considered that Medical Liability Act's statute of limitations on minors in light of the two prong test set forth by the Texas Supreme Court and followed in Sax: (1) if a common-law cause of action has been restricted or withdrawn by the legislature, does section 10.1 substitute a reasonable remedy, and (2) if no reasonable remedy was substituted, is section 10.1 nevertheless a reasonable exercise of police power by the Legislature. Justice Owen found that requiring suit to be brought on behalf of a minor was a reasonable substitute for removing the right of a minor to bring suit for himself upon reaching the age of 18, provided that the minor had a legally competent parent or guardian to act in the minor's best interest. u Justice Owen looked to the Texas Family Code and found that it empowers parents to protect the legal interests of their children. She acknowledged that she disagreed with the assumption in Sax that competent parents could not be trusted to act in the best interest of their child. ? Justice Owen also would have held that the exercise of legislative power met the 2nd prong test of an important state interest and was constitutional because the Legislature found that there was a "medical malpractice crisis in the state which had a material and adverse effect on the cost and availability of health care." ? Justice Owen specifically stated that she would not hold that the statute of limitations for minors could never be unconstitutional in its application. She added that if a plaintiff demonstrated that he did not have a parent or legal guardian who was not competent to bring suit, of who had a conflict that prevented him from acting in the minor's best interest a different result would apply. EXT-18-2091-C-000334 007104-001055 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 19 u O Justice Owen considered that Medical Liability Act's statute of limitations on minors in light of the two prong test set forth by the Texas Supreme Court and followed in Sax: (1) if a common-law cause of action has been restricted or withdrawn by the legislature, does section 10.1 substitute a reasonable remedy, and (2) if no reasonable remedy was substituted, is section 10.1 nevertheless a reasonable exercise of police power by the Legislature. Justice Owen found that requiring suit to be brought on behalf of a minor was a reasonable substitute for removing the right of a minor to bring suit for himself upon reaching the age of 18, provided that the minor had a legally competent parent or guardian to act in the minor's best interest. u Justice Owen looked to the Texas Family Code and found that it empowers parents to protect the legal interests of their children. She acknowledged that she disagreed with the assumption in Sax that competent parents could not be trusted to act in the best interest of their child. O Justice Owen also would have held that the exercise of legislative power met the 2nd prong test of an important state interest and was constitutional because the Legislature found that there was a "medical malpractice crisis in the state which had a material and adverse effect on the cost and availability of health care." O Justice Owen specifically stated that she would not hold that the statute of limitations for minors could never be unconstitutional in its application. She added that if a plaintiff demonstrated that he did not have a parent or legal guardian who was not competent to bring suit, of who had a conflict that prevented him from acting in the minor's best interest a different result would apply. EXT-18-2091-C-000334 007104-001055 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 20 Sonnier v. Chisholm-Ryder Statute of Repose in a Products Liability Case Allegation: Owen joined an "activist dissent" in arguing that all manufacturers who construct or repair improvements to real property should be subject to a ten-year statute of repose. Facts: Sonnier v. Chisholm-Ryder, 909 S.W.2d 475 (Tex. 1995) & In Sonnier, an employee injured by a tomato chopper installed by the Texas Department of Corrections sued the chopper's manufacturer some 25 years after the manufacturer constructed the machine. & This case turned on the interpretation of section 16.009 of the Texas Civil Practice and Remedies Code, which stated that "a claimant must bring suit for damages.... against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement...." & Justice Owen and her three fellow dissenters (which included Democrat Justice Gonzalez) attempted to follow what they believed was well-settled Texas law. u According to the dissent, the activist majority opinion ignored a prior decision of the Texas Supreme Court and no fewer than seven Texas courts of appeals. u In Conkle v. Builders Concrete Products, 749 S.W.2d 489 (Tex. 1988), the Court held that off-site manufacturers were protected by Section 16.009's repose, but only if the manufacturer constructed the entire improvement and not a component part of it. u Seven Texas courts of appeal had issued similar holdings. See Karisch v. Allied-Signal, Inc., 837 S.W.2d 679 (Tex.App.-- Corpus Christi 1992); Big West Oil Co. v. Willborn Bros. Co., 836 S.W.2d 800 (Tex.App.--Amarillo 1992); Ablin v. Morton Southwest Co., 802 S.W.2d 788 (Tex.App.--San Antonio 1990); Dubin v. Carrier Corp., 798 S.W.2d 1 (Tex.App.--Houston [14th Dist.] 1989); Rodarte v. Carrier Corp., 786 S.W.2d 94 (Tex.App.--El Paso 1990); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex.App.-- Houston [1st Dist.] 1987); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.App.--Houston [1st Dist.] 1981). EXT-18-2091-C-000335 007104-001056 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 20 Sonnier v. Chisholm-Ryder Statute of Repose in a Products Liability Case Allegation: Owen joined an "activist dissent" in arguing that all manufacturers who construct or repair improvements to real property should be subject to a ten-year statute of repose. Facts: Sonnier v. Chisholm-Ryder, 909 S.W.2d 475 (Tex. 1995) & In Sonnier, an employee injured by a tomato chopper installed by the Texas Department of Corrections sued the chopper's manufacturer some 25 years after the manufacturer constructed the machine. & This case turned on the interpretation of section 16.009 of the Texas Civil Practice and Remedies Code, which stated that "a claimant must bring suit for damages.... against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement...." & Justice Owen and her three fellow dissenters (which included Democrat Justice Gonzalez) attempted to follow what they believed was well-settled Texas law. u According to the dissent, the activist majority opinion ignored a prior decision of the Texas Supreme Court and no fewer than seven Texas courts of appeals. u In Conkle v. Builders Concrete Products, 749 S.W.2d 489 (Tex. 1988), the Court held that off-site manufacturers were protected by Section 16.009's repose, but only if the manufacturer constructed the entire improvement and not a component part of it. u Seven Texas courts of appeal had issued similar holdings. See Karisch v. Allied-Signal, Inc., 837 S.W.2d 679 (Tex.App.-- Corpus Christi 1992); Big West Oil Co. v. Willborn Bros. Co., 836 S.W.2d 800 (Tex.App.--Amarillo 1992); Ablin v. Morton Southwest Co., 802 S.W.2d 788 (Tex.App.--San Antonio 1990); Dubin v. Carrier Corp., 798 S.W.2d 1 (Tex.App.--Houston [14th Dist.] 1989); Rodarte v. Carrier Corp., 786 S.W.2d 94 (Tex.App.--El Paso 1990); Dubin v. Carrier Corp., 731 S.W.2d 651 (Tex.App.-- Houston [1st Dist.] 1987); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.App.--Houston [1st Dist.] 1981). EXT-18-2091-C-000335 007104-001056 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 21 Read v. Scott Fetzer Co. Manufacturer Liability for Sexual Assaults by Independent Contractor Salesmen Allegation: Justice Owen joined an "extreme dissent" in a case involving business liability for the acts of a door-to-door vacuum cleaner salesman who raped a customer. The dissent argued that a distributor had no legal duty to perform background checks on door-to-door salesmen, and that failure to perform these checks could not result in foreseeable assaults. Facts: Read v. Scott Fetzer Co., 990 S.W. 2d 732 (Tex. 1998) & Ms. Read was raped at her home by a vacuum cleaner salesman, Mr. Carter. She sued the vacuum manufacturer, Kirby, and Kirby's distributor who hired Mr. Carter as an independent contractor/salesman. & The issue was whether a company that requires in-home sales but markets through an independent contractor, who in turn, retains other independent contractors to make the sales exercises sufficient control to subject it to liability. & Justice Owen attempted to follow what she believed was settled Texas law in this case. She believed that this case was governed by and indistinguishable from two prior decisions of the Texas Supreme Court, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996) and Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990). u In Akins, the Court held that the Boys Scouts of America had no duty to monitor its independent local volunteer councils' selection of troop leaders to prevent sexual assaults by these leaders, even though the Boy Scouts created an organization in which the risk of misconduct by troop leaders was inherently possible. u In Phillips, the Court rejected the argument that the Yellow Cab Company of Houston should have known that it was likely that one of its drivers would carry a gun, get into an altercation while on the job, and shoot someone. Despite the fact that the Yellow Cab Company had operated in Houston for nearly twenty years, and was involved in nearly 1,000 traffic accidents per year, the Court held that the company had no duty to warn its cab drivers not to carry guns. & Justice Owen specifically agreed in the case that a contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work. & In addition, she noted that the plaintiff had suffered "a terrible injury" and that it was beyond doubt that the victim was due compensation from her rapist AND the local distributor for failing to exercise reasonable care in hiring him. EXT-18-2091-C-000336 007104-001057 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 21 Read v. Scott Fetzer Co. Manufacturer Liability for Sexual Assaults by Independent Contractor Salesmen Allegation: Justice Owen joined an "extreme dissent" in a case involving business liability for the acts of a door-to-door vacuum cleaner salesman who raped a customer. The dissent argued that a distributor had no legal duty to perform background checks on door-to-door salesmen, and that failure to perform these checks could not result in foreseeable assaults. Facts: Read v. Scott Fetzer Co., 990 S.W. 2d 732 (Tex. 1998) & Ms. Read was raped at her home by a vacuum cleaner salesman, Mr. Carter. She sued the vacuum manufacturer, Kirby, and Kirby's distributor who hired Mr. Carter as an independent contractor/salesman. & The issue was whether a company that requires in-home sales but markets through an independent contractor, who in turn, retains other independent contractors to make the sales exercises sufficient control to subject it to liability. & Justice Owen attempted to follow what she believed was settled Texas law in this case. She believed that this case was governed by and indistinguishable from two prior decisions of the Texas Supreme Court, Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996) and Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990). u In Akins, the Court held that the Boys Scouts of America had no duty to monitor its independent local volunteer councils' selection of troop leaders to prevent sexual assaults by these leaders, even though the Boy Scouts created an organization in which the risk of misconduct by troop leaders was inherently possible. u In Phillips, the Court rejected the argument that the Yellow Cab Company of Houston should have known that it was likely that one of its drivers would carry a gun, get into an altercation while on the job, and shoot someone. Despite the fact that the Yellow Cab Company had operated in Houston for nearly twenty years, and was involved in nearly 1,000 traffic accidents per year, the Court held that the company had no duty to warn its cab drivers not to carry guns. & Justice Owen specifically agreed in the case that a contractor, like Kirby, has a duty to exercise reasonably the control it retains over the independent contractor's work. & In addition, she noted that the plaintiff had suffered "a terrible injury" and that it was beyond doubt that the victim was due compensation from her rapist AND the local distributor for failing to exercise reasonable care in hiring him. EXT-18-2091-C-000336 007104-001057 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 22 u Kirby, however, did not control the hiring of Mr. Carter. Ms. Read sued for injuries related to the selection of Mr. Carter as a salesman without a background check. u The contract between Kirby and its distributors says that Kirby "shall exercise no control over the selection of ... Dealers," and that distributors have the "full ... responsibility for recruiting, hiring, firing, terminating ... independent contractors. Id. at 745. EXT-18-2091-C-000337 007104-001058 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 22 u Kirby, however, did not control the hiring of Mr. Carter. Ms. Read sued for injuries related to the selection of Mr. Carter as a salesman without a background check. u The contract between Kirby and its distributors says that Kirby "shall exercise no control over the selection of ... Dealers," and that distributors have the "full ... responsibility for recruiting, hiring, firing, terminating ... independent contractors. Id. at 745. EXT-18-2091-C-000337 007104-001058 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 23 State Farm Lloyds v. Nicolau Bad Faith by Insurers Allegation: In a case finding that an insurer breached its contract and acted in bad faith in denying most of the plaintiff's claims for foundation damage to their home, Justice Owen joined a dissent that reweighed the trial court evidence and found that no tort was committed at all. The dissent itself was striking in its disdain for plaintiffs in general. Facts: State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997) & The dissent, joined by Justice Owen and 3 other justices including Democrat Raul Gonzalez, focused on the Texas Supreme Court's failure to define the limits of bad faith liability. u The opinion stated: "Individuals and entities, even insurance companies, are entitled to know before they act what the law expects of them, what behavior is culpable and what is not. A legal cause of action must be adequately defined by principles and standards." u A court of appeals also noted the problem, stating that the Texas Supreme Court "has ultimately done little to provide lower courts with any guidance for conducting a legal sufficiency review in bad faith cases." & The dissent specifically stated that as a reviewing court, it was not reweighing the evidence, "as that is the province of the jury." The dissent, following well-settled principles, viewed the evidence in the light most favorable to the plaintiffs, and determined that the evidence did not support the jury's finding of bad faith a finding also arrived at by the trial court. & Rather than criticizing the jury finding, the dissent sympathized with jurors who had to grapple with a decision on bad faith liability without being told what the clear legal standard was to apply. & The dissent found that, even using the bad faith standard set forth in the majority opinion that an insurer breaches its duty when it "fails to settle a claim if [it] knew or should have known that it was reasonably clear that a claim was covered," the insurance company should not have been liable. u The dissent argued that the evidence showed that there was a legitimate dispute among the experts hired by each side. u The dissent, far from attacking plaintiffs, criticizes a system that encourages attorneys to add an allegation of bad faith to the complaint, because the odds of recovery regardless of the facts are good. EXT-18-2091-C-000338 007104-001059 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 23 State Farm Lloyds v. Nicolau Bad Faith by Insurers Allegation: In a case finding that an insurer breached its contract and acted in bad faith in denying most of the plaintiff's claims for foundation damage to their home, Justice Owen joined a dissent that reweighed the trial court evidence and found that no tort was committed at all. The dissent itself was striking in its disdain for plaintiffs in general. Facts: State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997) & The dissent, joined by Justice Owen and 3 other justices including Democrat Raul Gonzalez, focused on the Texas Supreme Court's failure to define the limits of bad faith liability. u The opinion stated: "Individuals and entities, even insurance companies, are entitled to know before they act what the law expects of them, what behavior is culpable and what is not. A legal cause of action must be adequately defined by principles and standards." u A court of appeals also noted the problem, stating that the Texas Supreme Court "has ultimately done little to provide lower courts with any guidance for conducting a legal sufficiency review in bad faith cases." & The dissent specifically stated that as a reviewing court, it was not reweighing the evidence, "as that is the province of the jury." The dissent, following well-settled principles, viewed the evidence in the light most favorable to the plaintiffs, and determined that the evidence did not support the jury's finding of bad faith a finding also arrived at by the trial court. & Rather than criticizing the jury finding, the dissent sympathized with jurors who had to grapple with a decision on bad faith liability without being told what the clear legal standard was to apply. & The dissent found that, even using the bad faith standard set forth in the majority opinion that an insurer breaches its duty when it "fails to settle a claim if [it] knew or should have known that it was reasonably clear that a claim was covered," the insurance company should not have been liable. u The dissent argued that the evidence showed that there was a legitimate dispute among the experts hired by each side. u The dissent, far from attacking plaintiffs, criticizes a system that encourages attorneys to add an allegation of bad faith to the complaint, because the odds of recovery regardless of the facts are good. EXT-18-2091-C-000338 007104-001059 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 24 Universe Life Insurance Co. v. Giles Bad Faith in Insurance Cases Allegation: "In this bad-faith insurance case, the majority overturned the jury's punitive damages award citing a lack of evidence. Owen joined a more extreme dissent that would have directed judges to replace juries in making bad-faith determinations. The majority criticized this dissent, saying it 'would take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.'" Facts: Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) O Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." O She also joined a concurring opinion along with other colleagues from both political parties which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. O O u Allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. u Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court. They can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). u To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." u The concurrence reflects the view that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." u According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. u The majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. Justice Owen joined, but did not author, the concurrence. EXT-18-2091-C-000339 007104-001060 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 24 Universe Life Insurance Co. v. Giles Bad Faith in Insurance Cases Allegation: "In this bad-faith insurance case, the majority overturned the jury's punitive damages award citing a lack of evidence. Owen joined a more extreme dissent that would have directed judges to replace juries in making bad-faith determinations. The majority criticized this dissent, saying it 'would take the resolution of bad-faith disputes away from the juries that have been deciding bad faith cases for more than a decade.'" Facts: Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997) ? Justice Owen agreed with the unanimous Court that an insurance company had denied a policyholder's claim "in bad faith." ? She also joined a concurring opinion along with other colleagues from both political parties which argued that the question of what constitutes "bad faith" should be decided by judges, to ensure that such determinations can be reviewed on appeal. ? ? u Allowing juries to decide whether an insurance company has acted in "bad faith" prevents appellate courts from meaningfully reviewing their decisions. u Texas law forbids appellate courts, when examining a jury's findings, from weighing the evidence before the trial court. They can only consider "undisputed evidence and evidence to support the finding." Id. at 43 (concurring opinion). u To ensure that higher courts have the opportunity to consider whether "bad faith" exists in a given case, it is necessary to allow judges whose decisions are fully reviewable on appeal to determine "bad faith." u The concurrence reflects the view that juries should not be able to wield an unchecked, unreviewable power to make legal determinations. Even the majority acknowledged that Texas law effectively prevented appellate review of a jury's "bad faith" determinations, and tried to resolve the problem by adopting a narrower definition of "bad faith." u According to the majority, "[a]lthough we attempted to resolve this dilemma in [past cases], it is clear that our efforts have not been entirely successful." Id. at 52. u The majority and concurrence agreed that an unchecked jury was a significant problem; they simply differed on the best way to solve it. Justice Owen joined, but did not author, the concurrence. EXT-18-2091-C-000339 007104-001060 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25 State Farm Fire & Cas. Co. v. Simmons Bad Faith by Insurers Allegation: In a case where an insurer refused to pay the claim of a family whose home had burned to the ground, Justice Owen joined an extreme dissent that questioned the damages awarded by the jury for the bad faith of the insurer. The case shows that Justice Owen is activist, anti-consumer, and anti-jury. Facts: State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998) & The trial court in this case found that there was not legally sufficient evidence to support a jury's finding that the insurer breached its duty of good faith and the jury's award of $2 million in punitive damages. u & Justice Owen joined a dissent that argued that the majority opinion did not consider the bad faith claim under the standards the Texas Supreme Court itself had established. u & & The majority opinion, written by Democrat Justice Rose Spector, reversed the jury's punitive damages award, but left the bad faith finding under a revised legal standard. The court in earlier opinions held that there are two elements to proving bad faith: (1) the insurer had no reasonable basis for denying the claim and that it knew or should have known that fact; (2) an insurer denied a claim after liability was reasonably clear. The dissent criticized the majority opinion for being driven not by legal principles, but rather, by the belief that the insurer had not been entirely fair and therefore should pay some money to the plaintiffs. u The dissent joined by Justice Owen applied the law as it was established in precedent. It was the majority opinion which ignored the legal standards and created an exception unique to the case. u Although Justice Owen had dissented from the opinion setting forth the original standard, once it became precedent, she faithfully applied the standard. Both the majority opinion, written by Democrat Justice Rose Spector, and the dissent found that there was insufficient evidence to support the jury's verdict, a decision made by appellate courts every day. EXT-18-2091-C-000340 007104-001061 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 25 State Farm Fire & Cas. Co. v. Simmons Bad Faith by Insurers Allegation: In a case where an insurer refused to pay the claim of a family whose home had burned to the ground, Justice Owen joined an extreme dissent that questioned the damages awarded by the jury for the bad faith of the insurer. The case shows that Justice Owen is activist, anti-consumer, and anti-jury. Facts: State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998) & The trial court in this case found that there was not legally sufficient evidence to support a jury's finding that the insurer breached its duty of good faith and the jury's award of $2 million in punitive damages. u & Justice Owen joined a dissent that argued that the majority opinion did not consider the bad faith claim under the standards the Texas Supreme Court itself had established. u & & The majority opinion, written by Democrat Justice Rose Spector, reversed the jury's punitive damages award, but left the bad faith finding under a revised legal standard. The court in earlier opinions held that there are two elements to proving bad faith: (1) the insurer had no reasonable basis for denying the claim and that it knew or should have known that fact; (2) an insurer denied a claim after liability was reasonably clear. The dissent criticized the majority opinion for being driven not by legal principles, but rather, by the belief that the insurer had not been entirely fair and therefore should pay some money to the plaintiffs. u The dissent joined by Justice Owen applied the law as it was established in precedent. It was the majority opinion which ignored the legal standards and created an exception unique to the case. u Although Justice Owen had dissented from the opinion setting forth the original standard, once it became precedent, she faithfully applied the standard. Both the majority opinion, written by Democrat Justice Rose Spector, and the dissent found that there was insufficient evidence to support the jury's verdict, a decision made by appellate courts every day. EXT-18-2091-C-000340 007104-001061 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 26 Balandran v. Safeco Ins. Co. ofAm. Scope of Insurance Coverage Allegation: "[T]he federal court asked the Texas court whether a particular Texas Standard Homeowner's policy covered damage to the insured's dwelling from foundation movement caused by an underground plumbing leak. In a 7-2 ruling, the Supreme Court held that it did. . . . Justice Owen wrote a dissent in which she would have held that the policy was not ambiguous and denied coverage to the insured individuals." Facts: Balandran v. Safeco Ins. Co. ofAm., 972 S.W.2d 738 (Tex. 1998) ? ? Justice Owen dissented from the majority's conclusion that the insurance policy covered water damage to the plaintiffs' home for two reasons: (1) the plain language of the policy excluded such coverage; and (2) a prior decision of the Fifth Circuit foreclosed any such recovery. u Coverage A of the plaintiffs' insurance policy, which dealt with dwellings, specifically stated that it did not cover any damage to structures caused by water. According to the policy, it does not apply to losses "caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings . . . ." u These are precisely the types of losses the plaintiffs in Balandran claimed, and Justice Owen therefore concluded that the insurance policy did not cover them. u The majority looked to Coverage B of the insurance policy, which dealt with personal property, to support its conclusion that the Coverage A extended to water damage to dwellings. But the Fifth Circuit had already rejected using Coverage B to interpret the scope of coverage under Coverage A. u According to the Fifth Circuit: "It therefore would appear to be nonsensical, and a rejection of the obvious structure of the policy, to reach into text that applies solely to Coverage B (Personal Property) to determine the extent of coverage provided under Coverage A (Dwelling)." Sharp v. State Farm Fire & Cas. Ins. Co., 115 F.3d 1258, 1262 (5th Cir.1997). Because the insurance policy was unambiguous, Justice Owen concluded that it was inappropriate to invoke the rule that ambiguous policies should be construed in favor of the insured. u This rule of construction comes into play only where the meaning of a policy cannot be readily ascertained. But the Balandran's policy could not have been more clear: damages of the sort caused by water leaks are not within the scope of coverage. EXT-18-2091-C-000341 007104-001062 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 26 Balandran v. Safeco Ins. Co. ofAm. Scope of Insurance Coverage Allegation: "[T]he federal court asked the Texas court whether a particular Texas Standard Homeowner's policy covered damage to the insured's dwelling from foundation movement caused by an underground plumbing leak. In a 7-2 ruling, the Supreme Court held that it did. . . . Justice Owen wrote a dissent in which she would have held that the policy was not ambiguous and denied coverage to the insured individuals." Facts: Balandran v. Safeco Ins. Co. ofAm., 972 S.W.2d 738 (Tex. 1998) O O Justice Owen dissented from the majority's conclusion that the insurance policy covered water damage to the plaintiffs' home for two reasons: (1) the plain language of the policy excluded such coverage; and (2) a prior decision of the Fifth Circuit foreclosed any such recovery. u Coverage A of the plaintiffs' insurance policy, which dealt with dwellings, specifically stated that it did not cover any damage to structures caused by water. According to the policy, it does not apply to losses "caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings . . . ." u These are precisely the types of losses the plaintiffs in Balandran claimed, and Justice Owen therefore concluded that the insurance policy did not cover them. u The majority looked to Coverage B of the insurance policy, which dealt with personal property, to support its conclusion that the Coverage A extended to water damage to dwellings. But the Fifth Circuit had already rejected using Coverage B to interpret the scope of coverage under Coverage A. u According to the Fifth Circuit: "It therefore would appear to be nonsensical, and a rejection of the obvious structure of the policy, to reach into text that applies solely to Coverage B (Personal Property) to determine the extent of coverage provided under Coverage A (Dwelling)." Sharp v. State Farm Fire & Cas. Ins. Co., 115 F.3d 1258, 1262 (5th Cir.1997). Because the insurance policy was unambiguous, Justice Owen concluded that it was inappropriate to invoke the rule that ambiguous policies should be construed in favor of the insured. u This rule of construction comes into play only where the meaning of a policy cannot be readily ascertained. But the Balandran's policy could not have been more clear: damages of the sort caused by water leaks are not within the scope of coverage. EXT-18-2091-C-000341 007104-001062 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 27 Texas Farmers Ins. Co. v. Murphy Liability of Insurers Under Circumstances of Fraud Allegation: Justice Owen joined a dissent that would have held that, notwithstanding the language of the insurance policy, an innocent spouse is not entitled to any of the insurance proceeds with respect to community property destroyed by a guilty spouse. Facts: Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873 (1999) ? In this case, the husband had intentionally burned down the family home, under which both the husband and wife were covered as insureds. The wife had no prior knowledge of the arson. After the insurance company had denied coverage based on the arson, the wife filed her own claim for the policy benefits. ? The dissent joined by Justice Owen relied on both federal and state precedent that public policy barred the recovery of an innocent spouse when the destroyed property is community property. ? u The Fifth Circuit specifically held that because the guilty spouse would benefit from the innocent spouse's recovery, public policy barred the innocent spouse's recovery in the case where the property is community property. Norman v. State Farm Fire & Casualty Co., 804 F.2d 1365 (5th Cir. 1986). u The Fifth Circuit extended its Norman ruling, finding that an innocent spouse could not recover because "at all points of time pertinent to State Farm's decision to deny recovery the date the policy was issued, the date of the fire, the date the Websters filed their claim, and the date the claim was refused the property was community. Webster v. State Farm Fire & Cas. Co., 953 F.2d 222 (5th Cir. 1992). The dissent also relied upon several Texas state cases that followed the 5th Circuit rulings. u A Texas Court of Appeals held that "if benefits would inure to the community and thus to the arsonist, the innocent spouse cannot recover." Chubb Lloyds Ins. Co. v. Kizer, 943 S.W.2d 946 (Tex. App. Fort Worth 1997, writ denied). u The Texas Supreme Court had agreed with the conclusion of Kizer at the time because they had denied the application for writ of error. The dissent pointed out that the writ was denied because there "has never been any conflict or confusion about the principle that an arsonist cannot benefit from his crime." EXT-18-2091-C-000342 007104-001063 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 27 Texas Farmers Ins. Co. v. Murphy Liability of Insurers Under Circumstances of Fraud Allegation: Justice Owen joined a dissent that would have held that, notwithstanding the language of the insurance policy, an innocent spouse is not entitled to any of the insurance proceeds with respect to community property destroyed by a guilty spouse. Facts: Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873 (1999) O In this case, the husband had intentionally burned down the family home, under which both the husband and wife were covered as insureds. The wife had no prior knowledge of the arson. After the insurance company had denied coverage based on the arson, the wife filed her own claim for the policy benefits. O The dissent joined by Justice Owen relied on both federal and state precedent that public policy barred the recovery of an innocent spouse when the destroyed property is community property. O u The Fifth Circuit specifically held that because the guilty spouse would benefit from the innocent spouse's recovery, public policy barred the innocent spouse's recovery in the case where the property is community property. Norman v. State Farm Fire & Casualty Co., 804 F.2d 1365 (5th Cir. 1986). u The Fifth Circuit extended its Norman ruling, finding that an innocent spouse could not recover because "at all points of time pertinent to State Farm's decision to deny recovery the date the policy was issued, the date of the fire, the date the Websters filed their claim, and the date the claim was refused the property was community. Webster v. State Farm Fire & Cas. Co., 953 F.2d 222 (5th Cir. 1992). The dissent also relied upon several Texas state cases that followed the 5th Circuit rulings. u A Texas Court of Appeals held that "if benefits would inure to the community and thus to the arsonist, the innocent spouse cannot recover." Chubb Lloyds Ins. Co. v. Kizer, 943 S.W.2d 946 (Tex. App. Fort Worth 1997, writ denied). u The Texas Supreme Court had agreed with the conclusion of Kizer at the time because they had denied the application for writ of error. The dissent pointed out that the writ was denied because there "has never been any conflict or confusion about the principle that an arsonist cannot benefit from his crime." EXT-18-2091-C-000342 007104-001063 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 28 FITZGERALD V. ADVANCED SPINE FIXATION SYSTEMS, INC. Indemnification Statute Allegation: Justice Owen dissent in this case would have held that a seller not in the chain of sale to the plaintiff's was not entitled to indemnification from the manufacturer. This interpretation would have judicially amended the statute in question. Facts: Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864 (Tex. 1999) ? The Fifth Circuit certified the question to the Texas Supreme Court whether the Texas Products Liability Act of 1993 required a manufacturer of an injuring product to indemnify a retailer that was forced to defend itself in products liability litigation even though the retailer, who sold products of the same or similar type involved in the suit, did not sell the particular product claimed to have harmed the underlying plaintiff. u The statute read: "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable." Tex. Civ. Prac. & Rem. Code sec. 82.002(a). ? In this split 5-4 decision, the majority found that the statute was unambiguous and therefore they held that the manufacturer was liable. ? The dissent written by Justice Owen cited Texas Supreme Court precedent stating that a court should not construe a statute in a manner that creates new liability in derogation of the common law unless the legislature clearly expresses its intent to do so. Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993). ? u Finding that the terms "manufacturer" and "seller" were open-ended, the dissent considered the law prior to enactment of the statute to determine whether the new sections would create a new liability for indemnity if they were construed in the manner decided by the majority. u Justice Owen found that Texas common law had not recognized indemnity for an innocent seller who was not in the chain of distribution and, therefore was not liable to a third party. Duncan v. Cessna Aircraft Co. 665 S.W.2d 414 (Tex 1984). Justice Owen's dissent found that, as interpreted by the court, the statute was a significant departure from the common law. As such, she looked to whether the statue plainly and fairly expressed that it intended for such a departure. Following Smith v. Sewell, Justice Owen found that the legislature did not intend to depart from the common law, which required that the seller be in the chain of commerce. EXT-18-2091-C-000343 007104-001064 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 28 FITZGERALD V. ADVANCED SPINE FIXATION SYSTEMS, INC. Indemnification Statute Allegation: Justice Owen dissent in this case would have held that a seller not in the chain of sale to the plaintiff's was not entitled to indemnification from the manufacturer. This interpretation would have judicially amended the statute in question. Facts: Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 S.W.2d 864 (Tex. 1999) O The Fifth Circuit certified the question to the Texas Supreme Court whether the Texas Products Liability Act of 1993 required a manufacturer of an injuring product to indemnify a retailer that was forced to defend itself in products liability litigation even though the retailer, who sold products of the same or similar type involved in the suit, did not sell the particular product claimed to have harmed the underlying plaintiff. u The statute read: "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action, except for any loss caused by the seller's negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable." Tex. Civ. Prac. & Rem. Code sec. 82.002(a). O In this split 5-4 decision, the majority found that the statute was unambiguous and therefore they held that the manufacturer was liable. O The dissent written by Justice Owen cited Texas Supreme Court precedent stating that a court should not construe a statute in a manner that creates new liability in derogation of the common law unless the legislature clearly expresses its intent to do so. Smith v. Sewell, 858 S.W.2d 350 (Tex. 1993). O u Finding that the terms "manufacturer" and "seller" were open-ended, the dissent considered the law prior to enactment of the statute to determine whether the new sections would create a new liability for indemnity if they were construed in the manner decided by the majority. u Justice Owen found that Texas common law had not recognized indemnity for an innocent seller who was not in the chain of distribution and, therefore was not liable to a third party. Duncan v. Cessna Aircraft Co. 665 S.W.2d 414 (Tex 1984). Justice Owen's dissent found that, as interpreted by the court, the statute was a significant departure from the common law. As such, she looked to whether the statue plainly and fairly expressed that it intended for such a departure. Following Smith v. Sewell, Justice Owen found that the legislature did not intend to depart from the common law, which required that the seller be in the chain of commerce. EXT-18-2091-C-000343 007104-001064 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 29 u Justice Owen would have held that the Legislature's imprecise definition of the word "seller" did not constitute a sufficient statement by which it could be shown that the Legislature intended to remove the common law chain-of-distribution requirement. u Because the statute did not clearly state that a seller did not have to be in the chain of distribution, i.e., he actually sold the offending product, Justice Owen would have held that he had no right to be indemnified by the manufacturer. u Justice Owen recognized that in the same statute, the Texas Legislature clearly expressed certain new rights that it had created that did not exist in the common law. Those included (1) the right to indemnity from a manufacturer without showing that the manufacturer would have been liable to the underlying plaintiff, and (2) the right to recover attorney's fees and other costs of litigation. EXT-18-2091-C-000344 007104-001065 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 29 u Justice Owen would have held that the Legislature's imprecise definition of the word "seller" did not constitute a sufficient statement by which it could be shown that the Legislature intended to remove the common law chain-of-distribution requirement. u Because the statute did not clearly state that a seller did not have to be in the chain of distribution, i.e., he actually sold the offending product, Justice Owen would have held that he had no right to be indemnified by the manufacturer. u Justice Owen recognized that in the same statute, the Texas Legislature clearly expressed certain new rights that it had created that did not exist in the common law. Those included (1) the right to indemnity from a manufacturer without showing that the manufacturer would have been liable to the underlying plaintiff, and (2) the right to recover attorney's fees and other costs of litigation. EXT-18-2091-C-000344 007104-001065 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 VI. Conclusion A well-funded, well-orchestrated alliance of left-leaning interest groups has been sharpening its knives for Priscilla Owen since President Bush nominated her to the Fifth Circuit on May 9, 2001 over fourteen months ago. The Senate Judiciary Committee has paid far too much attention to their dishonest, misleading smear campaign, and may even be aiding and abetting it. As the Wall Street Journal recently pointed out, "[w]hen the Chairman rescheduled her hearing last week, that news was up on Planned Parenthood's Web site before it was even communicated to the Republicans on the committee or the Justice Department. Talk about teamwork." Rather than kowtow to the special interests, the Senate would do well to pay heed to those who know Justice Owen best: her colleagues on the bench and those who have practiced before her. These individuals have firsthand knowledge of Justice Owen's longstanding dedication to following the rule of law, and practicing judicial restraint. And they have testified about Justice Owen's unwavering fealty to the legislature's intent and the U.S. Supreme Court's precedents. As White House Counsel Al Gonzales, who served on the Texas Supreme Court with Justice Owen, has explained, she "possesses exceptional integrity, character and intellect." "She is an outstanding jurist and will perform superbly as a federal appeals court judge." And according to John L. Hill, a Democrat and former Chief Justice of the Texas Supreme Court: After years of closely observing Justice Owen's work, I can assert with confidence that her approach to judicial decision-making is restrained, that her opinions are fair and well reasoned, and that her integrity is beyond reproach. I echo the American Bar Association's unanimous conclusion that she is "well qualified" for the federal bench the highest rating possible. United States Senators from both sides of the aisle have called the ABA's rating the "gold standard" of a nominee's fitness for the federal bench, and I agree with them. I know personally just how impeccable Justice Owen's credentials are. EXT-18-2091-C-000345 007104-001066 Document ID: 0.7.19343.5135-000003 Justice Owen's Evenhanded Approach to the Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 30 VI. Conclusion A well-funded, well-orchestrated alliance of left-leaning interest groups has been sharpening its knives for Priscilla Owen since President Bush nominated her to the Fifth Circuit on May 9, 2001 over fourteen months ago. The Senate Judiciary Committee has paid far too much attention to their dishonest, misleading smear campaign, and may even be aiding and abetting it. As the Wall Street Journal recently pointed out, "[w]hen the Chairman rescheduled her hearing last week, that news was up on Planned Parenthood's Web site before it was even communicated to the Republicans on the committee or the Justice Department. Talk about teamwork." Rather than kowtow to the special interests, the Senate would do well to pay heed to those who know Justice Owen best: her colleagues on the bench and those who have practiced before her. These individuals have firsthand knowledge of Justice Owen's longstanding dedication to following the rule of law, and practicing judicial restraint. And they have testified about Justice Owen's unwavering fealty to the legislature's intent and the U.S. Supreme Court's precedents. As White House Counsel Al Gonzales, who served on the Texas Supreme Court with Justice Owen, has explained, she "possesses exceptional integrity, character and intellect." "She is an outstanding jurist and will perform superbly as a federal appeals court judge." And according to John L. Hill, a Democrat and former Chief Justice of the Texas Supreme Court: After years of closely observing Justice Owen's work, I can assert with confidence that her approach to judicial decision-making is restrained, that her opinions are fair and well reasoned, and that her integrity is beyond reproach. I echo the American Bar Association's unanimous conclusion that she is "well qualified" for the federal bench the highest rating possible. United States Senators from both sides of the aisle have called the ABA's rating the "gold standard" of a nominee's fitness for the federal bench, and I agree with them. I know personally just how impeccable Justice Owen's credentials are. EXT-18-2091-C-000345 007104-001066 Document ID: 0.7.19343.5135-000003 Judicial Appointments NOMINATION MEMO Priscilla Owen Nominated: Position: Current Job: Background: ABA Rating: Support: May 9, 2001 U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) . Court Stats: 17 full time positions, 4 vacancies, 3 nominees (1 confirmed, 1 defeated in Judiciary Committee) . Urgency: This vacancy is a judicial emergency; open since January 23, 1997 Justice, Texas Supreme Court (elected 1994, re elected w/out opposition 2000) Private practice in Houston (1978 94) Unanimously well-qualified Texas Senators Phil Gramm (R) and Kay Bailey Hutchison (R) support Owen Executive Summary An effective hiring process starts with an accurate job description. President Bush is using the right judicial job description in making nominations, that judges must interpret the law but not make it. Many Senators and their far left supporters, however, use a very different job description. They want activist judges who will deliver results favoring liberal political interests. As a result, they look only at the tally of winners and losers from a judge's decisions. The National Abortion Federation has led the attack on Justice Owen's nomination. Their ideology demands that judges' decisions favor abortion. Justice Owen, however, takes a balanced, restrained approach that applies the law no matter what the results. The NAF's aggressively ideological campaign involves many egregious distortions of Justice Owen's record in these cases. After reviewing the proper judicial job description, noting how the judicial selection process should incorporate it, and examining the ideological nature of the far left's campaign against Justice Owen, this Nomination Memo addresses the top 10 of the NAF's distortions. It shows that abortion "rights" were not part of any of these cases and that the NAF misstates Justice Owen's voting record; distorts the criticism of a judicial colleague; twice deliberately misquotes Justice Owen's opinions to present a view opposite of what she had written; and calls "an unwillingness to protect abortion clinics" a decision that was praised by Planned Parenthood as a "slam dunk." Attacks such as this are part of an overall campaign to limit President Bush's judicial nominations. The 34 percent confirmation rate for his appeals court nominees pales next to the 92 percent rate enjoyed by the previous three presidents in their first two years. So far, the Senate has confirmed just 59 Bush judges, compared to 128 in the first two years of the Clinton administration. America is at a crossroads. The battle over judicial appointments is a battle over whether the people will retain the power to govern themselves, run the country, and define the culture. CONCERNED WOMEN FOR AMERICA 1015 Fifteenth Street, N.W. e Suite 1100 e Washington, D.C. 20005 e (202) 488 7000 e Fax: (202) 488 0806 e www.cwfa.org EXT-18-2091-C-000346 007104-001067 Document ID: 0.7.19343.5135-000004 Judicial Appointments NOMINATION MEMO Priscilla Owen Nominated: Position: Current Job: Background: ABA Rating: Support: May 9, 2001 U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) ? Court Stats: 17 full time positions, 4 vacancies, 3 nominees (1 confirmed, 1 defeated in Judiciary Committee) ? Urgency: This vacancy is a judicial emergency; open since January 23, 1997 Justice, Texas Supreme Court (elected 1994, re elected w/out opposition 2000) Private practice in Houston (1978 94) Unanimously well-qualified Texas Senators Phil Gramm (R) and Kay Bailey Hutchison (R) support Owen Executive Summary An effective hiring process starts with an accurate job description. President Bush is using the right judicial job description in making nominations, that judges must interpret the law but not make it. Many Senators and their far left supporters, however, use a very different job description. They want activist judges who will deliver results favoring liberal political interests. As a result, they look only at the tally of winners and losers from a judge's decisions. The National Abortion Federation has led the attack on Justice Owen's nomination. Their ideology demands that judges' decisions favor abortion. Justice Owen, however, takes a balanced, restrained approach that applies the law no matter what the results. The NAF's aggressively ideological campaign involves many egregious distortions of Justice Owen's record in these cases. After reviewing the proper judicial job description, noting how the judicial selection process should incorporate it, and examining the ideological nature of the far left's campaign against Justice Owen, this Nomination Memo addresses the top 10 of the NAF's distortions. It shows that abortion "rights" were not part of any of these cases and that the NAF misstates Justice Owen's voting record; distorts the criticism of a judicial colleague; twice deliberately misquotes Justice Owen's opinions to present a view opposite of what she had written; and calls "an unwillingness to protect abortion clinics" a decision that was praised by Planned Parenthood as a "slam dunk." Attacks such as this are part of an overall campaign to limit President Bush's judicial nominations. The 34 percent confirmation rate for his appeals court nominees pales next to the 92 percent rate enjoyed by the previous three presidents in their first two years. So far, the Senate has confirmed just 59 Bush judges, compared to 128 in the first two years of the Clinton administration. America is at a crossroads. The battle over judicial appointments is a battle over whether the people will retain the power to govern themselves, run the country, and define the culture. CONCERNED WOMEN FOR AMERICA 1015 Fifteenth Street, N.W. e Suite 1100 e Washington, D.C. 20005 e (202) 488 7000 e Fax: (202) 488 0806 e www.cwfa.org EXT-18-2091-C-000346 007104-001067 Document ID: 0.7.19343.5135-000004 Judicial Appointments NOMINATION MEMO Priscilla Owen Nominated: Position: Current Job: Background: ABA Rating: Support: May 9, 2001 U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) . Court Stats: 17 full time positions, 4 vacancies, 3 nominees (1 confirmed, 1 defeated in Judiciary Committee) . Urgency: This vacancy is a judicial emergency; open since January 23, 1997 Justice, Texas Supreme Court (elected 1994, re elected w/out opposition 2000) Private practice in Houston (1978 94) Unanimously well-qualified Texas Senators Phil Gramm (R) and Kay Bailey Hutchison (R) support Owen The Judicial Job Description An effective hiring process starts with an accurate job description. Similarly, the judicial selection process must start with the right judicial job description. Because the contending sides use different job descriptions, the debate is often divisive, confusing, and even misleading. When he nominated Justice Priscilla Owen on May 9, 2001, President Bush provided the right job description: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench." 1 A judge's job is important, but limited. She must decide legal disputes by applying the law that the people give her; she does not have the power to make the law she applies in order to achieve certain results. The power to make law, to run the country and define the culture, belongs to the people, not to judges. Supporting this system is easy as long as it produces what we like. The challenge comes when the people make law we do not like. Should we praise judges who abuse their power by making law, so long as we like the law they make? Should we condemn judges who follow the law but produce unfavorable results? The political ends do not justify the judicial means. No matter what the results, judges must stick to interpreting, but not making, law. The people can change the law if the results are unacceptable, but they must retain the power to govern themselves, run the country, and define the culture. CONCERNED WOMEN FOR AMERICA 1015 Fifteenth Street, N.W. e Suite 1100 e Washington, D.C. 20005 e (202) 488 7000 e Fax: (202) 488 0806 e www.cwfa.org 1 EXT-18-2091-C-000347 007104-001068 Document ID: 0.7.19343.5135-000004 Judicial Appointments NOMINATION MEMO Priscilla Owen Nominated: Position: Current Job: Background: ABA Rating: Support: May 9, 2001 U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana, Mississippi) ? Court Stats: 17 full time positions, 4 vacancies, 3 nominees (1 confirmed, 1 defeated in Judiciary Committee) ? Urgency: This vacancy is a judicial emergency; open since January 23, 1997 Justice, Texas Supreme Court (elected 1994, re elected w/out opposition 2000) Private practice in Houston (1978 94) Unanimously well-qualified Texas Senators Phil Gramm (R) and Kay Bailey Hutchison (R) support Owen The Judicial Job Description An effective hiring process starts with an accurate job description. Similarly, the judicial selection process must start with the right judicial job description. Because the contending sides use different job descriptions, the debate is often divisive, confusing, and even misleading. When he nominated Justice Priscilla Owen on May 9, 2001, President Bush provided the right job description: "Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench." 1 A judge's job is important, but limited. She must decide legal disputes by applying the law that the people give her; she does not have the power to make the law she applies in order to achieve certain results. The power to make law, to run the country and define the culture, belongs to the people, not to judges. Supporting this system is easy as long as it produces what we like. The challenge comes when the people make law we do not like. Should we praise judges who abuse their power by making law, so long as we like the law they make? Should we condemn judges who follow the law but produce unfavorable results? The political ends do not justify the judicial means. No matter what the results, judges must stick to interpreting, but not making, law. The people can change the law if the results are unacceptable, but they must retain the power to govern themselves, run the country, and define the culture. CONCERNED WOMEN FOR AMERICA 1015 Fifteenth Street, N.W. e Suite 1100 e Washington, D.C. 20005 e (202) 488 7000 e Fax: (202) 488 0806 e www.cwfa.org 1 EXT-18-2091-C-000347 007104-001068 Document ID: 0.7.19343.5135-000004 The Judicial Selection Process The Constitution establishes the hiring process for federal judges, giving to the president the power to nominate and, with the Senate's consent, appoint them.2 The proper job description must guide that process, from interviewing the right candidates, asking the right questions, and considering the right information to applying the right criteria and finally making the right decision. President Bush is using the right job description in choosing his nominees. Their judicial philosophy is called judicial restraint because they are restrained by the law. In a basketball game, the referee must fairly apply the rules. He cannot change the rules mid game so that his preferred team wins. Similarly, judges must fairly apply the law. They cannot change the law to produce their preferred result. Unfortunately, it appears that a different view may be operating in the confirmation phase of the process. Many Senators, and certainly most left wing interest groups, seem to care more about politically correct ends than judicially correct means. To them, winners and losers are more important than how the game is played. Decisions are good or bad based on whether the results favor certain political interests, not on whether judges follow the law. This view is dangerous because judicial activism, or judges making law, takes the power to run the country and define the culture away from the people. Senate Democrats, led by Sen. Charles Schumer of New York, insist that confirmation of President Bush's nominees should depend on their "ideology," that is, on the results they will deliver in their judicial decisions. Thus Senators actively employ ideological litmus tests, demanding to know how nominees would rule on certain issues in future cases. Since activist judges essentially translate their personal views into judicial decisions, advocates of judicial activism must determine a nominee's personal views to predict what she will do as a judge. This very dangerous approach undermines judicial independence and ultimately destroys the power of the people to govern themselves. An effective hiring process starts with an accurate job description. This brief overview provides the frame of reference for understanding the current, increasingly divisive, debate over judicial appointments. The desire for a politicized, activist judiciary willing to deliver the liberal agenda drives the overall obstruction of President Bush's judicial nominees, as well as the particularly aggressive assault on individual nominees such as Justice Priscilla Owen. Justice Priscilla Owen When Justice Owen ran for re election to the Texas Supreme Court in 2000, every major Texas newspaper endorsed her and 84% of Texans voted for her. She was only the second woman elected to the court and its first member elected to a full term without major party opposition.3 . . The Houston Chronicle praised her "proper balance of judicial experience, solid legal scholarship and real world know how."4 And the Dallas Morning News said she "has brought impressive legal scope to the bench and has provided thoughtful opinions."5 Texas Supreme Court Chief Justice Top Phillips has said that Justice Owen "is what [President] Bush said: she tries to follow the legislative will in every case and apply the law, not invent it."6 Similarly, the analysts at the Free Congress Foundation's Judicial Selection Monitoring Project reviewed Justice Owen's 2 EXT-18-2091-C-000348 007104-001069 Document ID: 0.7.19343.5135-000004 The Judicial Selection Process The Constitution establishes the hiring process for federal judges, giving to the president the power to nominate and, with the Senate's consent, appoint them.2 The proper job description must guide that process, from interviewing the right candidates, asking the right questions, and considering the right information to applying the right criteria and finally making the right decision. President Bush is using the right job description in choosing his nominees. Their judicial philosophy is called judicial restraint because they are restrained by the law. In a basketball game, the referee must fairly apply the rules. He cannot change the rules mid game so that his preferred team wins. Similarly, judges must fairly apply the law. They cannot change the law to produce their preferred result. Unfortunately, it appears that a different view may be operating in the confirmation phase of the process. Many Senators, and certainly most left wing interest groups, seem to care more about politically correct ends than judicially correct means. To them, winners and losers are more important than how the game is played. Decisions are good or bad based on whether the results favor certain political interests, not on whether judges follow the law. This view is dangerous because judicial activism, or judges making law, takes the power to run the country and define the culture away from the people. Senate Democrats, led by Sen. Charles Schumer of New York, insist that confirmation of President Bush's nominees should depend on their "ideology," that is, on the results they will deliver in their judicial decisions. Thus Senators actively employ ideological litmus tests, demanding to know how nominees would rule on certain issues in future cases. Since activist judges essentially translate their personal views into judicial decisions, advocates of judicial activism must determine a nominee's personal views to predict what she will do as a judge. This very dangerous approach undermines judicial independence and ultimately destroys the power of the people to govern themselves. An effective hiring process starts with an accurate job description. This brief overview provides the frame of reference for understanding the current, increasingly divisive, debate over judicial appointments. The desire for a politicized, activist judiciary willing to deliver the liberal agenda drives the overall obstruction of President Bush's judicial nominees, as well as the particularly aggressive assault on individual nominees such as Justice Priscilla Owen. Justice Priscilla Owen When Justice Owen ran for re election to the Texas Supreme Court in 2000, every major Texas newspaper endorsed her and 84% of Texans voted for her. She was only the second woman elected to the court and its first member elected to a full term without major party opposition.3 ? ? The Houston Chronicle praised her "proper balance of judicial experience, solid legal scholarship and real world know how."4 And the Dallas Morning News said she "has brought impressive legal scope to the bench and has provided thoughtful opinions."5 Texas Supreme Court Chief Justice Top Phillips has said that Justice Owen "is what [President] Bush said: she tries to follow the legislative will in every case and apply the law, not invent it."6 Similarly, the analysts at the Free Congress Foundation's Judicial Selection Monitoring Project reviewed Justice Owen's 2 EXT-18-2091-C-000348 007104-001069 Document ID: 0.7.19343.5135-000004 record and concluded that she is "a judge who interprets the law, rather than one who makes the law."7 Former White House Counsel C. Boyden Gray found after his analysis that "Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver."8 Justice Owen fits the appropriate job description9 and is the kind of judge America needs. Justice Owen's Opposition Justice Owen's opponents are the same political forces that have attacked previous Bush nominees to judicial and executive branch positions. Their tactics are familiar and their purpose is clear: to keep off the bench judges they perceive as unlikely to deliver results favorable to their political interests and to dissuade President Bush from nominating such a judge to the Supreme Court in the future. Curiously, they now use the language of "judicial activism" and "judicial restraint." When President Clinton was appointing judges, these same forces claimed that "judicial activism" either did not exist or the label meant nothing more than an undesirable judicial decision. The New York Times dismissed the label "judicial activism" as nothing but a "hazy slur."10 Left wing law professor David Kairys wrote that judicial activism "is in the eye of the beholder."11 When public debate about judicial activism included congressional hearings in 1997, left wing groups echoed U.S. Circuit Judge Jon Newman's assertion that critics of judicial activism attach the label to "any decision [they do] not like."12 Now, perhaps admitting that judicial activism is indefensible, the far left is trying to highjack the label, change its meaning, and use it to their advantage. They behave very much like the activist judges they favor, judges who change the meaning of statutes and the Constitution for their own ends. Abortion is driving the opposition to many of President Bush's judicial nominees. Three quarters of Americans would ban most or all abortions and large majorities would require such things as informed consent, spousal notification, parental consent, and waiting periods, and would ban partial birth abortion.13 The American people have never chosen abortion on demand for themselves, and judges who respect the people's decisions about such issues are not likely to force it upon them. Instead, the current national policy of abortion on demand was established, and can only be maintained or extended, through activist judges. Abortion extremists care only whether a particular judge or judicial nominee will, in the end, contribute to the incidence of abortion and the expansion of abortion "rights." As such, they look only at the results of Justice Owen's votes or written opinions in abortion related cases, do the math, and decide whether those results contribute to their abortion agenda. They acknowledge no balance of any other rights or interests, ignore the facts and issues in these cases, and never ask whether judges rather than the people should decide such matters at all. Abortion is all that matters. One abortion extremist has said that Justice Owen "exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named."14 This claim is baffling since the Texas Supreme Court has not considered a case raising the issue of reproductive "rights" during Justice Owen's tenure. As such, abortion extremists have distorted Justice Owen's record to create an image they hope will be more politically potent. 3 EXT-18-2091-C-000349 007104-001070 Document ID: 0.7.19343.5135-000004 record and concluded that she is "a judge who interprets the law, rather than one who makes the law."7 Former White House Counsel C. Boyden Gray found after his analysis that "Justice Owen has stressed that the function of a court in interpreting legal text is to give effect to the intent of the lawgiver."8 Justice Owen fits the appropriate job description9 and is the kind of judge America needs. Justice Owen's Opposition Justice Owen's opponents are the same political forces that have attacked previous Bush nominees to judicial and executive branch positions. Their tactics are familiar and their purpose is clear: to keep off the bench judges they perceive as unlikely to deliver results favorable to their political interests and to dissuade President Bush from nominating such a judge to the Supreme Court in the future. Curiously, they now use the language of "judicial activism" and "judicial restraint." When President Clinton was appointing judges, these same forces claimed that "judicial activism" either did not exist or the label meant nothing more than an undesirable judicial decision. The New York Times dismissed the label "judicial activism" as nothing but a "hazy slur."10 Left wing law professor David Kairys wrote that judicial activism "is in the eye of the beholder."11 When public debate about judicial activism included congressional hearings in 1997, left wing groups echoed U.S. Circuit Judge Jon Newman's assertion that critics of judicial activism attach the label to "any decision [they do] not like."12 Now, perhaps admitting that judicial activism is indefensible, the far left is trying to highjack the label, change its meaning, and use it to their advantage. They behave very much like the activist judges they favor, judges who change the meaning of statutes and the Constitution for their own ends. Abortion is driving the opposition to many of President Bush's judicial nominees. Three quarters of Americans would ban most or all abortions and large majorities would require such things as informed consent, spousal notification, parental consent, and waiting periods, and would ban partial birth abortion.13 The American people have never chosen abortion on demand for themselves, and judges who respect the people's decisions about such issues are not likely to force it upon them. Instead, the current national policy of abortion on demand was established, and can only be maintained or extended, through activist judges. Abortion extremists care only whether a particular judge or judicial nominee will, in the end, contribute to the incidence of abortion and the expansion of abortion "rights." As such, they look only at the results of Justice Owen's votes or written opinions in abortion related cases, do the math, and decide whether those results contribute to their abortion agenda. They acknowledge no balance of any other rights or interests, ignore the facts and issues in these cases, and never ask whether judges rather than the people should decide such matters at all. Abortion is all that matters. One abortion extremist has said that Justice Owen "exemplifies the most extreme hostility to reproductive rights of any of the nominees that President Bush has named."14 This claim is baffling since the Texas Supreme Court has not considered a case raising the issue of reproductive "rights" during Justice Owen's tenure. As such, abortion extremists have distorted Justice Owen's record to create an image they hope will be more politically potent. 3 EXT-18-2091-C-000349 007104-001070 Document ID: 0.7.19343.5135-000004 Top 11 Distortions of Justice Owen's Record A Texas statute requires minor girls to notify at least one parent before getting an abortion.15 It does not require parental consent or even notification of both parents. This statute requires the least parental involvement possible and does not itself prohibit a single abortion. It then dilutes this minimal parental involvement by creating three exceptions. Young girls can bypass their parents altogether if a judge concludes they are "mature and sufficiently well informed" to make the decision on their own; that "notification would not be in [their] best interest"; or that "notification may lead to...abuse."16 The legislature did not define these terms or set standards for applying them. Instead, the Texas Supreme Court had to determine what girls must prove to fit within these exceptions and bypass their parents. The court decided 12 cases, eleven in 2000 and one in 2002. The girl in each case seeking to bypass her parents is identified only as Jane Doe and the cases are sequentially identified as In re Jane Doe 1, In re Jane Doe 2, and so on. Two of the cases, Jane Doe 1 and Jane Doe 4, returned to the Texas Supreme Court and the second ruling in each case is identified with (II).17 Though other abortion extremists parrot similar claims, the National Abortion Federation (NAF) has led the assault on Justice Owen's record in this area. This memo examines and answers their distortions. Distortion #1 "in thirteen out of fourteen ...abortion cases...she has voted against abortion rights"18 The issue of "abortion rights" was not raised in a single case before Justice Owen. Neither these parental notification cases, nor the statute they interpreted and applied, addressed any "right" to abortion at all. In fact, it might be said that the statute, at least tacitly, assumed a "right" to abortion and dealt only with the circumstances under which minor girls could exercise that "right." The legislation's Senate sponsor, however, supports abortion "rights." In a July 15, 2002, letter to U.S. Senate Judiciary Committee Chairman Patrick Leahy, Texas state Sen. Florence Shapiro wrote that the law "is emphatically not about whether a minor is able to have an abortion, but whether her parent should be notified. The Act nowhere presents the question of whether the Constitution guarantees the right to abortion or the scope of such a right; in fact, it recognizes that a girl may have an abortion."19 It also may come as a shock to NAF that the U.S. Supreme Court, which invented the so called "right" to abortion in the first place, held quite clearly that this "right" is neither absolute nor unlimited. In Roe v. Wade20 itself, the Supreme Court responded to the argument that "the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive."21 4 EXT-18-2091-C-000350 007104-001071 Document ID: 0.7.19343.5135-000004 Top 11 Distortions of Justice Owen's Record A Texas statute requires minor girls to notify at least one parent before getting an abortion.15 It does not require parental consent or even notification of both parents. This statute requires the least parental involvement possible and does not itself prohibit a single abortion. It then dilutes this minimal parental involvement by creating three exceptions. Young girls can bypass their parents altogether if a judge concludes they are "mature and sufficiently well informed" to make the decision on their own; that "notification would not be in [their] best interest"; or that "notification may lead to...abuse."16 The legislature did not define these terms or set standards for applying them. Instead, the Texas Supreme Court had to determine what girls must prove to fit within these exceptions and bypass their parents. The court decided 12 cases, eleven in 2000 and one in 2002. The girl in each case seeking to bypass her parents is identified only as Jane Doe and the cases are sequentially identified as In re Jane Doe 1, In re Jane Doe 2, and so on. Two of the cases, Jane Doe 1 and Jane Doe 4, returned to the Texas Supreme Court and the second ruling in each case is identified with (II).17 Though other abortion extremists parrot similar claims, the National Abortion Federation (NAF) has led the assault on Justice Owen's record in this area. This memo examines and answers their distortions. Distortion #1 "in thirteen out of fourteen ...abortion cases...she has voted against abortion rights"18 The issue of "abortion rights" was not raised in a single case before Justice Owen. Neither these parental notification cases, nor the statute they interpreted and applied, addressed any "right" to abortion at all. In fact, it might be said that the statute, at least tacitly, assumed a "right" to abortion and dealt only with the circumstances under which minor girls could exercise that "right." The legislation's Senate sponsor, however, supports abortion "rights." In a July 15, 2002, letter to U.S. Senate Judiciary Committee Chairman Patrick Leahy, Texas state Sen. Florence Shapiro wrote that the law "is emphatically not about whether a minor is able to have an abortion, but whether her parent should be notified. The Act nowhere presents the question of whether the Constitution guarantees the right to abortion or the scope of such a right; in fact, it recognizes that a girl may have an abortion."19 It also may come as a shock to NAF that the U.S. Supreme Court, which invented the so called "right" to abortion in the first place, held quite clearly that this "right" is neither absolute nor unlimited. In Roe v. Wade20 itself, the Supreme Court responded to the argument that "the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive."21 4 EXT-18-2091-C-000350 007104-001071 Document ID: 0.7.19343.5135-000004 So it is with these cases that involve minors, not adults; a requirement of notification, not consent; and notice to just one parent, not two. To insist that requiring a child merely to tell one parent before having an abortion is an assault on "abortion rights" is hyperbole in the extreme. It may make for effective fund raising letters or help motivate some political activists, but it bears no relationship to the truth. Justice Owen shows more balance than her opponents in suggesting that the U.S. Supreme Court might not approve certain abortion restrictions they have not yet reviewed. The Court has, for example, required a bypass provision in parental consent,22 but not parental notification, statutes. Nonetheless, Justice Owen acknowledged that those parental consent decisions "suggest that the United States Supreme Court might hold that bypass procedures are necessary in notification statutes."23 In addition, though the U.S. Supreme Court has upheld a single parent notification requirement, Justice Owen acknowledged that "[t]he constitutionality of requiring a minor to notify both parents is questionable."24 The NAF gives her no credit. Abortion extremists can perhaps be expected to misrepresent Justice Owen's votes and decisions in these cases, but some of the news media also fail to be balanced or accurate. Anthony Lewis reported in the New York Times, for example, that "Justice Owen is an opponent of abortion rights for minors without their parents' permission."25 This statement is patently false in at least three ways. First, the cases to which it refers involved a parental notification, not a parental permission, statute. Second, as explained above, the issue of "abortion rights" was never before the court. Third, Justice Owen has never indicated her own view of abortion rights, in a court decision or anywhere else. Distortion #2 Justice Owen "voted against abortion rights" in 11 of 12 parental notification cases26 Perhaps NAF believes no one will actually check the record, but this accusation is completely false. For those who tabulate results, the picture looks like this: . . . . The Texas Supreme Court required notification six times27 and facilitated bypass six times.28 Justice Owen was in the majority in nine cases29 and dissented in three cases.30 Justice Owen voted to require notification in nine cases31 and to facilitate bypass in three cases.32 Justice Owen dissented from the majority to vote for notification in just three cases.33 It is important to understand how these cases proceed through the Texas judicial system. Texas law does not allow appeal from a decision granting a bypass. Therefore, in every case reaching the Texas Supreme Court, two other courts have already denied a bypass and required notification.34 Under these procedural conditions, and considering its standard of review,35 the Texas Supreme Court can be expected to require notification in a substantial percentage of cases. The NAF makes a particularly offensive suggestion that Justice Owen voted against notification in the most recent case because she had been nominated to the U.S. Court of Appeals.36 While, as already noted, NAF is simply wrong that this was the only case in which Justice Owen voted to facilitate bypass, her vote in that case proves exactly the opposite of NAF's perverse innuendo. The court's decision in Jane Doe 10 was based on some language in an earlier decision from which Justice Owen had dissented.37 In Jane Doe 10, however, she acknowledged that the prior precedent applied and, though she had disagreed with it, was willing to be bound by it. This is the mark of a restrained, not an activist, judge. 5 EXT-18-2091-C-000351 007104-001072 Document ID: 0.7.19343.5135-000004 So it is with these cases that involve minors, not adults; a requirement of notification, not consent; and notice to just one parent, not two. To insist that requiring a child merely to tell one parent before having an abortion is an assault on "abortion rights" is hyperbole in the extreme. It may make for effective fund raising letters or help motivate some political activists, but it bears no relationship to the truth. Justice Owen shows more balance than her opponents in suggesting that the U.S. Supreme Court might not approve certain abortion restrictions they have not yet reviewed. The Court has, for example, required a bypass provision in parental consent,22 but not parental notification, statutes. Nonetheless, Justice Owen acknowledged that those parental consent decisions "suggest that the United States Supreme Court might hold that bypass procedures are necessary in notification statutes."23 In addition, though the U.S. Supreme Court has upheld a single parent notification requirement, Justice Owen acknowledged that "[t]he constitutionality of requiring a minor to notify both parents is questionable."24 The NAF gives her no credit. Abortion extremists can perhaps be expected to misrepresent Justice Owen's votes and decisions in these cases, but some of the news media also fail to be balanced or accurate. Anthony Lewis reported in the New York Times, for example, that "Justice Owen is an opponent of abortion rights for minors without their parents' permission."25 This statement is patently false in at least three ways. First, the cases to which it refers involved a parental notification, not a parental permission, statute. Second, as explained above, the issue of "abortion rights" was never before the court. Third, Justice Owen has never indicated her own view of abortion rights, in a court decision or anywhere else. Distortion #2 Justice Owen "voted against abortion rights" in 11 of 12 parental notification cases26 Perhaps NAF believes no one will actually check the record, but this accusation is completely false. For those who tabulate results, the picture looks like this: ? ? ? ? The Texas Supreme Court required notification six times27 and facilitated bypass six times.28 Justice Owen was in the majority in nine cases29 and dissented in three cases.30 Justice Owen voted to require notification in nine cases31 and to facilitate bypass in three cases.32 Justice Owen dissented from the majority to vote for notification in just three cases.33 It is important to understand how these cases proceed through the Texas judicial system. Texas law does not allow appeal from a decision granting a bypass. Therefore, in every case reaching the Texas Supreme Court, two other courts have already denied a bypass and required notification.34 Under these procedural conditions, and considering its standard of review,35 the Texas Supreme Court can be expected to require notification in a substantial percentage of cases. The NAF makes a particularly offensive suggestion that Justice Owen voted against notification in the most recent case because she had been nominated to the U.S. Court of Appeals.36 While, as already noted, NAF is simply wrong that this was the only case in which Justice Owen voted to facilitate bypass, her vote in that case proves exactly the opposite of NAF's perverse innuendo. The court's decision in Jane Doe 10 was based on some language in an earlier decision from which Justice Owen had dissented.37 In Jane Doe 10, however, she acknowledged that the prior precedent applied and, though she had disagreed with it, was willing to be bound by it. This is the mark of a restrained, not an activist, judge. 5 EXT-18-2091-C-000351 007104-001072 Document ID: 0.7.19343.5135-000004 Abortion extremists insist that, regardless of the law, a judge who does not permit (or takes a position even potentially discouraging) an abortion in a particular case is "hostile to abortion rights." Such a ridiculous statement is made even worse when the issue of "abortion rights" is not before the judge in the first place. This sort of rhetoric distorts the role of judges, misrepresents the facts and issues of individual cases, and misleads the public about judicial selection. Distortion #3 "Owen Misrepresents Legislative Intent Of Bypass Provision"38 Abortion extremists such as the NAF refer to this legislation as a "bypass statute"39 and actually claim it was intended to "assist" minor girls "in their attempt to obtain abortions."40 That spin is not only factually false, it is totally absurd. Prior to this legislation, minor girls could get an abortion without telling their parents; its enactment alone clearly shows the legislature wanted to discourage rather than assist young girls getting abortions without parental knowledge. ? ? ? The legislation's House sponsor, Rep. Dianne White Delisi, stated that girls would be able to bypass their parents only in "rare cases." Rep. Phil King said that notification should happen in the "vast, vast, vast majority of cases." The legislation's Senate sponsor, pro choice Sen. Florence Shapiro, wrote that, under the statute, parental notification would be the rule "except in very limited circumstances." Distortion #4 "Owen Chastised By Colleagues For 'Unconscionable Judicial Activism'"41 In Jane Doe 1,42 the court concluded that the girl had not shown she was mature and sufficiently well informed to make the abortion decision without her parents' knowledge. After establishing new standards for applying this notification exception, the court sent the case back for re consideration. The trial and lower appellate court again denied the girl's application for a bypass and the case returned to the Texas Supreme Court.43 This time, the court granted the bypass application. Justices Hecht,44 Owen,45 and Abbott46 wrote individual dissenting opinions. Justice Alberto Gonzalez, now Counsel to President Bush, wrote a concurring opinion responding to Justice Hecht's dissent in a previous notification case.47 There, Justice Hecht wrote that the court had granted bypasses based on "the majority's deep seated ideology."48 It was the "force of that ideology" and the court's "ideological motivations"49 he argued, that drove the majority's decision. Justice Gonzalez was part of the majority that Justice Hecht had criticized. In his Jane Doe 1(II) concurrence, after citing Justice Hecht's criticism, Justice Gonzalez wrote: "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof....Thus, to construe the [statute] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."50 He concluded his concurrence by responding to Justice Hecht's additional criticism in the present case: "Justice Hecht charges that our decision demonstrates the Court's determination to construe the [statute] as the Court believes [it] should be construed and not as the Legislature intended....I respectfully disagree."51 6 EXT-18-2091-C-000352 007104-001073 Document ID: 0.7.19343.5135-000004 Abortion extremists insist that, regardless of the law, a judge who does not permit (or takes a position even potentially discouraging) an abortion in a particular case is "hostile to abortion rights." Such a ridiculous statement is made even worse when the issue of "abortion rights" is not before the judge in the first place. This sort of rhetoric distorts the role of judges, misrepresents the facts and issues of individual cases, and misleads the public about judicial selection. Distortion #3 "Owen Misrepresents Legislative Intent Of Bypass Provision"38 Abortion extremists such as the NAF refer to this legislation as a "bypass statute"39 and actually claim it was intended to "assist" minor girls "in their attempt to obtain abortions."40 That spin is not only factually false, it is totally absurd. Prior to this legislation, minor girls could get an abortion without telling their parents; its enactment alone clearly shows the legislature wanted to discourage rather than assist young girls getting abortions without parental knowledge. . . . The legislation's House sponsor, Rep. Dianne White Delisi, stated that girls would be able to bypass their parents only in "rare cases." Rep. Phil King said that notification should happen in the "vast, vast, vast majority of cases." The legislation's Senate sponsor, pro choice Sen. Florence Shapiro, wrote that, under the statute, parental notification would be the rule "except in very limited circumstances." Distortion #4 "Owen Chastised By Colleagues For 'Unconscionable Judicial Activism'"41 In Jane Doe 1,42 the court concluded that the girl had not shown she was mature and sufficiently well informed to make the abortion decision without her parents' knowledge. After establishing new standards for applying this notification exception, the court sent the case back for re consideration. The trial and lower appellate court again denied the girl's application for a bypass and the case returned to the Texas Supreme Court.43 This time, the court granted the bypass application. Justices Hecht,44 Owen,45 and Abbott46 wrote individual dissenting opinions. Justice Alberto Gonzalez, now Counsel to President Bush, wrote a concurring opinion responding to Justice Hecht's dissent in a previous notification case.47 There, Justice Hecht wrote that the court had granted bypasses based on "the majority's deep seated ideology."48 It was the "force of that ideology" and the court's "ideological motivations"49 he argued, that drove the majority's decision. Justice Gonzalez was part of the majority that Justice Hecht had criticized. In his Jane Doe 1(II) concurrence, after citing Justice Hecht's criticism, Justice Gonzalez wrote: "The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof....Thus, to construe the [statute] so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."50 He concluded his concurrence by responding to Justice Hecht's additional criticism in the present case: "Justice Hecht charges that our decision demonstrates the Court's determination to construe the [statute] as the Court believes [it] should be construed and not as the Legislature intended....I respectfully disagree."51 6 EXT-18-2091-C-000352 007104-001073 Document ID: 0.7.19343.5135-000004 Abortion extremists must have jumped for joy when they read those words, quickly claiming Justice Gonzalez had accused Justice Owen of "unconscionable judicial activism."52 They must have assumed no one would actually read the relevant opinions in these cases. The only colleague Justice Gonzalez named not once, but twice was Justice Hecht. He did not name Justice Owen at all. In addition, Justice Gonzalez attached that label to his characterization of a position, not to one necessarily taken by any of the dissenters. In fact, it can reasonably be argued that none of the dissenters' positions was "to eliminate bypasses." Some abortion extremists make multiple errors in their rush to attribute this criticism directly to Justice Owen. People for the American Way, for example, claims that Justice Gonzalez "criticized a dissent joined by Owen in one case as 'an unconscionable act of judicial activism.'"53 Not only did Justice Gonzalez not criticize Justice Owen's dissent at all, Justice Owen did not join the one he did criticize. Distortion #5 "Owen Misrepresents U.S. Supreme Court Decision"54 In Jane Doe 2,55 the Texas Supreme Court set standards for applying the statute's second exception, that girls can bypass their parents if notification "would not be in the best interest of the minor."56 In this case, Justice Owen agreed with the majority to send the case back for re consideration and wrote a concurring opinion to explain further what factors the trial court should consider. The statutory language here was drawn from the U.S. Supreme Court's decision in Lambert v. Wicklund,57 which evaluated an identical Montana parental notification statute. This "best interest" standard is a two sided coin. Judges must determine whether notification would not be in the minor's best interest but also whether an abortion without notification would be in her best interest. In Lambert, the Court said that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest."58 The Court said plainly that nothing in this "best interest" standard "permits a court to separate the question whether parental notification is not in a minor's best interest from an inquiry into whether abortion (without notification) is in the minor's best interest."59 Justice John Paul Stevens' concurrence in Lambert is also instructive. He criticized the majority's holding that "a young women must demonstrate both that abortion is in her best interest and that notification is not."60 That criticism is inexplicable if the Court in Lambert had held that a girl need only show that notification is not in her best interest and not that abortion without notification is in her best interest. In Jane Doe 2, Justice Owen urged what the U.S. Supreme Court required in Lambert. In fact, the Texas Supreme Court itself later adopted this position. In Jane Doe 4(II), the Court unanimously required notification after evaluating whether "notifying her parents could cause harm to their family structure"61 (notification is not in her best interest) and whether "her physical needs and the potential dangers may weigh in favor of involving her parents"62 (abortion without notification is not in her best interest). 7 EXT-18-2091-C-000353 007104-001074 Document ID: 0.7.19343.5135-000004 Abortion extremists must have jumped for joy when they read those words, quickly claiming Justice Gonzalez had accused Justice Owen of "unconscionable judicial activism."52 They must have assumed no one would actually read the relevant opinions in these cases. The only colleague Justice Gonzalez named not once, but twice was Justice Hecht. He did not name Justice Owen at all. In addition, Justice Gonzalez attached that label to his characterization of a position, not to one necessarily taken by any of the dissenters. In fact, it can reasonably be argued that none of the dissenters' positions was "to eliminate bypasses." Some abortion extremists make multiple errors in their rush to attribute this criticism directly to Justice Owen. People for the American Way, for example, claims that Justice Gonzalez "criticized a dissent joined by Owen in one case as 'an unconscionable act of judicial activism.'"53 Not only did Justice Gonzalez not criticize Justice Owen's dissent at all, Justice Owen did not join the one he did criticize. Distortion #5 "Owen Misrepresents U.S. Supreme Court Decision"54 In Jane Doe 2,55 the Texas Supreme Court set standards for applying the statute's second exception, that girls can bypass their parents if notification "would not be in the best interest of the minor."56 In this case, Justice Owen agreed with the majority to send the case back for re consideration and wrote a concurring opinion to explain further what factors the trial court should consider. The statutory language here was drawn from the U.S. Supreme Court's decision in Lambert v. Wicklund,57 which evaluated an identical Montana parental notification statute. This "best interest" standard is a two sided coin. Judges must determine whether notification would not be in the minor's best interest but also whether an abortion without notification would be in her best interest. In Lambert, the Court said that "a judicial bypass procedure requiring a minor to show that parental notification is not in her best interests is equivalent to a judicial bypass procedure requiring a minor to show that abortion without notification is in her best interest."58 The Court said plainly that nothing in this "best interest" standard "permits a court to separate the question whether parental notification is not in a minor's best interest from an inquiry into whether abortion (without notification) is in the minor's best interest."59 Justice John Paul Stevens' concurrence in Lambert is also instructive. He criticized the majority's holding that "a young women must demonstrate both that abortion is in her best interest and that notification is not."60 That criticism is inexplicable if the Court in Lambert had held that a girl need only show that notification is not in her best interest and not that abortion without notification is in her best interest. In Jane Doe 2, Justice Owen urged what the U.S. Supreme Court required in Lambert. In fact, the Texas Supreme Court itself later adopted this position. In Jane Doe 4(II), the Court unanimously required notification after evaluating whether "notifying her parents could cause harm to their family structure"61 (notification is not in her best interest) and whether "her physical needs and the potential dangers may weigh in favor of involving her parents"62 (abortion without notification is not in her best interest). 7 EXT-18-2091-C-000353 007104-001074 Document ID: 0.7.19343.5135-000004 Distortion #6 "Owen Redefines 'Maturity' As Not Seeking Judicial Bypass At All"63 The NAF claims that Justice Owen made pursuit of a bypass itself evidence that a minor is not mature enough to get one. In another mischaracterization of the statute and Justice Owen's position, the NAF claims that "Justice Owen declared the girl too immature to be allowed an abortion."64 The statute, and the court's decisions interpreting and applying it, determines not whether a girl can get an abortion, but whether she can get an abortion without notifying her parents. Requiring parental notification does not determine whether an abortion takes place. The NAF claims Justice Owen presented the view that pursuit of a bypass is evidence of immaturity in Jane Doe 1(II).65 Again, the NAF must assume no one will actually read the opinions in these cases. This allegation is simply fabricated out of thin air. Justice Owen never, anywhere, even suggested that a girl's attempt to obtain a judicial bypass was evidence, let alone proof, of immaturity. The trial court in Jane Doe 1(II) concluded the girl was not sufficiently well informed, but made no finding about her maturity. Under Texas law, an appellate court presumes that evidence supports both a trial court's express findings and its "omitted findings which are necessary to support the judgment."66 Justice Owen not only did not make her own determination of the girl's immaturity, she explicitly denied that the Texas Supreme Court should independently re weigh evidence the trial court had examined and make factual determinations on its own. "The question in this case," she wrote, "is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes."67 Distortion #7 "Owen Equates The Seeking of a Bypass With 'Deceit'"68 Whether the NAF likes it or not, the right of parents to direct the upbringing of their children is not only profoundly important, but well established in Texas law and U.S. Supreme Court precedent. Texas law allows parents to stop financially supporting their children once they turn 18 and graduate from high school.69 In Jane Doe 4,70 the girl claimed her parents would stop supporting her if she told them she was pregnant because they had done so when her sister became pregnant. There was no evidence, however, whether the sister was 17 or 18, when her parents could terminate support. There was no evidence whether the parents had done so because of the pregnancy. There was no evidence that the girl was in the same situation, with the same family relationship, as her sister. Significantly, when this case came back to the Texas Supreme Court after re evaluation, the court unanimously required notification.71 The NAF accuses Justice Owen of disregarding the impact of notification on family relationships. In doing so, they simply misquote her words. Compare NAF's quotation with what Justice Owen actually wrote: NAF Report quotation of Justice Owen ...neither the trial court nor this Court may properly consider whether Jane Doe 4's parents would withdraw their emotional or financial support after Justice Owen dissent in Jane Doe 4 Because the Legislature has drawn a clear line as to when parental obligations of support end, neither the trial court nor this Court may properly 8 EXT-18-2091-C-000354 007104-001075 Document ID: 0.7.19343.5135-000004 Distortion #6 "Owen Redefines 'Maturity' As Not Seeking Judicial Bypass At All"63 The NAF claims that Justice Owen made pursuit of a bypass itself evidence that a minor is not mature enough to get one. In another mischaracterization of the statute and Justice Owen's position, the NAF claims that "Justice Owen declared the girl too immature to be allowed an abortion."64 The statute, and the court's decisions interpreting and applying it, determines not whether a girl can get an abortion, but whether she can get an abortion without notifying her parents. Requiring parental notification does not determine whether an abortion takes place. The NAF claims Justice Owen presented the view that pursuit of a bypass is evidence of immaturity in Jane Doe 1(II).65 Again, the NAF must assume no one will actually read the opinions in these cases. This allegation is simply fabricated out of thin air. Justice Owen never, anywhere, even suggested that a girl's attempt to obtain a judicial bypass was evidence, let alone proof, of immaturity. The trial court in Jane Doe 1(II) concluded the girl was not sufficiently well informed, but made no finding about her maturity. Under Texas law, an appellate court presumes that evidence supports both a trial court's express findings and its "omitted findings which are necessary to support the judgment."66 Justice Owen not only did not make her own determination of the girl's immaturity, she explicitly denied that the Texas Supreme Court should independently re weigh evidence the trial court had examined and make factual determinations on its own. "The question in this case," she wrote, "is not whether this Court would have ruled differently when confronted with all the evidence that the trial court heard. The question is whether legally sufficient evidence supports the trial court's judgment. The answer to this latter question is yes."67 Distortion #7 "Owen Equates The Seeking of a Bypass With 'Deceit'"68 Whether the NAF likes it or not, the right of parents to direct the upbringing of their children is not only profoundly important, but well established in Texas law and U.S. Supreme Court precedent. Texas law allows parents to stop financially supporting their children once they turn 18 and graduate from high school.69 In Jane Doe 4,70 the girl claimed her parents would stop supporting her if she told them she was pregnant because they had done so when her sister became pregnant. There was no evidence, however, whether the sister was 17 or 18, when her parents could terminate support. There was no evidence whether the parents had done so because of the pregnancy. There was no evidence that the girl was in the same situation, with the same family relationship, as her sister. Significantly, when this case came back to the Texas Supreme Court after re evaluation, the court unanimously required notification.71 The NAF accuses Justice Owen of disregarding the impact of notification on family relationships. In doing so, they simply misquote her words. Compare NAF's quotation with what Justice Owen actually wrote: NAF Report quotation of Justice Owen ...neither the trial court nor this Court may properly consider whether Jane Doe 4's parents would withdraw their emotional or financial support after Justice Owen dissent in Jane Doe 4 Because the Legislature has drawn a clear line as to when parental obligations of support end, neither the trial court nor this Court may properly 8 EXT-18-2091-C-000354 007104-001075 Document ID: 0.7.19343.5135-000004 she turns eighteen and graduates from high school if they were notified of her intent to have an abortion while she is a minor...I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression ofdisapproval....72 consider whether Jane Doe 4's parents would withdraw their emotional or financial support after she turns eighteen and graduates from high school if they were notified of her intent to have an abortion while she is a minor. Jane Doe 4 has no legal entitlement to her parents' support once she reaches eighteen years of age and receives her high school diploma. Conversely, her parents would be within their legal rights to express their disapproval of her conduct by withdrawing further support once she is considered an adult. I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression of disapproval when those acts of disapproval are wholly within the parents' rights.73 Quite contrary to the NAF's claim, Justice Owen was indicating her intent to follow a legal rule laid down by the Texas legislature, which chose to allow parents to terminate financial support for their adult children. The rule of law Justice Owen could not countenance was the majority's holding that interfered with parents' established legal rights. This false and deceptive claim by NAF amounts to a deliberate attempt to deceive the Senate and the American people about Justice Owen's record. Their inserted ellipses completely changed Justice Owen's position. Had the NAF done this in a brief in federal court, they might have been subjected to sanctions under the Federal Rules of Civil Procedure. One court, for example, chastised an attorney for "the manipulative use of ellipses and omissions" and said that misrepresentation of a court's opinion "clearly provides the basis for sanctions under Fed.R.Civ.P. 11."74 Another court said that "[e]llipses in quotes from opposing parties' briefs that completely distort the original are inappropriate" and told the attorney to stop "attempting to gain an advantage in argument by mischaracterizing the positions of opposing parties."75 Distortion #8 "Owen Unsympathetic To Health Risks Of Young Women"76 By now it should come as no surprise that Justice Owen stated exactly the opposite of what the NAF charges. Rather than saying that "even health risks should not be taken into account"77 in parental notification cases, Justice Owen has explicitly said that courts must do so. In Jane Doe 1,78 for example, Justice Owen agreed that "[t]he Court properly requires a minor to consult a health care provider about the general risks of an abortion."79 She repeatedly stated that the "medical, emotional, and psychological consequences of an abortion" should be considered.80 The NAF accuses Justice Owen of "a lack of compassion."81 Significantly, the American Bar Association, which has itself been accused of liberal bias, unanimously gave Justice Owen its highest "well qualified" rating. This is significant for three reasons. 9 EXT-18-2091-C-000355 007104-001076 Document ID: 0.7.19343.5135-000004 she turns eighteen and graduates from high school if they were notified of her intent to have an abortion while she is a minor...I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression ofdisapproval....72 consider whether Jane Doe 4's parents would withdraw their emotional or financial support after she turns eighteen and graduates from high school if they were notified of her intent to have an abortion while she is a minor. Jane Doe 4 has no legal entitlement to her parents' support once she reaches eighteen years of age and receives her high school diploma. Conversely, her parents would be within their legal rights to express their disapproval of her conduct by withdrawing further support once she is considered an adult. I cannot countenance a rule of law that would permit a minor to deceive her parents in order to avoid their expression of disapproval when those acts of disapproval are wholly within the parents' rights.73 Quite contrary to the NAF's claim, Justice Owen was indicating her intent to follow a legal rule laid down by the Texas legislature, which chose to allow parents to terminate financial support for their adult children. The rule of law Justice Owen could not countenance was the majority's holding that interfered with parents' established legal rights. This false and deceptive claim by NAF amounts to a deliberate attempt to deceive the Senate and the American people about Justice Owen's record. Their inserted ellipses completely changed Justice Owen's position. Had the NAF done this in a brief in federal court, they might have been subjected to sanctions under the Federal Rules of Civil Procedure. One court, for example, chastised an attorney for "the manipulative use of ellipses and omissions" and said that misrepresentation of a court's opinion "clearly provides the basis for sanctions under Fed.R.Civ.P. 11."74 Another court said that "[e]llipses in quotes from opposing parties' briefs that completely distort the original are inappropriate" and told the attorney to stop "attempting to gain an advantage in argument by mischaracterizing the positions of opposing parties."75 Distortion #8 "Owen Unsympathetic To Health Risks Of Young Women"76 By now it should come as no surprise that Justice Owen stated exactly the opposite of what the NAF charges. Rather than saying that "even health risks should not be taken into account"77 in parental notification cases, Justice Owen has explicitly said that courts must do so. In Jane Doe 1,78 for example, Justice Owen agreed that "[t]he Court properly requires a minor to consult a health care provider about the general risks of an abortion."79 She repeatedly stated that the "medical, emotional, and psychological consequences of an abortion" should be considered.80 The NAF accuses Justice Owen of "a lack of compassion."81 Significantly, the American Bar Association, which has itself been accused of liberal bias, unanimously gave Justice Owen its highest "well qualified" rating. This is significant for three reasons. 9 EXT-18-2091-C-000355 007104-001076 Document ID: 0.7.19343.5135-000004 First, the ABA's comprehensive investigation examines a nominee's answers to the U.S. Senate Judiciary Committee's questionnaire as well as the nominee's legal writing. Its investigator interviews both the nominee and many people who have information about her qualifications.82 Second, the ABA has consistently and publicly favored abortion rights for 30 years.83 In fact, in 1990 the ABA adopted a resolution, by a nearly three to one margin, opposing any requirement of parental notification before minor girls can obtain abortions.84 Third, the ABA's published evaluation criteria include "the nominee's compassion...open mindedness...freedom from bias and commitment to equal justice under the law." 85 If the ABA, despite its support of abortion rights, finds Justice Owen well qualified after a thorough investigation of her entire record, the NAF, because of its support of abortion rights, must base its opposition on a cursory review of part of her record. Distortion #9 "Owen Unsympathetic To Physical And Mental Abuse Of Teenaged Girls"86 The NAF's claim that Justice Owen lacks sympathy for abused children has absolutely no evidence to support it. Under the statute's third exception, a girl may bypass her parents if she proves that notification may lead to abuse. The NAF cites Jane Doe 287 for Justice Owen's lack of sympathy, yet the court in this case considered the statute's "best interest" exception, not the "abuse" exception. And in Jane Doe 2, Justice Owen voted to send the case back to the trial court so the girl could have another chance at bypassing her parents. The NAF similarly misrepresents Justice Owen's position in Jane Doe 3.88 The girl in this case testified that her father had never abused her, that she no idea how her father would react upon learning of her pregnancy, and that he would probably be more upset learning she had an abortion without his knowledge.89 When defining "abuse," Justice Owen followed a traditional approach to statutory construction by looking to other provisions of the Texas Family Code using the same word.90 Section 261 defines abuse as "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning."91 Justice Owen applied this definition and concluded there was no evidence to meet it. The NAF offers not a shred of evidence to the contrary. Distortion #10 "Owen's Attempted Imposition of Religious Counseling Requirement"92 This claim again exposes the NAF's extremism and dishonesty. In Jane Doe 1,93 Justice Owen concluded that the statute requires girls seeking to bypass their parents to be exposed to the "profound philosophic arguments surrounding abortion."94 She drew guidance from the U.S. Supreme Court's decision in Planned Parenthood v. Casey. 95 The Court, while affirming Roe v. Wade, held that "the state may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children."96 Justice Owen's position here was exactly the opposite of what NAF claims. She specifically rejected the proposition that courts can encourage girls to adopt a particular viewpoint, including a religious one. She wrote: "A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to 10 EXT-18-2091-C-000356 007104-001077 Document ID: 0.7.19343.5135-000004 First, the ABA's comprehensive investigation examines a nominee's answers to the U.S. Senate Judiciary Committee's questionnaire as well as the nominee's legal writing. Its investigator interviews both the nominee and many people who have information about her qualifications.82 Second, the ABA has consistently and publicly favored abortion rights for 30 years.83 In fact, in 1990 the ABA adopted a resolution, by a nearly three to one margin, opposing any requirement of parental notification before minor girls can obtain abortions.84 Third, the ABA's published evaluation criteria include "the nominee's compassion...open mindedness...freedom from bias and commitment to equal justice under the law." 85 If the ABA, despite its support of abortion rights, finds Justice Owen well qualified after a thorough investigation of her entire record, the NAF, because of its support of abortion rights, must base its opposition on a cursory review of part of her record. Distortion #9 "Owen Unsympathetic To Physical And Mental Abuse Of Teenaged Girls"86 The NAF's claim that Justice Owen lacks sympathy for abused children has absolutely no evidence to support it. Under the statute's third exception, a girl may bypass her parents if she proves that notification may lead to abuse. The NAF cites Jane Doe 287 for Justice Owen's lack of sympathy, yet the court in this case considered the statute's "best interest" exception, not the "abuse" exception. And in Jane Doe 2, Justice Owen voted to send the case back to the trial court so the girl could have another chance at bypassing her parents. The NAF similarly misrepresents Justice Owen's position in Jane Doe 3.88 The girl in this case testified that her father had never abused her, that she no idea how her father would react upon learning of her pregnancy, and that he would probably be more upset learning she had an abortion without his knowledge.89 When defining "abuse," Justice Owen followed a traditional approach to statutory construction by looking to other provisions of the Texas Family Code using the same word.90 Section 261 defines abuse as "mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning."91 Justice Owen applied this definition and concluded there was no evidence to meet it. The NAF offers not a shred of evidence to the contrary. Distortion #10 "Owen's Attempted Imposition of Religious Counseling Requirement"92 This claim again exposes the NAF's extremism and dishonesty. In Jane Doe 1,93 Justice Owen concluded that the statute requires girls seeking to bypass their parents to be exposed to the "profound philosophic arguments surrounding abortion."94 She drew guidance from the U.S. Supreme Court's decision in Planned Parenthood v. Casey. 95 The Court, while affirming Roe v. Wade, held that "the state may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children."96 Justice Owen's position here was exactly the opposite of what NAF claims. She specifically rejected the proposition that courts can encourage girls to adopt a particular viewpoint, including a religious one. She wrote: "A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to 10 EXT-18-2091-C-000356 007104-001077 Document ID: 0.7.19343.5135-000004 profess any religious beliefs."97 Knowing this, the NAF again deliberately misrepresents Justice Owen's position. Compare the following: NAF Report quotation of Justice Owen She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion...[R]equiring a minor to exhibit an awareness that there are issues, including religious ones, surround [sic] the abortion decision is not prohibited by the Establishment Clause.98 Justice Owen's concurrence in Jane Doe 1 She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion....A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to profess any religious beliefs. But requiring a minor to exhibit an awareness that there are issues, including religious one, surround [sic] the abortion decision is not prohibited by the Establishment clause.99 Such deliberate misrepresentation, even of quotations which any researcher could check, casts serious doubt on the NAF's entire analysis. Distortion #11 "Owen displayed an unwillingness to protect abortion clinics from harassing protesters"100 The second category of abortion related cases involves court injunctions restricting pro life activity. In Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas,101 the court reviewed an injunction and issued an order creating so called "buffer zones" around abortion clinics and abortionists' homes. The court prohibited pro life activists from: ? ? ? ? ? Yelling and shouting Demonstrating more than two at a time near an abortion clinic Providing counseling more than one at a time to potential patients Approaching the same potential patient more than once Continuing conversation after a potential patient expresses a desire to stop But the court went even further, affirming an award of more than $1.2 million in actual and punitive damages against the pro life activists. Justice Owen joined, but did not write, the majority opinion. She did not join a separate opinion by Justice Raul Gonzalez arguing that the injunction violated the pro life activists' First Amendment rights and that abortion itself is immoral.102 It's no wonder that Planned Parenthood's vice president called the decision "a complete and total victory"103 and its attorney called it a "grand slam."104 Planned Parenthood's own newsletter in the summer of 1998 proclaimed on the front page: "Anti abortion Protestors Lose in Texas Supreme Court." 11 EXT-18-2091-C-000357 007104-001078 Document ID: 0.7.19343.5135-000004 profess any religious beliefs."97 Knowing this, the NAF again deliberately misrepresents Justice Owen's position. Compare the following: NAF Report quotation of Justice Owen She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion...[R]equiring a minor to exhibit an awareness that there are issues, including religious ones, surround [sic] the abortion decision is not prohibited by the Establishment Clause.98 Justice Owen's concurrence in Jane Doe 1 She should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion....A court cannot, of course, require a minor to adopt or adhere to any particular philosophy or to profess any religious beliefs. But requiring a minor to exhibit an awareness that there are issues, including religious one, surround [sic] the abortion decision is not prohibited by the Establishment clause.99 Such deliberate misrepresentation, even of quotations which any researcher could check, casts serious doubt on the NAF's entire analysis. Distortion #11 "Owen displayed an unwillingness to protect abortion clinics from harassing protesters"100 The second category of abortion related cases involves court injunctions restricting pro life activity. In Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas,101 the court reviewed an injunction and issued an order creating so called "buffer zones" around abortion clinics and abortionists' homes. The court prohibited pro life activists from: . . . . . Yelling and shouting Demonstrating more than two at a time near an abortion clinic Providing counseling more than one at a time to potential patients Approaching the same potential patient more than once Continuing conversation after a potential patient expresses a desire to stop But the court went even further, affirming an award of more than $1.2 million in actual and punitive damages against the pro life activists. Justice Owen joined, but did not write, the majority opinion. She did not join a separate opinion by Justice Raul Gonzalez arguing that the injunction violated the pro life activists' First Amendment rights and that abortion itself is immoral.102 It's no wonder that Planned Parenthood's vice president called the decision "a complete and total victory"103 and its attorney called it a "grand slam."104 Planned Parenthood's own newsletter in the summer of 1998 proclaimed on the front page: "Anti abortion Protestors Lose in Texas Supreme Court." 11 EXT-18-2091-C-000357 007104-001078 Document ID: 0.7.19343.5135-000004 Now that a different spin serves their purpose, abortion extremists have changed their tune. What was once hailed as a "grand slam" is now attacked because it "displayed unwillingness to protect abortion clinics from harassing protestors." The Current Nomination Blockade This trail of distortion about the record of individual nominees is part of an overall blockade against President Bush's judicial nominees. During the first two year Congress of the Clinton administration, the Democrat Senate confirmed 128 nominees. During the first two year Congress of the Bush administration, the Democrat Senate has so far confirmed just 59 nominees. During the last three administrations, the Senate confirmed in the first two years an average of 92% of the appeals court nominees. To date, the Senate has confirmed just 34% of President Bush's appeals court nominees. Today, 53 judicial nominees remain stalled in the Senate. The previous three presidents saw their first 11 appeals court nominees confirmed in an average of 81 days. Today, 436 days later, seven of President Bush's first group of 11 appeals court nominees have not had a hearing. America is at a crossroads. The battle over judicial appointments is a battle over whether the people will retain the power to govern themselves, to run the country, and to define the culture. 12 EXT-18-2091-C-000358 007104-001079 Document ID: 0.7.19343.5135-000004 Now that a different spin serves their purpose, abortion extremists have changed their tune. What was once hailed as a "grand slam" is now attacked because it "displayed unwillingness to protect abortion clinics from harassing protestors." The Current Nomination Blockade This trail of distortion about the record of individual nominees is part of an overall blockade against President Bush's judicial nominees. During the first two year Congress of the Clinton administration, the Democrat Senate confirmed 128 nominees. During the first two year Congress of the Bush administration, the Democrat Senate has so far confirmed just 59 nominees. During the last three administrations, the Senate confirmed in the first two years an average of 92% of the appeals court nominees. To date, the Senate has confirmed just 34% of President Bush's appeals court nominees. Today, 53 judicial nominees remain stalled in the Senate. The previous three presidents saw their first 11 appeals court nominees confirmed in an average of 81 days. Today, 436 days later, seven of President Bush's first group of 11 appeals court nominees have not had a hearing. America is at a crossroads. The battle over judicial appointments is a battle over whether the people will retain the power to govern themselves, to run the country, and to define the culture. 12 EXT-18-2091-C-000358 007104-001079 Document ID: 0.7.19343.5135-000004 NOTES 1 http://www.whitehouse.gov/news/releases/2001/05/20010509 3.html. U.S. Constitution, Article II, Section 2. 3 Such widespread support makes baffling the claim by one abortion extremist organization of "widespread criticism in Texas for [Justice Owen's] judicial record." National Women's Law Center, Justice Owen's Record Shows Hostility to Reproductive Rights, at 1, available at http://www.nwlc.org/details.cfm?id 1163§ion JCWR. 4 Editorial, Houston Chronicle, September 24, 2000, at 2. 5 Editorial, Dallas Morning News, October 26, 2000, at 18A. 6 Quoted in Houston Chronicle, May 10, 2001. 7 http://www.judicialselection.org/. 8 Gray, Priscilla Owen: A Restrained, Principled Jusrist, at 2. 9 Some far left groups claim that Justice Owen's judicial philosophy is the opposite of what President Bush has endorsed. See, e.g., People for the American Way, The Dissents OfPriscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It, at 1 (Justice Owen has "a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it."). The report is available at http://www.pfaw.org/issues/judiciary/owen/report/. It strains credibility for groups that have fought aggressively against appointment of restrained judges for many years to act as arbiters of what they oppose. 10 "Topics of the Times: The Senate's Judicial Farce," New York Times, February 17, 1998, at A18. 11 Kairys, "Clinton's Judicial Retreat: When Naming Judges, He Is Quick to Cave," Washington Post, September 7, 1997, at C1. 12 Newman, "Misdiagnosing Courts' Problems," New York Times, January 6, 1998, at A19. 13 Saad, "Public Opinion Abourt Abortion An In Depth Review," available at http://www.gallup.com/poll/specialReports/pollSummaries/sr020122ii.asp. 14 Quoted in Lewis, "More Battles Loom Over Bush's Nominees for Judgeships," New York Times, April 7, 2002, at 24. 15 Texas Family Code, section 33.002(1). 16 Texas Family Code, section 33.003. 17 In re Jane Doe 1, 19 S.W.3d 249 (Texas 2000); In re Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000); In re Jane Doe 2, 19 S.W.3d 278 (Texas 2000); In re Jane Doe 3, 19 S.W.3d 300 (Texas 2000); In re Jane Doe 4, 19 S.W.3d 322 (Texas 2000); In re Jane Doe 4(II), 19 S.W.3d 337 (Texas 2000); In re Jane Doe 10, 45 Tex.Sup.J. 605 (Texas 2002). In the remaining five cases, In re Jane Doe 5 9, the court required notification but did not issue a written opinion. 18 National Abortion Federation Report on Priscilla Owen (undated manuscript) (hereinafter NAF Report), at 1. 19 Letter from Florence Shapiro to Patrick Leahy, July 15, 2002 (emphasis added). 20 410 U.S. 113 (1973). 21 Id. at 153 (emphasis added). 22 See Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 439 42 (1983); Bellotti v. Baird, 443 U.S. 622,643 (1979). 23 Jane Doe 1, 19 S.W.3d at 262 (Owen, J., concurring). 24 Jane Doe 2, 19 S.W.3d at 287 (Owen, J., concurring). 25 Lewis, "More Battles Loom Over Bush's Nominees for Judgeships," New York Times, April 7, 2002, at 24. 26 NAF Report at 2 3. 27 Jane Doe 4(II), 5 9. 28 Jane Doe 1, 1(II), 2, 3, 4, 10. 29 Jane Doe 1, 2, 4(II), 5 10. 30 Jane Doe 1(II), 3, 4. 31 Jane Doe 1(II), 3, 4, 4(II), 5 9. 32 Jane Doe 1, 2, 10. 33 Jane Doe 1(II), 3 4. 34 Texas Family Code, section 33.004. 35 "Unlike the court of appeals, our Court may only engage in legal sufficiency review." Jane Doe 1, 19 S.W.3d 249,253 (Texas 2000). 36 NAF Report at 3 ("the only case in which Owen did not vote to deny a girl her right to have an abortion without parental notification was a 2002 case decided after Owen was nominated to the 5th Circuit."). That case was Jane Doe 10. Needless to say, had Justice Owen voted to require notification in that case, NAF would simply have added that to the rest of its indictment. 37 Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000). 38 NAF Report at 4. 2 13 EXT-18-2091-C-000359 007104-001080 Document ID: 0.7.19343.5135-000004 NOTES 1 http://www.whitehouse.gov/news/releases/2001/05/20010509 3.html. U.S. Constitution, Article II, Section 2. 3 Such widespread support makes baffling the claim by one abortion extremist organization of "widespread criticism in Texas for [Justice Owen's] judicial record." National Women's Law Center, Justice Owen's Record Shows Hostility to Reproductive Rights, at 1, available at http://www.nwlc.org/details.cfm?id 1163§ion JCWR. 4 Editorial, Houston Chronicle, September 24, 2000, at 2. 5 Editorial, Dallas Morning News, October 26, 2000, at 18A. 6 Quoted in Houston Chronicle, May 10, 2001. 7 http://www.judicialselection.org/. 8 Gray, Priscilla Owen: A Restrained, Principled Jusrist, at 2. 9 Some far left groups claim that Justice Owen's judicial philosophy is the opposite of what President Bush has endorsed. See, e.g., People for the American Way, The Dissents OfPriscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It, at 1 (Justice Owen has "a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it."). The report is available at http://www.pfaw.org/issues/judiciary/owen/report/. It strains credibility for groups that have fought aggressively against appointment of restrained judges for many years to act as arbiters of what they oppose. 10 "Topics of the Times: The Senate's Judicial Farce," New York Times, February 17, 1998, at A18. 11 Kairys, "Clinton's Judicial Retreat: When Naming Judges, He Is Quick to Cave," Washington Post, September 7, 1997, at C1. 12 Newman, "Misdiagnosing Courts' Problems," New York Times, January 6, 1998, at A19. 13 Saad, "Public Opinion Abourt Abortion An In Depth Review," available at http://www.gallup.com/poll/specialReports/pollSummaries/sr020122ii.asp. 14 Quoted in Lewis, "More Battles Loom Over Bush's Nominees for Judgeships," New York Times, April 7, 2002, at 24. 15 Texas Family Code, section 33.002(1). 16 Texas Family Code, section 33.003. 17 In re Jane Doe 1, 19 S.W.3d 249 (Texas 2000); In re Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000); In re Jane Doe 2, 19 S.W.3d 278 (Texas 2000); In re Jane Doe 3, 19 S.W.3d 300 (Texas 2000); In re Jane Doe 4, 19 S.W.3d 322 (Texas 2000); In re Jane Doe 4(II), 19 S.W.3d 337 (Texas 2000); In re Jane Doe 10, 45 Tex.Sup.J. 605 (Texas 2002). In the remaining five cases, In re Jane Doe 5 9, the court required notification but did not issue a written opinion. 18 National Abortion Federation Report on Priscilla Owen (undated manuscript) (hereinafter NAF Report), at 1. 19 Letter from Florence Shapiro to Patrick Leahy, July 15, 2002 (emphasis added). 20 410 U.S. 113 (1973). 21 Id. at 153 (emphasis added). 22 See Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 439 42 (1983); Bellotti v. Baird, 443 U.S. 622,643 (1979). 23 Jane Doe 1, 19 S.W.3d at 262 (Owen, J., concurring). 24 Jane Doe 2, 19 S.W.3d at 287 (Owen, J., concurring). 25 Lewis, "More Battles Loom Over Bush's Nominees for Judgeships," New York Times, April 7, 2002, at 24. 26 NAF Report at 2 3. 27 Jane Doe 4(II), 5 9. 28 Jane Doe 1, 1(II), 2, 3, 4, 10. 29 Jane Doe 1, 2, 4(II), 5 10. 30 Jane Doe 1(II), 3, 4. 31 Jane Doe 1(II), 3, 4, 4(II), 5 9. 32 Jane Doe 1, 2, 10. 33 Jane Doe 1(II), 3 4. 34 Texas Family Code, section 33.004. 35 "Unlike the court of appeals, our Court may only engage in legal sufficiency review." Jane Doe 1, 19 S.W.3d 249,253 (Texas 2000). 36 NAF Report at 3 ("the only case in which Owen did not vote to deny a girl her right to have an abortion without parental notification was a 2002 case decided after Owen was nominated to the 5th Circuit."). That case was Jane Doe 10. Needless to say, had Justice Owen voted to require notification in that case, NAF would simply have added that to the rest of its indictment. 37 Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000). 38 NAF Report at 4. 2 13 EXT-18-2091-C-000359 007104-001080 Document ID: 0.7.19343.5135-000004 39 Id. at 2. Id. at 4. 41 Id. at 3. 42 19 S.W.3d 249 (Texas 2000). 43 Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000). 44 Id. at 367. 45 Id. at 376. 46 Id. at 383. 47 Jane Doe 4, 19 S.W.3d 322,327 (Texas 2000) (Hecht, J., dissenting). 48 Id. at 328. 49 Id. 50 Jane Doe 1(II), 19 S.W.3d at 365 66 (Gonzalez, J., concurring). 51 Id. at 366. 52 See, e.g., NAF Report at 2 ("Alberto Gonzalez...described her opinion as 'an unconscionable act of judicial activism.'"); National Abortion Rights Action League, Priscilla Owen: Nominee for United States Court ofAppeals For the Fifth Circuit, at 1 (what...Alberto Gonzalez called an 'unconscionable act of judicial activism.'")(emphasis in original)(hereinafter NARAL Report), available at http://www.naral.org/mediaresources/fact/pdfs/powen report.pdf. 53 PFAW Report at 1. 54 NAF Report at 5. 55 19 S.W.3d 278 (Texas 2000). 56 Texas Family Code, section 33.001. 57 520 U.S. 292 (1997) (per curiam). 58 Id. at 297 (emphasis added). 59 Id. at 298. 60 Id. at 302 (Stevens, J., concurring in the judgment). 61 Jane Doe 4(II), 19 S.W.3d at 340. 62 Id. 63 NAF Report at 6. 64 Id. 65 19 S.W.3d 346 (Texas 2000). 66 Wisdom v. Smith, 209 S.W.2d 164,166 67 (Texas 1948). 67 Doe 1(II), 19 S.W.3d 346,383 (Owen, J., dissenting). 68 NAF Report at 7. 69 Texas Family Code, section 151.003(b). 70 19 S.W.3d 322 (Texas 2000). 71 Jane Doe 4(II), 19 S.W.3d 337 (Texas 2000). 72 NAF Report at 7 (emphasis in NAF Report). 73 Jane Doe 1, 19 S.W.3d at 335 (Owen, J., dissenting)(emphasis added). 74 Napoli v. Sears, Roebuck & Co., 835 F.Supp. 1053,1063 (N.D.Ill. 1993). 75 Angelico v. Lehigh Valley Hospital Assoc., No.CIV.A 96 2861, 1996 WL 524112, at *4 *5 (E.D.Penn. Sept. 13, 1996). 76 NAF Report at 8. 77 Id. at 9. 78 19 S.W.3d 249 (Texas 2000). 79 Id. at 264 (Owen, J., concurring). 80 Id. 81 NAF Report at 9. 82 Id. at 5 6. 83 The ABA endorsed the Uniform Abortion Act and the Equal Rights Amendment in 1972, federal and state legislation to finance abortions for poor women in 1978, and the agenda of the United Nations Women's Conference in Beijing in 1996. See Jipping, Selecting and Confirming Federal Judges: What Has Gone Wrong? (1997), at 23. 84 Id. 85 American Bar Association, The ABA Standing Committee on Federal Judiciary: What It Is and How It Works, at 4 5, available at http://www.abanet.org/scfedjud/backgrounder.html. 40 14 EXT-18-2091-C-000360 007104-001081 Document ID: 0.7.19343.5135-000004 39 Id. at 2. Id. at 4. 41 Id. at 3. 42 19 S.W.3d 249 (Texas 2000). 43 Jane Doe 1(II), 19 S.W.3d 346 (Texas 2000). 44 Id. at 367. 45 Id. at 376. 46 Id. at 383. 47 Jane Doe 4, 19 S.W.3d 322,327 (Texas 2000) (Hecht, J., dissenting). 48 Id. at 328. 49 Id. 50 Jane Doe 1(II), 19 S.W.3d at 365 66 (Gonzalez, J., concurring). 51 Id. at 366. 52 See, e.g., NAF Report at 2 ("Alberto Gonzalez...described her opinion as 'an unconscionable act of judicial activism.'"); National Abortion Rights Action League, Priscilla Owen: Nominee for United States Court ofAppeals For the Fifth Circuit, at 1 (what...Alberto Gonzalez called an 'unconscionable act of judicial activism.'")(emphasis in original)(hereinafter NARAL Report), available at http://www.naral.org/mediaresources/fact/pdfs/powen report.pdf. 53 PFAW Report at 1. 54 NAF Report at 5. 55 19 S.W.3d 278 (Texas 2000). 56 Texas Family Code, section 33.001. 57 520 U.S. 292 (1997) (per curiam). 58 Id. at 297 (emphasis added). 59 Id. at 298. 60 Id. at 302 (Stevens, J., concurring in the judgment). 61 Jane Doe 4(II), 19 S.W.3d at 340. 62 Id. 63 NAF Report at 6. 64 Id. 65 19 S.W.3d 346 (Texas 2000). 66 Wisdom v. Smith, 209 S.W.2d 164,166 67 (Texas 1948). 67 Doe 1(II), 19 S.W.3d 346,383 (Owen, J., dissenting). 68 NAF Report at 7. 69 Texas Family Code, section 151.003(b). 70 19 S.W.3d 322 (Texas 2000). 71 Jane Doe 4(II), 19 S.W.3d 337 (Texas 2000). 72 NAF Report at 7 (emphasis in NAF Report). 73 Jane Doe 1, 19 S.W.3d at 335 (Owen, J., dissenting)(emphasis added). 74 Napoli v. Sears, Roebuck & Co., 835 F.Supp. 1053,1063 (N.D.Ill. 1993). 75 Angelico v. Lehigh Valley Hospital Assoc., No.CIV.A 96 2861, 1996 WL 524112, at *4 *5 (E.D.Penn. Sept. 13, 1996). 76 NAF Report at 8. 77 Id. at 9. 78 19 S.W.3d 249 (Texas 2000). 79 Id. at 264 (Owen, J., concurring). 80 Id. 81 NAF Report at 9. 82 Id. at 5 6. 83 The ABA endorsed the Uniform Abortion Act and the Equal Rights Amendment in 1972, federal and state legislation to finance abortions for poor women in 1978, and the agenda of the United Nations Women's Conference in Beijing in 1996. See Jipping, Selecting and Confirming Federal Judges: What Has Gone Wrong? (1997), at 23. 84 Id. 85 American Bar Association, The ABA Standing Committee on Federal Judiciary: What It Is and How It Works, at 4 5, available at http://www.abanet.org/scfedjud/backgrounder.html. 40 14 EXT-18-2091-C-000360 007104-001081 Document ID: 0.7.19343.5135-000004 86 NAF Report at 9. 19 S.W.3d 278 (Texas 2000). 88 19 S.W.3d 300 (Texas 2000). 89 See Jane Doe 3, 19 S.W.3d at 312 (Hecht, J., dissenting). 90 The U.S. Supreme Court has held that "[i]dentical words used in different parts of the same act are intended to have the same meaning." Stenberg v. Carhart, 530 U.S. 914,944 (2000) (citation omitted). 91 Texas Family Code, section 261.001(1)(A). 92 NAF Report at 10. 93 19 S.W.3d 249 (Texas 2000). 94 Id. at 263 (Owen, J., concurring). 95 505 U.S. 833 (1992). 96 Id. at 872 73 (plurality opinion). 97 Jane Doe 1, 19 S.W.3d at 264 (Owen, J., concurring). 98 NAF Report at 10 (emphasis in NAF Report). Other abortion extremist groups make the same accusation, using even more severely edited versions of Justice Owen's actual position. See, e.g., NARAL Report at 2,5. 99 Jane Doe 1, 19 S.W.3d at 264 65. 100 NAF Report at 2. 101 975 S.W.2d 546 (Texas 1998). 102 Id. at 570. 103 Quoted in Austin American Statesman, July 4, 1998, at B2. 104 Quoted in Houston Chronicle, July 4, 1998, at A1. 87 15 EXT-18-2091-C-000361 007104-001082 Document ID: 0.7.19343.5135-000004 86 NAF Report at 9. 19 S.W.3d 278 (Texas 2000). 88 19 S.W.3d 300 (Texas 2000). 89 See Jane Doe 3, 19 S.W.3d at 312 (Hecht, J., dissenting). 90 The U.S. Supreme Court has held that "[i]dentical words used in different parts of the same act are intended to have the same meaning." Stenberg v. Carhart, 530 U.S. 914,944 (2000) (citation omitted). 91 Texas Family Code, section 261.001(1)(A). 92 NAF Report at 10. 93 19 S.W.3d 249 (Texas 2000). 94 Id. at 263 (Owen, J., concurring). 95 505 U.S. 833 (1992). 96 Id. at 872 73 (plurality opinion). 97 Jane Doe 1, 19 S.W.3d at 264 (Owen, J., concurring). 98 NAF Report at 10 (emphasis in NAF Report). Other abortion extremist groups make the same accusation, using even more severely edited versions of Justice Owen's actual position. See, e.g., NARAL Report at 2,5. 99 Jane Doe 1, 19 S.W.3d at 264 65. 100 NAF Report at 2. 101 975 S.W.2d 546 (Texas 1998). 102 Id. at 570. 103 Quoted in Austin American Statesman, July 4, 1998, at B2. 104 Quoted in Houston Chronicle, July 4, 1998, at A1. 87 15 EXT-18-2091-C-000361 007104-001082 Document ID: 0.7.19343.5135-000004 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 23, 2002 8:48 AM To: Goodling, Monica; Cc: 'Kristi_l._Remington@usdoj.gov '; 'Steve_Koebele@usdoj.gov'; Sales, Nathan Subje ct : RE: copies of Owen opening statement at hearing 'Brett_M._Kavanaugh@who.eop.gov' that is right. Thanks , Monica. BTW, Manny expressed great thanks that you will work with Margarita at the hearing. Thanks much. -Original Message-From: Goodling, Monica Sent: Tuesday, July 23, 2002 12:4S AM To: 'donandt iff@yahoo.com '; ' Brett_ M._ Kavanaugh@who.eop.gov ' Cc: Dinh, Viet; 'Kristi_L._Remington@usdoj .gov'; 'Steve_Koebele@usdoj.gov '; Sales , Nathan Subject: Re: copies of Owen opening statement at hearing Nancy emailed me a version she said was final, which I just read - it left open a spot for naming friends who were there. Assumin g this is the final (despite that one hole) , I'll take it copied with me and will coordinate han ding it out ... EXT-18-2091-C-000362 007104-001083 Document ID: 0.7.19343.8127 Dinh, Viet From : Dinh, Viet Sent : Tuesday, July 23, 2002 8:48 AM To: Goodling, Monica; Cc: 'Kristi_l._Remington@usdoj.gov '; 'Steve_Koebele@usdoj.gov'; Sales, Nathan Subje ct : RE: copies of Owen opening statement at hearing 'Brett_M._Kavanaugh@who.eop.gov' that is right. Thanks , Monica. BTW, Manny expressed great thanks that you will work with Margarita at the hearing. Thanks much. -Original Message-From: Goodling, Monica Sent: Tuesday, July 23, 2002 12:4S AM To: 'donandt iff@yahoo.com '; ' Brett_ M._ Kavanaugh@who.eop.gov ' Cc: Dinh, Viet; 'Kristi_L._Remington@usdoj .gov'; 'Steve_Koebele@usdoj.gov '; Sales , Nathan Subject: Re: copies of Owen opening statement at hearing Nancy emailed me a version she said was final, which I just read - it left open a spot for naming friends who were there. Assumin g this is the final (despite that one hole) , I'll take it copied with me and will coordinate han ding it out ... EXT-18-2091-C-000362 007104-001083 Document ID: 0.7.19343.8127 Willett, Don From: Sent: To: Subject: Importance: Willett, Don Tuesday, July 30, 2002 4:38 PM Dinh, Viet; Charnes, Adam; Keefer, Wendy J; O'Brien, Pat; Brett Kavanaugh (E-mail); Heather Wingate (E-mail); Anne Womack (E-mail); Goodling, Monica; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Joy, Sheila FW: per Manny: OWEN IS ON COMMITTEE MARK-UP FOR TOMORROW!!! High Follow-up questions received thus far: ? ? ? ? Kennedy -- rec'd today (Tues., 7-30-02) @ 9:20 a.m. Feingold -- rec'd yesterday (Mon., 7-29-02) @ 3:28 p.m. Schumer -- rec'd Thurs., July 25 @ 2:05 p.m. Leahy -- also rec'd Thurs., July 25 @ 2:05 p.m. (These are the dates/times when Sheila rec'd the e-mails.) DRW -----Original Message----From: Willett, Don Sent: Tuesday, July 30, 2002 4:19 PM To: Dinh, Viet; Charnes, Adam; Keefer, Wendy J; O'Brien, Pat; Brett Kavanaugh (E-mail); Heather Wingate (E-mail); Anne Womack (E-mail); Goodling, Monica; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Joy, Sheila per Manny: OWEN IS ON COMMITTEE MARK-UP FOR TOMORROW!!! Subject: Importance: High Manny just left me a voicemail saying: 1. 2. this week's Committee mark-up was moved up to Wed. @ 9:30 a.m. (tomorrow); and Owen is on it He says we should raise holy hades that Owen hasn't even had time to respond to written follow-up questions (despite Leahy's assurances that she'd have that opportunity). He also advises that, assuming we want her held over, to be sure we have TWO GOP Senators ready and present to hold her over, not just one. Brett and Heather, have you heard about this? DRW EXT-18-2091-C-000363 007104-001084 Document ID: 0.7.19343.8162 Willett, Don From: Sent: To: Subject: Importance: Willett, Don Tuesday, July 30, 2002 4:38 PM Dinh, Viet; Charnes, Adam; Keefer, Wendy J; O'Brien, Pat; Brett Kavanaugh (E-mail); Heather Wingate (E-mail); Anne Womack (E-mail); Goodling, Monica; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Joy, Sheila FW: per Manny: OWEN IS ON COMMITTEE MARK-UP FOR TOMORROW!!! High Follow-up questions received thus far: ? ? ? ? Kennedy -- rec'd today (Tues., 7-30-02) @ 9:20 a.m. Feingold -- rec'd yesterday (Mon., 7-29-02) @ 3:28 p.m. Schumer -- rec'd Thurs., July 25 @ 2:05 p.m. Leahy -- also rec'd Thurs., July 25 @ 2:05 p.m. (These are the dates/times when Sheila rec'd the e-mails.) DRW -----Original Message----From: Willett, Don Sent: Tuesday, July 30, 2002 4:19 PM To: Dinh, Viet; Charnes, Adam; Keefer, Wendy J; O'Brien, Pat; Brett Kavanaugh (E-mail); Heather Wingate (E-mail); Anne Womack (E-mail); Goodling, Monica; Remington, Kristi L; Sales, Nathan; Koebele, Steve; Joy, Sheila per Manny: OWEN IS ON COMMITTEE MARK-UP FOR TOMORROW!!! Subject: Importance: High Manny just left me a voicemail saying: 1. 2. this week's Committee mark-up was moved up to Wed. @ 9:30 a.m. (tomorrow); and Owen is on it He says we should raise holy hades that Owen hasn't even had time to respond to written follow-up questions (despite Leahy's assurances that she'd have that opportunity). He also advises that, assuming we want her held over, to be sure we have TWO GOP Senators ready and present to hold her over, not just one. Brett and Heather, have you heard about this? DRW EXT-18-2091-C-000363 007104-001084 Document ID: 0.7.19343.8162 Dinh, Viet Dinh, Viet Wednesday, September 11, 2002 11:47 AM Dinh, Viet; Charnes, Adam; 'Miguel Estrada (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Sutton, Jason Cc: Willett, Don Subject: RE: Prep Session for Hearing Attachments: waxman-lee.wpd From: Sent: To: Miguel, (b) (5) Copyright 1997 American Lawyer Newspapers Group Inc. Legal Times November 10, 1997, Monday SECTION: VERBATIM; Pg. 16 LENGTH: 1611 words HEADLINE: ANSWERING TO AFFIRMATIVE ACTION BODY: Bill Lann Lee and Seth Waxman gave substantially similar testimony on civil rights matters at their respective confirmation hearings before the Senate Judiciary Committee. Yet their handling of affirmative action questions differed considerably in style, and now they face far different fates. Waxman, President Bill Clinton's nominee to be solicitor general, reassured senators of his willingness to defend virtually any law Congress passes, and he did not enthusiastically go to bat for controversial administration stances on racial preferences. In contrast, Lee, western regional counsel to the NAACPLegal Defense and Educational Fund Inc. and Clinton's pick to head the Justice Department's Civil Rights Division, went so far as to state his personal disagreement with a hot-button Supreme Court ruling. Waxman's nomination sailed through committee the day after his testimony, while Lee has seen his prospects dim significantly since his hearing. Panel Democrats were forced to delay voting and the White House launched an uphill lobbying blitz to get him through. The impact of their testimony is difficult to gauge. The two jobs are very different, with civil EXT-18-2091-C-000364 007104-001085 Document ID: 0.7.19343.8265 Dinh, Viet Dinh, Viet Wednesday, September 11, 2002 11:47 AM Dinh, Viet; Charnes, Adam; 'Miguel Estrada (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Sutton, Jason Cc: Willett, Don Subject: RE: Prep Session for Hearing Attachments: waxman-lee.wpd From: Sent: To: Miguel, (b) (5) Copyright 1997 American Lawyer Newspapers Group Inc. Legal Times November 10, 1997, Monday SECTION: VERBATIM; Pg. 16 LENGTH: 1611 words HEADLINE: ANSWERING TO AFFIRMATIVE ACTION BODY: Bill Lann Lee and Seth Waxman gave substantially similar testimony on civil rights matters at their respective confirmation hearings before the Senate Judiciary Committee. Yet their handling of affirmative action questions differed considerably in style, and now they face far different fates. Waxman, President Bill Clinton's nominee to be solicitor general, reassured senators of his willingness to defend virtually any law Congress passes, and he did not enthusiastically go to bat for controversial administration stances on racial preferences. In contrast, Lee, western regional counsel to the NAACPLegal Defense and Educational Fund Inc. and Clinton's pick to head the Justice Department's Civil Rights Division, went so far as to state his personal disagreement with a hot-button Supreme Court ruling. Waxman's nomination sailed through committee the day after his testimony, while Lee has seen his prospects dim significantly since his hearing. Panel Democrats were forced to delay voting and the White House launched an uphill lobbying blitz to get him through. The impact of their testimony is difficult to gauge. The two jobs are very different, with civil EXT-18-2091-C-000364 007104-001085 Document ID: 0.7.19343.8265 rights issues obviously looming far larger for Lee's post than for Waxman's. Still, the two performances, viewed side by side, offer a textbook lesson on how to answer affirmative action questions before a Republican committee--and how not to--and may help explain why one nominee is in trouble, and the other is not. The following are excerpts from unofficial transcripts of Lee's Oct. 22 hearing and Waxman's Nov. 5 hearing dealing with the Supreme Court's holding in Adarand Constructors Inc. v. Pena--which applied the strict scrutiny standard to federal affirmative action programs--and the constitutionality of Proposition 209, the California ballot initiative that bans state affirmative action programs. BILLLANN LEE Adarand Constructors Inc. v. Pena Senate Judiciary Committee Chairman Orrin Hatch (R-Utah)asked how Lee would describe the Supreme Court's holdings in Richmond v. J.A. Croson Co. and Adarand Constructors Inc. v. Pena, which limited federal affirmative action programs. Lee initially seemed to characterize the decisions as defending preference programs and practically had to be directed to the answer that committee Republicans wanted to hear. Lee: My understanding of the Croson and Adarand cases is that they epitomize the Supreme Court's view that, in general, affirmative action programs can be appropriate if they are conducted in a limited and measured manner. Hatch:These cases would also stand for the proposition, wouldn't they, that strict scrutiny would be required in all governmental racial classification matters? Lee:Yes, that is correct, that strict scrutiny is required and that properly designed and properly implemented affirmative action programs are consistent with the strict scrutiny test under the 14th Amendment and Fifth Amendment. Hatch: Would you agree that Adarand stands for the proposition . . . that state-imposed racial distinctions are presumptively unconstitutional, that that presumption can be overcome only by a strong basis in evidence of a compelling interest and should be narrowly tailored? Have Istated that pretty correctly? Lee: Yes, and Iagree with that. Later in the hearing, Sen. Jeff Sessions (R-Ala.) asked what Lee personally thought of the Adarand decision and whether he would seek to strengthen or narrow it. Lee made no secret of his distaste for the Court's holding. Lee:I would seek to enforce it and give it full effect. My personal view is that I thought that the prior Supreme Court precedent . . . which gave full force to the important role that Congress has in enforcing the protections of the 14th Amendment, is a strong one. . . . And for that reason, EXT-18-2091-C-000365 007104-001086 Document ID: 0.7.19343.8265 rights issues obviously looming far larger for Lee's post than for Waxman's. Still, the two performances, viewed side by side, offer a textbook lesson on how to answer affirmative action questions before a Republican committee--and how not to--and may help explain why one nominee is in trouble, and the other is not. The following are excerpts from unofficial transcripts of Lee's Oct. 22 hearing and Waxman's Nov. 5 hearing dealing with the Supreme Court's holding in Adarand Constructors Inc. v. Pena--which applied the strict scrutiny standard to federal affirmative action programs--and the constitutionality of Proposition 209, the California ballot initiative that bans state affirmative action programs. BILLLANN LEE Adarand Constructors Inc. v. Pena Senate Judiciary Committee Chairman Orrin Hatch (R-Utah)asked how Lee would describe the Supreme Court's holdings in Richmond v. J.A. Croson Co. and Adarand Constructors Inc. v. Pena, which limited federal affirmative action programs. Lee initially seemed to characterize the decisions as defending preference programs and practically had to be directed to the answer that committee Republicans wanted to hear. Lee: My understanding of the Croson and Adarand cases is that they epitomize the Supreme Court's view that, in general, affirmative action programs can be appropriate if they are conducted in a limited and measured manner. Hatch:These cases would also stand for the proposition, wouldn't they, that strict scrutiny would be required in all governmental racial classification matters? Lee:Yes, that is correct, that strict scrutiny is required and that properly designed and properly implemented affirmative action programs are consistent with the strict scrutiny test under the 14th Amendment and Fifth Amendment. Hatch: Would you agree that Adarand stands for the proposition . . . that state-imposed racial distinctions are presumptively unconstitutional, that that presumption can be overcome only by a strong basis in evidence of a compelling interest and should be narrowly tailored? Have Istated that pretty correctly? Lee: Yes, and Iagree with that. Later in the hearing, Sen. Jeff Sessions (R-Ala.) asked what Lee personally thought of the Adarand decision and whether he would seek to strengthen or narrow it. Lee made no secret of his distaste for the Court's holding. Lee:I would seek to enforce it and give it full effect. My personal view is that I thought that the prior Supreme Court precedent . . . which gave full force to the important role that Congress has in enforcing the protections of the 14th Amendment, is a strong one. . . . And for that reason, EXT-18-2091-C-000365 007104-001086 Document ID: 0.7.19343.8265 Ifelt that that decision was not one that Iagreed with. But that has nothing to do with the fact that if I am confirmed, I would enforce it. Proposition 209 In response to questions from Hatch, Lee stated that he agrees with the position of the JusticeDepartment that Proposition 209--a California ballot initiative banning state affirmative action programs--may be unconstitutional. Lee: I agree with the position taken by the administration that 209 . . . has to be measured against the 14th Amendment and that there are serious legal issues concerning its constitutionality. In particular, it should be determined whether 209 distorts the decision-making process in the state of California to disadvantage women and minorities who are the beneficiaries of affirmative action programs. Hatch objected to this line of reasoning, but Lee stood his ground. Lee: Well, Senator, I have stated that Ihave a different view, but I understand that this is an issue that has proved to be controversial and that there are legitimate differing views. As they discussed the issue, Hatch, who earlier had offered warm words of praise for Lee, grew irritated. Hatch:You see, Icome from a position here where Iwant to support the president, and I want to support your nomination, but this is not some insignificant, itty-bitty issue. This is one of the most important issues in our country. And it's hard for me to see, where a proposition says, the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting, ' how that is anything but a reinforcement of the 14th Amendment. . . . Lee:Well, Mr. Chairman, . . . I recognize the importance of this question. I realize that you have argued very well that position. I would point out that this administration, in my opinion, has also argued very well in its brief a different position . . . and I think this is an issue in which people have disagreed. If Iam confirmed as assistant attorney general, the Department of Justice Civil Rights Division will enforce the law as the courts have decided. " Since the hearing, the Supreme Court has declined to hear the challenge to Proposition 209. SETHWAXMAN Adarand Constructors Inc. v. Pena Waxman's description of Adarand, unlike Lee's, did not seek to characterize the decision primarily as protective of federal affirmative action programs. EXT-18-2091-C-000366 007104-001087 Document ID: 0.7.19343.8265 Ifelt that that decision was not one that Iagreed with. But that has nothing to do with the fact that if I am confirmed, I would enforce it. Proposition 209 In response to questions from Hatch, Lee stated that he agrees with the position of the JusticeDepartment that Proposition 209--a California ballot initiative banning state affirmative action programs--may be unconstitutional. Lee: I agree with the position taken by the administration that 209 . . . has to be measured against the 14th Amendment and that there are serious legal issues concerning its constitutionality. In particular, it should be determined whether 209 distorts the decision-making process in the state of California to disadvantage women and minorities who are the beneficiaries of affirmative action programs. Hatch objected to this line of reasoning, but Lee stood his ground. Lee: Well, Senator, I have stated that Ihave a different view, but I understand that this is an issue that has proved to be controversial and that there are legitimate differing views. As they discussed the issue, Hatch, who earlier had offered warm words of praise for Lee, grew irritated. Hatch:You see, Icome from a position here where Iwant to support the president, and I want to support your nomination, but this is not some insignificant, itty-bitty issue. This is one of the most important issues in our country. And it's hard for me to see, where a proposition says, the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting, ' how that is anything but a reinforcement of the 14th Amendment. . . . Lee:Well, Mr. Chairman, . . . I recognize the importance of this question. I realize that you have argued very well that position. I would point out that this administration, in my opinion, has also argued very well in its brief a different position . . . and I think this is an issue in which people have disagreed. If Iam confirmed as assistant attorney general, the Department of Justice Civil Rights Division will enforce the law as the courts have decided. " Since the hearing, the Supreme Court has declined to hear the challenge to Proposition 209. SETHWAXMAN Adarand Constructors Inc. v. Pena Waxman's description of Adarand, unlike Lee's, did not seek to characterize the decision primarily as protective of federal affirmative action programs. EXT-18-2091-C-000366 007104-001087 Document ID: 0.7.19343.8265 Hatch:Can you describe for the committee your understanding of the Court's decision in the Adarand case?Let me just say, would you agree that racial preferences should be used only in narrow circumstances and that they should be subject to strict scrutiny? Waxman:Absolutely. The Supreme Court in Adarand and Croson has made it absolutely clear that affirmative action programs are invalid under the Constitution unless they serve a compelling interest and are narrowly tailored to achieve that compelling interest. There's no doubt about that. Later, Sen. Edward Kennedy (D-Mass.)--without specific reference to affirmative action--asked whether Waxman would be able to defend laws that violate his personal convictions or philosophies. Waxman strongly emphasized that his personal views did not matter. Waxman: Senator, my personal philosophies are entirely irrelevant to the decisions that I make as solicitor general. In fact, my own policy views-- forget philosophical views--are irrelevant. The policies of the United States are set by Congress and the president and those that the president delegated policy-making authority to. The solicitor general is not a substantive policymaker. Proposition 209 Like Lee, Waxman did not back off from the department's position on Proposition 209. But he also did not go to bat for it--except to argue that he thought it was a reasonable position. In response to questions from Hatch, Waxman even suggested that he would defend a federal equivalent to the California ballot initiative. Waxman: The United States did file a brief in the Court of Appeals, Mr. Chairman, as you've noted, and stated the position of the United States with respect to that case. The 9th Circuit decided differently. The Supreme Court has denied cert. The 9th Circuit decision is now the rule of law in California. And I certainly agree that this is an issue, and a very important issue, on which reasonable minds can differ. Hatch: So you think there are arguments in strong support of Proposition 209's constitutionality as well. Waxman: I do. I think the United States has filed a brief, prior to my becoming acting solicitor general, in which the United States argued that the proposition was unconstitutional. That is the position of the United States, but the Court has ruled, and I don't think anybody can really deny that there are reasonable arguments on both sides of an important issue like this. Hatch:Given your answer, assuming arguendo that Congress were to pass an act which prohibited racial or gender preferences in federal contracts or hiring, and President Clinton were to veto that act, and Congress were to override that veto, would you defend the constitutionality of that statute? Waxman: Senator, . . . I would and will defend the constitutionality of any statute that is passed EXT-18-2091-C-000367 007104-001088 Document ID: 0.7.19343.8265 Hatch:Can you describe for the committee your understanding of the Court's decision in the Adarand case?Let me just say, would you agree that racial preferences should be used only in narrow circumstances and that they should be subject to strict scrutiny? Waxman:Absolutely. The Supreme Court in Adarand and Croson has made it absolutely clear that affirmative action programs are invalid under the Constitution unless they serve a compelling interest and are narrowly tailored to achieve that compelling interest. There's no doubt about that. Later, Sen. Edward Kennedy (D-Mass.)--without specific reference to affirmative action--asked whether Waxman would be able to defend laws that violate his personal convictions or philosophies. Waxman strongly emphasized that his personal views did not matter. Waxman: Senator, my personal philosophies are entirely irrelevant to the decisions that I make as solicitor general. In fact, my own policy views-- forget philosophical views--are irrelevant. The policies of the United States are set by Congress and the president and those that the president delegated policy-making authority to. The solicitor general is not a substantive policymaker. Proposition 209 Like Lee, Waxman did not back off from the department's position on Proposition 209. But he also did not go to bat for it--except to argue that he thought it was a reasonable position. In response to questions from Hatch, Waxman even suggested that he would defend a federal equivalent to the California ballot initiative. Waxman: The United States did file a brief in the Court of Appeals, Mr. Chairman, as you've noted, and stated the position of the United States with respect to that case. The 9th Circuit decided differently. The Supreme Court has denied cert. The 9th Circuit decision is now the rule of law in California. And I certainly agree that this is an issue, and a very important issue, on which reasonable minds can differ. Hatch: So you think there are arguments in strong support of Proposition 209's constitutionality as well. Waxman: I do. I think the United States has filed a brief, prior to my becoming acting solicitor general, in which the United States argued that the proposition was unconstitutional. That is the position of the United States, but the Court has ruled, and I don't think anybody can really deny that there are reasonable arguments on both sides of an important issue like this. Hatch:Given your answer, assuming arguendo that Congress were to pass an act which prohibited racial or gender preferences in federal contracts or hiring, and President Clinton were to veto that act, and Congress were to override that veto, would you defend the constitutionality of that statute? Waxman: Senator, . . . I would and will defend the constitutionality of any statute that is passed EXT-18-2091-C-000367 007104-001088 Document ID: 0.7.19343.8265 that becomes law, whether by the pres ident's s ignature or over a veto, if any reasonable arguments can be made in support of it. --Com piled by Benjam in Wittes ---O riginal Message--Dinh, Viet Wednesday, September 11, 2002 10 :46 AM To: Chames, Adam; 'Miguel Estrada (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Sutton, Jason Cc: Willet t, Don Subject RE: Prep Session for Hearing From: Sent: Jason, is th is a conflict for me? I see a hold for Stuart Eisenstat and Bob Jones. Thanks much, Viet ---O riginal Message-- Chames, Adam Wednesday, September 11, 2002 10 :35 AM To: Miguel Estrada (E-mail); Brett M. Kavanaugh (E-mail); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve Cc: Dinh, Viet ; Willett, Don Subject Prep Session for Hearing From: Sent: Assuming this time works for Brett, can we schedule our firs t prep sess ion for 2 pm on Tuesday, Se ptember 17 here at DOJ? We'll schedule the follow ing session for e ither later that week or early the next week. And, of course, this schedule is contingent on the hearing not being on September 19. Thanks. EXT-18-2091-C-000368 007104-001089 Document ID : 0 .7 .1934 3 .8265 that becomes law, whether by the pres ident's s ignature or over a veto, if any reasonable arguments can be made in support of it. --Com piled by Benjam in Wittes ---O riginal Message--Dinh, Viet Wednesday, September 11, 2002 10 :46 AM To: Chames, Adam; 'Miguel Estrada (E-mail)'; 'Brett M. Kavanaugh (E-mail)'; Benczkowski, Brian A; Sales, Nathan; Koebele, Steve; Sutton, Jason Cc: Willet t, Don Subject RE: Prep Session for Hearing From: Sent: Jason, is th is a conflict for me? I see a hold for Stuart Eisenstat and Bob Jones. Thanks much, Viet ---O riginal Message-- Chames, Adam Wednesday, September 11, 2002 10 :35 AM To: Miguel Estrada (E-mail); Brett M. Kavanaugh (E-mail); Benczkowski, Brian A; Sales, Nathan; Koebele, Steve Cc: Dinh, Viet ; Willett, Don Subject Prep Session for Hearing From: Sent: Assuming this time works for Brett, can we schedule our firs t prep sess ion for 2 pm on Tuesday, Se ptember 17 here at DOJ? We'll schedule the follow ing session for e ither later that week or early the next week. And, of course, this schedule is contingent on the hearing not being on September 19. Thanks. EXT-18-2091-C-000368 007104-001089 Document ID : 0 .7 .1934 3 .8265 Copyright 1997 American Lawyer Newspapers Group Inc. Legal Times November 10, 1997, Monday SECTION: VERBATIM; Pg. 16 LENGTH: 1611 words HEADLINE: ANSWERING TO AFFIRMATIVE ACTION BODY: Bill Lann Lee and Seth Waxman gave substantially similar testimony on civil rights matters at their respective confirmation hearings before the Senate Judiciary Committee. Yet their handling of affirmative action questions differed considerably in style, and now they face far different fates. Waxman, President Bill Clinton's nominee to be solicitor general, reassured senators of his willingness to defend virtually any law Congress passes, and he did not enthusiastically go to bat for controversial administration stances on racial preferences. In contrast, Lee, western regional counsel to the NAACPLegal Defense and Educational Fund Inc. and Clinton's pick to head the Justice Department's Civil Rights Division, went so far as to state his personal disagreement with a hot-button Supreme Court ruling. Waxman's nomination sailed through committee the day after his testimony, while Lee has seen his prospects dim significantly since his hearing. Panel Democrats were forced to delay voting and the White House launched an uphill lobbying blitz to get him through. The impact of their testimony is difficult to gauge. The two jobs are very different, with civil rights issues obviously looming far larger for Lee's post than for Waxman's. Still, the two performances, viewed side by side, offer a textbook lesson on how to answer affirmative action questions before a Republican committee--and how not to--and may help explain why one nominee is in trouble, and the other is not. The following are excerpts from unofficial transcripts of Lee's Oct. 22 hearing and Waxman's Nov. 5 hearing dealing with the Supreme Court's holding in Adarand Constructors Inc. v. Pena--which applied the strict scrutiny standard to federal affirmative action programs--and the constitutionality of Proposition 209, the California ballot initiative that bans state affirmative action programs. BILLLANN LEE Adarand Constructors Inc. v. Pena EXT-18-2091-C-000369 007104-001090 Document ID: 0.7.19343.8265-000001 Copyright 1997 American Lawyer Newspapers Group Inc. Legal Times November 10, 1997, Monday SECTION: VERBATIM; Pg. 16 LENGTH: 1611 words HEADLINE: ANSWERING TO AFFIRMATIVE ACTION BODY: Bill Lann Lee and Seth Waxman gave substantially similar testimony on civil rights matters at their respective confirmation hearings before the Senate Judiciary Committee. Yet their handling of affirmative action questions differed considerably in style, and now they face far different fates. Waxman, President Bill Clinton's nominee to be solicitor general, reassured senators of his willingness to defend virtually any law Congress passes, and he did not enthusiastically go to bat for controversial administration stances on racial preferences. In contrast, Lee, western regional counsel to the NAACPLegal Defense and Educational Fund Inc. and Clinton's pick to head the Justice Department's Civil Rights Division, went so far as to state his personal disagreement with a hot-button Supreme Court ruling. Waxman's nomination sailed through committee the day after his testimony, while Lee has seen his prospects dim significantly since his hearing. Panel Democrats were forced to delay voting and the White House launched an uphill lobbying blitz to get him through. The impact of their testimony is difficult to gauge. The two jobs are very different, with civil rights issues obviously looming far larger for Lee's post than for Waxman's. Still, the two performances, viewed side by side, offer a textbook lesson on how to answer affirmative action questions before a Republican committee--and how not to--and may help explain why one nominee is in trouble, and the other is not. The following are excerpts from unofficial transcripts of Lee's Oct. 22 hearing and Waxman's Nov. 5 hearing dealing with the Supreme Court's holding in Adarand Constructors Inc. v. Pena--which applied the strict scrutiny standard to federal affirmative action programs--and the constitutionality of Proposition 209, the California ballot initiative that bans state affirmative action programs. BILLLANN LEE Adarand Constructors Inc. v. Pena EXT-18-2091-C-000369 007104-001090 Document ID: 0.7.19343.8265-000001 Senate Judiciary Committee Chairman Orrin Hatch (R-Utah)asked how Lee would describe the Supreme Court's holdings in Richmond v. J.A. Croson Co. and Adarand Constructors Inc. v. Pena, which limited federal affirmative action programs. Lee initially seemed to characterize the decisions as defending preference programs and practically had to be directed to the answer that committee Republicans wanted to hear. Lee: My understanding of the Croson and Adarand cases is that they epitomize the Supreme Court's view that, in general, affirmative action programs can be appropriate if they are conducted in a limited and measured manner. Hatch:These cases would also stand for the proposition, wouldn't they, that strict scrutiny would be required in all governmental racial classification matters? Lee:Yes, that is correct, that strict scrutiny is required and that properly designed and properly implemented affirmative action programs are consistent with the strict scrutiny test under the 14th Amendment and Fifth Amendment. Hatch: Would you agree that Adarand stands for the proposition . . . that state-imposed racial distinctions are presumptively unconstitutional, that that presumption can be overcome only by a strong basis in evidence of a compelling interest and should be narrowly tailored? Have Istated that pretty correctly? Lee: Yes, and Iagree with that. Later in the hearing, Sen. Jeff Sessions (R-Ala.) asked what Lee personally thought of the Adarand decision and whether he would seek to strengthen or narrow it. Lee made no secret of his distaste for the Court's holding. Lee:I would seek to enforce it and give it full effect. My personal view is that I thought that the prior Supreme Court precedent . . . which gave full force to the important role that Congress has in enforcing the protections of the 14th Amendment, is a strong one. . . . And for that reason, Ifelt that that decision was not one that Iagreed with. But that has nothing to do with the fact that if I am confirmed, I would enforce it. Proposition 209 In response to questions from Hatch, Lee stated that he agrees with the position of the JusticeDepartment that Proposition 209--a California ballot initiative banning state affirmative action programs--may be unconstitutional. Lee: I agree with the position taken by the administration that 209 . . . has to be measured against the 14th Amendment and that there are serious legal issues concerning its constitutionality. In particular, it should be determined whether 209 distorts the decision-making process in the state of California to disadvantage women and minorities who are the beneficiaries of affirmative action programs. Hatch objected to this line of reasoning, but Lee stood his ground. EXT-18-2091-C-000370 007104-001091 Document ID: 0.7.19343.8265-000001 Senate Judiciary Committee Chairman Orrin Hatch (R-Utah)asked how Lee would describe the Supreme Court's holdings in Richmond v. J.A. Croson Co. and Adarand Constructors Inc. v. Pena, which limited federal affirmative action programs. Lee initially seemed to characterize the decisions as defending preference programs and practically had to be directed to the answer that committee Republicans wanted to hear. Lee: My understanding of the Croson and Adarand cases is that they epitomize the Supreme Court's view that, in general, affirmative action programs can be appropriate if they are conducted in a limited and measured manner. Hatch:These cases would also stand for the proposition, wouldn't they, that strict scrutiny would be required in all governmental racial classification matters? Lee:Yes, that is correct, that strict scrutiny is required and that properly designed and properly implemented affirmative action programs are consistent with the strict scrutiny test under the 14th Amendment and Fifth Amendment. Hatch: Would you agree that Adarand stands for the proposition . . . that state-imposed racial distinctions are presumptively unconstitutional, that that presumption can be overcome only by a strong basis in evidence of a compelling interest and should be narrowly tailored? Have Istated that pretty correctly? Lee: Yes, and Iagree with that. Later in the hearing, Sen. Jeff Sessions (R-Ala.) asked what Lee personally thought of the Adarand decision and whether he would seek to strengthen or narrow it. Lee made no secret of his distaste for the Court's holding. Lee:I would seek to enforce it and give it full effect. My personal view is that I thought that the prior Supreme Court precedent . . . which gave full force to the important role that Congress has in enforcing the protections of the 14th Amendment, is a strong one. . . . And for that reason, Ifelt that that decision was not one that Iagreed with. But that has nothing to do with the fact that if I am confirmed, I would enforce it. Proposition 209 In response to questions from Hatch, Lee stated that he agrees with the position of the JusticeDepartment that Proposition 209--a California ballot initiative banning state affirmative action programs--may be unconstitutional. Lee: I agree with the position taken by the administration that 209 . . . has to be measured against the 14th Amendment and that there are serious legal issues concerning its constitutionality. In particular, it should be determined whether 209 distorts the decision-making process in the state of California to disadvantage women and minorities who are the beneficiaries of affirmative action programs. Hatch objected to this line of reasoning, but Lee stood his ground. EXT-18-2091-C-000370 007104-001091 Document ID: 0.7.19343.8265-000001 Lee: Well, Senator, I have stated that Ihave a different view, but I understand that this is an issue that has proved to be controversial and that there are legitimate differing views. As they discussed the issue, Hatch, who earlier had offered warm words of praise for Lee, grew irritated. Hatch:You see, Icome from a position here where Iwant to support the president, and I want to support your nomination, but this is not some insignificant, itty-bitty issue. This is one of the most important issues in our country. And it's hard for me to see, where a proposition says, the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting, ' how that is anything but a reinforcement of the 14th Amendment. . . . Lee:Well, Mr. Chairman, . . . I recognize the importance of this question. I realize that you have argued very well that position. I would point out that this administration, in my opinion, has also argued very well in its brief a different position . . . and I think this is an issue in which people have disagreed. If Iam confirmed as assistant attorney general, the Department of Justice Civil Rights Division will enforce the law as the courts have decided. " Since the hearing, the Supreme Court has declined to hear the challenge to Proposition 209. SETHWAXMAN Adarand Constructors Inc. v. Pena Waxman's description of Adarand, unlike Lee's, did not seek to characterize the decision primarily as protective of federal affirmative action programs. Hatch:Can you describe for the committee your understanding of the Court's decision in the Adarand case?Let me just say, would you agree that racial preferences should be used only in narrow circumstances and that they should be subject to strict scrutiny? Waxman:Absolutely. The Supreme Court in Adarand and Croson has made it absolutely clear that affirmative action programs are invalid under the Constitution unless they serve a compelling interest and are narrowly tailored to achieve that compelling interest. There's no doubt about that. Later, Sen. Edward Kennedy (D-Mass.)--without specific reference to affirmative action--asked whether Waxman would be able to defend laws that violate his personal convictions or philosophies. Waxman strongly emphasized that his personal views did not matter. Waxman: Senator, my personal philosophies are entirely irrelevant to the decisions that I make as solicitor general. In fact, my own policy views-- forget philosophical views--are irrelevant. The policies of the United States are set by Congress and the president and those that the EXT-18-2091-C-000371 007104-001092 Document ID: 0.7.19343.8265-000001 Lee: Well, Senator, I have stated that Ihave a different view, but I understand that this is an issue that has proved to be controversial and that there are legitimate differing views. As they discussed the issue, Hatch, who earlier had offered warm words of praise for Lee, grew irritated. Hatch:You see, Icome from a position here where Iwant to support the president, and I want to support your nomination, but this is not some insignificant, itty-bitty issue. This is one of the most important issues in our country. And it's hard for me to see, where a proposition says, the state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting, ' how that is anything but a reinforcement of the 14th Amendment. . . . Lee:Well, Mr. Chairman, . . . I recognize the importance of this question. I realize that you have argued very well that position. I would point out that this administration, in my opinion, has also argued very well in its brief a different position . . . and I think this is an issue in which people have disagreed. If Iam confirmed as assistant attorney general, the Department of Justice Civil Rights Division will enforce the law as the courts have decided. " Since the hearing, the Supreme Court has declined to hear the challenge to Proposition 209. SETHWAXMAN Adarand Constructors Inc. v. Pena Waxman's description of Adarand, unlike Lee's, did not seek to characterize the decision primarily as protective of federal affirmative action programs. Hatch:Can you describe for the committee your understanding of the Court's decision in the Adarand case?Let me just say, would you agree that racial preferences should be used only in narrow circumstances and that they should be subject to strict scrutiny? Waxman:Absolutely. The Supreme Court in Adarand and Croson has made it absolutely clear that affirmative action programs are invalid under the Constitution unless they serve a compelling interest and are narrowly tailored to achieve that compelling interest. There's no doubt about that. Later, Sen. Edward Kennedy (D-Mass.)--without specific reference to affirmative action--asked whether Waxman would be able to defend laws that violate his personal convictions or philosophies. Waxman strongly emphasized that his personal views did not matter. Waxman: Senator, my personal philosophies are entirely irrelevant to the decisions that I make as solicitor general. In fact, my own policy views-- forget philosophical views--are irrelevant. The policies of the United States are set by Congress and the president and those that the EXT-18-2091-C-000371 007104-001092 Document ID: 0.7.19343.8265-000001 president delegated policy-making authority to. The solicitor general is not a substantive policymaker. Proposition 209 Like Lee, Waxman did not back off from the department's position on Proposition 209. But he also did not go to bat for it--except to argue that he thought it was a reasonable position. In response to questions from Hatch, Waxman even suggested that he would defend a federal equivalent to the California ballot initiative. Waxman: The United States did file a brief in the Court of Appeals, Mr. Chairman, as you've noted, and stated the position of the United States with respect to that case. The 9th Circuit decided differently. The Supreme Court has denied cert. The 9th Circuit decision is now the rule of law in California. And I certainly agree that this is an issue, and a very important issue, on which reasonable minds can differ. Hatch: So you think there are arguments in strong support of Proposition 209's constitutionality as well. Waxman: I do. I think the United States has filed a brief, prior to my becoming acting solicitor general, in which the United States argued that the proposition was unconstitutional. That is the position of the United States, but the Court has ruled, and I don't think anybody can really deny that there are reasonable arguments on both sides of an important issue like this. Hatch:Given your answer, assuming arguendo that Congress were to pass an act which prohibited racial or gender preferences in federal contracts or hiring, and President Clinton were to veto that act, and Congress were to override that veto, would you defend the constitutionality of that statute? Waxman: Senator, . . . I would and will defend the constitutionality of any statute that is passed that becomes law, whether by the president's signature or over a veto, if any reasonable arguments can be made in support of it. --Compiled by Benjamin Wittes EXT-18-2091-C-000372 007104-001093 Document ID: 0.7.19343.8265-000001 president delegated policy-making authority to. The solicitor general is not a substantive policymaker. Proposition 209 Like Lee, Waxman did not back off from the department's position on Proposition 209. But he also did not go to bat for it--except to argue that he thought it was a reasonable position. In response to questions from Hatch, Waxman even suggested that he would defend a federal equivalent to the California ballot initiative. Waxman: The United States did file a brief in the Court of Appeals, Mr. Chairman, as you've noted, and stated the position of the United States with respect to that case. The 9th Circuit decided differently. The Supreme Court has denied cert. The 9th Circuit decision is now the rule of law in California. And I certainly agree that this is an issue, and a very important issue, on which reasonable minds can differ. Hatch: So you think there are arguments in strong support of Proposition 209's constitutionality as well. Waxman: I do. I think the United States has filed a brief, prior to my becoming acting solicitor general, in which the United States argued that the proposition was unconstitutional. That is the position of the United States, but the Court has ruled, and I don't think anybody can really deny that there are reasonable arguments on both sides of an important issue like this. Hatch:Given your answer, assuming arguendo that Congress were to pass an act which prohibited racial or gender preferences in federal contracts or hiring, and President Clinton were to veto that act, and Congress were to override that veto, would you defend the constitutionality of that statute? Waxman: Senator, . . . I would and will defend the constitutionality of any statute that is passed that becomes law, whether by the president's signature or over a veto, if any reasonable arguments can be made in support of it. --Compiled by Benjamin Wittes EXT-18-2091-C-000372 007104-001093 Document ID: 0.7.19343.8265-000001 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday, September 12, 2002 10:40 PM To: Willett, Don; Remington, Kristi L; Sales , Nathan Subject : RE: McConnell and "pro-God" groups ' efforts Attachments: judges chart 9 12 02.doc; judges wait more than a year 9 12 02.doc; pic27127.doc Sorry. I have been up on Hill. Here are the two charts. Am I right from your e-mail that he is on next Wednesday? {Se-eattached file: ju dges chart 9 12 02.doc)(See attached file: judges wait more than a year 9 12 02.doc) (Embedded image moved "Willett, Don" to file: 09/12/2002 03:57:05 PM pic27 127.p cx) Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: RE: McConnell and "pro-God" groups ' efforts Many thanks, Kay. KRISTI: pis. send good McConnell info. per Kay's suggestions below. NATHAN:pis. send your latest vacancy crisis TPs. BRETT:can you reply to all -- w/ 1st 2 years - After the Corrigan confirmation today , there are 78 existing vacancies {28 circuit and SO district}. The EXT-18-2091-C-000373 007104-001094 Document ID: 0.7.19343 .5257 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Thursday, September 12, 2002 10:40 PM To: Willett, Don; Remington, Kristi L; Sales , Nathan Subject : RE: McConnell and "pro-God" groups ' efforts Attachments: judges chart 9 12 02.doc; judges wait more than a year 9 12 02.doc; pic27127.doc Sorry. I have been up on Hill. Here are the two charts. Am I right from your e-mail that he is on next Wednesday? {Se-eattached file: ju dges chart 9 12 02.doc)(See attached file: judges wait more than a year 9 12 02.doc) (Embedded image moved "Willett, Don" to file: 09/12/2002 03:57:05 PM pic27 127.p cx) Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: RE: McConnell and "pro-God" groups ' efforts Many thanks, Kay. KRISTI: pis. send good McConnell info. per Kay's suggestions below. NATHAN:pis. send your latest vacancy crisis TPs. BRETT:can you reply to all -- w/ 1st 2 years - After the Corrigan confirmation today , there are 78 existing vacancies {28 circuit and SO district}. The EXT-18-2091-C-000373 007104-001094 Document ID: 0.7.19343 .5257 existing vacancy rate is 9.0% overall - 15.6% at the circuit level, and 7.5% at the district level. Another stat:# of Reagan circuit noms who wanted more than a year for a hearing? 0 tt of Bush 41 circuit noms ..............oo...o...o........oo..oo.. ?Q It of Clinton circuit noms ........................................ ? 0 #t of Bush 43 circuit noms ........................................ ? 11 DRW -0 ~ From:lllllllllllllll aiIt Sent: Thursday , September 12, 2002 3:16 PM To: Remington, Kristi L; Willett, Don; Sales, Nathan; Tim_Goeglein@who.eop.gov; alex_dah l@judiciary.senate.gov; Manuel _ Miranda@judiciary.senate.gov Subject: Re: McConnell and "pro-God " groups ' efforts Dobson is going to be on Larry King on Wed. night. Any and all information you want him to have needs to get to him this afternoon. Send all info on this to: ASAP.Two particu lar questions that Larry is going to ask are the following: You are very concerned about what the Senate is doing to Bush 's court appointments. Isn't that the advise and consent role described by the U.S. constitution? He also wants a confirmation % of the nominees in the first year of the Reagan , Bush I, Clinton and Bush II administrations. He also wants to know what % vacancy the federal bench currently has. Message Sent To:___________________________ _ "Remington , Kristi l" (Receipt Notification Requested) "Sales , Nathan " (Receipt Notification Requested) (Receipt Notification Requested) 11, . (Receipt Notification Requested) (Receipt Notification Requested) EXT-18-2091-C-000374 007104-001095 Documen t ID: 0.7.19343.5257 existing vacancy rate is 9.0% overall - 15.6% at the circuit level, and 7.5% at the district level. Another stat:# of Reagan circuit noms who wanted more than a year for a hearing? 0 tt of Bush 41 circuit noms ..............oo...o...o........oo..oo.. ?Q It of Clinton circuit noms ........................................ ? 0 #t of Bush 43 circuit noms ........................................ ? 11 DRW -0 ~ From:lllllllllllllll aiIt Sent: Thursday , September 12, 2002 3:16 PM To: Remington, Kristi L; Willett, Don; Sales, Nathan; Tim_Goeglein@who.eop.gov; alex_dah l@judiciary.senate.gov; Manuel _ Miranda@judiciary.senate.gov Subject: Re: McConnell and "pro-God " groups ' efforts Dobson is going to be on Larry King on Wed. night. Any and all information you want him to have needs to get to him this afternoon. Send all info on this to: ASAP.Two particu lar questions that Larry is going to ask are the following: You are very concerned about what the Senate is doing to Bush 's court appointments. Isn't that the advise and consent role described by the U.S. constitution? He also wants a confirmation % of the nominees in the first year of the Reagan , Bush I, Clinton and Bush II administrations. He also wants to know what % vacancy the federal bench currently has. Message Sent To:___________________________ _ "Remington , Kristi l" (Receipt Notification Requested) "Sales , Nathan " (Receipt Notification Requested) (Receipt Notification Requested) 11, . (Receipt Notification Requested) (Receipt Notification Requested) EXT-18-2091-C-000374 007104-001095 Documen t ID: 0.7.19343.5257 '"alex_dahl@jud iciary.senate.gov "' (Rece ipt Notificat ion Requested) "' Manue l_ Miranda@judi ciary.senate.gov '" (Rece ipt Notificat ion Requested) Brett M. Kavanaugh/WHO / EOP@EOP > ( Recei pt Notification Requested) (1PMReturn Requested) Ill EXT-18-2091-C-000375 007104-001096 Document ID: 0.7.19343.5257 '"alex_dahl@jud iciary.senate.gov "' (Rece ipt Notificat ion Requested) "' Manue l_ Miranda@judi ciary.senate.gov '" (Rece ipt Notificat ion Requested) Brett M. Kavanaugh/WHO / EOP@EOP > ( Recei pt Notification Requested) (1PMReturn Requested) Ill EXT-18-2091-C-000375 007104-001096 Document ID: 0.7.19343.5257 Judicial Appointments Historical Comparison: First Two Years of a Presidency President G.W. Bush Nominations Submitted Nominees Confirmed Circuit Percentage Of Nominees Court Confirmed Nominations Submitted Circuit Court Nominees Confirmed Circuit Court Percentage of Nominees Confirmed 127 75 59% 32 13 41% Clinton 140 126 90% 22 19 86% George H.W. Bush 74 70 95% 23 22 96% Reagan 88 87 99% 20 19 95% (as of 9-12-02) Last Confirmation: September 12, 2002 EXT-18-2091-C-000376 007104-001097 Document ID: 0.7.19343.5257-000001 Judicial Appointments Historical Comparison: First Two Years of a Presidency President G.W. Bush Nominations Submitted Nominees Confirmed Circuit Percentage Of Nominees Court Confirmed Nominations Submitted Circuit Court Nominees Confirmed Circuit Court Percentage of Nominees Confirmed 127 75 59% 32 13 41% Clinton 140 126 90% 22 19 86% George H.W. Bush 74 70 95% 23 22 96% Reagan 88 87 99% 20 19 95% (as of 9-12-02) Last Confirmation: September 12, 2002 EXT-18-2091-C-000376 007104-001097 Document ID: 0.7.19343.5257-000001 Judicial Appointments Historical Comparison: First Two Years of a Presidency President Circuit Court Nominees who waited more than a year for a hearing G.W. Bush 11 (as of September 2002) Clinton George H.W. Bush Reagan 0 0 0 EXT-18-2091-C-000377 007104-001098 Document ID: 0.7.19343.5257-000002 Judicial Appointments Historical Comparison: First Two Years of a Presidency President Circuit Court Nominees who waited more than a year for a hearing G.W. Bush 11 (as of September 2002) Clinton George H.W. Bush Reagan 0 0 0 EXT-18-2091-C-000377 007104-001098 Document ID: 0.7.19343.5257-000002 Dinh, Viet From : Dinh, Viet Sent : Tuesday, September 24, 2002 10:39 AM To: 'Kavanaugh , Brett ' Subject : FW:Edwards Brett, pis forwa rd to Helgi. thanks so much. From: Sent: Tuesday, September 24, 2002 10:23 AM To: Willett , Don; Dinh, Viet; tim~goeglein@who.eop.gov; Manuel_Miranda@judiciary.senate.gov Subject: Edwards Raleigh News & Observer 8/24/02 Edwards holds key to deadlock By JOHN WAGNER, Washington Correspondent Washington -- Sen.John Edwards is holding up President Bush's nomination of a Raleigh lawyer to a federal judgeship while lawyers who practice before the court - and one of its sitting judges - say it is becoming overwhelmed with a rising caseload. Bush nominated James C. Dever in late May to one of four seats on the U.S. District Court for the Eastern District of North Carolina. The court, which hears federal cases from 44 eastern counties, has been operating with only two full-time judges since January 2001, a situat ion that Judge Malcolm J. Howard described as "almost insurmountable " in a court document this month. Edwards , a Democrat , is holding onto a form that must be returned to the Senate Judiciary Committee before that panel can schedule a confirmation hearing for Dever. "I haven 't finished looking at his record yet," Edwards said in an interview late last week, adding that he wasn 't sure whether he would finish his review before Congress goes home. "It depends on where it is in the context of other things we have to get done." Edwards and Sen. Jesse Helms, a Republican, have been engaged in a feud over nominations to the 4th U.S. Circuit Court of Appeals , the next court above the district level. As a result, the 15-member appeals panel has not f...~,.J ~~o o II .. :-~ : . ,..J~~ ~ r ~- M~ ~ f,,. r~ r ~I:~~ r:~~~ ~ 000 Tl,,.~ ~ ~ .. ~ 1-.~~rr ~ ~r~r EXT-18-2091-C-000378 007104-001099 Document ID: 0.7.19343 .8434 Dinh, Viet From : Dinh, Viet Sent : Tuesday, September 24, 2002 10:39 AM To: 'Kavanaugh , Brett ' Subject : FW:Edwards Brett, pis forwa rd to Helgi. thanks so much. From: Sent: Tuesday, September 24, 2002 10:23 AM To: Willett , Don; Dinh, Viet; tim~goeglein@who.eop.gov; Manuel_Miranda@judiciary.senate.gov Subject: Edwards Raleigh News & Observer 8/24/02 Edwards holds key to deadlock By JOHN WAGNER, Washington Correspondent Washington -- Sen.John Edwards is holding up President Bush's nomination of a Raleigh lawyer to a federal judgeship while lawyers who practice before the court - and one of its sitting judges - say it is becoming overwhelmed with a rising caseload. Bush nominated James C. Dever in late May to one of four seats on the U.S. District Court for the Eastern District of North Carolina. The court, which hears federal cases from 44 eastern counties, has been operating with only two full-time judges since January 2001, a situat ion that Judge Malcolm J. Howard described as "almost insurmountable " in a court document this month. Edwards , a Democrat , is holding onto a form that must be returned to the Senate Judiciary Committee before that panel can schedule a confirmation hearing for Dever. "I haven 't finished looking at his record yet," Edwards said in an interview late last week, adding that he wasn 't sure whether he would finish his review before Congress goes home. "It depends on where it is in the context of other things we have to get done." Edwards and Sen. Jesse Helms, a Republican, have been engaged in a feud over nominations to the 4th U.S. Circuit Court of Appeals , the next court above the district level. As a result, the 15-member appeals panel has not f...~,.J ~~o o II .. :-~ : . ,..J~~ ~ r ~- M~ ~ f,,. r~ r ~I:~~ r:~~~ ~ 000 Tl,,.~ ~ ~ .. ~ 1-.~~rr ~ ~r~r EXT-18-2091-C-000378 007104-001099 Document ID: 0.7.19343 .8434 lldU d I u11-u11 ?~ JUU~~ 11 UII I l'CUI ll I '--di UIII Id !>II IL~ J..::,.::r:,. , , ,~ 1..uur l ll ~dl !> l..d!>~!> from five Southern states, including Virginia, which has four judges on the panel. Edwards said the nomination of Dever, a Republican, is not entangled in the 4th Circuit standoff. But on Monday, Edwards ' spokesman, Mike Briggs, said Edwards remains concerne d that Bush is not making more balanced nominations with the advice of both Tar Heel senators. "It's not entirely in Senator Edwards' hands to make this work," Briggs said. He suggested, for example, that Bush could nominate someone more acceptable to Edwards to the second open seat on the Eastern District court. Briggs also noted that Edwards has endorsed a proposal by the N.C. Bar Association that would create a bipartisan commission to suggest federal ju dicial nominees for North Carolina. Helms has dismissed that idea. On Monday, Jimmy Broughton, Helms' chief of staff, said "there's no reason" for Devers nomination to be delayed, noting that the American Bar Association had rated him "qua lified" in a statement issued Aug. 1. Dever, a lawyer with the Raleigh firm Maupin Taylor & Ellis and a Duke Law School graduate, represented Republicans in a case that forced the General Assembly to redraw its districts this year. Politics aside, there seems to be little dispute that the two sitting judges on the Eastern District Court are swamped. "I think those judges are up to tneir eyeballs with having too much to do," said Christopher Graebe, a Raleigh lawyer with Womble Carlyle Sandridge & Rice who practices often in federal court . "I'm hopeful that people can put politics as ide and realize that the court can 't continue to function without more judges." Graebe described himself as "a very apolitical Democrat." In a Sept. 10 order de laying seven civil cases on his docket, Howard noted the strain of operating with two full-time judges. "The result over time is that the caseloa d, civil and criminal, has become almost insurmountable," Howard wrote. "In addition to 364 pending civil cases and 195 pending criminal defendants, the court has five separate criminal trials scheduled which will consu me most of September and October 2002." Judge Terrence Boyle, the district's chief judge, has an even larger caseload. He would not comment for this story. In addition to the two full-time judges, two judges on senior status hear EXT-18-2091-C-000379 007104-001100 Document ID: 0.7.19343.8434 lldU d I u11-u11 .~ JUU~~ 11 UII I l'CUI ll I '--di UIII Id !>II IL~ J..::,.::r:,. , , ,~ 1..uur l ll ~dl !> l..d!>~!> from five Southern states, including Virginia, which has four judges on the panel. Edwards said the nomination of Dever, a Republican, is not entangled in the 4th Circuit standoff. But on Monday, Edwards ' spokesman, Mike Briggs, said Edwards remains concerne d that Bush is not making more balanced nominations with the advice of both Tar Heel senators. "It's not entirely in Senator Edwards' hands to make this work," Briggs said. He suggested, for example, that Bush could nominate someone more acceptable to Edwards to the second open seat on the Eastern District court. Briggs also noted that Edwards has endorsed a proposal by the N.C. Bar Association that would create a bipartisan commission to suggest federal ju dicial nominees for North Carolina. Helms has dismissed that idea. On Monday, Jimmy Broughton, Helms' chief of staff, said "there's no reason" for Devers nomination to be delayed, noting that the American Bar Association had rated him "qua lified" in a statement issued Aug. 1. Dever, a lawyer with the Raleigh firm Maupin Taylor & Ellis and a Duke Law School graduate, represented Republicans in a case that forced the General Assembly to redraw its districts this year. Politics aside, there seems to be little dispute that the two sitting judges on the Eastern District Court are swamped. "I think those judges are up to tneir eyeballs with having too much to do," said Christopher Graebe, a Raleigh lawyer with Womble Carlyle Sandridge & Rice who practices often in federal court . "I'm hopeful that people can put politics as ide and realize that the court can 't continue to function without more judges." Graebe described himself as "a very apolitical Democrat." In a Sept. 10 order de laying seven civil cases on his docket, Howard noted the strain of operating with two full-time judges. "The result over time is that the caseloa d, civil and criminal, has become almost insurmountable," Howard wrote. "In addition to 364 pending civil cases and 195 pending criminal defendants, the court has five separate criminal trials scheduled which will consu me most of September and October 2002." Judge Terrence Boyle, the district's chief judge, has an even larger caseload. He would not comment for this story. In addition to the two full-time judges, two judges on senior status hear EXT-18-2091-C-000379 007104-001100 Document ID: 0.7.19343.8434 some cases, though their workload is only a fraction of that of Boyle and Howard. Between 1997, when the district court last had a full slate of four judges , and 2001, the annual caseload increased from 1,835 to 1,94 1. This year has been busier. U.S. Attorney Frank Whitney, the top federal prosecutor for Eastern North Carolina , said his office 's criminal caseload has increased because of post-Sept. 11 investigations of potential terrorist threats. While Oever 's nomination languishes , the Senate Judiciary Committee , on which Edwards sits, has been considering other judicial nominees as Congress lurches toward adjournment. Meanwhile , no one seems to have much hope that a nominee from North Carolina will be added to the 4th Circuit before the Senate breaks for the year. Bush nominated Boyle in September 2001. Edwards has blocked that nomination in response to Helms' refusal to accept a series of President Clinton's court nominees. In proposing a bipartisan commission , leaders of the bar group said the nlong-standing impasse ... has left our federal courts at less than full st rength and deprived half a generation of North Carolina's finest lawyers and judges of an opportunity to serve their country." Washington correspondent John Wagner can be reached at (202) 662-4380 or jwagner@mcclatchydc.com. EXT-18-2091-C-000380 007104-001101 Document ID: 0.7.19343 .8434 some cases, though their workload is only a fraction of that of Boyle and Howard. Between 1997, when the district court last had a full slate of four judges , and 2001, the annual caseload increased from 1,835 to 1,94 1. This year has been busier. U.S. Attorney Frank Whitney, the top federal prosecutor for Eastern North Carolina , said his office 's criminal caseload has increased because of post-Sept. 11 investigations of potential terrorist threats. While Oever 's nomination languishes , the Senate Judiciary Committee , on which Edwards sits, has been considering other judicial nominees as Congress lurches toward adjournment. Meanwhile , no one seems to have much hope that a nominee from North Carolina will be added to the 4th Circuit before the Senate breaks for the year. Bush nominated Boyle in September 2001. Edwards has blocked that nomination in response to Helms' refusal to accept a series of President Clinton's court nominees. In proposing a bipartisan commission , leaders of the bar group said the nlong-standing impasse ... has left our federal courts at less than full st rength and deprived half a generation of North Carolina's finest lawyers and judges of an opportunity to serve their country." Washington correspondent John Wagner can be reached at (202) 662-4380 or jwagner@mcclatchydc.com. EXT-18-2091-C-000380 007104-001101 Document ID: 0.7.19343 .8434 Scot tfinan, Nan cy From : Scottfinan, Nancy Sent : Tuesday, September 24, 2002 4:50 PM To: 'Brett_M._Kavanaugh@who.eop.gov '; Chames, Adam; Benczkowski, Brian A; Bryant, Dan; Willett , Don; Brown, Jamie E (OLA);Benedi, Lizette D; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J Subjec t : RE:Suggestion for hear ing Will Miguel be making an opening statement or no opening statement? The D staff on the committee are asking. If opening statement , they would want advance copies per Committee rules I was adv ised that they are trying to determine whether there needs to be two days of hearings. EXT-18-2091-C-000381 007104-001102 Document ID: 0.7.19343.8439 Scot tfinan, Nan cy From : Scottfinan, Nancy Sent : Tuesday, September 24, 2002 4:50 PM To: 'Brett_M._Kavanaugh@who.eop.gov '; Chames, Adam; Benczkowski, Brian A; Bryant, Dan; Willett , Don; Brown, Jamie E (OLA);Benedi, Lizette D; Goodling, Monica; Sales, Nathan; O'Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J Subjec t : RE:Suggestion for hear ing Will Miguel be making an opening statement or no opening statement? The D staff on the committee are asking. If opening statement , they would want advance copies per Committee rules I was adv ised that they are trying to determine whether there needs to be two days of hearings. EXT-18-2091-C-000381 007104-001102 Document ID: 0.7.19343.8439 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Tuesday , September 24, 2002 7:35 PM To: 'Rena Johnson Comisac-' ; Charnes , Adam ; Bryant, Dan; Brown, Jamie E (OLA); Sales , Nathan; Dinh, Viet; 'Heather_ Wingate@who.eop.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: AP update - note addition of "sell out " remark Typical Jesse Holland slant. Stra ight from tne Schumer ta lking points .... -Or iginal Message-From: Rena Johnson Comisac [mailto:/DDV=Rena_Johnson_Comisac@judiciary.senate.gov/DDT=RFC-822/0=INE TGW/ P=GOV+OOJ/A=TELEMAIL / C=US/1 Sent: Tuesday, September 24, 2002 6:56 PM To: Charnes , Adam; Benczkowsk i, Brian A; Bryant, Dan; Brown, Jam ie E ( OLA);Sales , Nathan; Dinh, Viet; Heather_ Wingate@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov Subject: Fwd:AP update - note addition of l Ullt::: U t:::I IIUl,,.I dl J C!>ll dUd :, IIUlllll ldllUII WUUIU I dll 111 committee without a vote from the full Senate. Estrada will face questions Thursday from the Senate Judiciary Committee on whether he is qualified to sit on the District of Columbia Court of Appeals , a steppingstone in the ca reers of three current Supreme Court justices and the court that sends more ju dges to the Supreme Court than any other. It is also considered one of the most important courts in the land_ deciding cases that determine how federal agencies regulate topics like gas prices , clean air and water , labo r practices and campaign finance reform. The court currently has four vacancies and eight active judges: four Republicans and four Democrats. Democrats repeated ly have accused Republicans of stalling former President Clinton's nominees for the D.C. appeals court during his administration in hopes of putting conservatives in those slots. No one has been confirmed for the court in five years. " Nominat ions to this special circuit merit special scrut iny," said Sen. Charles Schumer, D-N.Y., one of the lead ing opponents to Bush's drive to put conservatives on the federal bench. " Anyone who thinks we should just blindly confirm the president's nominees to this all-important court nee ds to think again. " Democrats already have rejected two of Bush's nom inees, U.S. District Court Judge Charles Pickering of Mississippi and Texas Supreme Court Justice Priscilla Owen, saying the two nominees were too part isan for the federal bench. Democrats have complained that the 40-year -old Estrada has never served as a judge and has a rigid ideological background, which includes being a partner in the Washington law firm that won the presi dency for Bush during the Florida recount. Some Hispanic organizations crit icized Democrats for waiting since May 2001 to bring Estrada up for a hear ing and promised to organize against Democrats if he loses . " We will not stand by quiet ly and let them massacre one of our own," said Robert De Posada of the Latino Coalition. Pointing out that two black jud ges have been confirmed to the U.S. Appeals Court this year, " Is the message here that the Democratic Party is sending that they have a favorite minority group? " he said. " Any opposition to this , we're going to be taking it personally." Other Hispanic groups, like the Puerto Rican Legal Defense and Education Fund, oppose his confirmation. " We believe that Mr. Estrada is not suff iciently qualified , that his reported ly extreme views should be disqualifying, that he has not de monstrated interest in or any involvement with the organized Hispan ic community or Hispanic activities of any kind," sa id Juan Figueroa, the group 's president. The Congressional Hispanic Caucus _ which consists of exclusively Democrats _ on Wednesday also is expected to oppose Estrada's confirmation. Sen. Orrin Hatch of Utah, the top Judiciary Republican, criticize d the Latino groups opposing Estrada. " They ought to be ashamed of themse lves, " he said. " They've sold out the aspirations of their people just to sit around schmoozing with the power elite. " AP-ES-09-24-02 1736EDT EXT-18-2091-C-000383 007104-001104 Document ID: 0.7.19343 .8443 JUUlt,,.ldJ y \..,UII HI llllt:::t:::. \11/ Ill lUUl d!Ji-11 UV d i II UIII dl lt:::d!>l Ullt::: U t:::I IIUl,,.I dl J C!>ll dUd :, IIUlllll ldllUII WUUIU I dll 111 committee without a vote from the full Senate. Estrada will face questions Thursday from the Senate Judiciary Committee on whether he is qualified to sit on the District of Columbia Court of Appeals , a steppingstone in the ca reers of three current Supreme Court justices and the court that sends more ju dges to the Supreme Court than any other. It is also considered one of the most important courts in the land_ deciding cases that determine how federal agencies regulate topics like gas prices , clean air and water , labo r practices and campaign finance reform. The court currently has four vacancies and eight active judges: four Republicans and four Democrats. Democrats repeated ly have accused Republicans of stalling former President Clinton's nominees for the D.C. appeals court during his administration in hopes of putting conservatives in those slots. No one has been confirmed for the court in five years. " Nominat ions to this special circuit merit special scrut iny," said Sen. Charles Schumer, D-N.Y., one of the lead ing opponents to Bush's drive to put conservatives on the federal bench. " Anyone who thinks we should just blindly confirm the president's nominees to this all-important court nee ds to think again. " Democrats already have rejected two of Bush's nom inees, U.S. District Court Judge Charles Pickering of Mississippi and Texas Supreme Court Justice Priscilla Owen, saying the two nominees were too part isan for the federal bench. Democrats have complained that the 40-year -old Estrada has never served as a judge and has a rigid ideological background, which includes being a partner in the Washington law firm that won the presi dency for Bush during the Florida recount. Some Hispanic organizations crit icized Democrats for waiting since May 2001 to bring Estrada up for a hear ing and promised to organize against Democrats if he loses . " We will not stand by quiet ly and let them massacre one of our own," said Robert De Posada of the Latino Coalition. Pointing out that two black jud ges have been confirmed to the U.S. Appeals Court this year, " Is the message here that the Democratic Party is sending that they have a favorite minority group? " he said. " Any opposition to this , we're going to be taking it personally." Other Hispanic groups, like the Puerto Rican Legal Defense and Education Fund, oppose his confirmation. " We believe that Mr. Estrada is not suff iciently qualified , that his reported ly extreme views should be disqualifying, that he has not de monstrated interest in or any involvement with the organized Hispan ic community or Hispanic activities of any kind," sa id Juan Figueroa, the group 's president. The Congressional Hispanic Caucus _ which consists of exclusively Democrats _ on Wednesday also is expected to oppose Estrada's confirmation. Sen. Orrin Hatch of Utah, the top Judiciary Republican, criticize d the Latino groups opposing Estrada. " They ought to be ashamed of themse lves, " he said. " They've sold out the aspirations of their people just to sit around schmoozing with the power elite. " AP-ES-09-24-02 1736EDT EXT-18-2091-C-000383 007104-001104 Document ID: 0.7.19343 .8443 Dinh, Viet From : Dinh, Viet Sent : Monday, November 11, 2002 3:09 PM To: Cha mes, Adam; 'Kavan augh, Brett' Subje ct : FW: The Sacramento Bee -- sa cbee.com - GOP judges still wil Attachments : S15898 8p-6168 068~html - Original Message-From: Robert McConnell [mailto:RMcConnell@hyi -usa.com] Sent: Monday, November 11, 2002 2:24 PM Subje ct: FW: The Sacramento Bee - sacbee.com - GOP ju dges still wil You might want to rea d this. Subject: The Sacramento Bee - sacbee.com -- GOP ju dges still wild ca Author: Benjamin Zycher Date: 11/ 11/2002 10:28 AM EXT-18-2091-C-000384 007104-001105 Document ID: 0.7.19343.8668 Dinh, Viet From : Dinh, Viet Sent : Monday, November 11, 2002 3:09 PM To: Cha mes, Adam; 'Kavan augh, Brett' Subje ct : FW: The Sacramento Bee -- sa cbee.com - GOP judges still wil Attachments : S15898 8p-6168 068~html - Original Message-From: Robert McConnell [mailto:RMcConnell@hyi -usa.com] Sent: Monday, November 11, 2002 2:24 PM Subje ct: FW: The Sacramento Bee - sacbee.com - GOP ju dges still wil You might want to rea d this. Subject: The Sacramento Bee - sacbee.com -- GOP ju dges still wild ca Author: Benjamin Zycher Date: 11/ 11/2002 10:28 AM EXT-18-2091-C-000384 007104-001105 Document ID: 0.7.19343.8668 Lott Comments Fuel Pickering Critics By JESSEJ. HOLLAND .c The Asso ci ;; fed Press JACKSON , Miss . (AP ) - Democrats plan to use the flap over Senate Republican leader Trent Lott's praise for Strom Thurrnond's 1948 segregationist presidential campaign to try to derail any renewed effort to put Mississipp i j urist Charles Pickering on a federal appeals court . Pic kering, a U.S. district j udge in Hattiesburg , Miss ., and a friend of Lott, faced similar accusations of racial insensitivit y during a heated, racially charged, party-line defeat of his nomination to the 5t h U.S . Circuit Court of Appea ls in New Orleans earlier this year. When Republicans regained control of the Senate in last month's election . Lott said a Pickering confirmation w ould be the first thing he forced through Senate next y ear when he becomes maj ority leader. " That Pickering's chief Senate sponsor is now praising the 'Dixiecrat' platform places the Pickering nomination in an even dimmer light : Rep. Bennie Thompson, D-Miss., said Thursday. W ade Henderson, executive director of the Leadership Conference on Civil Rights , said Lott's comments and his vow to revive Pic kering's nomination " adds credence to the charge that Pickering has a demonstrated hostility to civil rights : Lott said at Thurmond's 100th birthday party last w eek that Miss issippians were proud to have voted for Thurmond in 1948, when he ran for president on the segregationist Dixiecrat tic ket. " And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these y ears. either: Lott added. Lott has apologized, sayi ng he regretted making the comment. President Bush on Thursday called the remarks offensive. Bush would have to renominate Pickering . Calls Thursday to Lott's office about a possible renomination were not immediatel y returned. The White House refused to comment. Pic kering, reached at his Mississ ippi office, said it would be " inappropriate. for him to comment. Sen. Thad Cochran. R-Miss ., said he expects Bush to renominate Pickering and the nomination to make it through the Judicia ry Committee despite the Lott controversy . " He deserves to be considered by the Senate : Cochran said. Sen. Patrick Leahy of Vermont, the Senate Judiciary Committee's senior Democrat, said both Lott and the W hite House should look hard at whether renominating Pic kering would reopen a battle over Southern politic ians' past. " That's something that President Bush and Senator Lott will have to decide, whether they want to send his name back to the comm ittee , but if his record is the same I'm going to vote against him again: Leahy said . Some Republicans , how ever, appeared intent on maintaining a wall betw een Lott's remarks and Bush's j udicial nominat ions. "W e don't see the relevance of those comments to Judge Pic kering's confirmation and we are hopeful that opponents of President Bush's j udges will not continue to use the race card as an issue to obstruct the confirmation proc ess: said Margarita Tapia. s pokeswom an for Sen. Orrin Hatch, R-Utah. w ho will be the j udiciary panel's chairman next y ear. Ralph Neas of the liberal People for the A merican Way said t he Wh ite House and Republicans would gain more in their efforts to persuade minorit ies they do not oppose civil rights if they abandoned the idea of reviving Picke ring's nominat ion. " You would think that would be the last thing that President Bush would want at the beginning of a congressiona l sess ion, to have to fight this battle again: said Neas. whose group led the opposit ion to Pickering last y ear. EXT-18-2091-C-000385 007104-001106 Document ID: 0.7.19343 .8764-000001 Lott Comments Fuel Pickering Critics By JESSEJ. HOLLAND .c The Asso ci ;; fed Press JACKSON , Miss . (AP ) - Democrats plan to use the flap over Senate Republican leader Trent Lott's praise for Strom Thurrnond's 1948 segregationist presidential campaign to try to derail any renewed effort to put Mississipp i j urist Charles Pickering on a federal appeals court . Pic kering, a U.S. district j udge in Hattiesburg , Miss ., and a friend of Lott, faced similar accusations of racial insensitivit y during a heated, racially charged, party-line defeat of his nomination to the 5t h U.S . Circuit Court of Appea ls in New Orleans earlier this year. When Republicans regained control of the Senate in last month's election . Lott said a Pickering confirmation w ould be the first thing he forced through Senate next y ear when he becomes maj ority leader. " That Pickering's chief Senate sponsor is now praising the 'Dixiecrat' platform places the Pickering nomination in an even dimmer light : Rep. Bennie Thompson, D-Miss., said Thursday. W ade Henderson, executive director of the Leadership Conference on Civil Rights , said Lott's comments and his vow to revive Pic kering's nomination " adds credence to the charge that Pickering has a demonstrated hostility to civil rights : Lott said at Thurmond's 100th birthday party last w eek that Miss issippians were proud to have voted for Thurmond in 1948, when he ran for president on the segregationist Dixiecrat tic ket. " And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these y ears. either: Lott added. Lott has apologized, sayi ng he regretted making the comment. President Bush on Thursday called the remarks offensive. Bush would have to renominate Pickering . Calls Thursday to Lott's office about a possible renomination were not immediatel y returned. The White House refused to comment. Pic kering, reached at his Mississ ippi office, said it would be " inappropriate? for him to comment. Sen. Thad Cochran. R-Miss ., said he expects Bush to renominate Pickering and the nomination to make it through the Judicia ry Committee despite the Lott controversy . " He deserves to be considered by the Senate : Cochran said. Sen. Patrick Leahy of Vermont, the Senate Judiciary Committee's senior Democrat, said both Lott and the W hite House should look hard at whether renominating Pic kering would reopen a battle over Southern politic ians' past. " That's something that President Bush and Senator Lott will have to decide, whether they want to send his name back to the comm ittee , but if his record is the same I'm going to vote against him again: Leahy said . Some Republicans , how ever, appeared intent on maintaining a wall betw een Lott's remarks and Bush's j udicial nominat ions. "W e don't see the relevance of those comments to Judge Pic kering's confirmation and we are hopeful that opponents of President Bush's j udges will not continue to use the race card as an issue to obstruct the confirmation proc ess: said Margarita Tapia. s pokeswom an for Sen. Orrin Hatch, R-Utah. w ho will be the j udiciary panel's chairman next y ear. Ralph Neas of the liberal People for the A merican Way said t he Wh ite House and Republicans would gain more in their efforts to persuade minorit ies they do not oppose civil rights if they abandoned the idea of reviving Picke ring's nominat ion. " You would think that would be the last thing that President Bush would want at the beginning of a congressiona l sess ion, to have to fight this battle again: said Neas. whose group led the opposit ion to Pickering last y ear. EXT-18-2091-C-000385 007104-001106 Document ID: 0.7.19343 .8764-000001 Picker ing was defeat ed 10-9 in commi ttee last March after civil rights groups said he supported segregati on as a you ng man in Mississippi . Pickering's opponents also pointed to his conservative voting record as a Mississippi state lawmaker and decisions as a j udge. Picker ing's supporters , including some Mississ ippi Democrats and black leaders, said Picker ing supported civil rights efforts as far back as the middle 1960s. On the Net: Justice Department information on Charles Pickering : http://www.usdoj .gov/ olp/picke ring.htm 12/13/02 02:46 EST Copyright2002 TheAssociated Press . The infom1afioncontained in the AP newsreport may not be published, broadcast, rewritten or othe!Wisedistributed withoutthe prior writtenauthorityof TheAssociated Press. All active hyperlinks have been inserted by AOL. EXT-18-2091-C-000386 007104-001107 Document ID: 0.7.19343 .8764 -00000 1 Picker ing was defeat ed 10-9 in commi ttee last March after civil rights groups said he supported segregati on as a you ng man in Mississippi . Pickering's opponents also pointed to his conservative voting record as a Mississippi state lawmaker and decisions as a j udge. Picker ing's supporters , including some Mississ ippi Democrats and black leaders, said Picker ing supported civil rights efforts as far back as the middle 1960s. On the Net: Justice Department information on Charles Pickering : http://www.usdoj .gov/ olp/picke ring.htm 12/13/02 02:46 EST Copyright2002 TheAssociated Press . The infom1afioncontained in the AP newsreport may not be published, broadcast, rewritten or othe!Wisedistributed withoutthe prior writtenauthorityof TheAssociated Press. All active hyperlinks have been inserted by AOL. EXT-18-2091-C-000386 007104-001107 Document ID: 0.7.19343 .8764 -00000 1 Benczkowski, Brian A From: Benczkowski, Brian A Sent : Friday, December 13, 2002 3:35 PM To: Dinh, Viet; Goodling, Monica; Chames, Adam; 'Kavanaugh, Brett'; ' Berenson , Brad ' Subject : RE: 12 /13/02 AP Story Surprised it took this long. -Original Message-From: Dinh , Viet Sent: Friday , December 13, 2002 1:40 PM To: Goodling, Monica; Charnes, Adam ; Benczkowski , Brian A; 'Kavanaugh, Brett'; ' Berenson, Brad' Subject: FW:12/13/02 AP Story Had to happen sooner or lat er. --Or From: - - - 3, 2002 12:58 PM Se To Subject: 12/13/02 AP Story o o . l . .... J o o o Lott Comments Fuel Picker ing Critics By JESSE J. HOLLAND .c The Associated Press JACKSON, Miss. (AP) - Democrats plan to use the flap over Senate Republican leade r Trent Lott's praise for Strom Thurmond 's 1948 segregationist presidential campa ign to try to derail any renewed effort to put Mississippi ju rist Charles Pickering on a federal appeals court. Pickering, a U.S. district judge in Hattiesbu rg, Miss ., and a friend of Lott, faced similar accusations of ra cial insensitivity during a hea ted, ra cially ch arged , party -line defeat of his nomination to the 5th U.S. Circuit Court of Appeals in New Orleans earlier this year. When Republicans regained control of the Senate in last month ' s election , Lott said a Pickering confirmation would be the first thing he forced through Senate next year when he becomes majority leader. " That Pickering's chief Senate sponsor is now praising the ' Dixiecrat ' -o~~~ rm -o~~~~ oI-.~ o:~l,~ r :-~ -~m:-~1- :~- :- ~ - -oo~ - .J:mm~r l:~1-.o" o~- EXT-18-2091-C-000387 007104-001108 Document ID: 0.7.19343 .8765 Benczkowski, Brian A From: Benczkowski, Brian A Sent : Friday, December 13, 2002 3:35 PM To: Dinh, Viet; Goodling, Monica; Chames, Adam; 'Kavanaugh, Brett'; ' Berenson , Brad ' Subject : RE: 12 /13/02 AP Story Surprised it took this long. -Original Message-From: Dinh , Viet Sent: Friday , December 13, 2002 1:40 PM To: Goodling, Monica; Charnes, Adam ; Benczkowski , Brian A; 'Kavanaugh, Brett'; ' Berenson, Brad' Subject: FW:12/13/02 AP Story Had to happen sooner or lat er. --Or From: - - - 3, 2002 12:58 PM Se To Subject: 12/13/02 AP Story o o . l . .... J o o o Lott Comments Fuel Picker ing Critics By JESSE J. HOLLAND .c The Associated Press JACKSON, Miss. (AP) - Democrats plan to use the flap over Senate Republican leade r Trent Lott's praise for Strom Thurmond 's 1948 segregationist presidential campa ign to try to derail any renewed effort to put Mississippi ju rist Charles Pickering on a federal appeals court. Pickering, a U.S. district judge in Hattiesbu rg, Miss ., and a friend of Lott, faced similar accusations of ra cial insensitivity during a hea ted, ra cially ch arged , party -line defeat of his nomination to the 5th U.S. Circuit Court of Appeals in New Orleans earlier this year. When Republicans regained control of the Senate in last month ' s election , Lott said a Pickering confirmation would be the first thing he forced through Senate next year when he becomes majority leader. " That Pickering's chief Senate sponsor is now praising the ' Dixiecrat ' -o~~~ rm -o~~~~ oI-.~ o:~l,~ r :-~ -~m:-~1- :~- :- ~ - -oo~ - .J:mm~r l:~1-.o" o~- EXT-18-2091-C-000387 007104-001108 Document ID: 0.7.19343 .8765 fJldlJUIIII f-lldt..t:::, Ul t: rtt..1<,.t:1111~ IIUllllll d UUf l Il l d foI t:Vt:11 UHlllllt:I ll~lll, l"it:fJ. Bennie Thompson, D-Miss., said Thursday. Wade Henderson, exe cutive director of the leade rsh ip Conference on Civil Rights, said Lott's comments and his vow to revive Pickering 's nomination "adds credence to the charge that Pickering has a demonstrated hostility to civil rights. " Lott said at Thurmon d's 100th birthday party last week that Mississippians were proud to have voted for Thurmond in 1948, when he ran for president on the segregationist Dixiecrat ticket. "And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either, " Lott added. Lott has apologized, saying he regretted making the comment. President Bush on Thursday called the remarks offensive. Bush would have to renominate Pickering. Calls Thurs day to Lott's office about a possible renomination were not immediately returned. The White House refused to comment. Pickering, reached at his Mississippi office, said it would be "inapprop riate" for him to comment. Sen. Thad Cochran, R-Miss., said he expects Bush to renominate Pickering and the nomination to make it through the Judiciary Committee- despite the Lott controversy. "He deserves to be considered by the Senate," Cochran said. Sen. Patrick Leahy of Vermont, the Senate Judiciary Committee 's senior Democrat, said both Lott and the White House should look hard at whether renom inatin g Pickering would reopen a battle over Southern politicians ' past. "That 's something that President Bush and Senator Lott will have to decide, whether they want to send his name back to the committee, but if his record is the same I'm going to vote against him again," Leahy said. Some Republicans, however, appeared intent on maintaining a wall between Lott's remarks and Bush's judicial nominations. "We don't see the relevance of those comments to Judge Pickering's confirmation and we are hopeful that opponents of President Bush's judges will not continue to use the race card as an issue to obstruct the confirmation process," said Margarita Tapia, spokeswoman for Sen. Orrin Hatch, R-Utah, who will be the judiciary panel's chairman next year. Ralph Neas of the libera l People for the American Way said the White House and Republicans would gain more in their efforts to persuade minorities they do not oppose civil rights if they abandoned the idea of reviving Pickering's nomination. "You would think that would be the last thing that President Bush would want EXT-18-2091-C-000388 007104-001109 Document ID: 0.7.19343 .8765 fJldlJUIIII f-lldt..t:::, Ul t: rtt..1<,.t:1111~ IIUllllll d UUf l Il l d foI t:Vt:11 UHlllllt:I ll~lll, l"it:fJ. Bennie Thompson, D-Miss., said Thursday. Wade Henderson, exe cutive director of the leade rsh ip Conference on Civil Rights, said Lott's comments and his vow to revive Pickering 's nomination "adds credence to the charge that Pickering has a demonstrated hostility to civil rights. " Lott said at Thurmon d's 100th birthday party last week that Mississippians were proud to have voted for Thurmond in 1948, when he ran for president on the segregationist Dixiecrat ticket. "And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either, " Lott added. Lott has apologized, saying he regretted making the comment. President Bush on Thursday called the remarks offensive. Bush would have to renominate Pickering. Calls Thurs day to Lott's office about a possible renomination were not immediately returned. The White House refused to comment. Pickering, reached at his Mississippi office, said it would be "inapprop riate" for him to comment. Sen. Thad Cochran, R-Miss., said he expects Bush to renominate Pickering and the nomination to make it through the Judiciary Committee- despite the Lott controversy. "He deserves to be considered by the Senate," Cochran said. Sen. Patrick Leahy of Vermont, the Senate Judiciary Committee 's senior Democrat, said both Lott and the White House should look hard at whether renom inatin g Pickering would reopen a battle over Southern politicians ' past. "That 's something that President Bush and Senator Lott will have to decide, whether they want to send his name back to the committee, but if his record is the same I'm going to vote against him again," Leahy said. Some Republicans, however, appeared intent on maintaining a wall between Lott's remarks and Bush's judicial nominations. "We don't see the relevance of those comments to Judge Pickering's confirmation and we are hopeful that opponents of President Bush's judges will not continue to use the race card as an issue to obstruct the confirmation process," said Margarita Tapia, spokeswoman for Sen. Orrin Hatch, R-Utah, who will be the judiciary panel's chairman next year. Ralph Neas of the libera l People for the American Way said the White House and Republicans would gain more in their efforts to persuade minorities they do not oppose civil rights if they abandoned the idea of reviving Pickering's nomination. "You would think that would be the last thing that President Bush would want EXT-18-2091-C-000388 007104-001109 Document ID: 0.7.19343 .8765 at the beginning of a congress ional session, to have to fight this batt le again ," said Neas, whose group led the opposition to Pickering last year. Pickering was defeated 10-9 in committee last March after civil rights groups said he supported segregation as a young man in Mississippi. Pickering 's opponents also pointed to his conservative voting record as a Mississippi state lawmaker an d decisions as a ju dge. Pickering 's supporters, including some Mississippi Democ rats and black leaders , sai d Pickering supported civil rights efforts as far back as the middle 1960s. On the Net: Justice Department information on Charles Pickering: http:/ /www.usdoj.gov/olp/pickering.htm 12/13/02 02:46 EST Copyright 2002 The Associated Press. The informat ion contained in the AP news report may not be published, broadcast, rewritten or otherwise distribute d without the prior written authority of The Associated Press. All active hyperlinks have been inserted by AOL. EXT-18-2091-C-000389 007104-001110 Document ID: 0.7.19343.8765 at the beginning of a congress ional session, to have to fight this batt le again ," said Neas, whose group led the opposition to Pickering last year. Pickering was defeated 10-9 in committee last March after civil rights groups said he supported segregation as a young man in Mississippi. Pickering 's opponents also pointed to his conservative voting record as a Mississippi state lawmaker an d decisions as a ju dge. Pickering 's supporters, including some Mississippi Democ rats and black leaders , sai d Pickering supported civil rights efforts as far back as the middle 1960s. On the Net: Justice Department information on Charles Pickering: http:/ /www.usdoj.gov/olp/pickering.htm 12/13/02 02:46 EST Copyright 2002 The Associated Press. The informat ion contained in the AP news report may not be published, broadcast, rewritten or otherwise distribute d without the prior written authority of The Associated Press. All active hyperlinks have been inserted by AOL. EXT-18-2091-C-000389 007104-001110 Document ID: 0.7.19343.8765 Charnes, Adam From : Chames , Adam Sent : Tuesday, December 24, 2002 11:02 AM To: 'Benjamin_A._Powell@who.eop.gov '; Willett, Don; Remington , Krist i L; Joy, Shei la; Dinh, Viet Cc: 'Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: Pryor and Steele - Original Message-- From: Benjamin_A._Powe ll@who.eop.gov [mailto:Benjam in_ A._ Powell@who.eop.gov] Sent~ Tuesday , December 24, 2002 10:43 AM To: Charnes , Adam; Willett , Don; Remington, Krist i L; Joy, Sheila; Dinn, Viet Cc: Brett_M._Kavanaugh@who.eop.go v Subject: Re: Pryor and Steele Go ahead and send forms to Pryor at his home address: Also, go ahead and contact Stee le if there is anything needed from him -- Thanks. EXT-18-2091-C-000390 007104-001111 Document ID: 0.7.19343.5355 Charnes, Adam From : Chames , Adam Sent : Tuesday, December 24, 2002 11:02 AM To: 'Benjamin_A._Powell@who.eop.gov '; Willett, Don; Remington , Krist i L; Joy, Shei la; Dinh, Viet Cc: 'Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: Pryor and Steele - Original Message-- From: Benjamin_A._Powe ll@who.eop.gov [mailto:Benjam in_ A._ Powell@who.eop.gov] Sent~ Tuesday , December 24, 2002 10:43 AM To: Charnes , Adam; Willett , Don; Remington, Krist i L; Joy, Sheila; Dinn, Viet Cc: Brett_M._Kavanaugh@who.eop.go v Subject: Re: Pryor and Steele Go ahead and send forms to Pryor at his home address: Also, go ahead and contact Stee le if there is anything needed from him -- Thanks. EXT-18-2091-C-000390 007104-001111 Document ID: 0.7.19343.5355 Dinh, Viet From : Dinh, Viet Sent : Sunday, January 5, 2003 1:09 PM To : 'Benjamin_A._Powell@who.eop.gov'; Charnes, Adam; 'Alberto _R._ Gonzales@who.eop.gov '; ' David_ G._ leitch@who.eop.gov'; ett_M._Kavanaugh@who.eop.gov ' ' Br RE: Pryor Su bjec t : Thanks. Nicely played . --Orig inal Message--From: Benjamin_A._Powell@who.eop.gov [mailto :Benjamin _A._ Powell@who.eop.gov] Sent: Sunday , January OS, 2003 10:48 AM To: Charnes, Adam; Dinh, Viet; Alberto _ R._ Gonzales@who.eop.gov; David_G._Leitd,@who.eop.gov; Brett_M._Kavanaugh@who.e-op.gov Subject: Fw: Pryor Article below is from Sunday morning Birmingham News. From: To:Benjamin A. Powell/WHO / EOP@EOP Cc: Date: 01/05/2003 10:36:00 AM Subject: Pryor Pryor up for ju dgeship 01/05/03 MARYORNDORFF News Washington correspondent WASHINGTONThe White House is considering Alabama Attorney General Bill Pryor for a lifetime appo intment to a high-level federal judgeship, accor ding to Sen. Jeff Sessions' office. "It is no secret that Pres ident Bush believes Bill Pryor is a superb lawyer and attorney general ,'' said IIA:~l,.~~ I O r , ,m ~r r-~ l-~ rm~~ ~~r C~ r r:~-r "C~- C~ rr :~-r r lc.~ r ~- 4-h~4-, ,:~ooo ~-.J t-~l:~ .. ~r o:11 D~ ,~r EXT-18-2091-C-000391 007104-001112 Document ID: 0.7.19343.8792 Dinh, Viet From : Dinh, Viet Sent : Sunday, January 5, 2003 1:09 PM To : 'Benjamin_A._Powell@who.eop.gov'; Charnes, Adam; 'Alberto _R._ Gonzales@who.eop.gov '; ' David_ G._ leitch@who.eop.gov'; ett_M._Kavanaugh@who.eop.gov ' ' Br RE: Pryor Su bjec t : Thanks. Nicely played . --Orig inal Message--From: Benjamin_A._Powell@who.eop.gov [mailto :Benjamin _A._ Powell@who.eop.gov] Sent: Sunday , January OS, 2003 10:48 AM To: Charnes, Adam; Dinh, Viet; Alberto _ R._ Gonzales@who.eop.gov; David_G._Leitd,@who.eop.gov; Brett_M._Kavanaugh@who.e-op.gov Subject: Fw: Pryor Article below is from Sunday morning Birmingham News. From: To:Benjamin A. Powell/WHO / EOP@EOP Cc: Date: 01/05/2003 10:36:00 AM Subject: Pryor Pryor up for ju dgeship 01/05/03 MARYORNDORFF News Washington correspondent WASHINGTONThe White House is considering Alabama Attorney General Bill Pryor for a lifetime appo intment to a high-level federal judgeship, accor ding to Sen. Jeff Sessions' office. "It is no secret that Pres ident Bush believes Bill Pryor is a superb lawyer and attorney general ,'' said IIA:~l,.~~ I O r , ,m ~r r-~ l-~ rm~~ ~~r C~ r r:~-r "C~- C~ rr :~-r r lc.~ r ~- 4-h~4-, ,:~ooo ~-.J t-~l:~ .. ~r o:11 D~ ,~r EXT-18-2091-C-000391 007104-001112 Document ID: 0.7.19343.8792 IVlll.. .ll dt:: I 01 UII Id ::,, ::,fJUl'l.t::::,1t1dll I UI .:>t::::,::,1u 1 1::,. .:>t:: I , o .:>t::~::,1u11::, ::,1 ld l t::::, U ld l Vlt::IIV di IU I.Jt::llt::Vt::::, DIii l"I yu, would be a magnificent circuit judge." The White House has inquired about Pryer's credenti a ls for appointment to the 11th U.S. Circuit Court of Appeals, a fe.dera l court that handles appeals from Alabama, Georgia and Florida and is one step below the U.S. Supreme Court. Pryor, a politically active and ideo logically conservative state prosecutor, has developed ties in the White House and around Washington since Bush's election. He said last month he woul d accept a nomination if it were offered. Pryor de cline d comment Satu rday night. The timing of Pryer's nomi nat ion would be ideal, several Republicans said Friday. The GOP retook control of the Senate in the last election , giving Bush nominees the chance for a smoother confi rmation ride through the Judiciary Committee. Also, Pryor would leave his post as attorney general during Gov.-elect Bob Riley's term, meaning a Republican would appoint Pryer's replacement. The appointment would be early enough in the term to give the new prosecutor a lengthy time in office before facing election in 2006. Pryer's nomination also would signal a desire by Republicans stung by the recent resignation of Sen. Tre nt Lott, R-Miss., as party leade r to dodge another confrontation over race. Bush's original nominee to the 11th Circuit, William Steele of Mobile, is opposed by black groups and has langu ished for 15 months without a confirmation hearing before the Senate Judiciary Committee. Steele, already a federal magistrate, could instead be nominated for a district court pos ition, a lower level than the appellate court. "Sen. Sessions believes the president has complete confidence in Bill Steele and th e senator expects thatJudge Steele will be nominated for a federal judgeship shortly, " Brumas said. Objections to Steele: The Southern Christian Leadership Conference and the NAACPlast year objected to Steele 's nomination because of a 2001 opinion he issued in a racial ha rassment case filed by black employees at a Pennington pape r mill. Although Steele found evidence of racially insensitive remarks in the workplace, he dismissed the case in favor of the mill's owner because the em ployees failed to meet seve ral legal requirements. The 11th Circuit recently reversed Steele 's decision and Sess ions said then that the reversal was due to changes in the law, not a mistake by Steele. But since Lott's glowing praise of a one-time segregationist presidential can didate, Republicans are especially vulnerable to allegations of racial insensitivity, and the criticis m of Steele's original ruling would un doubtedly resu rface. Swapping Steele for Pryor, however, does not guarantee a noncontroversial confirmation hearing. EXT-18-2091-C-000392 007104-001113 Document ID: 0.7.19343 .8792 IVlll.. .ll dt:: I 01 UII Id ::,, ::,fJUl'l.t::::,1t1dll I UI .:>t::::,::,1u 1 1::,. .:>t:: I , o .:>t::~::,1u11::, ::,1 ld l t::::, U ld l Vlt::IIV di IU I.Jt::llt::Vt::::, DIii l"I yu, would be a magnificent circuit judge." The White House has inquired about Pryer's credenti a ls for appointment to the 11th U.S. Circuit Court of Appeals, a fe.dera l court that handles appeals from Alabama, Georgia and Florida and is one step below the U.S. Supreme Court. Pryor, a politically active and ideo logically conservative state prosecutor, has developed ties in the White House and around Washington since Bush's election. He said last month he woul d accept a nomination if it were offered. Pryor de cline d comment Satu rday night. The timing of Pryer's nomi nat ion would be ideal, several Republicans said Friday. The GOP retook control of the Senate in the last election , giving Bush nominees the chance for a smoother confi rmation ride through the Judiciary Committee. Also, Pryor would leave his post as attorney general during Gov.-elect Bob Riley's term, meaning a Republican would appoint Pryer's replacement. The appointment would be early enough in the term to give the new prosecutor a lengthy time in office before facing election in 2006. Pryer's nomination also would signal a desire by Republicans stung by the recent resignation of Sen. Tre nt Lott, R-Miss., as party leade r to dodge another confrontation over race. Bush's original nominee to the 11th Circuit, William Steele of Mobile, is opposed by black groups and has langu ished for 15 months without a confirmation hearing before the Senate Judiciary Committee. Steele, already a federal magistrate, could instead be nominated for a district court pos ition, a lower level than the appellate court. "Sen. Sessions believes the president has complete confidence in Bill Steele and th e senator expects thatJudge Steele will be nominated for a federal judgeship shortly, " Brumas said. Objections to Steele: The Southern Christian Leadership Conference and the NAACPlast year objected to Steele 's nomination because of a 2001 opinion he issued in a racial ha rassment case filed by black employees at a Pennington pape r mill. Although Steele found evidence of racially insensitive remarks in the workplace, he dismissed the case in favor of the mill's owner because the em ployees failed to meet seve ral legal requirements. The 11th Circuit recently reversed Steele 's decision and Sess ions said then that the reversal was due to changes in the law, not a mistake by Steele. But since Lott's glowing praise of a one-time segregationist presidential can didate, Republicans are especially vulnerable to allegations of racial insensitivity, and the criticis m of Steele's original ruling would un doubtedly resu rface. Swapping Steele for Pryor, however, does not guarantee a noncontroversial confirmation hearing. EXT-18-2091-C-000392 007104-001113 Document ID: 0.7.19343 .8792 Extensive record: Pryor has been the most active state prosecutor in the country in pressing cases of interest to the U.S. Supreme Court, and he has an extensive record of speeches, articles and cong ressional testimony on important federal issues. Pryor has taken strident positions supporting the right to student-led prayer in public schools, promoting states ' rights over the federal government's and protecting Second Amendment rights on gun ownership, to name just a few. His conservative record also provides Democrats, especially wary of strident anti-abortion Bush nominees to the bench, with plenty of ammunition. nour greatest right is the right to life," Pryor said in a 2000 rally promoting restrictions on a woman 's access to abortions in Alabama. Pryor opposed the multistate lawsuit against the tobacco companies, and he advocated giving utility companies more freedom to upgrade their coal-fired power plants without being forced to add pollution control devices. He defends Alabama Supreme Court Chief Justice Roy Moore 's decision to prominently display the Ten Commandments in the state jud icial bu ilding and helped write rules that provide fewe r automatic appeals of death penalty cases. For Sessions, escorting Pryor's nomination through Senate confirmation would be pleasantly ironic as Sessions ' own chance at the federal bench was scuttled years ago by allegations of racial insensitivity. Pryor was a Sessions protege at the attorney general's office, and Pryor replaced Sessions in the top job when Sessions was elected to the Senate in 1996. Pryor, now 40, was appointed attorney gene ral by Gov. Fob James and has twice won re-election, most recently last year. Solidly conservative: Ideologically, Pryor's record is solidly conservative. Politically, it's murkier. He's angered some state Republicans at times , as in 2001 when he sided with Gov. Don Siegelman in the governor's ability to cut higher education more deeply than K-12 during a budget crisis. Most recently, his opinion in the debate over a recounting of the votes in the closely contested governor 's race favore d Riley. In that election cycle, Sessions an d Pryor were the top two vote-getters in the state. Pryor would be another in a long line of high-level Bush appointees who are active in the Federalist Society, an association of legal scholars and lawyers promoting the conservative principles of limited government. Pryor's 1998 campaign was aide d by consultant Karl Rove, now the president 's top political adviser. The two have stayed in touch, evidenced by Pryor's recent ride aboard Air Force One arranged by Rove. The opening on the appellate court was created when Emmett Ripley Cox, an Alabama native and appointee of Presi dent Reagan, announced in December 2000 that he was stepping down from handling cases. EXT-18-2091-C-000393 007104-001114 Document ID: 0.7.19343 .8792 Extensive record: Pryor has been the most active state prosecutor in the country in pressing cases of interest to the U.S. Supreme Court, and he has an extensive record of speeches, articles and cong ressional testimony on important federal issues. Pryor has taken strident positions supporting the right to student-led prayer in public schools, promoting states ' rights over the federal government's and protecting Second Amendment rights on gun ownership, to name just a few. His conservative record also provides Democrats, especially wary of strident anti-abortion Bush nominees to the bench, with plenty of ammunition. nour greatest right is the right to life," Pryor said in a 2000 rally promoting restrictions on a woman 's access to abortions in Alabama. Pryor opposed the multistate lawsuit against the tobacco companies, and he advocated giving utility companies more freedom to upgrade their coal-fired power plants without being forced to add pollution control devices. He defends Alabama Supreme Court Chief Justice Roy Moore 's decision to prominently display the Ten Commandments in the state jud icial bu ilding and helped write rules that provide fewe r automatic appeals of death penalty cases. For Sessions, escorting Pryor's nomination through Senate confirmation would be pleasantly ironic as Sessions ' own chance at the federal bench was scuttled years ago by allegations of racial insensitivity. Pryor was a Sessions protege at the attorney general's office, and Pryor replaced Sessions in the top job when Sessions was elected to the Senate in 1996. Pryor, now 40, was appointed attorney gene ral by Gov. Fob James and has twice won re-election, most recently last year. Solidly conservative: Ideologically, Pryor's record is solidly conservative. Politically, it's murkier. He's angered some state Republicans at times , as in 2001 when he sided with Gov. Don Siegelman in the governor's ability to cut higher education more deeply than K-12 during a budget crisis. Most recently, his opinion in the debate over a recounting of the votes in the closely contested governor 's race favore d Riley. In that election cycle, Sessions an d Pryor were the top two vote-getters in the state. Pryor would be another in a long line of high-level Bush appointees who are active in the Federalist Society, an association of legal scholars and lawyers promoting the conservative principles of limited government. Pryor's 1998 campaign was aide d by consultant Karl Rove, now the president 's top political adviser. The two have stayed in touch, evidenced by Pryor's recent ride aboard Air Force One arranged by Rove. The opening on the appellate court was created when Emmett Ripley Cox, an Alabama native and appointee of Presi dent Reagan, announced in December 2000 that he was stepping down from handling cases. EXT-18-2091-C-000393 007104-001114 Document ID: 0.7.19343 .8792 I I IC. V Y I II\.C IIUU:)C .:n::ICl...-1..=> I IVllllllt::'C ..:> IUJ U JC JC"UC'IQI OfJfJCIIO\.C \..VU J I..:) UU\. IIC '"-fYC l l UY \..Vr J :>UI~ VYIU I UIC' senators from their home states. Copyright 2003 al.com. All Rights Reserved. Do you Yahoo!? Yahoo! Ma il Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com EXT-18-2091-C-000394 007104-001115 Document ID: 0.7.19343.8792 I I IC. V Y I II\.C IIUU:)C .:n::ICl...-1..=> I IVllllllt::'C ..:> IUJ U JC JC"UC'IQI OfJfJCIIO\.C \..VU J I..:) UU\. IIC '"-fYC l l UY \..Vr J :>UI~ VYIU I UIC' senators from their home states. Copyright 2003 al.com. All Rights Reserved. Do you Yahoo!? Yahoo! Ma il Plus - Powerful. Affordable. Sign up now. http://mailplus.yahoo.com EXT-18-2091-C-000394 007104-001115 Document ID: 0.7.19343.8792 Goodling, Monica From: Sent: To: Subject: Goodling, Monica Tuesday, January 07, 2003 6:01 PM Dinh, Viet; Charnes, Adam; Remington, Kristi L; Willett, Don; Benczkowski, Brian A; Brett Kavanaugh (E-mail); Ashley Snee (E-mail) AP story going up on Pickering and renoms any time now... ... sourced to senate, will send asap. Ashley - I understand you have talking points on Pickering -- please let me know if you want to handle all calls for Admin., or send me over the TPs so I can be fully consistent with you. EXT-18-2091-C-000395 007104-001116 Document ID: 0.7.19343.5381 Goodling, Monica From: Sent: To: Subject: Goodling, Monica Tuesday, January 07, 2003 6:01 PM Dinh, Viet; Charnes, Adam; Remington, Kristi L; Willett, Don; Benczkowski, Brian A; Brett Kavanaugh (E-mail); Ashley Snee (E-mail) AP story going up on Pickering and renoms any time now... ... sourced to senate, will send asap. Ashley - I understand you have talking points on Pickering -- please let me know if you want to handle all calls for Admin., or send me over the TPs so I can be fully consistent with you. EXT-18-2091-C-000395 007104-001116 Document ID: 0.7.19343.5381 Willett, Don From: Sent: To: Subject: Willett, Don Thursday, January 9, 2003 12:09 PM Heather Wingate (E-mail); Brett Kavanaugh (E-mail) Frist's "Mashburn" -- Manny Miranda Manny cornered me after this morning's Hill mtg. and wondered what I knew re. the Frist position. (b) (6) (b) (5) Do any of you have any intell on this? Obviously, Mann I told Manny I'd try to find out. (b) (5) Anything either of you can do? Thanks. DRW EXT-18-2091-C-000396 007104-001117 Document ID: 0.7.19343.5390 Willett, Don From: Sent: To: Subject: Willett, Don Thursday, January 9, 2003 12:09 PM Heather Wingate (E-mail); Brett Kavanaugh (E-mail) Frist's "Mashburn" -- Manny Miranda Manny cornered me after this morning's Hill mtg. and wondered what I knew re. the Frist position. (b) (6) (b) (5) Do any of you have any intell on this? Obviously, Mann I told Manny I'd try to find out. (b) (5) Anything either of you can do? Thanks. DRW EXT-18-2091-C-000396 007104-001117 Document ID: 0.7.19343.5390 Dinh, Viet From : Dinh, Viet Sent : Tuesday, January 28, 2003 6:57 PM To: 'Oavid_G._Leitch@who.eop.gov ' ; ' Kavanaugh, Brett'; 'Bartolomucci, Chris' Subje ct : FW: Sutton press availability --Original Message- -From: Miranda, Manuel (Judiciary) (mailto:Manuel _ Miranda@Judiciary.senate.gov) Sent: Tuesday, January 28, 2003 6:54 PM To: Dinh, Viet; Sales, Nathan Cc: Charnes, Adam; Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE: Sutton press availability DOJ people and WH with ID should go in the usual way, not the reception door. -Original Message-From: Sales, Nathan [mailto:Nathan.Sales@usdoj.gov) Sent: Tuesday, January 28, 2003 6:44 PM To: Dinh, Viet; Miranda, Manuel (Judiciary) Cc: Goodling, Monica; Corallo, Mark; Brown, Jamie E ( OLA); Benczkowski , Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary} Subject: RE: Sutton press availability We may need to add others, but the list should include the following OOJ and WH people: Viet Dinh Adam Charnes Brian Benczkowski Lizette Benedi Nathan Sales Sheila Joy Nancy Scotfinan Jamie Brown Mark Corallo Brett Kavanaugh Kyle Sampson Heather Wingate -Original cr~mo Message- 1111:r~~.J~ f. ~~~o ,~I I I, ,.J:~:~~o\ EXT-18-2091-C-000397 007104-001118 Document ID: 0.7.19343.9025 Dinh, Viet From : Dinh, Viet Sent : Tuesday, January 28, 2003 6:57 PM To: 'Oavid_G._Leitch@who.eop.gov ' ; ' Kavanaugh, Brett'; 'Bartolomucci, Chris' Subje ct : FW: Sutton press availability --Original Message- -From: Miranda, Manuel (Judiciary) (mailto:Manuel _ Miranda@Judiciary.senate.gov) Sent: Tuesday, January 28, 2003 6:54 PM To: Dinh, Viet; Sales, Nathan Cc: Charnes, Adam; Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE: Sutton press availability DOJ people and WH with ID should go in the usual way, not the reception door. -Original Message-From: Sales, Nathan [mailto:Nathan.Sales@usdoj.gov) Sent: Tuesday, January 28, 2003 6:44 PM To: Dinh, Viet; Miranda, Manuel (Judiciary) Cc: Goodling, Monica; Corallo, Mark; Brown, Jamie E ( OLA); Benczkowski , Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary} Subject: RE: Sutton press availability We may need to add others, but the list should include the following OOJ and WH people: Viet Dinh Adam Charnes Brian Benczkowski Lizette Benedi Nathan Sales Sheila Joy Nancy Scotfinan Jamie Brown Mark Corallo Brett Kavanaugh Kyle Sampson Heather Wingate -Original cr~mo Message- 1111:r~~.J~ f. ~~~o ,~I I I, ,.J:~:~~o\ EXT-18-2091-C-000397 007104-001118 Document ID: 0.7.19343.9025 rl VIII, IVIII dlJUd 1 IVl d l IU~I \JUUl\..l d f y/ [mailto:Manuel _ Miranda@Judiciary.senate.gov) Sent : Tuesday, January 28, 2003 6:37 PM To: Dinh, Viet; Sales, Nathan Cc: Goodling , Monica; Corallo , Mark; Brown, Jamie E (OlA); Benczkowski, Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE:Sutton press availabil ity Unless you hear differentlt tomight, this is the way we are handling special admits: We will have a list in Room 224, next to the entrance. These folks nee d to be there no later than 9:20. They will be admitted through the back door. YOU need to tell us who to place on a list for our receptionist. And you need to make sure that these folks know that they have to be on a list and what the discreet drill is. All others should go to the regular door. Tomorrow we will let in the SOfriends and family thru the main entrance , and we will have an overflow room for any overflow. - Original Message- From: Sales, Nathan [mailto:Nathan.Sales@us doj.gov) Sent: Tuesday , January 28, 2003 5:11 PM To: Dinh, Viet Cc: Charnes , Adam; Benczkowsk i, Brian A; Brown, Jamie E (OLA); Corallo, Mark; Goodling, Monica; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary}; Miranda, Manuel (Judiciary) Subject: Sutton press availability Viet, Here 's an update on the Sutton press availability . As of right now, we don 't have a room reserved , as they apparently are booked already. No room at the inn. Mark Corallo assures me that this isn 't a major problem, and that he'll be able to shepherd Jeff's surrogates around the room and int roduce them to the press . Which brings us to who will be attending the hearing. We 've ident ified and reached out to the following potential surrogates: (1) Mike Beattie, 703-267-6588, executive director of National Coalition for Students with Disabilities (2) Bonnie Campbell, former Clinton nominee to the 8th Circuit (3) Richard Cordray , 614-539-166 1, Democratic officeholder in Ohio, and Sutton 's co-counsel in a case defending constitutionality of Ohio 's hat e-crim es law (4) Sen. Bob Dole (S} John Edgell, Democratic lobbyist and former staffer to Dashcle, Harkin, and Breaux (6) Boyden Gray, 202-663-6888 (7) Fred Pressley, 614-227-2233 , Ohio civil-rights lawyer, and Sutton ' s co-counsel in a case defending constitutionality of Ohio ' s minority set-asides law (8) Russell Redenbaugh, a disabled member of the U.S. Civil Rights Commission EXT-18-2091-C-000398 007104-001119 Document ID: 0.7.19343 .9025 rl VIII, IVIII dlJUd 1 IVl d l IU~I \JUUl\..l d f y/ [mailto:Manuel _ Miranda@Judiciary.senate.gov) Sent : Tuesday, January 28, 2003 6:37 PM To: Dinh, Viet; Sales, Nathan Cc: Goodling , Monica; Corallo , Mark; Brown, Jamie E (OlA); Benczkowski, Brian A; Charnes, Adam; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: RE:Sutton press availabil ity Unless you hear differentlt tomight, this is the way we are handling special admits: We will have a list in Room 224, next to the entrance. These folks nee d to be there no later than 9:20. They will be admitted through the back door. YOU need to tell us who to place on a list for our receptionist. And you need to make sure that these folks know that they have to be on a list and what the discreet drill is. All others should go to the regular door. Tomorrow we will let in the SOfriends and family thru the main entrance , and we will have an overflow room for any overflow. - Original Message- From: Sales, Nathan [mailto:Nathan.Sales@us doj.gov) Sent: Tuesday , January 28, 2003 5:11 PM To: Dinh, Viet Cc: Charnes , Adam; Benczkowsk i, Brian A; Brown, Jamie E (OLA); Corallo, Mark; Goodling, Monica; Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary}; Miranda, Manuel (Judiciary) Subject: Sutton press availability Viet, Here 's an update on the Sutton press availability . As of right now, we don 't have a room reserved , as they apparently are booked already. No room at the inn. Mark Corallo assures me that this isn 't a major problem, and that he'll be able to shepherd Jeff's surrogates around the room and int roduce them to the press . Which brings us to who will be attending the hearing. We 've ident ified and reached out to the following potential surrogates: (1) Mike Beattie, 703-267-6588, executive director of National Coalition for Students with Disabilities (2) Bonnie Campbell, former Clinton nominee to the 8th Circuit (3) Richard Cordray , 614-539-166 1, Democratic officeholder in Ohio, and Sutton 's co-counsel in a case defending constitutionality of Ohio 's hat e-crim es law (4) Sen. Bob Dole (S} John Edgell, Democratic lobbyist and former staffer to Dashcle, Harkin, and Breaux (6) Boyden Gray, 202-663-6888 (7) Fred Pressley, 614-227-2233 , Ohio civil-rights lawyer, and Sutton ' s co-counsel in a case defending constitutionality of Ohio ' s minority set-asides law (8) Russell Redenbaugh, a disabled member of the U.S. Civil Rights Commission EXT-18-2091-C-000398 007104-001119 Document ID: 0.7.19343 .9025 (9) Alan Reich, 202-293-5960, president of National Organization on Disability (10) Benson Wolman , 614-280-1000, former head of the Ohio ACLU. As of now, three people have committed to attending the hearing--Bob Dole (who will be there at the beginning), Mike Beattie, and John Edgell-and Bonnie Campbell is going to try to be there. In addition , Alan Reich has agreed to take phone calls from media representatives. This seems to me to be a pretty strong line-up. I' ll keep you appraised as we learn more. Nathan EXT-18-2091-C-000399 007104-001120 Document ID: 0.7.19343 .9025 (9) Alan Reich, 202-293-5960, president of National Organization on Disability (10) Benson Wolman , 614-280-1000, former head of the Ohio ACLU. As of now, three people have committed to attending the hearing--Bob Dole (who will be there at the beginning), Mike Beattie, and John Edgell-and Bonnie Campbell is going to try to be there. In addition , Alan Reich has agreed to take phone calls from media representatives. This seems to me to be a pretty strong line-up. I' ll keep you appraised as we learn more. Nathan EXT-18-2091-C-000399 007104-001120 Document ID: 0.7.19343 .9025 Sales , Nathan From : Sales, Nathan Sent : Friday, January 31, 2003 1:21 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Subje ct : Fw: Liberals to hold audio press conf. on judges 2/5/03 Attachments: tmp.htm They forgot to mention the "disturbing pattern.". -Original Message-From: To: I Sent: Fri Jan 31 01:02:18 2003 Subject: Liberals to hold audio press conf. on judges 2/5/03 ACORN, ADA Watch/National Coalition for Disability Rights, Alliance for Justice, American Association of University Women, AFL-CIO,Americans for Democratic Action, Citizens' Commission on Civil Rights , GBParthJustice, Feminist Majority , Human Rights Campaign, International Union, United Automobile Workers of America , labor Council for Latin American Advancement , Lawyers ' Committee for Civil Rights Under Law, Leadership Conference on Civil Rights , Mexican American Legal Defense and Educational Fund, NAACP, NAACP Legal Defense and Educational Fund, NARALPro-Cho ice America, National Abortion Federation, National Black Caucus of State Legislators, National Coalition on Black Civic Participation, National Council of Jewish Women, National Employment lawyers Association, National Family Planning & Reproductive Health Association, National Organization for Women, National Partnership for Women & Families, National Senior Citizens Law Center, National Women's law Center , Open Society Policy Center, People For the American Way, Planned Parenthood Federation of America Inc., Sierra Club legal Defense, Inc. Me dia Advisory BROAD NATIONALCOALITIONCALLSJUDICIALNOMINEES"TROUBLING"SEEKS "FULLAND FAIR" SENATEHEARINGS Details at Audio Press Conference An unprecedented coalition of civil rights, environmental health and safety, consumer protection, reproductive choice, and health and worker's rights organizations have joined together to characteri ze the Bush Administration's recent federal appellate court nominees as "troubling." They are urging full and fair hearings by the U.S. Senate on each of the 31 ju dicia l nominees, including Charles Pickering and Priscilla Owen. EXT-18-2091-C-000400 007104-001121 Document ID: 0.7.19343.5511 Sales , Nathan From : Sales, Nathan Sent : Friday, January 31, 2003 1:21 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Subje ct : Fw: Liberals to hold audio press conf. on judges 2/5/03 Attachments: tmp.htm They forgot to mention the "disturbing pattern.". -Original Message-From: To: I Sent: Fri Jan 31 01:02:18 2003 Subject: Liberals to hold audio press conf. on judges 2/5/03 ACORN, ADA Watch/National Coalition for Disability Rights, Alliance for Justice, American Association of University Women, AFL-CIO,Americans for Democratic Action, Citizens' Commission on Civil Rights , ?arthJustice, Feminist Majority , Human Rights Campaign, International Union, United Automobile Workers of America , labor Council for Latin American Advancement , Lawyers ' Committee for Civil Rights Under Law, Leadership Conference on Civil Rights , Mexican American Legal Defense and Educational Fund, NAACP, NAACP Legal Defense and Educational Fund, NARALPro-Cho ice America, National Abortion Federation, National Black Caucus of State Legislators, National Coalition on Black Civic Participation, National Council of Jewish Women, National Employment lawyers Association, National Family Planning & Reproductive Health Association, National Organization for Women, National Partnership for Women & Families, National Senior Citizens Law Center, National Women's law Center , Open Society Policy Center, People For the American Way, Planned Parenthood Federation of America Inc., Sierra Club legal Defense, Inc. Me dia Advisory BROAD NATIONALCOALITIONCALLSJUDICIALNOMINEES"TROUBLING"SEEKS "FULLAND FAIR" SENATEHEARINGS Details at Audio Press Conference An unprecedented coalition of civil rights, environmental health and safety, consumer protection, reproductive choice, and health and worker's rights organizations have joined together to characteri ze the Bush Administration's recent federal appellate court nominees as "troubling." They are urging full and fair hearings by the U.S. Senate on each of the 31 ju dicia l nominees, including Charles Pickering and Priscilla Owen. EXT-18-2091-C-000400 007104-001121 Document ID: 0.7.19343.5511 Wade Henderson, Executive Dire-ctor of the leadership Conference on Civil Rights and other leaders of the coalition will hol d an audio press briefing for editorial writers and key reporters on Wednesday, February 5th at 2:00 p.m. (EST). AUDIO PRESSCONFERENCE WEDNESDAY,FEBRUARYS - 2 P.M. (EST} TOLL-FREECALL-IN#: 1-888-339-1203 To make a reservation or call Nancy Bennett, {800) 834- 111 0 SPEAKERS: Wade Hende rson , Execut ive Director, Leade rship Conference on Civil Rights Kate Michelman, President, NARALPro-Choice America and other coalition lead ers CONTACT: Nancy Bennett, (800) 834 -111 0 ### EXT-18-2091-C-000401 007104-001122 Document ID: 0.7.19343 .5511 Wade Henderson, Executive Dire-ctor of the leadership Conference on Civil Rights and other leaders of the coalition will hol d an audio press briefing for editorial writers and key reporters on Wednesday, February 5th at 2:00 p.m. (EST). AUDIO PRESSCONFERENCE WEDNESDAY,FEBRUARYS - 2 P.M. (EST} TOLL-FREECALL-IN#: 1-888-339-1203 To make a reservation or call Nancy Bennett, {800) 834- 111 0 SPEAKERS: Wade Hende rson , Execut ive Director, Leade rship Conference on Civil Rights Kate Michelman, President, NARALPro-Choice America and other coalition lead ers CONTACT: Nancy Bennett, (800) 834 -111 0 ### EXT-18-2091-C-000401 007104-001122 Document ID: 0.7.19343 .5511 ACORN, ADA Watch/NationalCoalition for Disability Rights, Alliance for Justrce, American Association of UniversityWomen, AFL-CIO, Amerrcansfor DemocraticAction, Citizens' Commissionon CrvflRights, EarthJustice, Feminist Majority, HumanRights Campaign, InternationalUnion, UnitedAutomobile Workers of America, Labor Councilfor Latin American Advancement, Lawyers'Committeefor Civfl Rights UnderLaw, Leadership Conferenceon Civil Rights, MexicanAmerican Legal Defenseand Educational Fund, NAACP, NAACP Legal Defenseand Educational Fund, NARAL Pr0-ChoiceAmerica, NationalAbortion Federation, National Black Caucus of State Legislators, NationalCoaHtionon Black Civic Participation, NationalCouncil of JewishWomen, National EmploymentLawyersAssociatlon, NationalFamily Planning& ReproductiveHealthAssociation, NationalOrganizattonfor Women, NaUonal Partnershipfor Women & Families, National Senior Citi2-ensLaw Center, NationalWomen's Law Center, Open Society Policy Genter, Peopfe For the AmericanWay, PlannedParenthood Federation of America Inc., Sierra Club Legal Defense, Inc. Med ia Adv isory BROAD NATIONAL COALITION CALLS JUDICIAL NOMINEES "TROUBLING" SEEKS "FULL AND FAIR" SENATE HEARINGS Details at Au dio Press Confe rence An unprecedentedcoalition of civil rights, environmentalhealthand safety, consumerprotection, reproductivechoice, and healthand worker's rights organizationshavejoined togetherto characterizethe BushAdministration'srecentfederal appellate court nomineesas "troubling." They are urgingfull and fair hearings by the U.S. Senate on each of the 3 1 judicial nominees, includingCharles Pickedng and Priscilla Owen. Wade Henderson, ExecutrveDirector of the Leadership Conferenceon Civil Rights and other leaders of the coaMionwill hotd an audropress briefing for editorial writers and key reporters on Wednesday, February5th at 2:00 p.m. (EST). AUDIO PRESS CONFERENCE WEDNESDA Y , FEBRUARY 5 - 2 P.M. (EST} TOLL-FREE CALL-IN#: 1-888-339- 1203 To make a reservation or call NancyBennett, (800) 834-1110 SPEAKERS: Wade Hende rson , Executive Director, Leadership Conference on Civil Rights Kate Miche lman , Presiden t, NARAL Pro-Choice America and other coal ition leaders EXT-18-2091-C-000402 007104-001123 Document ID: 0.7.19343.5511-00000 1 ACORN, ADA Watch/NationalCoalition for Disability Rights, Alliance for Justrce, American Association of UniversityWomen, AFL-CIO, Amerrcansfor DemocraticAction, Citizens' Commissionon CrvflRights, EarthJustice, Feminist Majority, HumanRights Campaign, InternationalUnion, UnitedAutomobile Workers of America, Labor Councilfor Latin American Advancement, Lawyers'Committeefor Civfl Rights UnderLaw, Leadership Conferenceon Civil Rights, MexicanAmerican Legal Defenseand Educational Fund, NAACP, NAACP Legal Defenseand Educational Fund, NARAL Pr0-ChoiceAmerica, NationalAbortion Federation, National Black Caucus of State Legislators, NationalCoaHtionon Black Civic Participation, NationalCouncil of JewishWomen, National EmploymentLawyersAssociatlon, NationalFamily Planning& ReproductiveHealthAssociation, NationalOrganizattonfor Women, NaUonal Partnershipfor Women & Families, National Senior Citi2-ensLaw Center, NationalWomen's Law Center, Open Society Policy Genter, Peopfe For the AmericanWay, PlannedParenthood Federation of America Inc., Sierra Club Legal Defense, Inc. Med ia Adv isory BROAD NATIONAL COALITION CALLS JUDICIAL NOMINEES "TROUBLING" SEEKS "FULL AND FAIR" SENATE HEARINGS Details at Au dio Press Confe rence An unprecedentedcoalition of civil rights, environmentalhealthand safety, consumerprotection, reproductivechoice, and healthand worker's rights organizationshavejoined togetherto characterizethe BushAdministration'srecentfederal appellate court nomineesas "troubling." They are urgingfull and fair hearings by the U.S. Senate on each of the 3 1 judicial nominees, includingCharles Pickedng and Priscilla Owen. Wade Henderson, ExecutrveDirector of the Leadership Conferenceon Civil Rights and other leaders of the coaMionwill hotd an audropress briefing for editorial writers and key reporters on Wednesday, February5th at 2:00 p.m. (EST). AUDIO PRESS CONFERENCE WEDNESDA Y , FEBRUARY 5 - 2 P.M. (EST} TOLL-FREE CALL-IN#: 1-888-339- 1203 To make a reservation or call NancyBennett, (800) 834-1110 SPEAKERS: Wade Hende rson , Executive Director, Leadership Conference on Civil Rights Kate Miche lman , Presiden t, NARAL Pro-Choice America and other coal ition leaders EXT-18-2091-C-000402 007104-001123 Document ID: 0.7.19343.5511-00000 1 CONTACT: Nancy Bennett , (800) 834-1110 ### EXT-18-2091-C-000403 007104-001124 Document ID: 0.7.19343.5511-000001 CONTACT: Nancy Bennett , (800) 834-1110 ### EXT-18-2091-C-000403 007104-001124 Document ID: 0.7.19343.5511-000001 Joy, Sheila Joy, Sheila Friday, January 31, 2003 10:03 AM Dinh, Viet; Charnes, Adam; Remington, Kristi L; Sales, Nathan; Benczkowski, Brian A; Benedi, Lizette D; 'Brett_M._Kavanaugh@who.eop.gov' Subject: FW: Transcript Attachments: 01.29.03. SJC Panel 1 (Afternoon Session).doc From: Sent: To: -----Original Message----From: Scottfinan, Nancy Sent: Friday, January 31, 2003 9:26 AM To: Joy, Sheila FW: Transcript Subject: For whomever needs this in OLP -----Original Message----From: Rybicki, James E Sent: Friday, January 31, 2003 9:10 AM Brown, Jamie E (OLA); Scottfinan, Nancy To: Subject: Transcript Updated afternoon session transcript from 1/29. EXT-18-2091-C-000404 007104-001125 Document ID: 0.7.19343.9053 Joy, Sheila Joy, Sheila Friday, January 31, 2003 10:03 AM Dinh, Viet; Charnes, Adam; Remington, Kristi L; Sales, Nathan; Benczkowski, Brian A; Benedi, Lizette D; 'Brett_M._Kavanaugh@who.eop.gov' Subject: FW: Transcript Attachments: 01.29.03. SJC Panel 1 (Afternoon Session).doc From: Sent: To: -----Original Message----From: Scottfinan, Nancy Sent: Friday, January 31, 2003 9:26 AM To: Joy, Sheila FW: Transcript Subject: For whomever needs this in OLP -----Original Message----From: Rybicki, James E Sent: Friday, January 31, 2003 9:10 AM Brown, Jamie E (OLA); Scottfinan, Nancy To: Subject: Transcript Updated afternoon session transcript from 1/29. EXT-18-2091-C-000404 007104-001125 Document ID: 0.7.19343.9053 AFTERNOON SESSION OF PANEL ONE OF A HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: PENDING JUDICIAL NOMINATIONS CHAIRMAN: SENATOR ORRIN HATCH (R UT) WITNESSES: DEBORAH COOK, TO BE JUDGE FOR SIXTH CIRCUIT, USCA; JEFFREY SUTTON, TO BE JUDGE FOR THE SIXTH CIRCUIT, USCA; AND JOHN ROBERTS, TO BE JUDGE FOR D. C. CIRCUIT, USCA. LOCATION: DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D. C. TIME: 1: 35 P. M. , EST DATE: WEDNESDAY, JANUARY 29, 2003 Copyright (c) 2003 by Federal News Service, Inc. , Ste. 220 1919 M St. NW, Washington, DC 20036, USA. Federal News Service is a private firm not affiliated with the federal government. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person' s official duties. For information on subscribing to the FNS Internet Service, please email to info@fednews. com or call (202) 419 6167 SEN. HATCH: (Sounds gavel. ) We' ll call this meeting to order again. I don' t see any other senators here at this time, so I' ll j ust start it off with you, Mr. Roberts. I want to ask a few questions of you, and then hopefully if I have enough time, Justice Cook, I' ll ask a few of you as well. Now, and we now have this timer, so our poor guy doesn' t have to stand there with a little slip of paper. I felt sorry for him. It seems to me that both Mr. Roberts and Mr. Sutton are being criticized for positions they have taken as attorneys representing clients. This is patently unfair, and it' s inappropriate, because attorneys do represent clients, and they shouldn' t be j udged by who their clients are. And any of us who have tried cases know that sometimes our clients may not be savory, the case may be a good case who knows? Now, attorneys are required to represent their clients, and this is the case whether their client is the United States government, a state government, a private citizen or a corporation. And this fact is so fundamental is that it should go beyond reproach. In any legal matter, the arguments the lawyer makes in the role of a zealous advocate on behalf of a client are no measure of how that lawyer would rule if he were handling the same matter as a neutral and detached j udge. And I think it' s very unfair to imply that the j udgeship nominee would not follow the law. Now, this is because lawyers have an ethical obligation to make all reasonable arguments that will advance their client' s interests. According to Rule 3. 1 of the ABA' s Model Rules of Professional Conduct, a lawyer may make any argument if, quote, "there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law, " unquote. Now, lawyers would violate their ethical duties to their client if they made only arguments with which they would agree, were they EXT-18-2091-C-000405 007104-001126 Document ID: 0.7.19343.9053-000001 AFTERNOON SESSION OF PANEL ONE OF A HEARING OF THE SENATE JUDICIARY COMMITTEE SUBJECT: PENDING JUDICIAL NOMINATIONS CHAIRMAN: SENATOR ORRIN HATCH (R UT) WITNESSES: DEBORAH COOK, TO BE JUDGE FOR SIXTH CIRCUIT, USCA; JEFFREY SUTTON, TO BE JUDGE FOR THE SIXTH CIRCUIT, USCA; AND JOHN ROBERTS, TO BE JUDGE FOR D. C. CIRCUIT, USCA. LOCATION: DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D. C. TIME: 1: 35 P. M. , EST DATE: WEDNESDAY, JANUARY 29, 2003 Copyright (c) 2003 by Federal News Service, Inc. , Ste. 220 1919 M St. NW, Washington, DC 20036, USA. Federal News Service is a private firm not affiliated with the federal government. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person' s official duties. For information on subscribing to the FNS Internet Service, please email to info@fednews. com or call (202) 419 6167 SEN. HATCH: (Sounds gavel. ) We' ll call this meeting to order again. I don' t see any other senators here at this time, so I' ll j ust start it off with you, Mr. Roberts. I want to ask a few questions of you, and then hopefully if I have enough time, Justice Cook, I' ll ask a few of you as well. Now, and we now have this timer, so our poor guy doesn' t have to stand there with a little slip of paper. I felt sorry for him. It seems to me that both Mr. Roberts and Mr. Sutton are being criticized for positions they have taken as attorneys representing clients. This is patently unfair, and it' s inappropriate, because attorneys do represent clients, and they shouldn' t be j udged by who their clients are. And any of us who have tried cases know that sometimes our clients may not be savory, the case may be a good case who knows? Now, attorneys are required to represent their clients, and this is the case whether their client is the United States government, a state government, a private citizen or a corporation. And this fact is so fundamental is that it should go beyond reproach. In any legal matter, the arguments the lawyer makes in the role of a zealous advocate on behalf of a client are no measure of how that lawyer would rule if he were handling the same matter as a neutral and detached j udge. And I think it' s very unfair to imply that the j udgeship nominee would not follow the law. Now, this is because lawyers have an ethical obligation to make all reasonable arguments that will advance their client' s interests. According to Rule 3. 1 of the ABA' s Model Rules of Professional Conduct, a lawyer may make any argument if, quote, "there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law, " unquote. Now, lawyers would violate their ethical duties to their client if they made only arguments with which they would agree, were they EXT-18-2091-C-000405 007104-001126 Document ID: 0.7.19343.9053-000001 the j udge or a j udge. Now, Mr. Roberts, although my Democrats are and some in the Senate and elsewhere have tried to paint you as an extremist, the truth is that you are a well respected appellate lawyer who has represented an extremely diverse group of clients before the courts. In fact, you have often represented clients of what is considered to be the so called, quote, "liberal, " unquote, position on issues. And I' d j ust like to ask you about a few of these cases. In the case of Barry v. Little, you represented welfare recipients in the District of Columbia, right? MR. ROBERTS: SEN. HATCH: That' s correct, Mr. Chairman. You took this case on a pro bono basis is that correct? MR. ROBERTS: SEN. HATCH: MR. ROBERTS: SEN. HATCH: services to them? MR. ROBERTS: Yes. Pro bono means that you didn' t get paid for it. No, I did not. You voluntarily represented these people and gave Yes. SEN. HATCH: Now, on another case, Hudson v. McMillan, you successful argued before the Supreme Court the claims of a prison inmate who alleged crucial and unusual punishment, didn' t you? MR. ROBERTS: Yes. I was representing the United States in that case. We filed a brief supporting the prisoner' s claim that his Eighth Amendment Rights had been violated by a beating. SEN. HATCH: Okay. In Rice v. Kaiatano (ph) , you argued on behalf of Hawaii' s Democratic attorney general and governor, both Democrats, in favor of a race conscious program to benefit Native Hawaiians, right? MR. ROBERTS: That' s correct, Mr. Chairman. It' s one of several cases that I found particularly gratifying where Democratic state attorneys general have retained me to represent their state in the Supreme Court. It' s happened on several other occasions as well. And a group of Democratic attorneys general, as well as a couple of Republican attorneys general, retained me to argue Microsoft' s antitrust case in the D. C. Circuit. I found that particularly gratifying because it indicated that they thought that my abilities were such that I would be able to represent them effectively, and certainly wouldn' t be dissuaded in any way by any political considerations. SEN. HATCH: Okay, let' s talk about the Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency. In that case you represented a state regulatory agency before the Supreme Court, arguing EXT-18-2091-C-000406 007104-001127 Document ID: 0.7.19343.9053-000001 the j udge or a j udge. Now, Mr. Roberts, although my Democrats are and some in the Senate and elsewhere have tried to paint you as an extremist, the truth is that you are a well respected appellate lawyer who has represented an extremely diverse group of clients before the courts. In fact, you have often represented clients of what is considered to be the so called, quote, "liberal, " unquote, position on issues. And I' d j ust like to ask you about a few of these cases. In the case of Barry v. Little, you represented welfare recipients in the District of Columbia, right? MR. ROBERTS: SEN. HATCH: That' s correct, Mr. Chairman. You took this case on a pro bono basis is that correct? MR. ROBERTS: SEN. HATCH: MR. ROBERTS: SEN. HATCH: services to them? MR. ROBERTS: Yes. Pro bono means that you didn' t get paid for it. No, I did not. You voluntarily represented these people and gave Yes. SEN. HATCH: Now, on another case, Hudson v. McMillan, you successful argued before the Supreme Court the claims of a prison inmate who alleged crucial and unusual punishment, didn' t you? MR. ROBERTS: Yes. I was representing the United States in that case. We filed a brief supporting the prisoner' s claim that his Eighth Amendment Rights had been violated by a beating. SEN. HATCH: Okay. In Rice v. Kaiatano (ph) , you argued on behalf of Hawaii' s Democratic attorney general and governor, both Democrats, in favor of a race conscious program to benefit Native Hawaiians, right? MR. ROBERTS: That' s correct, Mr. Chairman. It' s one of several cases that I found particularly gratifying where Democratic state attorneys general have retained me to represent their state in the Supreme Court. It' s happened on several other occasions as well. And a group of Democratic attorneys general, as well as a couple of Republican attorneys general, retained me to argue Microsoft' s antitrust case in the D. C. Circuit. I found that particularly gratifying because it indicated that they thought that my abilities were such that I would be able to represent them effectively, and certainly wouldn' t be dissuaded in any way by any political considerations. SEN. HATCH: Okay, let' s talk about the Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency. In that case you represented a state regulatory agency before the Supreme Court, arguing EXT-18-2091-C-000406 007104-001127 Document ID: 0.7.19343.9053-000001 in favor of limits on property development and in support of protection of the Lake Tahoe area. Is that correct? MR. ROBERTS: That' s correct, Your Honor. SEN. HATCH: Finally, in the 2001 landmark Microsoft antitrust case, you argued on behalf of the Clinton Justice Department. Who asked you to do that? MR. ROBERTS: It was the group of states that had j ointly pursued the litigation with the federal government. So it was actually the Democratic and Republican attorneys general representing their states that retained me to argue for them. SEN. HATCH: Okay. So you argued primarily on behalf of primarily Democratic state attorneys, is that right? MR. ROBERTS: Yes, Mr. Chairman. SEN. HATCH: Well, Mr. Roberts, a Legal times article that ran last May described you as, quote, "someone who has represented clients on both the conservative side and the liberal side of ideologically charged cases, and who has encountered no plausible criticism of his fitness to serve, " unquote. I think these cases that I' ve j ust mentioned there I' d ask you about illustrate this point perfectly. And I completely agree: I have yet to hear any plausible criticism of your fitness to serve in this very important position. Now, let me turn to you, Justice Cook, because I think it' s important that we at least look at some of the things that have been said about you. Now, it' s been alleged by a few trial attorney interest groups that you dissent too much, that you have written too many dissenting opinions, or that you have a, quote, "troubling pattern, " unquote, of dissenting. Of course this charge is easy to make, and it seems compelling on its face. However, out of basic fairness to you, Justice Cook, we should all recognize that these allegations do the work of implying that you regularly disregard precedent or favor certain parties without necessarily demonstrating that you do anything but conscientiously abide by precedent and faithfully interpret and apply the law. Now, since the charge has been made, however, Justice Cook, let me ask you a few questions about your record as an Ohio state j udge or j ustice. In general, Justice Cook, what would you say compels you to write or j oin in a dissent? MS. COOK: On those occasions, Mr. Chairman, where and the numbers have been cited there are occasions in my seven years where I write dissents more often than others on the court. I' m quite often the one who writes for the court in dissent. But the dissenting the importance of dissent in any court is to further the law. It' s a matter of fairness. On occasions my dissent results from a disagreement about the text at hand, a fair reading of the text, a procedural matter sometimes a disagreement on the statute of limitations. You know, it' s not often a matter of as has been implied it' s not a matter of my particular bent or preference for any side of the case; it' s simply EXT-18-2091-C-000407 007104-001128 Document ID: 0.7.19343.9053-000001 in favor of limits on property development and in support of protection of the Lake Tahoe area. Is that correct? MR. ROBERTS: That' s correct, Your Honor. SEN. HATCH: Finally, in the 2001 landmark Microsoft antitrust case, you argued on behalf of the Clinton Justice Department. Who asked you to do that? MR. ROBERTS: It was the group of states that had j ointly pursued the litigation with the federal government. So it was actually the Democratic and Republican attorneys general representing their states that retained me to argue for them. SEN. HATCH: Okay. So you argued primarily on behalf of primarily Democratic state attorneys, is that right? MR. ROBERTS: Yes, Mr. Chairman. SEN. HATCH: Well, Mr. Roberts, a Legal times article that ran last May described you as, quote, "someone who has represented clients on both the conservative side and the liberal side of ideologically charged cases, and who has encountered no plausible criticism of his fitness to serve, " unquote. I think these cases that I' ve j ust mentioned there I' d ask you about illustrate this point perfectly. And I completely agree: I have yet to hear any plausible criticism of your fitness to serve in this very important position. Now, let me turn to you, Justice Cook, because I think it' s important that we at least look at some of the things that have been said about you. Now, it' s been alleged by a few trial attorney interest groups that you dissent too much, that you have written too many dissenting opinions, or that you have a, quote, "troubling pattern, " unquote, of dissenting. Of course this charge is easy to make, and it seems compelling on its face. However, out of basic fairness to you, Justice Cook, we should all recognize that these allegations do the work of implying that you regularly disregard precedent or favor certain parties without necessarily demonstrating that you do anything but conscientiously abide by precedent and faithfully interpret and apply the law. Now, since the charge has been made, however, Justice Cook, let me ask you a few questions about your record as an Ohio state j udge or j ustice. In general, Justice Cook, what would you say compels you to write or j oin in a dissent? MS. COOK: On those occasions, Mr. Chairman, where and the numbers have been cited there are occasions in my seven years where I write dissents more often than others on the court. I' m quite often the one who writes for the court in dissent. But the dissenting the importance of dissent in any court is to further the law. It' s a matter of fairness. On occasions my dissent results from a disagreement about the text at hand, a fair reading of the text, a procedural matter sometimes a disagreement on the statute of limitations. You know, it' s not often a matter of as has been implied it' s not a matter of my particular bent or preference for any side of the case; it' s simply EXT-18-2091-C-000407 007104-001128 Document ID: 0.7.19343.9053-000001 really the reasoned elaboration of principle j udge is moved to dissent. is the reason why any SEN. HATCH: Okay. It' s my understanding that you also served as a j udge for the Ohio Court of Appeals for what was it, four years? MS. COOK: Yes, or yes. SEN. HATCH: Okay. Now, I also understand that as a member of the Court of Appeals you decided over 1, 000 cases. MS. COOK: SEN. HATCH: Supreme Court? That' s correct. How many times were you reversed by the Ohio MS. COOK: What' s been cited here of my decisions were ever reversed. it' s less than one percent SEN. HATCH: Do you know how many times the Ohio Supreme Court reversed an opinion in which you j oined? MS. COOK: as a percentage. SEN. HATCH: MS. COOK: It was fewer than 10 cases. The stats are fairly low About a one percent reversal rate? Yes. The percentage is less than one percent. SEN. HATCH: Okay. And I understand that the United States Supreme Court has granted certiorari in three cases the Ohio Supreme Court has decided. In all three cases the Supreme Court reversed. In all three cases, Justice Cook, I understand that the U. S. Supreme Court agreed with your dissent, and that you were the only one out of seven j ustices who ruled correctly in accordance with the U. S. Supreme Court' s ultimate resolution of the federal constitutional issues in all three cases. Is that correct? MS. COOK: That' s correct. SEN. HATCH: Okay. In State v. Robinette, Justice Cook, you j oined the dissent arguing that the court maj ority had developed a rule that was contrary to the Supreme Court precedent. The U. S. Supreme Court agreed and reversed the ruling. Is that right? MS. COOK: SEN. HATCH: MS. COOK: Yes. Agreed with you? Yes, they did. SEN. HATCH: In American Association of University Professors Central State University Chapter v. Central State University, you wrote the dissenting opinion, and the U. S. Supreme Court again agreed with you. EXT-18-2091-C-000408 007104-001129 Document ID: 0.7.19343.9053-000001 really the reasoned elaboration of principle j udge is moved to dissent. is the reason why any SEN. HATCH: Okay. It' s my understanding that you also served as a j udge for the Ohio Court of Appeals for what was it, four years? MS. COOK: Yes, or yes. SEN. HATCH: Okay. Now, I also understand that as a member of the Court of Appeals you decided over 1, 000 cases. MS. COOK: SEN. HATCH: Supreme Court? That' s correct. How many times were you reversed by the Ohio MS. COOK: What' s been cited here of my decisions were ever reversed. it' s less than one percent SEN. HATCH: Do you know how many times the Ohio Supreme Court reversed an opinion in which you j oined? MS. COOK: as a percentage. SEN. HATCH: MS. COOK: It was fewer than 10 cases. The stats are fairly low About a one percent reversal rate? Yes. The percentage is less than one percent. SEN. HATCH: Okay. And I understand that the United States Supreme Court has granted certiorari in three cases the Ohio Supreme Court has decided. In all three cases the Supreme Court reversed. In all three cases, Justice Cook, I understand that the U. S. Supreme Court agreed with your dissent, and that you were the only one out of seven j ustices who ruled correctly in accordance with the U. S. Supreme Court' s ultimate resolution of the federal constitutional issues in all three cases. Is that correct? MS. COOK: That' s correct. SEN. HATCH: Okay. In State v. Robinette, Justice Cook, you j oined the dissent arguing that the court maj ority had developed a rule that was contrary to the Supreme Court precedent. The U. S. Supreme Court agreed and reversed the ruling. Is that right? MS. COOK: SEN. HATCH: MS. COOK: Yes. Agreed with you? Yes, they did. SEN. HATCH: In American Association of University Professors Central State University Chapter v. Central State University, you wrote the dissenting opinion, and the U. S. Supreme Court again agreed with you. EXT-18-2091-C-000408 007104-001129 Document ID: 0.7.19343.9053-000001 MS. COOK: Not only did it agree we were pretty excited about the fact that they quoted the language of the dissent. SEN. HATCH: MS. COOK: Oh, that' s great. That doesn' t happen too often these days. SEN. HATCH: It was even quoted from your dissent. of a badge of honor to MS. COOK: That' s kind It was relished in my chambers. SEN. HATCH: I see. Well, in State v. Reiner, the Ohio court reversed the conviction of manslaughter against a father who killed his two month infant son on the grounds that the babysitter, who refused to testify but denied involvement in the infant' s death, did not have a valid Fifth Amendment right against self incrimination and was therefore improperly denied transactional immunity. You dissented in that, right? MS. COOK: SEN. HATCH: I did. I was the sole dissenter. Could you tell us why? MS. COOK: Well, my dissent was essentially set forth a fundamental principle that the guilty and the innocent enj oy a right against self incrimination. And so the fact that she denied this particular witness was granted transactional immunity because she denied all culpability did not deny her the right to invoke her Fifth Amendment privilege, as she did. SEN. HATCH: Well, you in dissent, to use my terms, argued that the immunity was proper because the sitter, babysitter, had reasonable cause to believe that her answers could put her in danger. MS. COOK: That' s right. She could provide a link. In fact, the defense the father' s defense was that indeed it was the babysitter who had shaken this infant and killed the infant. SEN. HATCH: I see. The Supreme Court again, of the United States of America, agreed with the dissent with your dissent and you were the sole dissenter, right? MS. COOK: That' s right. SEN. HATCH: And ruled that the babysitter was entitled to immunity because, despite her claim of innocence, she had reasonable cause to apprehend danger from her answers at trial? MS. COOK: Yes. And happily that decision by the U. S. Supreme Court was nine to nothing. So it was unanimous. SEN. HATCH: Justice Cook, a few others have charged that the so called obj ective observers view the Ohio Supreme Court as a moderate one, and that your dissenting opinions put you outside the mainstream. Now, I think that' s a pretty EXT-18-2091-C-000409 007104-001130 Document ID: 0.7.19343.9053-000001 MS. COOK: Not only did it agree we were pretty excited about the fact that they quoted the language of the dissent. SEN. HATCH: MS. COOK: Oh, that' s great. That doesn' t happen too often these days. SEN. HATCH: It was even quoted from your dissent. of a badge of honor to MS. COOK: That' s kind It was relished in my chambers. SEN. HATCH: I see. Well, in State v. Reiner, the Ohio court reversed the conviction of manslaughter against a father who killed his two month infant son on the grounds that the babysitter, who refused to testify but denied involvement in the infant' s death, did not have a valid Fifth Amendment right against self incrimination and was therefore improperly denied transactional immunity. You dissented in that, right? MS. COOK: SEN. HATCH: I did. I was the sole dissenter. Could you tell us why? MS. COOK: Well, my dissent was essentially set forth a fundamental principle that the guilty and the innocent enj oy a right against self incrimination. And so the fact that she denied this particular witness was granted transactional immunity because she denied all culpability did not deny her the right to invoke her Fifth Amendment privilege, as she did. SEN. HATCH: Well, you in dissent, to use my terms, argued that the immunity was proper because the sitter, babysitter, had reasonable cause to believe that her answers could put her in danger. MS. COOK: That' s right. She could provide a link. In fact, the defense the father' s defense was that indeed it was the babysitter who had shaken this infant and killed the infant. SEN. HATCH: I see. The Supreme Court again, of the United States of America, agreed with the dissent with your dissent and you were the sole dissenter, right? MS. COOK: That' s right. SEN. HATCH: And ruled that the babysitter was entitled to immunity because, despite her claim of innocence, she had reasonable cause to apprehend danger from her answers at trial? MS. COOK: Yes. And happily that decision by the U. S. Supreme Court was nine to nothing. So it was unanimous. SEN. HATCH: Justice Cook, a few others have charged that the so called obj ective observers view the Ohio Supreme Court as a moderate one, and that your dissenting opinions put you outside the mainstream. Now, I think that' s a pretty EXT-18-2091-C-000409 007104-001130 Document ID: 0.7.19343.9053-000001 strange charge, between you and me. The allegation of the court, as seen by most obj ective observers, as moderate and bipartisan, belies the facts. Let me quote what Ohio newspaper editorials have said and I' ll put all these editorials in the record without obj ection. The Plain Dealer said, in endorsing Justice Cook and Terrence O' Donnell in the 2000 j udicial election, quote, "Both are Republican nominees, but their party labels are not nearly as critical as their shared philosophy of j udicial restraint. By contrast, success for their opponents would enhance the prospect that a maj ority of the seven member court would continue on a controversial course of j udicial activism best illustrated in four three decisions, " unquote. The Columbus Dispatch wrote: "A maj ority on the Ohio Supreme Court has confused its role of checking the powers of the General Assembly. The court instead has turned into a legislative bulldozer, upending whatever law conflicts with the ideological bent of the maj ority, legal and constitutional principles be damned, " unquote. Are you familiar with those? MS. COOK: Yes, I am. SEN. HATCH: The Ohio Beacon Journal editorialized, "Those who watch the Ohio high court know Cook is no ideologue. She has been a voice of restraint in opposition to a court maj ority determined to chart an aggressive course, acting as a problem solver as (were polls ?) more than j urist. " Now, it appears to me, Justice Cook, that you possess an excellent understanding of your role as a j udge charged with faithfully and conscientiously following precedent and upholding the Constitution, even if that means that occasionally you have to dissent, or even more than occasionally you have to dissent. And that' s the point I think I' d like to make. My time is j ust about up. senator from New York. SEN. SCHUMER: I' ll turn to the distinguished Thank you, Mr. Chairman. SEN. LEAHY: Before you do, j ust one number, and I wasn' t quite sure of it, because it had been mentioned by Senator DeWine, yourself, and Senator Hatch. The reversals by the Ohio Supreme Court that was one percent of all your cases that were appealed to the MS. COOK: That' s right. I think that seven in six the numbers are something like six of the cases out of a thousand that I wrote SEN. LEAHY: How many were appealed to the gee, I' m afraid I don' t know that. SEN. LEAHY: MS. COOK: Oh, Most of them? MS. COOK: No, I wouldn' t say that. The Ohio Supreme Court is a certiorari court, so they choose their cases, and EXT-18-2091-C-000410 007104-001131 Document ID: 0.7.19343.9053-000001 strange charge, between you and me. The allegation of the court, as seen by most obj ective observers, as moderate and bipartisan, belies the facts. Let me quote what Ohio newspaper editorials have said and I' ll put all these editorials in the record without obj ection. The Plain Dealer said, in endorsing Justice Cook and Terrence O' Donnell in the 2000 j udicial election, quote, "Both are Republican nominees, but their party labels are not nearly as critical as their shared philosophy of j udicial restraint. By contrast, success for their opponents would enhance the prospect that a maj ority of the seven member court would continue on a controversial course of j udicial activism best illustrated in four three decisions, " unquote. The Columbus Dispatch wrote: "A maj ority on the Ohio Supreme Court has confused its role of checking the powers of the General Assembly. The court instead has turned into a legislative bulldozer, upending whatever law conflicts with the ideological bent of the maj ority, legal and constitutional principles be damned, " unquote. Are you familiar with those? MS. COOK: Yes, I am. SEN. HATCH: The Ohio Beacon Journal editorialized, "Those who watch the Ohio high court know Cook is no ideologue. She has been a voice of restraint in opposition to a court maj ority determined to chart an aggressive course, acting as a problem solver as (were polls ?) more than j urist. " Now, it appears to me, Justice Cook, that you possess an excellent understanding of your role as a j udge charged with faithfully and conscientiously following precedent and upholding the Constitution, even if that means that occasionally you have to dissent, or even more than occasionally you have to dissent. And that' s the point I think I' d like to make. My time is j ust about up. senator from New York. SEN. SCHUMER: I' ll turn to the distinguished Thank you, Mr. Chairman. SEN. LEAHY: Before you do, j ust one number, and I wasn' t quite sure of it, because it had been mentioned by Senator DeWine, yourself, and Senator Hatch. The reversals by the Ohio Supreme Court that was one percent of all your cases that were appealed to the MS. COOK: That' s right. I think that seven in six the numbers are something like six of the cases out of a thousand that I wrote SEN. LEAHY: How many were appealed to the gee, I' m afraid I don' t know that. SEN. LEAHY: MS. COOK: Oh, Most of them? MS. COOK: No, I wouldn' t say that. The Ohio Supreme Court is a certiorari court, so they choose their cases, and EXT-18-2091-C-000410 007104-001131 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: But do you know how many of your cases went up, offhand? MS. COOK: SEN. LEAHY: I' m afraid I don' t, Senator Leahy. Five hundred? Two hundred? MS. COOK: In fact, I really wouldn' t have any idea, because that' s not I never did pay attention or keep track of the ones that were appealed. I knew the ones that were accepted, and those are the statistics we have. But how many were appealed I actually don' t know. SEN. LEAHY: You know how many were accepted that' s really the MS. COOK: SEN. LEAHY: Three hundred? Yes. How many were accepted on appeal? MS. COOK: I could get that for you. guess and the wild guess might be 50. SEN. LEAHY: were reversed? SEN. HATCH: Okay. And if it was 50 Two hundred? I would be making a wild so six out of 50 that Well, she doesn' t know? SEN. LEAHY: No, that' s okay. Well, get me if you could get because obviously you me the number for the record, please. I' m j ust have a lot of cases that were never appealed or cert was never granted. MS. COOK: That' s right. SEN. LEAHY: SEN. HATCH: Thank you. Thank you, Mr. Chairman. Senator Schumer. SEN. SCHUMER: Thank you, Mr. Chairman. And, first, I want to make a couple more comments j ust about the procedures here, and then I' ll get into questions. I' ll start with Professor Sutton. But first I want to thank you, Mr. Chairman. You did renotice, after I brought up the hearing, you renoticed it from Tuesday to Wednesday, so that will comply with the committee rule that we have one week' s notice, and I want to thank you for that as well. Originally we were going to have five minute periods, I was told, and we asked you to move it up to 15, and 15 is adequate, and we appreciate that. And, you know, what we are trying to do here is get a feeling that this is real, that these are real, you know, for us, for many of us, this is really significant. But we worry about the others. EXT-18-2091-C-000411 007104-001132 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: But do you know how many of your cases went up, offhand? MS. COOK: SEN. LEAHY: I' m afraid I don' t, Senator Leahy. Five hundred? Two hundred? MS. COOK: In fact, I really wouldn' t have any idea, because that' s not I never did pay attention or keep track of the ones that were appealed. I knew the ones that were accepted, and those are the statistics we have. But how many were appealed I actually don' t know. SEN. LEAHY: You know how many were accepted that' s really the MS. COOK: SEN. LEAHY: Three hundred? Yes. How many were accepted on appeal? MS. COOK: I could get that for you. guess and the wild guess might be 50. SEN. LEAHY: were reversed? SEN. HATCH: Okay. And if it was 50 Two hundred? I would be making a wild so six out of 50 that Well, she doesn' t know? SEN. LEAHY: No, that' s okay. Well, get me if you could get because obviously you me the number for the record, please. I' m j ust have a lot of cases that were never appealed or cert was never granted. MS. COOK: That' s right. SEN. LEAHY: SEN. HATCH: Thank you. Thank you, Mr. Chairman. Senator Schumer. SEN. SCHUMER: Thank you, Mr. Chairman. And, first, I want to make a couple more comments j ust about the procedures here, and then I' ll get into questions. I' ll start with Professor Sutton. But first I want to thank you, Mr. Chairman. You did renotice, after I brought up the hearing, you renoticed it from Tuesday to Wednesday, so that will comply with the committee rule that we have one week' s notice, and I want to thank you for that as well. Originally we were going to have five minute periods, I was told, and we asked you to move it up to 15, and 15 is adequate, and we appreciate that. And, you know, what we are trying to do here is get a feeling that this is real, that these are real, you know, for us, for many of us, this is really significant. But we worry about the others. EXT-18-2091-C-000411 007104-001132 Document ID: 0.7.19343.9053-000001 One thing I would ask you, Mr. Chairman, could we get notification next like today as to which j udges or which nominees we' re going to have before us next Wednesday? we SEN. HATCH: I think so. I' ve already told staff to try and our obligation is to give notice of the hearing. SEN. SCHUMER: Right. SEN. HATCH: But I would like to give you as much I had told Senator Leahy at least two weeks ago who was going to be on this (laughter) Senator Leahy' s memory SEN. LEAHY: Ummmm my memory is SEN. HATCH: once again is faulty? SEN. LEAHY: has slipped. SEN. HATCH: Well, whatever, I SEN. SCHUMER: I Okay. SEN. LEAHY: I know that you want to give us enough time to look at them because, to quote the distinguished chairman of this committee, the chairman will schedule a hearing for a nominee only after thorough review of a nominee' s preliminary information. Obviously this is a long process, as it must be after all, these are life time appointments so said Senator Orrin Hatch, my dear friend, the former chairman. (Laughter. ) You never know when that stuff is going to come back to haunt you, Orrin. (Laughter. ) SEN. HATCH: Well, let me j ust SEN. SCHUMER: I mean, I guess the point I want to make is there' s j ust been having three substantial controversial nominees to the court to important courts of appeals is brand new. The notice, as I say, has not been thorough. And we don' t even have committee rules yet. We don' t we haven' t discussed what' s happening with the blue slip. We haven' t discussed any of the other kinds of rules that this committee has always prided itself on having. And then, to boot, today there were so few questions asked by people on the minority side it j ust almost seemed like a rush to j udgment let' s j ust get this on the maj ority side on the minority side, we are going to ask plenty of questions. It' s wishful thinking that we were the maj ority side at least for me. But no questions asked. And it almost seems like, you know, this is a done deal to too many people on this committee. The White House says, Put them in, get them done as fast as you can, as few questions as possible, and we' ll j ust move them. And I worry about that. I worry about it from a constitutional perspective, because there should be real advice and consent, whether you agree, whether you' re the same party or the different party in terms of who is in the White House. And I would j ust hope we could go back to some of that. I think even during the worst of EXT-18-2091-C-000412 007104-001133 Document ID: 0.7.19343.9053-000001 One thing I would ask you, Mr. Chairman, could we get notification next like today as to which j udges or which nominees we' re going to have before us next Wednesday? we SEN. HATCH: I think so. I' ve already told staff to try and our obligation is to give notice of the hearing. SEN. SCHUMER: Right. SEN. HATCH: But I would like to give you as much I had told Senator Leahy at least two weeks ago who was going to be on this (laughter) Senator Leahy' s memory SEN. LEAHY: Ummmm my memory is SEN. HATCH: once again is faulty? SEN. LEAHY: has slipped. SEN. HATCH: Well, whatever, I SEN. SCHUMER: I Okay. SEN. LEAHY: I know that you want to give us enough time to look at them because, to quote the distinguished chairman of this committee, the chairman will schedule a hearing for a nominee only after thorough review of a nominee' s preliminary information. Obviously this is a long process, as it must be after all, these are life time appointments so said Senator Orrin Hatch, my dear friend, the former chairman. (Laughter. ) You never know when that stuff is going to come back to haunt you, Orrin. (Laughter. ) SEN. HATCH: Well, let me j ust SEN. SCHUMER: I mean, I guess the point I want to make is there' s j ust been having three substantial controversial nominees to the court to important courts of appeals is brand new. The notice, as I say, has not been thorough. And we don' t even have committee rules yet. We don' t we haven' t discussed what' s happening with the blue slip. We haven' t discussed any of the other kinds of rules that this committee has always prided itself on having. And then, to boot, today there were so few questions asked by people on the minority side it j ust almost seemed like a rush to j udgment let' s j ust get this on the maj ority side on the minority side, we are going to ask plenty of questions. It' s wishful thinking that we were the maj ority side at least for me. But no questions asked. And it almost seems like, you know, this is a done deal to too many people on this committee. The White House says, Put them in, get them done as fast as you can, as few questions as possible, and we' ll j ust move them. And I worry about that. I worry about it from a constitutional perspective, because there should be real advice and consent, whether you agree, whether you' re the same party or the different party in terms of who is in the White House. And I would j ust hope we could go back to some of that. I think even during the worst of EXT-18-2091-C-000412 007104-001133 Document ID: 0.7.19343.9053-000001 times when we were in charge we were never accused of rushing through people and SEN. HATCH: I think that' s a fair characterization, myself. (Laughs. ) SEN. SCHUMER: Yeah. SEN. HATCH: Let me j ust say that 630 days it seems to me is enough notice, and it certainly is enough time to evaluate people. SEN. SCHUMER: Well, you know, you say that, but officially we didn' t receive notice until last night, and SEN. HATCH: We will try and remedy that SEN. SCHUMER: And there are reasons for that, and we ought to have them. I mean, let' s hope this is all on the level, and certainly at least a fair process would help give it at least the appearance that that is the case. Okay, I now want to direct some of my questions at Professor Sutton. Professor, you' ve probably been advised by those who prepped you for this confirmation that I have three criteria I use when I weigh nominees, whether in helping choose them in New York, which I used to do maybe still will do do a little bit but also in who I j udge. It' s excellence, moderation, diversity. Excellence, legal excellence. These are such vital positions that you don' t want some political hack or somebody who is somebody' s friend to occupy them. I have no doubt you meet that criteria. You are a legally excellent mind. The second criteria I have is moderation. I don' t like j udges too far left or too far right. And in fact in my own j udicial review committee, when people have come to me with some very liberal j udges, well known liberals in the New York bench, I' ve not chosen to select them, because I think j udges who are too far left and too far right want to make law themselves. They have such a passion for what is right and what is wrong, that instead of interpreting the law, which is what the Constitution says they should do, they end up making the law. And in fact a lot of the conservative critique of the liberal courts of the ' 60s and ' 70s was shaped by that notion. And I find it ironic that the conservative movement is doing the same exact thing now that they criticized people for. It' s a little bit of a mirror image of telling us now we ought to move j udges on, say, the court of appeals when we were constantly told, when President Clinton was president, "We don' t need any more j udges. " The caseload is the same, and yet all of a sudden we' re pushing j udges through. And that' s, again, what we have to live within here. But the lack of consistency in all of this is mind boggling and, again, makes you think that this is not on the level, which would be a (audio break) . EXT-18-2091-C-000413 007104-001134 Document ID: 0.7.19343.9053-000001 times when we were in charge we were never accused of rushing through people and SEN. HATCH: I think that' s a fair characterization, myself. (Laughs. ) SEN. SCHUMER: Yeah. SEN. HATCH: Let me j ust say that 630 days it seems to me is enough notice, and it certainly is enough time to evaluate people. SEN. SCHUMER: Well, you know, you say that, but officially we didn' t receive notice until last night, and SEN. HATCH: We will try and remedy that SEN. SCHUMER: And there are reasons for that, and we ought to have them. I mean, let' s hope this is all on the level, and certainly at least a fair process would help give it at least the appearance that that is the case. Okay, I now want to direct some of my questions at Professor Sutton. Professor, you' ve probably been advised by those who prepped you for this confirmation that I have three criteria I use when I weigh nominees, whether in helping choose them in New York, which I used to do maybe still will do do a little bit but also in who I j udge. It' s excellence, moderation, diversity. Excellence, legal excellence. These are such vital positions that you don' t want some political hack or somebody who is somebody' s friend to occupy them. I have no doubt you meet that criteria. You are a legally excellent mind. The second criteria I have is moderation. I don' t like j udges too far left or too far right. And in fact in my own j udicial review committee, when people have come to me with some very liberal j udges, well known liberals in the New York bench, I' ve not chosen to select them, because I think j udges who are too far left and too far right want to make law themselves. They have such a passion for what is right and what is wrong, that instead of interpreting the law, which is what the Constitution says they should do, they end up making the law. And in fact a lot of the conservative critique of the liberal courts of the ' 60s and ' 70s was shaped by that notion. And I find it ironic that the conservative movement is doing the same exact thing now that they criticized people for. It' s a little bit of a mirror image of telling us now we ought to move j udges on, say, the court of appeals when we were constantly told, when President Clinton was president, "We don' t need any more j udges. " The caseload is the same, and yet all of a sudden we' re pushing j udges through. And that' s, again, what we have to live within here. But the lack of consistency in all of this is mind boggling and, again, makes you think that this is not on the level, which would be a (audio break) . EXT-18-2091-C-000413 007104-001134 Document ID: 0.7.19343.9053-000001 And my third one is diversity. I don' t think the bench should be white males. You don' t meet the diversity criteria, but you can' t j udge it by one person, and that' s not a problem for me here. But the moderation is. And, frankly, by your record, to me you' re hardly a moderate. You have pointed views that are way beyond, I think, what most people would consider the mainstream. And you' ve helped shape and change the courts. And let me j ust go over a little history. I mean, over the past several years the Rehnquist Supreme Court has slowly and steadily effected a revolution and they' ve engaged, in my j udgment, at least, in startling acts of j udicial activism, reaching out to strike down law after law that Congress has passed to protect women and workers, environment, the disabled, children and senior citizens. And this court is leading the country down a dangerous path where it seems states' rights predominate over people' s rights. They call it federalism or they call it something else, but it' s really j ust that. And we almost want to go back, whether it be the 11th Amendment or the commerce clause, to the 1890s, because there' s such anger and hatred for the federal government. And so I worry about that. And you, Mr. Sutton, Professor Sutton, you' re a primary engineer of the road that court is traveling. We all know that. This is not j ust you happening to be plucked out as one of a thousand lawyers and say, "Please represent us on this case. " When you look at cases that make up the Rehnquist court' s revolution Sandoval, Garrett, Kimmel, City of Boerne have particular meaning. And those are the cases that comprise the most significant parts of your impressive resume. I' ve been struck by the comments that you' re nothing but a you didn' t say a country lawyer, but you might as well a lawyer j ust representing your clients, that you don' t really believe in the arguments you' ve made, or your beliefs are irrelevant; you were j ust doing your j ob. But I think anyone who' s reviewed your record can see that' s not the case. You weren' t j ust sort of like a corporate attorney who was picked to work for one corporation or then another. You' ve taken a leadership role in the Federalist Society, which has pushed this line of reasoning (and?) the states' rights agenda. You' ve made public comments that you love the states' rights movement. You advance your agenda with a genuine ardor and passion, advocating positions that go even beyond where Justices Scalia and Rehnquist and Thomas have been willing to go. And I' m j ust going to read and then ask be inserted in the record a number of quotes from you. At least they' re all footnoted. And I would ask unanimous consent the whole statement be added to the record SEN. HATCH: Without obj ection. EXT-18-2091-C-000414 007104-001135 Document ID: 0.7.19343.9053-000001 And my third one is diversity. I don' t think the bench should be white males. You don' t meet the diversity criteria, but you can' t j udge it by one person, and that' s not a problem for me here. But the moderation is. And, frankly, by your record, to me you' re hardly a moderate. You have pointed views that are way beyond, I think, what most people would consider the mainstream. And you' ve helped shape and change the courts. And let me j ust go over a little history. I mean, over the past several years the Rehnquist Supreme Court has slowly and steadily effected a revolution and they' ve engaged, in my j udgment, at least, in startling acts of j udicial activism, reaching out to strike down law after law that Congress has passed to protect women and workers, environment, the disabled, children and senior citizens. And this court is leading the country down a dangerous path where it seems states' rights predominate over people' s rights. They call it federalism or they call it something else, but it' s really j ust that. And we almost want to go back, whether it be the 11th Amendment or the commerce clause, to the 1890s, because there' s such anger and hatred for the federal government. And so I worry about that. And you, Mr. Sutton, Professor Sutton, you' re a primary engineer of the road that court is traveling. We all know that. This is not j ust you happening to be plucked out as one of a thousand lawyers and say, "Please represent us on this case. " When you look at cases that make up the Rehnquist court' s revolution Sandoval, Garrett, Kimmel, City of Boerne have particular meaning. And those are the cases that comprise the most significant parts of your impressive resume. I' ve been struck by the comments that you' re nothing but a you didn' t say a country lawyer, but you might as well a lawyer j ust representing your clients, that you don' t really believe in the arguments you' ve made, or your beliefs are irrelevant; you were j ust doing your j ob. But I think anyone who' s reviewed your record can see that' s not the case. You weren' t j ust sort of like a corporate attorney who was picked to work for one corporation or then another. You' ve taken a leadership role in the Federalist Society, which has pushed this line of reasoning (and?) the states' rights agenda. You' ve made public comments that you love the states' rights movement. You advance your agenda with a genuine ardor and passion, advocating positions that go even beyond where Justices Scalia and Rehnquist and Thomas have been willing to go. And I' m j ust going to read and then ask be inserted in the record a number of quotes from you. At least they' re all footnoted. And I would ask unanimous consent the whole statement be added to the record SEN. HATCH: Without obj ection. EXT-18-2091-C-000414 007104-001135 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: with the footnotes okay, talking about this federalism, this states' rights. "It doesn' t j ust get me invited to cocktail parties" these are your quotes "but I love these issues. I believe in this federalism stuff. " Here' s another one. "First, the public has to understand that the charges of j udicial activism that have been raised, particularly in the most recent term, are simply inaccurate. The charge goes like this: ' How is it that j ustices who believe in j udicial restraint are now striking down all these federal laws?' The argument, however, rests on a false premise. " These are your words; these are not quoted in a case. This is from an article that you wrote. "In a federalism case" again, your words "there is invariably a battle between the states and the federal government over legislative prerogative. The result is a zero sum game in which one or the other lawmaking power must fall. " Here' s another one. "The public needs to understand that federalism is ultimately a neutral principle. " Many of us would disagree with that. That' s in the mind of the beholder. But it' s certainly a view of yours, not who you' re representing but you. "Federalism merely determines the allocation of power. It says nothing about what particular policies should be adopted by those who have power. " And it goes on and on and on. You discuss the Morrison case. Quote: "Unexamined deference to VAWA" Violence Against Women Act "findings would have created another problem as well. It would give to any congressional staffer with a laptop the ultimate Marbury power, to have final say over what amounts to interstate commerce and thus what represents the limits on Congress' s commerce clause powers. " I' m not right now I disagree with these, but that' s not my point here. My point is, you' re not simply a lawyer who was chosen to represent cases. You have been a passionate advocate for this point of view. And you state it not only when you represent a client before a court. You state it in articles. You state it in conversation, et cetera. And let me j ust say to you that and this is the same question I asked Attorney General Ashcroft when he was here, although that was different, because he' s in the same branch of government as the president and we give the president a little more deference in that regard than we you' re passionate. do with Article 3 You have strong beliefs that most obj ective observers would say, whether you think they' re right or wrong, is way out beyond the mainstream. Many of the things you' ve said, as I said, neither Scalia nor Thomas nor Rehnquist has said in opinions. And so how can we believe you that when you' ve been such an impassioned and zealous advocate for so long that you can j ust turn it off? How do you abandon all that you have fought for you' ve been a seminal voice in all of this for so long given the fact that we all EXT-18-2091-C-000415 007104-001136 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: with the footnotes okay, talking about this federalism, this states' rights. "It doesn' t j ust get me invited to cocktail parties" these are your quotes "but I love these issues. I believe in this federalism stuff. " Here' s another one. "First, the public has to understand that the charges of j udicial activism that have been raised, particularly in the most recent term, are simply inaccurate. The charge goes like this: ' How is it that j ustices who believe in j udicial restraint are now striking down all these federal laws?' The argument, however, rests on a false premise. " These are your words; these are not quoted in a case. This is from an article that you wrote. "In a federalism case" again, your words "there is invariably a battle between the states and the federal government over legislative prerogative. The result is a zero sum game in which one or the other lawmaking power must fall. " Here' s another one. "The public needs to understand that federalism is ultimately a neutral principle. " Many of us would disagree with that. That' s in the mind of the beholder. But it' s certainly a view of yours, not who you' re representing but you. "Federalism merely determines the allocation of power. It says nothing about what particular policies should be adopted by those who have power. " And it goes on and on and on. You discuss the Morrison case. Quote: "Unexamined deference to VAWA" Violence Against Women Act "findings would have created another problem as well. It would give to any congressional staffer with a laptop the ultimate Marbury power, to have final say over what amounts to interstate commerce and thus what represents the limits on Congress' s commerce clause powers. " I' m not right now I disagree with these, but that' s not my point here. My point is, you' re not simply a lawyer who was chosen to represent cases. You have been a passionate advocate for this point of view. And you state it not only when you represent a client before a court. You state it in articles. You state it in conversation, et cetera. And let me j ust say to you that and this is the same question I asked Attorney General Ashcroft when he was here, although that was different, because he' s in the same branch of government as the president and we give the president a little more deference in that regard than we you' re passionate. do with Article 3 You have strong beliefs that most obj ective observers would say, whether you think they' re right or wrong, is way out beyond the mainstream. Many of the things you' ve said, as I said, neither Scalia nor Thomas nor Rehnquist has said in opinions. And so how can we believe you that when you' ve been such an impassioned and zealous advocate for so long that you can j ust turn it off? How do you abandon all that you have fought for you' ve been a seminal voice in all of this for so long given the fact that we all EXT-18-2091-C-000415 007104-001136 Document ID: 0.7.19343.9053-000001 know that 100 lawyers, looking at the same fact case, don' t always come under 100 j udges with the same answer. MR. SUTTON: SEN. SCHUMER: Right. Please. MR. SUTTON: Thank you, Senator. You' ve raised several issues, and I' ll do my best to get to as many of them as possible. First and foremost, someone who has the good fortune, first, being nominated, and then the good fortune of being confirmed by the Senate, takes an oath. And when you take an oath, the whole point at that stage in your career is that your client is no longer your personal views, no longer a person for whom you' ve advocated, but your client is the rule of law. As a court of appeals j udge, your obj ective, of course, is to do whatever the U. S. Supreme Court has required in that area, and if they haven' t provided guidance, follow what your court of appeals has required in that particular area. And I can assure you, that' s exactly what I would do as a lower court j udge. I would respectfully disagree with your comments, and I SEN. SCHUMER: Please. We should have an open and fair debate here, not j ust go through the motions and, as Senator Leahy said, rubber stamp whoever the administration puts forward. Somehow I won' t characterize interest groups the way my good friend the chairman does, but it seems that almost any time someone disagrees with what the nominee thinks, there are certain editorial pages, certain groups, that say, "Oh, you know, they have an agenda. " they I mean, we should have an open discussion here. MR. SUTTON: No, and I SEN. SCHUMER: That' s the whole point of advise and consent, not simply to find out if someone' s of good moral character. Please. MR. SUTTON: And I appreciate the opportunity to have the honor of having this discussion with the committee and with you directly. And I know you' ve been an impassioned speaker on these federalism decisions in critiquing them. And I do want to turn to those. But before I do that, the one I guess I could fairly call the premise of your question was that one can line up a series of cases, take five or six controversial cases, and say, "Boy, anyone that could have advocated those positions must have a viewpoint that is j ust inconsistent with anything I think is good and right about what federal j udges do and about what the Constitution means. " And I respectfully disagree that that can fairly be said about me. I think there are many cases, representations I' ve handled, that I think you would applaud; and if you wouldn' t applaud, would at least respect my role as a lawyer. EXT-18-2091-C-000416 007104-001137 Document ID: 0.7.19343.9053-000001 know that 100 lawyers, looking at the same fact case, don' t always come under 100 j udges with the same answer. MR. SUTTON: SEN. SCHUMER: Right. Please. MR. SUTTON: Thank you, Senator. You' ve raised several issues, and I' ll do my best to get to as many of them as possible. First and foremost, someone who has the good fortune, first, being nominated, and then the good fortune of being confirmed by the Senate, takes an oath. And when you take an oath, the whole point at that stage in your career is that your client is no longer your personal views, no longer a person for whom you' ve advocated, but your client is the rule of law. As a court of appeals j udge, your obj ective, of course, is to do whatever the U. S. Supreme Court has required in that area, and if they haven' t provided guidance, follow what your court of appeals has required in that particular area. And I can assure you, that' s exactly what I would do as a lower court j udge. I would respectfully disagree with your comments, and I SEN. SCHUMER: Please. We should have an open and fair debate here, not j ust go through the motions and, as Senator Leahy said, rubber stamp whoever the administration puts forward. Somehow I won' t characterize interest groups the way my good friend the chairman does, but it seems that almost any time someone disagrees with what the nominee thinks, there are certain editorial pages, certain groups, that say, "Oh, you know, they have an agenda. " they I mean, we should have an open discussion here. MR. SUTTON: No, and I SEN. SCHUMER: That' s the whole point of advise and consent, not simply to find out if someone' s of good moral character. Please. MR. SUTTON: And I appreciate the opportunity to have the honor of having this discussion with the committee and with you directly. And I know you' ve been an impassioned speaker on these federalism decisions in critiquing them. And I do want to turn to those. But before I do that, the one I guess I could fairly call the premise of your question was that one can line up a series of cases, take five or six controversial cases, and say, "Boy, anyone that could have advocated those positions must have a viewpoint that is j ust inconsistent with anything I think is good and right about what federal j udges do and about what the Constitution means. " And I respectfully disagree that that can fairly be said about me. I think there are many cases, representations I' ve handled, that I think you would applaud; and if you wouldn' t applaud, would at least respect my role as a lawyer. EXT-18-2091-C-000416 007104-001137 Document ID: 0.7.19343.9053-000001 And I hope, in thinking about the federalism decisions, you will keep in mind cases I did before I worked for the state, whether it' s writing a brief for the Center for the Prevention of Handgun Violence, in the sixth circuit as an amicus brief, whether it' s defending Ohio' s hate crime statute on behalf of several branches of the NAACP, the Anti Defamation League and every other civil rights group affected by that law in Ohio, whether it' s the work I did as state solicitor keep in mind, while the states have done unfortunate things at times in our history, the states today are doing some good things. At Ohio, I twice defended Ohio' s set aside statute. I was, I think one can fairly say, very passionately involved in defending Cheryl Fisher in trying to get into Case Western Reserve with her disability of blindness. Since leaving the solicitor' s office, while in private practice, I' ve continued to handle those kinds of representations. I sought out and was hired to represent an indigent inmate in a civil rights case in the U. S. Supreme Court. That' s one of the U. S. Supreme Court cases I did. In terms of Sandoval, I' ve been on the other side of Sandoval. I' ve done a case involving implied right of actions in behalf of Indian tribes for the National Congress of American Indians. And I was approached by them and hired by them to handle that case. That case is the mirror image of Sandoval. I' ve handled two death penalty cases, which, of course, are about as much against states as one can ever be. Now, when it comes to your perspective that when I' ve spoken to the press in the articles you refer to or when I' ve written articles SEN. SCHUMER: Now, you don' t express the sentiments of the people you represented in some of those cases in your private articles, only the ones on the other side. MR. SUTTON: SEN. SCHUMER: I don' t think that' s true. Okay. Well, you can submit to the record MR. SUTTON: The tribute I did to Justice Powell, your second criterion, looking for moderates I mean, if Justice Powell is not a moderate, then maybe I am wrong and maybe I' m not qualified. But I do think he was a moderate j ustice. He hired me. I wouldn' t be sitting here but for Justice Powell hiring me back in whatever it was 1989, 1990. And I think my tribute to him, you know, suggests that very point. I wrote another article for the Federalist Society in the Kiryas Joel decision criticizing the U. S. Supreme Court maj ority for not allowing the Satmar Hassidim to develop a district. Why did they want to develop that district? Precisely so handicapped citizens in that district could go to their own school and not have to go to the local public school, which was the only way they could get disability services. EXT-18-2091-C-000417 007104-001138 Document ID: 0.7.19343.9053-000001 And I hope, in thinking about the federalism decisions, you will keep in mind cases I did before I worked for the state, whether it' s writing a brief for the Center for the Prevention of Handgun Violence, in the sixth circuit as an amicus brief, whether it' s defending Ohio' s hate crime statute on behalf of several branches of the NAACP, the Anti Defamation League and every other civil rights group affected by that law in Ohio, whether it' s the work I did as state solicitor keep in mind, while the states have done unfortunate things at times in our history, the states today are doing some good things. At Ohio, I twice defended Ohio' s set aside statute. I was, I think one can fairly say, very passionately involved in defending Cheryl Fisher in trying to get into Case Western Reserve with her disability of blindness. Since leaving the solicitor' s office, while in private practice, I' ve continued to handle those kinds of representations. I sought out and was hired to represent an indigent inmate in a civil rights case in the U. S. Supreme Court. That' s one of the U. S. Supreme Court cases I did. In terms of Sandoval, I' ve been on the other side of Sandoval. I' ve done a case involving implied right of actions in behalf of Indian tribes for the National Congress of American Indians. And I was approached by them and hired by them to handle that case. That case is the mirror image of Sandoval. I' ve handled two death penalty cases, which, of course, are about as much against states as one can ever be. Now, when it comes to your perspective that when I' ve spoken to the press in the articles you refer to or when I' ve written articles SEN. SCHUMER: Now, you don' t express the sentiments of the people you represented in some of those cases in your private articles, only the ones on the other side. MR. SUTTON: SEN. SCHUMER: I don' t think that' s true. Okay. Well, you can submit to the record MR. SUTTON: The tribute I did to Justice Powell, your second criterion, looking for moderates I mean, if Justice Powell is not a moderate, then maybe I am wrong and maybe I' m not qualified. But I do think he was a moderate j ustice. He hired me. I wouldn' t be sitting here but for Justice Powell hiring me back in whatever it was 1989, 1990. And I think my tribute to him, you know, suggests that very point. I wrote another article for the Federalist Society in the Kiryas Joel decision criticizing the U. S. Supreme Court maj ority for not allowing the Satmar Hassidim to develop a district. Why did they want to develop that district? Precisely so handicapped citizens in that district could go to their own school and not have to go to the local public school, which was the only way they could get disability services. EXT-18-2091-C-000417 007104-001138 Document ID: 0.7.19343.9053-000001 People that were not disabled in that district went to private Hasidic schools. So I think if you the article SEN. SCHUMER: Well let me say this, sir. Just with the Sandoval case, okay, you could do 10, 000 pro bono cases for individuals, and the Sandoval case takes away rights of individuals to pursue the rights you were pursuing in those pro bono cases in one fell swoop. And I don' t think some cases where you were pro bono undoes what Sandoval did. I mean, you' re saying, "Treat each case equally. " I can' t. MR. SUTTON: I perfectly understand that point. Sandoval SEN. SCHUMER: I mean, Sandoval took away rights of lots of individuals to be able to sue for j ust the things you were representing the pro bono individuals to be able to do, right? MR. SUTTON: Sandoval, keep in mind, is a case I' ve never written about it, never spoken about it. That' s a case where the client position of the state in that case was developed long before I was involved. The constitutional well, it wasn' t a constitutional case the statutory interpretation arguments developed long before I was involved when I was hired by that state to handle the case in the U. S. Supreme Court as a lawyer upholding my oath to represent my client as best I possibly can. I had an obligation to make those arguments. But, of course, Sandoval is a statutory case. That can be corrected by this body tomorrow. You know, I was simply representing them. And I would point out, the Navaj o case, where I represented these American Indian tribes, is the mirror image. It' s an implied right of action case. And those briefs, I think, show anything but hostility to implied rights of action. As a j udge the reason I want to be a j udge, Senator, is precisely so my client is a different client. The client is the rule of law. And that' s the great honor of it. SEN. SCHUMER: But your view of what the rule of law is, based on these quotes, is far different than what most American j udges, lawyers, students of j urisprudence believe it is. MR. SUTTON: Well, if I could respond to that, the question was a similar question was asked earlier this morning. And the quote simply indicates that, of course, I believe in federalism as a principle. Federalism is a principle court of appeals j udges have to follow in the same way they have to follow stare decisis. The problem where people disagree, quite reasonably, is the application of that principle in given cases. SEN. SCHUMER: Right. Well, let' s talk about one given case. I understand your point. I want to talk about Boerne, the City of Boerne. In that one, as you know, the Supreme Court held 5 4 that Congress exceeded its power under Section 5 of the 14th Amendment when it passed the Religious Freedom Restoration Act. EXT-18-2091-C-000418 007104-001139 Document ID: 0.7.19343.9053-000001 People that were not disabled in that district went to private Hasidic schools. So I think if you the article SEN. SCHUMER: Well let me say this, sir. Just with the Sandoval case, okay, you could do 10, 000 pro bono cases for individuals, and the Sandoval case takes away rights of individuals to pursue the rights you were pursuing in those pro bono cases in one fell swoop. And I don' t think some cases where you were pro bono undoes what Sandoval did. I mean, you' re saying, "Treat each case equally. " I can' t. MR. SUTTON: I perfectly understand that point. Sandoval SEN. SCHUMER: I mean, Sandoval took away rights of lots of individuals to be able to sue for j ust the things you were representing the pro bono individuals to be able to do, right? MR. SUTTON: Sandoval, keep in mind, is a case I' ve never written about it, never spoken about it. That' s a case where the client position of the state in that case was developed long before I was involved. The constitutional well, it wasn' t a constitutional case the statutory interpretation arguments developed long before I was involved when I was hired by that state to handle the case in the U. S. Supreme Court as a lawyer upholding my oath to represent my client as best I possibly can. I had an obligation to make those arguments. But, of course, Sandoval is a statutory case. That can be corrected by this body tomorrow. You know, I was simply representing them. And I would point out, the Navaj o case, where I represented these American Indian tribes, is the mirror image. It' s an implied right of action case. And those briefs, I think, show anything but hostility to implied rights of action. As a j udge the reason I want to be a j udge, Senator, is precisely so my client is a different client. The client is the rule of law. And that' s the great honor of it. SEN. SCHUMER: But your view of what the rule of law is, based on these quotes, is far different than what most American j udges, lawyers, students of j urisprudence believe it is. MR. SUTTON: Well, if I could respond to that, the question was a similar question was asked earlier this morning. And the quote simply indicates that, of course, I believe in federalism as a principle. Federalism is a principle court of appeals j udges have to follow in the same way they have to follow stare decisis. The problem where people disagree, quite reasonably, is the application of that principle in given cases. SEN. SCHUMER: Right. Well, let' s talk about one given case. I understand your point. I want to talk about Boerne, the City of Boerne. In that one, as you know, the Supreme Court held 5 4 that Congress exceeded its power under Section 5 of the 14th Amendment when it passed the Religious Freedom Restoration Act. EXT-18-2091-C-000418 007104-001139 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: Senator Schumer, you' re five minutes over your time, but you can continue a reasonable time. SEN. SCHUMER: SEN. DEWINE: Let me j ust ask this one. Sure. SEN. SCHUMER: Then I' ll ask for a second round, because I have a bunch. And I very much appreciate that, Senator. And I' ll try to sum it up quickly. Anyway, you filed an amicus brief on behalf of the state of Ohio, and you argued the case in Supreme Court. In that brief, you pushed an argument that went even further than the five j ustice maj ority on the court was willing to go. You argued that Congress has no power, under Section 5 of the 14th Amendment, to enact any law to enforce religious freedom, free speech or any other provision of the Bill of Rights. That strikes me as a pretty radical argument. Now, I understand you' ve been saying today you were j ust representing the state of Ohio, where my good friend is from. First, it is true, of course, that many other states it' s not inexorably that that' s what Ohio had to believe. Other states, including my state of New York, came to the opposite conclusion that you came to, and they filed an amicus brief on the other side. So it was hardly a neutral interpretation of law that all states would agree with here. It' s not so cut and dry and it' s not so obvious where the states' interests should be. But I' m wondering but what I' m wondering here is, who decided it was in Ohio' s interest to advance such a radical proposition? Did the governor direct you to file the brief and go that far? Did the attorney general? Or did you decide to go on your own to take that extra step that no law could be passed in this regard? MR. SUTTON: Yes, Senator, I think there' s a I may be misapprehending your question, but I' m pretty sure I' m not. SEN. SCHUMER: I' m asking you, did the governor or the attorney general say, "Make the argument that we should go further"? MR. SUTTON: SEN. SCHUMER: No one Or was that your argument? MR. SUTTON: No one made the argument. That' s the false premise. The argument you' re referring to was made by the party, by the City of Boerne, represented by another lawyer. This is quite critical, because SEN. SCHUMER: You didn' t argue in that case that the Congress has no power under Section 5 to enact any law to enforce religious freedom? EXT-18-2091-C-000419 007104-001140 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: Senator Schumer, you' re five minutes over your time, but you can continue a reasonable time. SEN. SCHUMER: SEN. DEWINE: Let me j ust ask this one. Sure. SEN. SCHUMER: Then I' ll ask for a second round, because I have a bunch. And I very much appreciate that, Senator. And I' ll try to sum it up quickly. Anyway, you filed an amicus brief on behalf of the state of Ohio, and you argued the case in Supreme Court. In that brief, you pushed an argument that went even further than the five j ustice maj ority on the court was willing to go. You argued that Congress has no power, under Section 5 of the 14th Amendment, to enact any law to enforce religious freedom, free speech or any other provision of the Bill of Rights. That strikes me as a pretty radical argument. Now, I understand you' ve been saying today you were j ust representing the state of Ohio, where my good friend is from. First, it is true, of course, that many other states it' s not inexorably that that' s what Ohio had to believe. Other states, including my state of New York, came to the opposite conclusion that you came to, and they filed an amicus brief on the other side. So it was hardly a neutral interpretation of law that all states would agree with here. It' s not so cut and dry and it' s not so obvious where the states' interests should be. But I' m wondering but what I' m wondering here is, who decided it was in Ohio' s interest to advance such a radical proposition? Did the governor direct you to file the brief and go that far? Did the attorney general? Or did you decide to go on your own to take that extra step that no law could be passed in this regard? MR. SUTTON: Yes, Senator, I think there' s a I may be misapprehending your question, but I' m pretty sure I' m not. SEN. SCHUMER: I' m asking you, did the governor or the attorney general say, "Make the argument that we should go further"? MR. SUTTON: SEN. SCHUMER: No one Or was that your argument? MR. SUTTON: No one made the argument. That' s the false premise. The argument you' re referring to was made by the party, by the City of Boerne, represented by another lawyer. This is quite critical, because SEN. SCHUMER: You didn' t argue in that case that the Congress has no power under Section 5 to enact any law to enforce religious freedom? EXT-18-2091-C-000419 007104-001140 Document ID: 0.7.19343.9053-000001 MR. SUTTON: In the oral argument itself, Justice Scalia asked me the very question you' re raising, because he noted that the city had said Section 5 of the 14th Amendment only allows Congress to correct equal protection rights, and it' s principally about race and voting. We did not make that affirmative argument in our brief. During the oral argument, I went second, after the City of Boerne lawyer. I specifically got up and said, "That is where we disagree with the party. Section 5, by its terms, covers everything in Section 1. And Section 1 includes the due process clause. The due process clause includes, by incorporation, free speech, free exercise of religion, all of these Bill of Rights provisions that have been incorporated. " Justice Scalia looked at me incredulously, saying, "That can' t be right. " And we said, "No, by its terms, Section 5 covers all of these rights. " So we not only didn' t make that argument; we argued exactly the opposite, that there was such a power. The question SEN. SCHUMER: That was in the brief? I haven' t seen the oral argument, but the brief didn' t say what you' re saying to me now, did it? MR. SUTTON: Exactly. We didn' t take a position on it. And during the oral argument we were an amicus. During the oral argument, I specifically contradicted this point, even though the party on our side of the case SEN. SCHUMER: Here' s what I want to ask you. Did you when you filed this brief, was it on direction from the attorney general or from the governor or one of the elected officials? I don' t know if the attorney general is elected in Ohio. SEN. DEWINE: SEN. SCHUMER: SEN. DEWINE: SEN. SCHUMER: MR. SUTTON: He is. Okay. She is. She is. She is. Yes. SEN. SCHUMER: Did they tell you to make this argument, or did you come up with it? Please answer that yes or no, if you could. MR. SUTTON: The attorney general decides what arguments to make, and the attorney general had the final decision on whether that brief could be filed. SEN. SCHUMER: Did you suggest to him that the brief be filed the way it was, before he said, "Fine"? MR. SUTTON: SEN. SCHUMER: She. She. EXT-18-2091-C-000420 007104-001141 Document ID: 0.7.19343.9053-000001 MR. SUTTON: In the oral argument itself, Justice Scalia asked me the very question you' re raising, because he noted that the city had said Section 5 of the 14th Amendment only allows Congress to correct equal protection rights, and it' s principally about race and voting. We did not make that affirmative argument in our brief. During the oral argument, I went second, after the City of Boerne lawyer. I specifically got up and said, "That is where we disagree with the party. Section 5, by its terms, covers everything in Section 1. And Section 1 includes the due process clause. The due process clause includes, by incorporation, free speech, free exercise of religion, all of these Bill of Rights provisions that have been incorporated. " Justice Scalia looked at me incredulously, saying, "That can' t be right. " And we said, "No, by its terms, Section 5 covers all of these rights. " So we not only didn' t make that argument; we argued exactly the opposite, that there was such a power. The question SEN. SCHUMER: That was in the brief? I haven' t seen the oral argument, but the brief didn' t say what you' re saying to me now, did it? MR. SUTTON: Exactly. We didn' t take a position on it. And during the oral argument we were an amicus. During the oral argument, I specifically contradicted this point, even though the party on our side of the case SEN. SCHUMER: Here' s what I want to ask you. Did you when you filed this brief, was it on direction from the attorney general or from the governor or one of the elected officials? I don' t know if the attorney general is elected in Ohio. SEN. DEWINE: SEN. SCHUMER: SEN. DEWINE: SEN. SCHUMER: MR. SUTTON: He is. Okay. She is. She is. She is. Yes. SEN. SCHUMER: Did they tell you to make this argument, or did you come up with it? Please answer that yes or no, if you could. MR. SUTTON: The attorney general decides what arguments to make, and the attorney general had the final decision on whether that brief could be filed. SEN. SCHUMER: Did you suggest to him that the brief be filed the way it was, before he said, "Fine"? MR. SUTTON: SEN. SCHUMER: She. She. EXT-18-2091-C-000420 007104-001141 Document ID: 0.7.19343.9053-000001 MR. SUTTON: Betty Montgomery. SEN. SCHUMER: Excuse me. Who came up with the idea to file the brief, the amicus brief? And however far we can dispute how far it goes. MR. SUTTON: Sure. SEN. SCHUMER: But who came up with that idea? Was it their idea and you j ust followed what they said? Or did you come up with the idea and suggest it to them? MR. SUTTON: Neither of us. Neither of us, Senator. SEN. SCHUMER: MR. SUTTON: SEN. SCHUMER: SEN. DEWINE: Don' t tell me how it came about. It didn' t j ust What happened was It wasn' t spontaneous generation. (Inaudible. ) Senator, why don' t you give him a chance to answer? SEN. SCHUMER: SEN. DEWINE: I will. You' re 10 minutes over already. MR. SUTTON: Senator, what happened in the case was Ohio, like many other states, after RFRA was passed, had many lawsuits filed against them by prison inmates claiming that under RFRA, they could have accommodations. And it led to lots of litigation. Some of it, I think you would agree, is somewhat frivolous SEN. SCHUMER: No question. MR. SUTTON: some of it with merit, but lots of inmate litigation. There' s a correction section of the AG' s office. I was not involved in this decision, so I don' t know if it was the correction official or Attorney General Montgomery. I suspect that Attorney General Montgomery would have been involved. They decided in those cases to raise the defense that RFRA could not be used to bring these prisoner claims because it exceeded Congress' s power. I was not involved in that decision. When the City of Boerne case made its way through the courts, by that time the office in the state, the correction officers of the state, had an interest in this litigation. And that' s exactly what happened. SEN. SCHUMER: Let me I can come back to this if I' m taking too much time. I j ust want to go over I have the brief here, and I wanted to go over a few of the points here. But I' ll wait. EXT-18-2091-C-000421 007104-001142 Document ID: 0.7.19343.9053-000001 MR. SUTTON: Betty Montgomery. SEN. SCHUMER: Excuse me. Who came up with the idea to file the brief, the amicus brief? And however far we can dispute how far it goes. MR. SUTTON: Sure. SEN. SCHUMER: But who came up with that idea? Was it their idea and you j ust followed what they said? Or did you come up with the idea and suggest it to them? MR. SUTTON: Neither of us. Neither of us, Senator. SEN. SCHUMER: MR. SUTTON: SEN. SCHUMER: SEN. DEWINE: Don' t tell me how it came about. It didn' t j ust What happened was It wasn' t spontaneous generation. (Inaudible. ) Senator, why don' t you give him a chance to answer? SEN. SCHUMER: SEN. DEWINE: I will. You' re 10 minutes over already. MR. SUTTON: Senator, what happened in the case was Ohio, like many other states, after RFRA was passed, had many lawsuits filed against them by prison inmates claiming that under RFRA, they could have accommodations. And it led to lots of litigation. Some of it, I think you would agree, is somewhat frivolous SEN. SCHUMER: No question. MR. SUTTON: some of it with merit, but lots of inmate litigation. There' s a correction section of the AG' s office. I was not involved in this decision, so I don' t know if it was the correction official or Attorney General Montgomery. I suspect that Attorney General Montgomery would have been involved. They decided in those cases to raise the defense that RFRA could not be used to bring these prisoner claims because it exceeded Congress' s power. I was not involved in that decision. When the City of Boerne case made its way through the courts, by that time the office in the state, the correction officers of the state, had an interest in this litigation. And that' s exactly what happened. SEN. SCHUMER: Let me I can come back to this if I' m taking too much time. I j ust want to go over I have the brief here, and I wanted to go over a few of the points here. But I' ll wait. EXT-18-2091-C-000421 007104-001142 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: No, if it' s on the same line of questioning and you want to continue, go right ahead. SEN. SCHUMER: Okay. So here is here' s the brief that you filed. This is the brief for the amici states of Ohio and the others. And it says, "Betty Montgomery, attorney general of Ohio, Jeffrey S. Sutton, state solicitor counsel. " And this is on page no, this is a CRS this is West law, so I don' t have the page. But it says, "Point number 1 B: The debate over the 14th Amendment confirmed that the words mean what they say. When Congress had an opportunity to adopt a broader version of Section 5, which was offered in February 1866, it rej ected the proposal to the amici state' s knowledge; moreover, no participant in the debate embraced the interpretation of the 14th Amendment offered here, namely, that Section 1 incorporates most of the first eight amendments and that Section 5 allows Congress to enforce both the meaning of the amendments and any values underlying them. " MR. SUTTON: That' s exactly correct, Senator. And the reason it' s correct is the "and. " The "and" point we were making in the brief was that no one in the Congress at that point, in proposing the 14th Amendment, said simultaneously that Congress would have the final say over what the U. S. Constitution means, which is to say, overrule Marbury versus Madison, and simultaneously say, "Anything covered in Section 1, even incorporated rights and the other Bill of Rights, would be included. " SEN. SCHUMER: But what you say here would exactly buttress I mean, I' ll let you have last word here exactly what I said, that there could be no it' s not j ust some; this is broad and sweeping, even with your "and" argument, that Congress would have no power under Section 5 to enact any law to enforce religious freedom. Isn' t that correct. MR. SUTTON: With all respect, Senator, I couldn' t disagree more. And I think it would have been poor advocacy, to say nothing of wrong, to make that argument. But the proof is not only the "and" that I referred to. The proof is the transcript. The transcript doesn' t indicate who the j ustice is. It' s Justice Scalia. This was the exact point I made. I was challenged very hard by him on it. And I pushed back on it. And we won on that issue, on an issue I think you applaud, based on your questions. We won on that point. That' s good. SEN. SCHUMER: Okay. Well, I' m going to come back to it. I' m going to go read the brief I mean, the oral argument. And we' ll come back to it. We will have a second round, I presume, Mr. Chairman. Is that correct. SEN. DEWINE: SEN. SCHUMER: went on for a while. Correct. Thank you. I appreciate the committee that I EXT-18-2091-C-000422 007104-001143 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: No, if it' s on the same line of questioning and you want to continue, go right ahead. SEN. SCHUMER: Okay. So here is here' s the brief that you filed. This is the brief for the amici states of Ohio and the others. And it says, "Betty Montgomery, attorney general of Ohio, Jeffrey S. Sutton, state solicitor counsel. " And this is on page no, this is a CRS this is West law, so I don' t have the page. But it says, "Point number 1 B: The debate over the 14th Amendment confirmed that the words mean what they say. When Congress had an opportunity to adopt a broader version of Section 5, which was offered in February 1866, it rej ected the proposal to the amici state' s knowledge; moreover, no participant in the debate embraced the interpretation of the 14th Amendment offered here, namely, that Section 1 incorporates most of the first eight amendments and that Section 5 allows Congress to enforce both the meaning of the amendments and any values underlying them. " MR. SUTTON: That' s exactly correct, Senator. And the reason it' s correct is the "and. " The "and" point we were making in the brief was that no one in the Congress at that point, in proposing the 14th Amendment, said simultaneously that Congress would have the final say over what the U. S. Constitution means, which is to say, overrule Marbury versus Madison, and simultaneously say, "Anything covered in Section 1, even incorporated rights and the other Bill of Rights, would be included. " SEN. SCHUMER: But what you say here would exactly buttress I mean, I' ll let you have last word here exactly what I said, that there could be no it' s not j ust some; this is broad and sweeping, even with your "and" argument, that Congress would have no power under Section 5 to enact any law to enforce religious freedom. Isn' t that correct. MR. SUTTON: With all respect, Senator, I couldn' t disagree more. And I think it would have been poor advocacy, to say nothing of wrong, to make that argument. But the proof is not only the "and" that I referred to. The proof is the transcript. The transcript doesn' t indicate who the j ustice is. It' s Justice Scalia. This was the exact point I made. I was challenged very hard by him on it. And I pushed back on it. And we won on that issue, on an issue I think you applaud, based on your questions. We won on that point. That' s good. SEN. SCHUMER: Okay. Well, I' m going to come back to it. I' m going to go read the brief I mean, the oral argument. And we' ll come back to it. We will have a second round, I presume, Mr. Chairman. Is that correct. SEN. DEWINE: SEN. SCHUMER: went on for a while. Correct. Thank you. I appreciate the committee that I EXT-18-2091-C-000422 007104-001143 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: I would at this point ask unanimous consent that an article written by Jeffrey S. Sutton entitled "Justice Powell' s Path Worth Following" that appeared in the Columbus Dispatch be submitted for the record and made part of the record. SEN. LEAHY: We have no obj ection. SEN. DEWINE: Without obj ection. SEN. SCHUMER: SEN. DEWINE: At this point, Senator Cornyn. Mr. Chairman Yes, Senator Schumer. SEN. SCHUMER: I j ust would ask unanimous consent. whole bunch of letters of opposition to the nomination SEN. DEWINE: SEN. SCHUMER: SEN. DEWINE: SEN. SCHUMER: There are a They can be made part of the record. I ask that they be made a part of the record. Absolutely. Thanks. SEN. JOHN CORNYN (R TX) : Thank you, Mr. Chairman. Mr. Chairman, I' m honored to be sitting here today, and this is my first hearing where the president' s j udicial nominees have come before the committee and put their qualifications up for evaluation by the Senate in its constitutional role of advice and consent. Since I' m a new member of the committee, perhaps you' ll indulge me for a moment j ust to talk a second about the timing, the unfortunate timing sequence, since the president first nominated these two men and Justice Cook. It was May 2001 that the president first proposed these j udicial nominees, and, yes, it has been an inordinate amount of time leading up to today' s hearing before they' ve had an opportunity to defend themselves and to present their record and to answer questions this committee has about their qualifications to serve in the important positions to which the president has chosen them. And I know that during the opening statements, there were statements made by Senator Leahy about the past. And I want to tell Senator Leahy and those on the other side of the aisle on the committee that I as a new member of the committee, you' ll perhaps allow me to say that I hope that the committee can have a fresh start. I don' t think it serves the interests of the American people for us to point the finger across the aisle and say, because Republicans did not act on a timely basis on appointees of President Clinton, that perhaps the same ought to be done in retribution when there is a Republican in the White House and when Democrats are in the maj ority. EXT-18-2091-C-000423 007104-001144 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: I would at this point ask unanimous consent that an article written by Jeffrey S. Sutton entitled "Justice Powell' s Path Worth Following" that appeared in the Columbus Dispatch be submitted for the record and made part of the record. SEN. LEAHY: We have no obj ection. SEN. DEWINE: Without obj ection. SEN. SCHUMER: SEN. DEWINE: At this point, Senator Cornyn. Mr. Chairman Yes, Senator Schumer. SEN. SCHUMER: I j ust would ask unanimous consent. whole bunch of letters of opposition to the nomination SEN. DEWINE: SEN. SCHUMER: SEN. DEWINE: SEN. SCHUMER: There are a They can be made part of the record. I ask that they be made a part of the record. Absolutely. Thanks. SEN. JOHN CORNYN (R TX) : Thank you, Mr. Chairman. Mr. Chairman, I' m honored to be sitting here today, and this is my first hearing where the president' s j udicial nominees have come before the committee and put their qualifications up for evaluation by the Senate in its constitutional role of advice and consent. Since I' m a new member of the committee, perhaps you' ll indulge me for a moment j ust to talk a second about the timing, the unfortunate timing sequence, since the president first nominated these two men and Justice Cook. It was May 2001 that the president first proposed these j udicial nominees, and, yes, it has been an inordinate amount of time leading up to today' s hearing before they' ve had an opportunity to defend themselves and to present their record and to answer questions this committee has about their qualifications to serve in the important positions to which the president has chosen them. And I know that during the opening statements, there were statements made by Senator Leahy about the past. And I want to tell Senator Leahy and those on the other side of the aisle on the committee that I as a new member of the committee, you' ll perhaps allow me to say that I hope that the committee can have a fresh start. I don' t think it serves the interests of the American people for us to point the finger across the aisle and say, because Republicans did not act on a timely basis on appointees of President Clinton, that perhaps the same ought to be done in retribution when there is a Republican in the White House and when Democrats are in the maj ority. EXT-18-2091-C-000423 007104-001144 Document ID: 0.7.19343.9053-000001 While I have reservations under the separation of powers provision of our Constitution about the president' s proposal for a timetable I don' t believe that should be imposed; indeed, it can' t be imposed by the executive branch on the legislative branch I do think that it would be worthwhile for this committee to consider, on a bipartisan basis, trying to come up with some rules that would guide the committee in terms of the manner in which we consider the president' s nominees, regardless of who happens to be in power, a Republican president or a Democrat president, so that we can have a timely consideration of these nominees' qualifications and an up or down vote by the members of this committee, and then, if it passes out of this committee, by the entire Senate. I think we not only owe the men and women who are appointed or nominated, excuse me by the president the courtesy of that; I believe we owe the American people and the people we serve that same thing, because, in fact, of course, for all of the vacancies that have existed as a result of the failure to act on the president' s j udicial nominees, there are very real human beings whose cases are not being heard in our courts. And, of course, as we all know, j ustice delayed is j ustice denied. So I could j ust I j ust want to say here, my maiden voyage on this committee, that I would hope that we would try to work in a bipartisan way toward a fresh start, and a timetable that would allow timely consideration of all the president' s nominees. No one is going to say a senator should vote has to vote one way or another. That' s our prerogative as a member of the Senate, and we will indeed be held accountable to our constituents who sent us here. But I think that the president is entitled to his choices subj ect to an up or down vote by the Senate, and that should be done on a timely basis. SEN. LEAHY: If the senator would yield, without losing any of his time, if he might insofar as you mentioned me in this SEN. CORNYN: I' d be glad to you in a minute, but if you' d let me my shot SEN. LEAHY: I' ll be glad to turn it over to I' ve waited a long time to have Go right ahead. SEN. CORNYN: so if you' ll give me a chance j ust to say a couple things, and then I' ll be glad to turn it over. I also come to this j ob representing the state of Texas in the United States Senate, with the background of having served in virtually all three branches of government as a j udge, member of the executive branch as attorney general, and now in the legislative branch, albeit it on the federal level. And of course I think a lot of the debate that we are hearing today has to do with what is the appropriate role of not only the legislative branch versus the j udicial branch, but indeed what is the proper role of a lawyer in our adversary system, and whether the positions that a lawyer advocates on behalf of a client are somehow attributable to the personal beliefs and convictions of that lawyer when they argue a point of law, which they are obligated to do under the code of conduct, which they may or may not agree with, but which they are duty EXT-18-2091-C-000424 007104-001145 Document ID: 0.7.19343.9053-000001 While I have reservations under the separation of powers provision of our Constitution about the president' s proposal for a timetable I don' t believe that should be imposed; indeed, it can' t be imposed by the executive branch on the legislative branch I do think that it would be worthwhile for this committee to consider, on a bipartisan basis, trying to come up with some rules that would guide the committee in terms of the manner in which we consider the president' s nominees, regardless of who happens to be in power, a Republican president or a Democrat president, so that we can have a timely consideration of these nominees' qualifications and an up or down vote by the members of this committee, and then, if it passes out of this committee, by the entire Senate. I think we not only owe the men and women who are appointed or nominated, excuse me by the president the courtesy of that; I believe we owe the American people and the people we serve that same thing, because, in fact, of course, for all of the vacancies that have existed as a result of the failure to act on the president' s j udicial nominees, there are very real human beings whose cases are not being heard in our courts. And, of course, as we all know, j ustice delayed is j ustice denied. So I could j ust I j ust want to say here, my maiden voyage on this committee, that I would hope that we would try to work in a bipartisan way toward a fresh start, and a timetable that would allow timely consideration of all the president' s nominees. No one is going to say a senator should vote has to vote one way or another. That' s our prerogative as a member of the Senate, and we will indeed be held accountable to our constituents who sent us here. But I think that the president is entitled to his choices subj ect to an up or down vote by the Senate, and that should be done on a timely basis. SEN. LEAHY: If the senator would yield, without losing any of his time, if he might insofar as you mentioned me in this SEN. CORNYN: I' d be glad to you in a minute, but if you' d let me my shot SEN. LEAHY: I' ll be glad to turn it over to I' ve waited a long time to have Go right ahead. SEN. CORNYN: so if you' ll give me a chance j ust to say a couple things, and then I' ll be glad to turn it over. I also come to this j ob representing the state of Texas in the United States Senate, with the background of having served in virtually all three branches of government as a j udge, member of the executive branch as attorney general, and now in the legislative branch, albeit it on the federal level. And of course I think a lot of the debate that we are hearing today has to do with what is the appropriate role of not only the legislative branch versus the j udicial branch, but indeed what is the proper role of a lawyer in our adversary system, and whether the positions that a lawyer advocates on behalf of a client are somehow attributable to the personal beliefs and convictions of that lawyer when they argue a point of law, which they are obligated to do under the code of conduct, which they may or may not agree with, but which they are duty EXT-18-2091-C-000424 007104-001145 Document ID: 0.7.19343.9053-000001 bound proposed to the court, and let the court make that decision. And so I think the debate we are having today in many ways is nothing new. It' s a debate in the subj ect matter touched upon by the Founding Fathers, including of course Alexander Hamilton in Federalist Number 78, when he talked about the different roles of the branches of government. And so what I would like to maybe ask and I j ust have a very few questions for Justice Cook and Mr. Roberts and Mr. Sutton is, first of all, Mr. Roberts, I wonder if you would please address the obligation of a lawyer, ethical obligation, to advance a legal argument on behalf of a client, even though a court may ultimately disagree with you or agree with you? What is a lawyer' s obligation as you understand it under the code of legal responsibility? MR. ROBERTS: Well, I think the standard phrase is "zealous advocacy on behalf of a client. " You don' t make any conceivable argument. The argument has to have a reasonable basis in law. But it certainly doesn' t have to be a winner. I' ve lost enough cases that I would hate to be held to that standard. But if it' s an argument that has a reasonable basis SEN. LEAHY: Would you pull the microphone a little bit closer, Mr. Roberts? MR. ROBERTS: If it' s an argument that has a reasonable basis in the law, including arguments concerning the extension of precedent and the reversal of precedent I think Chairman Hatch quoted the pertinent standard from the American Bar Association the lawyer is ethically bound to present that argument on behalf of the client. And there is a long standing tradition in our country, dating back one of the more famous episodes of course being John Adams' s representation of that the the British soldiers involved in the Boston massacre positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions. SEN. CORNYN: And, Justice Cook, let me ask you: If you do have, as a j udge and of course your responsibilities are different under our adversary system from an advocate like Mr. Roberts or Mr. Sutton may be what do you do as a j udge when you may have personal feelings about an argument, but where the legislature has spoken or where there is precedent by a higher court on that very point? How do you address that as a j udge? MS. COOK: I one of the more important things for a j udge to have in mind is the importance of or the to note the humility of function that is really asked of a j udge. Judges need to exercise restraint and to put aside any personal convictions or preferences that the essential democracy of j udging is that a j udge will be above the fray; that the j udge will consider the cases impartially and certainly obj ectively and conscientiously. And that' s the method that I' ve employed as a j udge for the past dozen years, and I know that to be the fairest way to j udge. SEN. CORNYN: Justice Cook, let me ask you have you ever made a legal decision in your capacity as a member of an appellate court or a EXT-18-2091-C-000425 007104-001146 Document ID: 0.7.19343.9053-000001 bound proposed to the court, and let the court make that decision. And so I think the debate we are having today in many ways is nothing new. It' s a debate in the subj ect matter touched upon by the Founding Fathers, including of course Alexander Hamilton in Federalist Number 78, when he talked about the different roles of the branches of government. And so what I would like to maybe ask and I j ust have a very few questions for Justice Cook and Mr. Roberts and Mr. Sutton is, first of all, Mr. Roberts, I wonder if you would please address the obligation of a lawyer, ethical obligation, to advance a legal argument on behalf of a client, even though a court may ultimately disagree with you or agree with you? What is a lawyer' s obligation as you understand it under the code of legal responsibility? MR. ROBERTS: Well, I think the standard phrase is "zealous advocacy on behalf of a client. " You don' t make any conceivable argument. The argument has to have a reasonable basis in law. But it certainly doesn' t have to be a winner. I' ve lost enough cases that I would hate to be held to that standard. But if it' s an argument that has a reasonable basis SEN. LEAHY: Would you pull the microphone a little bit closer, Mr. Roberts? MR. ROBERTS: If it' s an argument that has a reasonable basis in the law, including arguments concerning the extension of precedent and the reversal of precedent I think Chairman Hatch quoted the pertinent standard from the American Bar Association the lawyer is ethically bound to present that argument on behalf of the client. And there is a long standing tradition in our country, dating back one of the more famous episodes of course being John Adams' s representation of that the the British soldiers involved in the Boston massacre positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions. SEN. CORNYN: And, Justice Cook, let me ask you: If you do have, as a j udge and of course your responsibilities are different under our adversary system from an advocate like Mr. Roberts or Mr. Sutton may be what do you do as a j udge when you may have personal feelings about an argument, but where the legislature has spoken or where there is precedent by a higher court on that very point? How do you address that as a j udge? MS. COOK: I one of the more important things for a j udge to have in mind is the importance of or the to note the humility of function that is really asked of a j udge. Judges need to exercise restraint and to put aside any personal convictions or preferences that the essential democracy of j udging is that a j udge will be above the fray; that the j udge will consider the cases impartially and certainly obj ectively and conscientiously. And that' s the method that I' ve employed as a j udge for the past dozen years, and I know that to be the fairest way to j udge. SEN. CORNYN: Justice Cook, let me ask you have you ever made a legal decision in your capacity as a member of an appellate court or a EXT-18-2091-C-000425 007104-001146 Document ID: 0.7.19343.9053-000001 member of the Ohio Supreme Court that you knew was going to be politically unpopular? MS. COOK: Oh, yes, I have. SEN. CORNYN: And how do you address that in terms of what you view to be your obligation as a j udge? MS. COOK: It' s actually you know, sometimes it' s hard to swallow, but it certainly is not one of my concerns that drive my function, my work. It' s as we say, it goes with the territory, and sometimes you' re called upon in doing your best work and your faithful application of the law. It will produce what could be or what will be viewed as an unpopular result. And certainly that' s part of your duties. SEN. CORNYN: Well, having been in a similar position to you when I served as a member of the Texas Supreme Court, do you hope that the people evaluating your performance, whether you' re an elected j udge or an appointed j udge, will understand that your j udgment as a member of a court is not an expression of political opinion? MS. COOK: That' s the hope. Some of the criticism that I have seen launched with regard to this nomination process seems to be that very thing to which you refer, senator. It' s a case oriented or a results oriented view of cases, which I hope would not be any indication of my qualifications as a j urist. SEN. CORNYN: And how do you feel about results oriented decision making by a j udge? MS. COOK: Oh, I very much I would never years, and I don' t participate in it, and I suppose we see it happen, but it' s an affront really to democracy and to the oath that we take to j udge cases without regard to persons is the oath we take in Ohio to administer j ustice without regard to persons. And therefore I would see it as an affront to that oath, to look at the results. SEN. CORNYN: Mr. Sutton, you during some of the questioning I think alluded to the notion that if a court made a decision on a statutory basis perhaps finding applying a statute in a particular way, or that the legislature disagreed with, that the legislature would have an opportunity to come back and correct that error. I' ve read scholars talk about that process between the legislature and the j udicial branch as a conversation between branches of government on the and I wonder if you would tell me your thoughts on that. MR. SUTTON: Well, that' s very well put, senator. I am not sure I could put it any better. But I think you are right on statutory interpretation cases, particularly very important federal statutes that reach the U. S. Supreme Court. There is an ongoing dialogue between one side of the street and the other across the very street in the U. S. Supreme Court. And, you know, I think that' s appropriate. You know, sometimes courts do get it wrong. Sometimes courts aren' t they don' t figure out exactly what Congress had in mind, exactly what it wanted. And, happily, the way this process works is the Congress can come back the very next day and get it right. We' ve, you know, usually the U. S. EXT-18-2091-C-000426 007104-001147 Document ID: 0.7.19343.9053-000001 member of the Ohio Supreme Court that you knew was going to be politically unpopular? MS. COOK: Oh, yes, I have. SEN. CORNYN: And how do you address that in terms of what you view to be your obligation as a j udge? MS. COOK: It' s actually you know, sometimes it' s hard to swallow, but it certainly is not one of my concerns that drive my function, my work. It' s as we say, it goes with the territory, and sometimes you' re called upon in doing your best work and your faithful application of the law. It will produce what could be or what will be viewed as an unpopular result. And certainly that' s part of your duties. SEN. CORNYN: Well, having been in a similar position to you when I served as a member of the Texas Supreme Court, do you hope that the people evaluating your performance, whether you' re an elected j udge or an appointed j udge, will understand that your j udgment as a member of a court is not an expression of political opinion? MS. COOK: That' s the hope. Some of the criticism that I have seen launched with regard to this nomination process seems to be that very thing to which you refer, senator. It' s a case oriented or a results oriented view of cases, which I hope would not be any indication of my qualifications as a j urist. SEN. CORNYN: And how do you feel about results oriented decision making by a j udge? MS. COOK: Oh, I very much I would never years, and I don' t participate in it, and I suppose we see it happen, but it' s an affront really to democracy and to the oath that we take to j udge cases without regard to persons is the oath we take in Ohio to administer j ustice without regard to persons. And therefore I would see it as an affront to that oath, to look at the results. SEN. CORNYN: Mr. Sutton, you during some of the questioning I think alluded to the notion that if a court made a decision on a statutory basis perhaps finding applying a statute in a particular way, or that the legislature disagreed with, that the legislature would have an opportunity to come back and correct that error. I' ve read scholars talk about that process between the legislature and the j udicial branch as a conversation between branches of government on the and I wonder if you would tell me your thoughts on that. MR. SUTTON: Well, that' s very well put, senator. I am not sure I could put it any better. But I think you are right on statutory interpretation cases, particularly very important federal statutes that reach the U. S. Supreme Court. There is an ongoing dialogue between one side of the street and the other across the very street in the U. S. Supreme Court. And, you know, I think that' s appropriate. You know, sometimes courts do get it wrong. Sometimes courts aren' t they don' t figure out exactly what Congress had in mind, exactly what it wanted. And, happily, the way this process works is the Congress can come back the very next day and get it right. We' ve, you know, usually the U. S. EXT-18-2091-C-000426 007104-001147 Document ID: 0.7.19343.9053-000001 Supreme Court does get it right and you don' t need that. But that is an answer in all situations involving statutory interpretation cases. SEN. CORNYN: And I know during the course of this hearing and press accounts that I' ve read about the qualifications and credentials of each of the three of you that there has been a suggestion made that each of you have somehow participated in decision making or advocacy as the case may be outside the j udicial mainstream. But let me ask you this, Mr. Sutton: Have you ever argued a case that you' ve lost? MR. SUTTON: SEN. CORNYN: Unfortunately, all too often, yes. Have you won more than you' ve lost? MR. SUTTON: At the U. S. Supreme Court, I have been fortunate I have a nine and three record there. But even then I would echo what Mr. Roberts said earlier. While the lawyer' s duty ethically is to make every reasonable argument to advance your client' s cause, sometimes that doesn' t work. And there' s nothing you can do about that. SEN. CORNYN: Well, on those occasions when you' ve made an argument to the United States Supreme Court and you lost, have you concluded that your argument was outside of the legal mainstream? Is that the necessary conclusion that you would draw? MR. SUTTON: No, my first reaction is usually that they' re the ones outside the mainstream. But happily that lasts about an hour, and I' ve realized that their j ob is to figure out what the right decision is here. And, no, I don' t think I don' t reach that conclusion. I don' t think it' s the right one. I think it' s a very dangerous one to the bar, because there' s a lot of clients, particularly criminal defendants, who need lawyers to really push hard on their behalf. The system doesn' t work if you don' t have an adversarial process that is effect. And I do think it would be quite hurtful to think that a member of a bar, in advocating a case, whether on behalf of a state or a criminal defendant, could be told that if they lost that case, or if an argument they made wasn' t successful they' d have to hear about it if they ever tried to become a j udge. That strikes me as very dangerous. SEN. CORNYN: Mr. Roberts, what if you have made an argument that someone might characterize as outside the mainstream of the law, but the let' s say the United States Supreme Court happens to agree with you, and you win that case, would you consider those two the argument that you were outside the mainstream in making the argument, but the fact that the Supreme Court agreed with you what conclusion would you draw about whether that' s outside the legal mainstream of American j urisprudence? MR. ROBERTS: Well, I would say that it is not. I mean, if you are making an argument before the Supreme Court and you prevail, you should be criticized if you for whatever reason decline to make that argument. That' s not to say that the Supreme Court is above criticism, and it' s certainly appropriate and healthy to scrutinize and when appropriate to criticize the Supreme Court' s decisions. But I don' t EXT-18-2091-C-000427 007104-001148 Document ID: 0.7.19343.9053-000001 Supreme Court does get it right and you don' t need that. But that is an answer in all situations involving statutory interpretation cases. SEN. CORNYN: And I know during the course of this hearing and press accounts that I' ve read about the qualifications and credentials of each of the three of you that there has been a suggestion made that each of you have somehow participated in decision making or advocacy as the case may be outside the j udicial mainstream. But let me ask you this, Mr. Sutton: Have you ever argued a case that you' ve lost? MR. SUTTON: SEN. CORNYN: Unfortunately, all too often, yes. Have you won more than you' ve lost? MR. SUTTON: At the U. S. Supreme Court, I have been fortunate I have a nine and three record there. But even then I would echo what Mr. Roberts said earlier. While the lawyer' s duty ethically is to make every reasonable argument to advance your client' s cause, sometimes that doesn' t work. And there' s nothing you can do about that. SEN. CORNYN: Well, on those occasions when you' ve made an argument to the United States Supreme Court and you lost, have you concluded that your argument was outside of the legal mainstream? Is that the necessary conclusion that you would draw? MR. SUTTON: No, my first reaction is usually that they' re the ones outside the mainstream. But happily that lasts about an hour, and I' ve realized that their j ob is to figure out what the right decision is here. And, no, I don' t think I don' t reach that conclusion. I don' t think it' s the right one. I think it' s a very dangerous one to the bar, because there' s a lot of clients, particularly criminal defendants, who need lawyers to really push hard on their behalf. The system doesn' t work if you don' t have an adversarial process that is effect. And I do think it would be quite hurtful to think that a member of a bar, in advocating a case, whether on behalf of a state or a criminal defendant, could be told that if they lost that case, or if an argument they made wasn' t successful they' d have to hear about it if they ever tried to become a j udge. That strikes me as very dangerous. SEN. CORNYN: Mr. Roberts, what if you have made an argument that someone might characterize as outside the mainstream of the law, but the let' s say the United States Supreme Court happens to agree with you, and you win that case, would you consider those two the argument that you were outside the mainstream in making the argument, but the fact that the Supreme Court agreed with you what conclusion would you draw about whether that' s outside the legal mainstream of American j urisprudence? MR. ROBERTS: Well, I would say that it is not. I mean, if you are making an argument before the Supreme Court and you prevail, you should be criticized if you for whatever reason decline to make that argument. That' s not to say that the Supreme Court is above criticism, and it' s certainly appropriate and healthy to scrutinize and when appropriate to criticize the Supreme Court' s decisions. But I don' t EXT-18-2091-C-000427 007104-001148 Document ID: 0.7.19343.9053-000001 think it' s appropriate to criticize a lawyer for making an argument that the Supreme Court accepts. That' s the lawyer' s j ob, and he wouldn' t be doing his j ob if he hadn' t made that argument. SEN. CORNYN: Let me ask Mr. Roberts and I' ll ask the same question to Mr. Sutton, because you are not j udges? MR. ROBERTS: Senator, last question? SEN. CORNYN: You are not j udges now but advocates under this adversary system we have been discussing. Are you willing to commit to assuming a new role and a different role, and that is as an impartial umpire of the law, legal arguments, and leave your role as an advocate behind, where you have represented one particular view or another, but now to take on that disinterested, impartial adj udicatory role? MR. ROBERTS: Yes, I am, senator. There is no role for advocacy with respect to personal beliefs or views on the part of a j udge. The j udge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases whether there is applicable Supreme Court precedent or not. Personal views, personal ideology those have no role to play whatever. SEN. CORNYN: Mr. Sutton? MR. SUTTON: Yes, senator. You know, where one stands on an issue often depends on where one sits. And if one is fortunate enough to be confirmed to be an Article III j udge, you sit in a position where the whole reason for being is to be fair, open minded do everything you can to make sure you appreciate every perspective that is brought before you, whether it' s an amicus brief or a party argument, and look for guidance from the U. S. Supreme Court if not controlling guidance. Look for guidance from your circuit, and do your best to get it right. SEN. CORNYN: Thank you, Mr. Chairman. point of personal privilege here. Senator Leahy wants a SEN. LEAHY: Just following our usual practice mentioned by another senator SEN. CORNYN: as has been Go right ahead SEN. LEAHY: on the other side, and I realize he did not want to yield for a response at that time. I would note, one, I absolutely agree that these j udges should be moved as rapidly as possible. And that is why in the 17 months that I was chairman we moved more of President Bush' s j udges than the Republicans had in 30 months with President Clinton' s. And that was 100 j udges. I mention that number because even members of your party, both in the Senate and at the White House, keep referring to it as being 20 or 25. You are probably not aware and I am sure the president wouldn' t intentionally mislead the public, but his staff probably gave him the wrong numbers it was 100. I' d also note that these three nominees, the Republicans were in charge of EXT-18-2091-C-000428 007104-001149 Document ID: 0.7.19343.9053-000001 think it' s appropriate to criticize a lawyer for making an argument that the Supreme Court accepts. That' s the lawyer' s j ob, and he wouldn' t be doing his j ob if he hadn' t made that argument. SEN. CORNYN: Let me ask Mr. Roberts and I' ll ask the same question to Mr. Sutton, because you are not j udges? MR. ROBERTS: Senator, last question? SEN. CORNYN: You are not j udges now but advocates under this adversary system we have been discussing. Are you willing to commit to assuming a new role and a different role, and that is as an impartial umpire of the law, legal arguments, and leave your role as an advocate behind, where you have represented one particular view or another, but now to take on that disinterested, impartial adj udicatory role? MR. ROBERTS: Yes, I am, senator. There is no role for advocacy with respect to personal beliefs or views on the part of a j udge. The j udge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases whether there is applicable Supreme Court precedent or not. Personal views, personal ideology those have no role to play whatever. SEN. CORNYN: Mr. Sutton? MR. SUTTON: Yes, senator. You know, where one stands on an issue often depends on where one sits. And if one is fortunate enough to be confirmed to be an Article III j udge, you sit in a position where the whole reason for being is to be fair, open minded do everything you can to make sure you appreciate every perspective that is brought before you, whether it' s an amicus brief or a party argument, and look for guidance from the U. S. Supreme Court if not controlling guidance. Look for guidance from your circuit, and do your best to get it right. SEN. CORNYN: Thank you, Mr. Chairman. point of personal privilege here. Senator Leahy wants a SEN. LEAHY: Just following our usual practice mentioned by another senator SEN. CORNYN: as has been Go right ahead SEN. LEAHY: on the other side, and I realize he did not want to yield for a response at that time. I would note, one, I absolutely agree that these j udges should be moved as rapidly as possible. And that is why in the 17 months that I was chairman we moved more of President Bush' s j udges than the Republicans had in 30 months with President Clinton' s. And that was 100 j udges. I mention that number because even members of your party, both in the Senate and at the White House, keep referring to it as being 20 or 25. You are probably not aware and I am sure the president wouldn' t intentionally mislead the public, but his staff probably gave him the wrong numbers it was 100. I' d also note that these three nominees, the Republicans were in charge of EXT-18-2091-C-000428 007104-001149 Document ID: 0.7.19343.9053-000001 the Senate for a number of weeks after they were nominated. call a hearing on them. SEN. DEWINE: They did not Senator Kohl. SEN. CORNYN: Mr. Chairman, if I may may I j ust briefly respond? I j ust want to make clear to Senator Leahy I meant certainly no disrespect or intent to SEN. LEAHY: None taken. SEN. CORNYN: to somehow mischaracterize the record. All I was saying is I hope that the committee would look forward rather than because I don' t view that as being conducive to doing the j ob backward that I feel like we are elected to do, and that is to move these nominees on a timely basis, in fairness to them and in fairness to the people we represent. And so I would hope that together, working across the aisle, we could perhaps come up with some kind of framework that would eliminate the need for the sort of finger pointing and recriminations that I think are unfortunate, because I don' t think anyone is without blame is my only point. And I hope I' ve made it clearly. SEN. LEAHY: I felt no disrespect. And the senator from Texas has a distinguished record in public service in all the branches, and I' d be more than happy to work with him on j ust the and we both agree with that. SEN. CORNYN: Thank you. SEN. DEWINE: Senator Kohl. SEN. KOHL: Mr. Chairman, I appreciate the opportunity to be here today. A vital element of our constitutional duty to advise and consent to j udicial nominees, nominees who once confirmed will serve lifetime appointments, is an opportunity to examine their records, their outlook and j udicial philosophies at these confirmation hearings. These hearings, as you know, are our only opportunity to evaluate a nominee' s qualifications before casting our final vote. If confirmed, these hearings are likely to be the last time any of these individuals ever speak in a public forum regarding their views before assuming their lifetime appointments to positions that may affect the liberties and constitutional rights of every American. And so I am somewhat disappointed that the maj ority has scheduled today' s hearings with three appellate court nominees. To conduct confirmation hearings in such a manner is contrary, I believe, to the interest of giving senators, as well as the American people, a fair opportunity to examine and evaluate the qualifications, credentials and j udicial temperaments of these nominees. I believe it' s difficult to fulfill our obligations to carefully consider the merits of these nominees in a hearing that is somewhat crowded. I have several questions. The first is for you, Mr. Sutton. Throughout our nation' s history, citizens have relied on our federal EXT-18-2091-C-000429 007104-001150 Document ID: 0.7.19343.9053-000001 the Senate for a number of weeks after they were nominated. call a hearing on them. SEN. DEWINE: They did not Senator Kohl. SEN. CORNYN: Mr. Chairman, if I may may I j ust briefly respond? I j ust want to make clear to Senator Leahy I meant certainly no disrespect or intent to SEN. LEAHY: None taken. SEN. CORNYN: to somehow mischaracterize the record. All I was saying is I hope that the committee would look forward rather than because I don' t view that as being conducive to doing the j ob backward that I feel like we are elected to do, and that is to move these nominees on a timely basis, in fairness to them and in fairness to the people we represent. And so I would hope that together, working across the aisle, we could perhaps come up with some kind of framework that would eliminate the need for the sort of finger pointing and recriminations that I think are unfortunate, because I don' t think anyone is without blame is my only point. And I hope I' ve made it clearly. SEN. LEAHY: I felt no disrespect. And the senator from Texas has a distinguished record in public service in all the branches, and I' d be more than happy to work with him on j ust the and we both agree with that. SEN. CORNYN: Thank you. SEN. DEWINE: Senator Kohl. SEN. KOHL: Mr. Chairman, I appreciate the opportunity to be here today. A vital element of our constitutional duty to advise and consent to j udicial nominees, nominees who once confirmed will serve lifetime appointments, is an opportunity to examine their records, their outlook and j udicial philosophies at these confirmation hearings. These hearings, as you know, are our only opportunity to evaluate a nominee' s qualifications before casting our final vote. If confirmed, these hearings are likely to be the last time any of these individuals ever speak in a public forum regarding their views before assuming their lifetime appointments to positions that may affect the liberties and constitutional rights of every American. And so I am somewhat disappointed that the maj ority has scheduled today' s hearings with three appellate court nominees. To conduct confirmation hearings in such a manner is contrary, I believe, to the interest of giving senators, as well as the American people, a fair opportunity to examine and evaluate the qualifications, credentials and j udicial temperaments of these nominees. I believe it' s difficult to fulfill our obligations to carefully consider the merits of these nominees in a hearing that is somewhat crowded. I have several questions. The first is for you, Mr. Sutton. Throughout our nation' s history, citizens have relied on our federal EXT-18-2091-C-000429 007104-001150 Document ID: 0.7.19343.9053-000001 courts to protect their civil liberties and constitutional rights against the actions of states and local government in cases involving everything from employment discrimination, school desegregation and free speech. However, you spent much of your career arguing that individuals have no right to seek redress in federal court for civil rights violations committed by state and local governments under the doctrine of federalism. So, then why shouldn' t we be concerned that your interpretation of federalism will seriously harm the ability of ordinary citizens seeking relief against violation of their civil and constitutional rights in your court, should you be confirmed? MR. SUTTON: Yes, senator, thanks for an opportunity to address that. I did when I became involved in we' ll call federalism cases, or cases representing states, I did that starting in 1995 when I was appointed to be the state solicitor of Ohio, and was honored to have that j ob for three and a half years. And I did what all state assistant AGs, or state solicitors do, and did my best to, as a lawyer, an advocate on behalf of the state, to defend the state in litigation. As lawyers obviously we weren' t involved in the underlying policy decisions that led to the litigation. It was j ust our j ob and my j ob at the appellate courts to defend the state' s position. It is true during that time I did get involved in the City of Boerne case, which is a federalism case, and I did work on behalf of the states during that period of time. But it' s well to note that Ohio, like many other states, has passed a lot of laws that are very protective of civil liberties, and I was active in those cases. I helped defend Ohio' s set aside statute, from equal protection challenges twice. I the only case I had while I was working in that office the only case I can ever remember where I had an opportunity to represent either side as the Cheryl Fisher case involving a blind woman who had been denied admission to medical school. And I picked her side of the case to work on it. So I think the notion that because I' ve represented states either the state of Ohio or other states in cases where an individual disagreed with something a state was doing, shows some bias. I guess I respectfully disagree with, one, because I was representing my client as best I could; but, two, even if one were to assess a nominee based on their advocacy and the client' s positions they represented. There are many of them that are on the other side of these issues that I think you' d be very comfortable with and would have encouraged me. So I do think that is an answer to the criticism that if confirmed I wouldn' t be able to j udge these things fair. I think it' s j ust the opposite. I would look at what the U. S. Supreme Court has done, I' d follow it carefully. I would look at 6th Circuit precedent and if it' s binding we' d obviously follow that. SEN. KOHL: Mr. Sutton, how do you respond to those who argue that your record in private practice demonstrates a certain hostility to the civil rights of people who are disabled? MR. SUTTON: Well, most of the representations I' ve done involving let' s say civil rights on the pro civil rights part of the equation were in private practice. I defended Ohio' s hate crime statute through an amicus brief on a pro bono effort on behalf of the NAACP, the EXT-18-2091-C-000430 007104-001151 Document ID: 0.7.19343.9053-000001 courts to protect their civil liberties and constitutional rights against the actions of states and local government in cases involving everything from employment discrimination, school desegregation and free speech. However, you spent much of your career arguing that individuals have no right to seek redress in federal court for civil rights violations committed by state and local governments under the doctrine of federalism. So, then why shouldn' t we be concerned that your interpretation of federalism will seriously harm the ability of ordinary citizens seeking relief against violation of their civil and constitutional rights in your court, should you be confirmed? MR. SUTTON: Yes, senator, thanks for an opportunity to address that. I did when I became involved in we' ll call federalism cases, or cases representing states, I did that starting in 1995 when I was appointed to be the state solicitor of Ohio, and was honored to have that j ob for three and a half years. And I did what all state assistant AGs, or state solicitors do, and did my best to, as a lawyer, an advocate on behalf of the state, to defend the state in litigation. As lawyers obviously we weren' t involved in the underlying policy decisions that led to the litigation. It was j ust our j ob and my j ob at the appellate courts to defend the state' s position. It is true during that time I did get involved in the City of Boerne case, which is a federalism case, and I did work on behalf of the states during that period of time. But it' s well to note that Ohio, like many other states, has passed a lot of laws that are very protective of civil liberties, and I was active in those cases. I helped defend Ohio' s set aside statute, from equal protection challenges twice. I the only case I had while I was working in that office the only case I can ever remember where I had an opportunity to represent either side as the Cheryl Fisher case involving a blind woman who had been denied admission to medical school. And I picked her side of the case to work on it. So I think the notion that because I' ve represented states either the state of Ohio or other states in cases where an individual disagreed with something a state was doing, shows some bias. I guess I respectfully disagree with, one, because I was representing my client as best I could; but, two, even if one were to assess a nominee based on their advocacy and the client' s positions they represented. There are many of them that are on the other side of these issues that I think you' d be very comfortable with and would have encouraged me. So I do think that is an answer to the criticism that if confirmed I wouldn' t be able to j udge these things fair. I think it' s j ust the opposite. I would look at what the U. S. Supreme Court has done, I' d follow it carefully. I would look at 6th Circuit precedent and if it' s binding we' d obviously follow that. SEN. KOHL: Mr. Sutton, how do you respond to those who argue that your record in private practice demonstrates a certain hostility to the civil rights of people who are disabled? MR. SUTTON: Well, most of the representations I' ve done involving let' s say civil rights on the pro civil rights part of the equation were in private practice. I defended Ohio' s hate crime statute through an amicus brief on a pro bono effort on behalf of the NAACP, the EXT-18-2091-C-000430 007104-001151 Document ID: 0.7.19343.9053-000001 Anti Defamation League, and several other civil rights groups affected by hates crime legislation. We were successful in upholding that. I represented the Center for the Prevention of Handgun Violence, in defending against the constitutional challenge a Columbus assault weapon ordinance which was preventing assault weapons in the Columbus region. Since being state solicitor I' ve continued. I represented a prisoner inmate in a civil rights case at the U. S. Supreme Court. I' ve defended two death penalty inmates. And I' m a member of the Equal Justice Foundation. I was asked to be a member of that foundation before I was nominated. And the purpose of the Equal Justice Foundation, which is of course a pro bono effort, is to provide legal services to all manner of indigent claimants, first and foremost the disabled, but those based on race and many others. And that group has done a lot of very good things in Ohio. They' ve led the effort to put curb side ramps in Ohio cities, successfully under the ADA. So I do understand I do understand the question, and I understand why someone could look at the Garrett case or the Kimmel case and say, Boy, how could someone take that case. And my answer, to the extent there' s a sin here, it' s that I really wanted to develop a U. S. Supreme Court practice, and I was very eager to do so. And it was easier to get those cases in on that side having worked for the state before I went back to private practice. But it didn' t reflect any bias at all. In fact, it' s quite the opposite. SEN. KOHL: I appreciate your answer on that. I' m not as fully convinced as you would wish me to be with respect to your predilection, but clearly you' re trying to present your position as well as you can, and I do respect that. MR. SUTTON: Thank you. SEN. KOHL: Mr. Sutton and I' d like to also ask opinions from the other two nominees. In the past few years there' s been a growth in the use of so called protective orders in product liability cases. We saw this, for example, in the settlements arising from the Bridgestone/Firestone lawsuits. Critics argue that those protective orders oftentimes prevent the public from learning about the health and safety hazards in the products that they use. In fact, the U. S. District Court for the District of South Carolina recently passed a local rule banning the use of sealed settlements altogether. So I would like to ask you, Mr. Sutton, and then the other two nominees, should a j udge be required to balance the public' s right to know against a litigant' s right to privacy when the information sought to be sealed could keep secret a public health and safety hazard? And what would be your views regarding the new local rule of the district of South Carolina on this issue which is, as I said, banning the use of sealed settlements altogether? Mr. Sutton, you first. MR. SUTTON: Yes, senator, I have to confess this is not an area in which I' ve practiced. I can' t think of a case where I' ve actually had to deal with this issue. So as a Court of Appeals j udge I would do what all Court of Appeals j udges are obligated to do, and look very carefully at U. S. Supreme Court precedent on these type of issues. I suspect you' re right that what U. S. Supreme Court precedent requires is exactly the balance you' re talking about, a balance between the public' s right to EXT-18-2091-C-000431 007104-001152 Document ID: 0.7.19343.9053-000001 Anti Defamation League, and several other civil rights groups affected by hates crime legislation. We were successful in upholding that. I represented the Center for the Prevention of Handgun Violence, in defending against the constitutional challenge a Columbus assault weapon ordinance which was preventing assault weapons in the Columbus region. Since being state solicitor I' ve continued. I represented a prisoner inmate in a civil rights case at the U. S. Supreme Court. I' ve defended two death penalty inmates. And I' m a member of the Equal Justice Foundation. I was asked to be a member of that foundation before I was nominated. And the purpose of the Equal Justice Foundation, which is of course a pro bono effort, is to provide legal services to all manner of indigent claimants, first and foremost the disabled, but those based on race and many others. And that group has done a lot of very good things in Ohio. They' ve led the effort to put curb side ramps in Ohio cities, successfully under the ADA. So I do understand I do understand the question, and I understand why someone could look at the Garrett case or the Kimmel case and say, Boy, how could someone take that case. And my answer, to the extent there' s a sin here, it' s that I really wanted to develop a U. S. Supreme Court practice, and I was very eager to do so. And it was easier to get those cases in on that side having worked for the state before I went back to private practice. But it didn' t reflect any bias at all. In fact, it' s quite the opposite. SEN. KOHL: I appreciate your answer on that. I' m not as fully convinced as you would wish me to be with respect to your predilection, but clearly you' re trying to present your position as well as you can, and I do respect that. MR. SUTTON: Thank you. SEN. KOHL: Mr. Sutton and I' d like to also ask opinions from the other two nominees. In the past few years there' s been a growth in the use of so called protective orders in product liability cases. We saw this, for example, in the settlements arising from the Bridgestone/Firestone lawsuits. Critics argue that those protective orders oftentimes prevent the public from learning about the health and safety hazards in the products that they use. In fact, the U. S. District Court for the District of South Carolina recently passed a local rule banning the use of sealed settlements altogether. So I would like to ask you, Mr. Sutton, and then the other two nominees, should a j udge be required to balance the public' s right to know against a litigant' s right to privacy when the information sought to be sealed could keep secret a public health and safety hazard? And what would be your views regarding the new local rule of the district of South Carolina on this issue which is, as I said, banning the use of sealed settlements altogether? Mr. Sutton, you first. MR. SUTTON: Yes, senator, I have to confess this is not an area in which I' ve practiced. I can' t think of a case where I' ve actually had to deal with this issue. So as a Court of Appeals j udge I would do what all Court of Appeals j udges are obligated to do, and look very carefully at U. S. Supreme Court precedent on these type of issues. I suspect you' re right that what U. S. Supreme Court precedent requires is exactly the balance you' re talking about, a balance between the public' s right to EXT-18-2091-C-000431 007104-001152 Document ID: 0.7.19343.9053-000001 know and the privacy rights of whatever that particular defendant might be. But I can' t say I know that for sure. What I can tell you is that I would discern what that precedent requires. I' d look at what Sixth Circuit precedent requires. I' d look very carefully and open mindedly at the arguments of either party on this kind of issue. And I certainly appreciate the perspective you have on it and do my best, having done all that, to decide it correctly. SEN. KOHL: Are you aware of some of these secret settlements that have, in effect, prevented vital information from being passed on to people still using defective products who are unaware of that because a secret settlement was made in a court? You' re aware that these things have happened. MR. SUTTON: Not that aware, I have to tell you. SEN. KOHL: Really? MR. SUTTON: Yeah. SEN. KOHL: You didn' t know that at all? MR. SUTTON: Well, I' m j ust saying, I haven' t worked in one of these areas. I understand what you' re saying. I' ve read news reports along those lines. But I' m j ust making the point, it' s not something I know very much about at all. In fact, it' s the opposite; I know very little about it legally. And as a court of appeals j udge SEN. KOHL: It' s such an important issue, without trying to be unduly difficult with you, that it would seem to me you would have a pretty strong opinion on it. But I appreciate that. Mr. Roberts, how do you feel about the validity of maintaining or throwing out secret settlements that are made which prevent other people, who may be using these defective products, from knowing that they are defective, like defective tires, for example, defective medical devices, for example? MR. ROBERTS: It' s not an area that I' ve litigated in either. I certainly am aware of the cases as they' ve come up, although I don' t think it' s an issue that the DC circuit has addressed, or at least I' m not aware that it' s done so. And I hesitate to opine on it without having studied the law. I certainly would obviously follow the Supreme Court precedent and the precedent of the circuit if I were to be confirmed. I suspect that you' re correct that the applicable law would involve some balance. I think there are some interests in sealing settlements in some cases, but I' d very surprised if that required or permitted sealing in a case where that actively concealed a harmful condition on an ongoing basis that was continuing to present a danger. But, again, I' m j ust surmising at this point. And as a j udge, I would apply the law in the circuit or in the Supreme Court. SEN. KOHL: Okay. Ms. Cook. EXT-18-2091-C-000432 007104-001153 Document ID: 0.7.19343.9053-000001 know and the privacy rights of whatever that particular defendant might be. But I can' t say I know that for sure. What I can tell you is that I would discern what that precedent requires. I' d look at what Sixth Circuit precedent requires. I' d look very carefully and open mindedly at the arguments of either party on this kind of issue. And I certainly appreciate the perspective you have on it and do my best, having done all that, to decide it correctly. SEN. KOHL: Are you aware of some of these secret settlements that have, in effect, prevented vital information from being passed on to people still using defective products who are unaware of that because a secret settlement was made in a court? You' re aware that these things have happened. MR. SUTTON: Not that aware, I have to tell you. SEN. KOHL: Really? MR. SUTTON: Yeah. SEN. KOHL: You didn' t know that at all? MR. SUTTON: Well, I' m j ust saying, I haven' t worked in one of these areas. I understand what you' re saying. I' ve read news reports along those lines. But I' m j ust making the point, it' s not something I know very much about at all. In fact, it' s the opposite; I know very little about it legally. And as a court of appeals j udge SEN. KOHL: It' s such an important issue, without trying to be unduly difficult with you, that it would seem to me you would have a pretty strong opinion on it. But I appreciate that. Mr. Roberts, how do you feel about the validity of maintaining or throwing out secret settlements that are made which prevent other people, who may be using these defective products, from knowing that they are defective, like defective tires, for example, defective medical devices, for example? MR. ROBERTS: It' s not an area that I' ve litigated in either. I certainly am aware of the cases as they' ve come up, although I don' t think it' s an issue that the DC circuit has addressed, or at least I' m not aware that it' s done so. And I hesitate to opine on it without having studied the law. I certainly would obviously follow the Supreme Court precedent and the precedent of the circuit if I were to be confirmed. I suspect that you' re correct that the applicable law would involve some balance. I think there are some interests in sealing settlements in some cases, but I' d very surprised if that required or permitted sealing in a case where that actively concealed a harmful condition on an ongoing basis that was continuing to present a danger. But, again, I' m j ust surmising at this point. And as a j udge, I would apply the law in the circuit or in the Supreme Court. SEN. KOHL: Okay. Ms. Cook. EXT-18-2091-C-000432 007104-001153 Document ID: 0.7.19343.9053-000001 MS. COOK: I agree with Mr. Sutton and Roberts, and, of course, balancing j udges do balancing is one of our regularly engaged in endeavors. So this certainly sounds the issue would demand balancing if there is danger and harm to others, potential danger. In the absence of disclosure, I understand that balancing would be important. SEN. KOHL: I asked the question because there have been, over the years, in recent years, cases where j udges have approved these kinds of settlements between a company and a litigant. And that precluded, in many cases, thousands and thousands of people who were using defective products from knowing that these products were defective. Now, in this simplistic kind of a presentation that I' m trying to put before you, which is fairly black and white, while I' m not sure whether you' re going to answer, I would hope, as a j udge, I would hope that you would not allow any settlement that endangered the health and safety of the users of products to be made simply to benefit a corporation who wanted to keep that knowledge from the users of that defective product. Where you' ll come out on these issues in the event you' re confirmed, I don' t know. But obviously you know where I' m coming from. And I think you know where most Americans would be coming from. Last question. One of my priorities on this committee is my role on the Antitrust Subcommittee. Strong antitrust enforcement is essential to ensuring that competition flourishes throughout our country, which benefits consumers through lower prices and better quality products and services. Federal courts are essential to the firm enforcement of our antitrust laws and to ensuring that anti competitive conduct is sanctioned. Many antitrust questions are decided under what is known as the rule of reason in which the harm caused by the business conduct at issue is balanced against pro competitive j ustifications. This doctrine gives a great deal of discretion to the courts to determine whether or not the antitrust laws have been violated. What would be your approach to deciding antitrust issues under the rule of reason? More generally, please give us your views regarding the role of the j udiciary with respect to the enforcement of antitrust law. Mr. Sutton? MR. SUTTON: Yes, Senator, this too is an area where I have not had an active litigation practice. In fact, j ust sitting here, I can' t actually think of one case I' ve been involved in. When I was working for the state of Ohio, Ohio is one of the states that sued Microsoft, so I have some familiarity with that case and some peripheral involvement with that one. But clearly, in terms of your question, the federal courts have a critical role in enforcing the Antitrust Act and antitrust laws. That' s EXT-18-2091-C-000433 007104-001154 Document ID: 0.7.19343.9053-000001 MS. COOK: I agree with Mr. Sutton and Roberts, and, of course, balancing j udges do balancing is one of our regularly engaged in endeavors. So this certainly sounds the issue would demand balancing if there is danger and harm to others, potential danger. In the absence of disclosure, I understand that balancing would be important. SEN. KOHL: I asked the question because there have been, over the years, in recent years, cases where j udges have approved these kinds of settlements between a company and a litigant. And that precluded, in many cases, thousands and thousands of people who were using defective products from knowing that these products were defective. Now, in this simplistic kind of a presentation that I' m trying to put before you, which is fairly black and white, while I' m not sure whether you' re going to answer, I would hope, as a j udge, I would hope that you would not allow any settlement that endangered the health and safety of the users of products to be made simply to benefit a corporation who wanted to keep that knowledge from the users of that defective product. Where you' ll come out on these issues in the event you' re confirmed, I don' t know. But obviously you know where I' m coming from. And I think you know where most Americans would be coming from. Last question. One of my priorities on this committee is my role on the Antitrust Subcommittee. Strong antitrust enforcement is essential to ensuring that competition flourishes throughout our country, which benefits consumers through lower prices and better quality products and services. Federal courts are essential to the firm enforcement of our antitrust laws and to ensuring that anti competitive conduct is sanctioned. Many antitrust questions are decided under what is known as the rule of reason in which the harm caused by the business conduct at issue is balanced against pro competitive j ustifications. This doctrine gives a great deal of discretion to the courts to determine whether or not the antitrust laws have been violated. What would be your approach to deciding antitrust issues under the rule of reason? More generally, please give us your views regarding the role of the j udiciary with respect to the enforcement of antitrust law. Mr. Sutton? MR. SUTTON: Yes, Senator, this too is an area where I have not had an active litigation practice. In fact, j ust sitting here, I can' t actually think of one case I' ve been involved in. When I was working for the state of Ohio, Ohio is one of the states that sued Microsoft, so I have some familiarity with that case and some peripheral involvement with that one. But clearly, in terms of your question, the federal courts have a critical role in enforcing the Antitrust Act and antitrust laws. That' s EXT-18-2091-C-000433 007104-001154 Document ID: 0.7.19343.9053-000001 what the U. S. Supreme Court has said, and I can' t imagine a court of appeals j udge not following the precedents to that exact effect. SEN. KOHL: Mr. Roberts. MR. ROBERTS: As a private lawyer, I have actually represented probably more plaintiffs and enforcement interests in antitrust actions than defendants. I represented the state attorneys general in the Microsoft case; represented several private plaintiffs in antitrust appeals as well; handled some antitrust cases when I was in the solicitor general' s office. I' ve also represented corporations accused of antitrust violations. And I think that balanced perspective is something that' s valuable for a j udge. I certainly think that a lawyer coming into court, if I were to be confirmed, representing a plaintiff in an antitrust action, should take some comfort in the fact that I' ve done that. And a lawyer representing a defendant should take some comfort in the fact that I' ve done that as well. And I have the perspective of the issue from both sides. So, again, obviously, as a j udge, I would following the binding Supreme Court precedent and the precedent in my circuit. But I would hope that, in doing so, I would have some added perspective from having been on both sides, both the plaintiff side and the defendant side, in antitrust enforcement actions. SEN. KOHL: Thank you. And Ms. Cook. MS. COOK: And as in all the issues that a j udge must consider, I think the importance would be the conscientious weighing and balancing and understanding the rule of reason within the confines of the existing law, and that certainly other decisions in that area would inform the decision that I might be called upon to make. So I would apply the structured, principled, decisional process. SEN. KOHL: I thank you. Thank you, Mr. Chairman. SEN. HATCH: Well, thank you, Senator. Sessions now. Senator Sessions. We' ll turn to Senator SEN. SESSIONS: I' d like to ask the three of you one question. You' ve had great experience and you' re lawyers of integrity and ability. Do you believe that a conscientious j udge can read the Constitution, read statutes and prior case authority and render and be able to interpret a statute? Do you believe that you' re capable of that? I' d like to hear your answer to that. MR. SUTTON: I should start. Senator, you' re looking at me, so I' ll take that as SEN. SESSIONS: MR. SUTTON: Yes, you can go first. Yes. Thank you. EXT-18-2091-C-000434 007104-001155 Document ID: 0.7.19343.9053-000001 what the U. S. Supreme Court has said, and I can' t imagine a court of appeals j udge not following the precedents to that exact effect. SEN. KOHL: Mr. Roberts. MR. ROBERTS: As a private lawyer, I have actually represented probably more plaintiffs and enforcement interests in antitrust actions than defendants. I represented the state attorneys general in the Microsoft case; represented several private plaintiffs in antitrust appeals as well; handled some antitrust cases when I was in the solicitor general' s office. I' ve also represented corporations accused of antitrust violations. And I think that balanced perspective is something that' s valuable for a j udge. I certainly think that a lawyer coming into court, if I were to be confirmed, representing a plaintiff in an antitrust action, should take some comfort in the fact that I' ve done that. And a lawyer representing a defendant should take some comfort in the fact that I' ve done that as well. And I have the perspective of the issue from both sides. So, again, obviously, as a j udge, I would following the binding Supreme Court precedent and the precedent in my circuit. But I would hope that, in doing so, I would have some added perspective from having been on both sides, both the plaintiff side and the defendant side, in antitrust enforcement actions. SEN. KOHL: Thank you. And Ms. Cook. MS. COOK: And as in all the issues that a j udge must consider, I think the importance would be the conscientious weighing and balancing and understanding the rule of reason within the confines of the existing law, and that certainly other decisions in that area would inform the decision that I might be called upon to make. So I would apply the structured, principled, decisional process. SEN. KOHL: I thank you. Thank you, Mr. Chairman. SEN. HATCH: Well, thank you, Senator. Sessions now. Senator Sessions. We' ll turn to Senator SEN. SESSIONS: I' d like to ask the three of you one question. You' ve had great experience and you' re lawyers of integrity and ability. Do you believe that a conscientious j udge can read the Constitution, read statutes and prior case authority and render and be able to interpret a statute? Do you believe that you' re capable of that? I' d like to hear your answer to that. MR. SUTTON: I should start. Senator, you' re looking at me, so I' ll take that as SEN. SESSIONS: MR. SUTTON: Yes, you can go first. Yes. Thank you. EXT-18-2091-C-000434 007104-001155 Document ID: 0.7.19343.9053-000001 SEN. SESSIONS: You were smiling. I thought MR. SUTTON: Yeah. No, absolutely, I do. There' s no doubt there are difficult cases. There are cases at the margin where text gets difficult to interpret. But, yes, I do think what lawyers do is, at the end of the day, what j udges do, which is read constitutions, read statutes to determine what the framers or that legislative body meant. Those words have meaning. There are statutes, rules of construction that give guidance to the meaning of those words. And j udges have an obligation to follow those rules and to follow the text of the statute or, in some cases, the text of the Constitution in cases before them. And happily, as a court of appeals j udge, court of appeals j udges have a lot of guidance from the U. S. Supreme Court on those very things. And a court of appeals j udge would, of course, follow that. SEN. SESSIONS: Mr. Roberts, do you agree? MR. ROBERTS: Yes, I do. In other words, I do think there is a right answer in a case. And I think if j udges do the work and work hard at it, they' re likely to come up with the right answer. I think that' s why, for example, in the DC circuit, 97 percent of the panel decisions are unanimous, because they are hard working j udges and they come up with the same answer in the vast maj ority of the cases. There are certainly going to be disagreements. That' s why we have courts of appeals, because we think district courts are not always going to get it right. But I do think that there is a right answer. And if the j udge and the lawyers would j ust work hard enough, they' d come up with it. SEN. SESSIONS: Judge Cook, do you agree? MS. COOK: Yes, I do. I think that j udges search I think it' s great when j udges search for obj ectified meaning; that is, the meaning that a reasonable person would gather from the text that a j udge is called upon to interpret. And certainly, I really think in good faith, j udges, working conscientiously, can come to different conclusions sometimes, but I really think that there are obj ective boundaries within which most cases are really decided within those boundaries. SEN. SESSIONS: Well, I agree. I spent 15 years in federal court every day as a federal prosecutor. If I had a case that answered the question, almost invariably the j udge ruled that way. If the law was against me, you could expect the j udge to rule against me. We have a theory afoot in America, sort of a postmodernism illness, deconstructionism, critical legal studies that all law is politics and that you' re being asked about your political views about matters. And that' s being promoted to a large degree, I think, by people who don' t really understand that in every court in America, all over this country, day after day after day, j udges are reading statutes and rendering sound rulings that never get appealed. If they do, they get affirmed unanimously, as you mentioned, because I believe we can EXT-18-2091-C-000435 007104-001156 Document ID: 0.7.19343.9053-000001 SEN. SESSIONS: You were smiling. I thought MR. SUTTON: Yeah. No, absolutely, I do. There' s no doubt there are difficult cases. There are cases at the margin where text gets difficult to interpret. But, yes, I do think what lawyers do is, at the end of the day, what j udges do, which is read constitutions, read statutes to determine what the framers or that legislative body meant. Those words have meaning. There are statutes, rules of construction that give guidance to the meaning of those words. And j udges have an obligation to follow those rules and to follow the text of the statute or, in some cases, the text of the Constitution in cases before them. And happily, as a court of appeals j udge, court of appeals j udges have a lot of guidance from the U. S. Supreme Court on those very things. And a court of appeals j udge would, of course, follow that. SEN. SESSIONS: Mr. Roberts, do you agree? MR. ROBERTS: Yes, I do. In other words, I do think there is a right answer in a case. And I think if j udges do the work and work hard at it, they' re likely to come up with the right answer. I think that' s why, for example, in the DC circuit, 97 percent of the panel decisions are unanimous, because they are hard working j udges and they come up with the same answer in the vast maj ority of the cases. There are certainly going to be disagreements. That' s why we have courts of appeals, because we think district courts are not always going to get it right. But I do think that there is a right answer. And if the j udge and the lawyers would j ust work hard enough, they' d come up with it. SEN. SESSIONS: Judge Cook, do you agree? MS. COOK: Yes, I do. I think that j udges search I think it' s great when j udges search for obj ectified meaning; that is, the meaning that a reasonable person would gather from the text that a j udge is called upon to interpret. And certainly, I really think in good faith, j udges, working conscientiously, can come to different conclusions sometimes, but I really think that there are obj ective boundaries within which most cases are really decided within those boundaries. SEN. SESSIONS: Well, I agree. I spent 15 years in federal court every day as a federal prosecutor. If I had a case that answered the question, almost invariably the j udge ruled that way. If the law was against me, you could expect the j udge to rule against me. We have a theory afoot in America, sort of a postmodernism illness, deconstructionism, critical legal studies that all law is politics and that you' re being asked about your political views about matters. And that' s being promoted to a large degree, I think, by people who don' t really understand that in every court in America, all over this country, day after day after day, j udges are reading statutes and rendering sound rulings that never get appealed. If they do, they get affirmed unanimously, as you mentioned, because I believe we can EXT-18-2091-C-000435 007104-001156 Document ID: 0.7.19343.9053-000001 ascertain the plain meaning of words and can render consistent verdicts. And to me, that' s what j ustice is. And I am troubled by the idea that you' d be brought up and you' d be challenged on your personal political views when I know you as professionals know that it makes no difference what your personal view is. If the Supreme Court has held otherwise or a statute is the other way or the Constitution is the other way, you' ll follow that. Am I correct in that? MR. SUTTON: Absolutely, Senator. I mean, that is the whole privilege of being a j udge, that your client is the rule of law, and the only way the rule of law has meaning is if j udges determine the meaning of statutes and the Constitution, based first on what the words say and suggest, and then based on other indicators of legislative or constitutional meaning. I agree with you. SEN. SESSIONS: Mr. Roberts. MR. ROBERTS: Yes. You know, if all came down to j ust politics on the j udicial branch, that would be very frustrating for lawyers who work very hard to try to advocate their position and present the precedents and present the arguments. They expect the j udges to work j ust as hard. And if a j udge is going to rule one way or the other, regardless of the arguments, one could save everybody a lot of work, but the rule of law would suffer. And I know that' s a particular concern in the DC circuit. I know one of the things that frustrates very much the j udges who are on that court, all of whom are very hard working, is when they announce a decision and they' re identified in the press as a Democratic appointee or a Republican appointee. That makes such gives so little credit to the work that they put into the case. And they work very hard, and all of a sudden the report is, "Well, they j ust decided that way because of politics. " That is a disservice to them. And I know, as an advocate, I never liked it when I had a political j udge when I was in front of the political j udge, because, again, you put a lot of work into presenting the case and you want to see that same work returned. And the theory is that that will help everybody reach the right result. And I think that' s correct. SEN. SESSIONS: Judge Cook? MS. COOK: Likewise, Senator. I can' t tell you whose quote this is, but I ascribe to the view that this quote is, "The rule of law should be a law of rules. " And I think that' s somewhat the view you take, and certainly it is my experience, that the cases are decidable and usually are decided based on rules. SEN. SESSIONS: I j ust think that' s so important. And I think it' s dangerous for us to say we' re going to determine people' s ideology and then we' re going to vote to confirm them or not. EXT-18-2091-C-000436 007104-001157 Document ID: 0.7.19343.9053-000001 ascertain the plain meaning of words and can render consistent verdicts. And to me, that' s what j ustice is. And I am troubled by the idea that you' d be brought up and you' d be challenged on your personal political views when I know you as professionals know that it makes no difference what your personal view is. If the Supreme Court has held otherwise or a statute is the other way or the Constitution is the other way, you' ll follow that. Am I correct in that? MR. SUTTON: Absolutely, Senator. I mean, that is the whole privilege of being a j udge, that your client is the rule of law, and the only way the rule of law has meaning is if j udges determine the meaning of statutes and the Constitution, based first on what the words say and suggest, and then based on other indicators of legislative or constitutional meaning. I agree with you. SEN. SESSIONS: Mr. Roberts. MR. ROBERTS: Yes. You know, if all came down to j ust politics on the j udicial branch, that would be very frustrating for lawyers who work very hard to try to advocate their position and present the precedents and present the arguments. They expect the j udges to work j ust as hard. And if a j udge is going to rule one way or the other, regardless of the arguments, one could save everybody a lot of work, but the rule of law would suffer. And I know that' s a particular concern in the DC circuit. I know one of the things that frustrates very much the j udges who are on that court, all of whom are very hard working, is when they announce a decision and they' re identified in the press as a Democratic appointee or a Republican appointee. That makes such gives so little credit to the work that they put into the case. And they work very hard, and all of a sudden the report is, "Well, they j ust decided that way because of politics. " That is a disservice to them. And I know, as an advocate, I never liked it when I had a political j udge when I was in front of the political j udge, because, again, you put a lot of work into presenting the case and you want to see that same work returned. And the theory is that that will help everybody reach the right result. And I think that' s correct. SEN. SESSIONS: Judge Cook? MS. COOK: Likewise, Senator. I can' t tell you whose quote this is, but I ascribe to the view that this quote is, "The rule of law should be a law of rules. " And I think that' s somewhat the view you take, and certainly it is my experience, that the cases are decidable and usually are decided based on rules. SEN. SESSIONS: I j ust think that' s so important. And I think it' s dangerous for us to say we' re going to determine people' s ideology and then we' re going to vote to confirm them or not. EXT-18-2091-C-000436 007104-001157 Document ID: 0.7.19343.9053-000001 And to our friends in the disability movement, let me say to you, as I read these cases, they have nothing whatsoever to do with the policy of providing protections for people with disabilities. It' s a matter of constitutional questions such as sovereign immunity. I know that Senator Robert Byrd and other senators in our body defend tenaciously the prerogatives of the United States Senate. And if a co equal branch does not defend its prerogatives, it' ll lose those privileges. And attorney generals are that way, aren' t they, Mr. Sutton? I know Attorney General Cornyn is here, but I was attorney general and I did not feel that I would have done my j ob if, on my watch, the legal prerogatives of the state of Alabama were eroded by my failure to defend those rights. You' ve worked for the state attorney general' s office. Isn' t that true of any attorney general? MR. SUTTON: I think it' s true not only for state attorney generals. It' s true for the U. S. solicitor general and the U. S. attorney general, that, j ust as if a state is sued in any case, their lawyers have an obligation to do their best to represent the client. The lawyers aren' t involved in the underlying policy decision that leads to the dispute that leads to the lawsuit. The lawyers come in once that dispute can' t be resolved outside of court. And at that point, whether it' s a state AG or the United States solicitor general, whether it' s a claim of racial discrimination or disability discrimination, those lawyers have in the past and do continue to represent the governmental body, which is publicly elected. And that' s, I think, an honor for people that have had the chance to represent the people by working in an attorney general office. And I' m sure people that have worked in the U. S. solicitor general' s office would say the same thing. SEN. SESSIONS: Even if the immediate short term effect may be to undermine some social policy that may be popular at the moment, or right even, if it' s not done in a proper legal way or it' s done in a way that undermines the long term prerogative of a state, you would expect the state to defend against that, would you not? MR. SUTTON: Well, I think every state has to make a decision what it' s going to do in a given case. But it is true and my understanding I don' t know all state constitutions, but I' m familiar the state attorneys, they don' t have choices in with many of them these matters. And that' s particularly true in sovereign immunity cases, where, at the end of the day, there' s an individual' s claim, but there' s also a claim for money. And the AGs it' s the same with the U. S. solicitor general they don' t have the keys to the vault. The keys to the vault are with the legislature and the executive branch. And the lawyers have an obligation to defend as long as the executive branch tells them to defend. EXT-18-2091-C-000437 007104-001158 Document ID: 0.7.19343.9053-000001 And to our friends in the disability movement, let me say to you, as I read these cases, they have nothing whatsoever to do with the policy of providing protections for people with disabilities. It' s a matter of constitutional questions such as sovereign immunity. I know that Senator Robert Byrd and other senators in our body defend tenaciously the prerogatives of the United States Senate. And if a co equal branch does not defend its prerogatives, it' ll lose those privileges. And attorney generals are that way, aren' t they, Mr. Sutton? I know Attorney General Cornyn is here, but I was attorney general and I did not feel that I would have done my j ob if, on my watch, the legal prerogatives of the state of Alabama were eroded by my failure to defend those rights. You' ve worked for the state attorney general' s office. Isn' t that true of any attorney general? MR. SUTTON: I think it' s true not only for state attorney generals. It' s true for the U. S. solicitor general and the U. S. attorney general, that, j ust as if a state is sued in any case, their lawyers have an obligation to do their best to represent the client. The lawyers aren' t involved in the underlying policy decision that leads to the dispute that leads to the lawsuit. The lawyers come in once that dispute can' t be resolved outside of court. And at that point, whether it' s a state AG or the United States solicitor general, whether it' s a claim of racial discrimination or disability discrimination, those lawyers have in the past and do continue to represent the governmental body, which is publicly elected. And that' s, I think, an honor for people that have had the chance to represent the people by working in an attorney general office. And I' m sure people that have worked in the U. S. solicitor general' s office would say the same thing. SEN. SESSIONS: Even if the immediate short term effect may be to undermine some social policy that may be popular at the moment, or right even, if it' s not done in a proper legal way or it' s done in a way that undermines the long term prerogative of a state, you would expect the state to defend against that, would you not? MR. SUTTON: Well, I think every state has to make a decision what it' s going to do in a given case. But it is true and my understanding I don' t know all state constitutions, but I' m familiar the state attorneys, they don' t have choices in with many of them these matters. And that' s particularly true in sovereign immunity cases, where, at the end of the day, there' s an individual' s claim, but there' s also a claim for money. And the AGs it' s the same with the U. S. solicitor general they don' t have the keys to the vault. The keys to the vault are with the legislature and the executive branch. And the lawyers have an obligation to defend as long as the executive branch tells them to defend. EXT-18-2091-C-000437 007104-001158 Document ID: 0.7.19343.9053-000001 SEN. SESSIONS: Well, as a former attorney general and former United States attorney representing the United States in court, I can tell you, an attorney general that allows a state' s sovereign immunity to be eroded, I think, will have a difficult time j ustifying that position. And so, with regard to the Alabama case, you not only filed a brief on behalf of the state of Alabama, but you also gained support from a number of other attorneys general, including a Democratic attorney general, Mark Pryor, who' s now a member of this Senate. Is that not correct? MR. SUTTON: I think that is true. There was an amicus brief of states, and I' m fairly confident that Arkansas j oined that brief. In fact, I thought that brief was balanced. Half Democratic AGs and half Republican AGs is my rough recollection. SEN. SESSIONS: And they saw the issue not as a disability issue but as a question of state power and sovereign immunity. Is that correct? MR. SUTTON: That' s my understanding. I haven' t read that brief in a while, but I think it did make the point that, j ust as the United States has a sovereign immunity power, so do the states, at least as the U. S. Supreme Court has construed it to date. SEN. SESSIONS: Well, I think that' s important for us to think about. You' ve defended criminals, have you not, and advocated their any legal, j ustifiable position that they were entitled to, you were prepared to defend? MR. SUTTON: I know you' re a former prosecutor, but, yes, I have on several occasions. And I think members of the bar these were pro bono efforts. And I think members of the bar not only should but have a duty to do those kinds of representations. SEN. SESSIONS: So I don' t think there' s anything wrong with you defending states who feel they' re wronged and their rights are not being upheld. And, in fact, that case you took to the United States Supreme Court. The Supreme Court agreed with you. Alabama. MR. SUTTON: It turns out they agreed with the University of Yes, they did, yes. SEN. SESSIONS: And in well, in that case, you never argued against the rights of the disabled but against the rights of Congress to abrogate a state' s constitutional right to sovereign immunity. That was the question, was it not? MR. SUTTON: That is the question. And it is an important point, because even after the Garrett case, every state in the country is entitled to waive its immunity from ADA lawsuits for money damages. In fact, many states do that to the extent their legislature permits it. And j ust as Congress can do it when federal employees are sued for disability discrimination, sometimes there' s a waiver, sometimes EXT-18-2091-C-000438 007104-001159 Document ID: 0.7.19343.9053-000001 SEN. SESSIONS: Well, as a former attorney general and former United States attorney representing the United States in court, I can tell you, an attorney general that allows a state' s sovereign immunity to be eroded, I think, will have a difficult time j ustifying that position. And so, with regard to the Alabama case, you not only filed a brief on behalf of the state of Alabama, but you also gained support from a number of other attorneys general, including a Democratic attorney general, Mark Pryor, who' s now a member of this Senate. Is that not correct? MR. SUTTON: I think that is true. There was an amicus brief of states, and I' m fairly confident that Arkansas j oined that brief. In fact, I thought that brief was balanced. Half Democratic AGs and half Republican AGs is my rough recollection. SEN. SESSIONS: And they saw the issue not as a disability issue but as a question of state power and sovereign immunity. Is that correct? MR. SUTTON: That' s my understanding. I haven' t read that brief in a while, but I think it did make the point that, j ust as the United States has a sovereign immunity power, so do the states, at least as the U. S. Supreme Court has construed it to date. SEN. SESSIONS: Well, I think that' s important for us to think about. You' ve defended criminals, have you not, and advocated their any legal, j ustifiable position that they were entitled to, you were prepared to defend? MR. SUTTON: I know you' re a former prosecutor, but, yes, I have on several occasions. And I think members of the bar these were pro bono efforts. And I think members of the bar not only should but have a duty to do those kinds of representations. SEN. SESSIONS: So I don' t think there' s anything wrong with you defending states who feel they' re wronged and their rights are not being upheld. And, in fact, that case you took to the United States Supreme Court. The Supreme Court agreed with you. Alabama. MR. SUTTON: It turns out they agreed with the University of Yes, they did, yes. SEN. SESSIONS: And in well, in that case, you never argued against the rights of the disabled but against the rights of Congress to abrogate a state' s constitutional right to sovereign immunity. That was the question, was it not? MR. SUTTON: That is the question. And it is an important point, because even after the Garrett case, every state in the country is entitled to waive its immunity from ADA lawsuits for money damages. In fact, many states do that to the extent their legislature permits it. And j ust as Congress can do it when federal employees are sued for disability discrimination, sometimes there' s a waiver, sometimes EXT-18-2091-C-000438 007104-001159 Document ID: 0.7.19343.9053-000001 there' s not. But nothing about either the brief we argued or the decision of the case bars a state from waiving its immunity from suit in federal court. That could obviously happen. SEN. SESSIONS: And the United States government can intervene and sue a state for money damages for a disability violation, can it not? MR. SUTTON: That' s also true. SEN. SESSIONS: And a private person can sue the state for inj unctive relief to get the state enj oined from unfairly treating them due to a disability. Is that not correct? MR. SUTTON: In fact, get their j ob back. Exactly, yes. SEN. SESSIONS: And private persons can sue under a state' s own laws to enforce money damages or other relief. MR. SUTTON: That' s true, yes. SEN. SESSIONS: So it' s j ust this narrow point of sovereign immunity in which the Congress up and took it upon itself to limit the states' sovereign immunity that this case turned on. MR. SUTTON: That' s true. And even then, Congress can still do the same thing either by passing new legislation with different fact findings or by enacting spending clause legislation. As I' m sure you know, Congress has already done that under Section 504 of the Rehabilitation Act. In the Garrett case, Ms. Garrett has a claim which is still pending under that very law. So it was j ust about Section 5. And, of course, it had nothing to do with the spending clause, where Congress has conspicuously broad powers. SEN. SESSIONS: Well, I j ust would say, in conclusion, how much I appreciate the three of you. You' re outstanding nominees with terrific records, unsurpassed experience handling some of our country' s most difficult cases in ways that, I think, have shown your mettle and your ability. I congratulate you on the nominations to these important offices. I feel like it' s good for us to go through this process so that we confront the issue that j ust because a lawyer takes a position in a case does not mean that they are against the policy involved in the case. It does not mean, if you defend a criminal, that you are for criminals, you' re for lawbreakers. It means that criminals have certain rights and the law has to be carried out in certain proper ways. And I believe that' s your record in all of these cases, and I thank you for that. And I believe the president has done an outstanding j ob on these nominations. SEN. HATCH: Durbin now. Thank you, Senator Sessions. We' ll turn to Senator EXT-18-2091-C-000439 007104-001160 Document ID: 0.7.19343.9053-000001 there' s not. But nothing about either the brief we argued or the decision of the case bars a state from waiving its immunity from suit in federal court. That could obviously happen. SEN. SESSIONS: And the United States government can intervene and sue a state for money damages for a disability violation, can it not? MR. SUTTON: That' s also true. SEN. SESSIONS: And a private person can sue the state for inj unctive relief to get the state enj oined from unfairly treating them due to a disability. Is that not correct? MR. SUTTON: In fact, get their j ob back. Exactly, yes. SEN. SESSIONS: And private persons can sue under a state' s own laws to enforce money damages or other relief. MR. SUTTON: That' s true, yes. SEN. SESSIONS: So it' s j ust this narrow point of sovereign immunity in which the Congress up and took it upon itself to limit the states' sovereign immunity that this case turned on. MR. SUTTON: That' s true. And even then, Congress can still do the same thing either by passing new legislation with different fact findings or by enacting spending clause legislation. As I' m sure you know, Congress has already done that under Section 504 of the Rehabilitation Act. In the Garrett case, Ms. Garrett has a claim which is still pending under that very law. So it was j ust about Section 5. And, of course, it had nothing to do with the spending clause, where Congress has conspicuously broad powers. SEN. SESSIONS: Well, I j ust would say, in conclusion, how much I appreciate the three of you. You' re outstanding nominees with terrific records, unsurpassed experience handling some of our country' s most difficult cases in ways that, I think, have shown your mettle and your ability. I congratulate you on the nominations to these important offices. I feel like it' s good for us to go through this process so that we confront the issue that j ust because a lawyer takes a position in a case does not mean that they are against the policy involved in the case. It does not mean, if you defend a criminal, that you are for criminals, you' re for lawbreakers. It means that criminals have certain rights and the law has to be carried out in certain proper ways. And I believe that' s your record in all of these cases, and I thank you for that. And I believe the president has done an outstanding j ob on these nominations. SEN. HATCH: Durbin now. Thank you, Senator Sessions. We' ll turn to Senator EXT-18-2091-C-000439 007104-001160 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: Thank you, Mr. Chairman. I want to thank the nominees who are before us today for your patience, and I hope that you understand that it is an unusual circumstance when we have three j udges at this level being considered at the same time this early in the session, particularly when there are many questions to be asked of each of them. It has meant that this hearing has gone on much longer than usual and is likely to continue for some period of time. I know the chairman of the committee, and we' ve worked together in past years and I' m sure we will in the future. I j ust hope that the pace of the hearings is not such that this will appear to be a receiving line at an Irish wedding in terms of the nominees. I think we need to take time and deliberate, to ask important questions, so that the people of this country know a little bit more about those who seek lifetime appointments to the second highest court of the land. I would like to ask my questions of Professor Sutton, because I have in this first round tried to focus on his activity and his career. And I will return to the other nominees in another round. Professor Sutton, I' ve listened to some of your earlier testimony before this committee. It' s interesting, as I reflect on it, if you accept the premise that was recently stated by my colleague from Alabama that this is a somewhat mechanical and automatic process, that a j udge seeks the circuit court, for example, simply to read past cases, apply them to current cases and move on, then it would strike me as odd that we don' t have more nominees who are Democrats before us from the Bush White House. Apparently there' s a belief in the White House that even it' s a fairly automatic and mechanical process, they want to make that if they' re going to err, they' re going to err on the side of who have similar political views to the president. That suggests that this is not an automatic process. though sure people to me And I think I hope that you would concede that many close cases give j udges at every level a chance to see a new facet of the law that hasn' t been seen before, and perhaps, in seeing it and ruling on it, to change the course of that law and its future. Would you concede that point? MR. SUTTON: There' s no doubt, even court of appeals j udges deal with difficult issues. But I do think a point that was raised earlier is a good one, that whether it' s the sixth circuit, other courts of appeals or even in the U. S. Supreme Court, a high percentage of cases are either unanimous or fairly unanimous if it' s at the U. S. Supreme Court, precisely because there usually are right answers. But I couldn' t agree with you more that every now and then you do get very difficult cases. Of course, the more difficult the case, and particularly if it involved the constitutionality of a federal law, the more likely the U. S. Supreme Court would review it. But I think your point is a very good and a fair one. EXT-18-2091-C-000440 007104-001161 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: Thank you, Mr. Chairman. I want to thank the nominees who are before us today for your patience, and I hope that you understand that it is an unusual circumstance when we have three j udges at this level being considered at the same time this early in the session, particularly when there are many questions to be asked of each of them. It has meant that this hearing has gone on much longer than usual and is likely to continue for some period of time. I know the chairman of the committee, and we' ve worked together in past years and I' m sure we will in the future. I j ust hope that the pace of the hearings is not such that this will appear to be a receiving line at an Irish wedding in terms of the nominees. I think we need to take time and deliberate, to ask important questions, so that the people of this country know a little bit more about those who seek lifetime appointments to the second highest court of the land. I would like to ask my questions of Professor Sutton, because I have in this first round tried to focus on his activity and his career. And I will return to the other nominees in another round. Professor Sutton, I' ve listened to some of your earlier testimony before this committee. It' s interesting, as I reflect on it, if you accept the premise that was recently stated by my colleague from Alabama that this is a somewhat mechanical and automatic process, that a j udge seeks the circuit court, for example, simply to read past cases, apply them to current cases and move on, then it would strike me as odd that we don' t have more nominees who are Democrats before us from the Bush White House. Apparently there' s a belief in the White House that even it' s a fairly automatic and mechanical process, they want to make that if they' re going to err, they' re going to err on the side of who have similar political views to the president. That suggests that this is not an automatic process. though sure people to me And I think I hope that you would concede that many close cases give j udges at every level a chance to see a new facet of the law that hasn' t been seen before, and perhaps, in seeing it and ruling on it, to change the course of that law and its future. Would you concede that point? MR. SUTTON: There' s no doubt, even court of appeals j udges deal with difficult issues. But I do think a point that was raised earlier is a good one, that whether it' s the sixth circuit, other courts of appeals or even in the U. S. Supreme Court, a high percentage of cases are either unanimous or fairly unanimous if it' s at the U. S. Supreme Court, precisely because there usually are right answers. But I couldn' t agree with you more that every now and then you do get very difficult cases. Of course, the more difficult the case, and particularly if it involved the constitutionality of a federal law, the more likely the U. S. Supreme Court would review it. But I think your point is a very good and a fair one. EXT-18-2091-C-000440 007104-001161 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: I think it' s an important one. The vast maj ority of bills and resolutions in the House and Senate never get any attention, nor should they. But a handful of important bills come before us and we have to make a decision as to whether they should be the law of the land. And that really goes to the point that' s been made over and over as to your values, who you are, what you' re going to do on those close calls when you have a case that truly is going to set a new precedent that is really going to open up a new line of thinking. And I think the fact that the reaction to your nomination has been so heated is an indication that many people are concerned that when it comes down to those close cases, when the issue before the court is an issue of civil rights or human rights, the rights of minorities or women or the disabled in America, that you have shown a pattern of conduct of insensitivity by virtue of your advocacy in the past. I' ve never seen a hearing where we' ve had so many disabled Americans come forward, frankly, to protest your nomination. It tells me that they' re concerned about you and what really is in your heart. Now, in the past, in our history, it' s seldom that people announce publicly that they' re prej udiced. They don' t say that; it' s rare. The primacy of state' s rights has historically been the beard for discrimination in America. Only a few people are bold enough to j ust state forthright that they oppose civil rights, the rights of women, minorities and the disabled. Instead most have argued that they were not opposed to civil rights, but only the power of the federal government to protect them. History has not been kind to those who concealed their sentiments in this legal distinction. Mr. Sutton, Professor Sutton, your legal career has been spent practicing time and again in the shadows of state rights. You said in publications that have been quoted over and over again how much you value federalism and this whole issue, where time and again you found yourself in key cases, like Garrett, on the side of state rights as opposed to individual rights. You have become a predictable, reliable, legal voice for entities seeking to limit the rights of Americans in the name of state rights. Do you believe that the Garrett case, despite what Senator Sessions has said, in its conclusion expanded or restricted the rights of disabled Americans? MR. SUTTON: Well, there' s no doubt that it' s restricted in the sense that in that particular case someone was seeking relief and they didn' t get it. But in that particular case, as I think I pointed out earlier, Ms. Garrett' s Section 504 Rehabilitation Act claim is still pending, so she still may get relief would be the first point. The second point is what the court did and I would point out that is not a case I have spoken publicly about, that' s not a case I' ve written about. It was a case that I was arguing on behalf of a client. I think the state did deserve representation at the U. S. Supreme Court. I think it would have been quite unusual had they not had it. But even in that case, with all of that, all it said was that the state at the end of the day was in charge of deciding when they could waive their sovereign EXT-18-2091-C-000441 007104-001162 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: I think it' s an important one. The vast maj ority of bills and resolutions in the House and Senate never get any attention, nor should they. But a handful of important bills come before us and we have to make a decision as to whether they should be the law of the land. And that really goes to the point that' s been made over and over as to your values, who you are, what you' re going to do on those close calls when you have a case that truly is going to set a new precedent that is really going to open up a new line of thinking. And I think the fact that the reaction to your nomination has been so heated is an indication that many people are concerned that when it comes down to those close cases, when the issue before the court is an issue of civil rights or human rights, the rights of minorities or women or the disabled in America, that you have shown a pattern of conduct of insensitivity by virtue of your advocacy in the past. I' ve never seen a hearing where we' ve had so many disabled Americans come forward, frankly, to protest your nomination. It tells me that they' re concerned about you and what really is in your heart. Now, in the past, in our history, it' s seldom that people announce publicly that they' re prej udiced. They don' t say that; it' s rare. The primacy of state' s rights has historically been the beard for discrimination in America. Only a few people are bold enough to j ust state forthright that they oppose civil rights, the rights of women, minorities and the disabled. Instead most have argued that they were not opposed to civil rights, but only the power of the federal government to protect them. History has not been kind to those who concealed their sentiments in this legal distinction. Mr. Sutton, Professor Sutton, your legal career has been spent practicing time and again in the shadows of state rights. You said in publications that have been quoted over and over again how much you value federalism and this whole issue, where time and again you found yourself in key cases, like Garrett, on the side of state rights as opposed to individual rights. You have become a predictable, reliable, legal voice for entities seeking to limit the rights of Americans in the name of state rights. Do you believe that the Garrett case, despite what Senator Sessions has said, in its conclusion expanded or restricted the rights of disabled Americans? MR. SUTTON: Well, there' s no doubt that it' s restricted in the sense that in that particular case someone was seeking relief and they didn' t get it. But in that particular case, as I think I pointed out earlier, Ms. Garrett' s Section 504 Rehabilitation Act claim is still pending, so she still may get relief would be the first point. The second point is what the court did and I would point out that is not a case I have spoken publicly about, that' s not a case I' ve written about. It was a case that I was arguing on behalf of a client. I think the state did deserve representation at the U. S. Supreme Court. I think it would have been quite unusual had they not had it. But even in that case, with all of that, all it said was that the state at the end of the day was in charge of deciding when they could waive their sovereign EXT-18-2091-C-000441 007104-001162 Document ID: 0.7.19343.9053-000001 immunity, in the same way the U. S. Supreme Court has said the same thing about the United States government. It doesn' t mean in future cases claims can' t be brought in federal court if states waive them, and many states have waived them. If there' s one point though that I you know, some of the charges are they' re reversible charges. And you asked about my values, and I think that' s a fair question. It' s an important question, and I do want to respond to that. There' s no doubt this country' s history when it comes to state rights is despicable, that there' s no room for argument about that. And I think you know that' s exactly how I feel. The worst violations, the most egregious violations when it comes to state' s rights of course came in the era of race discrimination. And there, you know, if people are going to look at my advocacy, I hope they would appreciate that on a pro bono basis before I was state solicitor I defended Ohio hate crime statute on behalf of every civil rights group with an interest in that type of legislation I know the federal government is thinking of doing the same thing on behalf of local chapters of the NAACP the Columbus Urban League, several others. And while state solicitor, I helped to defend Ohio' s set aside statutes. So I do I know it' s very important in this process for you to raise those questions, and I assume you want me to answer them, and that SEN. DURBIN: There had to be this moment of truth for you as an attorney when you were asked to represent the board of trustees of the University of Alabama, when you know that your success in that case would district the rights of disabled Americans, which you' ve conceded here. And you decided not because you were assigned or required to that you were going to go forward in that role of advocate. Now, there are many other examples that are exceptions to this rule, but the one that troubles the people who gathered here, and the disability community, is that conscious of what you were seeking, you went forward and said, I' ll be the advocate of the cause that will restrict the rights of disabled Americans. Did that ever give you pause as to whether or not that was the j ust thing to do? MR. SUTTON: Sure, the case is an excruciatingly difficult case, and it did give me pause. But, first of all, I did not pursue the case. I was approached by the state and was hired by the state. And I did have the option you' re right I had the option of saying no. But, remember, that' s the exact same choice that the U. S. solicitor general' s office has been faced in 88 cases where they have said there is not a claim cannot be brought by a federal employee SEN. DURBIN: A solicitor general is not seeking appointment here today and our approval. It' s you. MR. SUTTON: No, I' m not saying I' m not making that point. I am making the point that this is the j ob of an advocate. And the j ob of an advocate is not to decide in an exercise of vanity, What would I do? What could I do? it was long too late for that. I was not involved in the underlying decisions of the University of Alabama in terms of what to do with Ms. Garrett. I wasn' t involved in the development of their constitutional arguments in the District Court and EXT-18-2091-C-000442 007104-001163 Document ID: 0.7.19343.9053-000001 immunity, in the same way the U. S. Supreme Court has said the same thing about the United States government. It doesn' t mean in future cases claims can' t be brought in federal court if states waive them, and many states have waived them. If there' s one point though that I you know, some of the charges are they' re reversible charges. And you asked about my values, and I think that' s a fair question. It' s an important question, and I do want to respond to that. There' s no doubt this country' s history when it comes to state rights is despicable, that there' s no room for argument about that. And I think you know that' s exactly how I feel. The worst violations, the most egregious violations when it comes to state' s rights of course came in the era of race discrimination. And there, you know, if people are going to look at my advocacy, I hope they would appreciate that on a pro bono basis before I was state solicitor I defended Ohio hate crime statute on behalf of every civil rights group with an interest in that type of legislation I know the federal government is thinking of doing the same thing on behalf of local chapters of the NAACP the Columbus Urban League, several others. And while state solicitor, I helped to defend Ohio' s set aside statutes. So I do I know it' s very important in this process for you to raise those questions, and I assume you want me to answer them, and that SEN. DURBIN: There had to be this moment of truth for you as an attorney when you were asked to represent the board of trustees of the University of Alabama, when you know that your success in that case would district the rights of disabled Americans, which you' ve conceded here. And you decided not because you were assigned or required to that you were going to go forward in that role of advocate. Now, there are many other examples that are exceptions to this rule, but the one that troubles the people who gathered here, and the disability community, is that conscious of what you were seeking, you went forward and said, I' ll be the advocate of the cause that will restrict the rights of disabled Americans. Did that ever give you pause as to whether or not that was the j ust thing to do? MR. SUTTON: Sure, the case is an excruciatingly difficult case, and it did give me pause. But, first of all, I did not pursue the case. I was approached by the state and was hired by the state. And I did have the option you' re right I had the option of saying no. But, remember, that' s the exact same choice that the U. S. solicitor general' s office has been faced in 88 cases where they have said there is not a claim cannot be brought by a federal employee SEN. DURBIN: A solicitor general is not seeking appointment here today and our approval. It' s you. MR. SUTTON: No, I' m not saying I' m not making that point. I am making the point that this is the j ob of an advocate. And the j ob of an advocate is not to decide in an exercise of vanity, What would I do? What could I do? it was long too late for that. I was not involved in the underlying decisions of the University of Alabama in terms of what to do with Ms. Garrett. I wasn' t involved in the development of their constitutional arguments in the District Court and EXT-18-2091-C-000442 007104-001163 Document ID: 0.7.19343.9053-000001 in the Court of Appeals. I became involved when they asked me to represent them in the U. S. Supreme Court. And I think if I have a sin here, the sin was that I did want to develop a U. S. Supreme Court practice. There' s no doubt about that. And maybe that' s what led me to take the case. But, senator, I have done several cases in fact, more cases on the disabilities rights side of the equation. SEN. DURBIN: Do you think there would have been a time when you would have had that chance to argue before the Supreme Court, would have said to yourself, Rather than get another notch in my gun to go up to the Supreme Court, I j ust don' t want to be identified with a case that restricts human rights, civil rights, the rights of the disabled? (Applause. ) SEN. HATCH: Let' s have order. MR. SUTTON: Senator, I respectfully and, you know, this is a difficult place to make this point, in this forum, but I couldn' t disagree with you more. I think it is exceedingly wrong to ascribe the views of a lawyer, or the client to the lawyer. That' s exactly what the ABA code says. It' s exactly what would prevent any criminal defense lawyer. I mean, I' ve represented two capital inmates. It doesn' t mean I agree with their underlying acts or what happened. They deserve representation. I provided that representation. The one case and this is I think the fair response to your question and your concern I' ve only had one case that I can think of where I was given an opportunity to represent either side of a civil rights case. That' s the Cheryl Fisher case. When that came up to the Ohio Supreme Court I was given the opportunity to represent Cheryl Fisher, help her get into case Western University as a blind medical student, or represent the side of the state universities who wanted to deny her that right. I recommended to the attorney general it was her choice, of course that the state solicitor ought to argue that case, and I thought she had the better side of the argument. And I did everything I can or could to make that argument. I represented the National Coalition for Students with Disabilities, and applying federal law, the Motor Voter law, so that students with disabilities have access to the right to vote. In a case pending the Ohio Supreme Court, the Gobo (ph) case, I inserted an argument not made below that the application of Ohio insurance law would violate the ADA. My father, you know, ran a school for cerebral palsy children I mean, I wouldn' t say this is a perspective that is lost on me. But I did feel at that time my higher obligation was to the client, and that they did deserve a right to representation before the court. SEN. DURBIN: Well, I' ll concede that you have represented many different clients. But when it comes to the cases that you' ve been involved in, that have had the broadest impact on the greatest number of Americans and their rights, it is hard to find a case that really in y our career that matches the Garrett case. What was decided by the court by virtue of your argument has denied rights to disabled people across America. It has restricted their rights to recover under the law. And, as Senator Schumer said earlier, you can represent a lot of individual EXT-18-2091-C-000443 007104-001164 Document ID: 0.7.19343.9053-000001 in the Court of Appeals. I became involved when they asked me to represent them in the U. S. Supreme Court. And I think if I have a sin here, the sin was that I did want to develop a U. S. Supreme Court practice. There' s no doubt about that. And maybe that' s what led me to take the case. But, senator, I have done several cases in fact, more cases on the disabilities rights side of the equation. SEN. DURBIN: Do you think there would have been a time when you would have had that chance to argue before the Supreme Court, would have said to yourself, Rather than get another notch in my gun to go up to the Supreme Court, I j ust don' t want to be identified with a case that restricts human rights, civil rights, the rights of the disabled? (Applause. ) SEN. HATCH: Let' s have order. MR. SUTTON: Senator, I respectfully and, you know, this is a difficult place to make this point, in this forum, but I couldn' t disagree with you more. I think it is exceedingly wrong to ascribe the views of a lawyer, or the client to the lawyer. That' s exactly what the ABA code says. It' s exactly what would prevent any criminal defense lawyer. I mean, I' ve represented two capital inmates. It doesn' t mean I agree with their underlying acts or what happened. They deserve representation. I provided that representation. The one case and this is I think the fair response to your question and your concern I' ve only had one case that I can think of where I was given an opportunity to represent either side of a civil rights case. That' s the Cheryl Fisher case. When that came up to the Ohio Supreme Court I was given the opportunity to represent Cheryl Fisher, help her get into case Western University as a blind medical student, or represent the side of the state universities who wanted to deny her that right. I recommended to the attorney general it was her choice, of course that the state solicitor ought to argue that case, and I thought she had the better side of the argument. And I did everything I can or could to make that argument. I represented the National Coalition for Students with Disabilities, and applying federal law, the Motor Voter law, so that students with disabilities have access to the right to vote. In a case pending the Ohio Supreme Court, the Gobo (ph) case, I inserted an argument not made below that the application of Ohio insurance law would violate the ADA. My father, you know, ran a school for cerebral palsy children I mean, I wouldn' t say this is a perspective that is lost on me. But I did feel at that time my higher obligation was to the client, and that they did deserve a right to representation before the court. SEN. DURBIN: Well, I' ll concede that you have represented many different clients. But when it comes to the cases that you' ve been involved in, that have had the broadest impact on the greatest number of Americans and their rights, it is hard to find a case that really in y our career that matches the Garrett case. What was decided by the court by virtue of your argument has denied rights to disabled people across America. It has restricted their rights to recover under the law. And, as Senator Schumer said earlier, you can represent a lot of individual EXT-18-2091-C-000443 007104-001164 Document ID: 0.7.19343.9053-000001 defendants before you make up for the loss of rights for a class of individuals, disabled individuals, because of that decision. May I ask another question? As we try to monitor the legal DNA of President Bush' s nominees, we find repeatedly the Federalist Society chromosome. And I would like to ask you as an officer of the Federalist Society and I know every time I raise this at a hearing the right wing press screams bloody murder this is dirty politics. But you have represented that you are an officer of the Federalist Society. Why is it that membership in the Federalist Society has become the secret handshake of the Bush nominees for the federal court? MR. SUTTON: Well, I don' t know that that' s true. I don' t have any idea whether it is true. The one point I would make is while I am a member of the Federal Society, I am also a member of the Equal Justice Foundation, and I hope in thinking about my nomination I know how important it is to realize who this person is and what kind of j udge they will be you will keep in mind that while I have been a member of the Federalist Society, I was asked separately to j oin the Equal Justice Foundation, whose whole purpose it to provide legal service to the indigent. That of course is a pro bono effort. It takes more time than anything I do for the Federalist Society. And as to the rest of your question, I don' t know the answer. But I hope you will keep in mind SEN. DURBIN: Let j ust ask you your impression: What in your mind is the Federalist Society philosophy that draws so many Bush nominees to the federal bench to its membership? MR. SUTTON: Well, I have no idea of what their philosophy is. In fact, my understanding is they don' t SEN. DURBIN: Are you an officer? Are you not an officer? MR. SUTTON: I am an officer of the Separation of Powers Working Group, that' s true. But that doesn' t mean there' s a philosophy. In fact, my understanding of the society is they don' t take positions on cases. The one point I would make is my understanding of the purpose of the Federalist Society and the reason I was attracted to j oining it was that they have tried to sponsor forums to discuss important legal issues. And most of my involvement has been in the Columbus Chapter to that end. And I think the Federalist Society has done a very good j ob having presentations that involve speakers on both sides of the issue. In fact, most of the criticism I have heard of the federalism decisions all came from Federalist Society publications. The first time I saw anyone criticize Seminole Tribe was in a Federalist Society publication. My article about the City of Boerne decision was a point counterpoint piece next to Judge McConnell' s (ph) Judge McConnell (ph) saying it was wrongly decided; my saying it was rightly decided. So I do think they' ve tried hard to do that. I can understand someone having a different perspective on that. EXT-18-2091-C-000444 007104-001165 Document ID: 0.7.19343.9053-000001 defendants before you make up for the loss of rights for a class of individuals, disabled individuals, because of that decision. May I ask another question? As we try to monitor the legal DNA of President Bush' s nominees, we find repeatedly the Federalist Society chromosome. And I would like to ask you as an officer of the Federalist Society and I know every time I raise this at a hearing the right wing press screams bloody murder this is dirty politics. But you have represented that you are an officer of the Federalist Society. Why is it that membership in the Federalist Society has become the secret handshake of the Bush nominees for the federal court? MR. SUTTON: Well, I don' t know that that' s true. I don' t have any idea whether it is true. The one point I would make is while I am a member of the Federal Society, I am also a member of the Equal Justice Foundation, and I hope in thinking about my nomination I know how important it is to realize who this person is and what kind of j udge they will be you will keep in mind that while I have been a member of the Federalist Society, I was asked separately to j oin the Equal Justice Foundation, whose whole purpose it to provide legal service to the indigent. That of course is a pro bono effort. It takes more time than anything I do for the Federalist Society. And as to the rest of your question, I don' t know the answer. But I hope you will keep in mind SEN. DURBIN: Let j ust ask you your impression: What in your mind is the Federalist Society philosophy that draws so many Bush nominees to the federal bench to its membership? MR. SUTTON: Well, I have no idea of what their philosophy is. In fact, my understanding is they don' t SEN. DURBIN: Are you an officer? Are you not an officer? MR. SUTTON: I am an officer of the Separation of Powers Working Group, that' s true. But that doesn' t mean there' s a philosophy. In fact, my understanding of the society is they don' t take positions on cases. The one point I would make is my understanding of the purpose of the Federalist Society and the reason I was attracted to j oining it was that they have tried to sponsor forums to discuss important legal issues. And most of my involvement has been in the Columbus Chapter to that end. And I think the Federalist Society has done a very good j ob having presentations that involve speakers on both sides of the issue. In fact, most of the criticism I have heard of the federalism decisions all came from Federalist Society publications. The first time I saw anyone criticize Seminole Tribe was in a Federalist Society publication. My article about the City of Boerne decision was a point counterpoint piece next to Judge McConnell' s (ph) Judge McConnell (ph) saying it was wrongly decided; my saying it was rightly decided. So I do think they' ve tried hard to do that. I can understand someone having a different perspective on that. EXT-18-2091-C-000444 007104-001165 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: Let me ask you about your representation of tobacco companies in your private practice. You represented Lorillard tobacco in challenging a Massachusetts regulation regarding the sale and promotion of tobacco products. In that case you argued these regulations violated the free speech clause of the First Amendment. In addition, you have been critical of the $145 billion tobacco j udgment in Florida. Although you are an advocate of state' s rights in some contexts, you don' t seem to like what they have done to tobacco companies. What is your view generally about the efficacy of tobacco litigation, and do you feel that' s ever j ustifiable? MR. SUTTON: Well, the RJR is a Jones Day client, and that' s how I became involved in that case, so I was not involved in that case in the lower courts. I became involved in it when they tried to seek certiorari before the U. S. Supreme Court, and at the time I had a U. S. Supreme Court practice, and I was asked by the firm to become involved in the case, and I did, I mean, as a firm client, and I think it would have been a rather unusual decision on my part to not represent them be unwilling to represent a client of the firm. SEN. DURBIN: firm? Did you say RJR and Lorillard are clients of the Or MR. SUTTON: No, RJR. All of the the name of the case goes by Lorillard, but it had several tobacco companies in it, and SEN. DURBIN: And RJR was your client? MR. SUTTON: Exactly, exactly. And in terms of the case itself, you know, under the free speech clause that was the main issue in the case. It' s no surprise in most of the biggest U. S. Supreme Court cases the free speech argument is not on behalf of a popular client. I mean, that' s often or for that matter popular speech. That' s exactly the way it traditionally goes. And I think if you looked at the 20 biggest free speech cases in the country, I suspect you' d disagree with the underlying speech in every single one of them. And SEN. DURBIN: Oh, I understand that. And historically MR. SUTTON: But it' s a constitutional right. And even though they may be you know, it' s a company with which people can disagree with the work they' re doing, their products are legal. They have not been outlawed. And I think they do have a right to raise a constitutional defense. SEN. DURBIN: I don' t argue with that premise at all. Again, it' s a question about that moment in time when the senior partner came in and said, Jeff, I want you to take up the cause of RJR. Somebody is trying to restrict their advertising that' s appealing to children and you said, "I' ll take it. " That' s a tough call, and lawyers in their profession make those difficult calls. But I am, again, trying to find out what is driving you and motivating you in terms of your legal values. And as you said it was one of the clients of the firm. EXT-18-2091-C-000445 007104-001166 Document ID: 0.7.19343.9053-000001 SEN. DURBIN: Let me ask you about your representation of tobacco companies in your private practice. You represented Lorillard tobacco in challenging a Massachusetts regulation regarding the sale and promotion of tobacco products. In that case you argued these regulations violated the free speech clause of the First Amendment. In addition, you have been critical of the $145 billion tobacco j udgment in Florida. Although you are an advocate of state' s rights in some contexts, you don' t seem to like what they have done to tobacco companies. What is your view generally about the efficacy of tobacco litigation, and do you feel that' s ever j ustifiable? MR. SUTTON: Well, the RJR is a Jones Day client, and that' s how I became involved in that case, so I was not involved in that case in the lower courts. I became involved in it when they tried to seek certiorari before the U. S. Supreme Court, and at the time I had a U. S. Supreme Court practice, and I was asked by the firm to become involved in the case, and I did, I mean, as a firm client, and I think it would have been a rather unusual decision on my part to not represent them be unwilling to represent a client of the firm. SEN. DURBIN: firm? Did you say RJR and Lorillard are clients of the Or MR. SUTTON: No, RJR. All of the the name of the case goes by Lorillard, but it had several tobacco companies in it, and SEN. DURBIN: And RJR was your client? MR. SUTTON: Exactly, exactly. And in terms of the case itself, you know, under the free speech clause that was the main issue in the case. It' s no surprise in most of the biggest U. S. Supreme Court cases the free speech argument is not on behalf of a popular client. I mean, that' s often or for that matter popular speech. That' s exactly the way it traditionally goes. And I think if you looked at the 20 biggest free speech cases in the country, I suspect you' d disagree with the underlying speech in every single one of them. And SEN. DURBIN: Oh, I understand that. And historically MR. SUTTON: But it' s a constitutional right. And even though they may be you know, it' s a company with which people can disagree with the work they' re doing, their products are legal. They have not been outlawed. And I think they do have a right to raise a constitutional defense. SEN. DURBIN: I don' t argue with that premise at all. Again, it' s a question about that moment in time when the senior partner came in and said, Jeff, I want you to take up the cause of RJR. Somebody is trying to restrict their advertising that' s appealing to children and you said, "I' ll take it. " That' s a tough call, and lawyers in their profession make those difficult calls. But I am, again, trying to find out what is driving you and motivating you in terms of your legal values. And as you said it was one of the clients of the firm. EXT-18-2091-C-000445 007104-001166 Document ID: 0.7.19343.9053-000001 I don' t know how much time I have left here. SEN. HATCH: SEN. DURBIN: Professor Sutton. SEN. HATCH: SEN. DEWINE: Your time has been up. All right, thank you very much, Mr. Chairman, Well, we' ll begin our second round then. I haven' t gone yet. SEN. HATCH: Well, could I ask one question before you do, and then I' ll turn to you. SEN. DEWINE: SEN. HATCH: SEN. DEWINE: SEN. LEAHY: SEN. DEWINE: first round. SEN. HATCH: I haven' t done anything on my first round. Okay. Well, I didn' t know whether you No, we haven' t completed this round. I thought you did a second round. No, I haven' t done a second I haven' t done a Well, let' s turn to Senator DeWine. SEN. DEWINE: You can go ahead, Mr. Chairman. no, you go ahead. That' s okay. SEN. LEAHY: So (Laughter. ) SEN. HATCH: No, I thought you had done two rounds. SEN. DEWINE: Mr. Sutton, good afternoon. I know it' s been a long day already for all of you, and we appreciate you all hanging with us. SEN. HATCH: Excuse me j ust one second. j ust raise your hand, and I' ll be glad to there. If you need a break, MR. SUTTON: I' m proving I' m older than I look. But I' ll go another half hour. I' m getting SEN. HATCH: Why don' t we go another half hour, and then we' ll let' s go another 15 minutes with Senator DeWine, and then we' ll SEN. DEWINE: SEN. HATCH: SEN. DEWINE: appointment, so SEN. LEAHY: See who actually gets to raise their hand, right? we' ll break for five minutes and then come back. The good news for all of you: it is a lifetime They probably feel like today' s been a lifetime. EXT-18-2091-C-000446 007104-001167 Document ID: 0.7.19343.9053-000001 I don' t know how much time I have left here. SEN. HATCH: SEN. DURBIN: Professor Sutton. SEN. HATCH: SEN. DEWINE: Your time has been up. All right, thank you very much, Mr. Chairman, Well, we' ll begin our second round then. I haven' t gone yet. SEN. HATCH: Well, could I ask one question before you do, and then I' ll turn to you. SEN. DEWINE: SEN. HATCH: SEN. DEWINE: SEN. LEAHY: SEN. DEWINE: first round. SEN. HATCH: I haven' t done anything on my first round. Okay. Well, I didn' t know whether you No, we haven' t completed this round. I thought you did a second round. No, I haven' t done a second I haven' t done a Well, let' s turn to Senator DeWine. SEN. DEWINE: You can go ahead, Mr. Chairman. no, you go ahead. That' s okay. SEN. LEAHY: So (Laughter. ) SEN. HATCH: No, I thought you had done two rounds. SEN. DEWINE: Mr. Sutton, good afternoon. I know it' s been a long day already for all of you, and we appreciate you all hanging with us. SEN. HATCH: Excuse me j ust one second. j ust raise your hand, and I' ll be glad to there. If you need a break, MR. SUTTON: I' m proving I' m older than I look. But I' ll go another half hour. I' m getting SEN. HATCH: Why don' t we go another half hour, and then we' ll let' s go another 15 minutes with Senator DeWine, and then we' ll SEN. DEWINE: SEN. HATCH: SEN. DEWINE: appointment, so SEN. LEAHY: See who actually gets to raise their hand, right? we' ll break for five minutes and then come back. The good news for all of you: it is a lifetime They probably feel like today' s been a lifetime. EXT-18-2091-C-000446 007104-001167 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: Probably, that' s right. (Laughter. ) Absolutely. Mr. Sutton, I don' t pretend to be a legal scholar, but I did have the opportunity to look at a lot of the cases that have gotten the bulk of the publicity with regard to the cases that you have argued before the Supreme Court. And I was here in the Congress when we passed the ADA. And I must be candid and tell you that I think if I was on the Supreme Court I would have decided these cases differently. I don' t agree with the decisions. I don' t agree with the bulk of the decisions that you argued in front of the Supreme Court, at least on the controversial ones. But I am not sure how relevant that is. In fact, I don' t think it' s relevant at all. I want to follow up the line of questioning from my good friend Senator Durbin. I wish he was here I know he had to go to another meeting, but I think it' s we go down and start down a very dangerous path when we probe deeply into the clients and the causes that nominees have either advocated or represented. I think it' s legitimate. I think we can look at them. But I think when we start down that path it is rather dangerous. It' s dangerous if we conclude that a person cannot go on the federal bench because of certain clients that they have represented, or because of certain positions they may have taken in arguing a case before the Supreme Court of the United States or any other court. If we follow that position, it would be many principled lawyers in our history who never would have served on the federal bench. But, more importantly, if this committee would be saying that, and if this Senate would be saying that, I think it would have a chilling effect on the practice of law as we know it in this country. How many young lawyers would say to themselves, I can' t take this case, I can' t represent this client, I can' t advocate this position because, you know, some day I may want to serve as a j udge. Some day I may want to be on the federal bench. And all the young lawyers I think at one point in time think that they would like to be a j udge some of them get over it. But many of them feel that way at some point. So I think it' s a mistake. I think it' s I don' t fault any of my colleagues for engaging in that conversation, in that give and take and trying to find out what is in Mr. Sutton' s or Mr. Roberts' or Justice Cook' s heart and soul I think that' s legitimate. But if we extend it to the natural consequence of that discussion and really say, No, we can' t put that person on the bench because they advocated that position I think that is a very, very serious mistake, whether it is you look back in history, and whether it' s John Adams and the Boston massacre or whether it' s Thurgood Marshall representing rapists, or whoever, whatever the case might be. And we can go back in history. I think it would be a very, very serious mistake, and if we had applied that law we would have been denied some very great people on the federal bench and in politics and in government, and I think it would have been a mistake. I think ultimately, Mr. Sutton, and all of you, the question is: Will you follow the law? Will you follow the Constitution, and will you follow the precedent? And I assume from each one of you the answer is yes? Mr. Roberts? EXT-18-2091-C-000447 007104-001168 Document ID: 0.7.19343.9053-000001 SEN. DEWINE: Probably, that' s right. (Laughter. ) Absolutely. Mr. Sutton, I don' t pretend to be a legal scholar, but I did have the opportunity to look at a lot of the cases that have gotten the bulk of the publicity with regard to the cases that you have argued before the Supreme Court. And I was here in the Congress when we passed the ADA. And I must be candid and tell you that I think if I was on the Supreme Court I would have decided these cases differently. I don' t agree with the decisions. I don' t agree with the bulk of the decisions that you argued in front of the Supreme Court, at least on the controversial ones. But I am not sure how relevant that is. In fact, I don' t think it' s relevant at all. I want to follow up the line of questioning from my good friend Senator Durbin. I wish he was here I know he had to go to another meeting, but I think it' s we go down and start down a very dangerous path when we probe deeply into the clients and the causes that nominees have either advocated or represented. I think it' s legitimate. I think we can look at them. But I think when we start down that path it is rather dangerous. It' s dangerous if we conclude that a person cannot go on the federal bench because of certain clients that they have represented, or because of certain positions they may have taken in arguing a case before the Supreme Court of the United States or any other court. If we follow that position, it would be many principled lawyers in our history who never would have served on the federal bench. But, more importantly, if this committee would be saying that, and if this Senate would be saying that, I think it would have a chilling effect on the practice of law as we know it in this country. How many young lawyers would say to themselves, I can' t take this case, I can' t represent this client, I can' t advocate this position because, you know, some day I may want to serve as a j udge. Some day I may want to be on the federal bench. And all the young lawyers I think at one point in time think that they would like to be a j udge some of them get over it. But many of them feel that way at some point. So I think it' s a mistake. I think it' s I don' t fault any of my colleagues for engaging in that conversation, in that give and take and trying to find out what is in Mr. Sutton' s or Mr. Roberts' or Justice Cook' s heart and soul I think that' s legitimate. But if we extend it to the natural consequence of that discussion and really say, No, we can' t put that person on the bench because they advocated that position I think that is a very, very serious mistake, whether it is you look back in history, and whether it' s John Adams and the Boston massacre or whether it' s Thurgood Marshall representing rapists, or whoever, whatever the case might be. And we can go back in history. I think it would be a very, very serious mistake, and if we had applied that law we would have been denied some very great people on the federal bench and in politics and in government, and I think it would have been a mistake. I think ultimately, Mr. Sutton, and all of you, the question is: Will you follow the law? Will you follow the Constitution, and will you follow the precedent? And I assume from each one of you the answer is yes? Mr. Roberts? EXT-18-2091-C-000447 007104-001168 Document ID: 0.7.19343.9053-000001 MR. ROBERTS: Yes, senator. SEN. DEWINE: Justice Cook? MS. COOK: MS. COOK: Yes, senator. Yes, indeed. SEN. DEWINE: Mr. Sutton? MR. SUTTON: Yes, senator. SEN. DEWINE: Mr. Sutton, let me read you the entire section of the 1998 Legal Times article that was quoted to you. It' s only part of I think it was excerpted a little bit, and I the article, but it was want to read it to you. Quote, "Sutton says he and his staff are always on the look out for cases coming before the court that raise issues of federalism or will affect local and state government interests, " end of quote. What position did you hold at that point in time, and who was your staff? What were you talking about? MR. SUTTON: SEN. DEWINE: MR. SUTTON: SEN. DEWINE: Yes, senator, I was state solicitor at that point. At that time you were state solicitor. I was state solicitor. Why were you looking for these cases? MR. SUTTON: Because Betty Montgomery, the attorney general, I think she had some vision in this area that correctly realized j ust because a case comes from another state, another set of courts, and goes to the U. S. Supreme Court doesn' t mean it' s not going to affect him. In fact, it' s j ust the opposite. You could have a case coming from Arkansas, Alabama, California, and once the U. S. Supreme Court decides that issue of federal statutory law, federal constitutional law, that decision is binding on every state, including Ohio. And what the article was pointing out, and what Betty Montgomery asked me to do, and we did do, was to look for cases principally in her area of interest. Her area of interest was of course criminal law. She' s a former prosecutor. And we must have sought out and written you know, I don' t want to exaggerate I' m sure it' s several dozen, if not considerably more briefs in U. S. Supreme Court cases generally advancing her perspective on criminal law issues, which was her interest and what she asked us to do. in fact, I think the article was And those were the types of cases about one of those cases. It was not about a Section 5 case. It was about the city of West Cavina (ph) v. Perkins, which involved the due process clause and the return of property that was seized in a Fourth Amendment seizure and the procedural protections individuals have and their rights getting it back. SEN. DEWINE: Mr. Sutton, I' d like to clarify one point and we' ve had a little session about this and your nameplate says Professor Jeffrey Sutton. I think you' re listed that way maybe because the committee put it down that way because you' re an adj unct professor. EXT-18-2091-C-000448 007104-001169 Document ID: 0.7.19343.9053-000001 MR. ROBERTS: Yes, senator. SEN. DEWINE: Justice Cook? MS. COOK: MS. COOK: Yes, senator. Yes, indeed. SEN. DEWINE: Mr. Sutton? MR. SUTTON: Yes, senator. SEN. DEWINE: Mr. Sutton, let me read you the entire section of the 1998 Legal Times article that was quoted to you. It' s only part of I think it was excerpted a little bit, and I the article, but it was want to read it to you. Quote, "Sutton says he and his staff are always on the look out for cases coming before the court that raise issues of federalism or will affect local and state government interests, " end of quote. What position did you hold at that point in time, and who was your staff? What were you talking about? MR. SUTTON: SEN. DEWINE: MR. SUTTON: SEN. DEWINE: Yes, senator, I was state solicitor at that point. At that time you were state solicitor. I was state solicitor. Why were you looking for these cases? MR. SUTTON: Because Betty Montgomery, the attorney general, I think she had some vision in this area that correctly realized j ust because a case comes from another state, another set of courts, and goes to the U. S. Supreme Court doesn' t mean it' s not going to affect him. In fact, it' s j ust the opposite. You could have a case coming from Arkansas, Alabama, California, and once the U. S. Supreme Court decides that issue of federal statutory law, federal constitutional law, that decision is binding on every state, including Ohio. And what the article was pointing out, and what Betty Montgomery asked me to do, and we did do, was to look for cases principally in her area of interest. Her area of interest was of course criminal law. She' s a former prosecutor. And we must have sought out and written you know, I don' t want to exaggerate I' m sure it' s several dozen, if not considerably more briefs in U. S. Supreme Court cases generally advancing her perspective on criminal law issues, which was her interest and what she asked us to do. in fact, I think the article was And those were the types of cases about one of those cases. It was not about a Section 5 case. It was about the city of West Cavina (ph) v. Perkins, which involved the due process clause and the return of property that was seized in a Fourth Amendment seizure and the procedural protections individuals have and their rights getting it back. SEN. DEWINE: Mr. Sutton, I' d like to clarify one point and we' ve had a little session about this and your nameplate says Professor Jeffrey Sutton. I think you' re listed that way maybe because the committee put it down that way because you' re an adj unct professor. EXT-18-2091-C-000448 007104-001169 Document ID: 0.7.19343.9053-000001 This is a little different than a full time professor. I j ust state that because the articles you' ve written were written by you really though in your role as a lawyer, not as an academic. Is that correct? MR. SUTTON: Absolutely. In fact, the first articles that I mentioned were articles written while I was state solicitor, and of course pursuing the j ob I was asked to do, representing the state. I think one or two of them were written after I was state solicitor, but the commentary was principally about cases I argued. And of course a lawyer would have an ethical obligation not to say publicly that his or her client in a given case had urged a position that was ultimately incorrectly decided by the U. S. Supreme Court. I mean, in those cases my clients happened to win, and it would have been not only unusual, but I think ethically barred for me to publicly say the U. S. Supreme Court was wrong in those decisions. And if one reads those articles, one would see pretty quickly that they were simply recycling the briefs that I had written in those very cases. In fact, I hate to say it word for word I don' t think one can plagiarize oneself, but if one can I' ve j ust made an awful admission. But that' s what you would see if you read those articles and compared them to the briefs. SEN. DEWINE: I want to go back to the City of Boerne case and the discussion that you had with Senator Schumer a few moments ago. In that exchange he asked you about a supposed position that you took during oral arguments, and I would like to clarify it. As I understand it, you argue the Congress does have the authority to enforce the Bill of Rights using Section 5 of the Fourteenth Amendment, as those rights are incorporated in Section 1 of the Fourteenth Amendment. So as I understand it, you argue that federal authority was broader and that the federal government has the authority to protect more rights than some of the other parties in the case did. So in that case with regard to your position, Senator Schumer' s concerns were unfounded. MR. SUTTON: I think that' s right, senator. It was a very important issue in City of Boerne, because until that decision, the U. S. Supreme Court had not clarified that critical point. If one looked at all the Section 5 laws that had been reviewed for a hundred plus years by the U. S. Supreme Court, you would have seen that they all involve at least the ones that were upheld racial discrimination, remediation or voting rights remediation. They hadn' t extended to the other Bill of Rights protections, whether it' s free speech, criminal rights protections, or in the case of City of Boerne free exercise of religion. And the state was in a difficult position in that case because the party in the case City of Boerne, had taken the position because no case had held otherwise that Section 5 only allowed Congress to correct race discrimination and voting rights discrimination. And we were in a difficult position. Usually an amicus tends to agree with the party that you' re supporting, but at the same time, you know, not that reasonable minds couldn' t disagree with this point and Justice Scalia ultimately gave me a very hard time on this but took the view that by its terms the Constitution said Section 5 enforces the provisions of Section 1. Section 1 says due process. The U. S. Supreme Court had construed the due EXT-18-2091-C-000449 007104-001170 Document ID: 0.7.19343.9053-000001 This is a little different than a full time professor. I j ust state that because the articles you' ve written were written by you really though in your role as a lawyer, not as an academic. Is that correct? MR. SUTTON: Absolutely. In fact, the first articles that I mentioned were articles written while I was state solicitor, and of course pursuing the j ob I was asked to do, representing the state. I think one or two of them were written after I was state solicitor, but the commentary was principally about cases I argued. And of course a lawyer would have an ethical obligation not to say publicly that his or her client in a given case had urged a position that was ultimately incorrectly decided by the U. S. Supreme Court. I mean, in those cases my clients happened to win, and it would have been not only unusual, but I think ethically barred for me to publicly say the U. S. Supreme Court was wrong in those decisions. And if one reads those articles, one would see pretty quickly that they were simply recycling the briefs that I had written in those very cases. In fact, I hate to say it word for word I don' t think one can plagiarize oneself, but if one can I' ve j ust made an awful admission. But that' s what you would see if you read those articles and compared them to the briefs. SEN. DEWINE: I want to go back to the City of Boerne case and the discussion that you had with Senator Schumer a few moments ago. In that exchange he asked you about a supposed position that you took during oral arguments, and I would like to clarify it. As I understand it, you argue the Congress does have the authority to enforce the Bill of Rights using Section 5 of the Fourteenth Amendment, as those rights are incorporated in Section 1 of the Fourteenth Amendment. So as I understand it, you argue that federal authority was broader and that the federal government has the authority to protect more rights than some of the other parties in the case did. So in that case with regard to your position, Senator Schumer' s concerns were unfounded. MR. SUTTON: I think that' s right, senator. It was a very important issue in City of Boerne, because until that decision, the U. S. Supreme Court had not clarified that critical point. If one looked at all the Section 5 laws that had been reviewed for a hundred plus years by the U. S. Supreme Court, you would have seen that they all involve at least the ones that were upheld racial discrimination, remediation or voting rights remediation. They hadn' t extended to the other Bill of Rights protections, whether it' s free speech, criminal rights protections, or in the case of City of Boerne free exercise of religion. And the state was in a difficult position in that case because the party in the case City of Boerne, had taken the position because no case had held otherwise that Section 5 only allowed Congress to correct race discrimination and voting rights discrimination. And we were in a difficult position. Usually an amicus tends to agree with the party that you' re supporting, but at the same time, you know, not that reasonable minds couldn' t disagree with this point and Justice Scalia ultimately gave me a very hard time on this but took the view that by its terms the Constitution said Section 5 enforces the provisions of Section 1. Section 1 says due process. The U. S. Supreme Court had construed the due EXT-18-2091-C-000449 007104-001170 Document ID: 0.7.19343.9053-000001 process clause to incorporate many, if not all or most of the provisions of the Bill of Rights. And so we made that argument, and Justice Scalia gave me a very difficult time. I mean, if you' ve ever seen him ask a question, my knees clearly quivered. But I mean my backbone did stiffen on this point, and we said, That' s right, Justice Scalia, by its terms. And you know as a textualist you have to you should agree with this. By its terms it covers all rights protected by Section 1. So while there' s parts of that outcome of that case that one can be unhappy with and certainly reasonable minds could disagree with, we feel good about that part. The Court did agree with us on this. SEN. DEWINE: Good. Justice Cook, you have been making appellate court decisions now for well over a decade. Obviously in that time you have developed a style and a way of making decisions, an approach to that j ob. Tell us how you approach the j ob, how you do that, and how you would approach the j ob as a circuit court j udge. There' s got to be a technique. There has got to be a way of doing it. Everyone has got their own style. How would you do it? How do you do it now? MS. COOK: Mine is a my process is structured, and I hope you would find it principled, and it' s the process I think most appellate j udges engage in. It' s first a review of the record of proceedings, a reading, a thorough reading and studying of the contesting briefs, and then a review of the existing law, and then the application of logic sometimes custom and generally rules. And this is done you know I give some credit to my counsel, because I every j udge has talented law clerks, and in my chambers actually some of my clerks are still here, I think in my chambers my clerks do serve as my counsel. And so I think that that process generally, and with the inclusion of bright young minds to challenge any decisions that I come to, I think we achieve the impartiality and really the obj ective approach that fairness dictates, and good any good j urist engages in pretty much that same decisional process, I would say, senator. SEN. DEWINE: You go through a few drafts? MS. COOK: Oh, yeah. And then we exchange the drafts among the members of the court. And in that process we also are able to learn, you know, if any other member of the court writes a concurrence or dissent that helps in our decision making to double check our reasoning, to double check our research. So it is a it' s a process it' s a learning process at its base. And that' s what we that' s our j ob. SEN. DEWINE: Good. Thank you very much. Thank you, Mr. Chairman. SEN. HATCH: Thank you, senator. break, and we' ll come right back. Okay? Let' s take a five minute (Recess. ) SEN. HATCH: Okay, we' ll start the second round of questions. And maybe I can start it off, or Senator Leahy, if you' d prefer. EXT-18-2091-C-000450 007104-001171 Document ID: 0.7.19343.9053-000001 process clause to incorporate many, if not all or most of the provisions of the Bill of Rights. And so we made that argument, and Justice Scalia gave me a very difficult time. I mean, if you' ve ever seen him ask a question, my knees clearly quivered. But I mean my backbone did stiffen on this point, and we said, That' s right, Justice Scalia, by its terms. And you know as a textualist you have to you should agree with this. By its terms it covers all rights protected by Section 1. So while there' s parts of that outcome of that case that one can be unhappy with and certainly reasonable minds could disagree with, we feel good about that part. The Court did agree with us on this. SEN. DEWINE: Good. Justice Cook, you have been making appellate court decisions now for well over a decade. Obviously in that time you have developed a style and a way of making decisions, an approach to that j ob. Tell us how you approach the j ob, how you do that, and how you would approach the j ob as a circuit court j udge. There' s got to be a technique. There has got to be a way of doing it. Everyone has got their own style. How would you do it? How do you do it now? MS. COOK: Mine is a my process is structured, and I hope you would find it principled, and it' s the process I think most appellate j udges engage in. It' s first a review of the record of proceedings, a reading, a thorough reading and studying of the contesting briefs, and then a review of the existing law, and then the application of logic sometimes custom and generally rules. And this is done you know I give some credit to my counsel, because I every j udge has talented law clerks, and in my chambers actually some of my clerks are still here, I think in my chambers my clerks do serve as my counsel. And so I think that that process generally, and with the inclusion of bright young minds to challenge any decisions that I come to, I think we achieve the impartiality and really the obj ective approach that fairness dictates, and good any good j urist engages in pretty much that same decisional process, I would say, senator. SEN. DEWINE: You go through a few drafts? MS. COOK: Oh, yeah. And then we exchange the drafts among the members of the court. And in that process we also are able to learn, you know, if any other member of the court writes a concurrence or dissent that helps in our decision making to double check our reasoning, to double check our research. So it is a it' s a process it' s a learning process at its base. And that' s what we that' s our j ob. SEN. DEWINE: Good. Thank you very much. Thank you, Mr. Chairman. SEN. HATCH: Thank you, senator. break, and we' ll come right back. Okay? Let' s take a five minute (Recess. ) SEN. HATCH: Okay, we' ll start the second round of questions. And maybe I can start it off, or Senator Leahy, if you' d prefer. EXT-18-2091-C-000450 007104-001171 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: No, go ahead. SEN. HATCH: Well, I' ll start it off, and we' ll turn to Senator Leahy as soon as I' m through. And hopefully this is all the round we need, but I want my colleagues to feel like they' ve been treated fairly and I want them to be able to ask the questions they have in mind. But there has to be a reasonable time, and we' ll call this at a reasonable time. And this is their chance to question the three of you, and we' ll j ust have to see what happens. Well, let me j ust go back to you, Mr. Sutton. As a matter of fact, I understand that you came to represent the University of Alabama in the Garrett case because the Alabama attorney general' s office called you up and asked you to take the case. Is that right? MR. SUTTON: That' s correct. SEN. HATCH: Okay. So you were asked by the attorney general of the state of Alabama. What if it had been the other way around? I mean, what would you have done if Mrs. Garrett or the United States had called you up and asked you to represent their side in the Garrett case? Would you have done it? MR. SUTTON: Yes, your honor, absolutely. And I would have been very eager to represent that side of the case, either for Ms. Garrett or if I' d been fortunate enough to be in the solicitor general' s office. SEN. HATCH: So when you represented your client, you were doing represent clients. what attorneys do MR. SUTTON: Yes, I was. SEN. HATCH: I have to admit, I' m absolutely non plussed that some of my colleagues seem to think that you should only represent the people who agree with them. I don' t know any attorney who does that who' s worth his salt or who really has any broad experience. You' re not going to please everybody by the people you represent. But to ascribe to you the negative aspects of your clients, I think, is the height of sophistry. And it' s really bothering me that on this committee, with the sophistication of this committee, that we' ve had those type of indications. So let me j ust ask you this. Now, I get so sick and tired of the Federalist Society; they beat up on the Federalist Society. I happen to be a member. I' m on the board of advisers. I know what they do. I know what they don' t do. Since your membership on the Federalist Society has been raised here today and since various groups, such as the People for the American Way and NARAL, the National Abortion Rights Action League, have also expressed concern over your involvement with that group, j ust let me ask you a few questions about it. EXT-18-2091-C-000451 007104-001172 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: No, go ahead. SEN. HATCH: Well, I' ll start it off, and we' ll turn to Senator Leahy as soon as I' m through. And hopefully this is all the round we need, but I want my colleagues to feel like they' ve been treated fairly and I want them to be able to ask the questions they have in mind. But there has to be a reasonable time, and we' ll call this at a reasonable time. And this is their chance to question the three of you, and we' ll j ust have to see what happens. Well, let me j ust go back to you, Mr. Sutton. As a matter of fact, I understand that you came to represent the University of Alabama in the Garrett case because the Alabama attorney general' s office called you up and asked you to take the case. Is that right? MR. SUTTON: That' s correct. SEN. HATCH: Okay. So you were asked by the attorney general of the state of Alabama. What if it had been the other way around? I mean, what would you have done if Mrs. Garrett or the United States had called you up and asked you to represent their side in the Garrett case? Would you have done it? MR. SUTTON: Yes, your honor, absolutely. And I would have been very eager to represent that side of the case, either for Ms. Garrett or if I' d been fortunate enough to be in the solicitor general' s office. SEN. HATCH: So when you represented your client, you were doing represent clients. what attorneys do MR. SUTTON: Yes, I was. SEN. HATCH: I have to admit, I' m absolutely non plussed that some of my colleagues seem to think that you should only represent the people who agree with them. I don' t know any attorney who does that who' s worth his salt or who really has any broad experience. You' re not going to please everybody by the people you represent. But to ascribe to you the negative aspects of your clients, I think, is the height of sophistry. And it' s really bothering me that on this committee, with the sophistication of this committee, that we' ve had those type of indications. So let me j ust ask you this. Now, I get so sick and tired of the Federalist Society; they beat up on the Federalist Society. I happen to be a member. I' m on the board of advisers. I know what they do. I know what they don' t do. Since your membership on the Federalist Society has been raised here today and since various groups, such as the People for the American Way and NARAL, the National Abortion Rights Action League, have also expressed concern over your involvement with that group, j ust let me ask you a few questions about it. EXT-18-2091-C-000451 007104-001172 Document ID: 0.7.19343.9053-000001 You are indeed a member of the Federalist Society, are you not? MR. SUTTON: Yes, I am. SEN. HATCH: Okay. Well, I am too. And I happen to think that it' s one of the best organizations in the whole country. And I' ve found, frankly, the Federalist Society encourages open and honest discussion from all points of view, from a variety of perspectives, on a multitude of current issues. Have you found the same thing? MR. SUTTON: I have, your honor. In the cases I argued on behalf of several clients, I' ve seen as much criticism of those cases in Federalist Society publications as I' ve seen anywhere. SEN. HATCH: I have never known the Federalist Society to take a position on any issue. Do you know whether they have? MR. SUTTON: I' m not aware of that, no. SEN. HATCH: Well, I don' t think I' ve never seen it. So I get a little tired of this beating up on the Federalist Society as though they' re some sort of a secret society. It' s the most open society in our country right now from a legal standpoint. In fact, Federalist Society events are known for their intellectual vigor and open debate. Do you differ with that statement? MR. SUTTON: I don' t, to the extent I' ve been to them, yes. SEN. HATCH: Leading liberal academics and government officials regularly participate in the organization' s events. Isn' t that correct? MR. SUTTON: That is correct. SEN. HATCH: From all points of view MR. SUTTON: That' s very correct. SEN. HATCH: Yes, exactly. from the right to the left. Right? MR. SUTTON: SEN. HATCH: Regular participants include Walter Dellinger. Walter Dellinger was President Clinton' s acting solicitor general very, very intelligent, interesting and good man, but very liberal. Steven Reinhardt you' ve got to be pretty liberal to be to the left of Reinhardt, from the ninth circuit court of appeals, but one of the really brilliant people in our society. He really believes in what he does, even though I think many j ustly criticize some of his activist approaches. How about Nadine Strossen? She' s the president of the ACLU. She' s no shrinking violet, yet she participates in the seminars and the conferences. Professor Laurence Tribe of Harvard. Now, no one would say that Laurence Tribe is an insidious conservative. How about Cass EXT-18-2091-C-000452 007104-001173 Document ID: 0.7.19343.9053-000001 You are indeed a member of the Federalist Society, are you not? MR. SUTTON: Yes, I am. SEN. HATCH: Okay. Well, I am too. And I happen to think that it' s one of the best organizations in the whole country. And I' ve found, frankly, the Federalist Society encourages open and honest discussion from all points of view, from a variety of perspectives, on a multitude of current issues. Have you found the same thing? MR. SUTTON: I have, your honor. In the cases I argued on behalf of several clients, I' ve seen as much criticism of those cases in Federalist Society publications as I' ve seen anywhere. SEN. HATCH: I have never known the Federalist Society to take a position on any issue. Do you know whether they have? MR. SUTTON: I' m not aware of that, no. SEN. HATCH: Well, I don' t think I' ve never seen it. So I get a little tired of this beating up on the Federalist Society as though they' re some sort of a secret society. It' s the most open society in our country right now from a legal standpoint. In fact, Federalist Society events are known for their intellectual vigor and open debate. Do you differ with that statement? MR. SUTTON: I don' t, to the extent I' ve been to them, yes. SEN. HATCH: Leading liberal academics and government officials regularly participate in the organization' s events. Isn' t that correct? MR. SUTTON: That is correct. SEN. HATCH: From all points of view MR. SUTTON: That' s very correct. SEN. HATCH: Yes, exactly. from the right to the left. Right? MR. SUTTON: SEN. HATCH: Regular participants include Walter Dellinger. Walter Dellinger was President Clinton' s acting solicitor general very, very intelligent, interesting and good man, but very liberal. Steven Reinhardt you' ve got to be pretty liberal to be to the left of Reinhardt, from the ninth circuit court of appeals, but one of the really brilliant people in our society. He really believes in what he does, even though I think many j ustly criticize some of his activist approaches. How about Nadine Strossen? She' s the president of the ACLU. She' s no shrinking violet, yet she participates in the seminars and the conferences. Professor Laurence Tribe of Harvard. Now, no one would say that Laurence Tribe is an insidious conservative. How about Cass EXT-18-2091-C-000452 007104-001173 Document ID: 0.7.19343.9053-000001 Sunstein of the University of Chicago? He' s a regular. They, I think, enj oy these give and take sessions, and they should. Does this sound like a gang of right wing participants to you? MR. SUTTON: No. SEN. HATCH: You know, for some reason I knew that' s what your answer was going to be. SEN. LEAHY: I even figured that out. SEN. HATCH: Even Leahy' s figured that out. SEN. LEAHY: I figured that one out. SEN. HATCH: That' s great. (Laughter. ) (Laughter. ) I' m so happy for that. SEN. LEAHY: I' m glad to see you so supportive of Walter Dellinger, insofar as when you were chairman, we couldn' t get him through the committee. That' s why he was acting solicitor general. (Scattered applause. ) SEN. HATCH: Well, I have to say that I do have a lot of respect for Walter Dellinger. SEN. LEAHY: (Laughs. ) SEN. HATCH: I do. I even have respect for you, Senator Leahy, quite a bit. Now, I' ve earned it over the years, I' ll tell you. (Laughs. ) Mr. Roberts, one of my Democratic colleagues has criticized you, albeit rather regularly, for cases that you worked on in your official capacity as principal deputy solicitor general at the U. S. Department of Justice. The positions you took in these cases represented the position of the United States government, right? MR. ROBERTS: That' s correct. SEN. HATCH: MR. ROBERTS: SEN. HATCH: The U. S. government was your client. That' s right. Right? You didn' t necessarily choose these cases, right? MR. ROBERTS: SEN. HATCH: MR. ROBERTS: No. You had supervisors who worked with you. Yes. SEN. HATCH: MR. ROBERTS: Suggestions were made to you. Yes. EXT-18-2091-C-000453 007104-001174 Document ID: 0.7.19343.9053-000001 Sunstein of the University of Chicago? He' s a regular. They, I think, enj oy these give and take sessions, and they should. Does this sound like a gang of right wing participants to you? MR. SUTTON: No. SEN. HATCH: You know, for some reason I knew that' s what your answer was going to be. SEN. LEAHY: I even figured that out. SEN. HATCH: Even Leahy' s figured that out. SEN. LEAHY: I figured that one out. SEN. HATCH: That' s great. (Laughter. ) (Laughter. ) I' m so happy for that. SEN. LEAHY: I' m glad to see you so supportive of Walter Dellinger, insofar as when you were chairman, we couldn' t get him through the committee. That' s why he was acting solicitor general. (Scattered applause. ) SEN. HATCH: Well, I have to say that I do have a lot of respect for Walter Dellinger. SEN. LEAHY: (Laughs. ) SEN. HATCH: I do. I even have respect for you, Senator Leahy, quite a bit. Now, I' ve earned it over the years, I' ll tell you. (Laughs. ) Mr. Roberts, one of my Democratic colleagues has criticized you, albeit rather regularly, for cases that you worked on in your official capacity as principal deputy solicitor general at the U. S. Department of Justice. The positions you took in these cases represented the position of the United States government, right? MR. ROBERTS: That' s correct. SEN. HATCH: MR. ROBERTS: SEN. HATCH: The U. S. government was your client. That' s right. Right? You didn' t necessarily choose these cases, right? MR. ROBERTS: SEN. HATCH: MR. ROBERTS: No. You had supervisors who worked with you. Yes. SEN. HATCH: MR. ROBERTS: Suggestions were made to you. Yes. EXT-18-2091-C-000453 007104-001174 Document ID: 0.7.19343.9053-000001 SEN. HATCH: And you followed those suggestions. MR. ROBERTS: Yes. And quite often, of course, we were in a defensive position, defending federal agencies that were sued in court. SEN. HATCH: Sure. And am I correct that the government' s position in these cases was often arrived at as a result of a collaborative process in which many different persons aired and debated different views? MR. ROBERTS: It' s a very broad collaborative process. I don' t think everyone' s familiar with it. But when a case reaches the Supreme Court that might affect the federal government or in which a federal agency has been a party, you canvass the whole scope of the federal government. And in a typical case, you' ll get responses from 10 different agencies, sometimes all over the map, sometimes, you know, consistent in a position; a number of different divisions within the department, different offices, all weighing in on what the position of the United States should be. SEN. HATCH: Well, and as a lawyer in the solicitor general' s office, you were duty bound to represent the official position of the United States even if it conflicted with your own personal beliefs. Right? MR. ROBERTS: SEN. HATCH: Certainly. That' s what attorneys do. MR. ROBERTS: Not only in the public sector, but I think in the private sector as well, that that' s the highest tradition of the American bar. SEN. HATCH: Well, I have to again caution my Democratic colleagues about the danger in inferring a government lawyer' s personal views from the position he or she takes as an attorney for the United States. I think Walter Dellinger, who, as we all know, served as solicitor general during the Clinton administration, said it best. He said that it is, quote, "very risky, " unquote, to j udge j udicial nominees by the positions they have taken as government lawyers and that such j udgments may lead to a rej ection of, quote, "the most qualified of the nominees, those who, like Mr. Roberts, have been out and have had a maj or lifetime of accomplishment, " unquote; one of the leading Democrat legal thinkers in the country. Now, specifically with regard to Mr. Roberts, Mr. Dellinger said this. Quote: "The kind of arguments that John Roberts was making in the position of deputy solicitor general were the type of arguments a professional lawyer is expected to make when his client, the chief executive of which is the president of the United States, has run on those positions, " unquote. EXT-18-2091-C-000454 007104-001175 Document ID: 0.7.19343.9053-000001 SEN. HATCH: And you followed those suggestions. MR. ROBERTS: Yes. And quite often, of course, we were in a defensive position, defending federal agencies that were sued in court. SEN. HATCH: Sure. And am I correct that the government' s position in these cases was often arrived at as a result of a collaborative process in which many different persons aired and debated different views? MR. ROBERTS: It' s a very broad collaborative process. I don' t think everyone' s familiar with it. But when a case reaches the Supreme Court that might affect the federal government or in which a federal agency has been a party, you canvass the whole scope of the federal government. And in a typical case, you' ll get responses from 10 different agencies, sometimes all over the map, sometimes, you know, consistent in a position; a number of different divisions within the department, different offices, all weighing in on what the position of the United States should be. SEN. HATCH: Well, and as a lawyer in the solicitor general' s office, you were duty bound to represent the official position of the United States even if it conflicted with your own personal beliefs. Right? MR. ROBERTS: SEN. HATCH: Certainly. That' s what attorneys do. MR. ROBERTS: Not only in the public sector, but I think in the private sector as well, that that' s the highest tradition of the American bar. SEN. HATCH: Well, I have to again caution my Democratic colleagues about the danger in inferring a government lawyer' s personal views from the position he or she takes as an attorney for the United States. I think Walter Dellinger, who, as we all know, served as solicitor general during the Clinton administration, said it best. He said that it is, quote, "very risky, " unquote, to j udge j udicial nominees by the positions they have taken as government lawyers and that such j udgments may lead to a rej ection of, quote, "the most qualified of the nominees, those who, like Mr. Roberts, have been out and have had a maj or lifetime of accomplishment, " unquote; one of the leading Democrat legal thinkers in the country. Now, specifically with regard to Mr. Roberts, Mr. Dellinger said this. Quote: "The kind of arguments that John Roberts was making in the position of deputy solicitor general were the type of arguments a professional lawyer is expected to make when his client, the chief executive of which is the president of the United States, has run on those positions, " unquote. EXT-18-2091-C-000454 007104-001175 Document ID: 0.7.19343.9053-000001 Now, Mr. Roberts, I want the persons who have made predictions about how you will rule as a j udge to listen to some of the things your colleagues, the persons who know you best, have said about you. Shortly after your nomination in 2001, the committee received a letter from 13 of your former colleagues at the solicitor general' s office. Now, I want to read a portion of this letter because I think it will help my colleagues in evaluating your nomination. The letter says, quote, "Although we are of diverse political parties and persuasions, each of us is firmly convinced that Mr. Roberts would be a truly superb addition to the federal court of appeals. Mr. Roberts was attentive and respectful of all views and he represented the United States zealously but fairly. He had the deepest respect for legal principles and legal precedent, instincts that will serve him well as a court of appeals j udge, " unquote. In recent days, the suggestion has surfaced in press accounts that Mr. Roberts, meaning you, may be expected to vote along the lines intimated in briefs you filed while in the office of solicitor general. In fact, this is their quote. Let me j ust quote it. These are your colleagues from diverse political views Democrats, Republicans, maybe some who aren' t either. They say, quote, "In recent days the suggestion has surfaced in press accounts that Mr. Roberts may be expected to vote in particular cases along the lines intimated in briefs he filed while in the office of the solicitor general. As lawyers who served in that office, we emphatically dispute that assumption. Perhaps uniquely in our society, lawyers are called upon to advance legal arguments to clients with whom they may, in their private capacities, disagree. "It is not unusual for an individual lawyer to disagree with a client while at the same time fulfilling the ethical duty to provide zealous representation within the bounds of law. And government lawyers, including those who serve in the solicitor general' s office, are no different. They, too, have clients federal agencies and officers with a broad and diverse array of policies and interests. Moreover, the solicitor general, unlike a private lawyer, does not have the option of declining a representation and telling a federal agency to find another lawyer. " Then they go on again. "We hope the foregoing is of assistance to the committee in its consideration of Mr. Roberts' s nomination. He is a superbly qualified nominee, " unquote. I will submit a copy of that letter for the record, along with copies of several other letters echoing support for your nomination. Now, the resounding theme of these letters is that you will be a fair and impartial j udge whose deep respect for law and the principle of stare decisis, combined with your brilliance, will make you one of the greatest federal j udges ever confirmed. EXT-18-2091-C-000455 007104-001176 Document ID: 0.7.19343.9053-000001 Now, Mr. Roberts, I want the persons who have made predictions about how you will rule as a j udge to listen to some of the things your colleagues, the persons who know you best, have said about you. Shortly after your nomination in 2001, the committee received a letter from 13 of your former colleagues at the solicitor general' s office. Now, I want to read a portion of this letter because I think it will help my colleagues in evaluating your nomination. The letter says, quote, "Although we are of diverse political parties and persuasions, each of us is firmly convinced that Mr. Roberts would be a truly superb addition to the federal court of appeals. Mr. Roberts was attentive and respectful of all views and he represented the United States zealously but fairly. He had the deepest respect for legal principles and legal precedent, instincts that will serve him well as a court of appeals j udge, " unquote. In recent days, the suggestion has surfaced in press accounts that Mr. Roberts, meaning you, may be expected to vote along the lines intimated in briefs you filed while in the office of solicitor general. In fact, this is their quote. Let me j ust quote it. These are your colleagues from diverse political views Democrats, Republicans, maybe some who aren' t either. They say, quote, "In recent days the suggestion has surfaced in press accounts that Mr. Roberts may be expected to vote in particular cases along the lines intimated in briefs he filed while in the office of the solicitor general. As lawyers who served in that office, we emphatically dispute that assumption. Perhaps uniquely in our society, lawyers are called upon to advance legal arguments to clients with whom they may, in their private capacities, disagree. "It is not unusual for an individual lawyer to disagree with a client while at the same time fulfilling the ethical duty to provide zealous representation within the bounds of law. And government lawyers, including those who serve in the solicitor general' s office, are no different. They, too, have clients federal agencies and officers with a broad and diverse array of policies and interests. Moreover, the solicitor general, unlike a private lawyer, does not have the option of declining a representation and telling a federal agency to find another lawyer. " Then they go on again. "We hope the foregoing is of assistance to the committee in its consideration of Mr. Roberts' s nomination. He is a superbly qualified nominee, " unquote. I will submit a copy of that letter for the record, along with copies of several other letters echoing support for your nomination. Now, the resounding theme of these letters is that you will be a fair and impartial j udge whose deep respect for law and the principle of stare decisis, combined with your brilliance, will make you one of the greatest federal j udges ever confirmed. EXT-18-2091-C-000455 007104-001176 Document ID: 0.7.19343.9053-000001 Now, people who know you, that' s the way they feel, regardless of their political beliefs or their ideological beliefs, that you' re a great lawyer, as are the other two on this panel. I' ve had Supreme Court j ustices say you are one of the two greatest appellate lawyers living today, to me personally. Now, they don' t do that very easily. And I think everybody who knows you knows that that' s how good you are. This is not your first appointment to the courts, is it? MR. ROBERTS: SEN. HATCH: No, Mr. Chairman, it' s not. When were you nominated before, and by whom? MR. ROBERTS: I was nominated 11 years ago last Monday to the same court by the first President Bush. SEN. HATCH: particular position. So basically it' s taken you 11 years to get to this MR. ROBERTS: Well, I like to think I haven' t been j ust treading water in the meantime, but it has been 11 years. SEN. HATCH: It has been an expiration of 11 years since your first deployment, and then you' ve had to be you were appointed on May 9th of 2001. MR. ROBERTS: This current round, yes. SEN. HATCH: And then this is the third time you' ve been reappointed since January by current President Bush. MR. ROBERTS: Correct. SEN. HATCH: Well, I' ll reserve the balance of my time. But I j ust wanted to get those points out, because, for the life of me, I can' t understand why anybody who loves the law and who respects great lawyers would not want any of the three of you to serve in our federal courts. I know one thing. I' d sure want to be able to argue cases in front of you. I know one thing. I know I' d be treated fairly. And you and I both know another thing. If we tried cases, I didn' t want a j udge on my side; I didn' t want him against me. I wanted him or I wanted the j udge, regardless of who it was, to be fair, down the middle, to apply the law. If they did, I was going to win that case. And I could lose a case by the j udge favoring me j ust because a j ury would get mad. Or I could lose a case by a j udge not favoring me, j ust because the j udge was so respected. We want j udges who are going to be down the middle, who are going to that doesn' t mean you have to be down the middle in ideology and everything else; j ust on the law, you' ve got to be down the middle and do what' s right and honest and legally sound. EXT-18-2091-C-000456 007104-001177 Document ID: 0.7.19343.9053-000001 Now, people who know you, that' s the way they feel, regardless of their political beliefs or their ideological beliefs, that you' re a great lawyer, as are the other two on this panel. I' ve had Supreme Court j ustices say you are one of the two greatest appellate lawyers living today, to me personally. Now, they don' t do that very easily. And I think everybody who knows you knows that that' s how good you are. This is not your first appointment to the courts, is it? MR. ROBERTS: SEN. HATCH: No, Mr. Chairman, it' s not. When were you nominated before, and by whom? MR. ROBERTS: I was nominated 11 years ago last Monday to the same court by the first President Bush. SEN. HATCH: particular position. So basically it' s taken you 11 years to get to this MR. ROBERTS: Well, I like to think I haven' t been j ust treading water in the meantime, but it has been 11 years. SEN. HATCH: It has been an expiration of 11 years since your first deployment, and then you' ve had to be you were appointed on May 9th of 2001. MR. ROBERTS: This current round, yes. SEN. HATCH: And then this is the third time you' ve been reappointed since January by current President Bush. MR. ROBERTS: Correct. SEN. HATCH: Well, I' ll reserve the balance of my time. But I j ust wanted to get those points out, because, for the life of me, I can' t understand why anybody who loves the law and who respects great lawyers would not want any of the three of you to serve in our federal courts. I know one thing. I' d sure want to be able to argue cases in front of you. I know one thing. I know I' d be treated fairly. And you and I both know another thing. If we tried cases, I didn' t want a j udge on my side; I didn' t want him against me. I wanted him or I wanted the j udge, regardless of who it was, to be fair, down the middle, to apply the law. If they did, I was going to win that case. And I could lose a case by the j udge favoring me j ust because a j ury would get mad. Or I could lose a case by a j udge not favoring me, j ust because the j udge was so respected. We want j udges who are going to be down the middle, who are going to that doesn' t mean you have to be down the middle in ideology and everything else; j ust on the law, you' ve got to be down the middle and do what' s right and honest and legally sound. EXT-18-2091-C-000456 007104-001177 Document ID: 0.7.19343.9053-000001 Now, I have every confidence that the three of you, each of you, will be exactly that type of a j udge. And I commend you for these nominations, for your nominations. And I look forward to seeing you confirmed and I hope we can do that relatively soon. Senator Leahy. SEN. LEAHY: I' ll reserve my other five minutes. Thank you, Mr. Chairman. I don' t know where this pesky idea of the Federalist Society came from; probably because one of the nominees testified here under oath that he was told if he wanted to be a federal j udge appointed in the Bush administration, he should j oin the Federalist Society. I mean, that may have stuck in people' s mind; I don' t know. (Laughter. ) You know how those little things are. SEN. HATCH: about that. I doubt anybody of any intelligent mind would worry SEN. LEAHY: Well, I would hope you wouldn' t suggest that President Bush' s nominee, who we confirmed as a federal j udge, would be lying under oath. SEN. HATCH: Of course not. SEN. LEAHY: Okay. SEN. HATCH: No, that was my five minutes. Am I down to only four minutes that quickly? SEN. LEAHY: Goodness, gracious. Man, I never should have let you have that big gavel. (Laughter. ) But the Federalist Society' s membership certainly hasn' t stopped people. Paul Cassell was confirmed, a member confirmed for the Utah district court; Karen Caldwell, Edith Brown Clement, Harris Hartz, Lance Affort (sp) , Morrison Cohen England. They' re all Federalist members, all confirmed. Michael McConnell to the tenth circuit; John Rogers to the sixth circuit, both members; Ken Jordan and Arthur Schwab and Larry Block. I mean, I could go on and on. In fact, it seems a lot of them were there. So maybe it' s coincidence, the statement of one who said that they had to j oin to be made a j udge, or maybe it' s a coincidence so many have gone through. But, be that as it may, it hasn' t been held against them. Certainly I would not do as some of my colleagues have on the other side, vote against a nominee, as they have a Clinton nominee, because she had dared, in her private practice, to represent a labor union. And so they voted against her because of that. And I, having listened to your testimony, all of you, and Chairman Hatch' s testimony that clients take their or lawyers take their clients and represent them although I would note, j ust so that it doesn' t seem totally one sided, we had one voted against for defending EXT-18-2091-C-000457 007104-001178 Document ID: 0.7.19343.9053-000001 Now, I have every confidence that the three of you, each of you, will be exactly that type of a j udge. And I commend you for these nominations, for your nominations. And I look forward to seeing you confirmed and I hope we can do that relatively soon. Senator Leahy. SEN. LEAHY: I' ll reserve my other five minutes. Thank you, Mr. Chairman. I don' t know where this pesky idea of the Federalist Society came from; probably because one of the nominees testified here under oath that he was told if he wanted to be a federal j udge appointed in the Bush administration, he should j oin the Federalist Society. I mean, that may have stuck in people' s mind; I don' t know. (Laughter. ) You know how those little things are. SEN. HATCH: about that. I doubt anybody of any intelligent mind would worry SEN. LEAHY: Well, I would hope you wouldn' t suggest that President Bush' s nominee, who we confirmed as a federal j udge, would be lying under oath. SEN. HATCH: Of course not. SEN. LEAHY: Okay. SEN. HATCH: No, that was my five minutes. Am I down to only four minutes that quickly? SEN. LEAHY: Goodness, gracious. Man, I never should have let you have that big gavel. (Laughter. ) But the Federalist Society' s membership certainly hasn' t stopped people. Paul Cassell was confirmed, a member confirmed for the Utah district court; Karen Caldwell, Edith Brown Clement, Harris Hartz, Lance Affort (sp) , Morrison Cohen England. They' re all Federalist members, all confirmed. Michael McConnell to the tenth circuit; John Rogers to the sixth circuit, both members; Ken Jordan and Arthur Schwab and Larry Block. I mean, I could go on and on. In fact, it seems a lot of them were there. So maybe it' s coincidence, the statement of one who said that they had to j oin to be made a j udge, or maybe it' s a coincidence so many have gone through. But, be that as it may, it hasn' t been held against them. Certainly I would not do as some of my colleagues have on the other side, vote against a nominee, as they have a Clinton nominee, because she had dared, in her private practice, to represent a labor union. And so they voted against her because of that. And I, having listened to your testimony, all of you, and Chairman Hatch' s testimony that clients take their or lawyers take their clients and represent them although I would note, j ust so that it doesn' t seem totally one sided, we had one voted against for defending EXT-18-2091-C-000457 007104-001178 Document ID: 0.7.19343.9053-000001 labor unions. We had another one for taking a couple of pro bono cases for the ACLU and so on. SEN. HATCH: Was that Marcia Berzon, who now sits on the ninth circuit court of appeals? SEN. LEAHY: That' s right. She had to wait four or five SEN. HATCH: Well, I was chairman SEN. LEAHY: You were not the one who voted against her. SEN. HATCH: I know. Neither were most everybody else. I' m condemning both sides if they' re going to do that type of reasoning. SEN. LEAHY: So I have we won' t go through the number of the ones that were never given a hearing because their clients weren' t (light?) . But let' s talk about stare decisis. And I' m sure that every one of you would, of course, agree that you would follow stare decisis. I' ve never known a j udicial nominee to say otherwise, even including some who have been, after getting on the bench, were reversed because they did not follow stare decisis. But it' s a hornbook law that you have to. Now, Professor Sutton, in the Federalist Society paper in 1994 and I realize they don' t take any positions in the Federalist Society but you praise the analysis in Justice Clarence Thomas' s concurring opinion in Holder versus Hall, a case that considered Section 2 of the Voting Rights Act, and you specifically praised Justice Thomas for providing persuasive, important reasons to reconsider and overrule prior court precedent broadly interpreting the Voting Rights Act. And you told the Federalist Society that Justice Thomas' s approach goes a long way to developing a conservative theory for doing an unconservative thing, overruling precedent. Why wouldn' t this j ust be conservative j udicial activism? And I know you were expecting the question; I' d like to hear your answer. MR. SUTTON: No, I wasn' t expecting the question. Why wouldn' t Justice Thomas' s position be conservative j udicial activism? SEN. LEAHY: Yeah. MR. SUTTON: Is that the question? Well, I think the point the article made was that the Section 2 cases have led to a very difficult set of interpretations for the court in the voting rights arena. And it' s important to remember that in that Holder versus Hall case, Justice Thomas' s vote was a concurrence. The maj ority I don' t know exactly what the vote was, but I think it was pretty overwhelming ultimately said that you couldn' t bring this type of vote dilution claim under Section 2. Justice Thomas took the view that, while that was an application of several cases of the court, including a case called Allen, I think EXT-18-2091-C-000458 007104-001179 Document ID: 0.7.19343.9053-000001 labor unions. We had another one for taking a couple of pro bono cases for the ACLU and so on. SEN. HATCH: Was that Marcia Berzon, who now sits on the ninth circuit court of appeals? SEN. LEAHY: That' s right. She had to wait four or five SEN. HATCH: Well, I was chairman SEN. LEAHY: You were not the one who voted against her. SEN. HATCH: I know. Neither were most everybody else. I' m condemning both sides if they' re going to do that type of reasoning. SEN. LEAHY: So I have we won' t go through the number of the ones that were never given a hearing because their clients weren' t (light?) . But let' s talk about stare decisis. And I' m sure that every one of you would, of course, agree that you would follow stare decisis. I' ve never known a j udicial nominee to say otherwise, even including some who have been, after getting on the bench, were reversed because they did not follow stare decisis. But it' s a hornbook law that you have to. Now, Professor Sutton, in the Federalist Society paper in 1994 and I realize they don' t take any positions in the Federalist Society but you praise the analysis in Justice Clarence Thomas' s concurring opinion in Holder versus Hall, a case that considered Section 2 of the Voting Rights Act, and you specifically praised Justice Thomas for providing persuasive, important reasons to reconsider and overrule prior court precedent broadly interpreting the Voting Rights Act. And you told the Federalist Society that Justice Thomas' s approach goes a long way to developing a conservative theory for doing an unconservative thing, overruling precedent. Why wouldn' t this j ust be conservative j udicial activism? And I know you were expecting the question; I' d like to hear your answer. MR. SUTTON: No, I wasn' t expecting the question. Why wouldn' t Justice Thomas' s position be conservative j udicial activism? SEN. LEAHY: Yeah. MR. SUTTON: Is that the question? Well, I think the point the article made was that the Section 2 cases have led to a very difficult set of interpretations for the court in the voting rights arena. And it' s important to remember that in that Holder versus Hall case, Justice Thomas' s vote was a concurrence. The maj ority I don' t know exactly what the vote was, but I think it was pretty overwhelming ultimately said that you couldn' t bring this type of vote dilution claim under Section 2. Justice Thomas took the view that, while that was an application of several cases of the court, including a case called Allen, I think EXT-18-2091-C-000458 007104-001179 Document ID: 0.7.19343.9053-000001 from the 1960s, that the Allen case and the case after it hadn' t been correctly decided and that the court shouldn' t have gone down this road trying to determine, as a matter of political theory, what size a voting group should be you know, a county, a city, number of members. The opinion Justice Thomas relied upon was Justice Harlan' s opinion in that. I don' t remember if he was concurring or dissenting. Justice Harlan, of course, is one of the court' s moderates, or at least he' s perceived as a moderate, not unlike Justice Powell. So I don' t think the perspective Justice Thomas had on the case was, you know, out of the mainstream. He was following Justice Harlan. But, I guess more importantly, as a court of appeals j udge, one would not have any option of doing anything of the kind. I mean, whatever the court does with SEN. LEAHY: Not exactly. Within your circuit, within your circuit, you could overrule stare decisis. MR. SUTTON: Oh, not I understand what you' re saying; in other words, circuit precedent. SEN. LEAHY: Yeah, you would not have to I mean, you presume that you will follow it, but you' re not required to follow the precedents of your own circuit. And circuits do change, not often, but circuits either reverse themselves or circuit j udges dissent from positions. I mean, it is not unheard of for a circuit to reverse itself in a subsequent case. three MR. SUTTON: That' s true, although, in a panel decision, a j udge panel doesn' t have that option. SEN. LEAHY: I agree. MR. SUTTON: So the panel, no matter what the prior precedent, no matter how much a j udge disagreed with it, they have to follow it. And then, and only then, if the SEN. LEAHY: Goes up en banc. MR. SUTTON: the losing party chooses to ask the entire court, however many members, to decide whether they should review that prior precedent but, of course, that' s not one j udge' s vote; that' s a maj ority vote of the entire circuit. SEN. LEAHY: That' s true. MR. SUTTON: And I guess the thing that Justice Thomas, I thought, was trying to do was determine what is the hardest thing in this area, neutral principles for not following a precedent. And to me, that was admirable. The great risk, when it comes to stare decisis, is that it becomes result oriented, that someone is simply deciding they personally didn' t like something and so they vote to overrule. The very point of the article, or this section of the article this was the same article, I should point out, that was criticizing the EXT-18-2091-C-000459 007104-001180 Document ID: 0.7.19343.9053-000001 from the 1960s, that the Allen case and the case after it hadn' t been correctly decided and that the court shouldn' t have gone down this road trying to determine, as a matter of political theory, what size a voting group should be you know, a county, a city, number of members. The opinion Justice Thomas relied upon was Justice Harlan' s opinion in that. I don' t remember if he was concurring or dissenting. Justice Harlan, of course, is one of the court' s moderates, or at least he' s perceived as a moderate, not unlike Justice Powell. So I don' t think the perspective Justice Thomas had on the case was, you know, out of the mainstream. He was following Justice Harlan. But, I guess more importantly, as a court of appeals j udge, one would not have any option of doing anything of the kind. I mean, whatever the court does with SEN. LEAHY: Not exactly. Within your circuit, within your circuit, you could overrule stare decisis. MR. SUTTON: Oh, not I understand what you' re saying; in other words, circuit precedent. SEN. LEAHY: Yeah, you would not have to I mean, you presume that you will follow it, but you' re not required to follow the precedents of your own circuit. And circuits do change, not often, but circuits either reverse themselves or circuit j udges dissent from positions. I mean, it is not unheard of for a circuit to reverse itself in a subsequent case. three MR. SUTTON: That' s true, although, in a panel decision, a j udge panel doesn' t have that option. SEN. LEAHY: I agree. MR. SUTTON: So the panel, no matter what the prior precedent, no matter how much a j udge disagreed with it, they have to follow it. And then, and only then, if the SEN. LEAHY: Goes up en banc. MR. SUTTON: the losing party chooses to ask the entire court, however many members, to decide whether they should review that prior precedent but, of course, that' s not one j udge' s vote; that' s a maj ority vote of the entire circuit. SEN. LEAHY: That' s true. MR. SUTTON: And I guess the thing that Justice Thomas, I thought, was trying to do was determine what is the hardest thing in this area, neutral principles for not following a precedent. And to me, that was admirable. The great risk, when it comes to stare decisis, is that it becomes result oriented, that someone is simply deciding they personally didn' t like something and so they vote to overrule. The very point of the article, or this section of the article this was the same article, I should point out, that was criticizing the EXT-18-2091-C-000459 007104-001180 Document ID: 0.7.19343.9053-000001 court for a ruling that hurt disability rights but in this part of the article, I was simply making a point that neutral principles for determining when stare decisis ought to apply and shouldn' t apply are to be applauded; a good idea. SEN. LEAHY: Well, what you said actually there about Justice Thomas was, on the one hand, adherence to precedent is an ostensibly conservative notion, one consistent with protective reliance interest in particular and furthering j udicial restraint in general. But on the other hand, it can' t be that all liberal victories become insulated by stare decisis while conservative ones remain open to question. And I worry that what you' re doing is suggesting a blueprint for overturning court decisions that maybe some of your friends don' t like on civil rights, but here you' re a strong adherent, which is a conservative principle, to stare decisis. Or am I reading too much into your comments? MR. SUTTON: Well, I think perhaps a little bit, Senator. The point I think I was making was the one I would assume everyone would agree with. It would not be a very coherent or fair principle of stare decisis that said we only stick with certain types of precedential rulings and not with others; and simply making the point, it is a conservative doctrine to stick with stare decisis, but it wouldn' t be a legitimate application of stare decisis to not apply it neutrally to all precedents that and, you know, the U. S. Supreme Court has many cases that have given instruction not j ust to the j ustices but to the lower courts as to when one would decide. I mean, the Buck case that we talked about earlier, forced sterilization of handicaps I mean, if ever there were a case calling for an overruling, it would be that case. And there are principles to look at, whether the underlying reasoning SEN. LEAHY: I understand. But we' re also not going to have too many Dred Scott or Plessy v. Ferguson or cases like that. What we' re going to find are some very specific cases following congressional action within the last five years, 10 years or year. And what I' m trying to determine (is) your full sense of stare decisis. Let me tell you why some of this comes through. Have you read the book or aware of the book Judge Noonan wrote, "Narrowing the Nation' s Power"? MR. SUTTON: I have read the book. SEN. LEAHY: It' s a short but really powerful book. I picked it up one day flying back here from Vermont and started reading it on the plane and was still reading it at 2: 00 in the morning. I felt like I was back in law school cramming. But I found it difficult to put down. And he was talking about a number of the reasons why states, in fact, don' t enj oy the sovereign immunity what I consider a very activist Supreme Court has been giving them in the last few years. I was EXT-18-2091-C-000460 007104-001181 Document ID: 0.7.19343.9053-000001 court for a ruling that hurt disability rights but in this part of the article, I was simply making a point that neutral principles for determining when stare decisis ought to apply and shouldn' t apply are to be applauded; a good idea. SEN. LEAHY: Well, what you said actually there about Justice Thomas was, on the one hand, adherence to precedent is an ostensibly conservative notion, one consistent with protective reliance interest in particular and furthering j udicial restraint in general. But on the other hand, it can' t be that all liberal victories become insulated by stare decisis while conservative ones remain open to question. And I worry that what you' re doing is suggesting a blueprint for overturning court decisions that maybe some of your friends don' t like on civil rights, but here you' re a strong adherent, which is a conservative principle, to stare decisis. Or am I reading too much into your comments? MR. SUTTON: Well, I think perhaps a little bit, Senator. The point I think I was making was the one I would assume everyone would agree with. It would not be a very coherent or fair principle of stare decisis that said we only stick with certain types of precedential rulings and not with others; and simply making the point, it is a conservative doctrine to stick with stare decisis, but it wouldn' t be a legitimate application of stare decisis to not apply it neutrally to all precedents that and, you know, the U. S. Supreme Court has many cases that have given instruction not j ust to the j ustices but to the lower courts as to when one would decide. I mean, the Buck case that we talked about earlier, forced sterilization of handicaps I mean, if ever there were a case calling for an overruling, it would be that case. And there are principles to look at, whether the underlying reasoning SEN. LEAHY: I understand. But we' re also not going to have too many Dred Scott or Plessy v. Ferguson or cases like that. What we' re going to find are some very specific cases following congressional action within the last five years, 10 years or year. And what I' m trying to determine (is) your full sense of stare decisis. Let me tell you why some of this comes through. Have you read the book or aware of the book Judge Noonan wrote, "Narrowing the Nation' s Power"? MR. SUTTON: I have read the book. SEN. LEAHY: It' s a short but really powerful book. I picked it up one day flying back here from Vermont and started reading it on the plane and was still reading it at 2: 00 in the morning. I felt like I was back in law school cramming. But I found it difficult to put down. And he was talking about a number of the reasons why states, in fact, don' t enj oy the sovereign immunity what I consider a very activist Supreme Court has been giving them in the last few years. I was EXT-18-2091-C-000460 007104-001181 Document ID: 0.7.19343.9053-000001 persuaded by the conclusion, "The best reason a state should not enj oy immunity from suit is that such treatment is simply unj ust. " Why shouldn' t a state pay its j ust debts? Why shouldn' t it compensate victims for the harm it wrongly causes? Or why should states be subj ect to federal patent law and federal copyright law, federal prohibition to discriminate from employment, but not be accountable if it invade' s somebody else' s patent or copyrights accountable for discriminatory actions of an employer? I mean, has the Supreme Court in these areas copyright, patent law and others have they been, as some have said, a very activist court? Or do you agree or are you very comfortable with the decisions they' ve made?' MR. SUTTON: Well, I can' t say I read Judge Noonan' s book as quickly as you did, but I SEN. LEAHY: No, no, no. I don' t want I read it until 2: 00 in the morning. That doesn' t mean that I would want to do my third year law exam on the book. But these are some of the things that I got out of it. MR. SUTTON: No, I did read the book. I enj oyed the book. I think he makes a forceful case for that position. And I actually think that' s the most difficult position the court has taken in all of these we' ll call them, quote, "federalism" cases. SEN. LEAHY: Supreme Court? Are you comfortable with that direction of the MR. SUTTON: Well, the point I was going to make is I wasn' t involved. That' s the Seminole Tribe case that makes that ruling, that made that decision that the 11th Amendment does apply to states and that the only way Congress can alter that immunity is through Section 5 legislation or spending clause legislation. So I was not involved in arguing Seminole Tribe. The cases I have done have been SEN. LEAHY: Are you comfortable with the decisions that the Supreme Court has followed? MR. SUTTON: Well, I' m comfortable that I would follow them as a court of appeals j udge. Would I have done that as you know, would I have done that as a court of appeals j udge, had that case faced me? Would I have done that in any other position? I don' t know. I' ve never been in the position where I had a chance to do what a good j udge should do and ask yourself, "Okay, you know, what does one side have to say about this? What precedent do they think supports them? What would another side say?" I guess the one part of the decisions that, you know the one part that Judge Noonan doesn' t deal with is his point that, you know, the doctrine that the king can do no wrong is a bad doctrine. I think everyone would agree. And that' s exactly why most democratically EXT-18-2091-C-000461 007104-001182 Document ID: 0.7.19343.9053-000001 persuaded by the conclusion, "The best reason a state should not enj oy immunity from suit is that such treatment is simply unj ust. " Why shouldn' t a state pay its j ust debts? Why shouldn' t it compensate victims for the harm it wrongly causes? Or why should states be subj ect to federal patent law and federal copyright law, federal prohibition to discriminate from employment, but not be accountable if it invade' s somebody else' s patent or copyrights accountable for discriminatory actions of an employer? I mean, has the Supreme Court in these areas copyright, patent law and others have they been, as some have said, a very activist court? Or do you agree or are you very comfortable with the decisions they' ve made?' MR. SUTTON: Well, I can' t say I read Judge Noonan' s book as quickly as you did, but I SEN. LEAHY: No, no, no. I don' t want I read it until 2: 00 in the morning. That doesn' t mean that I would want to do my third year law exam on the book. But these are some of the things that I got out of it. MR. SUTTON: No, I did read the book. I enj oyed the book. I think he makes a forceful case for that position. And I actually think that' s the most difficult position the court has taken in all of these we' ll call them, quote, "federalism" cases. SEN. LEAHY: Supreme Court? Are you comfortable with that direction of the MR. SUTTON: Well, the point I was going to make is I wasn' t involved. That' s the Seminole Tribe case that makes that ruling, that made that decision that the 11th Amendment does apply to states and that the only way Congress can alter that immunity is through Section 5 legislation or spending clause legislation. So I was not involved in arguing Seminole Tribe. The cases I have done have been SEN. LEAHY: Are you comfortable with the decisions that the Supreme Court has followed? MR. SUTTON: Well, I' m comfortable that I would follow them as a court of appeals j udge. Would I have done that as you know, would I have done that as a court of appeals j udge, had that case faced me? Would I have done that in any other position? I don' t know. I' ve never been in the position where I had a chance to do what a good j udge should do and ask yourself, "Okay, you know, what does one side have to say about this? What precedent do they think supports them? What would another side say?" I guess the one part of the decisions that, you know the one part that Judge Noonan doesn' t deal with is his point that, you know, the doctrine that the king can do no wrong is a bad doctrine. I think everyone would agree. And that' s exactly why most democratically EXT-18-2091-C-000461 007104-001182 Document ID: 0.7.19343.9053-000001 elected legislatures have allowed suits against states and the federal government. The one point I would make, to be consistent with him and he doesn' t make it is that if you' re going to say the king can do no wrong and there' s no such thing as sovereign immunity because the term doesn' t appear in the U. S. Constitution, it seems to me appropriate that that would be true with the United States government, because it doesn' t apply there either. And I think that' s what the court has done. Now, maybe the U. S. Supreme Court is wrong in these cases, but I think they have seen some symmetry in money damages cases being brought against Congress, elected SEN. LEAHY: But you understand some of the concerns that many of us up here are suggesting, that the states are suddenly being protected from taking responsibility for discrimination, for example, they or their agencies decide to do for violating other people' s copyrights they or their agencies do. They are protected. I mean, I have to ask myself, were the Civil War amendments, including the 14th, designed as an expansion of federal power and actually an intrusion into state sovereignty? MR. SUTTON: Oh, absolutely. And that' s exactly why the City of Boerne decision and these other cases allow individuals to bring money damages actions against states under the 14th Amendment, because of Section 5 legislation. So I agree entirely with that SEN. LEAHY: But then, if that' s the case, we have also a problem I realize you didn' t decide the cases but here in the Congress, where we might have weeks or months of hearings (to around ?) the ADA and RFRA and ADEA, bringing in evidence in hearings here in Washington but field hearings around the country. And isn' t Congress in a better position to determine facts relevant to the exercise of its Section 5 authority, after all those hearings, than the court is after an hour' s hearing over in the marble hall across the street? MR. SUTTON: Absolutely. And the U. S. Supreme Court has said that you' re in a better position to make those findings. You' re better equipped to gather that kind of evidence. The thing that I think the U. S. Supreme Court has found to be and I think that' s another area Judge Noonan tricky in this area criticized, and reasonable minds can differ on this point is the question of, is it complete deference or virtually complete deference to congressional fact findings? And I think the point the U. S. Supreme Court has made and on this point, I don' t think there is disagreement; I think all nine j ustices, not applying it in a given case, but I think all nine j ustices would agree that one can' t decide that a congressional fact finding is binding on the determination of the validity of Section 5 law, because that would be to delegate the ultimate Marbury power to this branch of government. So I think that principle is a difficult one. EXT-18-2091-C-000462 007104-001183 Document ID: 0.7.19343.9053-000001 elected legislatures have allowed suits against states and the federal government. The one point I would make, to be consistent with him and he doesn' t make it is that if you' re going to say the king can do no wrong and there' s no such thing as sovereign immunity because the term doesn' t appear in the U. S. Constitution, it seems to me appropriate that that would be true with the United States government, because it doesn' t apply there either. And I think that' s what the court has done. Now, maybe the U. S. Supreme Court is wrong in these cases, but I think they have seen some symmetry in money damages cases being brought against Congress, elected SEN. LEAHY: But you understand some of the concerns that many of us up here are suggesting, that the states are suddenly being protected from taking responsibility for discrimination, for example, they or their agencies decide to do for violating other people' s copyrights they or their agencies do. They are protected. I mean, I have to ask myself, were the Civil War amendments, including the 14th, designed as an expansion of federal power and actually an intrusion into state sovereignty? MR. SUTTON: Oh, absolutely. And that' s exactly why the City of Boerne decision and these other cases allow individuals to bring money damages actions against states under the 14th Amendment, because of Section 5 legislation. So I agree entirely with that SEN. LEAHY: But then, if that' s the case, we have also a problem I realize you didn' t decide the cases but here in the Congress, where we might have weeks or months of hearings (to around ?) the ADA and RFRA and ADEA, bringing in evidence in hearings here in Washington but field hearings around the country. And isn' t Congress in a better position to determine facts relevant to the exercise of its Section 5 authority, after all those hearings, than the court is after an hour' s hearing over in the marble hall across the street? MR. SUTTON: Absolutely. And the U. S. Supreme Court has said that you' re in a better position to make those findings. You' re better equipped to gather that kind of evidence. The thing that I think the U. S. Supreme Court has found to be and I think that' s another area Judge Noonan tricky in this area criticized, and reasonable minds can differ on this point is the question of, is it complete deference or virtually complete deference to congressional fact findings? And I think the point the U. S. Supreme Court has made and on this point, I don' t think there is disagreement; I think all nine j ustices, not applying it in a given case, but I think all nine j ustices would agree that one can' t decide that a congressional fact finding is binding on the determination of the validity of Section 5 law, because that would be to delegate the ultimate Marbury power to this branch of government. So I think that principle is a difficult one. EXT-18-2091-C-000462 007104-001183 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: On that of the general principle, I would agree with you. But I believe we also have a court that is totally ignoring the legislative record or saying that it' s virtually irrelevant. That' s what I mean by a very, very activist Supreme Court. MR. SUTTON: Well, the part that, you know, I certainly sympathize if not empathize with you on is these decisions are recent rulings. City of Boerne is 1997 or so. And many of these laws that were reviewed were enacted before the City of Boerne decision. Now, City of Boerne relies on many existing precedents, but it had not dealt with non voting rights, non race discrimination cases; the court had not. And so I certainly understand your position, and I think that' s what Judge Noonan was saying; it doesn' t seem fair to suddenly j udge these laws based on a standard that was developed after the law. And, you know, I think you' re right to be SEN. LEAHY: When I look at Justice Breyer' s dissent in Garrett, things like that, I find it very compelling. But my time is up, Mr. Chairman, and I' ll wait for my next round. SEN. LEAHY: Senator Schumer, we' ll turn to you. SEN. SCHUMER: Thank you, Mr. Chairman. And I want to thank everybody. I know it' s been a long day, but I think it' s an important day as well. So I' m going to ask a few more questions of Professor Sutton. Now, a few years back, as you well know, the Supreme Court invalidated part of the Violence Against Women Act. You said, quote, "unexamined deference to the VAWA fact findings would have created another problem as well: it would give to any Congressional staffer with a laptop the ultimate Marbury power, to have the final say over what amounts to interstate commerce and thus to what represents the limits on Congress' s Commerce Clause powers. " I have to tell you I am troubled by that statement very troubled. Senator Biden and I can both tell you a little bit about the record Congress created on VAWA, because he was the author in the Senate, and I pushed it in the House. It' s not as if we had our counsels sit down at their computers with a couple of beers and make up some congressional findings. It' s not as if we called our legislative directors and said, Hey, could you make up some stuff about how when violent acts are perpetrated against women it affects their ability to participate in interstate commerce? You seem almost contemptuous of the legislative process in your comments. I think you can make a pretty compelling case without actual studies and testimony simply by using logic that violence against women has a real effect on interstate commerce. But that' s not j ust what we did. In passing many of the laws the court has struck down, but in particular in passing VAWA because I was involved minute to minute you can imagine when I read something like this and see the court saying we didn' t have a basis for making the law, how infuriating it is, because they weren' t there we were. And we took testimony from citizens, from academics, from state lawmakers, from state attorneys general, and an EXT-18-2091-C-000463 007104-001184 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: On that of the general principle, I would agree with you. But I believe we also have a court that is totally ignoring the legislative record or saying that it' s virtually irrelevant. That' s what I mean by a very, very activist Supreme Court. MR. SUTTON: Well, the part that, you know, I certainly sympathize if not empathize with you on is these decisions are recent rulings. City of Boerne is 1997 or so. And many of these laws that were reviewed were enacted before the City of Boerne decision. Now, City of Boerne relies on many existing precedents, but it had not dealt with non voting rights, non race discrimination cases; the court had not. And so I certainly understand your position, and I think that' s what Judge Noonan was saying; it doesn' t seem fair to suddenly j udge these laws based on a standard that was developed after the law. And, you know, I think you' re right to be SEN. LEAHY: When I look at Justice Breyer' s dissent in Garrett, things like that, I find it very compelling. But my time is up, Mr. Chairman, and I' ll wait for my next round. SEN. LEAHY: Senator Schumer, we' ll turn to you. SEN. SCHUMER: Thank you, Mr. Chairman. And I want to thank everybody. I know it' s been a long day, but I think it' s an important day as well. So I' m going to ask a few more questions of Professor Sutton. Now, a few years back, as you well know, the Supreme Court invalidated part of the Violence Against Women Act. You said, quote, "unexamined deference to the VAWA fact findings would have created another problem as well: it would give to any Congressional staffer with a laptop the ultimate Marbury power, to have the final say over what amounts to interstate commerce and thus to what represents the limits on Congress' s Commerce Clause powers. " I have to tell you I am troubled by that statement very troubled. Senator Biden and I can both tell you a little bit about the record Congress created on VAWA, because he was the author in the Senate, and I pushed it in the House. It' s not as if we had our counsels sit down at their computers with a couple of beers and make up some congressional findings. It' s not as if we called our legislative directors and said, Hey, could you make up some stuff about how when violent acts are perpetrated against women it affects their ability to participate in interstate commerce? You seem almost contemptuous of the legislative process in your comments. I think you can make a pretty compelling case without actual studies and testimony simply by using logic that violence against women has a real effect on interstate commerce. But that' s not j ust what we did. In passing many of the laws the court has struck down, but in particular in passing VAWA because I was involved minute to minute you can imagine when I read something like this and see the court saying we didn' t have a basis for making the law, how infuriating it is, because they weren' t there we were. And we took testimony from citizens, from academics, from state lawmakers, from state attorneys general, and an EXT-18-2091-C-000463 007104-001184 Document ID: 0.7.19343.9053-000001 array of other interested parties. It took us years to formulate it, to change it, to test it, to see where it was right and where it was wrong in the legislative process. We solicited input and received a green light from states on the question of whether there was a need for the national legislature to act. There were VAWA findings, as I presume you know, were voluminous. I am not sure what more the five j ustices on the Supreme Court thought we needed to do. So I wanted to ask you this: Why did you think the findings underlying VAWA were not enough? What more did Congress need to do to make the record that violence against women has an impact on interstate commerce? And if the courts should not give unexamined deference to Congress' s findings, what should the standard be? MR. SUTTON: Thank you, senator. I do appreciate having a chance to talk about that case and that brief. The first point I would make, which I would hope you would respect my making it, is it wasn' t a brief on my behalf it was a brief on behalf of a client, and I was doing my best to represent them. And I can assure you I would have been happy to represent the other side in that case. And as a Court of Appeals j udge I would of course follow the U. S. Supreme Court, whether it' s the Morrison case as is, or the case is reversed. Now, in terms of that statement, I agree with your criticism of it in part, and then I disagree with it in part. The part with which I agree the line is too rhetorical. I don' t think it actually did advance my client' s cause, and I regret that. I do think it is a little too rhetorical for good advocacy. The part with which I disagree in terms of it being a reasonable position for the state in that case to argue was this underlying issue I was j ust discussing with Senator Leahy, and that' s the issue of the court has said and they said it again in Morrison, and they said it forever, of course there' s a great presumption of constitutionality to federal statutes, and even more to the fact finding capacity to this body when it comes to determining whether there' s a social problem, whether that problem relates to interstate commerce, whether that problem relates to underlying constitutional violations or discrimination. And I think the Court has correctly said that throughout. I think the part I slightly disagree with, as suggested in your question though, is that it' s somehow wrong to suggest that there' s some limit that deference that the deference in other words is complete. I he was the primary think of in the Morrison case Justice Souder dissenter, and Justice Breyer j oined as part of his dissent I can' t tell you the footnote number, but there is a footnote where Chief Justice Rehnquist, who wrote the maj ority opinion and Justice Souder are discussing this deference point. And Justice Souder concedes that the U. S. Supreme Court does have a role all nine members are agreeing they do have a role in ensuring that the evidence that this body gathered did in fact concern interstate commerce. And so I think that principle is not only within the mainstream I am not aware of a single j ustice that disagreed with it. And then I think what you are stuck with in Morrison EXT-18-2091-C-000464 007104-001185 Document ID: 0.7.19343.9053-000001 array of other interested parties. It took us years to formulate it, to change it, to test it, to see where it was right and where it was wrong in the legislative process. We solicited input and received a green light from states on the question of whether there was a need for the national legislature to act. There were VAWA findings, as I presume you know, were voluminous. I am not sure what more the five j ustices on the Supreme Court thought we needed to do. So I wanted to ask you this: Why did you think the findings underlying VAWA were not enough? What more did Congress need to do to make the record that violence against women has an impact on interstate commerce? And if the courts should not give unexamined deference to Congress' s findings, what should the standard be? MR. SUTTON: Thank you, senator. I do appreciate having a chance to talk about that case and that brief. The first point I would make, which I would hope you would respect my making it, is it wasn' t a brief on my behalf it was a brief on behalf of a client, and I was doing my best to represent them. And I can assure you I would have been happy to represent the other side in that case. And as a Court of Appeals j udge I would of course follow the U. S. Supreme Court, whether it' s the Morrison case as is, or the case is reversed. Now, in terms of that statement, I agree with your criticism of it in part, and then I disagree with it in part. The part with which I agree the line is too rhetorical. I don' t think it actually did advance my client' s cause, and I regret that. I do think it is a little too rhetorical for good advocacy. The part with which I disagree in terms of it being a reasonable position for the state in that case to argue was this underlying issue I was j ust discussing with Senator Leahy, and that' s the issue of the court has said and they said it again in Morrison, and they said it forever, of course there' s a great presumption of constitutionality to federal statutes, and even more to the fact finding capacity to this body when it comes to determining whether there' s a social problem, whether that problem relates to interstate commerce, whether that problem relates to underlying constitutional violations or discrimination. And I think the Court has correctly said that throughout. I think the part I slightly disagree with, as suggested in your question though, is that it' s somehow wrong to suggest that there' s some limit that deference that the deference in other words is complete. I he was the primary think of in the Morrison case Justice Souder dissenter, and Justice Breyer j oined as part of his dissent I can' t tell you the footnote number, but there is a footnote where Chief Justice Rehnquist, who wrote the maj ority opinion and Justice Souder are discussing this deference point. And Justice Souder concedes that the U. S. Supreme Court does have a role all nine members are agreeing they do have a role in ensuring that the evidence that this body gathered did in fact concern interstate commerce. And so I think that principle is not only within the mainstream I am not aware of a single j ustice that disagreed with it. And then I think what you are stuck with in Morrison EXT-18-2091-C-000464 007104-001185 Document ID: 0.7.19343.9053-000001 is a terribly challenging, excruciatingly difficult application of that principle SEN. SCHUMER: Can I j ust I want to let you finish, but did you disagree that the evidence we found was dispositive? You may disagree with it, but was directed at interstate commerce? We didn' t say, Count the number of trees in Montana, and that j ustifies I mean, it was all directed at interstate commerce. We made a case about interstate commerce. MR. SUTTON: I couldn' t agree more that that' s what you were trying to do. I agree. SEN. SCHUMER: Well, then continue. You j ust said that there were limits. But here there' s no dispute that we address the issue of interstate commerce. So explain the ruling to me. Explain what you think here. Did you disagree with how we did it? Did we not do it enough? Was it or is it really that somehow and this would be different I think than the holding in Morrison that you j ust didn' t think this affected interstate commerce, period, and it didn' t matter if we found that it did your view would supplant ours? MR. SUTTON: Well, when writing this brief for this client, again as an advocate, the issue for me wasn' t agreeing or disagreeing that wasn' t why I was hired to tell them SEN. SCHUMER: I wonder what you think. MR. SUTTON: Well, that was not an exercise I went through, and I have not idea, senator, what I would have done had that been a case I had been a Court of Appeals j udge on SEN. SCHUMER: But do you think we tried to address interstate commerce when we made the findings in terms of VAWA or not? MR. SUTTON: Oh, of course you were I repeat what I said earlier: you were trying to reach you were trying to establish a factual record that established that the terrible results of gender related crimes, gender violence related crimes, have impacts on interstate commerce. And nothing in that brief said Congress wasn' t trying to do that. What the brief' s made the point, again on behalf of a client was that the theory of the Congress' s views that it was related to interstate commerce was a theory that would apply to all family law matters, all criminal law issues. And while matters someone could disagree with that and in fact I am sure reasonable minds would disagree with it I can' t imagine not making that argument as an advocate on behalf of that client. I mean, the client was entitled to the best representation SEN. SCHUMER: In all due respect, aside from advocating for the client, which you are seeming you know, you are sort of you' re saying all this work I did and everyone, you know, it' s almost like we are in 1984 here, because your views on federalism are not j ust advocating for clients. You become a leading you write articles. The EXT-18-2091-C-000465 007104-001186 Document ID: 0.7.19343.9053-000001 is a terribly challenging, excruciatingly difficult application of that principle SEN. SCHUMER: Can I j ust I want to let you finish, but did you disagree that the evidence we found was dispositive? You may disagree with it, but was directed at interstate commerce? We didn' t say, Count the number of trees in Montana, and that j ustifies I mean, it was all directed at interstate commerce. We made a case about interstate commerce. MR. SUTTON: I couldn' t agree more that that' s what you were trying to do. I agree. SEN. SCHUMER: Well, then continue. You j ust said that there were limits. But here there' s no dispute that we address the issue of interstate commerce. So explain the ruling to me. Explain what you think here. Did you disagree with how we did it? Did we not do it enough? Was it or is it really that somehow and this would be different I think than the holding in Morrison that you j ust didn' t think this affected interstate commerce, period, and it didn' t matter if we found that it did your view would supplant ours? MR. SUTTON: Well, when writing this brief for this client, again as an advocate, the issue for me wasn' t agreeing or disagreeing that wasn' t why I was hired to tell them SEN. SCHUMER: I wonder what you think. MR. SUTTON: Well, that was not an exercise I went through, and I have not idea, senator, what I would have done had that been a case I had been a Court of Appeals j udge on SEN. SCHUMER: But do you think we tried to address interstate commerce when we made the findings in terms of VAWA or not? MR. SUTTON: Oh, of course you were I repeat what I said earlier: you were trying to reach you were trying to establish a factual record that established that the terrible results of gender related crimes, gender violence related crimes, have impacts on interstate commerce. And nothing in that brief said Congress wasn' t trying to do that. What the brief' s made the point, again on behalf of a client was that the theory of the Congress' s views that it was related to interstate commerce was a theory that would apply to all family law matters, all criminal law issues. And while matters someone could disagree with that and in fact I am sure reasonable minds would disagree with it I can' t imagine not making that argument as an advocate on behalf of that client. I mean, the client was entitled to the best representation SEN. SCHUMER: In all due respect, aside from advocating for the client, which you are seeming you know, you are sort of you' re saying all this work I did and everyone, you know, it' s almost like we are in 1984 here, because your views on federalism are not j ust advocating for clients. You become a leading you write articles. The EXT-18-2091-C-000465 007104-001186 Document ID: 0.7.19343.9053-000001 things you advocate the pro bono cases are not in keeping with what your general activities and beliefs are most many of them. This is. I want to read from an article you wrote not advocating for a client, advocating for yourself. This is from the Review of Federalism and Separation of Powers Law. And let me read it, because it says the exact same thing, and these are your views, signed by you. And I think you are hiding behind the client thing, and we are not having a real debate on the issues here. (Applause. ) Please, that' s not fair. Because everyone knows how you feel on this, and you know how you feel on this. That doesn' t mean as a j udge maybe you couldn' t change. But these are not j ust views you advocated for a client. These are deeply held views by you, I would believe, from looking at the whole record. And it would be awfully hard to disprove it. Here' s what you wrote: "The necessary stacking of one inference on top of another required to connect an interstate rape to an act of interstate commerce had no fathomable limit, the court held. Once accepted, only the most unimaginative lawyer would lack the resources to contend that all matter of in state activities will have the rippling effects that ultimately affect commerce. Such an approach would have a disfiguring effect on the constitutional balance between states and national government, and would indeed make the Tenth Amendment but a truism, and would ultimately make irrelevant every other delegation of power to act under Article I. Unexamined deference to the VAWA fact findings would have created another problem as well" and here' s the regretful phrase: "It would give to any congressional staffer with a laptop the ultimate Marbury power to have a final say over what amounts to interstate commerce. " You may have said that in the brief I don' t know. But you said it separately under your own pen, under your own article. So you can' t say, Well, you were saying that j ust on behalf of a client. Those at one point I don' t know if they still are are your views. Are they still? MR. SUTTON: Senator, I do think a lawyer who has represented a client does have a prerogative to write an article this actually was not an article about this case it was an article about several decisions saying that the Court got it right when it ruled on behalf of your client. Obviously the opposite was not true. I did not have the alternative to say publicly that the Court got it wrong after arguing on behalf of the state in that particular case. And my ethical duty would have precluded that. But I want to go back to what I was trying to say earlier. No one disagrees on the Supreme Court anyway SEN. SCHUMER: Wait. Can I j ust again, because there' s a lot of sophistry here do you believe that unexamined deference to VAWA would give any congressional staffer with a laptop the ultimate Marbury power? To you, Jeffrey Sutton MR. SUTTON: I have not SEN. SCHUMER: Not as a representative not as a lawyer representing someone, but as a professor, as somebody who has written articles, as somebody who was well known to have a strong view on these issues. EXT-18-2091-C-000466 007104-001187 Document ID: 0.7.19343.9053-000001 things you advocate the pro bono cases are not in keeping with what your general activities and beliefs are most many of them. This is. I want to read from an article you wrote not advocating for a client, advocating for yourself. This is from the Review of Federalism and Separation of Powers Law. And let me read it, because it says the exact same thing, and these are your views, signed by you. And I think you are hiding behind the client thing, and we are not having a real debate on the issues here. (Applause. ) Please, that' s not fair. Because everyone knows how you feel on this, and you know how you feel on this. That doesn' t mean as a j udge maybe you couldn' t change. But these are not j ust views you advocated for a client. These are deeply held views by you, I would believe, from looking at the whole record. And it would be awfully hard to disprove it. Here' s what you wrote: "The necessary stacking of one inference on top of another required to connect an interstate rape to an act of interstate commerce had no fathomable limit, the court held. Once accepted, only the most unimaginative lawyer would lack the resources to contend that all matter of in state activities will have the rippling effects that ultimately affect commerce. Such an approach would have a disfiguring effect on the constitutional balance between states and national government, and would indeed make the Tenth Amendment but a truism, and would ultimately make irrelevant every other delegation of power to act under Article I. Unexamined deference to the VAWA fact findings would have created another problem as well" and here' s the regretful phrase: "It would give to any congressional staffer with a laptop the ultimate Marbury power to have a final say over what amounts to interstate commerce. " You may have said that in the brief I don' t know. But you said it separately under your own pen, under your own article. So you can' t say, Well, you were saying that j ust on behalf of a client. Those at one point I don' t know if they still are are your views. Are they still? MR. SUTTON: Senator, I do think a lawyer who has represented a client does have a prerogative to write an article this actually was not an article about this case it was an article about several decisions saying that the Court got it right when it ruled on behalf of your client. Obviously the opposite was not true. I did not have the alternative to say publicly that the Court got it wrong after arguing on behalf of the state in that particular case. And my ethical duty would have precluded that. But I want to go back to what I was trying to say earlier. No one disagrees on the Supreme Court anyway SEN. SCHUMER: Wait. Can I j ust again, because there' s a lot of sophistry here do you believe that unexamined deference to VAWA would give any congressional staffer with a laptop the ultimate Marbury power? To you, Jeffrey Sutton MR. SUTTON: I have not SEN. SCHUMER: Not as a representative not as a lawyer representing someone, but as a professor, as somebody who has written articles, as somebody who was well known to have a strong view on these issues. EXT-18-2091-C-000466 007104-001187 Document ID: 0.7.19343.9053-000001 MR. SUTTON: Well, as I said earlier, I have no idea what I would do as a j udge, because I have no idea what a j udge you asked what I believed, and I' m telling you SEN. SCHUMER: I didn' t ask what you' d do as a j udge. I asked what you as Professor Jeffrey Sutton, not representing a client, do you believe this phrase or not, this? I mean you know, I' ve written things. I' ve changed my mind later. So I' m not MR. SUTTON: Right. I think it' s very consistent with something I said earlier today, and I am not sure you were here at the time is, yes, I do believe in the principle of federalism in the sense that there is a principle that says on a separation of powers basis there are checks and balances horizontally among the federal branches of government, this body, the U. S. Supreme Court and the president, and vertically between the national government and the states. That' s a principle that' s embedded in the Constitution, and there are countless U. S. Supreme Court cases that recognize it. And the statement you have j ust quoted makes the point and this is what I perceive the Court is trying to do now, maybe one could disagree that this is what they did but is making the point that as long as that court has the Marbury power and perhaps people could disagree with it but as long as they have that power, they have not j ust the power but the duty to review even the most exhaustive fact findings of this body. And the reason I' m not comfortable telling you my view on whether those findings relate to interstate commerce or not is I am j ust not familiar enough to say that. That' s j ust not something I could tell you. SEN. SCHUMER: Could you say that again? I you' re not familiar enough with what? MR. SUTTON: With all of the issues in the case to make that point. I was hired by a client to make one side of the argument. I' ve never had the opportunity to sit back and say obj ectively, What would you do, Jeff, with this particular issue? viewpoint SEN. SCHUMER: You wrote this in an article professing a your viewpoint. MR. SUTTON: And I' m j ust telling principle that the national government, as do have limitations. And I would say that had I been asked by the other side in that assure you I would have done it you that stands for the broad as its powers are, they the broader point, senators, case to argue that case, I can SEN. SCHUMER: That' s not what I am asking. And please don' t keep bringing that up. We know that you are a very successful, persuasive advocate, and we know you have advocated in different positions. You wrote an article where you said the exact same thing as in the brief. You first told me it' s j ust because you were advocating for a client. Now I have an article here where you wrote it again. You didn' t say, "As I argued in, " or "As was argued in" you professed the belief as yours. And now you' re saying you are not giving me an answer whether you believed it at the time and still believe it now. EXT-18-2091-C-000467 007104-001188 Document ID: 0.7.19343.9053-000001 MR. SUTTON: Well, as I said earlier, I have no idea what I would do as a j udge, because I have no idea what a j udge you asked what I believed, and I' m telling you SEN. SCHUMER: I didn' t ask what you' d do as a j udge. I asked what you as Professor Jeffrey Sutton, not representing a client, do you believe this phrase or not, this? I mean you know, I' ve written things. I' ve changed my mind later. So I' m not MR. SUTTON: Right. I think it' s very consistent with something I said earlier today, and I am not sure you were here at the time is, yes, I do believe in the principle of federalism in the sense that there is a principle that says on a separation of powers basis there are checks and balances horizontally among the federal branches of government, this body, the U. S. Supreme Court and the president, and vertically between the national government and the states. That' s a principle that' s embedded in the Constitution, and there are countless U. S. Supreme Court cases that recognize it. And the statement you have j ust quoted makes the point and this is what I perceive the Court is trying to do now, maybe one could disagree that this is what they did but is making the point that as long as that court has the Marbury power and perhaps people could disagree with it but as long as they have that power, they have not j ust the power but the duty to review even the most exhaustive fact findings of this body. And the reason I' m not comfortable telling you my view on whether those findings relate to interstate commerce or not is I am j ust not familiar enough to say that. That' s j ust not something I could tell you. SEN. SCHUMER: Could you say that again? I you' re not familiar enough with what? MR. SUTTON: With all of the issues in the case to make that point. I was hired by a client to make one side of the argument. I' ve never had the opportunity to sit back and say obj ectively, What would you do, Jeff, with this particular issue? viewpoint SEN. SCHUMER: You wrote this in an article professing a your viewpoint. MR. SUTTON: And I' m j ust telling principle that the national government, as do have limitations. And I would say that had I been asked by the other side in that assure you I would have done it you that stands for the broad as its powers are, they the broader point, senators, case to argue that case, I can SEN. SCHUMER: That' s not what I am asking. And please don' t keep bringing that up. We know that you are a very successful, persuasive advocate, and we know you have advocated in different positions. You wrote an article where you said the exact same thing as in the brief. You first told me it' s j ust because you were advocating for a client. Now I have an article here where you wrote it again. You didn' t say, "As I argued in, " or "As was argued in" you professed the belief as yours. And now you' re saying you are not giving me an answer whether you believed it at the time and still believe it now. EXT-18-2091-C-000467 007104-001188 Document ID: 0.7.19343.9053-000001 MR. SUTTON: But I do think I did answer SEN. SCHUMER: I didn' t ask you what you' d do as a j udge. I know as a j udge you would have to examine both sides. I understand that. My knowledge isn' t as great as yours in terms of j urisprudence, but I know that much. But I also know that I feel very strongly that it' s my obligation and your responsibility to let people know your views, because they will influence how you are as a j udge. I know that there are a lot of people who say, Oh, no, every j udge will make the same decision. But then we would have all 9 nothing decisions, and every one of the circuits would be the same. And in terms of studies, those appointed by Democratic presidents and those appointed by Republican presidents would come out the same not the same way, but in the same percentage way. And we all know that' s not true. And if I' ve tried to do anything in the last year it' s to break through the shibboleth that philosophy doesn' t matter. And, by the way, if philosophy didn' t matter, the White House would send us a far broader panoply of j udges in terms of their views than they do without any question. And so we should be discussing this. We should be discussing this issue honestly not hiding behind representation, not hiding and saying, Well, I don' t know what I think. Most of us on this panel, I believe, know you know what you think on this. But you refuse to discuss it, even though you wrote an article saying it. MR. SUTTON: Well, again first of all, senator, I respect your views on this and I have been paying attention to them the last couple of years, and I certainly understand the seriousness of the issue. I guess I feel like I disagree with what you' re saying in terms of my refusing to answer the question about this article. I did write the article. It was obviously a recycling of the brief as proved by the fact that quotes the exact language of the brief. I do think there was a lawyer' s prerogative SEN. SCHUMER: Quoted as your own, not representing the client. MR. SUTTON: Exactly. I am making the point what the lawyer has a prerogative, having argued the case, to say that the court got it right. That' s exactly what I did. And I can' t tell you that that' s the right decision. How could I possibly say that to you, given how much respect I have for the role of a Court of Appeals j udge and what their j ob is when it comes to deciding what they would do with a given case. And I think it would be j ust the opposite of what that j udge' s role is to say, Oh, I could tell you what I would do with that kind of case. I couldn' t tell you that. SEN. SCHUMER: Could I ask you to do this within the week? Could I ask you to review the Congress' s findings in VAWA and tell us whether you agree you personally, not representing anyone whether you agree with the maj ority or minority' s findings, or someplace in between? SEN. HATCH: Well, let me j ust interrupt. Look, I also was a prime sponsor in the Senate. It was the Biden Hatch bill. Those materials are so voluminous. Now, come on, let' s quit asking what he is going to do as a j udge or what he believes. Let' s talk in terms of EXT-18-2091-C-000468 007104-001189 Document ID: 0.7.19343.9053-000001 MR. SUTTON: But I do think I did answer SEN. SCHUMER: I didn' t ask you what you' d do as a j udge. I know as a j udge you would have to examine both sides. I understand that. My knowledge isn' t as great as yours in terms of j urisprudence, but I know that much. But I also know that I feel very strongly that it' s my obligation and your responsibility to let people know your views, because they will influence how you are as a j udge. I know that there are a lot of people who say, Oh, no, every j udge will make the same decision. But then we would have all 9 nothing decisions, and every one of the circuits would be the same. And in terms of studies, those appointed by Democratic presidents and those appointed by Republican presidents would come out the same not the same way, but in the same percentage way. And we all know that' s not true. And if I' ve tried to do anything in the last year it' s to break through the shibboleth that philosophy doesn' t matter. And, by the way, if philosophy didn' t matter, the White House would send us a far broader panoply of j udges in terms of their views than they do without any question. And so we should be discussing this. We should be discussing this issue honestly not hiding behind representation, not hiding and saying, Well, I don' t know what I think. Most of us on this panel, I believe, know you know what you think on this. But you refuse to discuss it, even though you wrote an article saying it. MR. SUTTON: Well, again first of all, senator, I respect your views on this and I have been paying attention to them the last couple of years, and I certainly understand the seriousness of the issue. I guess I feel like I disagree with what you' re saying in terms of my refusing to answer the question about this article. I did write the article. It was obviously a recycling of the brief as proved by the fact that quotes the exact language of the brief. I do think there was a lawyer' s prerogative SEN. SCHUMER: Quoted as your own, not representing the client. MR. SUTTON: Exactly. I am making the point what the lawyer has a prerogative, having argued the case, to say that the court got it right. That' s exactly what I did. And I can' t tell you that that' s the right decision. How could I possibly say that to you, given how much respect I have for the role of a Court of Appeals j udge and what their j ob is when it comes to deciding what they would do with a given case. And I think it would be j ust the opposite of what that j udge' s role is to say, Oh, I could tell you what I would do with that kind of case. I couldn' t tell you that. SEN. SCHUMER: Could I ask you to do this within the week? Could I ask you to review the Congress' s findings in VAWA and tell us whether you agree you personally, not representing anyone whether you agree with the maj ority or minority' s findings, or someplace in between? SEN. HATCH: Well, let me j ust interrupt. Look, I also was a prime sponsor in the Senate. It was the Biden Hatch bill. Those materials are so voluminous. Now, come on, let' s quit asking what he is going to do as a j udge or what he believes. Let' s talk in terms of EXT-18-2091-C-000468 007104-001189 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: Well, Mr. Chairman, in all due respect, of course I want to know what he' s going to do as a j udge. So does everybody. SEN. HATCH: Well, I agree with that. SEN. SCHUMER: It' s not a it' s not some kind of mathematical formula that every j udge j ust depending on their SEN. HATCH: SEN. SCHUMER: SEN. HATCH: You seem to want a forgone conclusion from him. No, I don' t. I want to get And he' s not willing to give that. SEN. SCHUMER: I want to know his views, not what his client' s views are and not how persuasive an advocate he is. SEN. HATCH: No, but he' s making the point that his views are irrelevant when he becomes a j udge. SEN. SCHUMER: And I don' t think anyone really believes that or (applause) SEN. HATCH: That may be, but that' s what now, let' s understand something. I' m going to clear this room something that I' ve made possible for everybody, if we continue to have these outbursts. First of all, it' s not fair to anybody. It' s not fair to the witness! It' s not fair to the senators up here. We' re supposed to have some decorum here, and I expect this proceeding to be treated with dignity. Now, let' s j ust remember that. I respect all of you, but I want no more outbursts. SEN. SCHUMER: And I say in all due respect it doesn' t help my case when you clap either. So SEN. LEAHY: If I might on that, Mr. Chairman, I' ve served as chairman of numerous committees and subcommittee, as have you, and we must have decorum. I know that feelings are very strong here. I agree with the feelings of many who have expressed it here, but we also have three witnesses who are answering questions under oath, senators who are working to ask them. And the only way we are going to do this is through decorum. So I will support the chairman in maintaining the decorum, and especially as I said before I appreciate the chairman taking the recommendation of myself and others to move down here so that everybody could be accommodated. SEN. HATCH: Thank you. I appreciate that. SEN. SCHUMER: Mr. Chairman, my time you' ve been very generous in time. And I would still ask if he decides he wishes to, to ask Professor Sutton to let me know his views on whether the maj ority was correct in finding that Congress in its findings didn' t really j ustify a reach into interstate commerce in Morrison. You don' t have to do that now. I' ll ask you to do it in a written question. EXT-18-2091-C-000469 007104-001190 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: Well, Mr. Chairman, in all due respect, of course I want to know what he' s going to do as a j udge. So does everybody. SEN. HATCH: Well, I agree with that. SEN. SCHUMER: It' s not a it' s not some kind of mathematical formula that every j udge j ust depending on their SEN. HATCH: SEN. SCHUMER: SEN. HATCH: You seem to want a forgone conclusion from him. No, I don' t. I want to get And he' s not willing to give that. SEN. SCHUMER: I want to know his views, not what his client' s views are and not how persuasive an advocate he is. SEN. HATCH: No, but he' s making the point that his views are irrelevant when he becomes a j udge. SEN. SCHUMER: And I don' t think anyone really believes that or (applause) SEN. HATCH: That may be, but that' s what now, let' s understand something. I' m going to clear this room something that I' ve made possible for everybody, if we continue to have these outbursts. First of all, it' s not fair to anybody. It' s not fair to the witness! It' s not fair to the senators up here. We' re supposed to have some decorum here, and I expect this proceeding to be treated with dignity. Now, let' s j ust remember that. I respect all of you, but I want no more outbursts. SEN. SCHUMER: And I say in all due respect it doesn' t help my case when you clap either. So SEN. LEAHY: If I might on that, Mr. Chairman, I' ve served as chairman of numerous committees and subcommittee, as have you, and we must have decorum. I know that feelings are very strong here. I agree with the feelings of many who have expressed it here, but we also have three witnesses who are answering questions under oath, senators who are working to ask them. And the only way we are going to do this is through decorum. So I will support the chairman in maintaining the decorum, and especially as I said before I appreciate the chairman taking the recommendation of myself and others to move down here so that everybody could be accommodated. SEN. HATCH: Thank you. I appreciate that. SEN. SCHUMER: Mr. Chairman, my time you' ve been very generous in time. And I would still ask if he decides he wishes to, to ask Professor Sutton to let me know his views on whether the maj ority was correct in finding that Congress in its findings didn' t really j ustify a reach into interstate commerce in Morrison. You don' t have to do that now. I' ll ask you to do it in a written question. EXT-18-2091-C-000469 007104-001190 Document ID: 0.7.19343.9053-000001 Before I conclude, Mr. Chairman, I have some more questions, and I know it' s been a long day and I do want to thank you, Mr. Sutton. My questions are strong, but they' re not personal, and they are heart felt, as your answers are, and I respect that. MR. SUTTON: I believe that. SEN. SCHUMER: And I j ust Mr. Chairman, I have other go to two other places. I have more questions of Mr. Sutton. And I haven' t even begun to ask questions of either Mr. Roberts or Judge Cook. And so I would simply ask that we at least come back at another point in time and be able to ask I think it would not be fair to us if we didn' t get a chance to ask Mr. Roberts and Judge Cook questions at another time. SEN. HATCH: Well, unfortunately I can' t do this. In other words, this is the hearing. And, frankly, we' ll keep the record open for questions, and Senator Leahy has already asked that we make sure we get a transcript of the record so that more questions can be asked. But, no, we are going to finish the hearing today. And I' d hope that we could accommodate you to come back and ask any further questions you' d like. SEN. SCHUMER: I you know, Mr. I am going to appeal the ruling of the chair. I don' t think it' s fair we' ve had these questions are not frivolous SEN. HATCH: No, they' re not. SEN. SCHUMER: And I would appeal the ruling of the chair and ask for a roll call vote that we finish with Professor Sutton today as long as it takes, but we come back and ask both Mr. Roberts and Judge Cook questions SEN. HATCH: It' s not fair to them. I am prepared to sit here as long as it takes within reason. I mean, I think there' s a point where you have to call the end of the hearing. But this is today' s hearing. These people have sat here patiently now for how many hours is it? since 9: 30 this morning. And we are going to finish this today. And I noticed that Mr. Sutton' s three kids they' re they are the best kids I have ever seen in a (laughter) they haven' t raised a fuss here at all. I j ust want to compliment your wife and you for the wonderful children you have. I want to be fair, but on the other hand, Mr. Roberts has been waiting 11 years. SEN. SCHUMER: In all due respect, Mr. Chairman SEN. HATCH: The other two have been waiting almost two years. I think it' s up to us to ask the questions here today, and I am providing the time to do so. And I am also providing an additional time to ask written questions reasonable time, but not an unreasonable time. We' re going to finish this today. EXT-18-2091-C-000470 007104-001191 Document ID: 0.7.19343.9053-000001 Before I conclude, Mr. Chairman, I have some more questions, and I know it' s been a long day and I do want to thank you, Mr. Sutton. My questions are strong, but they' re not personal, and they are heart felt, as your answers are, and I respect that. MR. SUTTON: I believe that. SEN. SCHUMER: And I j ust Mr. Chairman, I have other go to two other places. I have more questions of Mr. Sutton. And I haven' t even begun to ask questions of either Mr. Roberts or Judge Cook. And so I would simply ask that we at least come back at another point in time and be able to ask I think it would not be fair to us if we didn' t get a chance to ask Mr. Roberts and Judge Cook questions at another time. SEN. HATCH: Well, unfortunately I can' t do this. In other words, this is the hearing. And, frankly, we' ll keep the record open for questions, and Senator Leahy has already asked that we make sure we get a transcript of the record so that more questions can be asked. But, no, we are going to finish the hearing today. And I' d hope that we could accommodate you to come back and ask any further questions you' d like. SEN. SCHUMER: I you know, Mr. I am going to appeal the ruling of the chair. I don' t think it' s fair we' ve had these questions are not frivolous SEN. HATCH: No, they' re not. SEN. SCHUMER: And I would appeal the ruling of the chair and ask for a roll call vote that we finish with Professor Sutton today as long as it takes, but we come back and ask both Mr. Roberts and Judge Cook questions SEN. HATCH: It' s not fair to them. I am prepared to sit here as long as it takes within reason. I mean, I think there' s a point where you have to call the end of the hearing. But this is today' s hearing. These people have sat here patiently now for how many hours is it? since 9: 30 this morning. And we are going to finish this today. And I noticed that Mr. Sutton' s three kids they' re they are the best kids I have ever seen in a (laughter) they haven' t raised a fuss here at all. I j ust want to compliment your wife and you for the wonderful children you have. I want to be fair, but on the other hand, Mr. Roberts has been waiting 11 years. SEN. SCHUMER: In all due respect, Mr. Chairman SEN. HATCH: The other two have been waiting almost two years. I think it' s up to us to ask the questions here today, and I am providing the time to do so. And I am also providing an additional time to ask written questions reasonable time, but not an unreasonable time. We' re going to finish this today. EXT-18-2091-C-000470 007104-001191 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: In all due respect, we are having a third hearing on Pickering, we are having a second hearing on Owens. The ones who we defeated, they get all the hearing time you want to change the record, but we don' t have a full opportunity with Mr. Roberts to the second most important court in the land, with Judge Cook in terms of a circuit, the Sixth Circuit SEN. HATCH: SEN. SCHUMER: But you do which has been kept open for a long period of time SEN. HATCH: SEN. SCHUMER: I' m not prepared to leave. It is not. It is not fair. Well, it is not fair SEN. HATCH: When you can come back, senator, for your further questions? I' ll be happy to be here. SEN. SCHUMER: I can come back later this evening, and but I don' t know if my colleagues can. And I have never seen this kind of thing happen. We have never had three Court of Appeals j udges on one panel. We know that Professor Sutton in particular would take a great deal of questioning. SEN. HATCH: fair. SEN. SCHUMER: I think it' s And he has. And I don' t think it' s right. I don' t think it' s SEN. HATCH: Senator, if you need more time, take it right now. I' ll be glad to give it to you. But the point is I am not going to I am not going to I am not going to mistreat these people either. SEN. SCHUMER: Well SEN. HATCH: I mean, my gosh, they have been waiting for two years Mr. Roberts 11 years. We' ve made them available. They' ve been here since 9: 30 this morning. And I think it' s only fair that if you have questions you ask them. SEN. SCHUMER: Okay. SEN. HATCH: Now, you might have a schedule that' s different I can' t help that. I mean, there' s a lot of things I' ve had to forgo today, and some I j ust had to do. But the fact of the matter is that that' s what we have these hearings for. SEN. SCHUMER: I appeal the ruling of the chair and ask for a vote. SEN. HATCH: SEN. SCHUMER: Well, I rej ect I ask for a vote. EXT-18-2091-C-000471 007104-001192 Document ID: 0.7.19343.9053-000001 SEN. SCHUMER: In all due respect, we are having a third hearing on Pickering, we are having a second hearing on Owens. The ones who we defeated, they get all the hearing time you want to change the record, but we don' t have a full opportunity with Mr. Roberts to the second most important court in the land, with Judge Cook in terms of a circuit, the Sixth Circuit SEN. HATCH: SEN. SCHUMER: But you do which has been kept open for a long period of time SEN. HATCH: SEN. SCHUMER: I' m not prepared to leave. It is not. It is not fair. Well, it is not fair SEN. HATCH: When you can come back, senator, for your further questions? I' ll be happy to be here. SEN. SCHUMER: I can come back later this evening, and but I don' t know if my colleagues can. And I have never seen this kind of thing happen. We have never had three Court of Appeals j udges on one panel. We know that Professor Sutton in particular would take a great deal of questioning. SEN. HATCH: fair. SEN. SCHUMER: I think it' s And he has. And I don' t think it' s right. I don' t think it' s SEN. HATCH: Senator, if you need more time, take it right now. I' ll be glad to give it to you. But the point is I am not going to I am not going to I am not going to mistreat these people either. SEN. SCHUMER: Well SEN. HATCH: I mean, my gosh, they have been waiting for two years Mr. Roberts 11 years. We' ve made them available. They' ve been here since 9: 30 this morning. And I think it' s only fair that if you have questions you ask them. SEN. SCHUMER: Okay. SEN. HATCH: Now, you might have a schedule that' s different I can' t help that. I mean, there' s a lot of things I' ve had to forgo today, and some I j ust had to do. But the fact of the matter is that that' s what we have these hearings for. SEN. SCHUMER: I appeal the ruling of the chair and ask for a vote. SEN. HATCH: SEN. SCHUMER: Well, I rej ect I ask for a vote. EXT-18-2091-C-000471 007104-001192 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, this isn' t a formal committee markup. You can bring it up tomorrow in a vote, and I will be happy to have you appeal the ruling of the chair and we' ll vote on it tomorrow. SEN. SCHUMER: rules this way SEN. HATCH: I thought that, Mr. Chairman, when the chair Exactly what rule are you talking about? SEN. SCHUMER: you can appeal the ruling of a chair at a hearing as well as at a markup. SEN. HATCH: SEN. SCHUMER: SEN. HATCH: SEN. SCHUMER: Not that I know of. Well, can we ask counsel to rule on that? Well Parliamentarian. SEN. HATCH: We' ll check with the parliamentarian, but I will defer that ruling in any event as chairman until tomorrow, and we' ll have the vote tomorrow. And if you win, I guess I' ll have to come back. But the fact of the matter is SEN. SCHUMER: So, in other words, if you want to ask questions, you can stay all night, but you can defer a vote for people who don' t want to ask questions? SEN. HATCH: No, Senator Schumer. There is a reasonable time that is given for hearings. I am prepared to sit here. I will give you more time right now. I will give you more time within a reasonable time after right now. But this is the time to ask your questions, and I would like you to do it. If you don' t want to, that' s your privilege. If you don' t want to ask oral questions, then submit written questions and we' ll have them answer them within reason. But these folks have been under the impression that this is their hearing, and it is, and it' s been a long, lengthy one, and I expect it' s going to still be fairly lengthy. But I' ll be happy to give you more time right now, Senator Schumer. I have no problem with that. SEN. SCHUMER: SCHUMER: Mr. Chairman, this is one of the reasons SEN. HATCH: And I' ve already given you 21 minutes. SEN. You have been generous each time I' ve been here. But let me SEN. HATCH: Well, and I' ll continue to be. SEN. SCHUMER: Let me say this: we don' t even have rules in this committee yet. We haven' t passed rules of how the committee works. We are already rushing to do three Court of Appeals j ustices at once, and I j ust don' t think it' s the fair way to run this committee. EXT-18-2091-C-000472 007104-001193 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, this isn' t a formal committee markup. You can bring it up tomorrow in a vote, and I will be happy to have you appeal the ruling of the chair and we' ll vote on it tomorrow. SEN. SCHUMER: rules this way SEN. HATCH: I thought that, Mr. Chairman, when the chair Exactly what rule are you talking about? SEN. SCHUMER: you can appeal the ruling of a chair at a hearing as well as at a markup. SEN. HATCH: SEN. SCHUMER: SEN. HATCH: SEN. SCHUMER: Not that I know of. Well, can we ask counsel to rule on that? Well Parliamentarian. SEN. HATCH: We' ll check with the parliamentarian, but I will defer that ruling in any event as chairman until tomorrow, and we' ll have the vote tomorrow. And if you win, I guess I' ll have to come back. But the fact of the matter is SEN. SCHUMER: So, in other words, if you want to ask questions, you can stay all night, but you can defer a vote for people who don' t want to ask questions? SEN. HATCH: No, Senator Schumer. There is a reasonable time that is given for hearings. I am prepared to sit here. I will give you more time right now. I will give you more time within a reasonable time after right now. But this is the time to ask your questions, and I would like you to do it. If you don' t want to, that' s your privilege. If you don' t want to ask oral questions, then submit written questions and we' ll have them answer them within reason. But these folks have been under the impression that this is their hearing, and it is, and it' s been a long, lengthy one, and I expect it' s going to still be fairly lengthy. But I' ll be happy to give you more time right now, Senator Schumer. I have no problem with that. SEN. SCHUMER: SCHUMER: Mr. Chairman, this is one of the reasons SEN. HATCH: And I' ve already given you 21 minutes. SEN. You have been generous each time I' ve been here. But let me SEN. HATCH: Well, and I' ll continue to be. SEN. SCHUMER: Let me say this: we don' t even have rules in this committee yet. We haven' t passed rules of how the committee works. We are already rushing to do three Court of Appeals j ustices at once, and I j ust don' t think it' s the fair way to run this committee. EXT-18-2091-C-000472 007104-001193 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, I apologize to you, because I do think it' s a fair way, and I think it has to be done. And I don' t think we can keep delaying these people and putting it off. They' re making themselves available. I am giving you more time if you need it. SEN. SCHUMER: Mr. Chairman, in all due respect, this is a lifetime appointment, a very important appointment, and if people SEN. HATCH: I' ll tell you that. Well, it doesn' t have to be a lifetime hearing, SEN. SCHUMER: and if nominees are not willing to wait an extra day or two to be questioned openly and fairly, I wonder about that. SEN. HATCH: I' m not willing to put them through that. here, let' s have the hearing SEN. LEAHY: SEN. HATCH: We' re Mr. Chairman and let' s finish. SEN. LEAHY: Mr. Chairman? SEN. HATCH: Yes, Senator Leahy? SEN. LEAHY: Several of us have spoken to you prior to this hearing of the concern of having three controversial Court of Appeals j udges on the same day, rather than having day by day or however you might want to do it. You' ve spoken of Mr. Roberts being waiting for 11 years. Looking at Mr. Roberts, he must have been about 20 years old at the time he was (laughter) nominated. But you also recall that Mr. Roberts was with a number of people who were nominated within the so called Strom Thurmond rule, which means that most nominations after a certain period of time in a presidential election year are not heard unless it' s an precedent circumstance. And you also recall and I was here at the time that there was no really great push by the White House or other Republican leadership to make an exception for Mr. Roberts partly because they were convinced that President Bush was going to get reelected easily they' d bring him up the following January. I see Mr. Roberts smiling he probably heard some of that at the time. I' m not putting you on the spot, but j ust so everybody understands that the Strom Thurmond rule, which has been followed in this for the nearly 30 years I' ve been here, is that the president, Republican or Democrat, we have made some exceptions except for extraordinary circumstances does not get a nominee through after about July or so in a presidential election year. Senator Biden did put through a number for President Bush that year, but they were the ones that the White House really pushed very hard for. Professor Sutton, Mr. Roberts and Judge Cook were first nominated while you were chairman of this committee, and were there for a couple of months before the control of the Senate, and nobody brought them up at that time. So this is not a case I mean, I j ust want to look at all the facts on the table. Another day or so to be able to complete an adequate hearing and have an adequate hearing record for the Senate does not do the nominees bad, nor does it hurt the Senate. EXT-18-2091-C-000473 007104-001194 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, I apologize to you, because I do think it' s a fair way, and I think it has to be done. And I don' t think we can keep delaying these people and putting it off. They' re making themselves available. I am giving you more time if you need it. SEN. SCHUMER: Mr. Chairman, in all due respect, this is a lifetime appointment, a very important appointment, and if people SEN. HATCH: I' ll tell you that. Well, it doesn' t have to be a lifetime hearing, SEN. SCHUMER: and if nominees are not willing to wait an extra day or two to be questioned openly and fairly, I wonder about that. SEN. HATCH: I' m not willing to put them through that. here, let' s have the hearing SEN. LEAHY: SEN. HATCH: We' re Mr. Chairman and let' s finish. SEN. LEAHY: Mr. Chairman? SEN. HATCH: Yes, Senator Leahy? SEN. LEAHY: Several of us have spoken to you prior to this hearing of the concern of having three controversial Court of Appeals j udges on the same day, rather than having day by day or however you might want to do it. You' ve spoken of Mr. Roberts being waiting for 11 years. Looking at Mr. Roberts, he must have been about 20 years old at the time he was (laughter) nominated. But you also recall that Mr. Roberts was with a number of people who were nominated within the so called Strom Thurmond rule, which means that most nominations after a certain period of time in a presidential election year are not heard unless it' s an precedent circumstance. And you also recall and I was here at the time that there was no really great push by the White House or other Republican leadership to make an exception for Mr. Roberts partly because they were convinced that President Bush was going to get reelected easily they' d bring him up the following January. I see Mr. Roberts smiling he probably heard some of that at the time. I' m not putting you on the spot, but j ust so everybody understands that the Strom Thurmond rule, which has been followed in this for the nearly 30 years I' ve been here, is that the president, Republican or Democrat, we have made some exceptions except for extraordinary circumstances does not get a nominee through after about July or so in a presidential election year. Senator Biden did put through a number for President Bush that year, but they were the ones that the White House really pushed very hard for. Professor Sutton, Mr. Roberts and Judge Cook were first nominated while you were chairman of this committee, and were there for a couple of months before the control of the Senate, and nobody brought them up at that time. So this is not a case I mean, I j ust want to look at all the facts on the table. Another day or so to be able to complete an adequate hearing and have an adequate hearing record for the Senate does not do the nominees bad, nor does it hurt the Senate. EXT-18-2091-C-000473 007104-001194 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, I' ve been prepared to finish the hearing today. I' m prepared to do it, and prepared to give you more time, Senator Schumer, and I would be glad to do it out of order, or anyway you' d like to have it. But we are going to finish the hearing tonight and go from there. And I think it' s only fair to the nominees, I think it' s fair to senators. I think we have to adj ust our schedules to be able to be here and participate. It certainly would be fair to the chairman too, who has had a whole raft of things I' ve had to ignore all day long some of them very, very important as well. SEN. LEAHY: Even I' ve had important things SEN. HATCH: And even the ranking member has had to do that. So I apologize I hate to have you feel badly about it, but that' s the way it' s going to be. Senator Feingold. SEN. FEINGOLD: Thank you, Mr. Chairman. Obviously I' ve been following this discussion, and I j ust have to add before I start my round that this highlights exactly the problem that we pointed out at the outset of the hearing: this isn' t one day long enough to question three controversial nominees, and obviously we shouldn' t forget that we have three District Court nominees on the agenda SEN. HATCH: Senator, would you yield for j ust a second? I feel badly about this, but I' ve asked for a little bit of leeway by my colleagues, because I think it' s time that we bite the bullet and do what' s right with regard to at least these three nominees. I' m going to I' ve been listening to my colleagues all day. I don' t think it' s been an unfair thing. I certainly made myself available. We certainly allowed all the questions. We are prepared to sit for longer, within a reasonable time. But I do think there has to be some consideration to the people who are nominated too. It' s now been 630 days since they were nominated and in the case of Mr. Roberts 11 years and three times. Now, I think there comes a time we have got to put partisan politics aside and I haven' t seen a glove laid on these people all day long, for all of the all of the desire to question them. And I have seen tremendous answers and tremendous abilities displayed here. And there comes a time we have got to say, Hey, look, it' s the end of the hearing. SEN. FEINGOLD: Mr. Chairman SEN. HATCH: I think today is the day, and I made that clear from the beginning. I' ve asked for some help from the minority. I' ve asked for some leeway here. And I hope that you' ll do it. If you don' t, we are going to end this day. SEN. FEINGOLD: Mr. Chairman, I regret that Mr. Chairman, I believe I SEN. SESSIONS: Mr. Chairman, I would like to raise a question. I thought it might have been my time next. Senator Schumer had 20 minutes. I kept my time within my limit. Others on the other side have gone over. I think you' ve bent over backwards belong belief to be fair. EXT-18-2091-C-000474 007104-001195 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Well, I' ve been prepared to finish the hearing today. I' m prepared to do it, and prepared to give you more time, Senator Schumer, and I would be glad to do it out of order, or anyway you' d like to have it. But we are going to finish the hearing tonight and go from there. And I think it' s only fair to the nominees, I think it' s fair to senators. I think we have to adj ust our schedules to be able to be here and participate. It certainly would be fair to the chairman too, who has had a whole raft of things I' ve had to ignore all day long some of them very, very important as well. SEN. LEAHY: Even I' ve had important things SEN. HATCH: And even the ranking member has had to do that. So I apologize I hate to have you feel badly about it, but that' s the way it' s going to be. Senator Feingold. SEN. FEINGOLD: Thank you, Mr. Chairman. Obviously I' ve been following this discussion, and I j ust have to add before I start my round that this highlights exactly the problem that we pointed out at the outset of the hearing: this isn' t one day long enough to question three controversial nominees, and obviously we shouldn' t forget that we have three District Court nominees on the agenda SEN. HATCH: Senator, would you yield for j ust a second? I feel badly about this, but I' ve asked for a little bit of leeway by my colleagues, because I think it' s time that we bite the bullet and do what' s right with regard to at least these three nominees. I' m going to I' ve been listening to my colleagues all day. I don' t think it' s been an unfair thing. I certainly made myself available. We certainly allowed all the questions. We are prepared to sit for longer, within a reasonable time. But I do think there has to be some consideration to the people who are nominated too. It' s now been 630 days since they were nominated and in the case of Mr. Roberts 11 years and three times. Now, I think there comes a time we have got to put partisan politics aside and I haven' t seen a glove laid on these people all day long, for all of the all of the desire to question them. And I have seen tremendous answers and tremendous abilities displayed here. And there comes a time we have got to say, Hey, look, it' s the end of the hearing. SEN. FEINGOLD: Mr. Chairman SEN. HATCH: I think today is the day, and I made that clear from the beginning. I' ve asked for some help from the minority. I' ve asked for some leeway here. And I hope that you' ll do it. If you don' t, we are going to end this day. SEN. FEINGOLD: Mr. Chairman, I regret that Mr. Chairman, I believe I SEN. SESSIONS: Mr. Chairman, I would like to raise a question. I thought it might have been my time next. Senator Schumer had 20 minutes. I kept my time within my limit. Others on the other side have gone over. I think you' ve bent over backwards belong belief to be fair. EXT-18-2091-C-000474 007104-001195 Document ID: 0.7.19343.9053-000001 But if Senator Feingold is ready to go now, I' ll wait. But I j ust think that you' ve been as fair as can possibly be. And if you want to let the other side have their say right now, I' m wiling to yield. SEN. HATCH: Well, our side has been willing to defer so that the Democrat side can ask the questions that they want to. And I want to be fair. Everybody knows that I am. And frankly that' s why we have a hearing. Usually these hearings go for about two hours. SEN. FEINGOLD: Well, Mr. Chairman SEN. HATCH: Go ahead, senator We' ve been here since 9: 30. It' s now 5: 30 almost. SEN. FEINGOLD: I regret the fact that these three nominees have to sit all day through this. But, you know, frankly the problem is and I' ve been on this committee only for eight years that doesn' t compare to you, Mr. Chairman, but I' ve never seen this done. I' ve never seen and the idea that the hearings on controversial Court of Appeals j udges are only two hours that is not the case. That is not what I' ve witnessed here. The serious hearings of very important appointments like this take much longer. They usually take all day. And, frankly, Mr. Sutton should have been the one for all day today, and I don' t think people have been dilatory. These questions are reasonable. SEN. HATCH: If the senator SEN. FEINGOLD: And I' ll j ust say one more time that I do have tremendous respect for you. I think you' re this procedure today really does trouble me. SEN. HATCH: If the senator would yield. I remember a time now, I have been on this committee this is my 27th year I remember a time when Senator Biden had three on one and I don' t remember any griping about it, because we want to fill these benches. These are emergency positions. And frankly I' m willing to be here, and I think it' s incumbent upon our colleagues to be here and ask their questions. And, like I say, my side is deferring so that you can. And SEN. FEINGOLD: Mr. Chairman SEN. HATCH: Look, let me say one thing. I really respect you. You' ve always been honest, you have always been straightforward, you are very intelligent, you are a great lawyer, and I respect your feelings. But respect mine too. SEN. FEINGOLD: I do SEN. HATCH: I' m j ust trying to do my j ob as the chairman. I am trying to fill these courts. And I haven' t seen anything wrong here today. These three nominees have been excellent. But, in any event, you have to make up your own mind. But there has to be a time when you bring these things to conclusion. Today' s the day we bring this hearing to conclusion. And everybody knew that before we started. And if people j ust want to ask questions of Mr. Roberts although we have had EXT-18-2091-C-000475 007104-001196 Document ID: 0.7.19343.9053-000001 But if Senator Feingold is ready to go now, I' ll wait. But I j ust think that you' ve been as fair as can possibly be. And if you want to let the other side have their say right now, I' m wiling to yield. SEN. HATCH: Well, our side has been willing to defer so that the Democrat side can ask the questions that they want to. And I want to be fair. Everybody knows that I am. And frankly that' s why we have a hearing. Usually these hearings go for about two hours. SEN. FEINGOLD: Well, Mr. Chairman SEN. HATCH: Go ahead, senator We' ve been here since 9: 30. It' s now 5: 30 almost. SEN. FEINGOLD: I regret the fact that these three nominees have to sit all day through this. But, you know, frankly the problem is and I' ve been on this committee only for eight years that doesn' t compare to you, Mr. Chairman, but I' ve never seen this done. I' ve never seen and the idea that the hearings on controversial Court of Appeals j udges are only two hours that is not the case. That is not what I' ve witnessed here. The serious hearings of very important appointments like this take much longer. They usually take all day. And, frankly, Mr. Sutton should have been the one for all day today, and I don' t think people have been dilatory. These questions are reasonable. SEN. HATCH: If the senator SEN. FEINGOLD: And I' ll j ust say one more time that I do have tremendous respect for you. I think you' re this procedure today really does trouble me. SEN. HATCH: If the senator would yield. I remember a time now, I have been on this committee this is my 27th year I remember a time when Senator Biden had three on one and I don' t remember any griping about it, because we want to fill these benches. These are emergency positions. And frankly I' m willing to be here, and I think it' s incumbent upon our colleagues to be here and ask their questions. And, like I say, my side is deferring so that you can. And SEN. FEINGOLD: Mr. Chairman SEN. HATCH: Look, let me say one thing. I really respect you. You' ve always been honest, you have always been straightforward, you are very intelligent, you are a great lawyer, and I respect your feelings. But respect mine too. SEN. FEINGOLD: I do SEN. HATCH: I' m j ust trying to do my j ob as the chairman. I am trying to fill these courts. And I haven' t seen anything wrong here today. These three nominees have been excellent. But, in any event, you have to make up your own mind. But there has to be a time when you bring these things to conclusion. Today' s the day we bring this hearing to conclusion. And everybody knew that before we started. And if people j ust want to ask questions of Mr. Roberts although we have had EXT-18-2091-C-000475 007104-001196 Document ID: 0.7.19343.9053-000001 questions of all three then that' s your privilege. But, my gosh, I am providing means whereby you can ask questions of others. Let' s start the clock over, because I' ve used his time SEN. LEAHY: Mr. Chairman, can I make a suggestion before you start the clock? Usually you and I have been able to find a rational way out of such impasses. Could I suggest that we, the members that are here, we recess for about five minutes and we talk privately? You lose nothing by that, nor do we, and that it' s been a long day, it' s going to be a long evening. Why don' t we j ust talk privately out of the hearing of the room. I mean, you' re the chairman it' s whatever you want. But I would suggest we do that. You and I have almost always been able to work things out. SEN. HATCH: I think that' s as reasonable request. We' ll recess for five minutes, and then we' ll resume. But we are going to finish this today. (Recess. ) SEN. HATCH: SEN. FEINGOLD: with you and SEN. HATCH: Okay, we' ll turn to Senator Feingold. Mr. Chairman, again, I very much enj oy working Vice versa. SEN. FEINGOLD: but the record does need to reflect my concern and the concern of many members that this process today really was not a fair process, although you are generally very fair in your leadership of this committee. I j ust want the record to reflect that many of us believe that these nominees are controversial, and to be sure that there' s not a precedent for the future based on the claim that Senator Biden had done this in the past. The fact is when Senator Biden had three Court of Appeals nominees at the same hearing, they were as a courtesy to the previous Bush administration, and they were noncontroversial. So let the record reflect that this should not be a precedent for future attempts to have three significant Court of Appeals nominations put forward at the same time. I think it' s a very process and precedent for this committee. SEN. HATCH: Would the senator yield on this point? I agree that it is extraordinary to have three circuit court nominees. It' s been Senator Biden did it and I think it' s not a precedent done before we should avoid. But it has caused a great deal of concern among my colleagues, and I will certainly try to be more considerate in the future. But I would like to finish this tonight, if we can, and I believe we can. In fact, we are going to. And I appreciate my dear colleague you have always been fair, you have always been decent to me, and I think you are being decent again. And I we respectfully disagree on this, but I will try to take your feelings very deeply into consideration in the future. EXT-18-2091-C-000476 007104-001197 Document ID: 0.7.19343.9053-000001 questions of all three then that' s your privilege. But, my gosh, I am providing means whereby you can ask questions of others. Let' s start the clock over, because I' ve used his time SEN. LEAHY: Mr. Chairman, can I make a suggestion before you start the clock? Usually you and I have been able to find a rational way out of such impasses. Could I suggest that we, the members that are here, we recess for about five minutes and we talk privately? You lose nothing by that, nor do we, and that it' s been a long day, it' s going to be a long evening. Why don' t we j ust talk privately out of the hearing of the room. I mean, you' re the chairman it' s whatever you want. But I would suggest we do that. You and I have almost always been able to work things out. SEN. HATCH: I think that' s as reasonable request. We' ll recess for five minutes, and then we' ll resume. But we are going to finish this today. (Recess. ) SEN. HATCH: SEN. FEINGOLD: with you and SEN. HATCH: Okay, we' ll turn to Senator Feingold. Mr. Chairman, again, I very much enj oy working Vice versa. SEN. FEINGOLD: but the record does need to reflect my concern and the concern of many members that this process today really was not a fair process, although you are generally very fair in your leadership of this committee. I j ust want the record to reflect that many of us believe that these nominees are controversial, and to be sure that there' s not a precedent for the future based on the claim that Senator Biden had done this in the past. The fact is when Senator Biden had three Court of Appeals nominees at the same hearing, they were as a courtesy to the previous Bush administration, and they were noncontroversial. So let the record reflect that this should not be a precedent for future attempts to have three significant Court of Appeals nominations put forward at the same time. I think it' s a very process and precedent for this committee. SEN. HATCH: Would the senator yield on this point? I agree that it is extraordinary to have three circuit court nominees. It' s been Senator Biden did it and I think it' s not a precedent done before we should avoid. But it has caused a great deal of concern among my colleagues, and I will certainly try to be more considerate in the future. But I would like to finish this tonight, if we can, and I believe we can. In fact, we are going to. And I appreciate my dear colleague you have always been fair, you have always been decent to me, and I think you are being decent again. And I we respectfully disagree on this, but I will try to take your feelings very deeply into consideration in the future. EXT-18-2091-C-000476 007104-001197 Document ID: 0.7.19343.9053-000001 SEN. FEINGOLD: Sutton again. Thank you, Mr. Chairman. I will go to Mr. In response to my earlier question about the Swank case, you told me that you hadn' t really made a direct argument that the migratory bird rule violated the Constitution. But MR. SUTTON: No, I don' t think I did. I said we made a constitutional avoidance argument, and then raised the constitutional issues that would be implicated if the Court couldn' t deal with this on statutory construction grounds. SEN. FEINGOLD: Right. You said you had only made an argument on what you called constitutional avoidance. And we actually looked up the amicus brief here filed on behalf of the state six pages out of a of Alabama. The entire second half of the brief total of 10 pages of argument is an argument with the following heading: "The regulation exceeds Congress' s Commerce Clause powers. " In other words, you made a constitutional argument not simply a statutory interpretation argument, based on a doctrine of constitutional avoidance. Is that correct? MR. SUTTON: It is correct, senator, but maybe my earlier testimony was misapprehended or maybe I misspoke. I am sure the odds are better that I misspoke. The one can' t make a constitutional avoidance argument without making a constitutional argument. In other words, it' s not if one said to a court that you want to construe a statute in this way to avoid a constitutional issue, I can' t imagine a lawyer not then arguing the constitutional issue SEN. FEINGOLD: I don' t think that' s the point that I' m trying to raise. I appreciate that. I do understand that yours was the only amicus brief that took this position, so I want to get directly to the constitutional issue. I wanted to give you an opportunity to supplement your answer to my earlier question. So let me add the following direct question before you respond. Do you personally believe the assertion in the state of Alabama' s amicus brief that the migratory bird rule exceeds Congress' s Commerce Clause power? Do you personally believe it does? MR. SUTTON: I have no idea. I obviously was not involved in the underlying litigation that generated the Swank case that ultimately went to the U. S. Supreme Court. I wasn' t involved in it in the lower courts. And I simply had a client who was interested in making that argument, and I hoped them make that argument. I was never I can' t imagine working for a client and assuming my j ob was to tell them first what the right answer was, and then acting as their lawyer. The way I saw my j ob, and still see my j ob as a lawyer is if a client asks me to do something, find all reasonable arguments that can be made to support their position. I' ve done that. You should know this is not the only environmental case. I' ve helped environmental cases on the other side of the issue. There' s a case that came out of Ohio, the Sierra Club case, which dealt with logging and timberlands. And while I didn' t argue the case for the lawyer I wasn' t even a lawyer in the case I did help the lawyer who argued on behalf of the Sierra Club in that case in getting ready for the U. S. Supreme Court argument, and participated in a moot court with him. So I this is another situation where I' ve been EXT-18-2091-C-000477 007104-001198 Document ID: 0.7.19343.9053-000001 SEN. FEINGOLD: Sutton again. Thank you, Mr. Chairman. I will go to Mr. In response to my earlier question about the Swank case, you told me that you hadn' t really made a direct argument that the migratory bird rule violated the Constitution. But MR. SUTTON: No, I don' t think I did. I said we made a constitutional avoidance argument, and then raised the constitutional issues that would be implicated if the Court couldn' t deal with this on statutory construction grounds. SEN. FEINGOLD: Right. You said you had only made an argument on what you called constitutional avoidance. And we actually looked up the amicus brief here filed on behalf of the state six pages out of a of Alabama. The entire second half of the brief total of 10 pages of argument is an argument with the following heading: "The regulation exceeds Congress' s Commerce Clause powers. " In other words, you made a constitutional argument not simply a statutory interpretation argument, based on a doctrine of constitutional avoidance. Is that correct? MR. SUTTON: It is correct, senator, but maybe my earlier testimony was misapprehended or maybe I misspoke. I am sure the odds are better that I misspoke. The one can' t make a constitutional avoidance argument without making a constitutional argument. In other words, it' s not if one said to a court that you want to construe a statute in this way to avoid a constitutional issue, I can' t imagine a lawyer not then arguing the constitutional issue SEN. FEINGOLD: I don' t think that' s the point that I' m trying to raise. I appreciate that. I do understand that yours was the only amicus brief that took this position, so I want to get directly to the constitutional issue. I wanted to give you an opportunity to supplement your answer to my earlier question. So let me add the following direct question before you respond. Do you personally believe the assertion in the state of Alabama' s amicus brief that the migratory bird rule exceeds Congress' s Commerce Clause power? Do you personally believe it does? MR. SUTTON: I have no idea. I obviously was not involved in the underlying litigation that generated the Swank case that ultimately went to the U. S. Supreme Court. I wasn' t involved in it in the lower courts. And I simply had a client who was interested in making that argument, and I hoped them make that argument. I was never I can' t imagine working for a client and assuming my j ob was to tell them first what the right answer was, and then acting as their lawyer. The way I saw my j ob, and still see my j ob as a lawyer is if a client asks me to do something, find all reasonable arguments that can be made to support their position. I' ve done that. You should know this is not the only environmental case. I' ve helped environmental cases on the other side of the issue. There' s a case that came out of Ohio, the Sierra Club case, which dealt with logging and timberlands. And while I didn' t argue the case for the lawyer I wasn' t even a lawyer in the case I did help the lawyer who argued on behalf of the Sierra Club in that case in getting ready for the U. S. Supreme Court argument, and participated in a moot court with him. So I this is another situation where I' ve been EXT-18-2091-C-000477 007104-001198 Document ID: 0.7.19343.9053-000001 on both sides of these issues as a lawyer, and it wasn' t a question of personal views I didn' t in the Sierra Club case this is something I' m going to do because I have personal views, this is something I' m going to do to help someone arguing a case. And likewise with the Swank case SEN. FEINGOLD: All right, well, let me move on to a different area then. You filed an amicus brief on behalf of Los Angeles County and the California State Association of Counties in the Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources. Do you recall that case? MR. SUTTON: I do. SEN. FEINGOLD: As you will recall, the Buckhannon facility sued the state alleging a violation of the Fair Housing Amendments Act and the Americans With Disabilities Act, after being forced to close for not being a self preservation requirement of its residents as defined in state law. In response to this suit, but before the court ruled, the state legislature eliminated the self preservation requirement. That gave Buckhannon all the relief it sought. The district court dismissed the case as moot, but then ruled that Buckhannon could not be considered a prevailing party in the case, and therefore could not recover its attorney' s fees. The Fourth Circuit, contrary to the rulings of every other circuit that had addressed the issue affirmed. The Supreme Court ruled five to four that under the various attorney fees statutes, plaintiffs may recover attorney' s fees from defendants only if they have been rewarded relief by a court not if they prevailed through a voluntary change of the defendant' s behavior or a private settlement. So this is a narrow interpretation of the definition of "prevailing party, " which I think has potentially disastrous implications for people whose civil rights have been violated but who cannot afford to hire a lawyer. Calculating whether to take a case, an attorney for a plaintiff will have to consider not only the chances of losing, but the chances of winning too easily even if a plaintiff secures a complete victory by getting a defendant to admit to wrongdoing, or prompting a change in a statute. The attorney who labored for years to bring about such a victory would not be paid at all. In the amicus brief you filed in Buckhannon, you argued in your words that as, quote, "a matter of mundane litigation realities, " unquote, a narrow definition of prevailing party would prevent parties from commencing time quote, "commencing time consuming satellite litigation over fee awards, " unquote. Now, I want you to know I agree that litigation over fees is something to be minimized. But I would argue that a much more important interest to be furthered is the ability of aggrieved parties to find attorneys who will take their cases. The court' s interpretation of prevailing party potentially prevents people from seeking protection guaranteed to them under existing civil rights laws, and the mundane litigation realities might actually point in the other direction. The decision could in effect force attorneys to drag out lawsuits, to keep going, to make sure that they get a j udicial order, rather than accepting a non j udicial settlement that give their clients everything they seek. So let me ask you: Do you believe that a person EXT-18-2091-C-000478 007104-001199 Document ID: 0.7.19343.9053-000001 on both sides of these issues as a lawyer, and it wasn' t a question of personal views I didn' t in the Sierra Club case this is something I' m going to do because I have personal views, this is something I' m going to do to help someone arguing a case. And likewise with the Swank case SEN. FEINGOLD: All right, well, let me move on to a different area then. You filed an amicus brief on behalf of Los Angeles County and the California State Association of Counties in the Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Resources. Do you recall that case? MR. SUTTON: I do. SEN. FEINGOLD: As you will recall, the Buckhannon facility sued the state alleging a violation of the Fair Housing Amendments Act and the Americans With Disabilities Act, after being forced to close for not being a self preservation requirement of its residents as defined in state law. In response to this suit, but before the court ruled, the state legislature eliminated the self preservation requirement. That gave Buckhannon all the relief it sought. The district court dismissed the case as moot, but then ruled that Buckhannon could not be considered a prevailing party in the case, and therefore could not recover its attorney' s fees. The Fourth Circuit, contrary to the rulings of every other circuit that had addressed the issue affirmed. The Supreme Court ruled five to four that under the various attorney fees statutes, plaintiffs may recover attorney' s fees from defendants only if they have been rewarded relief by a court not if they prevailed through a voluntary change of the defendant' s behavior or a private settlement. So this is a narrow interpretation of the definition of "prevailing party, " which I think has potentially disastrous implications for people whose civil rights have been violated but who cannot afford to hire a lawyer. Calculating whether to take a case, an attorney for a plaintiff will have to consider not only the chances of losing, but the chances of winning too easily even if a plaintiff secures a complete victory by getting a defendant to admit to wrongdoing, or prompting a change in a statute. The attorney who labored for years to bring about such a victory would not be paid at all. In the amicus brief you filed in Buckhannon, you argued in your words that as, quote, "a matter of mundane litigation realities, " unquote, a narrow definition of prevailing party would prevent parties from commencing time quote, "commencing time consuming satellite litigation over fee awards, " unquote. Now, I want you to know I agree that litigation over fees is something to be minimized. But I would argue that a much more important interest to be furthered is the ability of aggrieved parties to find attorneys who will take their cases. The court' s interpretation of prevailing party potentially prevents people from seeking protection guaranteed to them under existing civil rights laws, and the mundane litigation realities might actually point in the other direction. The decision could in effect force attorneys to drag out lawsuits, to keep going, to make sure that they get a j udicial order, rather than accepting a non j udicial settlement that give their clients everything they seek. So let me ask you: Do you believe that a person EXT-18-2091-C-000478 007104-001199 Document ID: 0.7.19343.9053-000001 who has as legitimate claim to a civil rights violation should be able to seek redress in court? MR. SUTTON: Of course. SEN. FEINGOLD: Do you believe that people with legitimate civil rights claims should have the ability to secure adequate counsel to pursue those claims? MR. SUTTON: Of course. SEN. FEINGOLD: Isn' t that why Congress enacted statutes giving successful plaintiffs the rights to collect attorney' s fees? 1988. MR. SUTTON: I think that is I think it' s 42 U. S. C Section I think that is the purpose of it. I agree with you. SEN. FEINGOLD: Then how will a person with legitimate claim be able to get adequate counsel in a case that could take months or even years to resolve, when defendants can avoid the possibility of paying attorney' s fees by simply offering the plaintiff everything they want before trial? In other words, explain to me how the Buckhannon decision, which you argued for in your amicus brief, can be squared with the desire to encourage the enforcement of the civil rights laws and other statutes in which Congress has made a j udgment that attorney' s fees should be available? MR. SUTTON: Yes. Well, first of all, you know, I think this is an important issue, and I' d like to think the brief I wrote on behalf of the client, Los Angeles County, a long standing Jones Day client obviously gets sued a lot so that' s why we wrote the brief on their behalf. And, you know, as a board member of the Equal Justice Foundation, whose you know, 90 percent of their revenue comes from attorney' s fees, I can tell you that I am sensitive to this issue and hope that I think this legislation you' ve proposed to correct the Buckhannon decision is correct is successful because it will certainly help EJF when it comes to raising funds. The issue in that case was a statutory one of whether the term "prevailing" "prevailing" was the key word and the difficulty, which led the Fourth Circuit to go one way and the other courts of appeals to rule the other way, was whether someone had prevailed, when in fact there wasn' t a court j udgment indicating this but simply a change in conduct. And I fully appreciate your point, which is, My Lord, if that is the rule, then a litigant, a recalcitrant state or city engaging in civil rights violations can simply stop their conduct after litigating for many years, change their rule and now have the case dismissed but not owe any attorney fee awards. Precisely because I' ve appreciated the very point you' ve raised, at the end of the brief that we offered for Los Angeles County we dealt with this issue. SEN. FEINGOLD: Then why in your Buckhannon brief you asserted that, quote, "precedent confirms, " unquote, your interpretation of the attorney' s fees statute? Yet you fail to bring to the attention of the court the decisions of nine Court of Appeals that contradicted your position. Didn' t you have an EXT-18-2091-C-000479 007104-001200 Document ID: 0.7.19343.9053-000001 who has as legitimate claim to a civil rights violation should be able to seek redress in court? MR. SUTTON: Of course. SEN. FEINGOLD: Do you believe that people with legitimate civil rights claims should have the ability to secure adequate counsel to pursue those claims? MR. SUTTON: Of course. SEN. FEINGOLD: Isn' t that why Congress enacted statutes giving successful plaintiffs the rights to collect attorney' s fees? 1988. MR. SUTTON: I think that is I think it' s 42 U. S. C Section I think that is the purpose of it. I agree with you. SEN. FEINGOLD: Then how will a person with legitimate claim be able to get adequate counsel in a case that could take months or even years to resolve, when defendants can avoid the possibility of paying attorney' s fees by simply offering the plaintiff everything they want before trial? In other words, explain to me how the Buckhannon decision, which you argued for in your amicus brief, can be squared with the desire to encourage the enforcement of the civil rights laws and other statutes in which Congress has made a j udgment that attorney' s fees should be available? MR. SUTTON: Yes. Well, first of all, you know, I think this is an important issue, and I' d like to think the brief I wrote on behalf of the client, Los Angeles County, a long standing Jones Day client obviously gets sued a lot so that' s why we wrote the brief on their behalf. And, you know, as a board member of the Equal Justice Foundation, whose you know, 90 percent of their revenue comes from attorney' s fees, I can tell you that I am sensitive to this issue and hope that I think this legislation you' ve proposed to correct the Buckhannon decision is correct is successful because it will certainly help EJF when it comes to raising funds. The issue in that case was a statutory one of whether the term "prevailing" "prevailing" was the key word and the difficulty, which led the Fourth Circuit to go one way and the other courts of appeals to rule the other way, was whether someone had prevailed, when in fact there wasn' t a court j udgment indicating this but simply a change in conduct. And I fully appreciate your point, which is, My Lord, if that is the rule, then a litigant, a recalcitrant state or city engaging in civil rights violations can simply stop their conduct after litigating for many years, change their rule and now have the case dismissed but not owe any attorney fee awards. Precisely because I' ve appreciated the very point you' ve raised, at the end of the brief that we offered for Los Angeles County we dealt with this issue. SEN. FEINGOLD: Then why in your Buckhannon brief you asserted that, quote, "precedent confirms, " unquote, your interpretation of the attorney' s fees statute? Yet you fail to bring to the attention of the court the decisions of nine Court of Appeals that contradicted your position. Didn' t you have an EXT-18-2091-C-000479 007104-001200 Document ID: 0.7.19343.9053-000001 obligation to make the court aware of these decisions, especially in light of the fact that you indicated that you believe that the law should allow a litigant to be able to settle a case at an appropriate time and still get attorney' s fees. MR. SUTTON: It' s very rare in U. S. Supreme Court briefs that I have relied on Court of Appeals decisions generally. So I would say that' s j ust typical of me cuts across cases and issues. But the point I wanted to address, which you raise and I think it' s a critical one is what about the recalcitrant city or state that suddenly stops their conduct are they now scot free from liability, attorney fee liability? And I think your concern is about we raised this very point. In fact, I and we indicated in the brief think it' s in the last couple pages of the brief and said that' s not necessarily true. We made the point a concession for a county, which is sued all the time, that if there' s a case like, gosh, it' s a Justice Ginsburg decision it may be Laidlaw we cite it in the back of our brief. I think it' s it makes the point that j ust because a litigant, a city or state, stops their conduct, that doesn' t necessarily moot the case, because of the possibility they may do it again, or as you are suggesting, the possibility they are j ust trying to hide from attorney fees. So I' d like to think I obviously had a client' s perspective to represent. I did my best to represent it. But I felt like we were actually trying to address that very important consideration in the brief. And I do think it was within the mainstream to argue the point on behalf of them as a client. And as you well know, it can be this ambiguity can quickly be clarified by legislation. SEN. FEINGOLD: I thank you, Mr. Sutton. I thank you, Mr. Chairman. Feingold? SEN. HATCH: Are you through? Do you need more time, Senator Okay, thank you. Senator Leahy. SEN. LEAHY: Mr. Professor Sutton, I would suggest I would urge you to go back and reread Judge Noonan' s book. I have no question that in your with your mental ability you probably can recite most of it verbatim. But I think that again I can' t tell you how much many of us are concerned that we have a very activist Supreme Court that has determined that the Congress is basically irrelevant, and our feelings are basically irrelevant, and we are going to have a number of cases that are going to come to you as a first impression if you are confirmed to this position. Well, obviously I can' t tell you how one would rule, but I would like you to at least consider that. MR. SUTTON: Can I respond to that? SEN. LEAHY: Of course, of course. MR. SUTTON: I can assure you over the last two years I have thought a lot about the very perspective all of you have. This is obviously not a Democratic or Republican issue; this is an institution issue. And, you know, when one is criticized, as I have been for advocating those cases, you know, I have I really have thought a lot EXT-18-2091-C-000480 007104-001201 Document ID: 0.7.19343.9053-000001 obligation to make the court aware of these decisions, especially in light of the fact that you indicated that you believe that the law should allow a litigant to be able to settle a case at an appropriate time and still get attorney' s fees. MR. SUTTON: It' s very rare in U. S. Supreme Court briefs that I have relied on Court of Appeals decisions generally. So I would say that' s j ust typical of me cuts across cases and issues. But the point I wanted to address, which you raise and I think it' s a critical one is what about the recalcitrant city or state that suddenly stops their conduct are they now scot free from liability, attorney fee liability? And I think your concern is about we raised this very point. In fact, I and we indicated in the brief think it' s in the last couple pages of the brief and said that' s not necessarily true. We made the point a concession for a county, which is sued all the time, that if there' s a case like, gosh, it' s a Justice Ginsburg decision it may be Laidlaw we cite it in the back of our brief. I think it' s it makes the point that j ust because a litigant, a city or state, stops their conduct, that doesn' t necessarily moot the case, because of the possibility they may do it again, or as you are suggesting, the possibility they are j ust trying to hide from attorney fees. So I' d like to think I obviously had a client' s perspective to represent. I did my best to represent it. But I felt like we were actually trying to address that very important consideration in the brief. And I do think it was within the mainstream to argue the point on behalf of them as a client. And as you well know, it can be this ambiguity can quickly be clarified by legislation. SEN. FEINGOLD: I thank you, Mr. Sutton. I thank you, Mr. Chairman. Feingold? SEN. HATCH: Are you through? Do you need more time, Senator Okay, thank you. Senator Leahy. SEN. LEAHY: Mr. Professor Sutton, I would suggest I would urge you to go back and reread Judge Noonan' s book. I have no question that in your with your mental ability you probably can recite most of it verbatim. But I think that again I can' t tell you how much many of us are concerned that we have a very activist Supreme Court that has determined that the Congress is basically irrelevant, and our feelings are basically irrelevant, and we are going to have a number of cases that are going to come to you as a first impression if you are confirmed to this position. Well, obviously I can' t tell you how one would rule, but I would like you to at least consider that. MR. SUTTON: Can I respond to that? SEN. LEAHY: Of course, of course. MR. SUTTON: I can assure you over the last two years I have thought a lot about the very perspective all of you have. This is obviously not a Democratic or Republican issue; this is an institution issue. And, you know, when one is criticized, as I have been for advocating those cases, you know, I have I really have thought a lot EXT-18-2091-C-000480 007104-001201 Document ID: 0.7.19343.9053-000001 about the other perspective, and I do think there are very reasoned criticisms of those decisions, but I do think they are difficult decisions they always are when the Court is asked to referee boundary disputes between branches of government. And so I can assure you that if I were fortunate enough to be confirmed I really would consider the perspective this body has when it comes to passing laws in the first instance, when it comes to gathering evidence establishing whether there is a policy issue to be addressed, or when it comes to determining whether there are underlying constitutional issues that need to be remedied. SEN. LEAHY: Thank you. Mr. Chairman, at this time I kind of other questions, but Senator Durbin has been in and out of the I am going to be here anyway, and I was j ust Intelligence Committee wondering if Senator Durbin SEN. HATCH: We' ll be happy to take SEN. LEAHY: I guess I' m going to SEN. HATCH: Go ahead. Senator Durbin go ahead. SEN. LEAHY: Justice Cook, let me I don' t want you to feel that you' ve been neglected here and Professor Sutton has been hogging all the time, but (laughter) MS. COOK: SEN. LEAHY: MS. COOK: I was feeling that. Hmm? I said, oh, yes, I was feeling that. (Laughter. ) SEN. LEAHY: Yes, I know you would much rather have us asking you the questions. But I understand you are the most frequent dissenter on the Supreme Court of Ohio. You had well over 300 dissents in your eight years on the court. I am told you once j oked that the female j ustices on your court had three names: Alice Robie Resnick, Evelyn Lundberg Stratton and Deborah Cook Dissenting. Should I have a concern about your j udicial temperament and inability to reach consensus is you have that many dissents? And I ask that question not in a frivolous fashion, because the Sixth Circuit is a fairly polarized court, and if anything we would like to see the Sixth Circuit help the people within its circuit to reach more consensus opinions and not polarize. Should I be worrying about your j udicial temperament? MS. COOK: I should think not, senator. Dissenting is really, as I said before in answer to some other question, it really is a learning process. Many times I am somehow designated to write the dissent for other members of the court, so therefore my numbers look rather high. But dissents are offered as a for the benefit of the other side who offered the first opinion. It is a method to reach consensus sometimes. And in our court it' s actually a matter of logistics. The members of the court live in various parts of the dissent, so consensus is the first obj ective, and unfortunately it' s not always reached. But certainly that' s the first goal. But I don' t EXT-18-2091-C-000481 007104-001202 Document ID: 0.7.19343.9053-000001 about the other perspective, and I do think there are very reasoned criticisms of those decisions, but I do think they are difficult decisions they always are when the Court is asked to referee boundary disputes between branches of government. And so I can assure you that if I were fortunate enough to be confirmed I really would consider the perspective this body has when it comes to passing laws in the first instance, when it comes to gathering evidence establishing whether there is a policy issue to be addressed, or when it comes to determining whether there are underlying constitutional issues that need to be remedied. SEN. LEAHY: Thank you. Mr. Chairman, at this time I kind of other questions, but Senator Durbin has been in and out of the I am going to be here anyway, and I was j ust Intelligence Committee wondering if Senator Durbin SEN. HATCH: We' ll be happy to take SEN. LEAHY: I guess I' m going to SEN. HATCH: Go ahead. Senator Durbin go ahead. SEN. LEAHY: Justice Cook, let me I don' t want you to feel that you' ve been neglected here and Professor Sutton has been hogging all the time, but (laughter) MS. COOK: SEN. LEAHY: MS. COOK: I was feeling that. Hmm? I said, oh, yes, I was feeling that. (Laughter. ) SEN. LEAHY: Yes, I know you would much rather have us asking you the questions. But I understand you are the most frequent dissenter on the Supreme Court of Ohio. You had well over 300 dissents in your eight years on the court. I am told you once j oked that the female j ustices on your court had three names: Alice Robie Resnick, Evelyn Lundberg Stratton and Deborah Cook Dissenting. Should I have a concern about your j udicial temperament and inability to reach consensus is you have that many dissents? And I ask that question not in a frivolous fashion, because the Sixth Circuit is a fairly polarized court, and if anything we would like to see the Sixth Circuit help the people within its circuit to reach more consensus opinions and not polarize. Should I be worrying about your j udicial temperament? MS. COOK: I should think not, senator. Dissenting is really, as I said before in answer to some other question, it really is a learning process. Many times I am somehow designated to write the dissent for other members of the court, so therefore my numbers look rather high. But dissents are offered as a for the benefit of the other side who offered the first opinion. It is a method to reach consensus sometimes. And in our court it' s actually a matter of logistics. The members of the court live in various parts of the dissent, so consensus is the first obj ective, and unfortunately it' s not always reached. But certainly that' s the first goal. But I don' t EXT-18-2091-C-000481 007104-001202 Document ID: 0.7.19343.9053-000001 really think you can take anything from the fact that I write dissents other than I am attempting to do a precise reading of the law, and SEN. LEAHY: You may think that the Democratic senator would take comfort in the fact that often when you have dissented the Republican maj ority in your own court though has been quite critical of your view of the law. In Bunger v. Lawson, the maj ority called your interpretation of the law nonsensical. They said that leaves an untenable position that' s unfair to employees. And they said your opinion would be, quote, "an absurd interpretation that seems borrowed from the pages of ' Catch 22. ' " In Russell v. Industrial Commission of Ohio they stated "your dissent lacked statutory support for its position, that you were unable to cite even the slightest dictum from any case to support your view, and your argument, which had not been raised by the commission, the bureau, the claimant' s employer in any of their supporting (inaudible) entirely without merit. " In Ohio Academy v. Sheward, the maj ority held the tort reform law is unconstitutional because it severely limited an inj ured party' s ability to recover from wrongdoers, no matter the type of inj ury. And then they responded to a dissent you j oined stating that, quote, "The dissenting j udges mischaracterize our findings, misconstrue prior decisions of this court, selectively extrapolate portions of the legislation at issue, While ignoring its overall tenor and content, disassociate themselves from a decision which one of them concurred, suggested we create a new theory of minimizing the magnitude and scope of the legislation in the importance of separation of powers, accuses us of language unbecoming a j udicial opinion, and questions our faith and our quotes of record all in an obvious effort to distort our opinion into a form susceptible to (confident ?) criticism and protect this legislation from any timely, meaningful and inclusive j udicial review. " Now, I don' t know about Ohio, but in Vermont that would go beyond understated New England criticism as pretty strong criticism. And I read this because I worry, one, as I said, a polarized Sixth Circuit, whether you would be not one to help bring people together but one to further polarize it; that you overwhelmingly favor employers in complaints brought by workers. In fact, I haven' t found a case where you dissented in favor of an inj ured employee in a claim brought against his or her employer. So I raise this, Justice Cook these are all things you' ve heard. I mean, you read the opinions. Please help us here: Why such strong words by the maj ority, mainly Republicans, for your dissents? MS. COOK: The court is nominally five two, Republican, but there are, as you will note from some of the newspaper stories, there are a number of Republicans on the court who are labeled, as everyone is labeled, they are labeled as liberal. And I am labeled so called conservative. So I am not sure we can draw too much from SEN. LEAHY: Is this a liberal vendetta against you? MS. COOK: No, not at all. I think it was a you know, I' m sorry for the tone. It does appear to be a tone of a little beyond what we expect but it was a reasonable difference in Sheward. In fact, that' s the case where you find that language. I am not I think it might be stirred somewhat by the fact that this case was a very unusual in fact EXT-18-2091-C-000482 007104-001203 Document ID: 0.7.19343.9053-000001 really think you can take anything from the fact that I write dissents other than I am attempting to do a precise reading of the law, and SEN. LEAHY: You may think that the Democratic senator would take comfort in the fact that often when you have dissented the Republican maj ority in your own court though has been quite critical of your view of the law. In Bunger v. Lawson, the maj ority called your interpretation of the law nonsensical. They said that leaves an untenable position that' s unfair to employees. And they said your opinion would be, quote, "an absurd interpretation that seems borrowed from the pages of ' Catch 22. ' " In Russell v. Industrial Commission of Ohio they stated "your dissent lacked statutory support for its position, that you were unable to cite even the slightest dictum from any case to support your view, and your argument, which had not been raised by the commission, the bureau, the claimant' s employer in any of their supporting (inaudible) entirely without merit. " In Ohio Academy v. Sheward, the maj ority held the tort reform law is unconstitutional because it severely limited an inj ured party' s ability to recover from wrongdoers, no matter the type of inj ury. And then they responded to a dissent you j oined stating that, quote, "The dissenting j udges mischaracterize our findings, misconstrue prior decisions of this court, selectively extrapolate portions of the legislation at issue, While ignoring its overall tenor and content, disassociate themselves from a decision which one of them concurred, suggested we create a new theory of minimizing the magnitude and scope of the legislation in the importance of separation of powers, accuses us of language unbecoming a j udicial opinion, and questions our faith and our quotes of record all in an obvious effort to distort our opinion into a form susceptible to (confident ?) criticism and protect this legislation from any timely, meaningful and inclusive j udicial review. " Now, I don' t know about Ohio, but in Vermont that would go beyond understated New England criticism as pretty strong criticism. And I read this because I worry, one, as I said, a polarized Sixth Circuit, whether you would be not one to help bring people together but one to further polarize it; that you overwhelmingly favor employers in complaints brought by workers. In fact, I haven' t found a case where you dissented in favor of an inj ured employee in a claim brought against his or her employer. So I raise this, Justice Cook these are all things you' ve heard. I mean, you read the opinions. Please help us here: Why such strong words by the maj ority, mainly Republicans, for your dissents? MS. COOK: The court is nominally five two, Republican, but there are, as you will note from some of the newspaper stories, there are a number of Republicans on the court who are labeled, as everyone is labeled, they are labeled as liberal. And I am labeled so called conservative. So I am not sure we can draw too much from SEN. LEAHY: Is this a liberal vendetta against you? MS. COOK: No, not at all. I think it was a you know, I' m sorry for the tone. It does appear to be a tone of a little beyond what we expect but it was a reasonable difference in Sheward. In fact, that' s the case where you find that language. I am not I think it might be stirred somewhat by the fact that this case was a very unusual in fact EXT-18-2091-C-000482 007104-001203 Document ID: 0.7.19343.9053-000001 it was exceedingly unprecedented and really an untenable procedural posture by which the case came to us. It wasn' t an individual bringing a case to right a wrong or to achieve a remedy. In fact, it was an organization, the Ohio Academy of Trial Lawyers. So that' s where the standing issue came in that' s not typically what we see. And, beyond that, the case was brought as an effort to get a writ to ask the court to issue a writ to tell the j udges in the state to not enforce this newly enacted legislation on tort reform. And my dissent frankly was only on the issues of standing and the procedural posture that simply wasn' t tenable. And, nevertheless, the court did issue a writ even though the standard for issuing a writ couldn' t possibly been met in this case. But so I am SEN. LEAHY: MS. COOK: But there are I can' t really defend the language in the maj ority SEN. LEAHY: pretty strong in more than one case. I mean, they' re pretty strong in their criticism of your dissent. And when you' ve had well over 300 dissents in eight years, you know, I assume that you can pick and choose whether they are critical. But in the areas that I' ve read, the criticism is seems to go way beyond the collegiality one normally sees in a court. And the numbers of your dissent of course go way beyond anybody else in the court. It' s one thing to j oke that your name is "Deborah Cook Dissenting, " but again in a polarized Sixth Circuit it creates a problem to me. I am concerned that as an appellate j udge you' ve repeatedly voted to overturn a j ury' s determination the employees before them were victims of discrimination. Now, I have tried an awful lot of j ury cases. I know all the effort that goes into getting a j ury verdict, and I know that courts are very reluctant to overturn a j ury verdict. They only have got a cold record. They haven' t seen the witnesses, they haven' t heard them. But your I think your dissent in Gliner v. Saint Gobain. That' s troubling four women sue their employer for gender discrimination. They received a j ury verdict. It' s overturned by the appellate court. And then a maj ority of the Supreme Court of Ohio ruled that the appellate court erred in overturning the j ury verdict. Under the proper legal standard, they could not uphold the appellate court' s ruling unless reasonable minds could come to only one conclusion the employer was not liable. And MS. COOK: I think that' s the case if I may, senator? SEN. LEAHY: Sure. MS. COOK: I believe that' s the case where the Court of Appeals initially ruled that the verdict should be overturned on insufficiency, and in fact wrote a 97 page very detailed opinion. And when the case reached our court it actually was a very short decision that said there was some evidence. And it seemed to me in my and I voiced this in my dissent that the court had really not applied any analytical rigor, nor applied the standard set forth in Civil Rule 50, for directed verdict. And that was the basis for that dissent. And I don' t I think collegiality is very important on a court. I have had a very good reputation for improving the collegiality at the Court of Appeals, where I formerly served. And EXT-18-2091-C-000483 007104-001204 Document ID: 0.7.19343.9053-000001 it was exceedingly unprecedented and really an untenable procedural posture by which the case came to us. It wasn' t an individual bringing a case to right a wrong or to achieve a remedy. In fact, it was an organization, the Ohio Academy of Trial Lawyers. So that' s where the standing issue came in that' s not typically what we see. And, beyond that, the case was brought as an effort to get a writ to ask the court to issue a writ to tell the j udges in the state to not enforce this newly enacted legislation on tort reform. And my dissent frankly was only on the issues of standing and the procedural posture that simply wasn' t tenable. And, nevertheless, the court did issue a writ even though the standard for issuing a writ couldn' t possibly been met in this case. But so I am SEN. LEAHY: MS. COOK: But there are I can' t really defend the language in the maj ority SEN. LEAHY: pretty strong in more than one case. I mean, they' re pretty strong in their criticism of your dissent. And when you' ve had well over 300 dissents in eight years, you know, I assume that you can pick and choose whether they are critical. But in the areas that I' ve read, the criticism is seems to go way beyond the collegiality one normally sees in a court. And the numbers of your dissent of course go way beyond anybody else in the court. It' s one thing to j oke that your name is "Deborah Cook Dissenting, " but again in a polarized Sixth Circuit it creates a problem to me. I am concerned that as an appellate j udge you' ve repeatedly voted to overturn a j ury' s determination the employees before them were victims of discrimination. Now, I have tried an awful lot of j ury cases. I know all the effort that goes into getting a j ury verdict, and I know that courts are very reluctant to overturn a j ury verdict. They only have got a cold record. They haven' t seen the witnesses, they haven' t heard them. But your I think your dissent in Gliner v. Saint Gobain. That' s troubling four women sue their employer for gender discrimination. They received a j ury verdict. It' s overturned by the appellate court. And then a maj ority of the Supreme Court of Ohio ruled that the appellate court erred in overturning the j ury verdict. Under the proper legal standard, they could not uphold the appellate court' s ruling unless reasonable minds could come to only one conclusion the employer was not liable. And MS. COOK: I think that' s the case if I may, senator? SEN. LEAHY: Sure. MS. COOK: I believe that' s the case where the Court of Appeals initially ruled that the verdict should be overturned on insufficiency, and in fact wrote a 97 page very detailed opinion. And when the case reached our court it actually was a very short decision that said there was some evidence. And it seemed to me in my and I voiced this in my dissent that the court had really not applied any analytical rigor, nor applied the standard set forth in Civil Rule 50, for directed verdict. And that was the basis for that dissent. And I don' t I think collegiality is very important on a court. I have had a very good reputation for improving the collegiality at the Court of Appeals, where I formerly served. And EXT-18-2091-C-000483 007104-001204 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: But collegiality aside, Justice Cook, it seems that time and time again if somebody has sued his employer, and they' ve gotten a j ury verdict, you seem very comfortable in overturning that j ury verdict. Now, I' ve seen runaway j uries where the appellate court should overturn it. But it' s rare. It' s extraordinarily rare. You seem to find them a lot. But I think in most states that' s pretty rare that a j ury that was a finder of fact gets overturned. MS. COOK: Yeah, I don' t know if we went through all the cases I don' t know that we' d find it' s done a lot. I know a case that' s been cited is the Burns case. But that was as maj ority opinion that overturned that verdict in an employment case. SEN. LEAHY: Well, Reeves the Saint Gobain case. the Reeves case, the Burns case, SEN. LEAHY: I can tell you, senator, I' ve been on the receiving end of that, and I know it' s no fun. I actually made some law in Ohio on discrimination, representing a woman in an age discrimination case and it' s the Jean Baker case that is cited as authority in the Burns decision. And, as I say, didn' t write that decision. But Jean Barker we had a verdict at the trial level, and it was overturned by the Supreme Court, but so it' s precedent that pops up in some of these cases. So I certainly don' t take it lightly and verdicts are not to be overturned unless there is in some of these cases it' s insufficiency of the evidence. We all know the standards where a verdict can be overturned, and it' s not done without the right facts or the absence of facts that warrant reversing a decision. But in a lot of these cases I think you' ll find that my if I were the dissenter, I wasn' t writing j ust for myself, and moreover quite often you will find that it' s the Court of Appeals a unanimous Court of Appeals that felt likewise. So it I am not sure I can easily be said to have missed the boat inasmuch as sometimes at least three other j udges, and perhaps as many as five, agreed six agreed. SEN. LEAHY: Justice Cook, my time is up, and I' ll we' ll come back but I did not want you feeling neglected and feel that Professor Sutton was hogging all the questions. SEN. HATCH: How considerate of you, senator. (Laughter. ) SEN. LEAHY: I tried. SEN. HATCH: Senator DeWine for j ust a few minutes. SEN. DEWINE: Thank you. Justice Cook, Senator Leahy has indicated that you seem to always rule in favor of the employer. I have got at least 23 cases here where you have ruled in favor of the employee in employment cases Ahern (ph) v. Technical Construction, Broward (ph) v. Narvis Construction (ph) , Boyd (ph) v. Chippewa Local School District, Connelly v. Brown, Douglas (ph) v. Administration. I' ll go on and on. I would submit these for the record, Mr. Chairman. EXT-18-2091-C-000484 007104-001205 Document ID: 0.7.19343.9053-000001 SEN. LEAHY: But collegiality aside, Justice Cook, it seems that time and time again if somebody has sued his employer, and they' ve gotten a j ury verdict, you seem very comfortable in overturning that j ury verdict. Now, I' ve seen runaway j uries where the appellate court should overturn it. But it' s rare. It' s extraordinarily rare. You seem to find them a lot. But I think in most states that' s pretty rare that a j ury that was a finder of fact gets overturned. MS. COOK: Yeah, I don' t know if we went through all the cases I don' t know that we' d find it' s done a lot. I know a case that' s been cited is the Burns case. But that was as maj ority opinion that overturned that verdict in an employment case. SEN. LEAHY: Well, Reeves the Saint Gobain case. the Reeves case, the Burns case, SEN. LEAHY: I can tell you, senator, I' ve been on the receiving end of that, and I know it' s no fun. I actually made some law in Ohio on discrimination, representing a woman in an age discrimination case and it' s the Jean Baker case that is cited as authority in the Burns decision. And, as I say, didn' t write that decision. But Jean Barker we had a verdict at the trial level, and it was overturned by the Supreme Court, but so it' s precedent that pops up in some of these cases. So I certainly don' t take it lightly and verdicts are not to be overturned unless there is in some of these cases it' s insufficiency of the evidence. We all know the standards where a verdict can be overturned, and it' s not done without the right facts or the absence of facts that warrant reversing a decision. But in a lot of these cases I think you' ll find that my if I were the dissenter, I wasn' t writing j ust for myself, and moreover quite often you will find that it' s the Court of Appeals a unanimous Court of Appeals that felt likewise. So it I am not sure I can easily be said to have missed the boat inasmuch as sometimes at least three other j udges, and perhaps as many as five, agreed six agreed. SEN. LEAHY: Justice Cook, my time is up, and I' ll we' ll come back but I did not want you feeling neglected and feel that Professor Sutton was hogging all the questions. SEN. HATCH: How considerate of you, senator. (Laughter. ) SEN. LEAHY: I tried. SEN. HATCH: Senator DeWine for j ust a few minutes. SEN. DEWINE: Thank you. Justice Cook, Senator Leahy has indicated that you seem to always rule in favor of the employer. I have got at least 23 cases here where you have ruled in favor of the employee in employment cases Ahern (ph) v. Technical Construction, Broward (ph) v. Narvis Construction (ph) , Boyd (ph) v. Chippewa Local School District, Connelly v. Brown, Douglas (ph) v. Administration. I' ll go on and on. I would submit these for the record, Mr. Chairman. EXT-18-2091-C-000484 007104-001205 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Without obj ection, we' ll put those in the record. SEN. DEWINE: Justice Cook, I want to discuss with you for a moment Senator Leahy' s comments about you being labeled a dissenter and you certainly have dissented in a number of cases. Let' s first start with the cases that five cases that were appealed from the Ohio Supreme Court to the United States Supreme Court. One of the cases was simply unanimous Ohio Supreme Court decision which was in fact affirmed by the U. S. Supreme Court. But in the other four cases, you disagreed with the maj ority of your colleagues. You dissented. You dissented. Your colleagues were on the other side. In each one of those cases, the United States Supreme Court said you, Justice Cook, were right, and your colleagues were wrong. Is that correct? MS. COOK: Yes, it is. SEN. DEWINE: So, being a dissenter in that case, it may not have been right, but at least it' s what the U. S. Supreme Court thought was right. MS. COOK: That' s right. It was good enough for me. SEN. DEWINE: So, being a dissenter is not always the worst thing in the world. In the State of Ohio, Mr. Chairman and members of the committee, we do have, right or wrong right or wrong, we do have what at least the Ohio newspapers and as I said earlier this morning, and it seems like it' s been a long, long time ago, I guess it was a long time ago, what the Ohio newspapers have labeled to be a very activist Ohio supreme court. And whether you think that' s a good idea or not a good idea, that' s is not what we' re debating today. But the Ohio newspapers, which run the gamut of the political spectrum, and I can say this as someone who has run for political office in Ohio for a long, long time, we have everything from the liberal to the conservative in the State of Ohio as far as the newspapers but each newspaper, maj or newspaper in the State of Ohio has labeled the Ohio supreme court as being a very, very activist Supreme Court. I will not take the time of the committee at this point to read the different editorials that make this point, but I am going to hand out to the different members of the committee, and I' ll also make ask the chairman to make it a part of the record SEN. HATCH: Without obj ection. SEN. DEWINE: this document, which basically talks these are different quotes from different editorials, which talks about how active the supreme court is. And I would tell members of the committee that it is on a bipartisan basis that it is active, this activist, very sweeping activist opinions. And I' m j ust going to read a couple of the take j ust a moment to read a couple of the comments from the court from the newspapers. EXT-18-2091-C-000485 007104-001206 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Without obj ection, we' ll put those in the record. SEN. DEWINE: Justice Cook, I want to discuss with you for a moment Senator Leahy' s comments about you being labeled a dissenter and you certainly have dissented in a number of cases. Let' s first start with the cases that five cases that were appealed from the Ohio Supreme Court to the United States Supreme Court. One of the cases was simply unanimous Ohio Supreme Court decision which was in fact affirmed by the U. S. Supreme Court. But in the other four cases, you disagreed with the maj ority of your colleagues. You dissented. You dissented. Your colleagues were on the other side. In each one of those cases, the United States Supreme Court said you, Justice Cook, were right, and your colleagues were wrong. Is that correct? MS. COOK: Yes, it is. SEN. DEWINE: So, being a dissenter in that case, it may not have been right, but at least it' s what the U. S. Supreme Court thought was right. MS. COOK: That' s right. It was good enough for me. SEN. DEWINE: So, being a dissenter is not always the worst thing in the world. In the State of Ohio, Mr. Chairman and members of the committee, we do have, right or wrong right or wrong, we do have what at least the Ohio newspapers and as I said earlier this morning, and it seems like it' s been a long, long time ago, I guess it was a long time ago, what the Ohio newspapers have labeled to be a very activist Ohio supreme court. And whether you think that' s a good idea or not a good idea, that' s is not what we' re debating today. But the Ohio newspapers, which run the gamut of the political spectrum, and I can say this as someone who has run for political office in Ohio for a long, long time, we have everything from the liberal to the conservative in the State of Ohio as far as the newspapers but each newspaper, maj or newspaper in the State of Ohio has labeled the Ohio supreme court as being a very, very activist Supreme Court. I will not take the time of the committee at this point to read the different editorials that make this point, but I am going to hand out to the different members of the committee, and I' ll also make ask the chairman to make it a part of the record SEN. HATCH: Without obj ection. SEN. DEWINE: this document, which basically talks these are different quotes from different editorials, which talks about how active the supreme court is. And I would tell members of the committee that it is on a bipartisan basis that it is active, this activist, very sweeping activist opinions. And I' m j ust going to read a couple of the take j ust a moment to read a couple of the comments from the court from the newspapers. EXT-18-2091-C-000485 007104-001206 Document ID: 0.7.19343.9053-000001 "The Ohio supreme court" this is from the Toledo Blade "The Ohio supreme court simply is not well regarded around the country. And it' s the meddling tendencies of this four j udge super legislature that deserves most of the blame. The people of Ohio elect a legislature and a governor to make laws and govern, but their intent has been thwarted by this activist court. " SEN. JOSEPH BIDEN (D DE) : what he is quoting from. SEN. DEWINE: SEN. BIDEN: Excuse me Senator, I didn' t hear This is a Toledo Blade editorial. Okay. Thank you. SEN. DEWINE: The point is that I think you will find, again, whatever you way come down on these issues, that the disputes on the court and the disagreement that Senator Leahy was quoting from in these cases pretty much comes down to where Justice Cook was dissenting based based on her strict interpretation of the law versus the court' s more activist interpretation of the law. And I will reserve the balance of my time, Mr. Chairman. reserve the balance of my time. I SEN. HATCH: Thank you. Senator Biden has not had his first round, so if it' s all right with everybody, we' ll SEN. BIDEN: Thank you, Mr. Chairman. I apologize to the committee and the witnesses. This has been a pretty busy day, and I' ve been spending my whole day dealing with issues relating to Iraq. And I have a lot of questions. I hope we' re going to have a chance to have this panel over, because I for one have a not a lot I have about a half hour' s an hour' s worth of questions that I I' m, because of the schedule today, not able to do, and SEN. HATCH: We' re happy to give you the time now, Senator Biden. You' re former chairman SEN. BIDEN: Well, let me I won' t I won' t take that time now because in large part I can' t I have another commitment relating to the Foreign Relations Committee I have to do at 6: 18, but let me start off by j ust asking one or two questions in a few minutes here. Professor Sutton, I I' m a little concerned that with the nature and the way in which the Supreme Court is necessarily has cut back significantly the number of cases it reviews to about 80 cases a year, and that most of the significant cases, whether we' re talking about the decisions relating to Roe v. Wade or any other case, there is enough ambiguity and significantly less review that the circuit court of appeals has a in every circuit has a significant impact beyond what they had 20 years ago in making law. And so I have a number of questions for you, Professor, relating to your notion of the role of the court and your assertion, I' m told and correct me if I' m wrong that you' ve indicated, and I quote, that "federalism is a zero sum situation in which EXT-18-2091-C-000486 007104-001207 Document ID: 0.7.19343.9053-000001 "The Ohio supreme court" this is from the Toledo Blade "The Ohio supreme court simply is not well regarded around the country. And it' s the meddling tendencies of this four j udge super legislature that deserves most of the blame. The people of Ohio elect a legislature and a governor to make laws and govern, but their intent has been thwarted by this activist court. " SEN. JOSEPH BIDEN (D DE) : what he is quoting from. SEN. DEWINE: SEN. BIDEN: Excuse me Senator, I didn' t hear This is a Toledo Blade editorial. Okay. Thank you. SEN. DEWINE: The point is that I think you will find, again, whatever you way come down on these issues, that the disputes on the court and the disagreement that Senator Leahy was quoting from in these cases pretty much comes down to where Justice Cook was dissenting based based on her strict interpretation of the law versus the court' s more activist interpretation of the law. And I will reserve the balance of my time, Mr. Chairman. reserve the balance of my time. I SEN. HATCH: Thank you. Senator Biden has not had his first round, so if it' s all right with everybody, we' ll SEN. BIDEN: Thank you, Mr. Chairman. I apologize to the committee and the witnesses. This has been a pretty busy day, and I' ve been spending my whole day dealing with issues relating to Iraq. And I have a lot of questions. I hope we' re going to have a chance to have this panel over, because I for one have a not a lot I have about a half hour' s an hour' s worth of questions that I I' m, because of the schedule today, not able to do, and SEN. HATCH: We' re happy to give you the time now, Senator Biden. You' re former chairman SEN. BIDEN: Well, let me I won' t I won' t take that time now because in large part I can' t I have another commitment relating to the Foreign Relations Committee I have to do at 6: 18, but let me start off by j ust asking one or two questions in a few minutes here. Professor Sutton, I I' m a little concerned that with the nature and the way in which the Supreme Court is necessarily has cut back significantly the number of cases it reviews to about 80 cases a year, and that most of the significant cases, whether we' re talking about the decisions relating to Roe v. Wade or any other case, there is enough ambiguity and significantly less review that the circuit court of appeals has a in every circuit has a significant impact beyond what they had 20 years ago in making law. And so I have a number of questions for you, Professor, relating to your notion of the role of the court and your assertion, I' m told and correct me if I' m wrong that you' ve indicated, and I quote, that "federalism is a zero sum situation in which EXT-18-2091-C-000486 007104-001207 Document ID: 0.7.19343.9053-000001 either the state or the federal law making prerogative must fall. " That is a constitutional view that I have an overwhelming disagreement with, and I suffer from the fact that I spent a lot of time teaching the separation of powers doctrine, and I think it' s not inconsistent with where the maj ority of the Supreme Court has gone, but I think it' s I think it' s fundamentally flawed constitutional methodology. And that' s not to say that it is not intellectually defensible. It is to say that I have fundamental disagreement with it. And I want to be straight up with you. I know this is not for the Supreme Court. But based on what I have read, assuming it' s consistent with what you would respond to, if you were a nominee for the Supreme Court, I would not even though you' re intellectually and morally and in every way capable of sitting on the court, I would do all in my power to keep you off the court because it appears as though we have such a fundamentally diverging view of the 10th Amendment, the 11th Amendment, and the role of federalism, that I j ust want to be up front with you about that. And so for me, I will not get an opportunity to go into any great detail tonight, obviously, but I have some questions I would like you to respond to. And let me begin by suggesting that and I do not ask this out of parochial interest, although I have great pride in being the person who drafted the Violence Against Women Act but I' d like to understand your reasoning beyond the fact that you were an advocate here, if there is a reason beyond your advocacy representing a client. And you filed a brief in the Supreme Court on behalf of the State of Alabama, arguing against the constitutionality of the federal civil remedy of victims of sexual assault and violence. Now, this is not a question of whether or not you were confirmed or not confirmed by the court, whether your view prevailed or not. It' s a question of my trying to figure out how you approach these issues. Among other things, your brief in Morrison stated that gender based violence does not substantially interstate commerce. Now, prior to the Violence Against Women Act, I literally held nine hearings and received testimony from over a hundred witnesses, at the end of which those long and thorough exploration, the Congress concluded, not j ust me, that gender based violent crimes, in fear of these I must leave in one minute? Wonderful. I' m going to have to submit this question to you in writing, but the bottom line is, what I' m trying to get a sense of is how you approach what you consider to be the prerogatives of the Congress, Section the 5 of the 14th Amendment, the significant change in the way in which which this court, which I think is a bright court, but it is the most activist court in the history of the United States of America. No court has overruled as many national pieces of legislation, including the New Deal Era, as this court has. And I want you to know, to be blunt with you, I come from sort of the Souter school of in his dissents in the Florida pre paid cases and their progeny, where Souter said, "The fact of such a substantial effect is not the issue of the courts in the first instance, but for the EXT-18-2091-C-000487 007104-001208 Document ID: 0.7.19343.9053-000001 either the state or the federal law making prerogative must fall. " That is a constitutional view that I have an overwhelming disagreement with, and I suffer from the fact that I spent a lot of time teaching the separation of powers doctrine, and I think it' s not inconsistent with where the maj ority of the Supreme Court has gone, but I think it' s I think it' s fundamentally flawed constitutional methodology. And that' s not to say that it is not intellectually defensible. It is to say that I have fundamental disagreement with it. And I want to be straight up with you. I know this is not for the Supreme Court. But based on what I have read, assuming it' s consistent with what you would respond to, if you were a nominee for the Supreme Court, I would not even though you' re intellectually and morally and in every way capable of sitting on the court, I would do all in my power to keep you off the court because it appears as though we have such a fundamentally diverging view of the 10th Amendment, the 11th Amendment, and the role of federalism, that I j ust want to be up front with you about that. And so for me, I will not get an opportunity to go into any great detail tonight, obviously, but I have some questions I would like you to respond to. And let me begin by suggesting that and I do not ask this out of parochial interest, although I have great pride in being the person who drafted the Violence Against Women Act but I' d like to understand your reasoning beyond the fact that you were an advocate here, if there is a reason beyond your advocacy representing a client. And you filed a brief in the Supreme Court on behalf of the State of Alabama, arguing against the constitutionality of the federal civil remedy of victims of sexual assault and violence. Now, this is not a question of whether or not you were confirmed or not confirmed by the court, whether your view prevailed or not. It' s a question of my trying to figure out how you approach these issues. Among other things, your brief in Morrison stated that gender based violence does not substantially interstate commerce. Now, prior to the Violence Against Women Act, I literally held nine hearings and received testimony from over a hundred witnesses, at the end of which those long and thorough exploration, the Congress concluded, not j ust me, that gender based violent crimes, in fear of these I must leave in one minute? Wonderful. I' m going to have to submit this question to you in writing, but the bottom line is, what I' m trying to get a sense of is how you approach what you consider to be the prerogatives of the Congress, Section the 5 of the 14th Amendment, the significant change in the way in which which this court, which I think is a bright court, but it is the most activist court in the history of the United States of America. No court has overruled as many national pieces of legislation, including the New Deal Era, as this court has. And I want you to know, to be blunt with you, I come from sort of the Souter school of in his dissents in the Florida pre paid cases and their progeny, where Souter said, "The fact of such a substantial effect is not the issue of the courts in the first instance, but for the EXT-18-2091-C-000487 007104-001208 Document ID: 0.7.19343.9053-000001 Congress' s institutional capacity for gathering evidence and taking testimony far exceeds ours. " Going on, Souter says, "I' m left wondering, where does the court' s decision leave Congress' s former plenary power to remove serious obstructions to interstate commerce, from whatever source. " It is reminiscent of the Lockner (sp) era, when they said, by the way, you have those labor standards having to do with mining. Mining is not interstate commerce. Then they came along and said production is not interstate commerce. Then they said manufacturing is not interstate commerce. Until midway in the New Deal, with the end of the Lockner (sp) era, they said, "Whoa, whoa, whoa, wait a minute, wait a minute. " What I' m really trying to get at and I' ll submit these questions in writing is at what point does the court decide to become does the the federal traffic cop? At what point does the court court' s authority to intervene in what I believe constitutionally has been left to the Congress under the Constitution to make j udgments about? And you seem to have an incredibly restrictive view of the Congress' s prerogatives. This is not Lopez, where the court did not have sufficient finding where the court did not find sufficient findings. Even this court said there is no question that there was an extensive record, but we, as they did in in Alton (sp) Railroad, years earlier said, but we don' t think that' s sufficient. And I wonder who the hell the court is to make that j udgment that we don' t think the remedy you chose is effective? That' s a very rapid attempt to summarize my concerns so that you have a context in which to understand the questions that why I' m asking the questions, j ust straightforwardly. MR. SUTTON: No, I appreciate that. I appreciate your being there' s not doubt that the criticism you j ust straightforward. I levied against the Morrison decision is the strongest criticism, and it was clearly the most difficult part of the case for the court, and exactly where the five four line was, and that line was how much deference to give to these findings. And, you know, I you were kind enough to mention I was involved in that case on behalf of a client. I was working as an advocate, and I was doing my best by them. And I, you know, what I would have done in that case, God only knows. The one thing I would say, though, about your concern about court of appeals j udges I agree with you, I wish the U. S. Supreme Court would take more cases. It made my U. S. Supreme Court practice very difficult to sustain, they take so few cases. But, I' m not aware of too many, in fact, none, court of appeals decisions that struck a federal law in other words, your handiwork, that weren' t eventually, and usually quite promptly, reviewed by the U. S. Supreme Court. SEN. BIDEN: Well, I think that' s true. Most have been. But there are case, and I' m compiling this I think there were I think we' ll be able to show there are roughly, there are over 200 cases the circuit court of appeals has found enough leeway in the existing law where they have changed the basic law without any review by the Supreme Court because the Supreme Court never took the cases. EXT-18-2091-C-000488 007104-001209 Document ID: 0.7.19343.9053-000001 Congress' s institutional capacity for gathering evidence and taking testimony far exceeds ours. " Going on, Souter says, "I' m left wondering, where does the court' s decision leave Congress' s former plenary power to remove serious obstructions to interstate commerce, from whatever source. " It is reminiscent of the Lockner (sp) era, when they said, by the way, you have those labor standards having to do with mining. Mining is not interstate commerce. Then they came along and said production is not interstate commerce. Then they said manufacturing is not interstate commerce. Until midway in the New Deal, with the end of the Lockner (sp) era, they said, "Whoa, whoa, whoa, wait a minute, wait a minute. " What I' m really trying to get at and I' ll submit these questions in writing is at what point does the court decide to become does the the federal traffic cop? At what point does the court court' s authority to intervene in what I believe constitutionally has been left to the Congress under the Constitution to make j udgments about? And you seem to have an incredibly restrictive view of the Congress' s prerogatives. This is not Lopez, where the court did not have sufficient finding where the court did not find sufficient findings. Even this court said there is no question that there was an extensive record, but we, as they did in in Alton (sp) Railroad, years earlier said, but we don' t think that' s sufficient. And I wonder who the hell the court is to make that j udgment that we don' t think the remedy you chose is effective? That' s a very rapid attempt to summarize my concerns so that you have a context in which to understand the questions that why I' m asking the questions, j ust straightforwardly. MR. SUTTON: No, I appreciate that. I appreciate your being there' s not doubt that the criticism you j ust straightforward. I levied against the Morrison decision is the strongest criticism, and it was clearly the most difficult part of the case for the court, and exactly where the five four line was, and that line was how much deference to give to these findings. And, you know, I you were kind enough to mention I was involved in that case on behalf of a client. I was working as an advocate, and I was doing my best by them. And I, you know, what I would have done in that case, God only knows. The one thing I would say, though, about your concern about court of appeals j udges I agree with you, I wish the U. S. Supreme Court would take more cases. It made my U. S. Supreme Court practice very difficult to sustain, they take so few cases. But, I' m not aware of too many, in fact, none, court of appeals decisions that struck a federal law in other words, your handiwork, that weren' t eventually, and usually quite promptly, reviewed by the U. S. Supreme Court. SEN. BIDEN: Well, I think that' s true. Most have been. But there are case, and I' m compiling this I think there were I think we' ll be able to show there are roughly, there are over 200 cases the circuit court of appeals has found enough leeway in the existing law where they have changed the basic law without any review by the Supreme Court because the Supreme Court never took the cases. EXT-18-2091-C-000488 007104-001209 Document ID: 0.7.19343.9053-000001 And I' m and I have my staff in the process of preparing that for some time now, which is, quite frankly, unrelated to you or any one of you, is beginning to make me review my standard for review of nominees. I have a very different standards for 30 years reviewing Supreme Court nominees because they are not bound by stare decisis than I do reviewing district and circuit court j udges, but I am moving to the view that there should be in effect, to, quote, steal a phrase from the court, "an intermediate standard, " for circuit court of appeals j udges because they have become so much more significant in being the final arbiters and they are not legally, the court, the Supreme Court is but because of the review process they have become the final arbiters in areas where I used to be able to say, "Now, I know the court will review this. " If you are bound by stare decisis, I you will, and I trust your j udicial temperament that you mean that, then in fact I' ll take a chance on you even though I fundamentally disagree with your constitutional methodology because you' ll abide by the decisions. But there are enough there are enough discrepancies, or differences, or holes in the reasoning. I mean, look at all the cases that have flown and I don' t this is not my maj or concern but look at all the cases that have been the progeny of Roe v. Wade. They' re very, very, very complicated, whether it' s Casey, or whether it' s the issue of parental notification all these issues. And in the past, I never doubted that the court would review those. But now what' s happening is the court' s in a position where it does not review a significant portion of the circuit court of appeals decisions that change state law, or uphold state law, that are never reviewed. And that' s the only generic point I wish to make with you. And one of the questions is going to be, you, as an advocate I assume it' s your answer, but I' d appreciate an honest answer if it' s not you argued in your brief that even the Congress did not show that that sexual violence, violence against women had no impact on interstate commerce. Whether or not we get into the question of what constitutes commerce, that it had no impact, by the old standard on what constituted commerce, as I read as I read your brief. MR. SUTTON: Well, maybe I' m not understanding the question but the point I think we were trying to make was in all of the commerce clause cases, high watermark cases, Wickard v. Filburn, Jones and Laughlin, Lopez even, there' s been a consensus that the court does have a role in determining whether something does impact SEN. BIDEN: It is interstate time. MR. SUTTON: interstate commerce. And I thought that was meant to be the main theme of the brief, that the court did have a role here whether it decides to uphold now or not. SEN. BIDEN: But did not you argue that it does have making a j udgment whether it impacts, but in order for you to conclusion that it did not impact interstate commerce you had fundamentally disregard the hundred hours of hearing that the held and concluded that it did, correct? a role of reach the to Congress EXT-18-2091-C-000489 007104-001210 Document ID: 0.7.19343.9053-000001 And I' m and I have my staff in the process of preparing that for some time now, which is, quite frankly, unrelated to you or any one of you, is beginning to make me review my standard for review of nominees. I have a very different standards for 30 years reviewing Supreme Court nominees because they are not bound by stare decisis than I do reviewing district and circuit court j udges, but I am moving to the view that there should be in effect, to, quote, steal a phrase from the court, "an intermediate standard, " for circuit court of appeals j udges because they have become so much more significant in being the final arbiters and they are not legally, the court, the Supreme Court is but because of the review process they have become the final arbiters in areas where I used to be able to say, "Now, I know the court will review this. " If you are bound by stare decisis, I you will, and I trust your j udicial temperament that you mean that, then in fact I' ll take a chance on you even though I fundamentally disagree with your constitutional methodology because you' ll abide by the decisions. But there are enough there are enough discrepancies, or differences, or holes in the reasoning. I mean, look at all the cases that have flown and I don' t this is not my maj or concern but look at all the cases that have been the progeny of Roe v. Wade. They' re very, very, very complicated, whether it' s Casey, or whether it' s the issue of parental notification all these issues. And in the past, I never doubted that the court would review those. But now what' s happening is the court' s in a position where it does not review a significant portion of the circuit court of appeals decisions that change state law, or uphold state law, that are never reviewed. And that' s the only generic point I wish to make with you. And one of the questions is going to be, you, as an advocate I assume it' s your answer, but I' d appreciate an honest answer if it' s not you argued in your brief that even the Congress did not show that that sexual violence, violence against women had no impact on interstate commerce. Whether or not we get into the question of what constitutes commerce, that it had no impact, by the old standard on what constituted commerce, as I read as I read your brief. MR. SUTTON: Well, maybe I' m not understanding the question but the point I think we were trying to make was in all of the commerce clause cases, high watermark cases, Wickard v. Filburn, Jones and Laughlin, Lopez even, there' s been a consensus that the court does have a role in determining whether something does impact SEN. BIDEN: It is interstate time. MR. SUTTON: interstate commerce. And I thought that was meant to be the main theme of the brief, that the court did have a role here whether it decides to uphold now or not. SEN. BIDEN: But did not you argue that it does have making a j udgment whether it impacts, but in order for you to conclusion that it did not impact interstate commerce you had fundamentally disregard the hundred hours of hearing that the held and concluded that it did, correct? a role of reach the to Congress EXT-18-2091-C-000489 007104-001210 Document ID: 0.7.19343.9053-000001 MR. SUTTON: I can certainly understanding someone taking that view, but I would say SEN. BIDEN: Is there any other view to take? MR. SUTTON: at my client, the client is the one that took that position and I did everything I could to advocate that position. And I do SEN. BIDEN: Do you believe that? Do you believe that? I' m not suggesting it was inappropriate for you to for example, if you were teaching it, would you teach that the Congress, the facts presented in did not warrant the case and the congressional record did not warrant the court' s concurrence because, as my good friend Justice Scalia says, everybody knows they never read this stuff and they never write this stuff, those senators, it' s done by staff so dismissively it' s taken out of the record. I mean, is that a view you share? MR. SUTTON: No, it is not a view I share. I guess the point I would make is that there was a voluminous record, no doubt about it, and, of course, there was j ust one provision of that law at issue. The rest SEN. BIDEN: Well, I know that. MR. SUTTON: were not even implicated much less attacked. And I think the issue in the case, it' s a difficult one, is whether there is a sufficient amount of findings that no matter how much they are, no matter how much better equipped this body is to make these findings than the court is, whether there' s still a role in the responsibility of the court to examine them to determine whether they do constitute under the Constitution interstate commerce. And what would I have done? I have no idea as a court of appeals j udge. I' m sorry, I can' t argue that. I' ve not looked at the issue. SEN. BIDEN: No, I' m not asking you what you would have done but I do want to explore these issues with you and I have questions as well for the other nominees. Like I said, I hope we have more time. I understand my name was invoked when someone raised the issue of whether or not we had three not unqualified but controversial nominees all in one hearing, and Biden did it. The three that Biden put together had a vote of I think 98 to nothing so they were not controversial. I thank you all. I apologize for going on. Thank you, Mr. Chairman. SEN. HATCH: Senator Kennedy. SEN. KENNEDY: Thank you, Mr. Chairman and I thank our witnesses. It' s been a long day for all of you and we appreciate your patience. I regret that I was unable to be hear earlier today. This afternoon I attended a memorial for a former congressman, Wayne Owens, EXT-18-2091-C-000490 007104-001211 Document ID: 0.7.19343.9053-000001 MR. SUTTON: I can certainly understanding someone taking that view, but I would say SEN. BIDEN: Is there any other view to take? MR. SUTTON: at my client, the client is the one that took that position and I did everything I could to advocate that position. And I do SEN. BIDEN: Do you believe that? Do you believe that? I' m not suggesting it was inappropriate for you to for example, if you were teaching it, would you teach that the Congress, the facts presented in did not warrant the case and the congressional record did not warrant the court' s concurrence because, as my good friend Justice Scalia says, everybody knows they never read this stuff and they never write this stuff, those senators, it' s done by staff so dismissively it' s taken out of the record. I mean, is that a view you share? MR. SUTTON: No, it is not a view I share. I guess the point I would make is that there was a voluminous record, no doubt about it, and, of course, there was j ust one provision of that law at issue. The rest SEN. BIDEN: Well, I know that. MR. SUTTON: were not even implicated much less attacked. And I think the issue in the case, it' s a difficult one, is whether there is a sufficient amount of findings that no matter how much they are, no matter how much better equipped this body is to make these findings than the court is, whether there' s still a role in the responsibility of the court to examine them to determine whether they do constitute under the Constitution interstate commerce. And what would I have done? I have no idea as a court of appeals j udge. I' m sorry, I can' t argue that. I' ve not looked at the issue. SEN. BIDEN: No, I' m not asking you what you would have done but I do want to explore these issues with you and I have questions as well for the other nominees. Like I said, I hope we have more time. I understand my name was invoked when someone raised the issue of whether or not we had three not unqualified but controversial nominees all in one hearing, and Biden did it. The three that Biden put together had a vote of I think 98 to nothing so they were not controversial. I thank you all. I apologize for going on. Thank you, Mr. Chairman. SEN. HATCH: Senator Kennedy. SEN. KENNEDY: Thank you, Mr. Chairman and I thank our witnesses. It' s been a long day for all of you and we appreciate your patience. I regret that I was unable to be hear earlier today. This afternoon I attended a memorial for a former congressman, Wayne Owens, EXT-18-2091-C-000490 007104-001211 Document ID: 0.7.19343.9053-000001 who was a congressman perhaps we could have Wayne Owens and had a worked for my brother from the state of Utah and I had thought that had a brief recess where several of us who knew lot of respect for him, he actually worked for me, Bob, had a chance to go there. So unlike most of the other hearings where members are able to stay and go through it, we come in here not sure whether some of these areas have been covered in the past or not, but nonetheless I will move ahead and we' ll do the best we can. I must say I j ust again want to register with the chairman at the opening of the session if this is the way the committee is going to be conducted I' m not sure that this accelerates the goodwill of the committee or the action of the committee in the long term or even in the short term, but that' s an issue for another time. Justice Cook, I want to come back to this issue in terms of your dissents and who you' ve been finding for. I pick up a little bit of the comments that my friend Senator DeWine raised in response to some of Leahy' s questions, but I' d like to come back to this issue with you, if I could, please, and that is there is at least an argument that is made that your decisions come down in protecting the more powerful against the weak, that you' ve worked hard to make it more difficult, for example, for those who are inj ured in the workplace to get rightful compensation. You' ve made it more difficult for victims of discrimination to get j ustice. You' ve made it easier for large corporations to avoid paying for the harms that their defective products have caused. I know these are not new to you but I want to hear from you. In fact, some have said that your views have marginalized you even on a conservative court, that you authored at least 313 dissents, many of them lone dissents. This number is extraordinary, is, in fact, more than any other j ustice on your court. Now, what' s more, even with all of these dissents you have never dissented from any decision of the court that was favorable to the employer. You stand up for the big business all the time. You' ve never stood up for the rights of the individual. To the contrary, you' ve dissented 23 times in cases in which the court ruled in favor of the employee at 79 percent of the time. You' ve only voted for an employee six times and in five of those cases the court was unanimous and in the other case the other court voted six to one in favor of the employee. All of this is why your rating by the Ohio Chamber of Commerce is not surprising they say you rank first in voting for the employer in employment cases. You also rank first in voting with the defendant in product liability cases. You even scored a perfect 100 percent in insurance cases and on issues affecting the environment, voting with the corporate defendant 100 percent of the time. Now, all of us are aware about these percentages and I want to give you an opportunity to respond to those and to the other observations that I made about your holdings. EXT-18-2091-C-000491 007104-001212 Document ID: 0.7.19343.9053-000001 who was a congressman perhaps we could have Wayne Owens and had a worked for my brother from the state of Utah and I had thought that had a brief recess where several of us who knew lot of respect for him, he actually worked for me, Bob, had a chance to go there. So unlike most of the other hearings where members are able to stay and go through it, we come in here not sure whether some of these areas have been covered in the past or not, but nonetheless I will move ahead and we' ll do the best we can. I must say I j ust again want to register with the chairman at the opening of the session if this is the way the committee is going to be conducted I' m not sure that this accelerates the goodwill of the committee or the action of the committee in the long term or even in the short term, but that' s an issue for another time. Justice Cook, I want to come back to this issue in terms of your dissents and who you' ve been finding for. I pick up a little bit of the comments that my friend Senator DeWine raised in response to some of Leahy' s questions, but I' d like to come back to this issue with you, if I could, please, and that is there is at least an argument that is made that your decisions come down in protecting the more powerful against the weak, that you' ve worked hard to make it more difficult, for example, for those who are inj ured in the workplace to get rightful compensation. You' ve made it more difficult for victims of discrimination to get j ustice. You' ve made it easier for large corporations to avoid paying for the harms that their defective products have caused. I know these are not new to you but I want to hear from you. In fact, some have said that your views have marginalized you even on a conservative court, that you authored at least 313 dissents, many of them lone dissents. This number is extraordinary, is, in fact, more than any other j ustice on your court. Now, what' s more, even with all of these dissents you have never dissented from any decision of the court that was favorable to the employer. You stand up for the big business all the time. You' ve never stood up for the rights of the individual. To the contrary, you' ve dissented 23 times in cases in which the court ruled in favor of the employee at 79 percent of the time. You' ve only voted for an employee six times and in five of those cases the court was unanimous and in the other case the other court voted six to one in favor of the employee. All of this is why your rating by the Ohio Chamber of Commerce is not surprising they say you rank first in voting for the employer in employment cases. You also rank first in voting with the defendant in product liability cases. You even scored a perfect 100 percent in insurance cases and on issues affecting the environment, voting with the corporate defendant 100 percent of the time. Now, all of us are aware about these percentages and I want to give you an opportunity to respond to those and to the other observations that I made about your holdings. EXT-18-2091-C-000491 007104-001212 Document ID: 0.7.19343.9053-000001 It seems that you' re in dissent so often because you are consistently and militantly pro business, anti worker, anti civil rights, and I want to hear from you what conclusions you think we ought to draw from those percentages and from that record about how balanced you can be and how either workers or those people again who are left out, behind, those that care about the environment and other issues that are in conflict between employer and employee, how they could look to you and in your court and feel they' re going to get a fair shake? MS. COOK: Thanks, Senator. I' ll address that. First of all, I think to say, as you acknowledge, the percentages are nothing I can ever check or know how they arrive at those, so I sure don' t vouch for those sorts of things. But, if you will, I tried to j ust gather cases I think Senator DeWine put out a listing of the cases that show that, frankly, I' m not a reliable vote for anyone, that my decision making, and I hope you' ll find this if you actually read the cases and read the dissents, you' ll find, I hope, that it' s a matter more of my precise reading of the law, looking for the actually text of the statute and when the cases, the results of the cases go against an employee or in the general civil rights kind of ideas I frankly don' t think I deserve any blame for the legislation that I am apt to construe or interpret. And so as in many of the cases there' s a Doe case, which involved allowing insurance for negligent hiring in molestations cases. In Hanes v. City of Franklin there was an edge drop off a road and though the maj ority of the case thought that the city was immune and not liable for damages, in that case I dissented and said indeed the city was because the city created a nuisance. In Ritchie Produce I upheld a minority business set aside. In Nakov (ph) v. Fairview General Hospital it was a tragic case of medical malpractice where an individual came in with a fracture of the leg. In the setting of that leg the circulation was cut off, which ultimately resulted in amputation. I upheld the verdict of $2. 4 million. In Buckeye Hope case I dissented from the court' s decision that a referendum could deny minority housing in a city in Ohio. Ultimately the court reconsidered that case and my dissent then became part of the maj ority. In Ballish (ph) v. Copley Board of Education I upheld a verdict for a parent who came on school property. Again, the maj ority found that that individual, that the school was immune under our sovereign immunity law and I ruled the other way. In Rice versus Certainteed there' s a case about whether or not punitive damages can be awarded in discrimination cases and in that case I interpreted the language of the statute. The word "damages" I found was not limited by context or any modifiers and therefore allowed, ruled that that word included the whole panoply of pecuniary remedies. In Wallis v. Ohio Department, Gibson v. Meadow Gold, I don' t want to bore the committee but I have more, Senator. EXT-18-2091-C-000492 007104-001213 Document ID: 0.7.19343.9053-000001 It seems that you' re in dissent so often because you are consistently and militantly pro business, anti worker, anti civil rights, and I want to hear from you what conclusions you think we ought to draw from those percentages and from that record about how balanced you can be and how either workers or those people again who are left out, behind, those that care about the environment and other issues that are in conflict between employer and employee, how they could look to you and in your court and feel they' re going to get a fair shake? MS. COOK: Thanks, Senator. I' ll address that. First of all, I think to say, as you acknowledge, the percentages are nothing I can ever check or know how they arrive at those, so I sure don' t vouch for those sorts of things. But, if you will, I tried to j ust gather cases I think Senator DeWine put out a listing of the cases that show that, frankly, I' m not a reliable vote for anyone, that my decision making, and I hope you' ll find this if you actually read the cases and read the dissents, you' ll find, I hope, that it' s a matter more of my precise reading of the law, looking for the actually text of the statute and when the cases, the results of the cases go against an employee or in the general civil rights kind of ideas I frankly don' t think I deserve any blame for the legislation that I am apt to construe or interpret. And so as in many of the cases there' s a Doe case, which involved allowing insurance for negligent hiring in molestations cases. In Hanes v. City of Franklin there was an edge drop off a road and though the maj ority of the case thought that the city was immune and not liable for damages, in that case I dissented and said indeed the city was because the city created a nuisance. In Ritchie Produce I upheld a minority business set aside. In Nakov (ph) v. Fairview General Hospital it was a tragic case of medical malpractice where an individual came in with a fracture of the leg. In the setting of that leg the circulation was cut off, which ultimately resulted in amputation. I upheld the verdict of $2. 4 million. In Buckeye Hope case I dissented from the court' s decision that a referendum could deny minority housing in a city in Ohio. Ultimately the court reconsidered that case and my dissent then became part of the maj ority. In Ballish (ph) v. Copley Board of Education I upheld a verdict for a parent who came on school property. Again, the maj ority found that that individual, that the school was immune under our sovereign immunity law and I ruled the other way. In Rice versus Certainteed there' s a case about whether or not punitive damages can be awarded in discrimination cases and in that case I interpreted the language of the statute. The word "damages" I found was not limited by context or any modifiers and therefore allowed, ruled that that word included the whole panoply of pecuniary remedies. In Wallis v. Ohio Department, Gibson v. Meadow Gold, I don' t want to bore the committee but I have more, Senator. EXT-18-2091-C-000492 007104-001213 Document ID: 0.7.19343.9053-000001 SEN. KENNEDY: Well, the reason I raise this you mentioned some and I' ll review those cases I was thinking of some of those, I guess Esponj a (ph) v. Lawson and in that case, as I understand it, called Cook' s interpretation law nonsensical, said that it leads to an untenable position, unfair to employees, adopting the lower court' s interpretation or taking the position adopted by Justice Cook in her dissent would be, as the maj ority clearly stated, an absurd interpretation that seems to borrow from the pages of "Catch 22. " MS. COOK: And actually, Senator, in that case it was interpreting the statute in the usual mode but what the maj ority really was concerned about was that the law in Ohio is pretty plainly expressed that someone who' s inj ured in the course of employment, that the compensability can be narrower than the immunity. Employers are immune from suit and therefore there are occasions where someone can be inj ured but their inj uries not compensable and that' s exactly how the law is written and that is my j ob to read it precisely. SEN. KENNEDY: In the Russell v. Industrial Commission the court stated that your dissent lacked statutory support for its position and has been unable to cite even the slightest dictum from any case to support her view. MS. COOK: Well, like so many dissents SEN. KENNEDY: No, I didn' t have an opportunity to give these cases to you before, so I' m glad to let you give whatever response or the time to do it, because it' s MS. COOK: In that case there was, number one, a statutory, a new enactment, so a statutory change in the language. My dissent was j oined by the chief j ustice and so I think it' s well reasoned. I think it' s based on the statutory text. SEN. KENNEDY: Well, now in the Russell case, as I understand, you argued that the workman' s compensation benefit should terminate without a hearing as soon as the non attending physician says the benefit should stop. You argued that in spite of the statutory language that couldn' t be more clear. This is what the statutory language says: "Payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician' s report, payments may be terminated only upon application and hearing by a district hearing officer. " MS. COOK: That' s right. SEN. KENNEDY: And you interpret that statute entirely differently. You argue that the compensation base should be terminated without a hearing as soon as the non attending physician said the benefits should stop. Now, if, as I understand it, the employer disputes the attending physician, payment may be terminated only, as I said, upon the hearing officer and the maj ority stated your dissent lacked statutory support, unable to cite even the dictum for the case. EXT-18-2091-C-000493 007104-001214 Document ID: 0.7.19343.9053-000001 SEN. KENNEDY: Well, the reason I raise this you mentioned some and I' ll review those cases I was thinking of some of those, I guess Esponj a (ph) v. Lawson and in that case, as I understand it, called Cook' s interpretation law nonsensical, said that it leads to an untenable position, unfair to employees, adopting the lower court' s interpretation or taking the position adopted by Justice Cook in her dissent would be, as the maj ority clearly stated, an absurd interpretation that seems to borrow from the pages of "Catch 22. " MS. COOK: And actually, Senator, in that case it was interpreting the statute in the usual mode but what the maj ority really was concerned about was that the law in Ohio is pretty plainly expressed that someone who' s inj ured in the course of employment, that the compensability can be narrower than the immunity. Employers are immune from suit and therefore there are occasions where someone can be inj ured but their inj uries not compensable and that' s exactly how the law is written and that is my j ob to read it precisely. SEN. KENNEDY: In the Russell v. Industrial Commission the court stated that your dissent lacked statutory support for its position and has been unable to cite even the slightest dictum from any case to support her view. MS. COOK: Well, like so many dissents SEN. KENNEDY: No, I didn' t have an opportunity to give these cases to you before, so I' m glad to let you give whatever response or the time to do it, because it' s MS. COOK: In that case there was, number one, a statutory, a new enactment, so a statutory change in the language. My dissent was j oined by the chief j ustice and so I think it' s well reasoned. I think it' s based on the statutory text. SEN. KENNEDY: Well, now in the Russell case, as I understand, you argued that the workman' s compensation benefit should terminate without a hearing as soon as the non attending physician says the benefit should stop. You argued that in spite of the statutory language that couldn' t be more clear. This is what the statutory language says: "Payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician' s report, payments may be terminated only upon application and hearing by a district hearing officer. " MS. COOK: That' s right. SEN. KENNEDY: And you interpret that statute entirely differently. You argue that the compensation base should be terminated without a hearing as soon as the non attending physician said the benefits should stop. Now, if, as I understand it, the employer disputes the attending physician, payment may be terminated only, as I said, upon the hearing officer and the maj ority stated your dissent lacked statutory support, unable to cite even the dictum for the case. EXT-18-2091-C-000493 007104-001214 Document ID: 0.7.19343.9053-000001 MS. COOK: Right and we really disagreed in that case, as people in good faith can always disagree about the meaning of words but in that case the maj ority and the dissent disagreed about which statute to read. So I was construing my dissent construed an analogous statute and a parallel statute that had to be read in conj unction with the one that the maj ority was relying upon. SEN. KENNEDY: I' m not an expert on the Ohio law but it seems that in the citation it' s fairly clear that "payment shall be for a duration based on the medical reports of the attending physician. " MS. COOK: That' s right. SEN. KENNEDY: "If the employer disputes the physician, payments may be terminated only upon application hearing by a district hearing officer. " And you made the j udgment that it could be terminated without a hearing. And you have another statute. MS. COOK: Yes. SEN. KENNEDY: MS. COOK: The issue really surrounded Could you reference that, the other statute? Yes, I will. SEN. KENNEDY: This is the concern about in light of the persistent dissents and your consistent siding with the large corporations against the individuals and departures from the clear language of the law, how are we going to be assured that you won' t overreach in order to reach a conservative result? Now, let me give you another example. As you know, one of the real best weapons that we have in the struggle to improve the lives of those who are left behind in our society is education and when we educate our children well we give them an opportunity to take part in the American dream. You, however, have taken the Ohio Constitution' s provisions guaranteeing a thorough and efficient public education and voted to basically interpret it out of existence. This is the (Duralt ?) v. Ohio case. You were confronted with overwhelming evidence that state funding of public schools was woefully inadequate. In fact, much of the evidence in that case showed that children were attending schools that were in dangerous repair with poor sanitation and few, if any resources for education. The maj ority of the court followed Ohio Supreme Court precedent that said, "Where a school district is starved for funds or lacks teachers, buildings or equipment, the right to an education is violated. " It found that "the woefully under funding of such important state function as education violated the Ohio Constitution. " You dissented. You would have denied the right of children of Ohio the right to a thorough and efficient state education. In fact, your dissent was harshly criticized and particularly said that if your position had EXT-18-2091-C-000494 007104-001215 Document ID: 0.7.19343.9053-000001 MS. COOK: Right and we really disagreed in that case, as people in good faith can always disagree about the meaning of words but in that case the maj ority and the dissent disagreed about which statute to read. So I was construing my dissent construed an analogous statute and a parallel statute that had to be read in conj unction with the one that the maj ority was relying upon. SEN. KENNEDY: I' m not an expert on the Ohio law but it seems that in the citation it' s fairly clear that "payment shall be for a duration based on the medical reports of the attending physician. " MS. COOK: That' s right. SEN. KENNEDY: "If the employer disputes the physician, payments may be terminated only upon application hearing by a district hearing officer. " And you made the j udgment that it could be terminated without a hearing. And you have another statute. MS. COOK: Yes. SEN. KENNEDY: MS. COOK: The issue really surrounded Could you reference that, the other statute? Yes, I will. SEN. KENNEDY: This is the concern about in light of the persistent dissents and your consistent siding with the large corporations against the individuals and departures from the clear language of the law, how are we going to be assured that you won' t overreach in order to reach a conservative result? Now, let me give you another example. As you know, one of the real best weapons that we have in the struggle to improve the lives of those who are left behind in our society is education and when we educate our children well we give them an opportunity to take part in the American dream. You, however, have taken the Ohio Constitution' s provisions guaranteeing a thorough and efficient public education and voted to basically interpret it out of existence. This is the (Duralt ?) v. Ohio case. You were confronted with overwhelming evidence that state funding of public schools was woefully inadequate. In fact, much of the evidence in that case showed that children were attending schools that were in dangerous repair with poor sanitation and few, if any resources for education. The maj ority of the court followed Ohio Supreme Court precedent that said, "Where a school district is starved for funds or lacks teachers, buildings or equipment, the right to an education is violated. " It found that "the woefully under funding of such important state function as education violated the Ohio Constitution. " You dissented. You would have denied the right of children of Ohio the right to a thorough and efficient state education. In fact, your dissent was harshly criticized and particularly said that if your position had EXT-18-2091-C-000494 007104-001215 Document ID: 0.7.19343.9053-000001 prevailed it would have turned 200 years of the constitutional j urisprudence on its head. I understand in your personal life you acknowledge that education is important but we' re talking about this particular case. How do you explain your decision on this issue that is so important and is an issue that is common to my state and states across the country and in which there is such a challenge in order to try to provide some quality funding for children? And Ohio has such a very strong statute I find it very difficult to understand your dissent. MS. COOK: Senator, my dissent was first of all grounded on no member of the court, and there were two other members of the court who j oined me in dissent about the constitutional bases that the maj ority was using to order a coequal branch of government to enact new funding statutes. So actually I never did in any way vote to reduce educational spending or in any way voted to say that the sorry state of some schools in Ohio was okay. Instead, I had a limited role, as the court has an assigned limited role, and that I exercised my role appropriately I think in saying that the phrase that the court was hanging its hat on did not j ustify its ordering a coequal branch to enact new funding laws, because the Department of Energy had certified that every county in the state had met the minimum standards for providing an education. So my view was beyond the minimums. It was the general assembly' s role to decide what level of funding should be allocated to schools versus every other required funding at every other aspect of state government that required funding was a policy decision to be made by the legislative branch. But I must say that that case has a fairly sorry history. It' s lasted some six years and the court never, though it had some I think very well intentioned it was a well intentioned effort but actually the court never was able to it continued to order the general assembly to do more and do more and, frankly, finally the case faded away. SEN. KENNEDY: Well, that' s a sad conclusion that' s happened. In some states, states have different Constitutions. In Massachusetts John Adams drafted our Constitution in Massachusetts and made it very specific with regards actually on the responsibility of the state in education. It is interesting that every state constitution has a guarantee on education. They' re interpreted in different ways. But let me come back to Ohio. The Ohio constitution requires a thorough and efficient education. These words have meaning. They can be interpreted, enforced by a court willing to take its responsibility seriously. In fact, a number of the states have found similar clauses in their constitutions enforceable. Your unwillingness to interpret and enforce this clause of the constitution I find disturbing. I understand you believe the clause is too vague for j udicial enforcement. In your dissent you had compared it to another provision of the Ohio constitution that says that all citizens possess inalienable rights to life, liberty, property, happiness and safety, but even that clause has much the same EXT-18-2091-C-000495 007104-001216 Document ID: 0.7.19343.9053-000001 prevailed it would have turned 200 years of the constitutional j urisprudence on its head. I understand in your personal life you acknowledge that education is important but we' re talking about this particular case. How do you explain your decision on this issue that is so important and is an issue that is common to my state and states across the country and in which there is such a challenge in order to try to provide some quality funding for children? And Ohio has such a very strong statute I find it very difficult to understand your dissent. MS. COOK: Senator, my dissent was first of all grounded on no member of the court, and there were two other members of the court who j oined me in dissent about the constitutional bases that the maj ority was using to order a coequal branch of government to enact new funding statutes. So actually I never did in any way vote to reduce educational spending or in any way voted to say that the sorry state of some schools in Ohio was okay. Instead, I had a limited role, as the court has an assigned limited role, and that I exercised my role appropriately I think in saying that the phrase that the court was hanging its hat on did not j ustify its ordering a coequal branch to enact new funding laws, because the Department of Energy had certified that every county in the state had met the minimum standards for providing an education. So my view was beyond the minimums. It was the general assembly' s role to decide what level of funding should be allocated to schools versus every other required funding at every other aspect of state government that required funding was a policy decision to be made by the legislative branch. But I must say that that case has a fairly sorry history. It' s lasted some six years and the court never, though it had some I think very well intentioned it was a well intentioned effort but actually the court never was able to it continued to order the general assembly to do more and do more and, frankly, finally the case faded away. SEN. KENNEDY: Well, that' s a sad conclusion that' s happened. In some states, states have different Constitutions. In Massachusetts John Adams drafted our Constitution in Massachusetts and made it very specific with regards actually on the responsibility of the state in education. It is interesting that every state constitution has a guarantee on education. They' re interpreted in different ways. But let me come back to Ohio. The Ohio constitution requires a thorough and efficient education. These words have meaning. They can be interpreted, enforced by a court willing to take its responsibility seriously. In fact, a number of the states have found similar clauses in their constitutions enforceable. Your unwillingness to interpret and enforce this clause of the constitution I find disturbing. I understand you believe the clause is too vague for j udicial enforcement. In your dissent you had compared it to another provision of the Ohio constitution that says that all citizens possess inalienable rights to life, liberty, property, happiness and safety, but even that clause has much the same EXT-18-2091-C-000495 007104-001216 Document ID: 0.7.19343.9053-000001 language of the 5th and 14th Amendments of the Constitution clauses, which have been analyzed and enforced for many years. And I' m j ust wondering how much assurance we can have here that you' re going to interpret these statutes in ways that they were intended to and that reasonable people would feel that they should be intended. MS. COOK: That would be my goal, Senator, that that would be my effort. SEN. KENNEDY: If I could, Mr. Chairman, I have one additional query. SEN. HATCH: That would be fine, Senator Kennedy. give you the additional time. SEN. KENNEDY: We' ll Thank you. Much of the last two years have been spent recovering from corporate malfeasance that has hurt our economy, and naturally I' m talking about our country, and undermined the public' s trust in big business. The laws play an important role in restoring the confidence of the American people, preventing this abuse in the future. Unfortunately, in looking over y our record, and I want to give you a chance to respond, one could conclude that you have consistently voted to shield corporations from the legal consequences of their actions. In the Davis v. Wal Mart, Mrs. Davis alleged that Wal Mart instructed its employees to lie to her after her husband was killed while working for Wal Mart. Wal Mart allegedly told its employees to lie about the way in which Mr. Davis had been killed in order to encourage Mrs. Davis to settle out of court. The maj ority understandably found this sort of deception reprehensible and allowed Mrs. Davis to sue Wal Mart. You would have prevented her from doing that, thereby allowing Wal Mart to reap from the benefit of the lies and encouraging other corporations to do the same thing. MS. COOK: My decision in that case does not suggest that I too don' t find that behavior reprehensible. My dissent actually was based on a fundamental principle of j urisprudence, and that is res j udicata and it was based on really well settled law that the fact that Mrs. Davis sued Wal Mart, got a j udgment for negligence and then years later came back with a spoliation case my view was that it was res j udicata and in favor of finality of j udgments. As we all know, that' s why that principle is there and why it' s accorded importance by j udges. SEN. KENNEDY: MS. COOK: No, they did not. SEN. KENNEDY: MS. COOK: But the maj ority didn' t find that. They reached a different conclusion. Yes, that' s right. EXT-18-2091-C-000496 007104-001217 Document ID: 0.7.19343.9053-000001 language of the 5th and 14th Amendments of the Constitution clauses, which have been analyzed and enforced for many years. And I' m j ust wondering how much assurance we can have here that you' re going to interpret these statutes in ways that they were intended to and that reasonable people would feel that they should be intended. MS. COOK: That would be my goal, Senator, that that would be my effort. SEN. KENNEDY: If I could, Mr. Chairman, I have one additional query. SEN. HATCH: That would be fine, Senator Kennedy. give you the additional time. SEN. KENNEDY: We' ll Thank you. Much of the last two years have been spent recovering from corporate malfeasance that has hurt our economy, and naturally I' m talking about our country, and undermined the public' s trust in big business. The laws play an important role in restoring the confidence of the American people, preventing this abuse in the future. Unfortunately, in looking over y our record, and I want to give you a chance to respond, one could conclude that you have consistently voted to shield corporations from the legal consequences of their actions. In the Davis v. Wal Mart, Mrs. Davis alleged that Wal Mart instructed its employees to lie to her after her husband was killed while working for Wal Mart. Wal Mart allegedly told its employees to lie about the way in which Mr. Davis had been killed in order to encourage Mrs. Davis to settle out of court. The maj ority understandably found this sort of deception reprehensible and allowed Mrs. Davis to sue Wal Mart. You would have prevented her from doing that, thereby allowing Wal Mart to reap from the benefit of the lies and encouraging other corporations to do the same thing. MS. COOK: My decision in that case does not suggest that I too don' t find that behavior reprehensible. My dissent actually was based on a fundamental principle of j urisprudence, and that is res j udicata and it was based on really well settled law that the fact that Mrs. Davis sued Wal Mart, got a j udgment for negligence and then years later came back with a spoliation case my view was that it was res j udicata and in favor of finality of j udgments. As we all know, that' s why that principle is there and why it' s accorded importance by j udges. SEN. KENNEDY: MS. COOK: No, they did not. SEN. KENNEDY: MS. COOK: But the maj ority didn' t find that. They reached a different conclusion. Yes, that' s right. EXT-18-2091-C-000496 007104-001217 Document ID: 0.7.19343.9053-000001 SEN. KENNEDY: In Norgard v. Brush Wellman, the defendant corporation withheld information concerning how much it was exposing its employees to beryllium, including withholding the fact that it knew its air samplings were flawed and that it had ventilation problems and it gave the plaintiffs in this case a skin disorder, so he had ulcers. He suffered from protracted periods of dizziness, coughing and had difficulty breathing. The company j ust told him not to worry and continue to withhold the information about the problems with beryllium. The maj ority found that the employee' s time to file a suit started running from the time he found out about the information his employer had been withholding, but you would have allowed the corporation again to reap the benefits by barring this suit. MS. COOK: Senator, actually SEN. KENNEDY: What can we draw from that? MS. COOK: I hope that the only thing you' ll draw from that is that I look at the law on statute of limitations and the particular my decision was simply a statute of limitations decision. SEN. KENNEDY: Well, wait a minute, that' s the MS. COOK: As a lawyer, Senator, and so many people on the committee are, this individual had knowledge of his inj uries and the expected cause but didn' t file suit until some five years later when the statute of limitations in Ohio is two years. So I j ust viewed, and perhaps I was the one who was mistaken, but I viewed the maj ority decision as contorting the law of statute of limitations beyond the scope of its j ustification there. SEN. KENNEDY: Well, you' re right, the maj ority differed with you. I mean, the corporation withheld information concerning how much it was exposing the employees and so since the defendant didn' t know about this effectively by the time they found out and brought the case you ruled that they really didn' t have that the statute had run on it and they were denied any opportunity. This is enormously important. We have a lot of workers, miners, we have a lot of occupational health and safety issues involving lung damage and increasingly so with regards to the dangers of toxic substances that are being used in industry all of the time on this. It' s a very serious, serious kind of matter I know for great numbers of workers. MS. COOK: I think so, too, Senator. SEN. KENNEDY: I' m concerned that if the employer is denying them the information about the dangers of this and then they only find out about it later, to have their opportunity to get some kind of remedy of this is being denied to them, I mean, I have difficulty understanding how you reach the conclusion that the statute ran. EXT-18-2091-C-000497 007104-001218 Document ID: 0.7.19343.9053-000001 SEN. KENNEDY: In Norgard v. Brush Wellman, the defendant corporation withheld information concerning how much it was exposing its employees to beryllium, including withholding the fact that it knew its air samplings were flawed and that it had ventilation problems and it gave the plaintiffs in this case a skin disorder, so he had ulcers. He suffered from protracted periods of dizziness, coughing and had difficulty breathing. The company j ust told him not to worry and continue to withhold the information about the problems with beryllium. The maj ority found that the employee' s time to file a suit started running from the time he found out about the information his employer had been withholding, but you would have allowed the corporation again to reap the benefits by barring this suit. MS. COOK: Senator, actually SEN. KENNEDY: What can we draw from that? MS. COOK: I hope that the only thing you' ll draw from that is that I look at the law on statute of limitations and the particular my decision was simply a statute of limitations decision. SEN. KENNEDY: Well, wait a minute, that' s the MS. COOK: As a lawyer, Senator, and so many people on the committee are, this individual had knowledge of his inj uries and the expected cause but didn' t file suit until some five years later when the statute of limitations in Ohio is two years. So I j ust viewed, and perhaps I was the one who was mistaken, but I viewed the maj ority decision as contorting the law of statute of limitations beyond the scope of its j ustification there. SEN. KENNEDY: Well, you' re right, the maj ority differed with you. I mean, the corporation withheld information concerning how much it was exposing the employees and so since the defendant didn' t know about this effectively by the time they found out and brought the case you ruled that they really didn' t have that the statute had run on it and they were denied any opportunity. This is enormously important. We have a lot of workers, miners, we have a lot of occupational health and safety issues involving lung damage and increasingly so with regards to the dangers of toxic substances that are being used in industry all of the time on this. It' s a very serious, serious kind of matter I know for great numbers of workers. MS. COOK: I think so, too, Senator. SEN. KENNEDY: I' m concerned that if the employer is denying them the information about the dangers of this and then they only find out about it later, to have their opportunity to get some kind of remedy of this is being denied to them, I mean, I have difficulty understanding how you reach the conclusion that the statute ran. EXT-18-2091-C-000497 007104-001218 Document ID: 0.7.19343.9053-000001 MS. COOK: Actually, the plaintiff admits that he knew that he was sick and that he knew it probably was the beryllium from the plant. I mean, he was inhaling gross amounts of this and, of course, it is a horrible scenario but it wasn' t my personal view about whether this individual deserved to recover; it was simply an application of the well settled law that it' s not all the elements of a claim, which is what the maj ority held here. Until this individual knew all the elements of their claim, they couldn' t bring the case, but indeed this gentleman unfortunately both knew that he had an inj ury and he knew the likely cause. It was later when he saw a Web site some five years later that he chose to bring the action and my considered j udgment and I think reasoned j udgment was that that was beyond the discovery rule and the particular statute of limitations here. On the other hand, I can tell you of another case on the discovery rule involving NCR where I wrote the maj ority opinion that extended the discovery rule in that case and it was I think the first time in the country. So there are occasions, there are always occasions where cases are decided differently based on the facts presented, and if you' re a j urist who attends to the law and tries to be diligent and conscience about that I think that you' ll find the decisions. I can' t do anything about which person wins or loses because I must be impartial. SEN. KENNEDY: Well, I agree that that has to be the desired standard. The maj ority, of course, found that the employee' s time to file suit started running from the time he found out the information his company had been withholding and that the company doctors were misleading the worker. So you were in the dissent in making the j udgment and the matter is that there is a pattern. My time has is j ust expiring. I mentioned several of these cases; there are many others. And when it comes out to the bottom line it has virtually 100 percent on one side. I agree that those figures aren' t always necessarily absolutely accurate but what we have is a pretty significant pattern on here in these cases involving workers in the cases that I' ve mentioned here and others that your dissents always seem to be at the expense of individuals, workers, in these cases workers' rights and it' s troubling. My time is up. I want to thank you and I want to say to Ms. Cook that if you want to provide other kinds of cases that show a different side I' d welcome them, too. I always try if I' m going to ask a nominee about cases to indicate what they' re going to be beforehand. I didn' t have the chance j ust because of the way this is sort of we' re working on this, so if there are other cases that support you I' m more than glad to take a look at them. MS. COOK: SEN. HATCH: Thank you. Thank you, Senator Kennedy. Here' s what we' re going to do. Senator Schumer wants to ask some questions and he will be here at 8: 00. So we' re going to I apologize to you that this is taking so long but I do want to get this EXT-18-2091-C-000498 007104-001219 Document ID: 0.7.19343.9053-000001 MS. COOK: Actually, the plaintiff admits that he knew that he was sick and that he knew it probably was the beryllium from the plant. I mean, he was inhaling gross amounts of this and, of course, it is a horrible scenario but it wasn' t my personal view about whether this individual deserved to recover; it was simply an application of the well settled law that it' s not all the elements of a claim, which is what the maj ority held here. Until this individual knew all the elements of their claim, they couldn' t bring the case, but indeed this gentleman unfortunately both knew that he had an inj ury and he knew the likely cause. It was later when he saw a Web site some five years later that he chose to bring the action and my considered j udgment and I think reasoned j udgment was that that was beyond the discovery rule and the particular statute of limitations here. On the other hand, I can tell you of another case on the discovery rule involving NCR where I wrote the maj ority opinion that extended the discovery rule in that case and it was I think the first time in the country. So there are occasions, there are always occasions where cases are decided differently based on the facts presented, and if you' re a j urist who attends to the law and tries to be diligent and conscience about that I think that you' ll find the decisions. I can' t do anything about which person wins or loses because I must be impartial. SEN. KENNEDY: Well, I agree that that has to be the desired standard. The maj ority, of course, found that the employee' s time to file suit started running from the time he found out the information his company had been withholding and that the company doctors were misleading the worker. So you were in the dissent in making the j udgment and the matter is that there is a pattern. My time has is j ust expiring. I mentioned several of these cases; there are many others. And when it comes out to the bottom line it has virtually 100 percent on one side. I agree that those figures aren' t always necessarily absolutely accurate but what we have is a pretty significant pattern on here in these cases involving workers in the cases that I' ve mentioned here and others that your dissents always seem to be at the expense of individuals, workers, in these cases workers' rights and it' s troubling. My time is up. I want to thank you and I want to say to Ms. Cook that if you want to provide other kinds of cases that show a different side I' d welcome them, too. I always try if I' m going to ask a nominee about cases to indicate what they' re going to be beforehand. I didn' t have the chance j ust because of the way this is sort of we' re working on this, so if there are other cases that support you I' m more than glad to take a look at them. MS. COOK: SEN. HATCH: Thank you. Thank you, Senator Kennedy. Here' s what we' re going to do. Senator Schumer wants to ask some questions and he will be here at 8: 00. So we' re going to I apologize to you that this is taking so long but I do want to get this EXT-18-2091-C-000498 007104-001219 Document ID: 0.7.19343.9053-000001 completed today for a variety of reasons but especially for you and I want you to be treated fairly and this committee I think is attempting to do that. But what we' re going to do is we' re going to discontinue this part of the hearing till 8: 00 and that will give you a chance by the way, I' ve ordered some food. If you can stick around I' d like to chat with you for a minute. And what we' d like to do at this point is to proceed to the three district court nominees and see if we can resolve them at this point and then we' ll resolve you after 8: 00. SEN. KENNEDY: Could I j ust, Mr. Chairman, j ust again how we proceed is not up to all of you, you' ve been gallant witnesses today. Mr. Roberts, I have not had a chance to question you. We have others, I guess Senator Schumer and others. I will submit questions to you. I appreciate your patience, all of our nominees, their patience with us. It' s been a long day for you and these are complicated and very important issues and I thank them. SEN. HATCH: Thank you, Senator Kennedy, for your kind remarks. SEN. : Mr. Chairman, I j ust wanted to say I think you have been generous. You did something very unusual in having 15 minute rounds. I' m not sure we' ve ever done that before. Senator Kennedy, I j ust noticed he was 13 minutes past his 15, which is all right, and you' ve been generous on that. And I would j ust this, that when President Clinton' s nominees were coming by and there was a hearing set, if I had other committees or other responsibilities I knew I had to either be there or not. I didn' t come in and expect the committee to adj ust itself totally to my schedule, but you' ve been generous and fair I believe and I wanted to say that for the record. SEN. HATCH: Well, thank you, Senator. excuse me, I' m sorry, Senator Leahy. Let' s take five minutes SEN. LEAHY: Mr. Chairman, you and I discussed this procedure and I think it is a wise way to do it. I' m going to put in that we have some other letters, I know Mr Sutton will be happy to know, regarding him and we' ll put those SEN. HATCH: Without obj ection, we' ll put those in the record. SEN. LEAHY: I would also note, Mr. Chairman, that you have been very fair on the clock. I would also I think that the Senator from Alabama and others would agree that President Bush' s nominees during the time I was chairman that if anyone of them had any questions at any time on either side of the aisle they got whatever time they wanted or time to introduce or anything else and several times we arranged the schedule so that home state senators could introduce President Bush' s nominees. SEN. SESSIONS: I think that' s a large truth and sometimes we j ust had to resort to written questions because they work too. EXT-18-2091-C-000499 007104-001220 Document ID: 0.7.19343.9053-000001 completed today for a variety of reasons but especially for you and I want you to be treated fairly and this committee I think is attempting to do that. But what we' re going to do is we' re going to discontinue this part of the hearing till 8: 00 and that will give you a chance by the way, I' ve ordered some food. If you can stick around I' d like to chat with you for a minute. And what we' d like to do at this point is to proceed to the three district court nominees and see if we can resolve them at this point and then we' ll resolve you after 8: 00. SEN. KENNEDY: Could I j ust, Mr. Chairman, j ust again how we proceed is not up to all of you, you' ve been gallant witnesses today. Mr. Roberts, I have not had a chance to question you. We have others, I guess Senator Schumer and others. I will submit questions to you. I appreciate your patience, all of our nominees, their patience with us. It' s been a long day for you and these are complicated and very important issues and I thank them. SEN. HATCH: Thank you, Senator Kennedy, for your kind remarks. SEN. : Mr. Chairman, I j ust wanted to say I think you have been generous. You did something very unusual in having 15 minute rounds. I' m not sure we' ve ever done that before. Senator Kennedy, I j ust noticed he was 13 minutes past his 15, which is all right, and you' ve been generous on that. And I would j ust this, that when President Clinton' s nominees were coming by and there was a hearing set, if I had other committees or other responsibilities I knew I had to either be there or not. I didn' t come in and expect the committee to adj ust itself totally to my schedule, but you' ve been generous and fair I believe and I wanted to say that for the record. SEN. HATCH: Well, thank you, Senator. excuse me, I' m sorry, Senator Leahy. Let' s take five minutes SEN. LEAHY: Mr. Chairman, you and I discussed this procedure and I think it is a wise way to do it. I' m going to put in that we have some other letters, I know Mr Sutton will be happy to know, regarding him and we' ll put those SEN. HATCH: Without obj ection, we' ll put those in the record. SEN. LEAHY: I would also note, Mr. Chairman, that you have been very fair on the clock. I would also I think that the Senator from Alabama and others would agree that President Bush' s nominees during the time I was chairman that if anyone of them had any questions at any time on either side of the aisle they got whatever time they wanted or time to introduce or anything else and several times we arranged the schedule so that home state senators could introduce President Bush' s nominees. SEN. SESSIONS: I think that' s a large truth and sometimes we j ust had to resort to written questions because they work too. EXT-18-2091-C-000499 007104-001220 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Yeah, there were many times we did written questions because of the time constraints and we' ve tried to be fair here and I think we have been and you folks have been more than stalwart in being with us this long and you' re going to have to be here a little while longer and I apologize to you, but this is an important hearing and my colleagues have felt like all three of you are, quote, "controversial, " end quote. So I don' t agree with that assessment but some feel that way and they have a right to feel that way if they want to. So what we' re going to do is we' ll recess for j ust five minutes. I want everybody back in five minutes and we' ll start with the three district court nominees and we want you here promptly at eight. SEN. KENNEDY: they want, right? The court of appeals nominees can take off if SEN. HATCH: Yeah, till 8: 00 but I' d like to see the three of you j ust for a minute in this five minute period. Thank you. With that, we' re recessed for five minutes. (Recess and end of panel. ) END. EXT-18-2091-C-000500 007104-001221 Document ID: 0.7.19343.9053-000001 SEN. HATCH: Yeah, there were many times we did written questions because of the time constraints and we' ve tried to be fair here and I think we have been and you folks have been more than stalwart in being with us this long and you' re going to have to be here a little while longer and I apologize to you, but this is an important hearing and my colleagues have felt like all three of you are, quote, "controversial, " end quote. So I don' t agree with that assessment but some feel that way and they have a right to feel that way if they want to. So what we' re going to do is we' ll recess for j ust five minutes. I want everybody back in five minutes and we' ll start with the three district court nominees and we want you here promptly at eight. SEN. KENNEDY: they want, right? The court of appeals nominees can take off if SEN. HATCH: Yeah, till 8: 00 but I' d like to see the three of you j ust for a minute in this five minute period. Thank you. With that, we' re recessed for five minutes. (Recess and end of panel. ) END. EXT-18-2091-C-000500 007104-001221 Document ID: 0.7.19343.9053-000001 Joy, Shei la From : Joy, Sheila Sent : Wednesday , February 12, 2003 1:49 PM To: 'jssutton@ jonesday.com '; 'jgroberts@ hhlaw.com '; 'debcoo k@neo.rr .com '; 'cookd @sconet.state.oh.us '; Dinh, Viet ; Chames , Adam; Remington , Kristi L; Benczkowski, Brian A; Sales, Nathan ; Benedi , Lizette D; Scottf inan, Nancy; ' Brett_M._Kavanaugh@ who.eop.gov' Subjec t : FW: Senator Durbin's follow-up questions for Sutton, Cook, and Roberts Attachments : tmp.htm ; follow.up.q uest ions.wpd; follow.up.questions.wpd; follow.up.questions.wpd Deborah, Jeff & John - atta ched are add itiona l follow-up questions from Senator Durbin. Please try to respond as quickly as is possible. sheila Brett - please send FYI to anyone in your office that might need a copy. Tks ---Or iginal Message-From: Stah l, Katie (Judiciary} [ma ilto:Katie_Sta hl@Judiciary.senate.gov) Sent: Wednesday , February 12, 2003 1:21 PMTo: Joy, Sheila Subje ct: FW: Senator Durbin's follow-up questions for Sutton , Cook, and Roberts Hi She ila, Here are some more quest ions for the witnesses. - Original Message- From: Zubrensky, Michael (Judiciary) Sent: Wednesday, February 12, 2003 12:37 PM To: Stah l, Katie (Judiciary) Subject: Senator Durbin's follow-up quest ions for Sutton , Cook, and Roberts Hi Katie, I work in Senator Durbin's office. Attached are written follow-up quest ions he would like to submit to Jeffrey Sutton , Deborah Cook, and John Roberts. We apo logize for their tard iness. EXT-18-2091-C-000501 007104-001222 Document ID: 0.7.19343.9163 Joy, Shei la From : Joy, Sheila Sent : Wednesday , February 12, 2003 1:49 PM To: 'jssutton@ jonesday.com '; 'jgroberts@ hhlaw.com '; 'debcoo k@neo.rr .com '; 'cookd @sconet.state.oh.us '; Dinh, Viet ; Chames , Adam; Remington , Kristi L; Benczkowski, Brian A; Sales, Nathan ; Benedi , Lizette D; Scottf inan, Nancy; ' Brett_M._Kavanaugh@ who.eop.gov' Subjec t : FW: Senator Durbin's follow-up questions for Sutton, Cook, and Roberts Attachments : tmp.htm ; follow.up.q uest ions.wpd; follow.up.questions.wpd; follow.up.questions.wpd Deborah, Jeff & John - atta ched are add itiona l follow-up questions from Senator Durbin. Please try to respond as quickly as is possible. sheila Brett - please send FYI to anyone in your office that might need a copy. Tks ---Or iginal Message-From: Stah l, Katie (Judiciary} [ma ilto:Katie_Sta hl@Judiciary.senate.gov) Sent: Wednesday , February 12, 2003 1:21 PMTo: Joy, Sheila Subje ct: FW: Senator Durbin's follow-up questions for Sutton , Cook, and Roberts Hi She ila, Here are some more quest ions for the witnesses. - Original Message- From: Zubrensky, Michael (Judiciary) Sent: Wednesday, February 12, 2003 12:37 PM To: Stah l, Katie (Judiciary) Subject: Senator Durbin's follow-up quest ions for Sutton , Cook, and Roberts Hi Katie, I work in Senator Durbin's office. Attached are written follow-up quest ions he would like to submit to Jeffrey Sutton , Deborah Cook, and John Roberts. We apo logize for their tard iness. EXT-18-2091-C-000501 007104-001222 Document ID: 0.7.19343.9163 Follow-up Questions for Jeffrey Sutton Senator Richard J. Durbin February 12, 2003 1. You stated in your testimony that many states have waived their sovereign immunity with respect to the Americans with Disabilities Act (ADA). (a) Which states have done so? Do you think that any of them will reconsider their decision to waive sovereign immunity in light of Board of Trustees of University of Alabama v. Garrett (2001)? (b) As a normative matter, do you believe that states should waive their sovereign immunity with respect to the ADA? (c) Do you believe that state laws are adequate to protect the rights of people with disabilities against discrimination and that no federal anti-discrimination law is necessary? 2. In responding to one of my questions at the January 29, 2003 nominations hearing, you stated that the rights of the plaintiff in the Garrett case were not unduly restricted because she has a pending claim under Section 504 of the Rehabilitation Act. (a) What exactly is the status of her Section 504 claim? (b) Do you believe that states should be liable for damages under Section 504 of the Rehabilitation Act, if states do not waive their sovereign immunity with respect to that statute? If so, how do you reconcile that with your belief that states who do not waive sovereign immunity should not be liable for damages under Titles I and II of the ADA? 3. At your hearing I asked you to list examples of cases that you would not be willing to take, even if it meant forgoing an opportunity to argue before the Supreme Court. I did not understand your answer. Please list examples of such cases. 4. You stated at your hearing that you became involved in the RJR tobacco case because RJR was a client of your law firm. What other tobacco companies have you represented and what was the nature and outcome of your work? 5. You testified that, on a pro bono basis, you defended Ohio's hate crime statute on behalf of every civil rights group with an interest in the statute. (a) Please describe your specific involvement in this case, and provide a copy of your primary briefs and any published decisions. 1 EXT-18-2091-C-000502 007104-001223 Document ID: 0.7.19343.9163-000001 Follow-up Questions for Jeffrey Sutton Senator Richard J. Durbin February 12, 2003 1. You stated in your testimony that many states have waived their sovereign immunity with respect to the Americans with Disabilities Act (ADA). (a) Which states have done so? Do you think that any of them will reconsider their decision to waive sovereign immunity in light of Board of Trustees of University of Alabama v. Garrett (2001)? (b) As a normative matter, do you believe that states should waive their sovereign immunity with respect to the ADA? (c) Do you believe that state laws are adequate to protect the rights of people with disabilities against discrimination and that no federal anti-discrimination law is necessary? 2. In responding to one of my questions at the January 29, 2003 nominations hearing, you stated that the rights of the plaintiff in the Garrett case were not unduly restricted because she has a pending claim under Section 504 of the Rehabilitation Act. (a) What exactly is the status of her Section 504 claim? (b) Do you believe that states should be liable for damages under Section 504 of the Rehabilitation Act, if states do not waive their sovereign immunity with respect to that statute? If so, how do you reconcile that with your belief that states who do not waive sovereign immunity should not be liable for damages under Titles I and II of the ADA? 3. At your hearing I asked you to list examples of cases that you would not be willing to take, even if it meant forgoing an opportunity to argue before the Supreme Court. I did not understand your answer. Please list examples of such cases. 4. You stated at your hearing that you became involved in the RJR tobacco case because RJR was a client of your law firm. What other tobacco companies have you represented and what was the nature and outcome of your work? 5. You testified that, on a pro bono basis, you defended Ohio's hate crime statute on behalf of every civil rights group with an interest in the statute. (a) Please describe your specific involvement in this case, and provide a copy of your primary briefs and any published decisions. 1 EXT-18-2091-C-000502 007104-001223 Document ID: 0.7.19343.9163-000001 (b) Do you believe there is a need for federal hate crime laws? Why or why not? (c) Do you support the Local Law Enforcement Enhancement Act, S.625, as introduced in the 107th Congress? It can be found at: http://thomas.loc.gov/cgibin/query/D?c107:2:./temp/~c107D16s67:: 6. You stated that, while State Solicitor, you defended Ohio's "set-aside" statute. (a) Please describe your specific involvement in this case, and provide a copy of your primary briefs and any published decisions. (b) Was your defense of this statute voluntary or obligatory? (c) Do you believe in the need for federal race-conscious contracting programs? (d) Do you believe that remedying past discrimination is the only legitimate justification for race-conscious programs? (e) Do you believe that diversity can be a compelling government interest in raceconscious admissions programs in the educational context? 7. You are an officer in the Federalist Society. A number of the lawyers designated by the Federalist Society as experts on the constitutionality of abortion and Roe v. Wade (1973), as well as a number of its officers, are openly hostile to the Roe decision and to a woman's right to choose. In order to understand your judicial outlook, I would like to know your personal view of the jurisprudence that has recognized unenumerated rights. (a) Do you believe in and support a constitutional right to privacy, and that such a right encompasses a woman's right to have an abortion? (b) Do you believe that Roe v. Wade was correctly decided? (c) What unenumerated rights do you believe the Constitution truly protects? 2 EXT-18-2091-C-000503 007104-001224 Document ID: 0.7.19343.9163-000001 (b) Do you believe there is a need for federal hate crime laws? Why or why not? (c) Do you support the Local Law Enforcement Enhancement Act, S.625, as introduced in the 107th Congress? It can be found at: http://thomas.loc.gov/cgibin/query/D?c107:2:./temp/~c107D16s67:: 6. You stated that, while State Solicitor, you defended Ohio's "set-aside" statute. (a) Please describe your specific involvement in this case, and provide a copy of your primary briefs and any published decisions. (b) Was your defense of this statute voluntary or obligatory? (c) Do you believe in the need for federal race-conscious contracting programs? (d) Do you believe that remedying past discrimination is the only legitimate justification for race-conscious programs? (e) Do you believe that diversity can be a compelling government interest in raceconscious admissions programs in the educational context? 7. You are an officer in the Federalist Society. A number of the lawyers designated by the Federalist Society as experts on the constitutionality of abortion and Roe v. Wade (1973), as well as a number of its officers, are openly hostile to the Roe decision and to a woman's right to choose. In order to understand your judicial outlook, I would like to know your personal view of the jurisprudence that has recognized unenumerated rights. (a) Do you believe in and support a constitutional right to privacy, and that such a right encompasses a woman's right to have an abortion? (b) Do you believe that Roe v. Wade was correctly decided? (c) What unenumerated rights do you believe the Constitution truly protects? 2 EXT-18-2091-C-000503 007104-001224 Document ID: 0.7.19343.9163-000001 Follow-up Questions for Justice Deborah Cook Senator Richard J. Durbin February 12, 2003 1. You have authored over 300 dissents, many of which were sole dissents. Several of your own colleagues on the Ohio Supreme Court have accused you of taking positions that are unreasonable and unfair. In Bunger v. Lawson (1998), the majority called your dissent which would deny remedies for a convenience store employee suffering serious psychological trauma "nonsensical" and "an absurd interpretation that seems after being robbed at gunpoint borrowed from the pages of Catch-22." In Russell v. Industrial Commission of Ohio (1998), a workers compensation case in which you voted to deny a hearing to an injured worker, the majority stated that your dissent, "lacks statutory support for its position" and "unable to cite even the slightest dictum from any case to support its view . . . . [the] dissent's argument, which has not been raised by the commission, the bureau, the claimant's employer, or any of their supporting amici, is entirely without merit." To my mind, these accusations represent something more than an honest difference of opinion. They suggest that a majority of your own colleagues believe that you are a results-oriented judicial activist. In light of the strong language your colleagues have used to describe your legal reasoning, how can this Committee have confidence that you won't be a results-oriented judicial activist on the Sixth Circuit? 2. You testified at your nomination hearing that the general assembly in Ohio is "a conservative legislature." (Transcript page 376.) Please explain what you meant by this statement and describe specifically those ways in which you believe it is conservative. 3. As you know, your nomination is opposed by several organizations in Ohio that are very familiar with your record. A coalition of women's groups and employment lawyers organizations wrote to this Committee and said the following: "Justice Cook's anti-worker voting record is becoming legendary in Ohio. Her opinions, with rare exceptions, espouse positions which would undermine the enforcement of state and federal civil rights laws. What is most striking about Justice Cook's career on the bench, particularly her tenure on our state Supreme Court, is her heartlessness. She repeatedly displays a cold indifference to the most tragic situations confronted by the individuals who appear before her. Worse, she routinely adopts strained or extreme legal propositions to deny meaningful relief to those most in need of justice from our courts." (a) What is your response to these statements? (b) Why do you think so many organizations have opposed your nomination? 4. During the 2000 presidential campaign, President Bush pledged that he would appoint "strict constructionists" to the federal judiciary, in the mold of Supreme Court Justices Clarence 1 EXT-18-2091-C-000504 007104-001225 Document ID: 0.7.19343.9163-000002 Follow-up Questions for Justice Deborah Cook Senator Richard J. Durbin February 12, 2003 1. You have authored over 300 dissents, many of which were sole dissents. Several of your own colleagues on the Ohio Supreme Court have accused you of taking positions that are unreasonable and unfair. In Bunger v. Lawson (1998), the majority called your dissent which would deny remedies for a convenience store employee suffering serious psychological trauma "nonsensical" and "an absurd interpretation that seems after being robbed at gunpoint borrowed from the pages of Catch-22." In Russell v. Industrial Commission of Ohio (1998), a workers compensation case in which you voted to deny a hearing to an injured worker, the majority stated that your dissent, "lacks statutory support for its position" and "unable to cite even the slightest dictum from any case to support its view . . . . [the] dissent's argument, which has not been raised by the commission, the bureau, the claimant's employer, or any of their supporting amici, is entirely without merit." To my mind, these accusations represent something more than an honest difference of opinion. They suggest that a majority of your own colleagues believe that you are a results-oriented judicial activist. In light of the strong language your colleagues have used to describe your legal reasoning, how can this Committee have confidence that you won't be a results-oriented judicial activist on the Sixth Circuit? 2. You testified at your nomination hearing that the general assembly in Ohio is "a conservative legislature." (Transcript page 376.) Please explain what you meant by this statement and describe specifically those ways in which you believe it is conservative. 3. As you know, your nomination is opposed by several organizations in Ohio that are very familiar with your record. A coalition of women's groups and employment lawyers organizations wrote to this Committee and said the following: "Justice Cook's anti-worker voting record is becoming legendary in Ohio. Her opinions, with rare exceptions, espouse positions which would undermine the enforcement of state and federal civil rights laws. What is most striking about Justice Cook's career on the bench, particularly her tenure on our state Supreme Court, is her heartlessness. She repeatedly displays a cold indifference to the most tragic situations confronted by the individuals who appear before her. Worse, she routinely adopts strained or extreme legal propositions to deny meaningful relief to those most in need of justice from our courts." (a) What is your response to these statements? (b) Why do you think so many organizations have opposed your nomination? 4. During the 2000 presidential campaign, President Bush pledged that he would appoint "strict constructionists" to the federal judiciary, in the mold of Supreme Court Justices Clarence 1 EXT-18-2091-C-000504 007104-001225 Document ID: 0.7.19343.9163-000002 Thomas and Antonin Scalia. These Justices have voted to limit Congress's power to provide redress for victims of rape and domestic abuse, combat discrimination against individuals with disabilities and against individuals who are 40 and over, and protect our water sources from pollution. (a) How would you describe the judicial philosophy of Justices Scalia and Thomas? (b) How would you describe your own judicial philosophy, and how do you believe it is different from or similar to Justices Scalia and Thomas? (c) As a judge, would you interpret the Constitution strictly according to its original understanding in 1789? Do you think that the Supreme Court's most important decisions in the last (d) century Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade are consistent with strict constructionism? Why or why not? 5. In your 2000 campaign for re-election to the Ohio Supreme Court, you were endorsed by an organization called Ohio Right to Life. (a) What if anything did you do to secure that endorsement? (b) What if any communications did you have with Ohio Right to Life? (c) Did you publicize this endorsement in any of your campaign literature? (d) Please list the published and unpublished cases you have ruled on involving abortion rights, and provide copies of the unpublished decisions. 6. I know that you will "apply the law" in the area of abortion rights but I would like to know your personal views of the issue. (a) Do you believe in and support a constitutional right to privacy, and that such a right encompasses a woman's right to have an abortion? (b) Do you believe that Roe v. Wade was correctly decided? 7. Some people believe that mandatory minimum sentencing is costly and unjust, and that it has failed to deter crime or target drug kingpins. They believe that mandatory sentences have exacerbated racial and gender inequalities, and sent record numbers of women and people of color to prison. Do you agree with this assessment? If so, how do you recommend addressing it? 8. The legal profession puts a strong emphasis on service to our communities and to those in our society who are disadvantaged. 2 EXT-18-2091-C-000505 007104-001226 Document ID: 0.7.19343.9163-000002 Thomas and Antonin Scalia. These Justices have voted to limit Congress's power to provide redress for victims of rape and domestic abuse, combat discrimination against individuals with disabilities and against individuals who are 40 and over, and protect our water sources from pollution. (a) How would you describe the judicial philosophy of Justices Scalia and Thomas? (b) How would you describe your own judicial philosophy, and how do you believe it is different from or similar to Justices Scalia and Thomas? (c) As a judge, would you interpret the Constitution strictly according to its original understanding in 1789? Do you think that the Supreme Court's most important decisions in the last (d) century Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade are consistent with strict constructionism? Why or why not? 5. In your 2000 campaign for re-election to the Ohio Supreme Court, you were endorsed by an organization called Ohio Right to Life. (a) What if anything did you do to secure that endorsement? (b) What if any communications did you have with Ohio Right to Life? (c) Did you publicize this endorsement in any of your campaign literature? (d) Please list the published and unpublished cases you have ruled on involving abortion rights, and provide copies of the unpublished decisions. 6. I know that you will "apply the law" in the area of abortion rights but I would like to know your personal views of the issue. (a) Do you believe in and support a constitutional right to privacy, and that such a right encompasses a woman's right to have an abortion? (b) Do you believe that Roe v. Wade was correctly decided? 7. Some people believe that mandatory minimum sentencing is costly and unjust, and that it has failed to deter crime or target drug kingpins. They believe that mandatory sentences have exacerbated racial and gender inequalities, and sent record numbers of women and people of color to prison. Do you agree with this assessment? If so, how do you recommend addressing it? 8. The legal profession puts a strong emphasis on service to our communities and to those in our society who are disadvantaged. 2 EXT-18-2091-C-000505 007104-001226 Document ID: 0.7.19343.9163-000002 (a) Can you cite examples in your career as a lawyer and judge that show you have a demonstrated commitment to equal rights and that you are devoted to continuing the progress made on civil rights, women's rights, and individual liberties? In your experience as a lawyer and state court judge, how would you assess the (b) quality of legal representation provided to indigent criminal defendants? As a federal judge, what steps would you take to assure that all defendants received competent counsel? 3 EXT-18-2091-C-000506 007104-001227 Document ID: 0.7.19343.9163-000002 (a) Can you cite examples in your career as a lawyer and judge that show you have a demonstrated commitment to equal rights and that you are devoted to continuing the progress made on civil rights, women's rights, and individual liberties? In your experience as a lawyer and state court judge, how would you assess the (b) quality of legal representation provided to indigent criminal defendants? As a federal judge, what steps would you take to assure that all defendants received competent counsel? 3 EXT-18-2091-C-000506 007104-001227 Document ID: 0.7.19343.9163-000002 Follow-up Questions for John Roberts Senator Richard J. Durbin February 12, 2003 1. As Deputy Solicitor General, you wrote in a brief to the Supreme Court in Rust v. Sullivan (1990), that "[w]e continue to believe that Roe [v. Wade] was wrongfully decided and should be overruled" and that "the Court's conclusions in Roe . . . find no support in the text, structure, or history of the Constitution." In Rust you were defending Department of Health and Human Services regulations which limited the ability of doctors in federally-funded family planning programs to engage in abortion-related activities. The Court ultimately found that the regulations were constitutional, notwithstanding Roe. (a) Was it necessary for you to argue that Roe should be overturned even though that issue wasn't before the Court? (b) Why did you decide to make the argument to overturn Roe when you could, and did, prevail on the narrower point that the regulations were valid under Roe? (c) Do you believe that it is appropriate for the Solicitor General's office to engage in efforts to overturn Supreme Court precedent? 2. In Bray v. Alexandria Women's Health Clinic (1993), you argued that the Civil Rights Act of 1871 did not provide a federal cause of action against individuals who obstructed access to abortion clinics. The Court ruled in your favor, but Congress subsequently passed the Freedom of Access to Clinic Entrances (FACE) Act in 1994 to protect women and health care providers from violence and harassment. If you had been a member of Congress, would you have voted to pass the FACE Act? 3. As Deputy Solicitor General, you worked on many controversial cases. Was there ever a case to which you were assigned that you requested not to work on, on the basis that you personally disagreed with the Administration's position in that case? If so, please list all such cases and the positions with which you disagreed. 4. In the Supreme Court case Stenberg v. Carhart (2000) there was a clear disagreement among the Justices of the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1994) as to the degree of protection accorded a woman's right to choose. There were eight different opinions regarding whether a state's ban on so-called "partial-birth abortions" was unconstitutional because it lacked an exception for the woman's health. (a) Which opinion in Stenberg most closely reflects your personal view about the role that a woman's health should play when considering an abortion regulation? 1 EXT-18-2091-C-000507 007104-001228 Document ID: 0.7.19343.9163-000003 Follow-up Questions for John Roberts Senator Richard J. Durbin February 12, 2003 1. As Deputy Solicitor General, you wrote in a brief to the Supreme Court in Rust v. Sullivan (1990), that "[w]e continue to believe that Roe [v. Wade] was wrongfully decided and should be overruled" and that "the Court's conclusions in Roe . . . find no support in the text, structure, or history of the Constitution." In Rust you were defending Department of Health and Human Services regulations which limited the ability of doctors in federally-funded family planning programs to engage in abortion-related activities. The Court ultimately found that the regulations were constitutional, notwithstanding Roe. (a) Was it necessary for you to argue that Roe should be overturned even though that issue wasn't before the Court? (b) Why did you decide to make the argument to overturn Roe when you could, and did, prevail on the narrower point that the regulations were valid under Roe? (c) Do you believe that it is appropriate for the Solicitor General's office to engage in efforts to overturn Supreme Court precedent? 2. In Bray v. Alexandria Women's Health Clinic (1993), you argued that the Civil Rights Act of 1871 did not provide a federal cause of action against individuals who obstructed access to abortion clinics. The Court ruled in your favor, but Congress subsequently passed the Freedom of Access to Clinic Entrances (FACE) Act in 1994 to protect women and health care providers from violence and harassment. If you had been a member of Congress, would you have voted to pass the FACE Act? 3. As Deputy Solicitor General, you worked on many controversial cases. Was there ever a case to which you were assigned that you requested not to work on, on the basis that you personally disagreed with the Administration's position in that case? If so, please list all such cases and the positions with which you disagreed. 4. In the Supreme Court case Stenberg v. Carhart (2000) there was a clear disagreement among the Justices of the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1994) as to the degree of protection accorded a woman's right to choose. There were eight different opinions regarding whether a state's ban on so-called "partial-birth abortions" was unconstitutional because it lacked an exception for the woman's health. (a) Which opinion in Stenberg most closely reflects your personal view about the role that a woman's health should play when considering an abortion regulation? 1 EXT-18-2091-C-000507 007104-001228 Document ID: 0.7.19343.9163-000003 (b) Which opinion in Stenberg reflects your personal view about whether there is a state interest in the fetus that would justify any pre-viability ban on a method of abortion? 5. In the Supreme Court's decision in Casey, the Court created a standard of review of asking whether a restriction on the right to abortion created an "undue burden" on her right to choose or placed a "substantial obstacle" between her and her access to abortion. (a) Do you believe that applying an "undue burden" standard to a new fact pattern will be a straightforward application of law, about which all reasonable judges should agree? How do you think you would go about determining whether a new law or (b) regulation concerning abortion creates an "undue burden"? 6. In June 2001 you filed an amicus brief in the case Adarand Constructors Inc. v. Mineta on behalf of the Associated General Contractors of America. In this brief you argue that the Transportation Department's Congressionally-authorized disadvantaged business enterprise program is unconstitutional. The Bush Administration filed a brief rejecting your analysis and maintaining that the program is indeed constitutional. (a) Did you have any personal misgivings about representing the Associated General Contractors of America in this case? (b) As a private attorney, was there ever a case to which you were assigned that you requested not to work on, on the basis that you personally disagreed with the client's position in that case? If so, please list all such cases and the positions with which you disagreed. (c) What is your personal view about the need for federal race-conscious contracting programs? (d) Do you believe that remedying past discrimination is the only legitimate justification for the establishment of race-conscious programs? (e) Do you believe that diversity can be a compelling government interest in raceconscious admissions programs in the educational context? 7. The legal profession puts a strong emphasis on service to our communities and to those in our society who are disadvantaged. (a) Can you cite examples in your career as a lawyer that show that you have a demonstrated commitment to equal rights and that you are devoted to continuing the progress made on civil rights, women's rights, and individual liberties? 2 EXT-18-2091-C-000508 007104-001229 Document ID: 0.7.19343.9163-000003 (b) Which opinion in Stenberg reflects your personal view about whether there is a state interest in the fetus that would justify any pre-viability ban on a method of abortion? 5. In the Supreme Court's decision in Casey, the Court created a standard of review of asking whether a restriction on the right to abortion created an "undue burden" on her right to choose or placed a "substantial obstacle" between her and her access to abortion. (a) Do you believe that applying an "undue burden" standard to a new fact pattern will be a straightforward application of law, about which all reasonable judges should agree? How do you think you would go about determining whether a new law or (b) regulation concerning abortion creates an "undue burden"? 6. In June 2001 you filed an amicus brief in the case Adarand Constructors Inc. v. Mineta on behalf of the Associated General Contractors of America. In this brief you argue that the Transportation Department's Congressionally-authorized disadvantaged business enterprise program is unconstitutional. The Bush Administration filed a brief rejecting your analysis and maintaining that the program is indeed constitutional. (a) Did you have any personal misgivings about representing the Associated General Contractors of America in this case? (b) As a private attorney, was there ever a case to which you were assigned that you requested not to work on, on the basis that you personally disagreed with the client's position in that case? If so, please list all such cases and the positions with which you disagreed. (c) What is your personal view about the need for federal race-conscious contracting programs? (d) Do you believe that remedying past discrimination is the only legitimate justification for the establishment of race-conscious programs? (e) Do you believe that diversity can be a compelling government interest in raceconscious admissions programs in the educational context? 7. The legal profession puts a strong emphasis on service to our communities and to those in our society who are disadvantaged. (a) Can you cite examples in your career as a lawyer that show that you have a demonstrated commitment to equal rights and that you are devoted to continuing the progress made on civil rights, women's rights, and individual liberties? 2 EXT-18-2091-C-000508 007104-001229 Document ID: 0.7.19343.9163-000003 (b) In your experience as a lawyer, how would you assess the quality of legal representation provided to indigent criminal defendants? As a judge, what steps would you take to assure that all defendants received competent counsel? 8. Judicial nominees often come before this Committee and profess their allegiance to Supreme Court precedent. I have yet to meet a nominee who says that he or she won't faithfully apply the Constitution as the Court interprets it. But as you and I both know, judging is not simply a scavenger hunt to find a Supreme Court case that is directly on point. Most of the time, judges have to use their own judgment and extrapolate from precedent. (a) Do you think an individual's ideology and judicial philosophy play a role in his or her capacities as a judge? Why or why not? (b) Do you think it is appropriate to ask nominees about their judicial philosophy or ideology? Why or why not? 9. In your responses to several questions, you have refused to discuss your personal views on an issue on the grounds that the issue may come before the D.C. Circuit. Yet you have also stated that you would follow controlling authority and applicable precedent and not your personal beliefs, in deciding cases. If this latter statement is true, then why do you refuse to answer questions about your personal views? 10. During the presidential campaign, President Bush pledged that he would appoint "strict constructionists" to the federal judiciary, in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia. As you are probably aware, these Justices have issued a number of opinions that have generated controversy. For example, they have voted to limit Congress's power to provide redress for victims of rape and domestic abuse, combat discrimination against individuals with disabilities and against individuals who are at least 40 years old, and protect our water sources from pollution. (a) How would you describe the judicial philosophy of Justices Scalia and Thomas? (b) How would you describe your own judicial philosophy, and how do you believe it is different from or similar to Justices Scalia and Thomas? As a judge, would you interpret the Constitution strictly according to its original (c) understanding in 1789? Do you think that the Supreme Court's most important decisions in the last (d) century Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade are consistent with strict constructionism? Why or why not? 11. You were a member of "Lawyers for Bush-Cheney" in 2000 and "D.C. Lawyers for BushQuayle '88." 3 EXT-18-2091-C-000509 007104-001230 Document ID: 0.7.19343.9163-000003 (b) In your experience as a lawyer, how would you assess the quality of legal representation provided to indigent criminal defendants? As a judge, what steps would you take to assure that all defendants received competent counsel? 8. Judicial nominees often come before this Committee and profess their allegiance to Supreme Court precedent. I have yet to meet a nominee who says that he or she won't faithfully apply the Constitution as the Court interprets it. But as you and I both know, judging is not simply a scavenger hunt to find a Supreme Court case that is directly on point. Most of the time, judges have to use their own judgment and extrapolate from precedent. (a) Do you think an individual's ideology and judicial philosophy play a role in his or her capacities as a judge? Why or why not? (b) Do you think it is appropriate to ask nominees about their judicial philosophy or ideology? Why or why not? 9. In your responses to several questions, you have refused to discuss your personal views on an issue on the grounds that the issue may come before the D.C. Circuit. Yet you have also stated that you would follow controlling authority and applicable precedent and not your personal beliefs, in deciding cases. If this latter statement is true, then why do you refuse to answer questions about your personal views? 10. During the presidential campaign, President Bush pledged that he would appoint "strict constructionists" to the federal judiciary, in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia. As you are probably aware, these Justices have issued a number of opinions that have generated controversy. For example, they have voted to limit Congress's power to provide redress for victims of rape and domestic abuse, combat discrimination against individuals with disabilities and against individuals who are at least 40 years old, and protect our water sources from pollution. (a) How would you describe the judicial philosophy of Justices Scalia and Thomas? (b) How would you describe your own judicial philosophy, and how do you believe it is different from or similar to Justices Scalia and Thomas? As a judge, would you interpret the Constitution strictly according to its original (c) understanding in 1789? Do you think that the Supreme Court's most important decisions in the last (d) century Brown v. Board of Education, Miranda v. Arizona, Roe v. Wade are consistent with strict constructionism? Why or why not? 11. You were a member of "Lawyers for Bush-Cheney" in 2000 and "D.C. Lawyers for BushQuayle '88." 3 EXT-18-2091-C-000509 007104-001230 Document ID: 0.7.19343.9163-000003 (a) What were the mission and function of these organizations? (b) What was the nature of your involvement in each organization? Please describe your participation in and efforts on behalf of each organization. 4 EXT-18-2091-C-000510 007104-001231 Document ID: 0.7.19343.9163-000003 (a) What were the mission and function of these organizations? (b) What was the nature of your involvement in each organization? Please describe your participation in and efforts on behalf of each organization. 4 EXT-18-2091-C-000510 007104-001231 Document ID: 0.7.19343.9163-000003 Sales , Nathan From : Sales, Nathan Sent : Wednesday, February 19, 2003 11:14 AM To: Benczkowski , Brian A; Brett Kavanaugh (E-mail) Subje ct : FW: Estrada Press Conf TODAY Attachments : Advisory .DOC Importance: High Also, to state the obv ious , Miguel wasn't "Assistant Solicitor General. " He was an Assistant to the Solicitor General. -Original Message--From: Miranda, Manue l (Frist) [mailto :Manuel _ Miranda@frist.senate.gov) Sent: Wednesday, February 19, 2003 10:45 AM Subject: Estrada Press Conf TODAY Importance : High FOR IMMEDIATE RELEASE February 19, 2003 Contact: Elizabeth Keys, 202-224-2928; Senate Republican Conference ***MEDIA ADVISORY0 * BOYDENGRAY,OTHER LEADERS TO DELIVERESTRADAFILINGS FOR SENATEDEMOCRATS TODAYCommitte e for Justice president and former White House Counsel, C. Boyden Gray, will jo in other organization lea ders to deliver to the U. S Capitol the briefs written by federal appeals court nominee Miguel Estrada when he worke d as Assistant Solicitor General, mak ing the documents available to Senate Democrats and their staffs. The del ivery of these briefs and filings from Estrada ' s Supreme Court cases comes as the Democrat filibuster - the first filibuster of any lower court nominee in the nat ion's history - continues to block a Senate floor vote, desp ite the fact that a bipartisan majority of Senators continue to assert their right to vote on the nominee. If con firmed, Estrada woul d become the first Hispanic to serve in the nation 's second most important court. WHO: C. Boyden Gray, Committee for Justice Kay Daly, Coalition for a Fair Judiciary Brigida Benitez, President , D.C. Hispanic Bar Association Juan Carlos lturre gu i, National Hispanic Bar Association EXT-18-2091-C-000511 007104-001232 Document ID: 0.7.19343.5593 Sales , Nathan From : Sales, Nathan Sent : Wednesday, February 19, 2003 11:14 AM To: Benczkowski , Brian A; Brett Kavanaugh (E-mail) Subje ct : FW: Estrada Press Conf TODAY Attachments : Advisory .DOC Importance: High Also, to state the obv ious , Miguel wasn't "Assistant Solicitor General. " He was an Assistant to the Solicitor General. -Original Message--From: Miranda, Manue l (Frist) [mailto :Manuel _ Miranda@frist.senate.gov) Sent: Wednesday, February 19, 2003 10:45 AM Subject: Estrada Press Conf TODAY Importance : High FOR IMMEDIATE RELEASE February 19, 2003 Contact: Elizabeth Keys, 202-224-2928; Senate Republican Conference ***MEDIA ADVISORY0 * BOYDENGRAY,OTHER LEADERS TO DELIVERESTRADAFILINGS FOR SENATEDEMOCRATS TODAYCommitte e for Justice president and former White House Counsel, C. Boyden Gray, will jo in other organization lea ders to deliver to the U. S Capitol the briefs written by federal appeals court nominee Miguel Estrada when he worke d as Assistant Solicitor General, mak ing the documents available to Senate Democrats and their staffs. The del ivery of these briefs and filings from Estrada ' s Supreme Court cases comes as the Democrat filibuster - the first filibuster of any lower court nominee in the nat ion's history - continues to block a Senate floor vote, desp ite the fact that a bipartisan majority of Senators continue to assert their right to vote on the nominee. If con firmed, Estrada woul d become the first Hispanic to serve in the nation 's second most important court. WHO: C. Boyden Gray, Committee for Justice Kay Daly, Coalition for a Fair Judiciary Brigida Benitez, President , D.C. Hispanic Bar Association Juan Carlos lturre gu i, National Hispanic Bar Association EXT-18-2091-C-000511 007104-001232 Document ID: 0.7.19343.5593 Brent Wilkes, League of Latin American Citizens (LULAC} Alma Morales Riojas, MANA, National Latina Organization Rooerto de Posa da, The Latino Coalition Jennifer Oschal, Progress for America WHAT: WHERE: WHEN: 2pm Delivery of Estrada Briefs , Followed by Remarks an d Q&A Scott Room (5-120}, U.S. Capitol Building TODAY- Wednes day, February 19, 2003 ### EXT-18-2091-C-000512 007104-001233 Document ID: 0.7.19343 .5593 Brent Wilkes, League of Latin American Citizens (LULAC} Alma Morales Riojas, MANA, National Latina Organization Rooerto de Posa da, The Latino Coalition Jennifer Oschal, Progress for America WHAT: WHERE: WHEN: 2pm Delivery of Estrada Briefs , Followed by Remarks an d Q&A Scott Room (5-120}, U.S. Capitol Building TODAY- Wednes day, February 19, 2003 ### EXT-18-2091-C-000512 007104-001233 Document ID: 0.7.19343 .5593 ,nit.eb ~tat.es ~.enat.e WASHINGTO N , D.C. 205 10 FOR IMMEDIATE RELEASE Contact: Elizabeth Keys, 202-224-2928; Senate Republican Conference February 19, 2003 ***MEDIA ADVISORY *** BOYDEN GRAY, OTHER LEADERS TO DELIVER ESTRADA FILINGS FOR SENATE DEMOCRATS TODAY Committee for Justice president and former White House Counsel, C. Boyden Gray, will join other organization leaders to deliver to the U. S Capitol the briefs written by federal appeals court nominee Miguel Estrada when he worked as Assistant Solicitor General, making the documents available to Senate Democrats and their staffs. The delivery of these briefs and filings from Estrada's Supreme Court cases comes as the Democrat filibuster - the first filibuster of any lower court nominee in the nation's history - continues to block a Senate floor vote, despite the fact that a bipartisan majority of Senators continue to assert their right to vote on the nominee. If confirmed, Estrada would become the first Hispanic to serve in the nation's second most important court. WHO: C. Boyden Gray, Committee for Justice Kay Daly, Coalition for a Fair Judiciary Brigida Benitez, President, D.C. Hispanic Bar Association Juan Carlos Iturregui, National Hispanic Bar Association Brent Wilkes, League of Latin American Citizens (LULAC) Alma Morales Riojas, MANA, National Latina Organization Robert de Posada, The Latino Coalition Jennifer Oschal, Progress for America WHAT: Delivery of Estrada Briefs, Followed by Remarks and Q&A WHERE: Scott Room (S-120), U.S. Capitol Building WHEN: TODAY - Wednesday, February 19, 2003 2 pm ### EXT-18-2091-C-000513 007104-001234 Document ID: 0.7.19343.5593-000001 ,nit.eb ~tat.es ~.enat.e WASHINGTO N , D.C. 205 10 FOR IMMEDIATE RELEASE Contact: Elizabeth Keys, 202-224-2928; Senate Republican Conference February 19, 2003 ***MEDIA ADVISORY *** BOYDEN GRAY, OTHER LEADERS TO DELIVER ESTRADA FILINGS FOR SENATE DEMOCRATS TODAY Committee for Justice president and former White House Counsel, C. Boyden Gray, will join other organization leaders to deliver to the U. S Capitol the briefs written by federal appeals court nominee Miguel Estrada when he worked as Assistant Solicitor General, making the documents available to Senate Democrats and their staffs. The delivery of these briefs and filings from Estrada's Supreme Court cases comes as the Democrat filibuster - the first filibuster of any lower court nominee in the nation's history - continues to block a Senate floor vote, despite the fact that a bipartisan majority of Senators continue to assert their right to vote on the nominee. If confirmed, Estrada would become the first Hispanic to serve in the nation's second most important court. WHO: C. Boyden Gray, Committee for Justice Kay Daly, Coalition for a Fair Judiciary Brigida Benitez, President, D.C. Hispanic Bar Association Juan Carlos Iturregui, National Hispanic Bar Association Brent Wilkes, League of Latin American Citizens (LULAC) Alma Morales Riojas, MANA, National Latina Organization Robert de Posada, The Latino Coalition Jennifer Oschal, Progress for America WHAT: Delivery of Estrada Briefs, Followed by Remarks and Q&A WHERE: Scott Room (S-120), U.S. Capitol Building WHEN: TODAY - Wednesday, February 19, 2003 2 pm ### EXT-18-2091-C-000513 007104-001234 Document ID: 0.7.19343.5593-000001 Dinh, Viet From : Dinh, Viet Sent : Tuesday, February 25, 2003 10:50 AM To: 'Kavanaugh, Brett' ; 'David_G._Leitch@who.eop.gov ' Subje ct : FW: Catholic community concerns tmp.htm ; Re_ Fwd_Anotherslotopen.eml Attachments : - o?? From: Sent: Tuesday, February 25, 2003 10:47 AM To: Dinh, Viet; Manuel_Miranda@frist.senate.gov; tim_goeglein@who.eop.gov Subject: Catho lic community concerns Attached is an emai l - apparently the Catholic community is concerned about some NJ nominees. It should be noted that this is a growing concern among pro-family groups - they are still "concerned " about Estrada and don 't seem to have a great deal of trust at the moment regarding any Supreme Ct. nomination. Just passing on the news -- don 't smack the messenger! K. EXT-18-2091-C-000514 007104-001235 Document ID: 0.7.19343.9224 Dinh, Viet From : Dinh, Viet Sent : Tuesday, February 25, 2003 10:50 AM To: 'Kavanaugh, Brett' ; 'David_G._Leitch@who.eop.gov ' Subje ct : FW: Catholic community concerns tmp.htm ; Re_ Fwd_Anotherslotopen.eml Attachments : - o.. From: Sent: Tuesday, February 25, 2003 10:47 AM To: Dinh, Viet; Manuel_Miranda@frist.senate.gov; tim_goeglein@who.eop.gov Subject: Catho lic community concerns Attached is an emai l - apparently the Catholic community is concerned about some NJ nominees. It should be noted that this is a growing concern among pro-family groups - they are still "concerned " about Estrada and don 't seem to have a great deal of trust at the moment regarding any Supreme Ct. nomination. Just passing on the news -- don 't smack the messenger! K. EXT-18-2091-C-000514 007104-001235 Document ID: 0.7.19343.9224 William J. Palatu oci From : Sent : William J. Palatucci lllllliliiiiii ' 2003 3:33 PM To : Subjec t : Re: Fwd: Another slot open no At 10:48 PM 2/22/2003 -0500, you wrote: Return-Path: Received: from rly-xh01.mx.aol.com (rly-xhOl.mail.aol.com (172.20.1 15.230]) by airxh04.ma il.aol.com {v90_ r2.5} with ESMTPid MAILINXH42 -0222190920; Sat, 22 Feb 2003 19:09:20 -0500 Received: from egateway.coll ierja cobmills.com (mail.collierjacobmills.com [12.6.147.21)) by rly-xh01.mx.ao l.com {v90_r2.6) with ESMTPid MAILRELAYINXH13-0222190849; Sat, 22 Feb 2003 19:08:49 ~0500 Rece ived: from lnterJet.co llierjacobm ills.com {1192.168. 1.1)) by egateway.collierjacobmills.com (NAVGW2.5.1 .12) with SMTP id M2003022218561815396 for ; Sat, 22 Feb 2003 18:56 :18 -0500 Receive d: (from daemon@localhost) by lnterJet.collierjacobmills.com {8.8.S/8 .8.S) id TAA23070 for ; Sat, 22 Feb 2003 19:34:36 -0500 (EST) Received: from UNKNOWN(192.168 .1.18), claiming to be "cjmdellopti.coll ierjacobmills.com " via SMTP by lnt erJet.collierjacobmills.com, id smtpdE23068; Sun Feb 23 00:34:31 2003 Message- Id: X-Sender: rfc@192.168.1.1 X-Mailer: QUALCOMMWindows Eudora Version 5.1 Date: Sat, 22 Feb 2003 18 :53:12 -0500 To: Larry Cirignano < From: "Richard F. Collier, Jr. Esq." Subject: Another slot open Mime-Vers ion: 1.0 Content -Type: multipart/a lternat ive; boundary=u=========_2 17 13882==_.ALT" After six straight pm-abort appointments to NJ s lots in the fe dera l judiciary, will the Bush adm inistration do any better on this one? ORLOFSKY LEAVING FED BENCH TO REJOI N BLANK ROME Come Sept. 1, court watchers will see something rare in the U.S. District Court of New Jersey: a federal judge returning to private practice. Judge Stephen M. Orlofsky will be stepping down after servin g since 1996. President Clinton nominated him in 2000 to the EXT-18-2091-C-000515 007104-001236 Document ID: 0.7.19343.9224-000001 William J. Palatu oci From : Sent : William J. Palatucci lllllliliiiiii ' 2003 3:33 PM To : Subjec t : Re: Fwd: Another slot open no At 10:48 PM 2/22/2003 -0500, you wrote: Return-Path: Received: from rly-xh01.mx.aol.com (rly-xhOl.mail.aol.com (172.20.1 15.230]) by airxh04.ma il.aol.com {v90_ r2.5} with ESMTPid MAILINXH42 -0222190920; Sat, 22 Feb 2003 19:09:20 -0500 Received: from egateway.coll ierja cobmills.com (mail.collierjacobmills.com [12.6.147.21)) by rly-xh01.mx.ao l.com {v90_r2.6) with ESMTPid MAILRELAYINXH13-0222190849; Sat, 22 Feb 2003 19:08:49 ~0500 Rece ived: from lnterJet.co llierjacobm ills.com {1192.168. 1.1)) by egateway.collierjacobmills.com (NAVGW2.5.1 .12) with SMTP id M2003022218561815396 for ; Sat, 22 Feb 2003 18:56 :18 -0500 Receive d: (from daemon@localhost) by lnterJet.collierjacobmills.com {8.8.S/8 .8.S) id TAA23070 for ; Sat, 22 Feb 2003 19:34:36 -0500 (EST) Received: from UNKNOWN(192.168 .1.18), claiming to be "cjmdellopti.coll ierjacobmills.com " via SMTP by lnt erJet.collierjacobmills.com, id smtpdE23068; Sun Feb 23 00:34:31 2003 Message- Id: X-Sender: rfc@192.168.1.1 X-Mailer: QUALCOMMWindows Eudora Version 5.1 Date: Sat, 22 Feb 2003 18 :53:12 -0500 To: Larry Cirignano < From: "Richard F. Collier, Jr. Esq." Subject: Another slot open Mime-Vers ion: 1.0 Content -Type: multipart/a lternat ive; boundary=u=========_2 17 13882==_.ALT" After six straight pm-abort appointments to NJ s lots in the fe dera l judiciary, will the Bush adm inistration do any better on this one? ORLOFSKY LEAVING FED BENCH TO REJOI N BLANK ROME Come Sept. 1, court watchers will see something rare in the U.S. District Court of New Jersey: a federal judge returning to private practice. Judge Stephen M. Orlofsky will be stepping down after servin g since 1996. President Clinton nominated him in 2000 to the EXT-18-2091-C-000515 007104-001236 Document ID: 0.7.19343.9224-000001 .:Srd u.~. Lircuit Lourt ot Appeals, out that appointment never got out ot the ~enate aner Republicans regained control of the White House. Orlofsky said politics had nothing to do with his decision to resign. Rather, he said, he was approached by the manag ing partne r at Blank Rome in Cherry Hill an d was asked to rejoin the staff. Orlofsky chaire d the litigation department there before becoming a judge. He is only the eighth judge in the history of the federal court he re to resign. 2-20-03 EXT-18-2091-C-000516 007104-001237 Document ID: 0.7.19343 .9224-000001 .:Srd u.~. Lircuit Lourt ot Appeals, out that appointment never got out ot the ~enate aner Republicans regained control of the White House. Orlofsky said politics had nothing to do with his decision to resign. Rather, he said, he was approached by the manag ing partne r at Blank Rome in Cherry Hill an d was asked to rejoin the staff. Orlofsky chaire d the litigation department there before becoming a judge. He is only the eighth judge in the history of the federal court he re to resign. 2-20-03 EXT-18-2091-C-000516 007104-001237 Document ID: 0.7.19343 .9224-000001 Dinh, Viet From : Dinh, Viet Sent : Thursday , March 6, 2003 9:58 AM To: Benczkowski, Brian A Cc: 'Kavanaugh, Brett ' Subject : RE: Judge Gonzales letters - Original Message-From: Benczkowski, Brian A Sent: Monday, March 03, 2003 4:30 PM To: Dinh, Viet Subject: FW: Judge Gonzales letters - Original Message- From: Brett_M._Kavanaugh@who.eop.gov [ma ilto:Brett _ M._ Kavanaugh@who .eop.gov] Sent: Friday, February 28, 2003 11:55 AM To: Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Dinh, Viet; manuel _ miranda@frist.senate.gov; /DOV=rena_johnson_comisac@judiciary.senate.gov/DOT=RFC -822/0=INETGW/P=GO V+DOJ/A=TELEMA!L/C=US/; ill _ wichte rman@trist .senate.gov; a lex_ vogel@trist.senate.gov; bob_ stevenson@frist.senate.gov; paul_jacobson@frist.senate.gov; Mercedes_ M._ Viana@who.eop.gov ; Tim_ Goeg lein@who.eop .gov; Abel_ Guerra@who.eop. gov; Leonard_B._Rodriguez@who.eop.gov; neil.bradle mail.house. ov; kyle_ simmons@mcconnell.senate.gov; katie_gumerson@rpc.senate.gov; margaret.hoover@mail.house.gov ; oma r.franco@mail.house.gov; Ashley_ Snee@oa.eop.gov; Wen dy_J._Grubbs@who.eop.gov; Jeanie_S._Mamo@who.eop.gov; Matthew_E._Smith@who.eop.gov; scastillo@rnchq.org Subject: Judge Gonzales letters Gonzales letter of 2/27 reiterating sources of information available to Democrat Senators: EXT-18-2091-C-000517 007104-001238 Document ID: 0.7.19343 .9275 Dinh, Viet From : Dinh, Viet Sent : Thursday , March 6, 2003 9:58 AM To: Benczkowski, Brian A Cc: 'Kavanaugh, Brett ' Subject : RE: Judge Gonzales letters - Original Message-From: Benczkowski, Brian A Sent: Monday, March 03, 2003 4:30 PM To: Dinh, Viet Subject: FW: Judge Gonzales letters - Original Message- From: Brett_M._Kavanaugh@who.eop.gov [ma ilto:Brett _ M._ Kavanaugh@who .eop.gov] Sent: Friday, February 28, 2003 11:55 AM To: Benczkowski, Brian A; Brown, Jamie E (OLA);Corallo, Mark; Goodling, Monica; Dinh, Viet; manuel _ miranda@frist.senate.gov; /DOV=rena_johnson_comisac@judiciary.senate.gov/DOT=RFC -822/0=INETGW/P=GO V+DOJ/A=TELEMA!L/C=US/; ill _ wichte rman@trist .senate.gov; a lex_ vogel@trist.senate.gov; bob_ stevenson@frist.senate.gov; paul_jacobson@frist.senate.gov; Mercedes_ M._ Viana@who.eop.gov ; Tim_ Goeg lein@who.eop .gov; Abel_ Guerra@who.eop. gov; Leonard_B._Rodriguez@who.eop.gov; neil.bradle mail.house. ov; kyle_ simmons@mcconnell.senate.gov; katie_gumerson@rpc.senate.gov; margaret.hoover@mail.house.gov ; oma r.franco@mail.house.gov; Ashley_ Snee@oa.eop.gov; Wen dy_J._Grubbs@who.eop.gov; Jeanie_S._Mamo@who.eop.gov; Matthew_E._Smith@who.eop.gov; scastillo@rnchq.org Subject: Judge Gonzales letters Gonzales letter of 2/27 reiterating sources of information available to Democrat Senators: EXT-18-2091-C-000517 007104-001238 Document ID: 0.7.19343 .9275 (See attached file: 2 27 03 Senators Estrada letter -LH.pdf) Previous Gonzales letters: (See attached file: Gonzales lette r to Sen. Schumer 2 24 03.pdf)(See attached file: Gonzales letter to Sens. Oaschle-Leahy 2 12 03.pdf)(See attached file: Gonzales lette r to Sen. Feinstein 2 3 03.pdf) EXT-18-2091-C-000518 007104-001239 Document ID: 0.7.19343.9275 (See attached file: 2 27 03 Senators Estrada letter -LH.pdf) Previous Gonzales letters: (See attached file: Gonzales lette r to Sen. Schumer 2 24 03.pdf)(See attached file: Gonzales letter to Sens. Oaschle-Leahy 2 12 03.pdf)(See attached file: Gonzales lette r to Sen. Feinstein 2 3 03.pdf) EXT-18-2091-C-000518 007104-001239 Document ID: 0.7.19343.9275 THE WHITE HOUSE WASHINGTON February 27, 2003 Dear Senator Frist, Senator Daschle, Senator Hatch, and Senator Leahy: I write in connection with the nomination of Miguel Estrada. Some Democrat Senators have indicated that they would like to know more about Mr. Estrada's record before a vote occurs. As I stated in my letter of February 12 to Senator Daschle and Senator Leahy, we believe that the Senate has had sufficient time and possesses sufficient information to vote on Miguel Estrada. More important, a majority of Senators have indicated that they possess sufficient information and would vote to confirm him. But if some Senators believe they must have more information before they will end the filibuster of this nomination, we respectfully suggest that there are three different and important sources of information that have been and remain available and that would appropriately accommodate the request for additional information. We ask that you encourage interested Senators to avail themselves of these sources as soon as possible. First, as I have written to you previously, individual Senators who wish to meet with Miguel Estrada may and should do so immediately. We continue to believe that such meetings could be very useful to Senators who wish to learn more about Mr. Estrada's record and character. Second, Senators who have additional questions for Mr. Estrada should immediately pose such questions in writing to him. We propose that additional questions (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February 28. Mr. Estrada would endeavor to answer such questions in writing by Tuesday, March 4. He would answer the questions forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before. Third, Senators who wish to know more about Mr. Estrada's performance and approach when working in the United States Government -- and, in particular, how that relates to his possible future performance as a Circuit Judge -- should immediately ask in writing for the views of the Solicitors General, United States Attorney, and Judges for whom Mr. Estrada worked and ask them to respond by Tuesday, March 4. In particular, interested Senators could immediately send a joint letter to each of the following individuals for whom Mr. Estrada has worked in the United States Government: Judge Amalya Kearse, Justice Anthony Kennedy, former United States Attorney Otto Obermaier, former Solicitor General Ken Starr, former Solicitor General Drew Days, former Solicitor General Walter Dellinger, and former Solicitor General Seth Waxman. In our judgment, these men and women could provide their views on Mr. Estrada's background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney's EXT-18-2091-C-000519 007104-001240 THE WHITE HOUSE WASHINGTON February 27, 2003 Dear Senator Frist, Senator Daschle, Senator Hatch, and Senator Leahy: I write in connection with the nomination of Miguel Estrada. Some Democrat Senators have indicated that they would like to know more about Mr. Estrada's record before a vote occurs. As I stated in my letter of February 12 to Senator Daschle and Senator Leahy, we believe that the Senate has had sufficient time and possesses sufficient information to vote on Miguel Estrada. More important, a majority of Senators have indicated that they possess sufficient information and would vote to confirm him. But if some Senators believe they must have more information before they will end the filibuster of this nomination, we respectfully suggest that there are three different and important sources of information that have been and remain available and that would appropriately accommodate the request for additional information. We ask that you encourage interested Senators to avail themselves of these sources as soon as possible. First, as I have written to you previously, individual Senators who wish to meet with Miguel Estrada may and should do so immediately. We continue to believe that such meetings could be very useful to Senators who wish to learn more about Mr. Estrada's record and character. Second, Senators who have additional questions for Mr. Estrada should immediately pose such questions in writing to him. We propose that additional questions (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February 28. Mr. Estrada would endeavor to answer such questions in writing by Tuesday, March 4. He would answer the questions forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before. Third, Senators who wish to know more about Mr. Estrada's performance and approach when working in the United States Government -- and, in particular, how that relates to his possible future performance as a Circuit Judge -- should immediately ask in writing for the views of the Solicitors General, United States Attorney, and Judges for whom Mr. Estrada worked and ask them to respond by Tuesday, March 4. In particular, interested Senators could immediately send a joint letter to each of the following individuals for whom Mr. Estrada has worked in the United States Government: Judge Amalya Kearse, Justice Anthony Kennedy, former United States Attorney Otto Obermaier, former Solicitor General Ken Starr, former Solicitor General Drew Days, former Solicitor General Walter Dellinger, and former Solicitor General Seth Waxman. In our judgment, these men and women could provide their views on Mr. Estrada's background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney's EXT-18-2091-C-000519 007104-001240 office, and Solicitor General's office. And their views could assist Senators who seek more information about Mr. Estrada. We believe that these sources of information, which have been available for some time, would readily accommodate the desire for additional information expressed by some Senators who have thus far supported the filibuster of a vote on this nominee. We ask that you encourage Senators who have objected to the scheduling of a vote to avail themselves of these sources of information. And we respectfully ask that the Senate vote up or down as soon as possible on Mr. Estrada's nomination, which has been pending for nearly two years. Please do not hesitate to contact me with any questions. Sincerely, Alberto R. Gonzales Counsel to the President The Honorable Thomas A. Daschle The Honorable Patrick Leahy The Honorable Bill Frist The Honorable Orrin Hatch Copy: All other United States Senators EXT-18-2091-C-000520 007104-001241 office, and Solicitor General's office. And their views could assist Senators who seek more information about Mr. Estrada. We believe that these sources of information, which have been available for some time, would readily accommodate the desire for additional information expressed by some Senators who have thus far supported the filibuster of a vote on this nominee. We ask that you encourage Senators who have objected to the scheduling of a vote to avail themselves of these sources of information. And we respectfully ask that the Senate vote up or down as soon as possible on Mr. Estrada's nomination, which has been pending for nearly two years. Please do not hesitate to contact me with any questions. Sincerely, Alberto R. Gonzales Counsel to the President The Honorable Thomas A. Daschle The Honorable Patrick Leahy The Honorable Bill Frist The Honorable Orrin Hatch Copy: All other United States Senators EXT-18-2091-C-000520 007104-001241 THE WHITE HOUSE WASHINGTON February 3, 2003 Dear Senator Feinstein: I write in response to your vote in the Judiciary Committee on the nomination of Miguel Estrada and to respectfully urge that you reconsider this important nomination when you vote on it in the full Senate. I write in particular because it appears from your statement in the Committee (and on your web site) that you may possess inaccurate or incomplete information on certain issues that you have deemed important to the Estrada nomination. First, it appears you relied on the fact that Estrada has no previous judicial service. But five of the eight judges currently serving on the D.C. Circuit had no previous judicial experience when appointed. That includes two of President Clinton's nominees, Merrick Garland, whose Justice Department record was quite similar to that of Miguel Estrada, and David Tatel. In addition, Judge Harry Edwards had no prior judicial experience when he was nominated by President Carter in 1979, and he was younger than Estrada. In addition, several Ninth Circuit judges from California who were appointed by President Clinton, and had your support, had no prior judicial experience. That includes Judge William Fletcher, Judge Raymond Fisher, and Judge Marsha Berzon. The American Bar Association, which Democrat Senators Leahy and Schumer have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. We think the ABA rating was quite appropriate in light of Estrada's excellent record, including his work as an Assistant Solicitor General in the Clinton and Bush Administrations, his record as a federal prosecutor in New York, his service as a law clerk to Justice Kennedy, and his pro bono work including his volunteer representation of a death row inmate before the Supreme Court. He has argued 15 cases before the Supreme Court of the United States, a figure that few lawyers can match, and particularly impressive for someone who immigrated to this country at age 17 speaking little English. Second, you also referenced a news report quoting the views of Paul Bender, a former Deputy Solicitor General. Mr. Bender has not written a letter to the Committee or otherwise publicly explained his views, so we are unclear whether this news report was accurate. But more important, as I explained in a September 17, 2002, letter to then-Chairman Leahy and Senator Hatch, Paul Bender in fact signed the performance reviews of Miguel Estrada for the two years that they worked together. The performance reviews for those years gave Estrada the highest possible rating of "outstanding" in every possible category. Significantly, the performance reviews that Bender signed also stated the following to support the judgment that Estrada's performance was "outstanding." EXT-18-2091-C-000521 007104-001242 THE WHITE HOUSE WASHINGTON February 3, 2003 Dear Senator Feinstein: I write in response to your vote in the Judiciary Committee on the nomination of Miguel Estrada and to respectfully urge that you reconsider this important nomination when you vote on it in the full Senate. I write in particular because it appears from your statement in the Committee (and on your web site) that you may possess inaccurate or incomplete information on certain issues that you have deemed important to the Estrada nomination. First, it appears you relied on the fact that Estrada has no previous judicial service. But five of the eight judges currently serving on the D.C. Circuit had no previous judicial experience when appointed. That includes two of President Clinton's nominees, Merrick Garland, whose Justice Department record was quite similar to that of Miguel Estrada, and David Tatel. In addition, Judge Harry Edwards had no prior judicial experience when he was nominated by President Carter in 1979, and he was younger than Estrada. In addition, several Ninth Circuit judges from California who were appointed by President Clinton, and had your support, had no prior judicial experience. That includes Judge William Fletcher, Judge Raymond Fisher, and Judge Marsha Berzon. The American Bar Association, which Democrat Senators Leahy and Schumer have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. We think the ABA rating was quite appropriate in light of Estrada's excellent record, including his work as an Assistant Solicitor General in the Clinton and Bush Administrations, his record as a federal prosecutor in New York, his service as a law clerk to Justice Kennedy, and his pro bono work including his volunteer representation of a death row inmate before the Supreme Court. He has argued 15 cases before the Supreme Court of the United States, a figure that few lawyers can match, and particularly impressive for someone who immigrated to this country at age 17 speaking little English. Second, you also referenced a news report quoting the views of Paul Bender, a former Deputy Solicitor General. Mr. Bender has not written a letter to the Committee or otherwise publicly explained his views, so we are unclear whether this news report was accurate. But more important, as I explained in a September 17, 2002, letter to then-Chairman Leahy and Senator Hatch, Paul Bender in fact signed the performance reviews of Miguel Estrada for the two years that they worked together. The performance reviews for those years gave Estrada the highest possible rating of "outstanding" in every possible category. Significantly, the performance reviews that Bender signed also stated the following to support the judgment that Estrada's performance was "outstanding." EXT-18-2091-C-000521 007104-001242 ? ? ? ? ? "states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness." "[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others." "[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner." "[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities." "[i]s constantly sought for advice and counsel. Inspires co-workers by example." Apart from the contemporaneous reviews that Mr. Bender himself signed, it also bears mention that the Committee has received letters from Seth Waxman, President Clinton's Solicitor General, and a bipartisan group of 14 former colleagues of Mr. Estrada in the Solicitor General's office. Seth Waxman wrote to the Committee that Estrada is a "model of professionalism and competence" and that he has "great respect both for Mr. Estrada's intellect and for his integrity." He continued: "In no way did I ever discern that the recommendations Mr. Estrada made or the views he propounded were colored in any way by his personal views - or indeed that they reflected anything other than the long-term interests of the United States." And the bipartisan group of former colleagues from the Office of Solicitor General wrote to the Committee that Estrada "would be a fair and honest judge who would decide cases in accordance with applicable legal principles and precedents." Finally, to the extent Mr. Bender's own personal political and ideological views are relevant, we call your attention to Senator Hatch's opening statement at the hearing on September 26, 2002. Third, you referenced the fact that Miguel Estrada has been "accused" of using an ideological litmus test when assisting Justice Kennedy in the selection of his law clerks. We respectfully do not think this "accusation" is credible or supported. In fact, Mr. Estrada explained at his hearing that he in fact had been very supportive, for example, of the hiring of one law clerk for Justice Kennedy who at the time worked for President Clinton, is a strong Democrat, and now works for Senator Leahy on the Judiciary Committee. Fourth, you noted concern among "Hispanic organizations." In fact, the overwhelming majority of national Hispanic organizations have supported Mr. Estrada. That includes the Hispanic National Bar Association, the League of United Latin American Citizens, the U.S. Hispanic Chamber of Commerce, the Hispanic Business Roundtable, and the Latino Coalition, among many others. To be sure, MALDEF and PRLDEF do oppose Mr. Estrada. As to Hispanic members of the House, we understand that all of the Republican Hispanics support him while the Democrat Hispanics do not. In any event, LULAC's statement is noteworthy, as it states: "[Estrada] is truly one of the rising stars in the Hispanic community and a role model for our youth." EXT-18-2091-C-000522 007104-001243 ? ? ? ? ? "states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness." "[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others." "[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner." "[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities." "[i]s constantly sought for advice and counsel. Inspires co-workers by example." Apart from the contemporaneous reviews that Mr. Bender himself signed, it also bears mention that the Committee has received letters from Seth Waxman, President Clinton's Solicitor General, and a bipartisan group of 14 former colleagues of Mr. Estrada in the Solicitor General's office. Seth Waxman wrote to the Committee that Estrada is a "model of professionalism and competence" and that he has "great respect both for Mr. Estrada's intellect and for his integrity." He continued: "In no way did I ever discern that the recommendations Mr. Estrada made or the views he propounded were colored in any way by his personal views - or indeed that they reflected anything other than the long-term interests of the United States." And the bipartisan group of former colleagues from the Office of Solicitor General wrote to the Committee that Estrada "would be a fair and honest judge who would decide cases in accordance with applicable legal principles and precedents." Finally, to the extent Mr. Bender's own personal political and ideological views are relevant, we call your attention to Senator Hatch's opening statement at the hearing on September 26, 2002. Third, you referenced the fact that Miguel Estrada has been "accused" of using an ideological litmus test when assisting Justice Kennedy in the selection of his law clerks. We respectfully do not think this "accusation" is credible or supported. In fact, Mr. Estrada explained at his hearing that he in fact had been very supportive, for example, of the hiring of one law clerk for Justice Kennedy who at the time worked for President Clinton, is a strong Democrat, and now works for Senator Leahy on the Judiciary Committee. Fourth, you noted concern among "Hispanic organizations." In fact, the overwhelming majority of national Hispanic organizations have supported Mr. Estrada. That includes the Hispanic National Bar Association, the League of United Latin American Citizens, the U.S. Hispanic Chamber of Commerce, the Hispanic Business Roundtable, and the Latino Coalition, among many others. To be sure, MALDEF and PRLDEF do oppose Mr. Estrada. As to Hispanic members of the House, we understand that all of the Republican Hispanics support him while the Democrat Hispanics do not. In any event, LULAC's statement is noteworthy, as it states: "[Estrada] is truly one of the rising stars in the Hispanic community and a role model for our youth." EXT-18-2091-C-000522 007104-001243 Thank you for considering this nominee in light of the above information. This is an historic nomination, as Miguel Estrada would be the first Hispanic to serve on the D.C. Circuit. We urge you to vote to confirm him. Sincerely, I I ....... ...tit. T9' rlU d"f. 1 # Alberto R. Gonzales Counsel to the President The Honorable Dianne Feinstein United States Senate Washington, D.C. 20510 cc: The Honorable Bill Frist The Honorable Thomas A. Daschle The Honorable Orrin G. Hatch The Honorable Patrick J. Leahy The Honorable Mitch McConnell The Honorable Rick Santorum The Honorable Jon L. Kyl EXT-18-2091-C-000523 007104-001244 Thank you for considering this nominee in light of the above information. This is an historic nomination, as Miguel Estrada would be the first Hispanic to serve on the D.C. Circuit. We urge you to vote to confirm him. Sincerely, I I ....... ...tit. T9' rlU d"f. 1 # Alberto R. Gonzales Counsel to the President The Honorable Dianne Feinstein United States Senate Washington, D.C. 20510 cc: The Honorable Bill Frist The Honorable Thomas A. Daschle The Honorable Orrin G. Hatch The Honorable Patrick J. Leahy The Honorable Mitch McConnell The Honorable Rick Santorum The Honorable Jon L. Kyl EXT-18-2091-C-000523 007104-001244 THE WHITE HOUSE WASHINGTON February 24, 2003 Dear Senator Schumer: Based on your public comments yesterday, I am concerned that you may have inaccurate and incomplete information about Miguel Estrada's qualifications and about the historical practice with respect to judicial confirmations. Therefore, I write to respectfully reiterate and explain our conclusion that you and certain other Senators are applying an unfair double standard -- indeed, a series of unfair double standards -- to Miguel Estrada. First, your request for confidential attorney-client memoranda Mr. Estrada wrote in the Office of Solicitor General seeks information that, based on our review, has not been demanded from past nominees to the federal courts of appeals. We are informed that the Senate has not requested memoranda such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department -- including the seven nominees who had previously worked in the Solicitor General's office. Nor have such memoranda been demanded from nominees in similar attorney-client situations: The Senate has not demanded confidential memoranda written by judicial nominees who had served as Senate lawyers, such as memoranda written by Stephen Breyer as a Senate counsel before Justice Breyer was confirmed to the First Circuit in 1980. Nor has the Senate demanded confidential memoranda written by judicial nominees who had served as law clerks to Supreme Court Justices or other federal or state judges. Nor has the Senate demanded confidential memoranda written by judicial nominees who had worked for private clients. The very few isolated examples you have cited were not nominees for federal appeals courts. Moreover, those situations involved Executive Branch accommodations of targeted requests for particular documents about specific issues that were primarily related to allegations of malfeasance or misconduct in a federal office. We respectfully do not believe these examples support your request. Our conclusion about the general lack of support and precedent for your position is buttressed by the fact that every living former Solicitor General (four Democrats and three Republicans) has strongly opposed your request and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. In short, the traditional practice of the Senate and the Executive Branch with respect to federal appeals court nominations stands in contrast to your request here and supports our conclusion that an unfair double standard is being applied to Miguel Estrada. (Also, contrary to your suggestion yesterday, please note that no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.) Second, you suggested that "no judicial nominee that I'm aware of, for such a high court, has ever had so little of a record." I respectfully disagree. Miguel Estrada has been a very accomplished lawyer, trying cases before federal juries, briefing and arguing numerous appeals before federal and state appeals courts, and arguing 15 cases before the Supreme Court, among his other significant work. His record and breadth of experience exceeds that of many judicial nominees, which is no doubt why the American Bar Association -- which you have labeled the EXT-18-2091-C-000524 007104-001245 THE WHITE HOUSE WASHINGTON February 24, 2003 Dear Senator Schumer: Based on your public comments yesterday, I am concerned that you may have inaccurate and incomplete information about Miguel Estrada's qualifications and about the historical practice with respect to judicial confirmations. Therefore, I write to respectfully reiterate and explain our conclusion that you and certain other Senators are applying an unfair double standard -- indeed, a series of unfair double standards -- to Miguel Estrada. First, your request for confidential attorney-client memoranda Mr. Estrada wrote in the Office of Solicitor General seeks information that, based on our review, has not been demanded from past nominees to the federal courts of appeals. We are informed that the Senate has not requested memoranda such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department -- including the seven nominees who had previously worked in the Solicitor General's office. Nor have such memoranda been demanded from nominees in similar attorney-client situations: The Senate has not demanded confidential memoranda written by judicial nominees who had served as Senate lawyers, such as memoranda written by Stephen Breyer as a Senate counsel before Justice Breyer was confirmed to the First Circuit in 1980. Nor has the Senate demanded confidential memoranda written by judicial nominees who had served as law clerks to Supreme Court Justices or other federal or state judges. Nor has the Senate demanded confidential memoranda written by judicial nominees who had worked for private clients. The very few isolated examples you have cited were not nominees for federal appeals courts. Moreover, those situations involved Executive Branch accommodations of targeted requests for particular documents about specific issues that were primarily related to allegations of malfeasance or misconduct in a federal office. We respectfully do not believe these examples support your request. Our conclusion about the general lack of support and precedent for your position is buttressed by the fact that every living former Solicitor General (four Democrats and three Republicans) has strongly opposed your request and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. In short, the traditional practice of the Senate and the Executive Branch with respect to federal appeals court nominations stands in contrast to your request here and supports our conclusion that an unfair double standard is being applied to Miguel Estrada. (Also, contrary to your suggestion yesterday, please note that no one in the Executive Branch has reviewed these memoranda since President Bush took office in January 2001.) Second, you suggested that "no judicial nominee that I'm aware of, for such a high court, has ever had so little of a record." I respectfully disagree. Miguel Estrada has been a very accomplished lawyer, trying cases before federal juries, briefing and arguing numerous appeals before federal and state appeals courts, and arguing 15 cases before the Supreme Court, among his other significant work. His record and breadth of experience exceeds that of many judicial nominees, which is no doubt why the American Bar Association -- which you have labeled the EXT-18-2091-C-000524 007104-001245 "gold standard" -- unanimously rated him "well-qualified." In noting yesterday that Mr. Estrada's career had been devoted to "arguing for a client," you appeared to imply that only those with prior judicial service (or perhaps "a lot of [law review] articles") may serve on the federal appeals courts. But five of the eight judges currently serving on the D.C. Circuit had no prior judicial service at the time of their appointments. Indeed, Supreme Court Justices Rehnquist, White, and Powell -- to name three of the most recent -- had not served as judges before being confirmed to the Supreme Court. And like Mr. Estrada, two appointees of President Clinton to the D.C. Circuit (Judge David Tatel and Judge Merrick Garland) had similarly spent their careers "arguing for a client," but were nonetheless confirmed. As the Chief Justice noted in his 2001 Year-End Report, moreover, "[t]he federal Judiciary has traditionally drawn from a wide diversity of professional backgrounds." The Chief Justice cited Justice Louis Brandeis, Justice John Harlan, Justice Byron White, Judge Thurgood Marshall (as nominee to the Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few examples of great judges who had spent virtually their entire careers "arguing for a client" before becoming Supreme Court Justices or federal appeals court judges. As these examples show, had the "arguing for a client" standard been applied in the past, it would have deprived the American people of many of our most notable appellate judges. Based on our understanding, this standard has not been applied in the past. This further explains why we have concluded that an unfair double standard is being applied to Miguel Estrada. Third, you stated that "when you went to those hearings, Mr. Estrada answered no questions." The record demonstrates otherwise. Mr. Estrada answered more than 100 questions at his hearing (and another 25 in follow-up written answers). He explained in some detail his approach to judging on many issues, and did so appropriately without providing his personal views on specific legal or policy questions that could come before him - which is how previous judicial nominees of Presidents of both parties have appropriately answered questions. Indeed, at his hearing, Mr. Estrada was asked and answered more questions, and did so more fully, than did President Clinton's appointees to this same court. Judge David Tatel was asked a total of three questions at his hearing. Judges Judith Rogers and Merrick Garland were each asked fewer than 20 questions. The three appointees of President Clinton - combined - thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, like Mr. Estrada, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions at the hearing. Judge Rogers refused to give her views when asked about the notion of an evolving Constitution. And Mr. Garland did not answer questions about his personal views on the death penalty, stating that he would follow precedent. In short, we believe that your criticism of Mr. Estrada's answers at his hearing reveals that another unfair double standard is being applied to Mr. Estrada. Fourth, you stated that the Founding Fathers "came to the conclusion that the Senate ought to ask a whole lot of questions" of judicial nominees. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate should make an informed judgment consistent with its traditional role and practices. But your characterization of the Senate's role with respect to judicial nominations is not consistent with our reading of historical or traditional practice. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family 2 EXT-18-2091-C-000525 007104-001246 "gold standard" -- unanimously rated him "well-qualified." In noting yesterday that Mr. Estrada's career had been devoted to "arguing for a client," you appeared to imply that only those with prior judicial service (or perhaps "a lot of [law review] articles") may serve on the federal appeals courts. But five of the eight judges currently serving on the D.C. Circuit had no prior judicial service at the time of their appointments. Indeed, Supreme Court Justices Rehnquist, White, and Powell -- to name three of the most recent -- had not served as judges before being confirmed to the Supreme Court. And like Mr. Estrada, two appointees of President Clinton to the D.C. Circuit (Judge David Tatel and Judge Merrick Garland) had similarly spent their careers "arguing for a client," but were nonetheless confirmed. As the Chief Justice noted in his 2001 Year-End Report, moreover, "[t]he federal Judiciary has traditionally drawn from a wide diversity of professional backgrounds." The Chief Justice cited Justice Louis Brandeis, Justice John Harlan, Justice Byron White, Judge Thurgood Marshall (as nominee to the Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few examples of great judges who had spent virtually their entire careers "arguing for a client" before becoming Supreme Court Justices or federal appeals court judges. As these examples show, had the "arguing for a client" standard been applied in the past, it would have deprived the American people of many of our most notable appellate judges. Based on our understanding, this standard has not been applied in the past. This further explains why we have concluded that an unfair double standard is being applied to Miguel Estrada. Third, you stated that "when you went to those hearings, Mr. Estrada answered no questions." The record demonstrates otherwise. Mr. Estrada answered more than 100 questions at his hearing (and another 25 in follow-up written answers). He explained in some detail his approach to judging on many issues, and did so appropriately without providing his personal views on specific legal or policy questions that could come before him - which is how previous judicial nominees of Presidents of both parties have appropriately answered questions. Indeed, at his hearing, Mr. Estrada was asked and answered more questions, and did so more fully, than did President Clinton's appointees to this same court. Judge David Tatel was asked a total of three questions at his hearing. Judges Judith Rogers and Merrick Garland were each asked fewer than 20 questions. The three appointees of President Clinton - combined - thus answered fewer than half the number of questions at their hearings that Mr. Estrada answered at his hearing. What is more, like Mr. Estrada, both Judge Rogers and Judge Garland declined to give their personal views on disputed legal and policy questions at the hearing. Judge Rogers refused to give her views when asked about the notion of an evolving Constitution. And Mr. Garland did not answer questions about his personal views on the death penalty, stating that he would follow precedent. In short, we believe that your criticism of Mr. Estrada's answers at his hearing reveals that another unfair double standard is being applied to Mr. Estrada. Fourth, you stated that the Founding Fathers "came to the conclusion that the Senate ought to ask a whole lot of questions" of judicial nominees. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate should make an informed judgment consistent with its traditional role and practices. But your characterization of the Senate's role with respect to judicial nominations is not consistent with our reading of historical or traditional practice. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family 2 EXT-18-2091-C-000525 007104-001246 connection, from personal attachment, or from a view to popularity." The Federalist 76. The Framers anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." Id. Moreover, the Senate did not hold hearings on judicial nominees for much of American history, and the hearings for lower-court nominees in modern times traditionally have not included the examination of personal views that you have advocated. (My letter of February 12, 2003, to Senators Daschle and Leahy contains more detail on this point.) Indeed, just a few years ago, Senator Biden made clear, consistent with the traditional practice, that he would vote to confirm an appeals court judge if he were convinced that the nominee would follow precedent and otherwise was of high ability and integrity. In short, it appears that you are seeking to change the Senate's traditional standard for assessing judicial nominees. We respect your right to advocate a change, but we do not believe that the standard you seek to apply is consistent with the Framers' vision, the traditional Senate practice, or the Senate's treatment of President Clinton's nominees. Rather, we believe a new standard is being devised and applied to Miguel Estrada. Fifth, you stated yesterday that a "filibuster" is not an appropriate term to describe what has been occurring in the Senate. We respectfully disagree. Democrat Senators have objected to unanimous consent motions to schedule a vote, and they have indicated that they will continue to do so. That tactic is historically and commonly known as a filibuster, and is a dramatic escalation of the tactics used to oppose judicial nominees. Indeed, in 1998, Senator Leahy stated: "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). In our judgment, the tactics now being employed again show that Miguel Estrada is receiving differential treatment. *** As I have said before, I appreciate and respect the Senate's constitutional role in the confirmation process. You have expressed concern that you do not know enough about Mr. Estrada's views, but you have not submitted any follow-up questions to him. We respectfully submit that the Senate has ample information and has had more than enough time to consider questions about the qualifications and suitability of a nominee submitted more than 21 months ago. Most important, we believe that a majority of Senators have now concluded that they possess sufficient information on Mr. Estrada and would vote to confirm him. We believe it is past time for the Senate to vote on this nominee, and we urge your support. Sincerely, /s/ Alberto R. Gonzales Counsel to the President 3 EXT-18-2091-C-000526 007104-001247 connection, from personal attachment, or from a view to popularity." The Federalist 76. The Framers anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." Id. Moreover, the Senate did not hold hearings on judicial nominees for much of American history, and the hearings for lower-court nominees in modern times traditionally have not included the examination of personal views that you have advocated. (My letter of February 12, 2003, to Senators Daschle and Leahy contains more detail on this point.) Indeed, just a few years ago, Senator Biden made clear, consistent with the traditional practice, that he would vote to confirm an appeals court judge if he were convinced that the nominee would follow precedent and otherwise was of high ability and integrity. In short, it appears that you are seeking to change the Senate's traditional standard for assessing judicial nominees. We respect your right to advocate a change, but we do not believe that the standard you seek to apply is consistent with the Framers' vision, the traditional Senate practice, or the Senate's treatment of President Clinton's nominees. Rather, we believe a new standard is being devised and applied to Miguel Estrada. Fifth, you stated yesterday that a "filibuster" is not an appropriate term to describe what has been occurring in the Senate. We respectfully disagree. Democrat Senators have objected to unanimous consent motions to schedule a vote, and they have indicated that they will continue to do so. That tactic is historically and commonly known as a filibuster, and is a dramatic escalation of the tactics used to oppose judicial nominees. Indeed, in 1998, Senator Leahy stated: "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). In our judgment, the tactics now being employed again show that Miguel Estrada is receiving differential treatment. *** As I have said before, I appreciate and respect the Senate's constitutional role in the confirmation process. You have expressed concern that you do not know enough about Mr. Estrada's views, but you have not submitted any follow-up questions to him. We respectfully submit that the Senate has ample information and has had more than enough time to consider questions about the qualifications and suitability of a nominee submitted more than 21 months ago. Most important, we believe that a majority of Senators have now concluded that they possess sufficient information on Mr. Estrada and would vote to confirm him. We believe it is past time for the Senate to vote on this nominee, and we urge your support. Sincerely, /s/ Alberto R. Gonzales Counsel to the President 3 EXT-18-2091-C-000526 007104-001247 Copy: The Honorable Bill Frist The Honorable Thomas A. Daschle The Honorable Orrin Hatch The Honorable Patrick Leahy 4 EXT-18-2091-C-000527 007104-001248 Copy: The Honorable Bill Frist The Honorable Thomas A. Daschle The Honorable Orrin Hatch The Honorable Patrick Leahy 4 EXT-18-2091-C-000527 007104-001248 THE WHITE HOUSE WASHINGTON February 12, 2003 Dear Senator Daschle and Senator Leahy: On behalf of President Bush, I write in response to your letter to the President dated February 11, 2003. In the letter, you renew your previous request for confidential Department of Justice memoranda in which Mr. Estrada provided appeal, certiorari, and amicus recommendations while he was a career attorney in the Office of Solicitor General for four years in the Clinton Administration and one year in the George H.W. Bush Administration. You also request that Mr. Estrada answer certain questions beyond the extensive questions that he already answered appropriately and forthrightly during his Committee hearing and in follow-up written responses. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate must make an informed judgment consistent with its traditional role and practices. However, your requests have no persuasive support in the history and precedent of judicial appointments. Indeed, the relevant history and precedent convincingly demonstrate that a new and shifting standard is being applied to Miguel Estrada. First, as the Department of Justice explained in its letters of June 5, 2002, October 8, 2002, and January 23, 2003, all living former Solicitors General (four Democrats and three Republicans) have strongly opposed your request for Solicitor General memoranda and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. Even more telling, we are informed that the Senate has not requested memos such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department (including the seven nominees who had previously worked in the Solicitor General's office). The few isolated examples you have cited - in which targeted requests for particular documents about specific issues were accommodated for nominees to positions other than the U.S. Courts of Appeals - similarly do not support your request here. Second, as explained more fully below with respect to your request that Mr. Estrada answer additional questions, the only specific question identified in your letter refers to his judicial role models. You claim that Mr. Estrada refused to answer a question on this topic. In fact, in his written responses to Senator Durbin's question on this precise subject that Mr. Estrada submitted three months ago, he cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires (he clerked for Justice Kennedy and Judge Kearse), and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question." Your letter to the President ignores Mr. Estrada's answer to this question. In any event, beyond this one query, your letter does not pose any additional questions to him. Additionally, neither of you has posed any written questions to Mr. Estrada in the more than three months since his allday Committee hearing. Since the hearing, Mr. Estrada also has met (and continues to meet) with numerous Democrat Senators interested in learning more about his record. Finally, as I will EXT-18-2091-C-000528 007104-001249 THE WHITE HOUSE WASHINGTON February 12, 2003 Dear Senator Daschle and Senator Leahy: On behalf of President Bush, I write in response to your letter to the President dated February 11, 2003. In the letter, you renew your previous request for confidential Department of Justice memoranda in which Mr. Estrada provided appeal, certiorari, and amicus recommendations while he was a career attorney in the Office of Solicitor General for four years in the Clinton Administration and one year in the George H.W. Bush Administration. You also request that Mr. Estrada answer certain questions beyond the extensive questions that he already answered appropriately and forthrightly during his Committee hearing and in follow-up written responses. We respect the Senate's constitutional role in the confirmation process, and we agree that the Senate must make an informed judgment consistent with its traditional role and practices. However, your requests have no persuasive support in the history and precedent of judicial appointments. Indeed, the relevant history and precedent convincingly demonstrate that a new and shifting standard is being applied to Miguel Estrada. First, as the Department of Justice explained in its letters of June 5, 2002, October 8, 2002, and January 23, 2003, all living former Solicitors General (four Democrats and three Republicans) have strongly opposed your request for Solicitor General memoranda and stated that it would sacrifice and compromise the ability of the Justice Department to effectively represent the United States in court. Even more telling, we are informed that the Senate has not requested memos such as these for any of the 67 appeals court nominees since 1977 who had previously worked in the Justice Department (including the seven nominees who had previously worked in the Solicitor General's office). The few isolated examples you have cited - in which targeted requests for particular documents about specific issues were accommodated for nominees to positions other than the U.S. Courts of Appeals - similarly do not support your request here. Second, as explained more fully below with respect to your request that Mr. Estrada answer additional questions, the only specific question identified in your letter refers to his judicial role models. You claim that Mr. Estrada refused to answer a question on this topic. In fact, in his written responses to Senator Durbin's question on this precise subject that Mr. Estrada submitted three months ago, he cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires (he clerked for Justice Kennedy and Judge Kearse), and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question." Your letter to the President ignores Mr. Estrada's answer to this question. In any event, beyond this one query, your letter does not pose any additional questions to him. Additionally, neither of you has posed any written questions to Mr. Estrada in the more than three months since his allday Committee hearing. Since the hearing, Mr. Estrada also has met (and continues to meet) with numerous Democrat Senators interested in learning more about his record. Finally, as I will EXT-18-2091-C-000528 007104-001249 explain below, Mr. Estrada forthrightly answered numerous questions about his judicial approach and views in a manner that matches or greatly exceeds answers demanded of previous appeals court nominees. With respect, it appears that a double standard is being applied to Miguel Estrada. That is highly unfair and inappropriate, particularly for this well-qualified and well-respected nominee. I will turn now in more detail to the various issues raised by your letter. I will address them at some length given the importance of this issue and the nature of your requests. I. Miguel Estrada's Qualifications and Bipartisan Support Miguel Estrada is an extraordinarily qualified judicial nominee. The American Bar Association, which Senators Leahy and Schumer have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. The ABA rating was entirely appropriate in light of Mr. Estrada's superb record as Assistant to the Solicitor General in the Clinton and George H.W. Bush Administrations, as a federal prosecutor in New York, as a law clerk to Justice Kennedy, and in performing significant pro bono work. Some who are misinformed have seized on Mr. Estrada's lack of prior judicial experience, but five of the eight judges currently serving on the D.C. Circuit had no prior judicial experience, including two appointees of President Clinton and one appointee of President Carter. Miguel Estrada has tried numerous cases before federal juries, argued many cases in the federal appeals courts, and argued 15 cases before the Supreme Court of the United States. That is a record that few judicial nominees can match. And few lawyers, whatever their ideology or philosophy, have volunteered to represent a death row inmate pro bono before the Supreme Court as did Miguel Estrada. Mr. Estrada's excellent legal qualifications are all the more extraordinary given his personal history. Simply put, Miguel Estrada is an American success story. He came to this country at age 17 from Honduras speaking little English. Through hard work and dedicated service to the United States, Miguel Estrada has risen to the very pinnacle of the legal profession. If confirmed, he would be the first Hispanic judge to sit on the U.S. Court of Appeals for the D.C. Circuit. Given his record, his background, and his integrity, it is no surprise that Miguel Estrada is strongly supported by the vast majority of national Hispanic organizations. The League of United Latin American Citizens (LULAC), for example, wrote to Senator Leahy to urge Mr. Estrada's confirmation and explain that he "is truly one of the rising stars in the Hispanic community and a role model for our youth." A group of 19 Hispanic organizations, including LULAC and the Hispanic National Bar Association, recently wrote to the Senate urging "on behalf of an overwhelming majority of Hispanics in this country" that "both parties in the U.S. Senate . . . put partisan politics aside so that Hispanics are no longer denied representation in one of the most prestigious courts in the land." The current effort to filibuster Mr. Estrada's nomination is particularly unjustified given that those who have worked with Miguel -- including prominent Democrat lawyers whom you 2 EXT-18-2091-C-000529 007104-001250 explain below, Mr. Estrada forthrightly answered numerous questions about his judicial approach and views in a manner that matches or greatly exceeds answers demanded of previous appeals court nominees. With respect, it appears that a double standard is being applied to Miguel Estrada. That is highly unfair and inappropriate, particularly for this well-qualified and well-respected nominee. I will turn now in more detail to the various issues raised by your letter. I will address them at some length given the importance of this issue and the nature of your requests. I. Miguel Estrada's Qualifications and Bipartisan Support Miguel Estrada is an extraordinarily qualified judicial nominee. The American Bar Association, which Senators Leahy and Schumer have referred to as the "gold standard," unanimously rated Estrada "well qualified" for the D.C. Circuit, the ABA's highest possible rating. The ABA rating was entirely appropriate in light of Mr. Estrada's superb record as Assistant to the Solicitor General in the Clinton and George H.W. Bush Administrations, as a federal prosecutor in New York, as a law clerk to Justice Kennedy, and in performing significant pro bono work. Some who are misinformed have seized on Mr. Estrada's lack of prior judicial experience, but five of the eight judges currently serving on the D.C. Circuit had no prior judicial experience, including two appointees of President Clinton and one appointee of President Carter. Miguel Estrada has tried numerous cases before federal juries, argued many cases in the federal appeals courts, and argued 15 cases before the Supreme Court of the United States. That is a record that few judicial nominees can match. And few lawyers, whatever their ideology or philosophy, have volunteered to represent a death row inmate pro bono before the Supreme Court as did Miguel Estrada. Mr. Estrada's excellent legal qualifications are all the more extraordinary given his personal history. Simply put, Miguel Estrada is an American success story. He came to this country at age 17 from Honduras speaking little English. Through hard work and dedicated service to the United States, Miguel Estrada has risen to the very pinnacle of the legal profession. If confirmed, he would be the first Hispanic judge to sit on the U.S. Court of Appeals for the D.C. Circuit. Given his record, his background, and his integrity, it is no surprise that Miguel Estrada is strongly supported by the vast majority of national Hispanic organizations. The League of United Latin American Citizens (LULAC), for example, wrote to Senator Leahy to urge Mr. Estrada's confirmation and explain that he "is truly one of the rising stars in the Hispanic community and a role model for our youth." A group of 19 Hispanic organizations, including LULAC and the Hispanic National Bar Association, recently wrote to the Senate urging "on behalf of an overwhelming majority of Hispanics in this country" that "both parties in the U.S. Senate . . . put partisan politics aside so that Hispanics are no longer denied representation in one of the most prestigious courts in the land." The current effort to filibuster Mr. Estrada's nomination is particularly unjustified given that those who have worked with Miguel -- including prominent Democrat lawyers whom you 2 EXT-18-2091-C-000529 007104-001250 know well -- strongly support his confirmation. For example, Ron Klain, who served as a highranking adviser to former Vice President Gore and former Chief Counsel to the Senate Judiciary Committee, wrote: "Miguel is a person of outstanding character, tremendous intellect, and with a deep commitment to the faithful application of precedent. . . . [T]he challenges that he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, and genuinely devoted to helping those in need." President Clinton's Solicitor General, Seth Waxman, wrote: "During the time Mr. Estrada and I worked together, he was a model of professionalism and competence. . . . In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views - or indeed that they reflected any consideration other than the long-term interests of the United States. I have great respect both for Mr. Estrada's intellect and for his integrity." A bipartisan group of 14 former colleagues in the Office of the Solicitor General at the U.S. Department of Justice wrote: "We hold varying ideological views and affiliations that range across the political spectrum, but we are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints." One former colleague, Richard Seamon, wrote that he is a pro-choice, lifelong Democrat with self-described "liberal views on most issues" who said he would "consider it a disgrace" if Mr. Estrada is not confirmed. Similarly, Leonard Joy, head of the Federal Defender Division of the Legal Aid Society of New York, wrote that "Miguel would make an excellent Circuit Court Judge. He is as fine a lawyer as I have met and, on top of all his intellectual abilities and judgment he would bring to bear, he would bring a desirable diversity to the Court. I heartily recommend him." Beyond the extensive personal testimony from those who worked side-by-side with him for many years, the performance reviews of Miguel for the years that he worked in the Office of Solicitor General gave him the highest possible rating of "outstanding" in every possible category. The reviews stated that Miguel: ? ? ? ? ? "states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness." "[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others." "[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner." "[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities." "[i]s constantly sought for advice and counsel. Inspires co-workers by example." 3 EXT-18-2091-C-000530 007104-001251 know well -- strongly support his confirmation. For example, Ron Klain, who served as a highranking adviser to former Vice President Gore and former Chief Counsel to the Senate Judiciary Committee, wrote: "Miguel is a person of outstanding character, tremendous intellect, and with a deep commitment to the faithful application of precedent. . . . [T]he challenges that he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, and genuinely devoted to helping those in need." President Clinton's Solicitor General, Seth Waxman, wrote: "During the time Mr. Estrada and I worked together, he was a model of professionalism and competence. . . . In no way did I ever discern that the recommendations Mr. Estrada made or the analyses he propounded were colored in any way by his personal views - or indeed that they reflected any consideration other than the long-term interests of the United States. I have great respect both for Mr. Estrada's intellect and for his integrity." A bipartisan group of 14 former colleagues in the Office of the Solicitor General at the U.S. Department of Justice wrote: "We hold varying ideological views and affiliations that range across the political spectrum, but we are unanimous in our conviction that Miguel would be a fair and honest judge who would decide cases in accordance with the applicable legal principles and precedents, not on the basis of personal preferences or political viewpoints." One former colleague, Richard Seamon, wrote that he is a pro-choice, lifelong Democrat with self-described "liberal views on most issues" who said he would "consider it a disgrace" if Mr. Estrada is not confirmed. Similarly, Leonard Joy, head of the Federal Defender Division of the Legal Aid Society of New York, wrote that "Miguel would make an excellent Circuit Court Judge. He is as fine a lawyer as I have met and, on top of all his intellectual abilities and judgment he would bring to bear, he would bring a desirable diversity to the Court. I heartily recommend him." Beyond the extensive personal testimony from those who worked side-by-side with him for many years, the performance reviews of Miguel for the years that he worked in the Office of Solicitor General gave him the highest possible rating of "outstanding" in every possible category. The reviews stated that Miguel: ? ? ? ? ? "states the operative facts and applicable law completely and persuasively, with record citations, and in conformance with court and office rules, and with concern for fairness, clarity, simplicity, and conciseness." "[i]s extremely knowledgeable of resource materials and uses them expertly; acting independently, goes directly to point of the matter and gives reliable, accurate, responsive information in communicating position to others." "[a]ll dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner." "[a]ll briefs, motions or memoranda reviewed consistently reflect no policies at variance with Departmental or Governmental policies, or fails to discuss and analyze relevant authorities." "[i]s constantly sought for advice and counsel. Inspires co-workers by example." 3 EXT-18-2091-C-000530 007104-001251 In the two years that Miguel Estrada and Paul Bender worked together, Mr. Bender signed those reviews. These employment reviews thus call into serious question some press reports containing a negative comment from Mr. Bender about Mr. Estrada's temperament (which is the only negative comment made by anyone who actually knows Mr. Estrada). Just as important, President Clinton's Solicitor General Seth Waxman expressly refuted Mr. Bender's statement. In sum, based on his experience, his intellect, his integrity, and his bipartisan support, Miguel Estrada should be confirmed promptly. II. The Senate's Role President Bush nominated Miguel Estrada nearly two years ago on May 9, 2001. As explained above, he is well-qualified and well-respected. By any traditional measure that the Senate has used to evaluate appeals court nominees, Miguel Estrada should have been confirmed long ago. Your letter and public statements indicate, however, that you are applying both a new standard and new tactics to this particular nominee. As to the standard, the Senate has a very important role in the process, but the Senate's traditional approach to appeals court nominees, and the approach envisioned by the Constitution's Framers, is far different from the standard that you now seek to apply. Senator Biden stated the traditional approach in 1997: "Any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life, and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court." Congressional Record, March 19, 1997. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Federalist No. 76. It was anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." No. 76. As to tactics, you have indicated that some Senate Democrats intend to filibuster to prevent a vote on this nominee. As you know, there has never been a successful filibuster of a court of appeals nominee. Only a few years ago, Senator Leahy and other Democrat Senators expressly agreed with then-Governor Bush that every judicial nominee was entitled to an up-ordown floor vote within a reasonable time. On October 3, 2000, for example, Senator Leahy stated: Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmations are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don't leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no - not vote maybe. When we hold a nominee up by not allowing them a 4 EXT-18-2091-C-000531 007104-001252 In the two years that Miguel Estrada and Paul Bender worked together, Mr. Bender signed those reviews. These employment reviews thus call into serious question some press reports containing a negative comment from Mr. Bender about Mr. Estrada's temperament (which is the only negative comment made by anyone who actually knows Mr. Estrada). Just as important, President Clinton's Solicitor General Seth Waxman expressly refuted Mr. Bender's statement. In sum, based on his experience, his intellect, his integrity, and his bipartisan support, Miguel Estrada should be confirmed promptly. II. The Senate's Role President Bush nominated Miguel Estrada nearly two years ago on May 9, 2001. As explained above, he is well-qualified and well-respected. By any traditional measure that the Senate has used to evaluate appeals court nominees, Miguel Estrada should have been confirmed long ago. Your letter and public statements indicate, however, that you are applying both a new standard and new tactics to this particular nominee. As to the standard, the Senate has a very important role in the process, but the Senate's traditional approach to appeals court nominees, and the approach envisioned by the Constitution's Framers, is far different from the standard that you now seek to apply. Senator Biden stated the traditional approach in 1997: "Any person who is nominated for the district or circuit court who, in fact, any Senator believes will be a person of their word and follow stare decisis, it does not matter to me what their ideology is, as long as they are in a position where they are in the general mainstream of American political life, and they have not committed crimes of moral turpitude, and have not, in fact, acted in a way that would shed a negative light on the court." Congressional Record, March 19, 1997. Alexander Hamilton explained that the purpose of Senate confirmation is to prevent appointment of "unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Federalist No. 76. It was anticipated that the Senate's approval would not often be refused unless there were "special and strong reasons for the refusal." No. 76. As to tactics, you have indicated that some Senate Democrats intend to filibuster to prevent a vote on this nominee. As you know, there has never been a successful filibuster of a court of appeals nominee. Only a few years ago, Senator Leahy and other Democrat Senators expressly agreed with then-Governor Bush that every judicial nominee was entitled to an up-ordown floor vote within a reasonable time. On October 3, 2000, for example, Senator Leahy stated: Governor Bush and I, while we disagree on some issues, have one very significant issue on which we agree. He gave a speech a while back and criticized what has happened in the Senate where confirmations are held up not because somebody votes down a nominee but because they cannot ever get a vote. Governor Bush said: You have the nominee. Hold the hearing. Then, within 60 days, vote them up or vote them down. Don't leave them in limbo. Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no - not vote maybe. When we hold a nominee up by not allowing them a 4 EXT-18-2091-C-000531 007104-001252 vote and not taking any action one way or the other, we are not only voting 'maybe,' but we are doing a terrible disservice to the man or woman to whom we do this. Senator Daschle similarly stated on October 5, 1999, that "[t]he Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. An up or down vote, that is all we seek for Berzon and Paez. And after years of waiting, they deserve at least that much." In his East Room speech of October 30, 2002, President Bush reiterated that every judicial nominee deserves a timely up-or-down floor vote in the Senate, no matter who is President or which party controls the Senate. Contrary to President Bush's attempts at permanent reform to bring order to the process, your current effort to employ a filibuster and block an up-or-down vote on the Estrada nomination may significantly exacerbate the cycle of bitterness and recrimination that President Bush has sought to resolve on a bipartisan basis. We fear that the damage caused by a filibuster could take many years to undo. To continue on this path would also be, in Senator Leahy's words, "a terrible disservice" to Mr. Estrada. We urge you to reconsider this extraordinary action, to end the filibuster of Mr. Estrada's nomination, and to allow the full Senate to vote up or down. III. Request for Confidential Solicitor General Memos You have suggested that Mr. Estrada's background, experience, and support are insufficient to assess his suitability for the D.C. Circuit. You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: "Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests - a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process." It bears mention that the interest asserted here is that of the United States, not the personal interest of Mr. Estrada. Indeed, Mr. Estrada himself testified that "I have not opposed the release of those records. . . . I am exceptionally proud of every piece of legal work that I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything that I have done for the government or for a private client." The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada's nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice's review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by 5 EXT-18-2091-C-000532 007104-001253 vote and not taking any action one way or the other, we are not only voting 'maybe,' but we are doing a terrible disservice to the man or woman to whom we do this. Senator Daschle similarly stated on October 5, 1999, that "[t]he Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down. An up or down vote, that is all we seek for Berzon and Paez. And after years of waiting, they deserve at least that much." In his East Room speech of October 30, 2002, President Bush reiterated that every judicial nominee deserves a timely up-or-down floor vote in the Senate, no matter who is President or which party controls the Senate. Contrary to President Bush's attempts at permanent reform to bring order to the process, your current effort to employ a filibuster and block an up-or-down vote on the Estrada nomination may significantly exacerbate the cycle of bitterness and recrimination that President Bush has sought to resolve on a bipartisan basis. We fear that the damage caused by a filibuster could take many years to undo. To continue on this path would also be, in Senator Leahy's words, "a terrible disservice" to Mr. Estrada. We urge you to reconsider this extraordinary action, to end the filibuster of Mr. Estrada's nomination, and to allow the full Senate to vote up or down. III. Request for Confidential Solicitor General Memos You have suggested that Mr. Estrada's background, experience, and support are insufficient to assess his suitability for the D.C. Circuit. You have renewed your request for Solicitor General memos authored by Mr. Estrada. But every living former Solicitor General signed a joint letter to the Senate opposing your request. The letter was signed by Democrats Archibald Cox, Walter Dellinger, Drew Days, and Seth Waxman. They stated: "Any attempt to intrude into the Office's highly privileged deliberations would come at the cost of the Solicitor General's ability to defend vigorously the United States' litigation interests - a cost that also would be borne by Congress itself. . . . Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process." It bears mention that the interest asserted here is that of the United States, not the personal interest of Mr. Estrada. Indeed, Mr. Estrada himself testified that "I have not opposed the release of those records. . . . I am exceptionally proud of every piece of legal work that I have done in my life. If it were up to me as a private citizen, I would be more than proud to have you look at everything that I have done for the government or for a private client." The history of Senate confirmations of nominees who had previously worked in the Department of Justice makes clear that an unfair double standard is being applied to Miguel Estrada's nomination. Since the beginning of the Carter Administration in 1977, the Senate has approved 67 United States Court of Appeals nominees who previously had worked in the Department of Justice. Of those 67 nominees, 38 had no prior judicial experience, like Miguel Estrada. The Department of Justice's review of those nomination records disclosed that in none of those cases did the Department of Justice produce internal deliberative materials created by 5 EXT-18-2091-C-000532 007104-001253 the Department. In fact, the Department's review disclosed that the Senate did not even request such materials for a single one of these 67 nominees. Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph. The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork's nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork's involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received. With respect to Judge Trott, the Committee requested documents unrelated to Judge Trott's service to the Department. So, too, in the three other examples you cite, the Committee requested specific documents primarily related to allegations of misconduct or malfeasance identified by the Committee. Of course, no such allegations have been made in the case of Mr. Estrada. In sum, the examples you have cited only highlight the lack of precedent for the current request. As the Justice Department has explained to you previously, the existence of a few isolated examples where the Executive Branch on occasion accommodated a Committee's targeted requests for very specific information primarily related to allegations of misconduct does not in any way alter the fundamental and long-standing principle that memos from the Office of Solicitor General - and deliberative Department of Justice memoranda more broadly - must remain protected in the confirmation context so as to maintain the integrity of the Executive Branch's decisionmaking process. That is a fundamental principle that has been followed irrespective of the party that controls the White House and the Senate. Your continued requests for these memoranda have provoked a foreseeable and inevitable conflict that, in turn, has been cited as a basis for obstructing a vote on Mr. Estrada's nomination. Respectfully, the conflict is unnecessary because your desire to assess the nominee can be readily accommodated in many ways other than intruding into and severely damaging the deliberative process of the Office of Solicitor General. For example, you can review Mr. Estrada's written briefs and oral arguments both as an attorney for the United States and in private practice. As you know, those documents are publicly available and easily accessible; that said, we would be pleased to facilitate your access to them. (Mr. Estrada's hearing transcript suggests that no Democrat Member of the Committee had read Mr. Estrada's many dozens of Solicitor General merits briefs, certiorari petitions, and opposition briefs or the transcripts of his 14 oral arguments when he represented the United States.) You also may consider the opinions of others who served in the Office at the same time (discussed above) and examine the nominee's written performance reviews (also discussed above). There is more than ample 6 EXT-18-2091-C-000533 007104-001254 the Department. In fact, the Department's review disclosed that the Senate did not even request such materials for a single one of these 67 nominees. Of this group of 67 nominees, seven were nominees who had worked as a Deputy Solicitor General or Assistant to the Solicitor General. These seven nominees, nominated by Presidents of each party and confirmed by Senates controlled by each party, included Samuel Alito, Danny Boggs, William Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, and Raymond Randolph. The five isolated historical examples you have cited do not support your current request. In each of those five cases, the Committee made a targeted request for specific information primarily related to allegations of misconduct or malfeasance identified by the Committee. Even in those isolated cases, the vast majority of deliberative memoranda written by those nominees were neither requested nor produced. With respect to Judge Bork's nomination, for example, the Committee received access to certain particular memoranda (many related to Judge Bork's involvement in Watergate-related issues). The vast majority of memoranda authored by Judge Bork were never received. With respect to Judge Trott, the Committee requested documents unrelated to Judge Trott's service to the Department. So, too, in the three other examples you cite, the Committee requested specific documents primarily related to allegations of misconduct or malfeasance identified by the Committee. Of course, no such allegations have been made in the case of Mr. Estrada. In sum, the examples you have cited only highlight the lack of precedent for the current request. As the Justice Department has explained to you previously, the existence of a few isolated examples where the Executive Branch on occasion accommodated a Committee's targeted requests for very specific information primarily related to allegations of misconduct does not in any way alter the fundamental and long-standing principle that memos from the Office of Solicitor General - and deliberative Department of Justice memoranda more broadly - must remain protected in the confirmation context so as to maintain the integrity of the Executive Branch's decisionmaking process. That is a fundamental principle that has been followed irrespective of the party that controls the White House and the Senate. Your continued requests for these memoranda have provoked a foreseeable and inevitable conflict that, in turn, has been cited as a basis for obstructing a vote on Mr. Estrada's nomination. Respectfully, the conflict is unnecessary because your desire to assess the nominee can be readily accommodated in many ways other than intruding into and severely damaging the deliberative process of the Office of Solicitor General. For example, you can review Mr. Estrada's written briefs and oral arguments both as an attorney for the United States and in private practice. As you know, those documents are publicly available and easily accessible; that said, we would be pleased to facilitate your access to them. (Mr. Estrada's hearing transcript suggests that no Democrat Member of the Committee had read Mr. Estrada's many dozens of Solicitor General merits briefs, certiorari petitions, and opposition briefs or the transcripts of his 14 oral arguments when he represented the United States.) You also may consider the opinions of others who served in the Office at the same time (discussed above) and examine the nominee's written performance reviews (also discussed above). There is more than ample 6 EXT-18-2091-C-000533 007104-001254 information for you to assess Mr. Estrada's qualifications and suitability for the D.C. Circuit based on the traditional standards the Senate has employed. It also is important to recognize that political appointees of President Clinton have read virtually all of the memoranda in question - namely, the Democrat Solicitors General Drew Days, Walter Dellinger, and Seth Waxman. None of those three highly respected Democrat lawyers has expressed any concern whatever about Mr. Estrada's nomination. Indeed, Mr. Waxman wrote a letter of strong support, and Mr. Days made public statements in support of Mr. Estrada. In sum, the historical record and past precedent convincingly demonstrate that this request creates and applies an unfair double standard to Miguel Estrada. IV. Request that Miguel Estrada Answer Additional Questions Your letter also suggests that Miguel Estrada should answer certain questions that he allegedly did not answer in his hearing. To begin with, we do not know what your specific questions are. In addition, this request frankly comes as a surprise given that (i) Senator Schumer chaired the hearing on Mr. Estrada, (ii) the hearing lasted an entire day, (iii) Senators at the all-day hearing asked numerous far-reaching questions that Mr. Estrada answered forthrightly and appropriately, and (iv) only two of the 10 Democrat Senators then on the Committee even submitted any follow-up written questions, and they submitted only a few questions (in marked contrast to other nominees who received voluminous follow-up questions). It also bears mention that Mr. Estrada has personally met with a large number of Democrat Senators, including Senators Landrieu, Lincoln, Bill Nelson, Ben Nelson, Leahy, Feinstein, Kohl, and Breaux; is scheduled to meet with Senator Carper; and would be pleased to meet with additional Senators. The only specific question your letter identifies refers to Mr. Estrada's judicial role models, and you claim that he refused to answer a question on this topic. In fact, in Mr. Estrada's written responses to Senator Durbin's question on this precise subject, Mr. Estrada cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires, and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question." In our judgment, moreover, Mr. Estrada answered the Committee's questions in a manner that was both entirely appropriate and entirely consistent with the approach that judicial nominees of Presidents of both parties have taken for many years. Your suggestions to the contrary do not square with the hearing record or traditional practice. A. Judicial Ethics and Traditional Practice In assessing your request that Miguel Estrada did not answer appropriate questions, we begin with rules of judicial ethics that govern prospective nominees. Canon 5A(3)(d) provides that prospective judges "shall not . . . make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" 7 EXT-18-2091-C-000534 007104-001255 information for you to assess Mr. Estrada's qualifications and suitability for the D.C. Circuit based on the traditional standards the Senate has employed. It also is important to recognize that political appointees of President Clinton have read virtually all of the memoranda in question - namely, the Democrat Solicitors General Drew Days, Walter Dellinger, and Seth Waxman. None of those three highly respected Democrat lawyers has expressed any concern whatever about Mr. Estrada's nomination. Indeed, Mr. Waxman wrote a letter of strong support, and Mr. Days made public statements in support of Mr. Estrada. In sum, the historical record and past precedent convincingly demonstrate that this request creates and applies an unfair double standard to Miguel Estrada. IV. Request that Miguel Estrada Answer Additional Questions Your letter also suggests that Miguel Estrada should answer certain questions that he allegedly did not answer in his hearing. To begin with, we do not know what your specific questions are. In addition, this request frankly comes as a surprise given that (i) Senator Schumer chaired the hearing on Mr. Estrada, (ii) the hearing lasted an entire day, (iii) Senators at the all-day hearing asked numerous far-reaching questions that Mr. Estrada answered forthrightly and appropriately, and (iv) only two of the 10 Democrat Senators then on the Committee even submitted any follow-up written questions, and they submitted only a few questions (in marked contrast to other nominees who received voluminous follow-up questions). It also bears mention that Mr. Estrada has personally met with a large number of Democrat Senators, including Senators Landrieu, Lincoln, Bill Nelson, Ben Nelson, Leahy, Feinstein, Kohl, and Breaux; is scheduled to meet with Senator Carper; and would be pleased to meet with additional Senators. The only specific question your letter identifies refers to Mr. Estrada's judicial role models, and you claim that he refused to answer a question on this topic. In fact, in Mr. Estrada's written responses to Senator Durbin's question on this precise subject, Mr. Estrada cited Justice Anthony Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as judges he admires, and he further pointed out, of course, that he would seek to resolve cases as he analyzed them "without any preconception about how some other judge might approach the question." In our judgment, moreover, Mr. Estrada answered the Committee's questions in a manner that was both entirely appropriate and entirely consistent with the approach that judicial nominees of Presidents of both parties have taken for many years. Your suggestions to the contrary do not square with the hearing record or traditional practice. A. Judicial Ethics and Traditional Practice In assessing your request that Miguel Estrada did not answer appropriate questions, we begin with rules of judicial ethics that govern prospective nominees. Canon 5A(3)(d) provides that prospective judges "shall not . . . make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court" 7 EXT-18-2091-C-000534 007104-001255 (emphasis added). Justice Thurgood Marshall made the point well in 1967 when asked about the Fifth Amendment: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court, when a Fifth Amendment case comes up, I will have to disqualify myself." Lloyd Cutler, who served as Counsel to President Carter and President Clinton, has stated that "candidates should decline to reply when efforts are made to find out how they would decide a particular case." In 1968, in the context of the Justice Abe Fortas' nomination to be Chief Justice, the Senate Judiciary Committee similarly stated: "Although recognizing the constitutional dilemma which appears to exist when the Senate is asked to advise and consent on a judicial nominee without examining him on legal questions, the Committee is of the view that Justice Fortas wisely and correctly declined to answer questions in this area. To require a Justice to state his views on legal questions or to discuss his past decisions before the Committee would threaten the independence of the judiciary and the integrity of the judicial system itself. It would also impinge on the constitutional doctrine of separation of powers among the three branches of Government as required by the Constitution." S. Exec. Rep. No. 8, 90th Cong. 2d Sess. 5 (1968). Even in the context of a Supreme Court confirmation hearing, Senator Kennedy defended Sandra Day O'Connor's refusal to discuss her views on abortion: "It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any singleissue interest group." Nomination of Sandra O'Connor: Hearings Before the Senate Comm. on the Judiciary on the Nomination of Judge Sandra Day O'Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, 97th Cong. 6 (1981) (statement of Sen. Kennedy). Justice Ruth Bader Ginsburg likewise declined to answer certain questions: "Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously." Similarly, Justice John Paul Stevens stated in his hearing: "I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say that there have been many times in my experience in the last five years where I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit." Justice Ginsburg described the traditional practice in a case decided last year: "In the context of the federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'on interest' to the President and the Senate . . . . But in accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate, and presumably to the President as well." Republican Party of Minnesota v. White, 122 S. Ct. 2528, 2552 n.1 (2002) (Ginsburg, J., dissenting) (emphasis added). Justice Ginsburg added that this adherence to this "longstanding norm" was "crucial to the health of the Federal Judiciary." Id. In his majority opinion, Justice Scalia did not take issue 8 EXT-18-2091-C-000535 007104-001256 (emphasis added). Justice Thurgood Marshall made the point well in 1967 when asked about the Fifth Amendment: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court, when a Fifth Amendment case comes up, I will have to disqualify myself." Lloyd Cutler, who served as Counsel to President Carter and President Clinton, has stated that "candidates should decline to reply when efforts are made to find out how they would decide a particular case." In 1968, in the context of the Justice Abe Fortas' nomination to be Chief Justice, the Senate Judiciary Committee similarly stated: "Although recognizing the constitutional dilemma which appears to exist when the Senate is asked to advise and consent on a judicial nominee without examining him on legal questions, the Committee is of the view that Justice Fortas wisely and correctly declined to answer questions in this area. To require a Justice to state his views on legal questions or to discuss his past decisions before the Committee would threaten the independence of the judiciary and the integrity of the judicial system itself. It would also impinge on the constitutional doctrine of separation of powers among the three branches of Government as required by the Constitution." S. Exec. Rep. No. 8, 90th Cong. 2d Sess. 5 (1968). Even in the context of a Supreme Court confirmation hearing, Senator Kennedy defended Sandra Day O'Connor's refusal to discuss her views on abortion: "It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any singleissue interest group." Nomination of Sandra O'Connor: Hearings Before the Senate Comm. on the Judiciary on the Nomination of Judge Sandra Day O'Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States, 97th Cong. 6 (1981) (statement of Sen. Kennedy). Justice Ruth Bader Ginsburg likewise declined to answer certain questions: "Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously." Similarly, Justice John Paul Stevens stated in his hearing: "I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say that there have been many times in my experience in the last five years where I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit." Justice Ginsburg described the traditional practice in a case decided last year: "In the context of the federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'on interest' to the President and the Senate . . . . But in accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate, and presumably to the President as well." Republican Party of Minnesota v. White, 122 S. Ct. 2528, 2552 n.1 (2002) (Ginsburg, J., dissenting) (emphasis added). Justice Ginsburg added that this adherence to this "longstanding norm" was "crucial to the health of the Federal Judiciary." Id. In his majority opinion, Justice Scalia did not take issue 8 EXT-18-2091-C-000535 007104-001256 with that description and added: "Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues." Id. at 2539 n.11 (emphasis in original). In some recent hearings, including Mr. Estrada's, Senator Schumer has asked that nominees identify particular Supreme Court cases of the last few decades with which they disagree. But the problems with such a question and answer were well stated by Justice Stephen Breyer. As Justice Breyer put it, "Until [an issue] comes up, I don't really think it through with the depth that it would require. . . . So often, when you decide a matter for real, in a court or elsewhere, it turns out to be very different after you've become informed and think it through for real than what you would have said at a cocktail party answering a question." 34 U.C. Davis L. Rev. 425, 462. Senator Schumer also has asked nominees how they would have ruled in particular Supreme Court cases. Again, a double standard is being applied. The nominees of President Clinton did not answer such questions. For example, Richard Tallman, a nominee with no prior judicial service who would now serves on the Ninth Circuit, not only would not answer how he would have ruled as a judge in Roe v. Wade - but even how he would have ruled in Plessy v. Ferguson, the infamous case that upheld the discredited and shameful "separate but equal" doctrine. So, too, in the hearing on President Clinton's nomination of Judges Barry and Fisher, Senator Smith asked whether the nominees would have voted for a constitutional right to abortion before Roe v. Wade. Chairman Hatch interrupted Senator Smith to say "that is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has." B. Answers by Miguel Estrada Miguel Estrada answered the Committee's questions forthrightly and appropriately. Indeed, Miguel Estrada was more expansive than many judicial nominees traditionally have been in Senate hearings, and he was asked a far broader range of questions than many previous appeals court nominees were asked. We will catalogue here a select sample of his answers. Unenumerated rights, privacy, and abortion When asked by Senator Edwards about the Constitution's protection for rights not enumerated in the Constitution, Mr. Estrada replied: "I recognize that the Supreme Court has said [on] numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are a number of unenumerated rights in the Constitution. In the main, the court has recognized them as being inherent in the right of substantive due process and the liberty clause of the Fourteenth Amendment." When asked by Senator Feinstein whether the Constitution encompasses a right to privacy and abortion, Mr. Estrada responded, "The Supreme Court has so held, and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of 9 EXT-18-2091-C-000536 007104-001257 with that description and added: "Nor do we assert that candidates for judicial office should be compelled to announce their views on disputed legal issues." Id. at 2539 n.11 (emphasis in original). In some recent hearings, including Mr. Estrada's, Senator Schumer has asked that nominees identify particular Supreme Court cases of the last few decades with which they disagree. But the problems with such a question and answer were well stated by Justice Stephen Breyer. As Justice Breyer put it, "Until [an issue] comes up, I don't really think it through with the depth that it would require. . . . So often, when you decide a matter for real, in a court or elsewhere, it turns out to be very different after you've become informed and think it through for real than what you would have said at a cocktail party answering a question." 34 U.C. Davis L. Rev. 425, 462. Senator Schumer also has asked nominees how they would have ruled in particular Supreme Court cases. Again, a double standard is being applied. The nominees of President Clinton did not answer such questions. For example, Richard Tallman, a nominee with no prior judicial service who would now serves on the Ninth Circuit, not only would not answer how he would have ruled as a judge in Roe v. Wade - but even how he would have ruled in Plessy v. Ferguson, the infamous case that upheld the discredited and shameful "separate but equal" doctrine. So, too, in the hearing on President Clinton's nomination of Judges Barry and Fisher, Senator Smith asked whether the nominees would have voted for a constitutional right to abortion before Roe v. Wade. Chairman Hatch interrupted Senator Smith to say "that is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has." B. Answers by Miguel Estrada Miguel Estrada answered the Committee's questions forthrightly and appropriately. Indeed, Miguel Estrada was more expansive than many judicial nominees traditionally have been in Senate hearings, and he was asked a far broader range of questions than many previous appeals court nominees were asked. We will catalogue here a select sample of his answers. Unenumerated rights, privacy, and abortion When asked by Senator Edwards about the Constitution's protection for rights not enumerated in the Constitution, Mr. Estrada replied: "I recognize that the Supreme Court has said [on] numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are a number of unenumerated rights in the Constitution. In the main, the court has recognized them as being inherent in the right of substantive due process and the liberty clause of the Fourteenth Amendment." When asked by Senator Feinstein whether the Constitution encompasses a right to privacy and abortion, Mr. Estrada responded, "The Supreme Court has so held, and I have no view of any nature whatsoever, whether it be legal, philosophical, moral, or any other type of 9 EXT-18-2091-C-000536 007104-001257 view that would keep me from applying that case law faithfully." When asked whether Roe v. Wade was "settled law," Mr. Estrada replied, "I believe so." General Approach to Judging When asked by Senator Edwards about judicial review, Mr. Estrada explained: "Courts take the laws that have been passed by you and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution, and therefore they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments - why it is that the legislature went beyond [its] role as a legislat[ure] and invaded the Constitution." Mr. Estrada stated to Senator Edwards that there are 200 years of Supreme Court precedent and that it is not the case that "the appropriate conduct for courts is to be guided solely by the bare text of the Constitution because that is not the legal system that we have." When asked by Senator Edwards whether he was a strict constructionist, Mr. Estrada replied that he was "a fair constructionist" - meaning that "I don't think that it should be the goal of courts to be strict or lax. The goal of courts is to get it right. . . . It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same type of interpretative analysis. . . . [T]he Constitution says, for example, that you must be 35 years old to be our chief executive. . . . There are areas of the Constitution that are more open-ended. And you adverted to one, like the substantive component of the due process clauses, where there are other methods of interpretation that are not quite so obvious that the court has brought to bear to try to bring forth what the appropriate answer should be." When Senator Kohl asked him about environmental statutes, for example, Mr. Estrada explained that those statutes come to court "with a strong presumption of constitutionality." In response to Senator Leahy, Mr. Estrada described the most important attributes of a judge: "The most important quality for a judge, in my view Senator Leahy, is to have an appropriate process for decisionmaking. That entails having an open mind. It entails listening to the parties, reading their briefs, going back beyond those briefs and doing all of the legwork needed to ascertain who is right in his or her claims as to what the law says and what the facts [are]. In a court of appeals court, where judges sit in panels of three, it is important to engage in deliberation and give ear to the views of colleagues who may have come to different conclusions. And in sum, to be committed to judging as a process that is intended to give us the right answer, not to a result. And I can give you my level best solemn assurance that I firmly think I do have those qualities or else I would not have accepted the nomination." In response to Senator Durbin, Miguel Estrada stated that "the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains." Mr. Estrada indicated to Senator Durbin that he admired the judges for whom he clerked, Justice Kennedy and Judge Kearse, as well as Justice Lewis Powell. 10 EXT-18-2091-C-000537 007104-001258 view that would keep me from applying that case law faithfully." When asked whether Roe v. Wade was "settled law," Mr. Estrada replied, "I believe so." General Approach to Judging When asked by Senator Edwards about judicial review, Mr. Estrada explained: "Courts take the laws that have been passed by you and give you the benefit of understanding that you take the same oath that they do to uphold the Constitution, and therefore they take the laws with the presumption that they are constitutional. It is the affirmative burden of the plaintiff to show that you have gone beyond your oath. If they come into court, then it is appropriate for courts to undertake to listen to the legal arguments - why it is that the legislature went beyond [its] role as a legislat[ure] and invaded the Constitution." Mr. Estrada stated to Senator Edwards that there are 200 years of Supreme Court precedent and that it is not the case that "the appropriate conduct for courts is to be guided solely by the bare text of the Constitution because that is not the legal system that we have." When asked by Senator Edwards whether he was a strict constructionist, Mr. Estrada replied that he was "a fair constructionist" - meaning that "I don't think that it should be the goal of courts to be strict or lax. The goal of courts is to get it right. . . . It is not necessarily the case in my mind that, for example, all parts of the Constitution are suitable for the same type of interpretative analysis. . . . [T]he Constitution says, for example, that you must be 35 years old to be our chief executive. . . . There are areas of the Constitution that are more open-ended. And you adverted to one, like the substantive component of the due process clauses, where there are other methods of interpretation that are not quite so obvious that the court has brought to bear to try to bring forth what the appropriate answer should be." When Senator Kohl asked him about environmental statutes, for example, Mr. Estrada explained that those statutes come to court "with a strong presumption of constitutionality." In response to Senator Leahy, Mr. Estrada described the most important attributes of a judge: "The most important quality for a judge, in my view Senator Leahy, is to have an appropriate process for decisionmaking. That entails having an open mind. It entails listening to the parties, reading their briefs, going back beyond those briefs and doing all of the legwork needed to ascertain who is right in his or her claims as to what the law says and what the facts [are]. In a court of appeals court, where judges sit in panels of three, it is important to engage in deliberation and give ear to the views of colleagues who may have come to different conclusions. And in sum, to be committed to judging as a process that is intended to give us the right answer, not to a result. And I can give you my level best solemn assurance that I firmly think I do have those qualities or else I would not have accepted the nomination." In response to Senator Durbin, Miguel Estrada stated that "the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains." Mr. Estrada indicated to Senator Durbin that he admired the judges for whom he clerked, Justice Kennedy and Judge Kearse, as well as Justice Lewis Powell. 10 EXT-18-2091-C-000537 007104-001258 Mr. Estrada stated to Senator Durbin that "I can absolutely assure the Committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced by subsequent decisions of the Supreme Court itself." In response to Senator Grassley, Mr. Estrada stated: "When facing a problems for which there is a not a decisive precedent from a higher court, my cardinal rule would be to seize aid from anyplace where I could get it. Depending on the nature of the problem, that would include related case law in other areas that higher courts had dealt with that had had some insights to teach with respect to the problem at hand. It could include the history of the enactment, including in the case of a statute legislative history. It could include the custom and practice under any predecessor statute or document. It could include the views of academics to the extent that they purport to analyze what the law is instead of - instead of prescribing what it should be. And in sum, as Chief Justice Marshall once said, to attempt not to overlook anything from which aid might be derived." In response to Senator Sessions, Estrada stated: "I am very firmly of the view that although we all have views on a number of subjects from A to Z, the first duty of a judge is to self-consciously put that aside and look at each case by starting withholding judgment with an open mind and listen to the parties. So I think that the job of a judge is to put all of that aside, and to the best of his human capacity to give a judgment based solely on the arguments and the law." In response to Senator Sessions, Mr. Estrada stated that "I will follow binding case law in every case. . . . I may have a personal, moral, philosophical view on the subject matter. But I undertake to you that I would put all that aside and decide cases in accordance with binding case law and even in accordance with the case law that is not binding but seems constructive on the area, without any influence whatsoever from any personal view I may have about the subject matter." Miranda/Stare Decisis Mr. Estrada stated that United States v. Dickerson - a case raising the question whether Miranda should be overruled - reflected a "reasonable application of the doctrine of stare decisis. In my view, it is rarely appropriate for the Supreme Court to overturn one of its own precedents." Affirmative Action With respect to affirmative action, Mr. Estrada responded to Senator Kennedy that "any policy views I might have as a private citizen on the subject of affirmative action would not enter into how I would approach any case that comes before me as a judge. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), if a government program creates a racial classification, it will be subject to strict scrutiny. Whether the program survives that sort of scrutiny will often involve a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the fit 11 EXT-18-2091-C-000538 007104-001259 Mr. Estrada stated to Senator Durbin that "I can absolutely assure the Committee that I will follow binding Supreme Court precedent until and unless such precedent has been displaced by subsequent decisions of the Supreme Court itself." In response to Senator Grassley, Mr. Estrada stated: "When facing a problems for which there is a not a decisive precedent from a higher court, my cardinal rule would be to seize aid from anyplace where I could get it. Depending on the nature of the problem, that would include related case law in other areas that higher courts had dealt with that had had some insights to teach with respect to the problem at hand. It could include the history of the enactment, including in the case of a statute legislative history. It could include the custom and practice under any predecessor statute or document. It could include the views of academics to the extent that they purport to analyze what the law is instead of - instead of prescribing what it should be. And in sum, as Chief Justice Marshall once said, to attempt not to overlook anything from which aid might be derived." In response to Senator Sessions, Estrada stated: "I am very firmly of the view that although we all have views on a number of subjects from A to Z, the first duty of a judge is to self-consciously put that aside and look at each case by starting withholding judgment with an open mind and listen to the parties. So I think that the job of a judge is to put all of that aside, and to the best of his human capacity to give a judgment based solely on the arguments and the law." In response to Senator Sessions, Mr. Estrada stated that "I will follow binding case law in every case. . . . I may have a personal, moral, philosophical view on the subject matter. But I undertake to you that I would put all that aside and decide cases in accordance with binding case law and even in accordance with the case law that is not binding but seems constructive on the area, without any influence whatsoever from any personal view I may have about the subject matter." Miranda/Stare Decisis Mr. Estrada stated that United States v. Dickerson - a case raising the question whether Miranda should be overruled - reflected a "reasonable application of the doctrine of stare decisis. In my view, it is rarely appropriate for the Supreme Court to overturn one of its own precedents." Affirmative Action With respect to affirmative action, Mr. Estrada responded to Senator Kennedy that "any policy views I might have as a private citizen on the subject of affirmative action would not enter into how I would approach any case that comes before me as a judge. Under controlling Supreme Court authority, particularly Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), if a government program creates a racial classification, it will be subject to strict scrutiny. Whether the program survives that sort of scrutiny will often involve a highly contextual and fact-specific inquiry into the nature of the justifications asserted by the government and the fit 11 EXT-18-2091-C-000538 007104-001259 between those justifications and the classification at issue. Adarand and similar cases provide the framework that I would be required to apply, and would apply, in considering these issues as a judge." Asked by Senator Leahy about the strict scrutiny test, Mr. Estrada replied, "the Supreme Court in the Adarand case stated, as a general rule, that the consideration of race is subject to strict scrutiny. That means that though it may be used in some cases, it has to be justified by a compelling state interest. And with respect to the particular context, there must be a fairly factbound individual assessment of the fit between the interest that is being asserted and the category being used. That is just another way of saying that it is a very fact-intensive analysis in the context of a specific program and in the context of the justifications that are being offered in support of the program." Congressional Authority With respect to the outer limits of Congress' power to confer authority on other governmental bodies, Miguel responded to Senator Kennedy that the Supreme Court has said that "particular factual context is significant in analyzing the appropriateness of a particular delegation. . . . Of course, the fact that the Supreme Court only rarely has struck down statutes on this ground suggests that the Court has been quite deferential to congressional judgments about the types of delegations that reasonably might be needed to carry on the business of government." When Senator Kohl asked Mr. Estrada about the 1995 Lopez case concerning the scope of Congress' power to regulate, Mr. Estrada pointed out that he had argued in a companion case "for a very expansive view of the power to Congress to pass statutes under the Commerce Clause and have them be upheld by the court. . . . Lopez has given us guidance on when it is appropriate for the court to exercise the commerce power. It is binding law and I would follow it." Ethnicity With respect to the fact that the President had noted Miguel's ethnicity, Miguel responded to Senator Kennedy: "The President is the leader of a large and diverse country, and it is accordingly appropriate for him, in exercising his constitutional nomination and appointment powers, to select qualified individuals who reflect the breadth and diversity of our Nation." With respect to the Democrat Congressional Hispanic Caucus's criticism of him, Miguel responded to Senator Kennedy that "I strongly disagree, however, with the Congressional Hispanic Caucus' view that I lack an understanding of the role and importance of courts in protecting the legal rights of minorities, of the values and mores of Latino culture, or the significance of role models for minority communities." 12 EXT-18-2091-C-000539 007104-001260 between those justifications and the classification at issue. Adarand and similar cases provide the framework that I would be required to apply, and would apply, in considering these issues as a judge." Asked by Senator Leahy about the strict scrutiny test, Mr. Estrada replied, "the Supreme Court in the Adarand case stated, as a general rule, that the consideration of race is subject to strict scrutiny. That means that though it may be used in some cases, it has to be justified by a compelling state interest. And with respect to the particular context, there must be a fairly factbound individual assessment of the fit between the interest that is being asserted and the category being used. That is just another way of saying that it is a very fact-intensive analysis in the context of a specific program and in the context of the justifications that are being offered in support of the program." Congressional Authority With respect to the outer limits of Congress' power to confer authority on other governmental bodies, Miguel responded to Senator Kennedy that the Supreme Court has said that "particular factual context is significant in analyzing the appropriateness of a particular delegation. . . . Of course, the fact that the Supreme Court only rarely has struck down statutes on this ground suggests that the Court has been quite deferential to congressional judgments about the types of delegations that reasonably might be needed to carry on the business of government." When Senator Kohl asked Mr. Estrada about the 1995 Lopez case concerning the scope of Congress' power to regulate, Mr. Estrada pointed out that he had argued in a companion case "for a very expansive view of the power to Congress to pass statutes under the Commerce Clause and have them be upheld by the court. . . . Lopez has given us guidance on when it is appropriate for the court to exercise the commerce power. It is binding law and I would follow it." Ethnicity With respect to the fact that the President had noted Miguel's ethnicity, Miguel responded to Senator Kennedy: "The President is the leader of a large and diverse country, and it is accordingly appropriate for him, in exercising his constitutional nomination and appointment powers, to select qualified individuals who reflect the breadth and diversity of our Nation." With respect to the Democrat Congressional Hispanic Caucus's criticism of him, Miguel responded to Senator Kennedy that "I strongly disagree, however, with the Congressional Hispanic Caucus' view that I lack an understanding of the role and importance of courts in protecting the legal rights of minorities, of the values and mores of Latino culture, or the significance of role models for minority communities." 12 EXT-18-2091-C-000539 007104-001260 Racial Discrimination With respect to race discrimination, Mr. Estrada stated in response to Senator Kennedy: "I take a backseat to no one in my abhorrence of race discrimination in law enforcement or anything else." Senator Feingold asked Mr. Estrada whether he believed that racial profiling and racially motivated law enforcement misconduct are problems in this country today. Mr. Estrada replied, "I am - I will once again emphasize I'm unalterably opposed to any sort of race discrimination in law enforcement, Senator, whether it's called racial profiling or anything else. . . . I know full well that we have real problems with discrimination in our day and age." Senator Leahy asked Mr. Estrada about whether statistical evidence of discriminatory impact is relevant in establishing discrimination. Mr. Estrada replied: "I am not a specialist in this area of the law, Senator Leahy, but I am aware that there is a line of cases, beginning with the Supreme Court's decision in Griggs, that suggests that in appropriate cases that [such evidence] may be appropriate. . . . I do understand that there is a major area of law that deals with how you prove and try disparate-impact cases." Congressional Authority to Regulate Firearms Senator Feinstein asked whether Congress may legislate in the area of dangerous firearms, and Mr. Estrada responded that the Supreme Court had ruled that "if the government were to prove that the firearm had at any time in its lifetime been in interstate commerce even if that had nothing to do with the crime at issue, that that would be an adequate basis for the exercise of Congress' power." Right to Counsel Senator Edwards asked about Gideon v. Wainwright, the Supreme Court case guaranteeing the right to counsel for poor defendants who could not afford counsel. Although Senator Edwards appeared to question the reasoning in that landmark case, Mr. Estrada responded that "I frankly have always taken it as a given that that's - the ruling in the case." C. Answers by President Clinton's Nominees Your criticism of Miguel Estrada's testimony creates a double standard. You did not require nominees of President Clinton to answer questions of this sort (keeping in mind that you have not identified what your additional questions to Mr. Estrada are). President Clinton's appeals court nominees routinely testified without discussing their views of specific issues or cases. A few select examples, including of several nominees who had no prior judicial experience, illustrate the point. (Please note that these are isolated examples; there are many more we can provide if necessary.) Merrick Garland (no prior judicial experience). In the nomination of Merrick Garland to the D.C. Circuit, Senator Specter asked him: "Do you favor, as a personal matter, capital 13 EXT-18-2091-C-000540 007104-001261 Racial Discrimination With respect to race discrimination, Mr. Estrada stated in response to Senator Kennedy: "I take a backseat to no one in my abhorrence of race discrimination in law enforcement or anything else." Senator Feingold asked Mr. Estrada whether he believed that racial profiling and racially motivated law enforcement misconduct are problems in this country today. Mr. Estrada replied, "I am - I will once again emphasize I'm unalterably opposed to any sort of race discrimination in law enforcement, Senator, whether it's called racial profiling or anything else. . . . I know full well that we have real problems with discrimination in our day and age." Senator Leahy asked Mr. Estrada about whether statistical evidence of discriminatory impact is relevant in establishing discrimination. Mr. Estrada replied: "I am not a specialist in this area of the law, Senator Leahy, but I am aware that there is a line of cases, beginning with the Supreme Court's decision in Griggs, that suggests that in appropriate cases that [such evidence] may be appropriate. . . . I do understand that there is a major area of law that deals with how you prove and try disparate-impact cases." Congressional Authority to Regulate Firearms Senator Feinstein asked whether Congress may legislate in the area of dangerous firearms, and Mr. Estrada responded that the Supreme Court had ruled that "if the government were to prove that the firearm had at any time in its lifetime been in interstate commerce even if that had nothing to do with the crime at issue, that that would be an adequate basis for the exercise of Congress' power." Right to Counsel Senator Edwards asked about Gideon v. Wainwright, the Supreme Court case guaranteeing the right to counsel for poor defendants who could not afford counsel. Although Senator Edwards appeared to question the reasoning in that landmark case, Mr. Estrada responded that "I frankly have always taken it as a given that that's - the ruling in the case." C. Answers by President Clinton's Nominees Your criticism of Miguel Estrada's testimony creates a double standard. You did not require nominees of President Clinton to answer questions of this sort (keeping in mind that you have not identified what your additional questions to Mr. Estrada are). President Clinton's appeals court nominees routinely testified without discussing their views of specific issues or cases. A few select examples, including of several nominees who had no prior judicial experience, illustrate the point. (Please note that these are isolated examples; there are many more we can provide if necessary.) Merrick Garland (no prior judicial experience). In the nomination of Merrick Garland to the D.C. Circuit, Senator Specter asked him: "Do you favor, as a personal matter, capital 13 EXT-18-2091-C-000540 007104-001261 punishment?" Judge Garland replied only that he would follow Supreme Court precedent: "This is really a matter of settled law now. The Court has held that capital punishment is constitutional and lower courts are to follow that rule." Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded: "Well, that, too, the Supreme Court in Morrison v. Olson upheld as constitutional, and, of course, I would follow that ruling." Judge Garland did not provide his personal view of either subject. Judith Rogers. In the hearing on Judge Judith Rogers' nomination to the D.C. Circuit, Judge Rogers was asked by Senator Cohen about the debate over an evolving Constitution. Judge Rogers responded: "My obligation as an appellate judge is to apply precedent. Some of the debates which I have heard and to which I think you may be alluding are interesting, but as an appellate judge, my obligation is to apply precedent. And so the interpretations of the Constitution by the U.S. Supreme Court would be binding on me." She then was asked how she would rule in the absence of precedent and responded: "When I was taking my master's in judicial process at the University of Virginia Law School, one of the points emphasized was the growth of our common law system based on the English common law judge system. And my opinions, I think if you look at them, reflect that where I am presented with a question of first impression, that I look to the language of whatever provision we are addressing, that I look to whatever debates are available, that I look to the interpretations by other Federal courts, that I look to the interpretations of other State courts, and it may be necessary, as well, to look at the interpretations suggested by commentators. And within that framework, which I consider to be a discipline, that I would reach a view in a case of first impression." Finally, Judge Rogers was asked her view of the three-strikes law and stated: "As an appellate judge, my obligation is to enforce the laws that Congress passes or, where I am now, that the District of Columbia Council passes." Judge Rogers did not provide her personal view of these subjects. Marsha Berzon (no prior judicial experience). Senator Smith asked her views on Roe v. Wade and whether "an unborn child is a human being." Judge Berzon stated: "[M]y role as a judge is not to further anything that I personally believe or don't believe, and I think that is the strength of our system and the strength of our appellate system. The Supreme Court has been quite definitive quite recently about the applicable standard, and I absolutely pledge to you that I will follow that standard as it exists now, and if it is changed, I will follow that standard. And my personal views in this area, as in any other, will have absolutely no effect." When Senator Smith probed about their personal views on abortion and Roe v. Wade, Chairman Hatch interrupted: "I don't know how they can say much more than that at this point in this meeting." Richard Tallman (no prior judicial experience). In response to written questions, Judge Tallman explained that "[j]udicial nominees are limited by judicial ethical considerations from answering any question in a manner that would call for an 'advisory opinion' as the courts have defined it or that in effect ask a nominee to suggest how he or she would rule on an issue that could foreseeably require his or her attention in a future case or controversy after confirmation." He was asked how he would have ruled in Plessy v. Ferguson. He stated: "It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and supporting legal authorities that were applicable at that time." He gave the same response when asked how he would have ruled on Roe v. Wade. When asked his personal view on abortion, he wrote: "I hold 14 EXT-18-2091-C-000541 007104-001262 punishment?" Judge Garland replied only that he would follow Supreme Court precedent: "This is really a matter of settled law now. The Court has held that capital punishment is constitutional and lower courts are to follow that rule." Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded: "Well, that, too, the Supreme Court in Morrison v. Olson upheld as constitutional, and, of course, I would follow that ruling." Judge Garland did not provide his personal view of either subject. Judith Rogers. In the hearing on Judge Judith Rogers' nomination to the D.C. Circuit, Judge Rogers was asked by Senator Cohen about the debate over an evolving Constitution. Judge Rogers responded: "My obligation as an appellate judge is to apply precedent. Some of the debates which I have heard and to which I think you may be alluding are interesting, but as an appellate judge, my obligation is to apply precedent. And so the interpretations of the Constitution by the U.S. Supreme Court would be binding on me." She then was asked how she would rule in the absence of precedent and responded: "When I was taking my master's in judicial process at the University of Virginia Law School, one of the points emphasized was the growth of our common law system based on the English common law judge system. And my opinions, I think if you look at them, reflect that where I am presented with a question of first impression, that I look to the language of whatever provision we are addressing, that I look to whatever debates are available, that I look to the interpretations by other Federal courts, that I look to the interpretations of other State courts, and it may be necessary, as well, to look at the interpretations suggested by commentators. And within that framework, which I consider to be a discipline, that I would reach a view in a case of first impression." Finally, Judge Rogers was asked her view of the three-strikes law and stated: "As an appellate judge, my obligation is to enforce the laws that Congress passes or, where I am now, that the District of Columbia Council passes." Judge Rogers did not provide her personal view of these subjects. Marsha Berzon (no prior judicial experience). Senator Smith asked her views on Roe v. Wade and whether "an unborn child is a human being." Judge Berzon stated: "[M]y role as a judge is not to further anything that I personally believe or don't believe, and I think that is the strength of our system and the strength of our appellate system. The Supreme Court has been quite definitive quite recently about the applicable standard, and I absolutely pledge to you that I will follow that standard as it exists now, and if it is changed, I will follow that standard. And my personal views in this area, as in any other, will have absolutely no effect." When Senator Smith probed about their personal views on abortion and Roe v. Wade, Chairman Hatch interrupted: "I don't know how they can say much more than that at this point in this meeting." Richard Tallman (no prior judicial experience). In response to written questions, Judge Tallman explained that "[j]udicial nominees are limited by judicial ethical considerations from answering any question in a manner that would call for an 'advisory opinion' as the courts have defined it or that in effect ask a nominee to suggest how he or she would rule on an issue that could foreseeably require his or her attention in a future case or controversy after confirmation." He was asked how he would have ruled in Plessy v. Ferguson. He stated: "It is entirely conjectural as to what I would have done without having the opportunity to thoroughly review the record presented on appeal, the briefs and arguments of counsel, and supporting legal authorities that were applicable at that time." He gave the same response when asked how he would have ruled on Roe v. Wade. When asked his personal view on abortion, he wrote: "I hold 14 EXT-18-2091-C-000541 007104-001262 no personal views that would prevent me from doing my judicial duty to follow the precedent set down by the Supreme Court." He gave the same answer about the death penalty. Kim Wardlaw. In the hearing on Judge Kim Wardlaw's nomination to the Ninth Circuit, Judge Wardlaw was asked about the constitutionality of affirmative action. She stated (in an answer similar to Miguel Estrada's answer to the same question): "The Supreme Court has held that racial classifications are unconstitutional unless they are narrowly tailored to meet a compelling governmental interest." Maryanne Trump Barry. In the hearing on Judge Maryanne Trump Barry's nomination to the Third Circuit, Senator Smith asked for her personal opinion on whether "an unborn child at any stage of the pregnancy is a human being." Judge Barry responded: "Casey is the law that I would look at. If I had a personal opinion - and I am not suggesting that I do - it is irrelevant because I must look to the law which binds me." Raymond Fisher. In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked Judge Fisher's own personal views on whether the death penalty was constitutional. Judge Fisher responded that "My view, Senator, is that, as you indicated, the Supreme Court has ruled that the death penalty is constitutional. As a lower appellate court judge, that is the law that I am governed by. I don't want in my judicial career, should I be fortunate enough to have one, to inject my personal opinions into whether or not I follow the law. I believe that the precedent of the Supreme Court is binding and that is what my function is." V. Conclusion Miguel Estrada is a well-qualified and well-respected judicial nominee who has very strong bipartisan support. Based on our reading of history, we believe that you have ample information about this nominee and have had more than enough time to consider questions about his qualifications and suitability. We urge you to stop the unfair treatment, end the filibuster, allow an up-or-down vote, and vote to confirm Mr. Estrada. Sincerely, ~co o 'o o .., o I1-,...,_Ao Alberto R. Gonzales Counsel to the President The Honorable Thomas A. Daschle The Honorable Patrick Leahy Copy: The Honorable Bill Frist The Honorable Orrin Hatch 15 EXT-18-2091-C-000542 007104-001263 no personal views that would prevent me from doing my judicial duty to follow the precedent set down by the Supreme Court." He gave the same answer about the death penalty. Kim Wardlaw. In the hearing on Judge Kim Wardlaw's nomination to the Ninth Circuit, Judge Wardlaw was asked about the constitutionality of affirmative action. She stated (in an answer similar to Miguel Estrada's answer to the same question): "The Supreme Court has held that racial classifications are unconstitutional unless they are narrowly tailored to meet a compelling governmental interest." Maryanne Trump Barry. In the hearing on Judge Maryanne Trump Barry's nomination to the Third Circuit, Senator Smith asked for her personal opinion on whether "an unborn child at any stage of the pregnancy is a human being." Judge Barry responded: "Casey is the law that I would look at. If I had a personal opinion - and I am not suggesting that I do - it is irrelevant because I must look to the law which binds me." Raymond Fisher. In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked Judge Fisher's own personal views on whether the death penalty was constitutional. Judge Fisher responded that "My view, Senator, is that, as you indicated, the Supreme Court has ruled that the death penalty is constitutional. As a lower appellate court judge, that is the law that I am governed by. I don't want in my judicial career, should I be fortunate enough to have one, to inject my personal opinions into whether or not I follow the law. I believe that the precedent of the Supreme Court is binding and that is what my function is." V. Conclusion Miguel Estrada is a well-qualified and well-respected judicial nominee who has very strong bipartisan support. Based on our reading of history, we believe that you have ample information about this nominee and have had more than enough time to consider questions about his qualifications and suitability. We urge you to stop the unfair treatment, end the filibuster, allow an up-or-down vote, and vote to confirm Mr. Estrada. Sincerely, ~co o 'o o .., o I1-,...,_Ao Alberto R. Gonzales Counsel to the President The Honorable Thomas A. Daschle The Honorable Patrick Leahy Copy: The Honorable Bill Frist The Honorable Orrin Hatch 15 EXT-18-2091-C-000542 007104-001263 Dinh, Viet From : Dinh, Viet Sent : Friday, March 14, 2003 1:23 PM To: 'Smith, William (Judiciary )'; Benczkowski, Brian A; Charnes, Adam; Hall, William; 'Benjamin _A._ Powell@who.eop.gov' Cc: 'Ashley _Snee@oa.eop.gov'; Subject : RE: Pryor letters ' Kavanaugh, Brett ' Koey Dokey---Original Message-From: Smith, William {Judiciary} {mailto:William_Smith@Judici ary.senate.gov ) Sent: Friday, March 14, 2003 11:45 AM To: Benczkows ki, Brian A; Charnes, Adam; Hall, William; Dinh, Viet; 8enjamin_A._Powell@who.eop.gov Cc: Ashley_Snee@oa.eop.gov Subject: RE: Pryor letters Nomination date: William -Or iginal Message--From: Dinh, Viet [mail to:Viet.Dinh@usdoj.gov] Sent: Thursday, March 13 , 2003 8:03 AM To: Hall, William; Charnes, Adam; Benczkowski, Brian A; Smith, William (Judiciary); ' Benjamin_A._Powe ll@who .eop .gov' Cc: 'Ashley_ Snee@oa.eop.gov ' Subject: Re: Pryor letters - Sent from my BlackBerry. -Or iginal Message--From: Smith, William (Judiciary) To: Hall, William ; Dinh, Viet ; Chames, Adam ; Benczkowski , Brian A ; EXT-18-2091-C-000543 007104-001264 Documen t ID: 0.7.19343.9304 Dinh, Viet From : Dinh, Viet Sent : Friday, March 14, 2003 1:23 PM To: 'Smith, William (Judiciary )'; Benczkowski, Brian A; Charnes, Adam; Hall, William; 'Benjamin _A._ Powell@who.eop.gov' Cc: 'Ashley _Snee@oa.eop.gov'; Subject : RE: Pryor letters ' Kavanaugh, Brett ' Koey Dokey---Original Message-From: Smith, William {Judiciary} {mailto:William_Smith@Judici ary.senate.gov ) Sent: Friday, March 14, 2003 11:45 AM To: Benczkows ki, Brian A; Charnes, Adam; Hall, William; Dinh, Viet; 8enjamin_A._Powell@who.eop.gov Cc: Ashley_Snee@oa.eop.gov Subject: RE: Pryor letters Nomination date: William -Or iginal Message--From: Dinh, Viet [mail to:Viet.Dinh@usdoj.gov] Sent: Thursday, March 13 , 2003 8:03 AM To: Hall, William; Charnes, Adam; Benczkowski, Brian A; Smith, William (Judiciary); ' Benjamin_A._Powe ll@who .eop .gov' Cc: 'Ashley_ Snee@oa.eop.gov ' Subject: Re: Pryor letters - Sent from my BlackBerry. -Or iginal Message--From: Smith, William (Judiciary) To: Hall, William ; Dinh, Viet ; Chames, Adam ; Benczkowski , Brian A ; EXT-18-2091-C-000543 007104-001264 Documen t ID: 0.7.19343.9304 Benjamin_A._Powell@who.eop.gov CC: Ashley_ Snee@oa.eop.gov Sent : Wed Mar 12 22:49:34 2003 Subject RE: Pryor letters The letters are indeed considered to be a part of the public record once submitted , but I generally provide a courtesy notice that we. plan to cite the letters. The presumption , however, is as Brian suggested. Are we going on Tuesday or is that a misread by me? William -Original Message--From: Benczkowski, Brian A [mailto:Brian.A.Benczkowski@us doj.gov) Sent: Wednesday, March 12, 2003 8:28 PM To: Charnes , Adam; Dinh, Viet; Hall, William; 'Benjamin_A._Powell@who.eop.gov '; Smith, William (Judiciary) Cc: 'Ashley _Snee@oa.eop.gov ' Subject: RE: Pryor letters We kee a central file here , but I also think William does too. Whoever receives the letters should ask the sender whether they can be quoted publicly. In the case of the SJC, I think the assumption is that if you send a letter to the Committee and do not ask that it be kept confident ial, that it is part of the pub lic record. William can correct me if I am wrong .... Message---Original From: Benjamin_ A._ Powell@who.eop.gov {mailto:Benjamin_A._Powell@who.eop.gov) Sent: Wednesday, March 12, 2003 7:14 PM To: Charnes , Adam; Benczkowsk i, Brian A; Dinh, Viet; Hall, William; william_smith@judiciary.senate.gov Cc: Ashley_ Snee@oa.eop.gov Subject: Pryor letters Attached are the letters that have made their way to me on Pryor. The copies are not ready for release given the taping over of various numbers that are placed on them by our mail tracking system -- also, I have not spoken to these folks about releasing/quoting from their letters as a courtesy , which needs to be done before next Tuesday. 1. Who is centrally collecting all the letters/materials? (of course, any letters that are mailed to the WH may take months to find their way to me, if ever. letters need to be faxed in.) 2. Who wants to speak to these three to make sure they are okay with us quoting/releasing their letters? I justthink as a courtesy we should do that befo re we start citing lette r etc. at a WH Press Conference. EXT-18-2091-C-000544 007104-001265 Documen t ID: 0,7,19343 ,9304 Benjamin_A._Powell@who.eop.gov CC: Ashley_ Snee@oa.eop.gov Sent : Wed Mar 12 22:49:34 2003 Subject RE: Pryor letters The letters are indeed considered to be a part of the public record once submitted , but I generally provide a courtesy notice that we? plan to cite the letters. The presumption , however, is as Brian suggested. Are we going on Tuesday or is that a misread by me? William -Original Message--From: Benczkowski, Brian A [mailto:Brian.A.Benczkowski@us doj.gov) Sent: Wednesday, March 12, 2003 8:28 PM To: Charnes , Adam; Dinh, Viet; Hall, William; 'Benjamin_A._Powell@who.eop.gov '; Smith, William (Judiciary) Cc: 'Ashley _Snee@oa.eop.gov ' Subject: RE: Pryor letters We kee a central file here , but I also think William does too. Whoever receives the letters should ask the sender whether they can be quoted publicly. In the case of the SJC, I think the assumption is that if you send a letter to the Committee and do not ask that it be kept confident ial, that it is part of the pub lic record. William can correct me if I am wrong .... Message---Original From: Benjamin_ A._ Powell@who.eop.gov {mailto:Benjamin_A._Powell@who.eop.gov) Sent: Wednesday, March 12, 2003 7:14 PM To: Charnes , Adam; Benczkowsk i, Brian A; Dinh, Viet; Hall, William; william_smith@judiciary.senate.gov Cc: Ashley_ Snee@oa.eop.gov Subject: Pryor letters Attached are the letters that have made their way to me on Pryor. The copies are not ready for release given the taping over of various numbers that are placed on them by our mail tracking system -- also, I have not spoken to these folks about releasing/quoting from their letters as a courtesy , which needs to be done before next Tuesday. 1. Who is centrally collecting all the letters/materials? (of course, any letters that are mailed to the WH may take months to find their way to me, if ever. letters need to be faxed in.) 2. Who wants to speak to these three to make sure they are okay with us quoting/releasing their letters? I justthink as a courtesy we should do that befo re we start citing lette r etc. at a WH Press Conference. EXT-18-2091-C-000544 007104-001265 Documen t ID: 0,7,19343 ,9304 I can speak with them, but if anyone else wants to do this/is already speaking with Reed and others, let me know. (See attached file: - Rec For Bill Pryor.pdf)(See attached file: Rec For Bill Pryor.pdf)(See attache d file: - 2nd Rec for Bill Pryor.pdf) EXT-18-2091-C-000545 007104-001266 Document ID: 0.7.19343.9304 I can speak with them, but if anyone else wants to do this/is already speaking with Reed and others, let me know. (See attached file: - Rec For Bill Pryor.pdf)(See attached file: Rec For Bill Pryor.pdf)(See attache d file: - 2nd Rec for Bill Pryor.pdf) EXT-18-2091-C-000545 007104-001266 Document ID: 0.7.19343.9304 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Tuesday, March 25, 2003 7:22 PM To : 'Comisac, RenaJohnson (Judiciary) ' ; Brown, Jamie E (OLA);' Wendy _J._ Grubbs@who.eop.gov'; 'Brett _M._ Kavanaugh@who.eop.gov '; Alex Dahl (E-mail) Cc: Dinh, Viet; Charnes, Adam; Remington , Kristi L Subje ct: Kuhl All: OLP will meet with Judge Kuhl from 11:15-1:15 on Friday morning/afternoon. You are welcome to attend or send a representative. Please let us know who will attend so we can hav e them cleared in. Again, let me know who might attend. Rena and Alex: let me know where to send our folks. If that suits you, BAB Brian A. Benczkowski Chief of Staff and Senior Counsel Office of Legal Policy United States Department of Justice 950 Pennsy lvania Ave., NW Room 4228 Washington, DC 20530 Telephone: {202) 616-2004 Fax: (202} 514-1685 E-mail: Brian.A.Benczkowski@usdoj.gov -Or iginal Message--From: Comisac , RenaJohnson (Judiciary) [mailto:Rena_Johnson_Comisac@Judiciary.senate.gov) Sent: Tuesday, March 25, 2003 6:08 PM To: Brown, Jamie E (OLA};Benczkowski, Brian A; Wendy_J._Grubbs@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: FW: Tentative Markup Agenda for Thursday, March 27th EXT-18-2091-C-000546 007104-001267 Document ID: 0.7.19343 .9573 Benczkowski , Brian A From : Benczkowski, Brian A Sent : Tuesday, March 25, 2003 7:22 PM To : 'Comisac, RenaJohnson (Judiciary) ' ; Brown, Jamie E (OLA);' Wendy _J._ Grubbs@who.eop.gov'; 'Brett _M._ Kavanaugh@who.eop.gov '; Alex Dahl (E-mail) Cc: Dinh, Viet; Charnes, Adam; Remington , Kristi L Subje ct: Kuhl All: OLP will meet with Judge Kuhl from 11:15-1:15 on Friday morning/afternoon. You are welcome to attend or send a representative. Please let us know who will attend so we can hav e them cleared in. Again, let me know who might attend. Rena and Alex: let me know where to send our folks. If that suits you, BAB Brian A. Benczkowski Chief of Staff and Senior Counsel Office of Legal Policy United States Department of Justice 950 Pennsy lvania Ave., NW Room 4228 Washington, DC 20530 Telephone: {202) 616-2004 Fax: (202} 514-1685 E-mail: Brian.A.Benczkowski@usdoj.gov -Or iginal Message--From: Comisac , RenaJohnson (Judiciary) [mailto:Rena_Johnson_Comisac@Judiciary.senate.gov) Sent: Tuesday, March 25, 2003 6:08 PM To: Brown, Jamie E (OLA};Benczkowski, Brian A; Wendy_J._Grubbs@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: FW: Tentative Markup Agenda for Thursday, March 27th EXT-18-2091-C-000546 007104-001267 Document ID: 0.7.19343 .9573 -Original Message-From: Butterfield, Jane (Judiciary) Sent: Tuesday, March 25, 2003 5:30 PM To: Sebold, Linda (Secretary); Dean , Ken (Secretary); Klutts, Chad (Secretary}; Miller Reporting (milrepco@millerreporting.com); Miranda, Manuel (Frist); Wikner, Brian (Judiciary); Butterfield, Jane (Judiciary); Carroll , Kurt (Judiciary); Turner , Roslyne (Judiciary); Pomerance, Lilah {Schumer); Carle, David (Leahy); Fleek, Susanne (Leahy); Gordon, Robert (Edwards); Jones, Stephanie (Edwards); Lackey, Miles (Edwards); Payne-Funk, Matt (Leahy); Skocki, Stan (DeWine ); Cobb, Susan (Hatch); Jan zen, Sto rmie (Sessions); Knight, Patricia (Hatch); Maier, Elizabeth (Kyl); Nuebel, Kathy (Grassley); Thomas Swanton (thomas_swanton@specter.senate.gov); Frank Brown (frank _ brown@specter.senate.gov); Glazewski, Tim (Kyl); Larry Kosten (larry_kosten@specter.senate.gov); Mark Heilbrun (mark _ heilbrun@specter.se nate.gov); Singh Seema {seema_singh@specter.senate.gov); Sonia Acosta (sonia _ acosta@kohl.senate.gov); Morcombe , Cecilia (Judiciary); Marmion, Preble (Judiciary); Mohle , Hein z (Judiciary); Tapia , Margarita (Judiciary); Bradley, Ellen (L. Graham); Cernok, Jill (Kyl); Cricks, Alison; Farr, MaryBeth (Chambliss); Gumerson, Katie (RPC}; Hale, Carrie {DeWine); Higgins, Meaghan (Cornyn); Jafari, Beth (Cornyn); Jodi Lindley (jodi_ lindley@craig .senate.gov); Montoya , Ruth (Hatch); Shimp, Leah (Grassley); Trevor Miller (trevor_mille r@feingold.senate.gov); Anderson, Kathy (Durbin); Arlene Branca (arlene_branca@kohl.senate .gov) ; Bar, Alexis ( Edwards); Dowd, John (Leahy}; Hart Hazar d (hart_hazard@biden.senate.gov); Hawkins, Julia (Feinstein); Magarik, Tamar (Feinstein); Mary Murphy (mary _ murphy@feingold.senate.gov); McDonald, Kevin (Leahy); Molly Buford (molly_buford@biden.senate.gov); Nicholas, Elizabeth (Edwar ds ); Schumer Scheduling (Scheduling@schumer.senate.gov); Tom Wyler {tom_ wyler@feingold.senate.gov); Judiciary, Schumer2 (Judiciary); Bauerly, Cynthia (Judici ary ); Berman, Jeff (Judiciary); Flood, James (Judiciary); Judici ary, Schumer l (Judiciary); Terrell, Louisa (Judiciary); Judiciary, Bidenl (Judiciary); Lee, Marcia (Judiciary); MacBride , Neil (Judiciary); Meyer, Jonathan (Judiciary); Robinson, Tonya (Judiciary); Rosen, Eric (Judiciary); Zubrensky, Michael (Judiciary) ; Kang, Chris (Judiciary); Kearn, Mark (Judiciary); Longley, Michael (Judiciary); Zogby, Joseph (Judiciary); White, Kirsten (Judiciary) ; Busansky , Alex (Judiciary); Judiciary, Feingoldl (Judiciary); Khera, Farhana (Judiciary); Schiff, Bob (Judiciary); Strickland, LaVita (Judiciary); Hantman , David (Judiciary); Hughes , Dempsey (Judiciary); Judiciary, Feinstein 1 (Judiciary); Judiciary , Feinstein2 (Judiciary); Knapp, Jason (Feinstein); Lamberti, Matthew (Judiciary); Oscherwitz, Tom (Judiciary); Toone, Robert (Judiciary}; Flug, James (Judiciary); Johnson, Olati (Judici ary ); Judiciary, Kennedy 1 (Judiciary); Judiciary , Kennedy2 (Judiciary); Judiciary , Kennedy3 (Judiciary ); Judiciary , Kennedv4 (Judiciary); Kaguvutan, Janice (Judiciary); Olavarria, Est her EXT-18-2091-C-000547 007104-001268 Document ID: 0.7.19343 .9573 -Original Message-From: Butterfield, Jane (Judiciary) Sent: Tuesday, March 25, 2003 5:30 PM To: Sebold, Linda (Secretary); Dean , Ken (Secretary); Klutts, Chad (Secretary}; Miller Reporting (milrepco@millerreporting.com); Miranda, Manuel (Frist); Wikner, Brian (Judiciary); Butterfield, Jane (Judiciary); Carroll , Kurt (Judiciary); Turner , Roslyne (Judiciary); Pomerance, Lilah {Schumer); Carle, David (Leahy); Fleek, Susanne (Leahy); Gordon, Robert (Edwards); Jones, Stephanie (Edwards); Lackey, Miles (Edwards); Payne-Funk, Matt (Leahy); Skocki, Stan (DeWine ); Cobb, Susan (Hatch); Jan zen, Sto rmie (Sessions); Knight, Patricia (Hatch); Maier, Elizabeth (Kyl); Nuebel, Kathy (Grassley); Thomas Swanton (thomas_swanton@specter.senate.gov); Frank Brown (frank _ brown@specter.senate.gov); Glazewski, Tim (Kyl); Larry Kosten (larry_kosten@specter.senate.gov); Mark Heilbrun (mark _ heilbrun@specter.se nate.gov); Singh Seema {seema_singh@specter.senate.gov); Sonia Acosta (sonia _ acosta@kohl.senate.gov); Morcombe , Cecilia (Judiciary); Marmion, Preble (Judiciary); Mohle , Hein z (Judiciary); Tapia , Margarita (Judiciary); Bradley, Ellen (L. Graham); Cernok, Jill (Kyl); Cricks, Alison; Farr, MaryBeth (Chambliss); Gumerson, Katie (RPC}; Hale, Carrie {DeWine); Higgins, Meaghan (Cornyn); Jafari, Beth (Cornyn); Jodi Lindley (jodi_ lindley@craig .senate.gov); Montoya , Ruth (Hatch); Shimp, Leah (Grassley); Trevor Miller (trevor_mille r@feingold.senate.gov); Anderson, Kathy (Durbin); Arlene Branca (arlene_branca@kohl.senate .gov) ; Bar, Alexis ( Edwards); Dowd, John (Leahy}; Hart Hazar d (hart_hazard@biden.senate.gov); Hawkins, Julia (Feinstein); Magarik, Tamar (Feinstein); Mary Murphy (mary _ murphy@feingold.senate.gov); McDonald, Kevin (Leahy); Molly Buford (molly_buford@biden.senate.gov); Nicholas, Elizabeth (Edwar ds ); Schumer Scheduling (Scheduling@schumer.senate.gov); Tom Wyler {tom_ wyler@feingold.senate.gov); Judiciary, Schumer2 (Judiciary); Bauerly, Cynthia (Judici ary ); Berman, Jeff (Judiciary); Flood, James (Judiciary); Judici ary, Schumer l (Judiciary); Terrell, Louisa (Judiciary); Judiciary, Bidenl (Judiciary); Lee, Marcia (Judiciary); MacBride , Neil (Judiciary); Meyer, Jonathan (Judiciary); Robinson, Tonya (Judiciary); Rosen, Eric (Judiciary); Zubrensky, Michael (Judiciary) ; Kang, Chris (Judiciary); Kearn, Mark (Judiciary); Longley, Michael (Judiciary); Zogby, Joseph (Judiciary); White, Kirsten (Judiciary) ; Busansky , Alex (Judiciary); Judiciary, Feingoldl (Judiciary); Khera, Farhana (Judiciary); Schiff, Bob (Judiciary); Strickland, LaVita (Judiciary); Hantman , David (Judiciary); Hughes , Dempsey (Judiciary); Judiciary, Feinstein 1 (Judiciary); Judiciary , Feinstein2 (Judiciary); Knapp, Jason (Feinstein); Lamberti, Matthew (Judiciary); Oscherwitz, Tom (Judiciary); Toone, Robert (Judiciary}; Flug, James (Judiciary); Johnson, Olati (Judici ary ); Judiciary, Kennedy 1 (Judiciary); Judiciary , Kennedy2 (Judiciary); Judiciary , Kennedy3 (Judiciary ); Judiciary , Kennedv4 (Judiciary); Kaguvutan, Janice (Judiciary); Olavarria, Est her EXT-18-2091-C-000547 007104-001268 Document ID: 0.7.19343 .9573 (Judiciary); Phillips, Richard (Judiciary); Sessoms, Julia (Judiciary); Schwantes, Jonathan (Judiciary); Arends, Ross (Judiciary); Bloom, Seth (Judiciary); Judiciary, Kohl1 (Judiciary); Mille r, Jeffrey (Judiciary); Nonna, Caroline (Judiciary); Reder, Elizabeth (Judiciary); Winski, John (Judiciary); Arfa, Rachel (Judiciary); Berry, Jessica (Judiciary); Cohen, Bruce (Judiciary); Davies, Susan (Judiciary); Demaine, Linda (Judiciary); DeOreo, Mary (Judiciary); Dettelbach, Steven (Judici ary ); Eichner, Leesa (Judiciary); Fine, Daniel (Judiciary); Graves, Lisa (Judiciary); Green fe ld, Helaine (Judiciary); Huebner, Ben {Judiciary); Katzman, Julie (Judiciary); Lafayette, Ed (Judiciary}; Lucius, Kristine (Judiciary); Lynch, Tim (Judiciary); Magner, Tara (Judiciary); McCormack, Blythe (Judiciary); McKennerney, Christina (Judiciary); Neises, Eric (Judiciary); Pagano, Edward (Judiciary); Parry, Uz (Judiciary); Toomajian, Phil (Judiciary); Smith, William (Judiciary); Barnes, Cindy (Judiciary); Judiciary, Sessions 1 (Judiciary); Judiciary, Sessions2 (Judiciary); Sander, Andrea (Judiciary); Poindexter, Martha Scott (Chambliss}; McLean, Camila (Chambliss); Ho, James (Judiciary); Brooke Roberts; Taylor, Steve (Judiciary); Blackwell, Robin (Judiciary); Fortier, Evelyn (Judiciary); Jones, Bill (Judiciary); Judiciary, DeWine1 (Judiciary); Judiciary, DeWine2 (Judiciary); Judiciary, DeWine3 (Judiciary); Levitas, Peter (Judiciary); Galyean, James {L.Graham); Reed, Matt (Judiciary); Groover, Chad (Judiciary); Judiciary, Grassley1 (Judiciary); Judiciary, Grassley2 (Judiciary); Judiciary, Grassley4 (Judiciary}; Lari, Rita (Judiciary); Augustine, Rene (Judiciary); Bentley, Shawn (Judiciary); Best, David (Judiciary); Bunker, Matt (Judiciary}; Caramanica, Jessica (Judiciary); Castle, William (Judiciary); Comisac , RenaJohnson (Judiciary); Dahl, Alex (Judiciary); Delrahim, Makan (Judiciary); Eskelsen, Jon (Judiciary); Friedrich, Dabney (Judiciary); Green, Tanya {Judiciary); Greissing, John (Judiciary); Haywood, Amy (Judiciary); Higginbotham, Ryan (Judiciary); Johnson, Jacob (Judiciary); Kim, Wan (Judiciary); LeBon, Cherylyn (Judiciary); Lehman, Ted (Judiciary); Lunde ll, Jason (Judiciary); O'Connor, Reed (Judiciary); O'Scannlain, Kevin (Judiciary); Prior, Swen (Judiciary); Sampson, Nate (Judiciary); Seidel, Rebecca (Judiciary); Snell, BethAnn {Judiciary); Soliemanzadeh, Payam (Judiciary); Stahl, Katie (Judiciary); Volkov, Michael (Judiciary); Wagner, Jennifer (Judiciary); Matal, Joe (Judiciary); Higgins, Stephen (Judiciary); Judiciary, kylintern1 (Judiciary); Judiciary, kylintern2 (Judiciary}; Letourneau, Matthew (Judiciary); Judiciary, SheilaB (Judiciary); Judiciary, AnnaG (Judiciary); Judiciary, JonF (Judiciary); Judiciary, MargueriteM (Judiciary); Judiciary, MattG (Judiciary); Millette, Martin (Judiciary}; Artim, Bruce (Judiciary); Campbell, Chris (Judiciary); Carlson, Mark (Judiciary); DeLoatche, Patricia (Judiciary); Judiciary, TylerH (Judiciary); Judiciary, BarrH (Judiciary); Judiciary, OanT (Judiciary); Judiciary, EricJ (Judiciary); Judiciary, lsaacH (Judiciary); Judiciary, JeremyJ (Judiciary); Judiciary, JeremyN (Judiciary}; Judiciary, KristenW (Judiciary); Judiciary, Nicolea (Judiciary} Subject: Tentative Markup Agenda for Thursday, March 27th EXT-18-2091-C-000548 007104-001269 Document ID: 0.7.19343 .9573 (Judiciary); Phillips, Richard (Judiciary); Sessoms, Julia (Judiciary); Schwantes, Jonathan (Judiciary); Arends, Ross (Judiciary); Bloom, Seth (Judiciary); Judiciary, Kohl1 (Judiciary); Mille r, Jeffrey (Judiciary); Nonna, Caroline (Judiciary); Reder, Elizabeth (Judiciary); Winski, John (Judiciary); Arfa, Rachel (Judiciary); Berry, Jessica (Judiciary); Cohen, Bruce (Judiciary); Davies, Susan (Judiciary); Demaine, Linda (Judiciary); DeOreo, Mary (Judiciary); Dettelbach, Steven (Judici ary ); Eichner, Leesa (Judiciary); Fine, Daniel (Judiciary); Graves, Lisa (Judiciary); Green fe ld, Helaine (Judiciary); Huebner, Ben {Judiciary); Katzman, Julie (Judiciary); Lafayette, Ed (Judiciary}; Lucius, Kristine (Judiciary); Lynch, Tim (Judiciary); Magner, Tara (Judiciary); McCormack, Blythe (Judiciary); McKennerney, Christina (Judiciary); Neises, Eric (Judiciary); Pagano, Edward (Judiciary); Parry, Uz (Judiciary); Toomajian, Phil (Judiciary); Smith, William (Judiciary); Barnes, Cindy (Judiciary); Judiciary, Sessions 1 (Judiciary); Judiciary, Sessions2 (Judiciary); Sander, Andrea (Judiciary); Poindexter, Martha Scott (Chambliss}; McLean, Camila (Chambliss); Ho, James (Judiciary); Brooke Roberts; Taylor, Steve (Judiciary); Blackwell, Robin (Judiciary); Fortier, Evelyn (Judiciary); Jones, Bill (Judiciary); Judiciary, DeWine1 (Judiciary); Judiciary, DeWine2 (Judiciary); Judiciary, DeWine3 (Judiciary); Levitas, Peter (Judiciary); Galyean, James {L.Graham); Reed, Matt (Judiciary); Groover, Chad (Judiciary); Judiciary, Grassley1 (Judiciary); Judiciary, Grassley2 (Judiciary); Judiciary, Grassley4 (Judiciary}; Lari, Rita (Judiciary); Augustine, Rene (Judiciary); Bentley, Shawn (Judiciary); Best, David (Judiciary); Bunker, Matt (Judiciary}; Caramanica, Jessica (Judiciary); Castle, William (Judiciary); Comisac , RenaJohnson (Judiciary); Dahl, Alex (Judiciary); Delrahim, Makan (Judiciary); Eskelsen, Jon (Judiciary); Friedrich, Dabney (Judiciary); Green, Tanya {Judiciary); Greissing, John (Judiciary); Haywood, Amy (Judiciary); Higginbotham, Ryan (Judiciary); Johnson, Jacob (Judiciary); Kim, Wan (Judiciary); LeBon, Cherylyn (Judiciary); Lehman, Ted (Judiciary); Lunde ll, Jason (Judiciary); O'Connor, Reed (Judiciary); O'Scannlain, Kevin (Judiciary); Prior, Swen (Judiciary); Sampson, Nate (Judiciary); Seidel, Rebecca (Judiciary); Snell, BethAnn {Judiciary); Soliemanzadeh, Payam (Judiciary); Stahl, Katie (Judiciary); Volkov, Michael (Judiciary); Wagner, Jennifer (Judiciary); Matal, Joe (Judiciary); Higgins, Stephen (Judiciary); Judiciary, kylintern1 (Judiciary); Judiciary, kylintern2 (Judiciary}; Letourneau, Matthew (Judiciary); Judiciary, SheilaB (Judiciary); Judiciary, AnnaG (Judiciary); Judiciary, JonF (Judiciary); Judiciary, MargueriteM (Judiciary); Judiciary, MattG (Judiciary); Millette, Martin (Judiciary}; Artim, Bruce (Judiciary); Campbell, Chris (Judiciary); Carlson, Mark (Judiciary); DeLoatche, Patricia (Judiciary); Judiciary, TylerH (Judiciary); Judiciary, BarrH (Judiciary); Judiciary, OanT (Judiciary); Judiciary, EricJ (Judiciary); Judiciary, lsaacH (Judiciary); Judiciary, JeremyJ (Judiciary); Judiciary, JeremyN (Judiciary}; Judiciary, KristenW (Judiciary); Judiciary, Nicolea (Judiciary} Subject: Tentative Markup Agenda for Thursday, March 27th EXT-18-2091-C-000548 007104-001269 Document ID: 0.7.19343 .9573 007104-001270 Document ID: 01193439573 007104-001270 Document ID: 0.7.19343.9573 Ullman, Kristen A From: Sent: To: Subject: Ullman, Kristen A Tuesday, June 12, 2001 6:24 PM Alex Dahl; Brad Beronson; Brett Kavanaugh; Bryant, Dan; Christopher Rosche; Dinh, Viet; Ed Haden; Kyle Sampson; Lincoln Oliphant; Makan Delrahim; Newstead, Jennifer; Rena Johnson; Sharon Prost; Stephen Higgins; Stewart Verdery; Thorsen, Carl; Ullman, Kristen; Ziad Ojakli List from today's meeting Alex Dahl@judiciary.senate.gov Bradford A. Beronson@who.eop.gov Brett M. Kavanaugh@who.eop.gov Dan.Bryant@usdoj.gov Phone: 202-514-2141 Christopher rosche@hatch.senate.gov Viet.Dinh@usdoj.gov Phone: 202-514-4601 Ed Haden@judiciary.senate.gov Kyle Sampson@who.eop.gov b(6) Lincoln Oliphant Senate email Makan Delrahim@judiciary.senate.gov Jennifer.Newstead@usdoj.gov Phone: 616-0038 Rena Johnson@judiciary.senate.gov Sharon Prost@judiciary.senate.gov b(6) Stephen Higgins Senate email Stewart Verdery@aml.senate.gov Kristen.A.Ullman@usdoj.gov Phone: 514-7473 Carl.Thorsen@usdoj.gov Phone: 202-514-3951 Ziad Ojakli@who.eop.gov Kris Ardizzone Ullman Office of Legal Policy U.S. Department of Justice Phone: 202-514-7473 Fax: 202-305-7397 EXT-18-2091-C-000550 007104-001301 Document ID: 0.7.19343.5432 Ullman, Kristen A From: Sent: To: Subject: Ullman, Kristen A Tuesday, June 12, 2001 6:24 PM Alex Dahl; Brad Beronson; Brett Kavanaugh; Bryant, Dan; Christopher Rosche; Dinh, Viet; Ed Haden; Kyle Sampson; Lincoln Oliphant; Makan Delrahim; Newstead, Jennifer; Rena Johnson; Sharon Prost; Stephen Higgins; Stewart Verdery; Thorsen, Carl; Ullman, Kristen; Ziad Ojakli List from today's meeting Alex Dahl@judiciary.senate.gov Bradford A. Beronson@who.eop.gov Brett M. Kavanaugh@who.eop.gov Dan.Bryant@usdoj.gov Phone: 202-514-2141 Christopher rosche@hatch.senate.gov Viet.Dinh@usdoj.gov Phone: 202-514-4601 Ed Haden@judiciary.senate.gov Kyle Sampson@who.eop.gov b(6) Lincoln Oliphant Senate email Makan Delrahim@judiciary.senate.gov Jennifer.Newstead@usdoj.gov Phone: 616-0038 Rena Johnson@judiciary.senate.gov Sharon Prost@judiciary.senate.gov b(6) Stephen Higgins Senate email Stewart Verdery@aml.senate.gov Kristen.A.Ullman@usdoj.gov Phone: 514-7473 Carl.Thorsen@usdoj.gov Phone: 202-514-3951 Ziad Ojakli@who.eop.gov Kris Ardizzone Ullman Office of Legal Policy U.S. Department of Justice Phone: 202-514-7473 Fax: 202-305-7397 EXT-18-2091-C-000550 007104-001301 Document ID: 0.7.19343.5432 Dinh, Viet From: Sent: To: Cc: Subject: Dinh, Viet Tuesday, June 26, 2001 8:53 AM Ullman, Kristen A; 'Alex Dahl'; 'Brad Berenson'; 'Brett Kavanaugh'; Bryant, Dan; 'Christopher Rosche'; 'Ed Haden'; 'Kyle Sampson'; 'Lincoln Oliphant'; 'Makan Delrahim'; Newstead, Jennifer; 'Rena Johnson'; 'Sharon Prost'; 'Stephen Higgins'; 'Stewart Verdery'; Thorsen, Carl; 'Ziad Ojakli' Schauder, Andrew RE: Schumer on Nominees See also Sen. Schumer's Op-Ed in today's NYT. Ed, I know you have your hands full, bu (b) (5) " best, viet -----Original Message----From: Ullman, Kristen A Sent: Tuesday, June 26, 2001 8:49 AM To: Alex Dahl; Brad Berenson; Brett Kavanaugh; Bryant, Dan; Christopher Rosche; Dinh, Viet; Ed Haden; Kyle Sampson; Lincoln Oliphant; Makan Delrahim; Newstead, Jennifer; Rena Johnson; Sharon Prost; Stephen Higgins; Stewart Verdery; Thorsen, Carl; Ullman, Kristen; Ziad Ojakli Cc: Schauder, Andrew Schumer on Nominees Subject: Story filed on AP Wire at 1:43 a.m. Schumer: Question Bush Nominees by JESSE J. HOLLAND Associated Press Writer WASHINGTON (AP) -- Senators should grill President Bush's judicial nominees about abortion and other controversial topics instead of tiptoeing around the issues and then privately basing their decisions on a candidate's ideology, Sen. Charles Schumer says. Schumer, D-N.Y., chairman of the Senate Judiciary Committee's courts panel, is expected at a hearing Tuesday to say ''it's legitimate to use ideology'' when considering judicial nominees, a source close to the senator said. The role of ideology in judicial selections, the focus of the hearing, has been a running theme throughout the process since Bush took office. First, Bush ended the American Bar Association's role in the White House's confidential judicial screening process. Many conservatives see the ABA as liberal-leaning and blamed its mixed review of Supreme Court nominee Robert Bork's qualifications for his rejection by the Senate. Democrats complained that Bush was politicizing the process. GOP senators now fear Democrats, who took over the Senate this month, EXT-18-2091-C-000551 007104-001302 Document ID: 0.7.19343.5439 Dinh, Viet From: Sent: To: Cc: Subject: Dinh, Viet Tuesday, June 26, 2001 8:53 AM Ullman, Kristen A; 'Alex Dahl'; 'Brad Berenson'; 'Brett Kavanaugh'; Bryant, Dan; 'Christopher Rosche'; 'Ed Haden'; 'Kyle Sampson'; 'Lincoln Oliphant'; 'Makan Delrahim'; Newstead, Jennifer; 'Rena Johnson'; 'Sharon Prost'; 'Stephen Higgins'; 'Stewart Verdery'; Thorsen, Carl; 'Ziad Ojakli' Schauder, Andrew RE: Schumer on Nominees See also Sen. Schumer's Op-Ed in today's NYT. Ed, I know you have your hands full, bu (b) (5) " best, viet -----Original Message----From: Ullman, Kristen A Sent: Tuesday, June 26, 2001 8:49 AM To: Alex Dahl; Brad Berenson; Brett Kavanaugh; Bryant, Dan; Christopher Rosche; Dinh, Viet; Ed Haden; Kyle Sampson; Lincoln Oliphant; Makan Delrahim; Newstead, Jennifer; Rena Johnson; Sharon Prost; Stephen Higgins; Stewart Verdery; Thorsen, Carl; Ullman, Kristen; Ziad Ojakli Cc: Schauder, Andrew Schumer on Nominees Subject: Story filed on AP Wire at 1:43 a.m. Schumer: Question Bush Nominees by JESSE J. HOLLAND Associated Press Writer WASHINGTON (AP) -- Senators should grill President Bush's judicial nominees about abortion and other controversial topics instead of tiptoeing around the issues and then privately basing their decisions on a candidate's ideology, Sen. Charles Schumer says. Schumer, D-N.Y., chairman of the Senate Judiciary Committee's courts panel, is expected at a hearing Tuesday to say ''it's legitimate to use ideology'' when considering judicial nominees, a source close to the senator said. The role of ideology in judicial selections, the focus of the hearing, has been a running theme throughout the process since Bush took office. First, Bush ended the American Bar Association's role in the White House's confidential judicial screening process. Many conservatives see the ABA as liberal-leaning and blamed its mixed review of Supreme Court nominee Robert Bork's qualifications for his rejection by the Senate. Democrats complained that Bush was politicizing the process. GOP senators now fear Democrats, who took over the Senate this month, EXT-18-2091-C-000551 007104-001302 Document ID: 0.7.19343.5439 will use their majority status to block Bush's judicial choices for political reasons, including Republicans' treatment of several of former President Clinton's nominees. They point to comments like Schumer's ''we will not have nominations of right-wing after right-wing after right-wing judges'' as evidence. Democrats, including Schumer, insist they will not use a liberal litmus test to eliminate Bush nominees. Skeptical Republicans have delayed reorganization of the Senate as they try to win concessions on judges, including allowing candidates to automatically skip a review by the Senate Judiciary Committee, chaired by Sen. Patrick Leahy, D-Vt., and go straight to the full Senate. At Tuesday's hearing, top judicial experts will debate ideology's place and whether it should become a permanent part of the process. On the Net: Senate Judiciary Committee: http://www.senate.gov/(tilde)judiciary/ _AP-NY-06-26-01 0143EDT< _ Kris Ardizzone Ullman Office of Legal Policy U.S. Department of Justice Phone: 202-514-7473 Fax: 202-305-7397 EXT-18-2091-C-000552 007104-001303 Document ID: 0.7.19343.5439 will use their majority status to block Bush's judicial choices for political reasons, including Republicans' treatment of several of former President Clinton's nominees. They point to comments like Schumer's ''we will not have nominations of right-wing after right-wing after right-wing judges'' as evidence. Democrats, including Schumer, insist they will not use a liberal litmus test to eliminate Bush nominees. Skeptical Republicans have delayed reorganization of the Senate as they try to win concessions on judges, including allowing candidates to automatically skip a review by the Senate Judiciary Committee, chaired by Sen. Patrick Leahy, D-Vt., and go straight to the full Senate. At Tuesday's hearing, top judicial experts will debate ideology's place and whether it should become a permanent part of the process. On the Net: Senate Judiciary Committee: http://www.senate.gov/(tilde)judiciary/ _AP-NY-06-26-01 0143EDT< _ Kris Ardizzone Ullman Office of Legal Policy U.S. Department of Justice Phone: 202-514-7473 Fax: 202-305-7397 EXT-18-2091-C-000552 007104-001303 Document ID: 0.7.19343.5439 Dinh, Viet From : Dinh, Viet Sent : Monday, July 9, 2001 9:03 AM To: 'Ed Haden '; ' Bradford_A._Berenson@who.eop.gov% inetgw '; 'Rachel _ L._ Brand@who.eop.ga11%inetgw' Cc: '8rett _ M._ Kavanaugh@who.eop.gov%inetgw' Subject : RE: Re[2): Line-up for Sen. Jud. Hearing next week Ed, - .. .. ?- - - -- .... ~ e have been putting out statements to the effect that we understand the 1+2 truncated panel because of the reorg, but will expect a hearing with 2+4 next week to make up for the pace. Take care, my friend. Best, -Original Message-From: Ed Haden (mailto:Ed_ Haden@judiciary.senate.gov) Sent: Monday, July 09, 2001 8:48 AM To: Bradford_A._Berenson@who.eop.gov%inetgw; Rachel_ L_ Brand@who.eop.gov%inetgw Cc: Dinh, Viet; Brett_M ._Kavanaugh@who.eop.gov%inetgw Subject: Re(2): Line-up for Sen. Jud. Hearing next week Friends: Here are some tactics that Bruce, Mark Childress, and LO. Acheson used effectively during my tenure with the Hatch nominations unit: EXT-18-2091-C-000553 007104-001304 Document ID: 0.7.19343.5483 Dinh, Viet From : Dinh, Viet Sent : Monday, July 9, 2001 9:03 AM To: 'Ed Haden '; ' Bradford_A._Berenson@who.eop.gov% inetgw '; 'Rachel _ L._ Brand@who.eop.ga11%inetgw' Cc: '8rett _ M._ Kavanaugh@who.eop.gov%inetgw' Subject : RE: Re[2): Line-up for Sen. Jud. Hearing next week Ed, - .. .. .- - - -- .... ~ e have been putting out statements to the effect that we understand the 1+2 truncated panel because of the reorg, but will expect a hearing with 2+4 next week to make up for the pace. Take care, my friend. Best, -Original Message-From: Ed Haden (mailto:Ed_ Haden@judiciary.senate.gov) Sent: Monday, July 09, 2001 8:48 AM To: Bradford_A._Berenson@who.eop.gov%inetgw; Rachel_ L_ Brand@who.eop.gov%inetgw Cc: Dinh, Viet; Brett_M ._Kavanaugh@who.eop.gov%inetgw Subject: Re(2): Line-up for Sen. Jud. Hearing next week Friends: Here are some tactics that Bruce, Mark Childress, and LO. Acheson used effectively during my tenure with the Hatch nominations unit: EXT-18-2091-C-000553 007104-001304 Document ID: 0.7.19343.5483 Coordinating with Makan , Dave Hoppe, and Home State Senato rs coul d get this rolling today. My thoughts for what they are worth, Ed R. (for Republican) Haden _________ Reply Separato r_________ Hearing next week Author. Bradford _A._ Berenson@who.eop.gov Subject: Re: Line-up for Sen. Jud. Date: 7/8/0 1 3:42 PM I agree completely with Ed. The quest ion is: what can we do about it? EXT-18-2091-C-000554 007104-001305 Document ID: 0.7.19343.5483 Coordinating with Makan , Dave Hoppe, and Home State Senato rs coul d get this rolling today. My thoughts for what they are worth, Ed R. (for Republican) Haden _________ Reply Separato r_________ Hearing next week Author. Bradford _A._ Berenson@who.eop.gov Subject: Re: Line-up for Sen. Jud. Date: 7/8/0 1 3:42 PM I agree completely with Ed. The quest ion is: what can we do about it? EXT-18-2091-C-000554 007104-001305 Document ID: 0.7.19343.5483 Rachel L. Bran d 07/05/2001 05:35:33 PM (Embe dded image moved to file: PIC19943.PCX) Record Type: Record To: See the dist ribution list at the bottom of this message cc: Subject: Line-up for Sen. Jud. Hearing next week ------ Forwarded by Rachel L. Brand/WHO/EOP on 07/05/200 1 05:35 PM ------ (Embedded image moved Ed_ Haden@judiciary .senate.gov (Ed Haden) to file: 07/05/200 1 04:45: 17 PM PIC18863.PCX) Record Type : Record To: viet.dinh@us doj.gov, Rachel L. Brand/WHO/EOP cc: Subject: Fwd:TENTATIVEwitness list 7/ 11/01 Viet and Rachel: This is ridiculous, bad prece dent, and 'Bruce knows it. When I worked for Hatch we would put on at least 1 circuit nominee and 4 district court nominees. Bruce is playing hardball (as expected) right from the start. Ed _________ Forward Header _________ Subject: TENTATIVEwitness list EXT-18-2091-C-000555 007104-001306 Document ID: 0.7.19343 .5483 Rachel L. Bran d 07/05/2001 05:35:33 PM (Embe dded image moved to file: PIC19943.PCX) Record Type: Record To: See the dist ribution list at the bottom of this message cc: Subject: Line-up for Sen. Jud. Hearing next week ------ Forwarded by Rachel L. Brand/WHO/EOP on 07/05/200 1 05:35 PM ------ (Embedded image moved Ed_ Haden@judiciary .senate.gov (Ed Haden) to file: 07/05/200 1 04:45: 17 PM PIC18863.PCX) Record Type : Record To: viet.dinh@us doj.gov, Rachel L. Brand/WHO/EOP cc: Subject: Fwd:TENTATIVEwitness list 7/ 11/01 Viet and Rachel: This is ridiculous, bad prece dent, and 'Bruce knows it. When I worked for Hatch we would put on at least 1 circuit nominee and 4 district court nominees. Bruce is playing hardball (as expected) right from the start. Ed _________ Forward Header _________ Subject: TENTATIVEwitness list EXT-18-2091-C-000555 007104-001306 Document ID: 0.7.19343 .5483 Autnor: LIZ McMahon Uate: / 1::,;u1 4 :jb 1-'M4:UU, I /':J/Ul I tN I A I IVt WI I Nt;);) LI;>I Hea rmg Befo re the Committee on the Judiciary United States Senate on Nominations Wednesday, July 11, 200 1 2:00 p.m, SD-226 PANELi Roger L. Gregory, of Virginia, to be United States Circuit Judge for the Fourth Circuit PANELII Richard F. Cebull, of Montana, to be United States District Judge for the District of Montana Sam E. Haddon, of Montana, to be Unite d States District Ju dge for the District of Montana PANELIll Eileen J. O'Connor, of Maryland, to be Assistant Attorney Gene ral for the Tax Division I /11/Ul Message Sent To: -------------------------- H. Christopher Bartolomucci/WHO/ EOP@EOP Bradford A. Berenson/WHO/EOP@EOP Stuart W. Bowen/WHO/EOP@EOP Robert W. Cobb/WHO/EOP@EOP Courtney S. Elwood/WHO/EOP@EOP Noel J. Francisco/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Helgard C. Walker/WHO/EOP@EOP Rachel L. Brand/WHO/EOP@EOP Timothy E. Flanigan/WHO/EOP@EOP Alberto R. Gonzales/WHO/EOP@EOP Received: from mailsims2.senate.gov {(156.33.203.11)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 002113CE; Sun, 8 Jul 200115:48:21 -0400 Receive d : from eop2.eop.gov (eop253.eop.gov) by mailsims2.senate.gov (Sun Internet Mail Serve r sims.3.5.1999.07.30.00.0S .p8) with ESMTP id for ed_haden@judiciary.senate.gov; Sun, 8 Jul 200 1 15:57:30 -0400 (EDT) Received : from conversion.EOP2.EOP.GOV by EOP.GOV (PMDF V5.2-33 #37157) id <01K50ZANAUVK9415YS@EOP. GOV> for ed_ haden@ju diciary.senate.gov; Sun, 08 Jul 200115: 4 3:55 -0500 (EST) Received: from mhub2.eop.gov ([198.137.24 1.4)) by EOP.GOV (PMOF VS.2-33 #37 157) with ESMTPid <01K50ZAOVHOY96XPTS@EOP.GOV>; Sun, 08 Jul 200115:43:23 ~0500 (EST) Received: from EXT-18-2091-C-000556 007104-001307 Document ID: 0.7.19343 .5483 Autnor: LIZ McMahon Uate: / 1::,;u1 4 :jb 1-'M4:UU, I /':J/Ul I tN I A I IVt WI I Nt;);) LI;>I Hea rmg Befo re the Committee on the Judiciary United States Senate on Nominations Wednesday, July 11, 200 1 2:00 p.m, SD-226 PANELi Roger L. Gregory, of Virginia, to be United States Circuit Judge for the Fourth Circuit PANELII Richard F. Cebull, of Montana, to be United States District Judge for the District of Montana Sam E. Haddon, of Montana, to be Unite d States District Ju dge for the District of Montana PANELIll Eileen J. O'Connor, of Maryland, to be Assistant Attorney Gene ral for the Tax Division I /11/Ul Message Sent To: -------------------------- H. Christopher Bartolomucci/WHO/ EOP@EOP Bradford A. Berenson/WHO/EOP@EOP Stuart W. Bowen/WHO/EOP@EOP Robert W. Cobb/WHO/EOP@EOP Courtney S. Elwood/WHO/EOP@EOP Noel J. Francisco/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Helgard C. Walker/WHO/EOP@EOP Rachel L. Brand/WHO/EOP@EOP Timothy E. Flanigan/WHO/EOP@EOP Alberto R. Gonzales/WHO/EOP@EOP Received: from mailsims2.senate.gov {(156.33.203.11)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 002113CE; Sun, 8 Jul 200115:48:21 -0400 Receive d : from eop2.eop.gov (eop253.eop.gov) by mailsims2.senate.gov (Sun Internet Mail Serve r sims.3.5.1999.07.30.00.0S .p8) with ESMTP id for ed_haden@judiciary.senate.gov; Sun, 8 Jul 200 1 15:57:30 -0400 (EDT) Received : from conversion.EOP2.EOP.GOV by EOP.GOV (PMDF V5.2-33 #37157) id <01K50ZANAUVK9415YS@EOP. GOV> for ed_ haden@ju diciary.senate.gov; Sun, 08 Jul 200115: 4 3:55 -0500 (EST) Received: from mhub2.eop.gov ([198.137.24 1.4)) by EOP.GOV (PMOF VS.2-33 #37 157) with ESMTPid <01K50ZAOVHOY96XPTS@EOP.GOV>; Sun, 08 Jul 200115:43:23 ~0500 (EST) Received: from EXT-18-2091-C-000556 007104-001307 Document ID: 0.7.19343 .5483 sgeop02.eop.gov ((165.119.1.34)) by mhub.eop.gov (PMOF VS.2-33 #37157) with SMTP id <01K50Z9ES7G4971190@mhub.eop.gov>; Sun, 08 Jul 200115:42:52 -0500 {EST)Received: by sgeop02.eop.gov(Lotus SMTP MTA SMTP v4.6 (462.2 9-3-1997)) id 85256A83.006C4A70; Sun, 08 Jul 200115:42:49 -0400 Date: Sun, 08 Jul 200115:42:32 -0400 From: Bradford_A._ Berenson@who.eop.gov Subject: Re: Line-up for Sen. Jud. Hearing next week To: Rachel_L._Brand@who.eop.gov Cc: ed _ haden@judiciary.senate.gov , viet.dinh@usdoj.gov , Brett_ M._ Kavanaugh@who.eop.gov Messageid: <852S6A83.006C103B.00@sgeop02.eop.gov> MIME-version: 1.0 Content-type: MULTIPART/MIXEO; 80UNOARY="Boundary_ (IO_ Lirsic4CsVmHJZsnFWzspg)"X-lotus-FromDomain: EOP EXT-18-2091-C-000557 007104-001308 Documen t ID: 0.7.19343.5483 sgeop02.eop.gov ((165.119.1.34)) by mhub.eop.gov (PMOF VS.2-33 #37157) with SMTP id <01K50Z9ES7G4971190@mhub.eop.gov>; Sun, 08 Jul 200115:42:52 -0500 {EST)Received: by sgeop02.eop.gov(Lotus SMTP MTA SMTP v4.6 (462.2 9-3-1997)) id 85256A83.006C4A70; Sun, 08 Jul 200115:42:49 -0400 Date: Sun, 08 Jul 200115:42:32 -0400 From: Bradford_A._ Berenson@who.eop.gov Subject: Re: Line-up for Sen. Jud. Hearing next week To: Rachel_L._Brand@who.eop.gov Cc: ed _ haden@judiciary.senate.gov , viet.dinh@usdoj.gov , Brett_ M._ Kavanaugh@who.eop.gov Messageid: <852S6A83.006C103B.00@sgeop02.eop.gov> MIME-version: 1.0 Content-type: MULTIPART/MIXEO; 80UNOARY="Boundary_ (IO_ Lirsic4CsVmHJZsnFWzspg)"X-lotus-FromDomain: EOP EXT-18-2091-C-000557 007104-001308 Documen t ID: 0.7.19343.5483 Dinh, Viet From : Dinh, Viet Sent : Wednesday, August 8, 200111:30 AM To : 'Bradford A. Berenson Cc: Ciongo li, Adam; Coehins, Bridget C; Bryant, Dan; Carroll, James W {OLP); Newstead , Jennifer ; Ullman, Kristen A; long , Linda E; Benedi , Lizette O; Rabjohns, Lori; Day, Lori Sharpe; Tucker, Mindy; Suit, Neal ; O' Brien, Patrick; Coniglio, Peter J; Muhammad, Raushanah Q; Joy, Sheila; Brinkley, Winnie; 'Brett_M._Kavanaugh@who.eop .gov' ; 'Heather_ Wingate@who.eop.gov '; 'Matthew _ E._ Smith@who.eop.gov ' ; 'Tim_ Goeglein@who.eop.gov'; 'Timothy_ E._ F lanigan@who.eop.gov'; 'Ziad_S._ Ojakli@who.eop.gov ' Subje ct : RE:August 27 Judicial Confirmation hearings who.ea . ov' ? ' makan_delrahim@judic iary.senate.gov'; ' Ed_ Haden@judiciary.senate.gov ' ' Brad, We have discussed strategy with Committee and Senate leadership, an d we are on top of the Aug. 27th situation. I will report to JSC this afternoon, but Brett or Jennifer can also update you on the Senate stuff. Many thanks. Viet -Or iginal Message-From: Bradford _A._ Berenson@who.eop.gov [mailto:Bradford_A._Berenson@who.eop.gov] Sent: Wednesday, August 08, 2001 9:18 AM To: makan_ delrahim@judiciary.senate.gov; Ed_ Haden@judiciary.senate.gov Cc: Ciongoli, Adam; Coeh ins, Bridget C; Bryant, Dan; Carroll, James W (OLP); Newstead , Jennifer; Ullman, Kristen A; Long, Linda E; Bene-di, Lizette D; Rabjohns, Lori; Day, Lori Sha rpe; Tucker, Mindy; Suit, Neal; O'Brien, Patrick; Coniglio, Peter J; Muhammad , Raushanah Q; Joy, Sheila; Dinh, Viet; Brinkley, Winnie; Brett_ M._ Kavanaugh@who.eop.gov; Heather_ Wingate@who.eop .gov; Matthew_ E._Smith@who.eop.gov; Tim_Goeglein@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Ziad_ S._ Ojakli@who.eop.gov Subject: August 27 Judicial Confirmation hearings The papers a re reporting that Leahy will hold a confirmation hearing on August 27. EXT-18-2091-C-000558 007104-001309 Document ID: 0.7.19343 .5654 Dinh, Viet From : Dinh, Viet Sent : Wednesday, August 8, 200111:30 AM To : 'Bradford A. Berenson Cc: Ciongo li, Adam; Coehins, Bridget C; Bryant, Dan; Carroll, James W {OLP); Newstead , Jennifer ; Ullman, Kristen A; long , Linda E; Benedi , Lizette O; Rabjohns, Lori; Day, Lori Sharpe; Tucker, Mindy; Suit, Neal ; O' Brien, Patrick; Coniglio, Peter J; Muhammad, Raushanah Q; Joy, Sheila; Brinkley, Winnie; 'Brett_M._Kavanaugh@who.eop .gov' ; 'Heather_ Wingate@who.eop.gov '; 'Matthew _ E._ Smith@who.eop.gov ' ; 'Tim_ Goeglein@who.eop.gov'; 'Timothy_ E._ F lanigan@who.eop.gov'; 'Ziad_S._ Ojakli@who.eop.gov ' Subje ct : RE:August 27 Judicial Confirmation hearings who.ea . ov' . ' makan_delrahim@judic iary.senate.gov'; ' Ed_ Haden@judiciary.senate.gov ' ' Brad, We have discussed strategy with Committee and Senate leadership, an d we are on top of the Aug. 27th situation. I will report to JSC this afternoon, but Brett or Jennifer can also update you on the Senate stuff. Many thanks. Viet -Or iginal Message-From: Bradford _A._ Berenson@who.eop.gov [mailto:Bradford_A._Berenson@who.eop.gov] Sent: Wednesday, August 08, 2001 9:18 AM To: makan_ delrahim@judiciary.senate.gov; Ed_ Haden@judiciary.senate.gov Cc: Ciongoli, Adam; Coeh ins, Bridget C; Bryant, Dan; Carroll, James W (OLP); Newstead , Jennifer; Ullman, Kristen A; Long, Linda E; Bene-di, Lizette D; Rabjohns, Lori; Day, Lori Sha rpe; Tucker, Mindy; Suit, Neal; O'Brien, Patrick; Coniglio, Peter J; Muhammad , Raushanah Q; Joy, Sheila; Dinh, Viet; Brinkley, Winnie; Brett_ M._ Kavanaugh@who.eop.gov; Heather_ Wingate@who.eop .gov; Matthew_ E._Smith@who.eop.gov; Tim_Goeglein@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Ziad_ S._ Ojakli@who.eop.gov Subject: August 27 Judicial Confirmation hearings The papers a re reporting that Leahy will hold a confirmation hearing on August 27. EXT-18-2091-C-000558 007104-001309 Document ID: 0.7.19343 .5654 (Embedded image moved "Brinkley, Winnie" to file: 08/07/200 1 08:54:39 AM PIC24747 .PCX) Record Type: Reco rd To: See the distribution list at the bottom of this message cc: "Muhammad, Raushanah Q" (Receipt Notification Requested) (1PMReturn Requested), "Coehins, Bridget C" (Receipt Notification Requested) (1PM Return Requested) Subject: Judicial Confirmation Working Group Chart Update - James W. Carroll has been added to the list. EXT-18-2091-C-000559 007104-001310 Document ID: 0.7.19343 .5654 (Embedded image moved "Brinkley, Winnie" to file: 08/07/200 1 08:54:39 AM PIC24747 .PCX) Record Type: Reco rd To: See the distribution list at the bottom of this message cc: "Muhammad, Raushanah Q" (Receipt Notification Requested) (1PMReturn Requested), "Coehins, Bridget C" (Receipt Notification Requested) (1PM Return Requested) Subject: Judicial Confirmation Working Group Chart Update - James W. Carroll has been added to the list. EXT-18-2091-C-000559 007104-001310 Document ID: 0.7.19343 .5654 Brett M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Friday, August 10, 2001 10:05 AM To: Bradford_A._Berenson@ who.eop.gov Cc: Newstead , Jenn ifer; Dinh, Viet; Alberto_R ._Gonzales@ who.eop.gov ; Timothy_ E._ Flan igan@ who.eop.gov; Kyle_Sampson@who.eop.gov ; makan_de lrahim@judiciary.senate.gov ; ed_ haden@jud iciary.senate.gov Subje ct: Re: Senator Leahy and Senator Levin taking hostages Bradford A. Berenson 08/10 / 2001 09:58 :24 AM Record Type: Record To: See the distribution list at the bottom of this message cc: viet.dinh@usdoj.gov, jenn ifer.newstead@usdoj.gov hostages Subject: Senator Leahy and Senator Levin tak ing I have just been informed by Laurel Press ler, Senator Dewine 's Chief of Staff, that her appeals to have Cook and / or Sutton added to the August 27 hearing have been turned aside by Leahy's office based u . on the dis ute the Administration is havin with Senator Levin. EXT-18-2091-C-000560 007104-001311 Document ID: 0.7.19343.5663 Brett M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Friday, August 10, 2001 10:05 AM To: Bradford_A._Berenson@ who.eop.gov Cc: Newstead , Jenn ifer; Dinh, Viet; Alberto_R ._Gonzales@ who.eop.gov ; Timothy_ E._ Flan igan@ who.eop.gov; Kyle_Sampson@who.eop.gov ; makan_de lrahim@judiciary.senate.gov ; ed_ haden@jud iciary.senate.gov Subje ct: Re: Senator Leahy and Senator Levin taking hostages Bradford A. Berenson 08/10 / 2001 09:58 :24 AM Record Type: Record To: See the distribution list at the bottom of this message cc: viet.dinh@usdoj.gov, jenn ifer.newstead@usdoj.gov hostages Subject: Senator Leahy and Senator Levin tak ing I have just been informed by Laurel Press ler, Senator Dewine 's Chief of Staff, that her appeals to have Cook and / or Sutton added to the August 27 hearing have been turned aside by Leahy's office based u . on the dis ute the Administration is havin with Senator Levin. EXT-18-2091-C-000560 007104-001311 Document ID: 0.7.19343.5663 I welcome your views. Message Sent To:___________ _ __________ Alberto R. Gonzales/WHO/EOP@EOP Timothy E. Flanigan/WHO/EOP@?0P Brett M. Kavanaugh/WHO/EOP@EOP Kyle Sampson/WHO/EOP@EOP makan_delrahim@judiciary.senate.gov@ ed _ haden@judiciary.senate.gov@ inet _ ___ _ inet EXT-18-2091-C-000561 007104-001312 Document ID: 0.7.19343.5663 I welcome your views. Message Sent To:___________ _ __________ Alberto R. Gonzales/WHO/EOP@EOP Timothy E. Flanigan/WHO/EOP@GBP0P Brett M. Kavanaugh/WHO/EOP@EOP Kyle Sampson/WHO/EOP@EOP makan_delrahim@judiciary.senate.gov@ ed _ haden@judiciary.senate.gov@ inet _ ___ _ inet EXT-18-2091-C-000561 007104-001312 Document ID: 0.7.19343.5663 Why Importing Sections 2, 3, and 10 of H.R 5018 into the ATA Would Harm Public Safety 1. Section 2: Extending statutory suppression for wiretap violations to intercepted and stored electronic communications. Currently, the harsh statutory suppression remedy of 18 U.S.C. ? 2515 applies only to government interceptions of wire and oral communications that do not meet all the technical requirements required for government to obtain permission to wiretap. Section 2 of H.R. 5018 would broadly expand the reach of this suppression remedy to include not only interceptions of electronic communications (such as email, pager communications and faxes), but also to the government's obtaining stored electronic communications under 18 U.S.C. ? 2703. At present, both the Fourth Amendment's exclusionary rule and the availability of civil damages under 18 U.S.C. ? 2707 adequately protect the privacy of users, and there has been absolutely no showing of government abuse. Expanding statutory suppression would result in the suppression of evidence even where no Constitutional violation has occurred, providing nothing but a windfall to criminals. Section 2 of H.R. 5018 would require statutory suppression (including fruit of the poisonous tree suppression) in all cases in which the letter of the law is violated. For example, suppression would apply to (a) those cases where the government played no role in an illegal interception, and (b) those where the government obtained a court order satisfying the probable cause standard of the Constitution but inadvertently failed to comply with all the technical requirements of the wiretap statute. In addition, H.R. 5018 would impose a similar suppression remedy on stored electronic communications improperly obtained from service providers. Under 18 U.S.C. ? 2703(a), law enforcement must use a search warrant to compel an Internet service provider to turn over a criminal suspect's "electronic communication[s] ... in electronic storage." Currently, the statute provides for civil damages and disciplinary actions for law enforcement officials who fail to follow the letter of the law, but no suppression absent a constitutional violation. See 18 U.S.C. ? 2708. H.R. 5018 mandates suppression for non constitutional defects even if technical or inadvertent in a search warrant used to compel the production of a suspect's email. Thus, even when a warrant is based on ample probable cause, this will result in the suppression of crucial evidence. Suppression of evidence interferes with the core function of a criminal trial: the jury's ability to reach a verdict based on the evidence. Therefore, it is generally reserved for the most serious violations of law, such as violations of the Constitution. Especially now, Congress should not create new suppression remedies by statute in situations where no Constitutional violation has occurred. Examples: ? An undercover informant in a terrorist cell receives an e-mail from another member of a terrorist conspiracy intending to explode a bomb in downtown Washington. The law enforcement officer prepares a search warrant to obtain the EXT-18-2091-C-000562 007104-001313 Document ID: 0.7.19343.5900-000001 Why Importing Sections 2, 3, and 10 of H.R 5018 into the ATA Would Harm Public Safety 1. Section 2: Extending statutory suppression for wiretap violations to intercepted and stored electronic communications. Currently, the harsh statutory suppression remedy of 18 U.S.C. ? 2515 applies only to government interceptions of wire and oral communications that do not meet all the technical requirements required for government to obtain permission to wiretap. Section 2 of H.R. 5018 would broadly expand the reach of this suppression remedy to include not only interceptions of electronic communications (such as email, pager communications and faxes), but also to the government's obtaining stored electronic communications under 18 U.S.C. ? 2703. At present, both the Fourth Amendment's exclusionary rule and the availability of civil damages under 18 U.S.C. ? 2707 adequately protect the privacy of users, and there has been absolutely no showing of government abuse. Expanding statutory suppression would result in the suppression of evidence even where no Constitutional violation has occurred, providing nothing but a windfall to criminals. Section 2 of H.R. 5018 would require statutory suppression (including fruit of the poisonous tree suppression) in all cases in which the letter of the law is violated. For example, suppression would apply to (a) those cases where the government played no role in an illegal interception, and (b) those where the government obtained a court order satisfying the probable cause standard of the Constitution but inadvertently failed to comply with all the technical requirements of the wiretap statute. In addition, H.R. 5018 would impose a similar suppression remedy on stored electronic communications improperly obtained from service providers. Under 18 U.S.C. ? 2703(a), law enforcement must use a search warrant to compel an Internet service provider to turn over a criminal suspect's "electronic communication[s] ... in electronic storage." Currently, the statute provides for civil damages and disciplinary actions for law enforcement officials who fail to follow the letter of the law, but no suppression absent a constitutional violation. See 18 U.S.C. ? 2708. H.R. 5018 mandates suppression for non constitutional defects even if technical or inadvertent in a search warrant used to compel the production of a suspect's email. Thus, even when a warrant is based on ample probable cause, this will result in the suppression of crucial evidence. Suppression of evidence interferes with the core function of a criminal trial: the jury's ability to reach a verdict based on the evidence. Therefore, it is generally reserved for the most serious violations of law, such as violations of the Constitution. Especially now, Congress should not create new suppression remedies by statute in situations where no Constitutional violation has occurred. Examples: . An undercover informant in a terrorist cell receives an e-mail from another member of a terrorist conspiracy intending to explode a bomb in downtown Washington. The law enforcement officer prepares a search warrant to obtain the EXT-18-2091-C-000562 007104-001313 Document ID: 0.7.19343.5900-000001 other e-mails stored in the account of the non-cooperating conspirator to find out more information about the attack, including the date and time that the bomb will explode. In identifying the terrorist's username in the search warrant affidavit, however, the agent inadvertently mistranscribes the number "one" as the letter "l." Recognizing the investigator's mistake, however, the ISP provides the content of the proper account, i.e., that belonging to the terrorist. Under current law, because the mistake is merely ministerial, and because the officer acted in good faith, the e-mails would not be suppressed. See, e.g., United States v. Maxwell, 45 M.J. 406 (U.S. Armed Forces, Nov. 21, 1996). If the provisions of Section 2 of H.R. 5018 were included in the Anti-Terrorism Act of 2001, however, the court would be forced to suppress the emails, and all of the evidence that resulted from them. The terrorist goes free. . 2. Imagine this same scenario, except that the e-mail account belongs to a pedophile who had previously sent an e-mail to a ten year old girl seeking to lure her away from her home and sexually molest her. The law enforcement officer obtains a search warrant for other e-mails stored in the pedophile's account in order to gather evidence against him and to identify other girls whom he may have solicited. Under the amendments contained in Section 2 of H.R. 5018, a court would suppress the e-mails stored in the pedophile's account, as well as all of the evidence gathered as a result of obtaining those e-mails. The pedophile goes free. Section 3 of H.R. 5018: Burdensome new reporting requirements. Sections 2703(a) and (b) of Title 18 permit the contents of a subscriber's stored electronic communications (such as e-mail) to be compelled using a warrant, a subpoena, or a court order, depending on the circumstances. Section 3 of H.R. 5018 adds a wholly new, extremely onerous reporting requirement applicable to all forms of process used to compel stored electronic communications. These requirements apply to federal, state, and local law enforcement. Specifically, H.R. 5018 would require, for each such compulsory instrument, law enforcement officials to provide Congress an annual report detailing the kind of process used; whether a court granted or denied the application; the period of disclosures authorized; the relevant offense; the nature of the facilities from which the communications were to be disclosed; the nature and number of incriminating communications disclosed; the nature and number of nonincriminating communications disclosed; and the number of persons whose communications were disclosed. By generating enormous amounts of work, these requirements would turn prosecutors and agents into clerks. This time would be better spent investigating and prosecuting crime. These additional administrative burdens appear particularly ill-advised given the Department's investigative needs in the wake of the terrorist attacks on September 11 and the ongoing need to investigate and disrupt terrorist organizations. 3. Section 10 of H.R. 5018: Conflicting statutory changes. It remains unclear whether it has been proposed that all of Section 10 of H.R. 5018 be added to the Anti-Terrorism Act of 2001, or only subsection (d) of Section 10. EXT-18-2091-C-000563 007104-001314 Document ID: 0.7.19343.5900-000001 other e-mails stored in the account of the non-cooperating conspirator to find out more information about the attack, including the date and time that the bomb will explode. In identifying the terrorist's username in the search warrant affidavit, however, the agent inadvertently mistranscribes the number "one" as the letter "l." Recognizing the investigator's mistake, however, the ISP provides the content of the proper account, i.e., that belonging to the terrorist. Under current law, because the mistake is merely ministerial, and because the officer acted in good faith, the e-mails would not be suppressed. See, e.g., United States v. Maxwell, 45 M.J. 406 (U.S. Armed Forces, Nov. 21, 1996). If the provisions of Section 2 of H.R. 5018 were included in the Anti-Terrorism Act of 2001, however, the court would be forced to suppress the emails, and all of the evidence that resulted from them. The terrorist goes free. ? 2. Imagine this same scenario, except that the e-mail account belongs to a pedophile who had previously sent an e-mail to a ten year old girl seeking to lure her away from her home and sexually molest her. The law enforcement officer obtains a search warrant for other e-mails stored in the pedophile's account in order to gather evidence against him and to identify other girls whom he may have solicited. Under the amendments contained in Section 2 of H.R. 5018, a court would suppress the e-mails stored in the pedophile's account, as well as all of the evidence gathered as a result of obtaining those e-mails. The pedophile goes free. Section 3 of H.R. 5018: Burdensome new reporting requirements. Sections 2703(a) and (b) of Title 18 permit the contents of a subscriber's stored electronic communications (such as e-mail) to be compelled using a warrant, a subpoena, or a court order, depending on the circumstances. Section 3 of H.R. 5018 adds a wholly new, extremely onerous reporting requirement applicable to all forms of process used to compel stored electronic communications. These requirements apply to federal, state, and local law enforcement. Specifically, H.R. 5018 would require, for each such compulsory instrument, law enforcement officials to provide Congress an annual report detailing the kind of process used; whether a court granted or denied the application; the period of disclosures authorized; the relevant offense; the nature of the facilities from which the communications were to be disclosed; the nature and number of incriminating communications disclosed; the nature and number of nonincriminating communications disclosed; and the number of persons whose communications were disclosed. By generating enormous amounts of work, these requirements would turn prosecutors and agents into clerks. This time would be better spent investigating and prosecuting crime. These additional administrative burdens appear particularly ill-advised given the Department's investigative needs in the wake of the terrorist attacks on September 11 and the ongoing need to investigate and disrupt terrorist organizations. 3. Section 10 of H.R. 5018: Conflicting statutory changes. It remains unclear whether it has been proposed that all of Section 10 of H.R. 5018 be added to the Anti-Terrorism Act of 2001, or only subsection (d) of Section 10. EXT-18-2091-C-000563 007104-001314 Document ID: 0.7.19343.5900-000001 If the addition only included subsection (d), which raises the minimum penalty for a civil violation of the Electronic Communications Privacy act, this amendment would be largely unobjectionable. If, on the other hand, it has been proposed to add all of the amendments contained in Section 10 of H.R. 5018, this could create problems withing the bill. Although not per se harmful to law enforcement, they conflict with existing parts of the Anti-terrorism Act of 2001. The provisions would amend the same U.S.C. sections but in slightly different and often inconsistent ways as sections 107, 108, and 110 of the Administration bill. This could potentially disrupt the provisions of the bill. Only with careful consideration of the actual drafting could these provisions be integrated into the existing amendments. EXT-18-2091-C-000564 007104-001315 Document ID: 0.7.19343.5900-000001 If the addition only included subsection (d), which raises the minimum penalty for a civil violation of the Electronic Communications Privacy act, this amendment would be largely unobjectionable. If, on the other hand, it has been proposed to add all of the amendments contained in Section 10 of H.R. 5018, this could create problems withing the bill. Although not per se harmful to law enforcement, they conflict with existing parts of the Anti-terrorism Act of 2001. The provisions would amend the same U.S.C. sections but in slightly different and often inconsistent ways as sections 107, 108, and 110 of the Administration bill. This could potentially disrupt the provisions of the bill. Only with careful consideration of the actual drafting could these provisions be integrated into the existing amendments. EXT-18-2091-C-000564 007104-001315 Document ID: 0.7.19343.5900-000001 Dinh, Viet From: Sent: To: Cc: Subject: Dinh, Viet Friday, September 28, 2001 11:19 AM Dinh, Viet; 'jay.apperson@mail.house.gov'; 'will.moschella@mail.house.gov' Bryant, Dan; Thorsen, Carl; O'Brien, Patrick; Newstead, Jennifer; Elwood, John; Downing, Richard; 'Brett_M._Kavanaugh@who.eop.gov'; Stansell-Gamm, Martha; Painter, Christopher; Reitinger, Philip; Geise, Jack Frank Amendment Dear Will and Jay, Our examination of the Frank amendment to H. R. 1710, which you propose to include in the ATA package, indicates that, with one exception, the proposed changes are already contained in the bill (they were made in 1996 in Section 601 of the Intelligence Authorization Act of 1997, PL 104-293) . We think the one exception (increase of punitives from $1000 to $10, 000) is ill-advised. The analysis is as follows: 1) the bill proposes to delete in 2707(a) "customer" and insert "any other person" expanding the scope of people who can sue for violations of their privacy - but 2707 already allows suit by an "other person aggrieved by any violation. " In fact, the word "customer" doesn' t appear in 2707(a) because this change was made in 1996. 2) the proposal would authorize punitive damages in some cases and attorneys fees and costs in any successful action. 2707(c) already says that because of PL 104-293. The bill, however (if it were written in updated text) would increase the mininum damages from $1, 000 to $10, 000, which seems unwarranted. $10, 000 minimum for improper disclosure, even if knowing, of subscriber information seems unduly high. 3) the proposal would require investigations of USG employees for involvement in improper disclosures. Section 2707(d) already requires that, in nearly the same words. Please let me know if you have any questions. All best, Viet -----Original Message----From: Dinh, Viet Sent: Friday, September 28, 2001 11:13 AM To: 'jay.apperson@mail.house.gov'; 'will.moschella@mail.house.gov' Bryant, Dan; Thorsen, Carl; O'Brien, Patrick; Newstead, Jennifer; Elwood, John; Downing, Richard; Cc: 'Brett M. Kavanaugh@who.eop.gov'; Dinh, Viet; Stansell-Gamm, Martha; Painter, Christopher Subject: 5018 Dear Will and Jay, Consistent with my voice mail to Will this morning, please find enclosed our objection to inclusion of section 2 and 3 of H.R. 5018 into the package. Aside from the merits, as outlined in the memo, inclusion would engender significant opposition from law-enforcement and victims rights groups (as 5018 earlier EXT-18-2091-C-000565 007104-001316 Document ID: 0.7.19343.5896 Dinh, Viet From: Sent: To: Cc: Subject: Dinh, Viet Friday, September 28, 2001 11:19 AM Dinh, Viet; 'jay.apperson@mail.house.gov'; 'will.moschella@mail.house.gov' Bryant, Dan; Thorsen, Carl; O'Brien, Patrick; Newstead, Jennifer; Elwood, John; Downing, Richard; 'Brett_M._Kavanaugh@who.eop.gov'; Stansell-Gamm, Martha; Painter, Christopher; Reitinger, Philip; Geise, Jack Frank Amendment Dear Will and Jay, Our examination of the Frank amendment to H. R. 1710, which you propose to include in the ATA package, indicates that, with one exception, the proposed changes are already contained in the bill (they were made in 1996 in Section 601 of the Intelligence Authorization Act of 1997, PL 104-293) . We think the one exception (increase of punitives from $1000 to $10, 000) is ill-advised. The analysis is as follows: 1) the bill proposes to delete in 2707(a) "customer" and insert "any other person" expanding the scope of people who can sue for violations of their privacy - but 2707 already allows suit by an "other person aggrieved by any violation. " In fact, the word "customer" doesn' t appear in 2707(a) because this change was made in 1996. 2) the proposal would authorize punitive damages in some cases and attorneys fees and costs in any successful action. 2707(c) already says that because of PL 104-293. The bill, however (if it were written in updated text) would increase the mininum damages from $1, 000 to $10, 000, which seems unwarranted. $10, 000 minimum for improper disclosure, even if knowing, of subscriber information seems unduly high. 3) the proposal would require investigations of USG employees for involvement in improper disclosures. Section 2707(d) already requires that, in nearly the same words. Please let me know if you have any questions. All best, Viet -----Original Message----From: Dinh, Viet Sent: Friday, September 28, 2001 11:13 AM To: 'jay.apperson@mail.house.gov'; 'will.moschella@mail.house.gov' Bryant, Dan; Thorsen, Carl; O'Brien, Patrick; Newstead, Jennifer; Elwood, John; Downing, Richard; Cc: 'Brett M. Kavanaugh@who.eop.gov'; Dinh, Viet; Stansell-Gamm, Martha; Painter, Christopher Subject: 5018 Dear Will and Jay, Consistent with my voice mail to Will this morning, please find enclosed our objection to inclusion of section 2 and 3 of H.R. 5018 into the package. Aside from the merits, as outlined in the memo, inclusion would engender significant opposition from law-enforcement and victims rights groups (as 5018 earlier EXT-18-2091-C-000565 007104-001316 Document ID: 0.7.19343.5896 experienced) and I fear may jeopardize smooth passage of the package. reaction on the Frank amendment ASAP. Thanks, and I will get you our best, Viet << File: ATA - HR 5018 amendments explanation.wpd >> EXT-18-2091-C-000566 007104-001317 Document ID: 0.7.19343.5896 experienced) and I fear may jeopardize smooth passage of the package. reaction on the Frank amendment ASAP. Thanks, and I will get you our best, Viet << File: ATA - HR 5018 amendments explanation.wpd >> EXT-18-2091-C-000566 007104-001317 Document ID: 0.7.19343.5896 Dinh, Viet From : Dinh, Viet Sent : Monday, October 01, 200 1 1:43 PM To: Lindemann, Michael; Cooper, Owen B; Levey, Stuart; Baxter, Laura Cc: Newstead, Jennifer; 'John _ B._ Bellinger@nsc.eop.gov '; 'TaftWH@ms.state.gov '; 'ThessinJH@ ms.state.gov '; ' BOREKJS@ms.state.gov'; ' BROWNCW@ms.state.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'Courtney_ S._ E lwood@who.eop.gov ' Subject : FW: Terrorist Org definition, Admin Sec. 20 1 Atta chments : sec201_alternative.wpd Mike , Catherine and company , Can you all review and comment directly to Jennifer Newstead or Courtney, who will be meeting with Leahy et al. at 2:30. Jen's cell is S-5077, phone 6-0038 -Original Message-From: Newstead, Jennifer Sent : Monday, October 01, 200 1 12:57 PM To: Dinh, Viet Subject: FW: Terrorist Org definition, Admin Sec. 201 Viet - ?? We should probably give them a reply at 2:30. - Original Message-From: Beryl Howell [mailto:Beryl_Howell@judiciary.senate.gov] Sent: Monday, Octobe r 01, 200112:S0 PM To: Newstead, Jennifer; Heather_ Wingate@who.eop .gov; Courtney _S._ Elwood@who.eop.gov Cc: Bruce Cohen; Julie Katzman; Tim Lynch; David James; Melody Barnes; Esther Olavarria; Makan Delrahim Subject: Terrorist Org definition, Admin Sec. 201 Attached is a revised version of your 201. The immigration experts tell me that the DOJ proposal on the de finition of terrorist organization appears overly vague and broad. The grounds on which the Secretary of State would designate groups outside of the section 219 process is undefined , and no limits to the definition of terrorist organi zation are supplied. The proposal also appears to grant the Attorney General the power to order the Secretary of State to list a group as a terrorist organization without offering any criteria for such a designation. The proposal attached is supported by House Republicans and Democrats and is included in the Sensenbr e nner -Conyers legislation to be introduced today. It offe rs the Justice Departm ent the flexibility to treat non-listed organizations as terrorist organizations but provides some outer boundary EXT-18-2091-C-000567 007104-001318 Docume nt ID: 0.7.19343.5938 Dinh, Viet From : Dinh, Viet Sent : Monday, October 01, 200 1 1:43 PM To: Lindemann, Michael; Cooper, Owen B; Levey, Stuart; Baxter, Laura Cc: Newstead, Jennifer; 'John _ B._ Bellinger@nsc.eop.gov '; 'TaftWH@ms.state.gov '; 'ThessinJH@ ms.state.gov '; ' BOREKJS@ms.state.gov'; ' BROWNCW@ms.state.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'Courtney_ S._ E lwood@who.eop.gov ' Subject : FW: Terrorist Org definition, Admin Sec. 20 1 Atta chments : sec201_alternative.wpd Mike , Catherine and company , Can you all review and comment directly to Jennifer Newstead or Courtney, who will be meeting with Leahy et al. at 2:30. Jen's cell is S-5077, phone 6-0038 -Original Message-From: Newstead, Jennifer Sent : Monday, October 01, 200 1 12:57 PM To: Dinh, Viet Subject: FW: Terrorist Org definition, Admin Sec. 201 Viet - ?? We should probably give them a reply at 2:30. - Original Message-From: Beryl Howell [mailto:Beryl_Howell@judiciary.senate.gov] Sent: Monday, Octobe r 01, 200112:S0 PM To: Newstead, Jennifer; Heather_ Wingate@who.eop .gov; Courtney _S._ Elwood@who.eop.gov Cc: Bruce Cohen; Julie Katzman; Tim Lynch; David James; Melody Barnes; Esther Olavarria; Makan Delrahim Subject: Terrorist Org definition, Admin Sec. 201 Attached is a revised version of your 201. The immigration experts tell me that the DOJ proposal on the de finition of terrorist organization appears overly vague and broad. The grounds on which the Secretary of State would designate groups outside of the section 219 process is undefined , and no limits to the definition of terrorist organi zation are supplied. The proposal also appears to grant the Attorney General the power to order the Secretary of State to list a group as a terrorist organization without offering any criteria for such a designation. The proposal attached is supported by House Republicans and Democrats and is included in the Sensenbr e nner -Conyers legislation to be introduced today. It offe rs the Justice Departm ent the flexibility to treat non-listed organizations as terrorist organizations but provides some outer boundary EXT-18-2091-C-000567 007104-001318 Docume nt ID: 0.7.19343.5938 to that flexibility to prevent problems of ove rbreadth and vagueness . It also treats differently for purposes of the terrorist activity definition the solicitation of funds, individuals , and acts affording material support depending on whethe r the aid is given to a group that has been certified under section 219. We agree that all such support should be treated as terrorist activity where the acts are made in relation to a certified organization, but believe that when applied to noncertified groups, only conduct in furtherance of terrorist activity should be included . This avoids notice problems. This language has also been agreed to by House Republicans and Democrats. Finally, we revise the retroactivity clause along similar lines, also adopting language agreed to in the House. Our retroactivity clause makes the new definition in the bill fully retroactive as applied to people associated with section 219 organizations that were so listed at the- time, but not to those associated with groups that were not at that time section 2 19 organizations, unless the conduct was in furtherance of terrorist activity. Let us know if this revision is acceptable so we can get closure on this. I have also pasted in the amendment below. Beryl Alternative Language for Sec. 20 1: Amend Engage in Terrorist Activity Defined as follows: (IV) to solicit funds or other things of value for (a) a terrorist activity; (b) an organization designated as a foreign terrorist organization under section 219; or (c) a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; (V) to solicit any individual (a) to engage in conduct otherwise described in this clause; (b) for membe rship in a terrorist government; (c) for membership in an organization designated as a foreign terrorist organization under section 219; or (d) for membership in a terrorist organization described in clause (v} (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; or {VI)to commit an act that the actor knows, or reasonably should know, affo rds material support, including a safe l,ouse-, transportation, communications, funds, transfer of funds or otner material financial benefit, false documentation or identification, weapons (including chemical, biological, and radiological weapons) , explosives, or training (a) for the commission of a terrorist activity; (b) to any individual who the actor knows , or reasonably should know, has committed or plans to commit a terrorist activity; (c) to an organization designated as a foreign terrorist organization under section 219; or {rH tn <> f-o r rnri<:t nra,:,nin,tinn rtacrrihort in ,-le,11c0 /.,\ {II\ h , rt nnl\l if tho <>r-tnr lrnnu,c nr ra<>cnne,hh, EXT-18-2091-C-000568 007104-001319 Document ID: 0.7.19343 .5938 to that flexibility to prevent problems of ove rbreadth and vagueness . It also treats differently for purposes of the terrorist activity definition the solicitation of funds, individuals , and acts affording material support depending on whethe r the aid is given to a group that has been certified under section 219. We agree that all such support should be treated as terrorist activity where the acts are made in relation to a certified organization, but believe that when applied to noncertified groups, only conduct in furtherance of terrorist activity should be included . This avoids notice problems. This language has also been agreed to by House Republicans and Democrats. Finally, we revise the retroactivity clause along similar lines, also adopting language agreed to in the House. Our retroactivity clause makes the new definition in the bill fully retroactive as applied to people associated with section 219 organizations that were so listed at the- time, but not to those associated with groups that were not at that time section 2 19 organizations, unless the conduct was in furtherance of terrorist activity. Let us know if this revision is acceptable so we can get closure on this. I have also pasted in the amendment below. Beryl Alternative Language for Sec. 20 1: Amend Engage in Terrorist Activity Defined as follows: (IV) to solicit funds or other things of value for (a) a terrorist activity; (b) an organization designated as a foreign terrorist organization under section 219; or (c) a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; (V) to solicit any individual (a) to engage in conduct otherwise described in this clause; (b) for membe rship in a terrorist government; (c) for membership in an organization designated as a foreign terrorist organization under section 219; or (d) for membership in a terrorist organization described in clause (v} (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; or {VI)to commit an act that the actor knows, or reasonably should know, affo rds material support, including a safe l,ouse-, transportation, communications, funds, transfer of funds or otner material financial benefit, false documentation or identification, weapons (including chemical, biological, and radiological weapons) , explosives, or training (a) for the commission of a terrorist activity; (b) to any individual who the actor knows , or reasonably should know, has committed or plans to commit a terrorist activity; (c) to an organization designated as a foreign terrorist organization under section 219; or {rH tn <> f-o r rnri<:t nra,:,nin,tinn rtacrrihort in ,-le,11c0 /.,\ {II\ h , rt nnl\l if tho <>r-tnr lrnnu,c nr ra<>cnne,hh, EXT-18-2091-C-000568 007104-001319 Document ID: 0.7.19343 .5938 should know, that the act would further a terrorist activity. Replace Terrorist Organization Defined section with the following: (V) Terrorist Organization Defined As used in this subparagraph, the term terrorist organization means (I) an organization designated as a foreign terrorist organization under section 219; or {II)with regard to a group that is not an organization described in subclause {I), a group of 2 or more individua ls, whether organized or not, which engages in, or which has a sizable subgroup which engages in, the activ ities described in subdause (1), (II), or {Ill)of clause (iii). Add the following section in place of Section 204: Retroactive Application of Amendments.(1) In General. The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to (A) act ions taken by an al ien before such date , as well as actions taken on or after such date; and (B) all aliens, without regard to the date of entry or attempted entry into the United States (i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or (ii) seeking adm ission to the United States on or after such date. {2}Special Rule for Aliens in Exclusion or Deportation Proceedings. Notwithstanding any other provision of law, the amendments made by this section shall apply to all aliens in exclusion or deportation proceedings on or after the date of the enactment of this Act (except for proceedings in which there has been a final administrative decision before such date) as if such proceedings were remova l proceedings. (3) Special Rule for Section 219 Organizations. (A) In General. Notwithstanding paragraphs {1) a nd (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a}(3}), or deportab le under section 237(a)(4)(B) of such Act (8 U.S.C. 1227 (a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV} (b}, (V)(c), or (Vl)(c}of section 212(a)(3)(8){iii) of such Act (as so amended) with respect to a group at any time when the group was not a foreign terrorist organization designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189). (B) Construction. Subparagraph (A) shall not be construed to prevent an alien from being considered inadmissib le or deportable for having engaged in a terrorist activity (i) described in subclause (IV)(b), {V)(c),or {Vl)(c)of section 212(a){3)(B)(iii) of such Act (as so amended) with respect to a foreign terrorist organization at any time when such organization was EXT-18-2091-C-000569 007104-001320 Documen t ID: 0.7.19343.5938 should know, that the act would further a terrorist activity. Replace Terrorist Organization Defined section with the following: (V) Terrorist Organization Defined As used in this subparagraph, the term terrorist organization means (I) an organization designated as a foreign terrorist organization under section 219; or {II)with regard to a group that is not an organization described in subclause {I), a group of 2 or more individua ls, whether organized or not, which engages in, or which has a sizable subgroup which engages in, the activ ities described in subdause (1), (II), or {Ill)of clause (iii). Add the following section in place of Section 204: Retroactive Application of Amendments.(1) In General. The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to (A) act ions taken by an al ien before such date , as well as actions taken on or after such date; and (B) all aliens, without regard to the date of entry or attempted entry into the United States (i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or (ii) seeking adm ission to the United States on or after such date. {2}Special Rule for Aliens in Exclusion or Deportation Proceedings. Notwithstanding any other provision of law, the amendments made by this section shall apply to all aliens in exclusion or deportation proceedings on or after the date of the enactment of this Act (except for proceedings in which there has been a final administrative decision before such date) as if such proceedings were remova l proceedings. (3) Special Rule for Section 219 Organizations. (A) In General. Notwithstanding paragraphs {1) a nd (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a}(3}), or deportab le under section 237(a)(4)(B) of such Act (8 U.S.C. 1227 (a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV} (b}, (V)(c), or (Vl)(c}of section 212(a)(3)(8){iii) of such Act (as so amended) with respect to a group at any time when the group was not a foreign terrorist organization designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189). (B) Construction. Subparagraph (A) shall not be construed to prevent an alien from being considered inadmissib le or deportable for having engaged in a terrorist activity (i) described in subclause (IV)(b), {V)(c),or {Vl)(c)of section 212(a){3)(B)(iii) of such Act (as so amended) with respect to a foreign terrorist organization at any time when such organization was EXT-18-2091-C-000569 007104-001320 Documen t ID: 0.7.19343.5938 designated by the Secretary of State under section 219 of such Act; or (ii} describe d in subclause {IV){c),(V)(d), or {Vl}(d) of section 212(a)(3)(B){iii) of such Act (as so amended) with respect to any group described in any of such subclauses. Additio nal Technical Changes require d: Strike refe rences to paragraph (v)(ii} in subclauses (i) and (ii) on page 1 of OOJ section 201 proposal. EXT-18-2091-C-000570 007104-001321 Document ID: 0.7.19343 .5938 designated by the Secretary of State under section 219 of such Act; or (ii} describe d in subclause {IV){c),(V)(d), or {Vl}(d) of section 212(a)(3)(B){iii) of such Act (as so amended) with respect to any group described in any of such subclauses. Additio nal Technical Changes require d: Strike refe rences to paragraph (v)(ii} in subclauses (i) and (ii) on page 1 of OOJ section 201 proposal. EXT-18-2091-C-000570 007104-001321 Document ID: 0.7.19343 .5938 Alternative Language for Sec. 201: Amend "Engage in Terrorist Activity Defined" as follows: (IV) to solicit funds or other things of value for (a) a terrorist activity; (b) an organization designated as a foreign terrorist organization under section 219; or (c) a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; (V) to solicit any individual (a) to engage in conduct otherwise described in this clause; (b) for membership in a terrorist government; (c) for membership in an organization designated as a foreign terrorist organization under section 219; or (d) for membership in a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; or (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, and radiological weapons), explosives, or training (a) for the commission of a terrorist activity; (b) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; (c) to an organization designated as a foreign terrorist organization under section 219; or (d) to a terrorist organization described in clause (v) (II), but only if the actor knows, or reasonably should know, that the act would further a terrorist activity." Replace "Terrorist Organization Defined" section with the following: (V) Terrorist Organization Defined "As used in this subparagraph, the term 'terrorist organization' means (I) an organization designated as a foreign terrorist organization under section 219; or EXT-18-2091-C-000571 007104-001322 Document ID: 0.7.19343.5938-000001 Alternative Language for Sec. 201: Amend "Engage in Terrorist Activity Defined" as follows: (IV) to solicit funds or other things of value for (a) a terrorist activity; (b) an organization designated as a foreign terrorist organization under section 219; or (c) a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; (V) to solicit any individual (a) to engage in conduct otherwise described in this clause; (b) for membership in a terrorist government; (c) for membership in an organization designated as a foreign terrorist organization under section 219; or (d) for membership in a terrorist organization described in clause (v) (II), but only if the solicitor knows, or reasonably should know, that the solicitation would further a terrorist activity; or (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, and radiological weapons), explosives, or training (a) for the commission of a terrorist activity; (b) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; (c) to an organization designated as a foreign terrorist organization under section 219; or (d) to a terrorist organization described in clause (v) (II), but only if the actor knows, or reasonably should know, that the act would further a terrorist activity." Replace "Terrorist Organization Defined" section with the following: (V) Terrorist Organization Defined "As used in this subparagraph, the term 'terrorist organization' means (I) an organization designated as a foreign terrorist organization under section 219; or EXT-18-2091-C-000571 007104-001322 Document ID: 0.7.19343.5938-000001 (II) with regard to a group that is not an organization described in subclause (I), a group of 2 or more individuals, whether organized or not, which engages in, or which has a sizable subgroup which engages in, the activities described in subclause (I), (II), or (III) of clause (iii)." Add the following section in place of Section 204: Retroactive Application of Amendments.-(1) In General. The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to (A) actions taken by an alien before such date, as well as actions taken on or after such date; and (B) all aliens, without regard to the date of entry or attempted entry into the United States (i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or (ii) seeking admission to the United States on or after such date. (2) Special Rule for Aliens in Exclusion or Deportation Proceedings. Notwithstanding any other provision of law, the amendments made by this section shall apply to all aliens in exclusion or deportation proceedings on or after the date of the enactment of this Act (except for proceedings in which there has been a final administrative decision before such date) as if such proceedings were removal proceedings. (3) Special Rule for Section 219 Organizations. (A) In General. Notwithstanding paragraphs (1) and (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)), or deportable under section 237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV)(b), (V)(c), or (VI)(c) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to a group at any time when the group was not a foreign terrorist organization designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189). (B) Construction. Subparagraph (A) shall not be construed to prevent an alien from being considered inadmissible or deportable for having engaged in a terrorist activity (i) described in subclause (IV)(b), (V)(c), or (VI)(c) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to a foreign terrorist organization at any time when such organization was designated by the Secretary of State under section 219 of such Act; or EXT-18-2091-C-000572 007104-001323 Document ID: 0.7.19343.5938-000001 (II) with regard to a group that is not an organization described in subclause (I), a group of 2 or more individuals, whether organized or not, which engages in, or which has a sizable subgroup which engages in, the activities described in subclause (I), (II), or (III) of clause (iii)." Add the following section in place of Section 204: Retroactive Application of Amendments.-(1) In General. The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to (A) actions taken by an alien before such date, as well as actions taken on or after such date; and (B) all aliens, without regard to the date of entry or attempted entry into the United States (i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or (ii) seeking admission to the United States on or after such date. (2) Special Rule for Aliens in Exclusion or Deportation Proceedings. Notwithstanding any other provision of law, the amendments made by this section shall apply to all aliens in exclusion or deportation proceedings on or after the date of the enactment of this Act (except for proceedings in which there has been a final administrative decision before such date) as if such proceedings were removal proceedings. (3) Special Rule for Section 219 Organizations. (A) In General. Notwithstanding paragraphs (1) and (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)), or deportable under section 237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV)(b), (V)(c), or (VI)(c) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to a group at any time when the group was not a foreign terrorist organization designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189). (B) Construction. Subparagraph (A) shall not be construed to prevent an alien from being considered inadmissible or deportable for having engaged in a terrorist activity (i) described in subclause (IV)(b), (V)(c), or (VI)(c) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to a foreign terrorist organization at any time when such organization was designated by the Secretary of State under section 219 of such Act; or EXT-18-2091-C-000572 007104-001323 Document ID: 0.7.19343.5938-000001 (ii) described in subclause (IV)(c), (V)(d), or (VI)(d) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to any group described in any of such subclauses. Additional Technical Changes required: Strike references to paragraph (v)(ii) in subclauses (i) and (ii) on page 1 of DOJ section 201 proposal. EXT-18-2091-C-000573 007104-001324 Document ID: 0.7.19343.5938-000001 (ii) described in subclause (IV)(c), (V)(d), or (VI)(d) of section 212(a)(3)(B)(iii) of such Act (as so amended) with respect to any group described in any of such subclauses. Additional Technical Changes required: Strike references to paragraph (v)(ii) in subclauses (i) and (ii) on page 1 of DOJ section 201 proposal. EXT-18-2091-C-000573 007104-001324 Document ID: 0.7.19343.5938-000001 Dinh, Viet From : Dinh, Viet Sent : Thursday, October 04, 20011 1:45 AM To: 'Makan Delrahim'; Bryant, Dan; Newstead , Jenni fer ; ' Bradford_A._ Berenson@who.eop.gov'; 'Brett _ M._ Kavanaugh@who.eop. gov'; 'Courtney_S._Elwood@who.eop.gov'; 'heather_wingate@who.eop.gov '; 'Nan cy_P._Oorn@who.eop.gov'; 'Timothy_ E._Flanigan@who.eop.gov'; 'Ziad_S._Ojakli @who.eop.gov' Cc: Lindemann, Michael; Levey, Stuart Subje ct : RE: Draft Compromise USAAct Please note that Title IV.B, relating to immigration, is not inthe current draft. I assume that language we agreed to last night is being added? -Original Message-From: Makan Oelrahim [mailto:M akan_Oe lrahim@judici ary.senate.gov ) Sent: Thursday , October 04, 2001 11:03 AM To: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; Bradford_A._ Berenson@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov; Courtney_ S._ Elwood@who.e-op.gov; heather_ wingate@who.eop.gov; Nancy_ P._ Oorn@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Ziad_S._ Ojakli@who .eop.gov Subject: Fwd: Draft Compromise USAAct _________ Forward Header __________ Author: Beryl Howell Date : 10/ 4/200 1 8:54 AM Subject: Draft Compromise USAAct Attached is the lates t working draft of the antiterrorism bill that we will be scrubbing th is morning . Beryl _________ Forward Hea der __________ Ayoud, Laura Date: 10/4/2001 12:19 AM Subject: Fwd[2):Final Draft Author: Anal draft does not include immigration. Material is set but needs substantial work. Our counsel will start in on it at 7:30 am . Bill William F. Jensen, Senior Counsel Office of the Senate Legislative- Counsel EXT-18-2091-C-000574 007104-001325 Docume nt ID: 0.7.19343.6144 Dinh, Viet From : Dinh, Viet Sent : Thursday, October 04, 20011 1:45 AM To: 'Makan Delrahim'; Bryant, Dan; Newstead , Jenni fer ; ' Bradford_A._ Berenson@who.eop.gov'; 'Brett _ M._ Kavanaugh@who.eop. gov'; 'Courtney_S._Elwood@who.eop.gov'; 'heather_wingate@who.eop.gov '; 'Nan cy_P._Oorn@who.eop.gov'; 'Timothy_ E._Flanigan@who.eop.gov'; 'Ziad_S._Ojakli @who.eop.gov' Cc: Lindemann, Michael; Levey, Stuart Subje ct : RE: Draft Compromise USAAct Please note that Title IV.B, relating to immigration, is not inthe current draft. I assume that language we agreed to last night is being added? -Original Message-From: Makan Oelrahim [mailto:M akan_Oe lrahim@judici ary.senate.gov ) Sent: Thursday , October 04, 2001 11:03 AM To: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; Bradford_A._ Berenson@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov; Courtney_ S._ Elwood@who.e-op.gov; heather_ wingate@who.eop.gov; Nancy_ P._ Oorn@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Ziad_S._ Ojakli@who .eop.gov Subject: Fwd: Draft Compromise USAAct _________ Forward Header __________ Author: Beryl Howell Date : 10/ 4/200 1 8:54 AM Subject: Draft Compromise USAAct Attached is the lates t working draft of the antiterrorism bill that we will be scrubbing th is morning . Beryl _________ Forward Hea der __________ Ayoud, Laura Date: 10/4/2001 12:19 AM Subject: Fwd[2):Final Draft Author: Anal draft does not include immigration. Material is set but needs substantial work. Our counsel will start in on it at 7:30 am . Bill William F. Jensen, Senior Counsel Office of the Senate Legislative- Counsel EXT-18-2091-C-000574 007104-001325 Docume nt ID: 0.7.19343.6144 Phone: 202-224-6461 Email: Bill Jensen at legislative _ Counsel (within Senate} bill_jensen@slc.senate .gov (outside Senate) EXT-18-2091-C-000575 007104-001326 Document ID: 0.7.19343 .6144 Phone: 202-224-6461 Email: Bill Jensen at legislative _ Counsel (within Senate} bill_jensen@slc.senate .gov (outside Senate) EXT-18-2091-C-000575 007104-001326 Document ID: 0.7.19343 .6144 Dinh, Viet From : Dinh, Viet Sent : Satur day, October 06, 200 1 5:19 PM To : 'Fishman, George '; 'cwolff@ovp.cop.gov '; 'makan _ delrahim@judiciary.senate.gov'; 'Dudas, Jon'; 'john_mashburn@lott.senate.gov '; ' eterlin , Margaret' ; 'Farry, Doug'; 'stuart _ nash@judiciary.senate.gov '; 'Courtney _S._ Elwood@who.eop.gov'; ' Brett_ M._Kavanaugh@who.eop.gov '; 'Nancy_P._Dorn@who.eop.gov '; 'Candi da_P ._Wolff@ovp.eop .gov'; 'Robert _ Marsh@who.eop.gov'; 'Timothy_ E._ Flanigan@wh o.eop .gov'; 'Courtney_S._ Elwood@who.eop.gov '; 'Kristen_Silverberg@who.eop.go v'; Bryant, Dan; Newstead , Jenni fer; Karp, David J; Elwood, John; Tliorsen, Carl; O' Brien, Pat; Lindemann, Michael; Painter, Christopher; Geise, Jack; Kris, David; Madan, Rafael Subjec t : Bills a nd Side by sides Attachments: revised house-senate side by side.wpd; JEN01_ 933.p df; MOB_964.POF; terrorismsidebysi de2.wpd All, For your viewing pleasure, enclose d are current versions of the House an d Senate Bills, a revised draft side-by-side analysis of the bills by DoJ, and a side-by-side analysis of the immigration provisions by George Fishman of House Judiciary. Please note that we have structure d the DoJ chart based on the numeration in the Senate version of the bill for convenience only; the structure reflects no preju dice or preference of the Administr ation for either bill. Have a goo d evening, and happy Columbus Day. Viet Dinh EXT-18-2091-C-000576 007104-001327 Document ID: 0.7.19343.6177 Dinh, Viet From : Dinh, Viet Sent : Satur day, October 06, 200 1 5:19 PM To : 'Fishman, George '; 'cwolff@ovp.cop.gov '; 'makan _ delrahim@judiciary.senate.gov'; 'Dudas, Jon'; 'john_mashburn@lott.senate.gov '; ' eterlin , Margaret' ; 'Farry, Doug'; 'stuart _ nash@judiciary.senate.gov '; 'Courtney _S._ Elwood@who.eop.gov'; ' Brett_ M._Kavanaugh@who.eop.gov '; 'Nancy_P._Dorn@who.eop.gov '; 'Candi da_P ._Wolff@ovp.eop .gov'; 'Robert _ Marsh@who.eop.gov'; 'Timothy_ E._ Flanigan@wh o.eop .gov'; 'Courtney_S._ Elwood@who.eop.gov '; 'Kristen_Silverberg@who.eop.go v'; Bryant, Dan; Newstead , Jenni fer; Karp, David J; Elwood, John; Tliorsen, Carl; O' Brien, Pat; Lindemann, Michael; Painter, Christopher; Geise, Jack; Kris, David; Madan, Rafael Subjec t : Bills a nd Side by sides Attachments: revised house-senate side by side.wpd; JEN01_ 933.p df; MOB_964.POF; terrorismsidebysi de2.wpd All, For your viewing pleasure, enclose d are current versions of the House an d Senate Bills, a revised draft side-by-side analysis of the bills by DoJ, and a side-by-side analysis of the immigration provisions by George Fishman of House Judiciary. Please note that we have structure d the DoJ chart based on the numeration in the Senate version of the bill for convenience only; the structure reflects no preju dice or preference of the Administr ation for either bill. Have a goo d evening, and happy Columbus Day. Viet Dinh EXT-18-2091-C-000576 007104-001327 Document ID: 0.7.19343.6177 S.L.C. O:\JEN\JEN01.933 107TH CONGRESS 1ST SESSION S. ll IN THE SENATE OF THE UNITED STATES Mr. DASCHLE (for himself, Mr. LOTT, Mr. LEAHY, Mr. HATCH, Mr. GRAHAM, Mr. SHELBY, and Mr. SARBANES) introduced the following bill; which was read twice and referred to the Committee on A BILL To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement inves tigatory tools, and for other purposes. 1 2 Be it enacted by the Senate and House of Representa tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 4 (a) SHORT TITLE. This Act may be cited as the 5 ''Uniting and Strengthening America Act'' or the ''USA 6 Act of 2001''. 7 (b) TABLE 8 OF CONTENTS. The table of contents for this Act is as follows: Sec. 1. Short title and table of contents. Sec. 2. Construction; severability. EXT-18-2091-C-000577 007104-001328 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 107TH CONGRESS 1ST SESSION S. ll IN THE SENATE OF THE UNITED STATES Mr. DASCHLE (for himself, Mr. LOTT, Mr. LEAHY, Mr. HATCH, Mr. GRAHAM, Mr. SHELBY, and Mr. SARBANES) introduced the following bill; which was read twice and referred to the Committee on A BILL To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement inves tigatory tools, and for other purposes. 1 2 Be it enacted by the Senate and House of Representa tives of the United States of America in Congress assembled, 3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS. 4 (a) SHORT TITLE. This Act may be cited as the 5 ''Uniting and Strengthening America Act'' or the ''USA 6 Act of 2001''. 7 (b) TABLE 8 OF CONTENTS. The table of contents for this Act is as follows: Sec. 1. Short title and table of contents. Sec. 2. Construction; severability. EXT-18-2091-C-000577 007104-001328 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 2 TITLE I ENHANCING DOMESTIC SECURITY AGAINST TERRORISM Sec. 101. Counterterrorism fund. Sec. 102. Sense of Congress condemning discrimination against Arab and Mus lim Americans. Sec. 103. Increased funding for the technical support center at the Federal Bu reau of Investigation. Sec. 104. Requests for military assistance to enforce prohibition in certain emergencies. Sec. 105. Expansion of national electronic crime task force initiative. Sec. 106. Presidential authority. TITLE II ENHANCED SURVEILLANCE PROCEDURES Sec. 201. Authority to intercept wire, oral, and electronic communications relat ing to terrorism. Sec. 202. Authority to intercept wire, oral, and electronic communications relat ing to computer fraud and abuse offenses. Sec. 203. Authority to share criminal investigative information. Sec. 204. Clarification of intelligence exceptions from limitations on intercep tion and disclosure of wire, oral, and electronic communica tions. Sec. 205. Employment of translators by the Federal Bureau of Investigation. Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveil lance Act of 1978. Sec. 207. Duration of FISA surveillance of non United States persons who are agents of a foreign power. Sec. 208. Designation of judges. Sec. 209. Seizure of voice mail messages pursuant to warrants. Sec. 210. Scope of subpoenas for records of electronic communications. Sec. 211. Clarification of scope. Sec. 212. Emergency disclosure of electronic communications to protect life and limb. Sec. 213. Authority for delaying notice of the execution of a warrant. Sec. 214. Pen register and trap and trace authority under FISA. Sec. 215. Access to records and other items under the Foreign Intelligence Sur veillance Act. Sec. 216. Modification of authorities relating to use of pen registers and trap and trace devices. Sec. 217. Interception of computer trespasser communications. Sec. 218. Foreign intelligence information. Sec. 219. Single jurisdiction search warrants for terrorism. Sec. 220. Nationwide service of search warrants for electronic evidence. Sec. 221. Trade sanctions. Sec. 222. Assistance to law enforcement agencies. TITLE III INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI TERRORIST FINANCING ACT OF 2001 Sec. 301. Short title. Sec. 302. Findings and purposes. Sec. 303. 4 Year congressional review expedited consideration. SUBTITLE A INTERNATIONAL COUNTER MONEY LAUNDERING RELATED MEASURES AND EXT-18-2091-C-000578 007104-001329 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 2 TITLE I ENHANCING DOMESTIC SECURITY AGAINST TERRORISM Sec. 101. Counterterrorism fund. Sec. 102. Sense of Congress condemning discrimination against Arab and Mus lim Americans. Sec. 103. Increased funding for the technical support center at the Federal Bu reau of Investigation. Sec. 104. Requests for military assistance to enforce prohibition in certain emergencies. Sec. 105. Expansion of national electronic crime task force initiative. Sec. 106. Presidential authority. TITLE II ENHANCED SURVEILLANCE PROCEDURES Sec. 201. Authority to intercept wire, oral, and electronic communications relat ing to terrorism. Sec. 202. Authority to intercept wire, oral, and electronic communications relat ing to computer fraud and abuse offenses. Sec. 203. Authority to share criminal investigative information. Sec. 204. Clarification of intelligence exceptions from limitations on intercep tion and disclosure of wire, oral, and electronic communica tions. Sec. 205. Employment of translators by the Federal Bureau of Investigation. Sec. 206. Roving surveillance authority under the Foreign Intelligence Surveil lance Act of 1978. Sec. 207. Duration of FISA surveillance of non United States persons who are agents of a foreign power. Sec. 208. Designation of judges. Sec. 209. Seizure of voice mail messages pursuant to warrants. Sec. 210. Scope of subpoenas for records of electronic communications. Sec. 211. Clarification of scope. Sec. 212. Emergency disclosure of electronic communications to protect life and limb. Sec. 213. Authority for delaying notice of the execution of a warrant. Sec. 214. Pen register and trap and trace authority under FISA. Sec. 215. Access to records and other items under the Foreign Intelligence Sur veillance Act. Sec. 216. Modification of authorities relating to use of pen registers and trap and trace devices. Sec. 217. Interception of computer trespasser communications. Sec. 218. Foreign intelligence information. Sec. 219. Single jurisdiction search warrants for terrorism. Sec. 220. Nationwide service of search warrants for electronic evidence. Sec. 221. Trade sanctions. Sec. 222. Assistance to law enforcement agencies. TITLE III INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI TERRORIST FINANCING ACT OF 2001 Sec. 301. Short title. Sec. 302. Findings and purposes. Sec. 303. 4 Year congressional review expedited consideration. SUBTITLE A INTERNATIONAL COUNTER MONEY LAUNDERING RELATED MEASURES AND EXT-18-2091-C-000578 007104-001329 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 3 Sec. 311. Special measures for jurisdictions, financial institutions, or inter national transactions of primary money laundering concern. Sec. 312. Special due diligence for correspondent accounts and private banking accounts. Sec. 313. Prohibition on United States correspondent accounts with foreign shell banks. Sec. 314. Cooperative efforts to deter money laundering. Sec. 315. Inclusion of foreign corruption offenses as money laundering crimes. Sec. 316. Anti terrorist forfeiture protection. Sec. 317. Long arm jurisdiction over foreign money launderers. Sec. 318. Laundering money through a foreign bank. Sec. 319. Forfeiture of funds in United States interbank accounts. Sec. 320. Proceeds of foreign crimes. Sec. 321. Exclusion of aliens involved in money laundering. Sec. 322. Corporation represented by a fugitive. Sec. 323. Enforcement of foreign judgments. Sec. 324. Increase in civil and criminal penalties for money laundering. Sec. 325. Report and recommendation. Sec. 326. Report on effectiveness. Sec. 327. Concentration accounts at financial institutions. SUBTITLE B CURRENCY TRANSACTION REPORTING AMENDMENTS RELATED IMPROVEMENTS AND Sec. 331. Amendments relating to reporting of suspicious activities. Sec. 332. Anti money laundering programs. Sec. 333. Penalties for violations of geographic targeting orders and certain recordkeeping requirements, and lengthening effective period of geographic targeting orders. Sec. 334. Anti money laundering strategy. Sec. 335. Authorization to include suspicions of illegal activity in written em ployment references. Sec. 336. Bank Secrecy Act advisory group. Sec. 337. Agency reports on reconciling penalty amounts. Sec. 338. Reporting of suspicious activities by securities brokers and dealers. Sec. 339. Special report on administration of Bank Secrecy provisions. Sec. 340. Bank Secrecy provisions and anti terrorist activities of United States intelligence agencies. Sec. 341. Reporting of suspicious activities by hawala and other underground banking systems. Sec. 342. Use of Authority of the United States Executive Directors. SUBTITLE D CURRENCY CRIMES Sec. 351. Bulk cash smuggling. SUBTITLE E ANTICORRUPTION MEASURES Sec. 361. Corruption of foreign governments and ruling elites. Sec. 362. Support for the financial action task force on money laundering. Sec. 363. Terrorist funding through money laundering. TITLE IV PROTECTING THE BORDER Subtitle A Protecting the Northern Border Sec. 401. Ensuring adequate personnel on the northern border. EXT-18-2091-C-000579 007104-001330 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 3 Sec. 311. Special measures for jurisdictions, financial institutions, or inter national transactions of primary money laundering concern. Sec. 312. Special due diligence for correspondent accounts and private banking accounts. Sec. 313. Prohibition on United States correspondent accounts with foreign shell banks. Sec. 314. Cooperative efforts to deter money laundering. Sec. 315. Inclusion of foreign corruption offenses as money laundering crimes. Sec. 316. Anti terrorist forfeiture protection. Sec. 317. Long arm jurisdiction over foreign money launderers. Sec. 318. Laundering money through a foreign bank. Sec. 319. Forfeiture of funds in United States interbank accounts. Sec. 320. Proceeds of foreign crimes. Sec. 321. Exclusion of aliens involved in money laundering. Sec. 322. Corporation represented by a fugitive. Sec. 323. Enforcement of foreign judgments. Sec. 324. Increase in civil and criminal penalties for money laundering. Sec. 325. Report and recommendation. Sec. 326. Report on effectiveness. Sec. 327. Concentration accounts at financial institutions. SUBTITLE B CURRENCY TRANSACTION REPORTING AMENDMENTS RELATED IMPROVEMENTS AND Sec. 331. Amendments relating to reporting of suspicious activities. Sec. 332. Anti money laundering programs. Sec. 333. Penalties for violations of geographic targeting orders and certain recordkeeping requirements, and lengthening effective period of geographic targeting orders. Sec. 334. Anti money laundering strategy. Sec. 335. Authorization to include suspicions of illegal activity in written em ployment references. Sec. 336. Bank Secrecy Act advisory group. Sec. 337. Agency reports on reconciling penalty amounts. Sec. 338. Reporting of suspicious activities by securities brokers and dealers. Sec. 339. Special report on administration of Bank Secrecy provisions. Sec. 340. Bank Secrecy provisions and anti terrorist activities of United States intelligence agencies. Sec. 341. Reporting of suspicious activities by hawala and other underground banking systems. Sec. 342. Use of Authority of the United States Executive Directors. SUBTITLE D CURRENCY CRIMES Sec. 351. Bulk cash smuggling. SUBTITLE E ANTICORRUPTION MEASURES Sec. 361. Corruption of foreign governments and ruling elites. Sec. 362. Support for the financial action task force on money laundering. Sec. 363. Terrorist funding through money laundering. TITLE IV PROTECTING THE BORDER Subtitle A Protecting the Northern Border Sec. 401. Ensuring adequate personnel on the northern border. EXT-18-2091-C-000579 007104-001330 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 4 Sec. 402. Northern border personnel. Sec. 403. Access by the Department of State and the INS to certain identifying information in the criminal history records of visa applicants and applicants for admission to the United States. Sec. 404. Limited authority to pay overtime. Sec. 405. Report on the integrated automated fingerprint identification system for points of entry and overseas consular posts. Subtitle B Enhanced Immigration Provisions Sec. 411. Definitions relating to terrorism. Sec. 412. Mandatory detention of suspected terrorists; habeas corpus; judicial review. Sec. 413. Multilateral cooperation against terrorists. TITLE V REMOVING OBSTACLES TO INVESTIGATING TERRORISM Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 501. 502. 503. 504. 505. 506. 507. 508. 509. Professional Standards for Government Attorneys Act of 2001. Attorney General's authority to pay rewards to combat terrorism. Secretary of State's authority to pay rewards. DNA identification of terrorists and other violent offenders. Coordination with law enforcement. Miscellaneous national security authorities. Extension of Secret Service jurisdiction. Disclosure of educational records. Disclosure of information from NCES surveys. TITLE VI PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES Subtitle A Aid to Families of Public Safety Officers Sec. 611. Expedited payment for public safety officers involved in the preven tion, investigation, rescue, or recovery efforts related to a ter rorist attack. Sec. 612. Technical correction with respect to expedited payments for heroic public safety officers. Sec. 613. Public Safety Officers Benefit Program payment increase. Sec. 614. Office of justice programs. Subtitle B Sec. Sec. Sec. Sec. 621. 622. 623. 624. Amendments to the Victims of Crime Act of 1984 Crime Victims Fund. Crime victim compensation. Crime victim assistance. Victims of terrorism. TITLE VII INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION Sec. 711. Expansion of regional information sharing system to facilitate Fed eral State local law enforcement response related to terrorist attacks. TITLE VIII STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM EXT-18-2091-C-000580 007104-001331 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 4 Sec. 402. Northern border personnel. Sec. 403. Access by the Department of State and the INS to certain identifying information in the criminal history records of visa applicants and applicants for admission to the United States. Sec. 404. Limited authority to pay overtime. Sec. 405. Report on the integrated automated fingerprint identification system for points of entry and overseas consular posts. Subtitle B Enhanced Immigration Provisions Sec. 411. Definitions relating to terrorism. Sec. 412. Mandatory detention of suspected terrorists; habeas corpus; judicial review. Sec. 413. Multilateral cooperation against terrorists. TITLE V REMOVING OBSTACLES TO INVESTIGATING TERRORISM Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 501. 502. 503. 504. 505. 506. 507. 508. 509. Professional Standards for Government Attorneys Act of 2001. Attorney General's authority to pay rewards to combat terrorism. Secretary of State's authority to pay rewards. DNA identification of terrorists and other violent offenders. Coordination with law enforcement. Miscellaneous national security authorities. Extension of Secret Service jurisdiction. Disclosure of educational records. Disclosure of information from NCES surveys. TITLE VI PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES Subtitle A Aid to Families of Public Safety Officers Sec. 611. Expedited payment for public safety officers involved in the preven tion, investigation, rescue, or recovery efforts related to a ter rorist attack. Sec. 612. Technical correction with respect to expedited payments for heroic public safety officers. Sec. 613. Public Safety Officers Benefit Program payment increase. Sec. 614. Office of justice programs. Subtitle B Sec. Sec. Sec. Sec. 621. 622. 623. 624. Amendments to the Victims of Crime Act of 1984 Crime Victims Fund. Crime victim compensation. Crime victim assistance. Victims of terrorism. TITLE VII INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION Sec. 711. Expansion of regional information sharing system to facilitate Fed eral State local law enforcement response related to terrorist attacks. TITLE VIII STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM EXT-18-2091-C-000580 007104-001331 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 5 Sec. 801. Terrorist attacks and other acts of violence against mass transpor tation systems. Sec. 802. Expansion of the biological weapons statute. Sec. 803. Definition of domestic terrorism. Sec. 804. Prohibition against harboring terrorists. Sec. 805. Jurisdiction over crimes committed at U.S. facilities abroad. Sec. 806. Material support for terrorism. Sec. 807. Assets of terrorist organizations. Sec. 808. Technical clarification relating to provision of material support to ter rorism. Sec. 809. Definition of Federal crime of terrorism. Sec. 810. No statute of limitation for certain terrorism offenses. Sec. 811. Alternate maximum penalties for terrorism offenses. Sec. 812. Penalties for terrorist conspiracies. Sec. 813. Post release supervision of terrorists. Sec. 814. Inclusion of acts of terrorism as racketeering activity. Sec. 815. Deterrence and prevention of cyberterrorism. Sec. 816. Additional defense to civil actions relating to preserving records in re sponse to government requests. Sec. 817. Development and support of cybersecurity forensic capabilities. TITLE IX IMPROVED INTELLIGENCE Sec. 901. Responsibilities of Director of Central Intelligence regarding foreign intelligence collected under Foreign Intelligence Surveillance Act of 1978. Sec. 902. Inclusion of international terrorist activities within scope of foreign intelligence under National Security Act of 1947. Sec. 903. Sense of Congress on the establishment and maintenance of intel ligence relationships to acquire information on terrorists and terrorist organizations. Sec. 904. Temporary authority to defer submittal to Congress of reports on in telligence and intelligence related matters. Sec. 905. Disclosure to director of central intelligence of foreign intelligence re lated information with respect to criminal investigations. Sec. 906. Foreign terrorist asset tracking center. Sec. 907. National virtual translation center. Sec. 908. Training of government officials regarding identification and use of foreign intelligence. 1 SEC. 2. CONSTRUCTION; SEVERABILITY. 2 Any provision of this Act held to be invalid or unen 3 forceable by its terms, or as applied to any person or cir 4 cumstance, 5 imum 6 be shall be construed so as to give it the max effect permitted by law, unless such holding shall one of utter invalidity or unenforceability, in which 7 event such provision shall be deemed severable from this EXT-18-2091-C-000581 007104-001332 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 5 Sec. 801. Terrorist attacks and other acts of violence against mass transpor tation systems. Sec. 802. Expansion of the biological weapons statute. Sec. 803. Definition of domestic terrorism. Sec. 804. Prohibition against harboring terrorists. Sec. 805. Jurisdiction over crimes committed at U.S. facilities abroad. Sec. 806. Material support for terrorism. Sec. 807. Assets of terrorist organizations. Sec. 808. Technical clarification relating to provision of material support to ter rorism. Sec. 809. Definition of Federal crime of terrorism. Sec. 810. No statute of limitation for certain terrorism offenses. Sec. 811. Alternate maximum penalties for terrorism offenses. Sec. 812. Penalties for terrorist conspiracies. Sec. 813. Post release supervision of terrorists. Sec. 814. Inclusion of acts of terrorism as racketeering activity. Sec. 815. Deterrence and prevention of cyberterrorism. Sec. 816. Additional defense to civil actions relating to preserving records in re sponse to government requests. Sec. 817. Development and support of cybersecurity forensic capabilities. TITLE IX IMPROVED INTELLIGENCE Sec. 901. Responsibilities of Director of Central Intelligence regarding foreign intelligence collected under Foreign Intelligence Surveillance Act of 1978. Sec. 902. Inclusion of international terrorist activities within scope of foreign intelligence under National Security Act of 1947. Sec. 903. Sense of Congress on the establishment and maintenance of intel ligence relationships to acquire information on terrorists and terrorist organizations. Sec. 904. Temporary authority to defer submittal to Congress of reports on in telligence and intelligence related matters. Sec. 905. Disclosure to director of central intelligence of foreign intelligence re lated information with respect to criminal investigations. Sec. 906. Foreign terrorist asset tracking center. Sec. 907. National virtual translation center. Sec. 908. Training of government officials regarding identification and use of foreign intelligence. 1 SEC. 2. CONSTRUCTION; SEVERABILITY. 2 Any provision of this Act held to be invalid or unen 3 forceable by its terms, or as applied to any person or cir 4 cumstance, 5 imum 6 be shall be construed so as to give it the max effect permitted by law, unless such holding shall one of utter invalidity or unenforceability, in which 7 event such provision shall be deemed severable from this EXT-18-2091-C-000581 007104-001332 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 6 1 Act and shall not affect the remainder thereof or the appli 2 cation of such provision to other persons not similarly situ 3 ated or to other, dissimilar circumstances. 4 TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM 5 6 SEC. 101. COUNTERTERRORISM FUND. 7 (a) E STABLISHMENT; AVAILABILITY. 8 by established in 9 rate the Treasury of the United States a sepa fund to be known as the ''Counterterrorism Fund'', 10 amounts 11 year There is here in which shall remain available without fiscal limitation 12 (1) to reimburse any Department of Justice 13 component for any costs incurred in connection 14 with 15 (A) reestablishing the operational capa 16 bility of an office or facility that has been dam 17 aged or destroyed as the result of any domestic 18 or international terrorism incident; 19 (B) providing support to counter, inves 20 tigate, or prosecute domestic or international 21 terrorism, including, without limitation, paying 22 rewards in connection with these activities; and 23 (C) conducting terrorism threat assess 24 ments of Federal agencies and their facilities; 25 and EXT-18-2091-C-000582 007104-001333 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 6 1 Act and shall not affect the remainder thereof or the appli 2 cation of such provision to other persons not similarly situ 3 ated or to other, dissimilar circumstances. 4 TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM 5 6 SEC. 101. COUNTERTERRORISM FUND. 7 (a) E STABLISHMENT; AVAILABILITY. 8 by established in 9 rate the Treasury of the United States a sepa fund to be known as the ''Counterterrorism Fund'', 10 amounts 11 year There is here in which shall remain available without fiscal limitation 12 (1) to reimburse any Department of Justice 13 component for any costs incurred in connection 14 with 15 (A) reestablishing the operational capa 16 bility of an office or facility that has been dam 17 aged or destroyed as the result of any domestic 18 or international terrorism incident; 19 (B) providing support to counter, inves 20 tigate, or prosecute domestic or international 21 terrorism, including, without limitation, paying 22 rewards in connection with these activities; and 23 (C) conducting terrorism threat assess 24 ments of Federal agencies and their facilities; 25 and EXT-18-2091-C-000582 007104-001333 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 7 1 (2) to reimburse any department or agency of 2 the Federal Government for any costs incurred in 3 connection with detaining in foreign countries indi 4 viduals accused of acts of terrorism that violate the 5 laws of the United States. 6 (b) NO E FFECT ON PRIOR APPROPRIATIONS. Sub 7 section (a) shall not be construed to affect the amount 8 or 9 Counterterrorism Fund made before the date of enact 10 availability of any appropriation to the ment of this Act. 11 SEC. 102. SENSE OF CONGRESS CONDEMNING DISCRIMINA12 TION AGAINST ARAB AND MUSLIM AMERI- 13 CANS. 14 15 (a) FINDINGS. Congress makes the following find ings: 16 (1) Arab Americans, Muslim Americans, and 17 Americans from South Asia play a vital role in our 18 Nation and are entitled to nothing less than the full 19 rights of every American. 20 (2) The acts of violence that have been taken 21 against Arab and Muslim Americans since the Sep 22 tember 11, 2001, attacks against the United States 23 should be and are condemned by all Americans who 24 value freedom. EXT-18-2091-C-000583 007104-001334 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 7 1 (2) to reimburse any department or agency of 2 the Federal Government for any costs incurred in 3 connection with detaining in foreign countries indi 4 viduals accused of acts of terrorism that violate the 5 laws of the United States. 6 (b) NO E FFECT ON PRIOR APPROPRIATIONS. Sub 7 section (a) shall not be construed to affect the amount 8 or 9 Counterterrorism Fund made before the date of enact 10 availability of any appropriation to the ment of this Act. 11 SEC. 102. SENSE OF CONGRESS CONDEMNING DISCRIMINA12 TION AGAINST ARAB AND MUSLIM AMERI- 13 CANS. 14 15 (a) FINDINGS. Congress makes the following find ings: 16 (1) Arab Americans, Muslim Americans, and 17 Americans from South Asia play a vital role in our 18 Nation and are entitled to nothing less than the full 19 rights of every American. 20 (2) The acts of violence that have been taken 21 against Arab and Muslim Americans since the Sep 22 tember 11, 2001, attacks against the United States 23 should be and are condemned by all Americans who 24 value freedom. EXT-18-2091-C-000583 007104-001334 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 8 1 (3) The concept of individual responsibility for 2 wrongdoing is sacrosanct in American society, and 3 applies equally to all religious, racial, and ethnic 4 groups. (4) When American citizens commit acts of vio 5 6 lence against those who are, or are perceived to be, 7 of Arab or Muslim descent, they should be punished 8 to the full extent of the law. (5) Muslim Americans have become so fearful 9 10 of harassment that many Muslim women are chang 11 ing the way they dress to avoid becoming targets. (6) Many Arab Americans and Muslim Ameri 12 13 cans have acted heroically during the attacks on the 14 United 15 Hamdani, a 23 year old New Yorker of Pakistani 16 descent, who is believed to have gone to the World 17 Trade Center to offer rescue assistance and is now 18 missing. 19 (b) SENSE 20 gress 21 that States, OF including CONGRESS. Mohammed Salman It is the sense of Con (1) the civil rights and civil liberties of all 22 Americans, including Arab Americans, Muslim 23 Americans, and Americans from South Asia, must 24 be protected, and that every effort must be taken to 25 preserve their safety; EXT-18-2091-C-000584 007104-001335 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 8 1 (3) The concept of individual responsibility for 2 wrongdoing is sacrosanct in American society, and 3 applies equally to all religious, racial, and ethnic 4 groups. (4) When American citizens commit acts of vio 5 6 lence against those who are, or are perceived to be, 7 of Arab or Muslim descent, they should be punished 8 to the full extent of the law. (5) Muslim Americans have become so fearful 9 10 of harassment that many Muslim women are chang 11 ing the way they dress to avoid becoming targets. (6) Many Arab Americans and Muslim Ameri 12 13 cans have acted heroically during the attacks on the 14 United 15 Hamdani, a 23 year old New Yorker of Pakistani 16 descent, who is believed to have gone to the World 17 Trade Center to offer rescue assistance and is now 18 missing. 19 (b) SENSE 20 gress 21 that States, OF including CONGRESS. Mohammed Salman It is the sense of Con (1) the civil rights and civil liberties of all 22 Americans, including Arab Americans, Muslim 23 Americans, and Americans from South Asia, must 24 be protected, and that every effort must be taken to 25 preserve their safety; EXT-18-2091-C-000584 007104-001335 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 9 (2) any acts of violence or discrimination 1 2 against any Americans be condemned; and 3 (3) the Nation is called upon to recognize the 4 patriotism of fellow citizens from all ethnic, racial, 5 and religious backgrounds. 6 SEC. 103. INCREASED FUNDING FOR THE TECHNICAL SUP7 PORT CENTER AT THE FEDERAL BUREAU OF 8 INVESTIGATION. 9 There are authorized to be appropriated for the Tech 10 nical Support Center established in section 811 of the 11 Antiterrorism and Effective Death Penalty Act of 1996 12 (Public Law 104 132) to help meet the demands for ac 13 tivities to combat terrorism and support and enhance the 14 technical support and tactical operations of the FBI, 15 $200,000,000 for each of the fiscal years 2002, 2003, and 16 2004. 17 SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO EN18 FORCE 19 GENCIES. 20 21 22 23 24 PROHIBITION IN CERTAIN EMER- Section 2332e of title 18, United States Code, is amended (1) by striking ''2332c'' and inserting ''2332a''; and (2) by striking ''chemical''. EXT-18-2091-C-000585 007104-001336 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 9 (2) any acts of violence or discrimination 1 2 against any Americans be condemned; and 3 (3) the Nation is called upon to recognize the 4 patriotism of fellow citizens from all ethnic, racial, 5 and religious backgrounds. 6 SEC. 103. INCREASED FUNDING FOR THE TECHNICAL SUP7 PORT CENTER AT THE FEDERAL BUREAU OF 8 INVESTIGATION. 9 There are authorized to be appropriated for the Tech 10 nical Support Center established in section 811 of the 11 Antiterrorism and Effective Death Penalty Act of 1996 12 (Public Law 104 132) to help meet the demands for ac 13 tivities to combat terrorism and support and enhance the 14 technical support and tactical operations of the FBI, 15 $200,000,000 for each of the fiscal years 2002, 2003, and 16 2004. 17 SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO EN18 FORCE 19 GENCIES. 20 21 22 23 24 PROHIBITION IN CERTAIN EMER- Section 2332e of title 18, United States Code, is amended (1) by striking ''2332c'' and inserting ''2332a''; and (2) by striking ''chemical''. EXT-18-2091-C-000585 007104-001336 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 10 1 SEC. 105. EXPANSION OF NATIONAL ELECTRONIC CRIME 2 TASK FORCE INITIATIVE. The Director of the United States Secret Service 3 4 shall take appropriate actions to develop a national net 5 work of electronic crime task forces, based on the New 6 York Electronic Crimes Task Force model, throughout the 7 United 8 and States, for the purpose of preventing, detecting, investigating various forms of electronic crimes, in 9 cluding potential terrorist attacks against critical infra 10 structure and financial payment systems. 11 SEC. 106. PRESIDENTIAL AUTHORITY. 12 13 Act 14 Section 203 of the International Emergency Powers (50 U.S.C. 1702) is amended (1) in subsection (a)(1) 15 (A) at the end of subparagraph (A) (flush 16 to that subparagraph), by striking ''; and'' and 17 inserting a comma and the following: 18 ''by any person, or with respect to any property, 19 subject to the jurisdiction of the United States;''; 20 21 (B) in subparagraph (B) (i) by inserting '', block during the 22 pendency of an investigation'' after ''inves 23 tigate''; and 24 25 (ii) by striking ''interest;'' and insert ing ''interest by any person, or with re EXT-18-2091-C-000586 007104-001337 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 10 1 SEC. 105. EXPANSION OF NATIONAL ELECTRONIC CRIME 2 TASK FORCE INITIATIVE. The Director of the United States Secret Service 3 4 shall take appropriate actions to develop a national net 5 work of electronic crime task forces, based on the New 6 York Electronic Crimes Task Force model, throughout the 7 United 8 and States, for the purpose of preventing, detecting, investigating various forms of electronic crimes, in 9 cluding potential terrorist attacks against critical infra 10 structure and financial payment systems. 11 SEC. 106. PRESIDENTIAL AUTHORITY. 12 13 Act 14 Section 203 of the International Emergency Powers (50 U.S.C. 1702) is amended (1) in subsection (a)(1) 15 (A) at the end of subparagraph (A) (flush 16 to that subparagraph), by striking ''; and'' and 17 inserting a comma and the following: 18 ''by any person, or with respect to any property, 19 subject to the jurisdiction of the United States;''; 20 21 (B) in subparagraph (B) (i) by inserting '', block during the 22 pendency of an investigation'' after ''inves 23 tigate''; and 24 25 (ii) by striking ''interest;'' and insert ing ''interest by any person, or with re EXT-18-2091-C-000586 007104-001337 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 11 1 spect to any property, subject to the juris 2 diction of the United States; and''; and 3 (C) by inserting at the end the following: 4 ''(C) when the United States is engaged in 5 armed hostilities or has been attacked by a for 6 eign country or foreign nationals, confiscate any 7 property, subject to the jurisdiction of the 8 United States, of any foreign person, foreign 9 organization, or foreign country that he deter 10 mines has planned, authorized, aided, or en 11 gaged in such hostilities or attacks against the 12 United States; and all right, title, and interest 13 in any property so confiscated shall vest, when, 14 as, and upon the terms directed by the Presi 15 dent, in such agency or person as the President 16 may designate from time to time, and upon 17 such terms and conditions as the President may 18 prescribe, such interest or property shall be 19 held, used, administered, liquidated, sold, or 20 otherwise dealt with in the interest of and for 21 the benefit of the United States, and such des 22 ignated agency or person may perform any and 23 all acts incident to the accomplishment or fur 24 therance of these purposes.''; and 25 (2) by inserting at the end the following: EXT-18-2091-C-000587 007104-001338 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 11 1 spect to any property, subject to the juris 2 diction of the United States; and''; and 3 (C) by inserting at the end the following: 4 ''(C) when the United States is engaged in 5 armed hostilities or has been attacked by a for 6 eign country or foreign nationals, confiscate any 7 property, subject to the jurisdiction of the 8 United States, of any foreign person, foreign 9 organization, or foreign country that he deter 10 mines has planned, authorized, aided, or en 11 gaged in such hostilities or attacks against the 12 United States; and all right, title, and interest 13 in any property so confiscated shall vest, when, 14 as, and upon the terms directed by the Presi 15 dent, in such agency or person as the President 16 may designate from time to time, and upon 17 such terms and conditions as the President may 18 prescribe, such interest or property shall be 19 held, used, administered, liquidated, sold, or 20 otherwise dealt with in the interest of and for 21 the benefit of the United States, and such des 22 ignated agency or person may perform any and 23 all acts incident to the accomplishment or fur 24 therance of these purposes.''; and 25 (2) by inserting at the end the following: EXT-18-2091-C-000587 007104-001338 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 12 1 ''(c) CLASSIFIED INFORMATION. In any judicial re 2 view of a determination made under this section, if the 3 determination was based on classified information (as de 4 fined in section 1(a) of the Classified Information Proce 5 dures Act) such information may be submitted to the re 6 viewing court ex parte and in camera. This subsection does 7 not confer or imply any right to judicial review.''. 8 9 TITLE II--ENHANCED SURVEILLANCE PROCEDURES 10 SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND 11 ELECTRONIC COMMUNICATIONS RELATING 12 TO TERRORISM. 13 14 15 Section 2516(1) of title 18, United States Code, is amended (1) by redesignating paragraph (p), as so redes 16 ignated by section 434(2) of the Antiterrorism and 17 Effective Death Penalty Act of 1996 (Public Law 18 104 132; 110 Stat. 1274), as paragraph (r); and 19 (2) by inserting after paragraph (p), as so re 20 designated by section 201(3) of the Illegal Immigra 21 tion Reform and Immigrant Responsibility Act of 22 1996 (division C of Public Law 104 208; 110 Stat. 23 3009 565), the following new paragraph: 24 ''(q) any criminal violation of section 229 (relating 25 to chemical weapons); or sections 2332, 2332a, 2332b, EXT-18-2091-C-000588 007104-001339 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 12 1 ''(c) CLASSIFIED INFORMATION. In any judicial re 2 view of a determination made under this section, if the 3 determination was based on classified information (as de 4 fined in section 1(a) of the Classified Information Proce 5 dures Act) such information may be submitted to the re 6 viewing court ex parte and in camera. This subsection does 7 not confer or imply any right to judicial review.''. 8 9 TITLE II--ENHANCED SURVEILLANCE PROCEDURES 10 SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND 11 ELECTRONIC COMMUNICATIONS RELATING 12 TO TERRORISM. 13 14 15 Section 2516(1) of title 18, United States Code, is amended (1) by redesignating paragraph (p), as so redes 16 ignated by section 434(2) of the Antiterrorism and 17 Effective Death Penalty Act of 1996 (Public Law 18 104 132; 110 Stat. 1274), as paragraph (r); and 19 (2) by inserting after paragraph (p), as so re 20 designated by section 201(3) of the Illegal Immigra 21 tion Reform and Immigrant Responsibility Act of 22 1996 (division C of Public Law 104 208; 110 Stat. 23 3009 565), the following new paragraph: 24 ''(q) any criminal violation of section 229 (relating 25 to chemical weapons); or sections 2332, 2332a, 2332b, EXT-18-2091-C-000588 007104-001339 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 13 1 2332d, 2339A, or 2339B of this title (relating to ter 2 rorism); or''. 3 SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND 4 ELECTRONIC COMMUNICATIONS RELATING 5 TO 6 FENSES. COMPUTER FRAUD AND ABUSE OF- 7 Section 2516(1)(c) of title 18, United States Code, 8 is amended by striking ''and section 1341 (relating to mail 9 fraud),'' and inserting ''section 1341 (relating to mail 10 fraud), a felony violation of section 1030 (relating to com 11 puter fraud and abuse),''. 12 SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE 13 14 INFORMATION. (a) AUTHORITY 15 TION. 16 17 18 19 20 21 TO SHARE GRAND JURY INFORMA (1) IN GENERAL. Rule 6(e)(3)(C) of the Fed eral Rules of Criminal Procedure is amended (A) in clause (iii), by striking ''or'' at the end; (B) in clause (iv), by striking the period at the end and inserting ''; or''; and 22 (C) by inserting at the end the following: 23 ''(v) when the matters involve foreign 24 intelligence or counterintelligence (as de 25 fined in section 3 of the National Security EXT-18-2091-C-000589 007104-001340 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 13 1 2332d, 2339A, or 2339B of this title (relating to ter 2 rorism); or''. 3 SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND 4 ELECTRONIC COMMUNICATIONS RELATING 5 TO 6 FENSES. COMPUTER FRAUD AND ABUSE OF- 7 Section 2516(1)(c) of title 18, United States Code, 8 is amended by striking ''and section 1341 (relating to mail 9 fraud),'' and inserting ''section 1341 (relating to mail 10 fraud), a felony violation of section 1030 (relating to com 11 puter fraud and abuse),''. 12 SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE 13 14 INFORMATION. (a) AUTHORITY 15 TION. 16 17 18 19 20 21 TO SHARE GRAND JURY INFORMA (1) IN GENERAL. Rule 6(e)(3)(C) of the Fed eral Rules of Criminal Procedure is amended (A) in clause (iii), by striking ''or'' at the end; (B) in clause (iv), by striking the period at the end and inserting ''; or''; and 22 (C) by inserting at the end the following: 23 ''(v) when the matters involve foreign 24 intelligence or counterintelligence (as de 25 fined in section 3 of the National Security EXT-18-2091-C-000589 007104-001340 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 14 1 Act of 1947 (50 U.S.C. 401a)), or foreign 2 intelligence information (as defined in Rule 3 6(e)(3)(C)(ii)) to any other Federal law en 4 forcement, intelligence, protective, immi 5 gration, national defense, or national secu 6 rity official in order to assist the official 7 receiving that information in the perform 8 ance of his official duties. 9 Any Federal official who receives information 10 pursuant to clause (v) may use that information 11 only as necessary in the conduct of that per 12 son's official duties subject to any limitations 13 on the unauthorized disclosure of such informa 14 tion.''. 15 (2) DEFINITION. Rule 6(e)(3)(C) of the Fed 16 eral Rules of Criminal Procedure, as amended by 17 paragraph (1), is amended by 18 (A) inserting ''(i)'' after ''(C)''; 19 (B) redesignating clauses (i) through (v) 20 as subclauses (I) through (IV), respectively; and 21 (C) inserting at the end the following: 22 ''(ii) In this subparagraph, the term 'for 23 24 25 eign intelligence information' means ''(I) information, whether or not con cerning a United States person, that re EXT-18-2091-C-000590 007104-001341 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 14 1 Act of 1947 (50 U.S.C. 401a)), or foreign 2 intelligence information (as defined in Rule 3 6(e)(3)(C)(ii)) to any other Federal law en 4 forcement, intelligence, protective, immi 5 gration, national defense, or national secu 6 rity official in order to assist the official 7 receiving that information in the perform 8 ance of his official duties. 9 Any Federal official who receives information 10 pursuant to clause (v) may use that information 11 only as necessary in the conduct of that per 12 son's official duties subject to any limitations 13 on the unauthorized disclosure of such informa 14 tion.''. 15 (2) DEFINITION. Rule 6(e)(3)(C) of the Fed 16 eral Rules of Criminal Procedure, as amended by 17 paragraph (1), is amended by 18 (A) inserting ''(i)'' after ''(C)''; 19 (B) redesignating clauses (i) through (v) 20 as subclauses (I) through (IV), respectively; and 21 (C) inserting at the end the following: 22 ''(ii) In this subparagraph, the term 'for 23 24 25 eign intelligence information' means ''(I) information, whether or not con cerning a United States person, that re EXT-18-2091-C-000590 007104-001341 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 15 1 lates to the ability of the United States to 2 protect against 3 ''(aa) actual or potential attack 4 or other grave hostile acts of a foreign 5 power or an agent of a foreign power; 6 ''(bb) sabotage or international 7 terrorism by a foreign power or an 8 agent of a foreign power; or ''(cc) clandestine intelligence ac 9 10 tivities by an intelligence service or 11 network of a foreign power or by an 12 agent of a foreign power; or 13 ''(II) information, whether or not con 14 cerning a United States person, with re 15 spect to a foreign power or foreign terri 16 tory that relates to ''(aa) the national defense or the 17 security of the United States; or 18 ''(bb) the conduct of the foreign 19 affairs of the United States.''. 20 21 22 23 (b) AUTHORITY TO SHARE ELECTRONIC, WIRE, ORAL INTERCEPTION INFORMATION. (1) LAW ENFORCEMENT. AND Section 2517 of title 24 18, United States Code, is amended by inserting at 25 the end the following: EXT-18-2091-C-000591 007104-001342 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 15 1 lates to the ability of the United States to 2 protect against 3 ''(aa) actual or potential attack 4 or other grave hostile acts of a foreign 5 power or an agent of a foreign power; 6 ''(bb) sabotage or international 7 terrorism by a foreign power or an 8 agent of a foreign power; or ''(cc) clandestine intelligence ac 9 10 tivities by an intelligence service or 11 network of a foreign power or by an 12 agent of a foreign power; or 13 ''(II) information, whether or not con 14 cerning a United States person, with re 15 spect to a foreign power or foreign terri 16 tory that relates to ''(aa) the national defense or the 17 security of the United States; or 18 ''(bb) the conduct of the foreign 19 affairs of the United States.''. 20 21 22 23 (b) AUTHORITY TO SHARE ELECTRONIC, WIRE, ORAL INTERCEPTION INFORMATION. (1) LAW ENFORCEMENT. AND Section 2517 of title 24 18, United States Code, is amended by inserting at 25 the end the following: EXT-18-2091-C-000591 007104-001342 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 16 ''(6) Any investigative or law enforcement officer, or 1 2 attorney 3 ized for the Government, who by any means author by this chapter, has obtained knowledge of the con 4 tents of any wire, oral, or electronic communication, or 5 evidence derived therefrom, may disclose such contents to 6 any other Federal law enforcement, intelligence, protec 7 tive, immigration, national defense, or national security of 8 ficial to the extent that such contents include foreign intel 9 ligence 10 the or counterintelligence (as defined in section 3 of National Security Act of 1947 (50 U.S.C. 401a)), or 11 foreign intelligence information (as defined in subsection 12 (19) of section 2510 of this title), to assist the official 13 who is to receive that information in the performance of 14 his official duties. Any Federal official who receives infor 15 mation pursuant to this provision may use that informa 16 tion only as necessary in the conduct of that person's offi 17 cial duties subject to any limitations on the unauthorized 18 disclosure 19 20 21 22 23 24 25 of such information.''. (2) DEFINITION. Section 2510 of title 18, United States Code, is amended by (A) in paragraph (17), by striking ''and'' after the semicolon; (B) in paragraph (18), by striking the pe riod and inserting ''; and''; and (C) by inserting at the end the following: EXT-18-2091-C-000592 007104-001343 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 16 ''(6) Any investigative or law enforcement officer, or 1 2 attorney 3 ized for the Government, who by any means author by this chapter, has obtained knowledge of the con 4 tents of any wire, oral, or electronic communication, or 5 evidence derived therefrom, may disclose such contents to 6 any other Federal law enforcement, intelligence, protec 7 tive, immigration, national defense, or national security of 8 ficial to the extent that such contents include foreign intel 9 ligence 10 the or counterintelligence (as defined in section 3 of National Security Act of 1947 (50 U.S.C. 401a)), or 11 foreign intelligence information (as defined in subsection 12 (19) of section 2510 of this title), to assist the official 13 who is to receive that information in the performance of 14 his official duties. Any Federal official who receives infor 15 mation pursuant to this provision may use that informa 16 tion only as necessary in the conduct of that person's offi 17 cial duties subject to any limitations on the unauthorized 18 disclosure 19 20 21 22 23 24 25 of such information.''. (2) DEFINITION. Section 2510 of title 18, United States Code, is amended by (A) in paragraph (17), by striking ''and'' after the semicolon; (B) in paragraph (18), by striking the pe riod and inserting ''; and''; and (C) by inserting at the end the following: EXT-18-2091-C-000592 007104-001343 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 17 ''(19) 'foreign intelligence information' means 1 ''(A) information, whether or not con 2 3 cerning a United States person, that relates to 4 the ability of the United States to protect 5 against 6 ''(i) actual or potential attack or other 7 grave hostile acts of a foreign power or an 8 agent of a foreign power; ''(ii) sabotage or international ter 9 10 rorism by a foreign power or an agent of 11 a foreign power; or 12 ''(iii) clandestine intelligence activities 13 by an intelligence service or network of a 14 foreign power or by an agent of a foreign 15 power; or 16 ''(B) information, whether or not con 17 cerning a United States person, with respect to 18 a foreign power or foreign territory that relates 19 to ''(i) the national defense or the secu 20 rity of the United States; or 21 ''(ii) the conduct of the foreign affairs 22 of the United States.''. 23 24 (c) PROCEDURES. 25 tablish The Attorney General shall es procedures for the disclosure of information pursu EXT-18-2091-C-000593 007104-001344 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 17 ''(19) 'foreign intelligence information' means 1 ''(A) information, whether or not con 2 3 cerning a United States person, that relates to 4 the ability of the United States to protect 5 against 6 ''(i) actual or potential attack or other 7 grave hostile acts of a foreign power or an 8 agent of a foreign power; ''(ii) sabotage or international ter 9 10 rorism by a foreign power or an agent of 11 a foreign power; or 12 ''(iii) clandestine intelligence activities 13 by an intelligence service or network of a 14 foreign power or by an agent of a foreign 15 power; or 16 ''(B) information, whether or not con 17 cerning a United States person, with respect to 18 a foreign power or foreign territory that relates 19 to ''(i) the national defense or the secu 20 rity of the United States; or 21 ''(ii) the conduct of the foreign affairs 22 of the United States.''. 23 24 (c) PROCEDURES. 25 tablish The Attorney General shall es procedures for the disclosure of information pursu EXT-18-2091-C-000593 007104-001344 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 18 1 ant to section 2517(6) and Rule 6(e)(3)(C)(v) of the Fed 2 eral Rules of Criminal Procedure that identifies a United 3 States person, as defined in section 101 of the Foreign 4 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)). 5 6 (d) FOREIGN INTELLIGENCE INFORMATION. (1) IN GENERAL. Notwithstanding any other 7 provision of law, it shall be lawful for foreign intel 8 ligence or counterintelligence (as defined section 3 of 9 the National Security Act of 1947 (50 U.S.C. 10 401a)) or foreign intelligence information obtained 11 as part of a criminal investigation to be disclosed to 12 any Federal law enforcement, intelligence, protective, 13 immigration, national defense, or national security 14 official in order to assist the official receiving that 15 information in the performance of his official duties. 16 Any Federal official who receives information pursu 17 ant to this provision may use that information only 18 as necessary in the conduct of that person's official 19 duties subject to any limitations on the unauthorized 20 disclosure of such information. 21 22 23 (2) DEFINITION. In this subsection, the term ''foreign intelligence information'' means (A) information, whether or not concerning 24 a United States person, that relates to the abil 25 ity of the United States to protect against EXT-18-2091-C-000594 007104-001345 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 18 1 ant to section 2517(6) and Rule 6(e)(3)(C)(v) of the Fed 2 eral Rules of Criminal Procedure that identifies a United 3 States person, as defined in section 101 of the Foreign 4 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)). 5 6 (d) FOREIGN INTELLIGENCE INFORMATION. (1) IN GENERAL. Notwithstanding any other 7 provision of law, it shall be lawful for foreign intel 8 ligence or counterintelligence (as defined section 3 of 9 the National Security Act of 1947 (50 U.S.C. 10 401a)) or foreign intelligence information obtained 11 as part of a criminal investigation to be disclosed to 12 any Federal law enforcement, intelligence, protective, 13 immigration, national defense, or national security 14 official in order to assist the official receiving that 15 information in the performance of his official duties. 16 Any Federal official who receives information pursu 17 ant to this provision may use that information only 18 as necessary in the conduct of that person's official 19 duties subject to any limitations on the unauthorized 20 disclosure of such information. 21 22 23 (2) DEFINITION. In this subsection, the term ''foreign intelligence information'' means (A) information, whether or not concerning 24 a United States person, that relates to the abil 25 ity of the United States to protect against EXT-18-2091-C-000594 007104-001345 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 19 1 (i) actual or potential attack or other 2 grave hostile acts of a foreign power or an 3 agent of a foreign power; (ii) sabotage or international ter 4 5 rorism by a foreign power or an agent of 6 a foreign power; or 7 (iii) clandestine intelligence activities 8 by an intelligence service or network of a 9 foreign power or by an agent of a foreign 10 power; or 11 (B) information, whether or not concerning 12 a United States person, with respect to a for 13 eign power or foreign territory that relates to (i) the national defense or the security 14 of the United States; or 15 (ii) the conduct of the foreign affairs 16 of the United States. 17 18 SEC. 204. CLARIFICATION OF INTELLIGENCE EXCEPTIONS 19 FROM LIMITATIONS ON INTERCEPTION AND 20 DISCLOSURE OF WIRE, ORAL, AND ELEC- 21 TRONIC COMMUNICATIONS. 22 23 Section 2511(2)(f) of title 18, United States Code, is amended EXT-18-2091-C-000595 007104-001346 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 19 1 (i) actual or potential attack or other 2 grave hostile acts of a foreign power or an 3 agent of a foreign power; (ii) sabotage or international ter 4 5 rorism by a foreign power or an agent of 6 a foreign power; or 7 (iii) clandestine intelligence activities 8 by an intelligence service or network of a 9 foreign power or by an agent of a foreign 10 power; or 11 (B) information, whether or not concerning 12 a United States person, with respect to a for 13 eign power or foreign territory that relates to (i) the national defense or the security 14 of the United States; or 15 (ii) the conduct of the foreign affairs 16 of the United States. 17 18 SEC. 204. CLARIFICATION OF INTELLIGENCE EXCEPTIONS 19 FROM LIMITATIONS ON INTERCEPTION AND 20 DISCLOSURE OF WIRE, ORAL, AND ELEC- 21 TRONIC COMMUNICATIONS. 22 23 Section 2511(2)(f) of title 18, United States Code, is amended EXT-18-2091-C-000595 007104-001346 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 20 1 (1) by striking ''this chapter or chapter 121'' 2 and inserting ''this chapter or chapter 121 or 206 3 of this title''; and (2) by striking ''wire and oral'' and inserting 4 5 ''wire, oral, and electronic''. 6 SEC. 205. EMPLOYMENT OF TRANSLATORS BY THE FED7 8 9 ERAL BUREAU OF INVESTIGATION. (a) AUTHORITY. The Director of the Federal Bu reau of Investigation is authorized to expedite the employ 10 ment 11 counterterrorism investigations and operations without re 12 gard to applicable Federal personnel requirements and 13 limitations. 14 of personnel as translators (b) SECURITY REQUIREMENTS. to support The Director of the 15 Federal Bureau of Investigation shall establish such secu 16 rity requirements as are necessary for the personnel em 17 ployed as translators under subsection (a). 18 (c) REPORT. The Attorney General shall report to 19 the Committees on the Judiciary of the House of Rep 20 resentatives and the Senate on 21 (1) the number of translators employed by the 22 FBI and other components of the Department of 23 Justice; 24 (2) any legal or practical impediments to using 25 translators employed by other Federal, State, or EXT-18-2091-C-000596 007104-001347 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 20 1 (1) by striking ''this chapter or chapter 121'' 2 and inserting ''this chapter or chapter 121 or 206 3 of this title''; and (2) by striking ''wire and oral'' and inserting 4 5 ''wire, oral, and electronic''. 6 SEC. 205. EMPLOYMENT OF TRANSLATORS BY THE FED7 8 9 ERAL BUREAU OF INVESTIGATION. (a) AUTHORITY. The Director of the Federal Bu reau of Investigation is authorized to expedite the employ 10 ment 11 counterterrorism investigations and operations without re 12 gard to applicable Federal personnel requirements and 13 limitations. 14 of personnel as translators (b) SECURITY REQUIREMENTS. to support The Director of the 15 Federal Bureau of Investigation shall establish such secu 16 rity requirements as are necessary for the personnel em 17 ployed as translators under subsection (a). 18 (c) REPORT. The Attorney General shall report to 19 the Committees on the Judiciary of the House of Rep 20 resentatives and the Senate on 21 (1) the number of translators employed by the 22 FBI and other components of the Department of 23 Justice; 24 (2) any legal or practical impediments to using 25 translators employed by other Federal, State, or EXT-18-2091-C-000596 007104-001347 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 21 1 local agencies, on a full, part time, or shared basis; 2 and 3 (3) the needs of the FBI for specific translation 4 services in certain languages, and recommendations 5 for meeting those needs. 6 SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE 7 FOREIGN INTELLIGENCE SURVEILLANCE ACT 8 OF 1978. 9 Section 105(c)(2)(B) of the Foreign Intelligence Sur 10 veillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amend 11 ed by inserting '', or in circumstances where the Court 12 finds that the actions of the target of the application may 13 have the effect of thwarting the identification of a speci 14 fied person, such other persons,'' after ''specified person''. 15 SEC. 207. DURATION OF FISA SURVEILLANCE OF NON16 UNITED STATES PERSONS WHO ARE AGENTS 17 OF A FOREIGN POWER. 18 19 (a) DURATION . (1) SURVEILLANCE. Section 105(d)(1) of the 20 Foreign Intelligence Surveillance Act of 1978 (50 21 U.S.C. 1805(d)(1)) is amended by 22 23 24 25 (A) inserting ''(A)'' after ''except that''; and (B) inserting before the period the fol lowing: '', and (B) an order under this Act for EXT-18-2091-C-000597 007104-001348 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 21 1 local agencies, on a full, part time, or shared basis; 2 and 3 (3) the needs of the FBI for specific translation 4 services in certain languages, and recommendations 5 for meeting those needs. 6 SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE 7 FOREIGN INTELLIGENCE SURVEILLANCE ACT 8 OF 1978. 9 Section 105(c)(2)(B) of the Foreign Intelligence Sur 10 veillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amend 11 ed by inserting '', or in circumstances where the Court 12 finds that the actions of the target of the application may 13 have the effect of thwarting the identification of a speci 14 fied person, such other persons,'' after ''specified person''. 15 SEC. 207. DURATION OF FISA SURVEILLANCE OF NON16 UNITED STATES PERSONS WHO ARE AGENTS 17 OF A FOREIGN POWER. 18 19 (a) DURATION . (1) SURVEILLANCE. Section 105(d)(1) of the 20 Foreign Intelligence Surveillance Act of 1978 (50 21 U.S.C. 1805(d)(1)) is amended by 22 23 24 25 (A) inserting ''(A)'' after ''except that''; and (B) inserting before the period the fol lowing: '', and (B) an order under this Act for EXT-18-2091-C-000597 007104-001348 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 22 1 a surveillance targeted against an agent of a 2 foreign power, as defined in section 101(b)(A) 3 may be for the period specified in the applica 4 tion or for 120 days, whichever is less''. 5 (2) PHYSICAL SEARCH. 6 Foreign Section 304(d)(1) of the Intelligence Surveillance Act of 1978 (50 U.S.C. 7 1824(d)(1)) is amended by 8 (A) striking ''forty five'' and inserting ''90''; 9 (B) inserting ''(A)'' after ''except that''; and 10 (C) inserting before the period the following: '', 11 and (B) an order under this section for a physical 12 search targeted against an agent of a foreign power 13 as defined in section 101(b)(A) may be for the pe 14 riod specified in the application or for 120 days, 15 whichever is less''. 16 (b) EXTENSION. 17 (1) IN GENERAL. Section 105(d)(2) of the 18 Foreign Intelligence Surveillance Act of 1978 (50 19 U.S.C. 1805(d)(2)) is amended by 20 21 22 (A) inserting ''(A)'' after ''except that''; and (B) inserting before the period the fol 23 lowing: '', and (B) an extension of an order 24 under this Act for a surveillance targeted 25 against an agent of a foreign power as defined EXT-18-2091-C-000598 007104-001349 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 22 1 a surveillance targeted against an agent of a 2 foreign power, as defined in section 101(b)(A) 3 may be for the period specified in the applica 4 tion or for 120 days, whichever is less''. 5 (2) PHYSICAL SEARCH. 6 Foreign Section 304(d)(1) of the Intelligence Surveillance Act of 1978 (50 U.S.C. 7 1824(d)(1)) is amended by 8 (A) striking ''forty five'' and inserting ''90''; 9 (B) inserting ''(A)'' after ''except that''; and 10 (C) inserting before the period the following: '', 11 and (B) an order under this section for a physical 12 search targeted against an agent of a foreign power 13 as defined in section 101(b)(A) may be for the pe 14 riod specified in the application or for 120 days, 15 whichever is less''. 16 (b) EXTENSION. 17 (1) IN GENERAL. Section 105(d)(2) of the 18 Foreign Intelligence Surveillance Act of 1978 (50 19 U.S.C. 1805(d)(2)) is amended by 20 21 22 (A) inserting ''(A)'' after ''except that''; and (B) inserting before the period the fol 23 lowing: '', and (B) an extension of an order 24 under this Act for a surveillance targeted 25 against an agent of a foreign power as defined EXT-18-2091-C-000598 007104-001349 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 23 1 in section 101(b)(1)(A) may be for a period not 2 to exceed 1 year''. 3 (2) DEFINED TERM. Section 304(d)(2) of the 4 Foreign Intelligence Surveillance Act of 1978 (50 5 U.S.C. 1824(d)(2) is amended by inserting after 6 ''not a United States person,'' the following: ''or 7 against an agent of a foreign power as defined in 8 section 101(b)(1)(A)''. 9 SEC. 208. DESIGNATION OF JUDGES. 10 Section 103(a) of the Foreign Intelligence Surveil 11 lance Act of 1978 (50 U.S.C. 1803(a)) is amended by 12 (1) striking ''seven district court judges'' and 13 14 inserting ''11 district court judges''; and (2) inserting ''of whom no less than 3 shall re 15 side within 20 miles of the District of Columbia'' 16 after ''circuits''. 17 SEC. 209. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT 18 19 20 TO WARRANTS. Title 18, United States Code, is amended (1) in section 2510 21 (A) in paragraph (1), by striking beginning 22 with ''and such'' and all that follows through 23 ''communication''; and 24 25 (B) in paragraph (14), by inserting ''wire or'' after ''transmission of''; and EXT-18-2091-C-000599 007104-001350 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 23 1 in section 101(b)(1)(A) may be for a period not 2 to exceed 1 year''. 3 (2) DEFINED TERM. Section 304(d)(2) of the 4 Foreign Intelligence Surveillance Act of 1978 (50 5 U.S.C. 1824(d)(2) is amended by inserting after 6 ''not a United States person,'' the following: ''or 7 against an agent of a foreign power as defined in 8 section 101(b)(1)(A)''. 9 SEC. 208. DESIGNATION OF JUDGES. 10 Section 103(a) of the Foreign Intelligence Surveil 11 lance Act of 1978 (50 U.S.C. 1803(a)) is amended by 12 (1) striking ''seven district court judges'' and 13 14 inserting ''11 district court judges''; and (2) inserting ''of whom no less than 3 shall re 15 side within 20 miles of the District of Columbia'' 16 after ''circuits''. 17 SEC. 209. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT 18 19 20 TO WARRANTS. Title 18, United States Code, is amended (1) in section 2510 21 (A) in paragraph (1), by striking beginning 22 with ''and such'' and all that follows through 23 ''communication''; and 24 25 (B) in paragraph (14), by inserting ''wire or'' after ''transmission of''; and EXT-18-2091-C-000599 007104-001350 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 24 1 (2) in subsections (a) and (b) of section 2703 (A) by striking ''CONTENTS 2 3 TRONIC'' and inserting ''CONTENTS 4 ELECTRONIC'' OF ELEC OF WIRE OR each place it appears; 5 (B) by striking ''contents of an electronic'' 6 and inserting ''contents of a wire or electronic'' 7 each place it appears; and (C) by striking ''any electronic'' and in 8 9 10 serting ''any wire or electronic'' each place it appears. 11 SEC. 210. SCOPE OF SUBPOENAS FOR RECORDS OF ELEC12 13 14 15 TRONIC COMMUNICATIONS. Section 2703(c)(2) of title 18, United States Code, as redesignated by section 212, is amended (1) by striking ''entity the name, address, local 16 and long distance telephone toll billing records, tele 17 phone number or other subscriber number or iden 18 tity, and length of service of the subscriber'' and in 19 serting the following: ''entity the 20 ''(A) name; 21 ''(B) address; 22 ''(C) local and long distance telephone connec 23 tion records, or records of session times and dura 24 tions; EXT-18-2091-C-000600 007104-001351 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 24 1 (2) in subsections (a) and (b) of section 2703 (A) by striking ''CONTENTS 2 3 TRONIC'' and inserting ''CONTENTS 4 ELECTRONIC'' OF ELEC OF WIRE OR each place it appears; 5 (B) by striking ''contents of an electronic'' 6 and inserting ''contents of a wire or electronic'' 7 each place it appears; and (C) by striking ''any electronic'' and in 8 9 10 serting ''any wire or electronic'' each place it appears. 11 SEC. 210. SCOPE OF SUBPOENAS FOR RECORDS OF ELEC12 13 14 15 TRONIC COMMUNICATIONS. Section 2703(c)(2) of title 18, United States Code, as redesignated by section 212, is amended (1) by striking ''entity the name, address, local 16 and long distance telephone toll billing records, tele 17 phone number or other subscriber number or iden 18 tity, and length of service of the subscriber'' and in 19 serting the following: ''entity the 20 ''(A) name; 21 ''(B) address; 22 ''(C) local and long distance telephone connec 23 tion records, or records of session times and dura 24 tions; EXT-18-2091-C-000600 007104-001351 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 25 1 2 3 ''(D) length of service (including start date) and types of service utilized; ''(E) telephone or instrument number or other 4 subscriber number or identity, including any tempo 5 rarily assigned network address; and 6 7 8 9 10 ''(F) means and source of payment (including any credit card or bank account number), of a subscriber''; and (2) by striking ''and the types of services the subscriber or customer utilized,''. 11 SEC. 211. CLARIFICATION OF SCOPE. 12 13 14 Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended (1) in subsection (c)(2) 15 (A) in subparagraph (B), by striking ''or''; 16 (B) in subparagraph (C), by striking the 17 period at the end and inserting''; or''; and 18 (C) by inserting at the end the following: 19 ''(D) authorized under chapters 119, 121, or 20 206 of title 18, United States Code, except that such 21 disclosure shall not include records revealing cus 22 tomer cable television viewing activity.''; and 23 (2) in subsection (h) by striking ''A govern 24 mental entity'' and inserting ''Except as provided in 25 subsection (c)(2)(D), a governmental entity''. EXT-18-2091-C-000601 007104-001352 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 25 1 2 3 ''(D) length of service (including start date) and types of service utilized; ''(E) telephone or instrument number or other 4 subscriber number or identity, including any tempo 5 rarily assigned network address; and 6 7 8 9 10 ''(F) means and source of payment (including any credit card or bank account number), of a subscriber''; and (2) by striking ''and the types of services the subscriber or customer utilized,''. 11 SEC. 211. CLARIFICATION OF SCOPE. 12 13 14 Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended (1) in subsection (c)(2) 15 (A) in subparagraph (B), by striking ''or''; 16 (B) in subparagraph (C), by striking the 17 period at the end and inserting''; or''; and 18 (C) by inserting at the end the following: 19 ''(D) authorized under chapters 119, 121, or 20 206 of title 18, United States Code, except that such 21 disclosure shall not include records revealing cus 22 tomer cable television viewing activity.''; and 23 (2) in subsection (h) by striking ''A govern 24 mental entity'' and inserting ''Except as provided in 25 subsection (c)(2)(D), a governmental entity''. EXT-18-2091-C-000601 007104-001352 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 26 1 SEC. 212. EMERGENCY DISCLOSURE OF ELECTRONIC COM2 3 4 5 6 7 MUNICATIONS TO PROTECT LIFE AND LIMB. (a) DISCLOSURE OF CONTENTS. (1) IN GENERAL . Section 2702 of title 18, United States Code, is amended (A) by striking the section heading and in serting the following: 8 ''? 2702. Voluntary disclosure of customer commu9 10 nications or records''; (B) in subsection (a) (i) in paragraph (2)(A), by striking 11 12 ''and'' at the end; (ii) in paragraph (2)(B), by striking 13 14 the period and inserting ''; and''; and (iii) by inserting after paragraph (2) 15 16 the following: 17 ''(3) a provider of remote computing service or 18 electronic communication service to the public shall 19 not knowingly divulge a record or other information 20 pertaining to a subscriber to or customer of such 21 service (not including the contents of communica 22 tions covered by paragraph (1) or (2)) to any gov 23 ernmental entity.''; 24 (C) in subsection (b), by striking ''E XCEP 25 TIONS . A person or entity'' and inserting ''E X 26 CEPTIONS FOR DISCLOSURE OF COMMUNICA EXT-18-2091-C-000602 007104-001353 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 26 1 SEC. 212. EMERGENCY DISCLOSURE OF ELECTRONIC COM2 3 4 5 6 7 MUNICATIONS TO PROTECT LIFE AND LIMB. (a) DISCLOSURE OF CONTENTS. (1) IN GENERAL . Section 2702 of title 18, United States Code, is amended (A) by striking the section heading and in serting the following: 8 ''? 2702. Voluntary disclosure of customer commu9 10 nications or records''; (B) in subsection (a) (i) in paragraph (2)(A), by striking 11 12 ''and'' at the end; (ii) in paragraph (2)(B), by striking 13 14 the period and inserting ''; and''; and (iii) by inserting after paragraph (2) 15 16 the following: 17 ''(3) a provider of remote computing service or 18 electronic communication service to the public shall 19 not knowingly divulge a record or other information 20 pertaining to a subscriber to or customer of such 21 service (not including the contents of communica 22 tions covered by paragraph (1) or (2)) to any gov 23 ernmental entity.''; 24 (C) in subsection (b), by striking ''E XCEP 25 TIONS . A person or entity'' and inserting ''E X 26 CEPTIONS FOR DISCLOSURE OF COMMUNICA EXT-18-2091-C-000602 007104-001353 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 27 1 TIONS. 2 (a)''; A provider described in subsection (D) in subsection (b)(6) 3 (i) in subparagraph (A)(ii), by strik 4 ing ''or''; 5 (ii) in subparagraph (B), by striking 6 the period and inserting ''; or''; and 7 (iii) by adding after subparagraph (B) 8 the following: 9 10 ''(C) if the provider reasonably believes 11 that an emergency involving immediate danger 12 of death or serious physical injury to any per 13 son requires disclosure of the information with 14 out delay.''; and (E) by inserting after subsection (b) the 15 following: 16 17 ''(c) E XCEPTIONS FOR DISCLOSURE OF CUSTOMER 18 RECORDS. A provider described in subsection (a) may di 19 vulge a record or other information pertaining to a sub 20 scriber to or customer of such service (not including the 21 contents of communications covered by subsection (a)(1) 22 or (a)(2)) 23 ''(1) as otherwise authorized in section 2703; 24 ''(2) with the lawful consent of the customer or 25 subscriber; EXT-18-2091-C-000603 007104-001354 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 27 1 TIONS. 2 (a)''; A provider described in subsection (D) in subsection (b)(6) 3 (i) in subparagraph (A)(ii), by strik 4 ing ''or''; 5 (ii) in subparagraph (B), by striking 6 the period and inserting ''; or''; and 7 (iii) by adding after subparagraph (B) 8 the following: 9 10 ''(C) if the provider reasonably believes 11 that an emergency involving immediate danger 12 of death or serious physical injury to any per 13 son requires disclosure of the information with 14 out delay.''; and (E) by inserting after subsection (b) the 15 following: 16 17 ''(c) E XCEPTIONS FOR DISCLOSURE OF CUSTOMER 18 RECORDS. A provider described in subsection (a) may di 19 vulge a record or other information pertaining to a sub 20 scriber to or customer of such service (not including the 21 contents of communications covered by subsection (a)(1) 22 or (a)(2)) 23 ''(1) as otherwise authorized in section 2703; 24 ''(2) with the lawful consent of the customer or 25 subscriber; EXT-18-2091-C-000603 007104-001354 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 28 1 ''(3) as may be necessarily incident to the ren 2 dition of the service or to the protection of the rights 3 or property of the provider of that service; ''(4) to a governmental entity, if the provider 4 5 reasonably believes that an emergency involving im 6 mediate danger of death or serious physical injury to 7 any person justifies disclosure of the information; or 8 ''(5) to any person other than a governmental entity.''. 9 (2) TECHNICAL 10 AND CONFORMING AMEND 11 MENT. The table of sections for chapter 121 of 12 title 18, United States Code, is amended by striking 13 the item relating to section 2702 and inserting the 14 following: ''2702. Voluntary disclosure of customer communications or records.''. 15 16 17 18 19 (b) REQUIREMENTS FOR GOVERNMENT ACCESS. (1) IN GENERAL. Section 2703 of title 18, United States Code, is amended (A) by striking the section heading and in serting the following: 20 ''? 2703. Required disclosure of customer communica- 21 22 23 24 tions or records''; (B) in subsection (c) by redesignating paragraph (2) as paragraph (3); (C) in subsection (c)(1) EXT-18-2091-C-000604 007104-001355 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 28 1 ''(3) as may be necessarily incident to the ren 2 dition of the service or to the protection of the rights 3 or property of the provider of that service; ''(4) to a governmental entity, if the provider 4 5 reasonably believes that an emergency involving im 6 mediate danger of death or serious physical injury to 7 any person justifies disclosure of the information; or 8 ''(5) to any person other than a governmental entity.''. 9 (2) TECHNICAL 10 AND CONFORMING AMEND 11 MENT. The table of sections for chapter 121 of 12 title 18, United States Code, is amended by striking 13 the item relating to section 2702 and inserting the 14 following: ''2702. Voluntary disclosure of customer communications or records.''. 15 16 17 18 19 (b) REQUIREMENTS FOR GOVERNMENT ACCESS. (1) IN GENERAL. Section 2703 of title 18, United States Code, is amended (A) by striking the section heading and in serting the following: 20 ''? 2703. Required disclosure of customer communica- 21 22 23 24 tions or records''; (B) in subsection (c) by redesignating paragraph (2) as paragraph (3); (C) in subsection (c)(1) EXT-18-2091-C-000604 007104-001355 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 29 1 (i) by striking ''(A) Except as pro 2 vided in subparagraph (B), a provider of 3 electronic communication service or remote 4 computing service may'' and inserting ''A 5 governmental entity may require a provider 6 of electronic communication service or re 7 mote computing service to''; 8 (ii) by striking ''covered by subsection 9 (a) or (b) of this section) to any person 10 other than a governmental entity. 11 ''(B) A provider of electronic communica 12 tion service or remote computing service shall 13 disclose a record or other information per 14 taining to a subscriber to or customer of such 15 service (not including the contents of commu 16 nications covered by subsection (a) or (b) of 17 this section) to a governmental entity'' and in 18 serting '')''; 19 20 (iii) by redesignating subparagraph (C) as paragraph (2); 21 (iv) by redesignating clauses (i), (ii), 22 (iii), and (iv) as subparagraphs (A), (B), 23 (C), and (D), respectively; EXT-18-2091-C-000605 007104-001356 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 29 1 (i) by striking ''(A) Except as pro 2 vided in subparagraph (B), a provider of 3 electronic communication service or remote 4 computing service may'' and inserting ''A 5 governmental entity may require a provider 6 of electronic communication service or re 7 mote computing service to''; 8 (ii) by striking ''covered by subsection 9 (a) or (b) of this section) to any person 10 other than a governmental entity. 11 ''(B) A provider of electronic communica 12 tion service or remote computing service shall 13 disclose a record or other information per 14 taining to a subscriber to or customer of such 15 service (not including the contents of commu 16 nications covered by subsection (a) or (b) of 17 this section) to a governmental entity'' and in 18 serting '')''; 19 20 (iii) by redesignating subparagraph (C) as paragraph (2); 21 (iv) by redesignating clauses (i), (ii), 22 (iii), and (iv) as subparagraphs (A), (B), 23 (C), and (D), respectively; EXT-18-2091-C-000605 007104-001356 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 30 (v) in subparagraph (D) (as redesig 1 2 nated) by striking the period and inserting 3 ''; or''; and (vi) by inserting after subparagraph 4 5 (D) (as redesignated) the following: 6 ''(E) seeks information under paragraph (2).''; and 7 (D) in paragraph (2) (as redesignated) by 8 striking ''subparagraph (B)'' and insert ''para 9 10 graph (1)''. 11 (2) TECHNICAL AND CONFORMING AMEND 12 MENT. The table of sections for chapter 121 of 13 title 18, United States Code, is amended by striking 14 the item relating to section 2703 and inserting the 15 following: ''2703. Required disclosure of customer communications or records.''. 16 SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXE17 18 CUTION OF A WARRANT. Section 3103a of title 18, United States Code, is 19 amended (1) by inserting ''(a) IN GENERAL. 20 21 (2) by adding at the end the following: ''(b) DELAY. 24 warrant 25 rule '' before ''In addition''; and 22 23 With respect to the issuance of any or court order under this section, or any other of law, to search for and seize any property or mate EXT-18-2091-C-000606 007104-001357 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 30 (v) in subparagraph (D) (as redesig 1 2 nated) by striking the period and inserting 3 ''; or''; and (vi) by inserting after subparagraph 4 5 (D) (as redesignated) the following: 6 ''(E) seeks information under paragraph (2).''; and 7 (D) in paragraph (2) (as redesignated) by 8 striking ''subparagraph (B)'' and insert ''para 9 10 graph (1)''. 11 (2) TECHNICAL AND CONFORMING AMEND 12 MENT. The table of sections for chapter 121 of 13 title 18, United States Code, is amended by striking 14 the item relating to section 2703 and inserting the 15 following: ''2703. Required disclosure of customer communications or records.''. 16 SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXE17 18 CUTION OF A WARRANT. Section 3103a of title 18, United States Code, is 19 amended (1) by inserting ''(a) IN GENERAL. 20 21 (2) by adding at the end the following: ''(b) DELAY. 24 warrant 25 rule '' before ''In addition''; and 22 23 With respect to the issuance of any or court order under this section, or any other of law, to search for and seize any property or mate EXT-18-2091-C-000606 007104-001357 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 31 1 rial that constitutes evidence of a criminal offense in viola 2 tion of the laws of the United States, any notice required, 3 or that may be required, to be given may be delayed if 4 ''(1) the court finds reasonable cause to believe 5 that providing immediate notification of the execu 6 tion of the warrant may have an adverse result (as 7 defined in section 2705); 8 ''(2) the warrant prohibits the seizure of any 9 tangible property, any wire or electronic communica 10 tion (as defined in section 2510), or, except as ex 11 pressly provided in chapter 121, any stored wire or 12 electronic information, except where the court finds 13 reasonable necessity for the seizure; and 14 ''(3) the warrant provides for the giving of such 15 notice within a reasonable period of its execution, 16 which period may thereafter be extended by the 17 court for good cause shown.''. 18 SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHOR19 20 ITY UNDER FISA. (a) APPLICATIONS AND ORDERS. Section 402 of the 21 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 22 1842) is amended 23 (1) in subsection (a)(1), by striking ''for any in 24 vestigation to gather foreign intelligence information 25 or information concerning international terrorism'' EXT-18-2091-C-000607 007104-001358 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 31 1 rial that constitutes evidence of a criminal offense in viola 2 tion of the laws of the United States, any notice required, 3 or that may be required, to be given may be delayed if 4 ''(1) the court finds reasonable cause to believe 5 that providing immediate notification of the execu 6 tion of the warrant may have an adverse result (as 7 defined in section 2705); 8 ''(2) the warrant prohibits the seizure of any 9 tangible property, any wire or electronic communica 10 tion (as defined in section 2510), or, except as ex 11 pressly provided in chapter 121, any stored wire or 12 electronic information, except where the court finds 13 reasonable necessity for the seizure; and 14 ''(3) the warrant provides for the giving of such 15 notice within a reasonable period of its execution, 16 which period may thereafter be extended by the 17 court for good cause shown.''. 18 SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHOR19 20 ITY UNDER FISA. (a) APPLICATIONS AND ORDERS. Section 402 of the 21 Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 22 1842) is amended 23 (1) in subsection (a)(1), by striking ''for any in 24 vestigation to gather foreign intelligence information 25 or information concerning international terrorism'' EXT-18-2091-C-000607 007104-001358 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 32 1 and inserting ''for any investigation to protect 2 against international terrorism or clandestine intel 3 ligence activities, provided that such investigation of 4 a United States person is not conducted solely upon 5 the basis of activities protected by the first amend 6 ment to the Constitution''; 7 8 (2) by amending subsection (c)(2) to read as follows: 9 ''(2) a certification by the applicant that the in 10 formation likely to be obtained is relevant to an on 11 going investigation to protect against international 12 terrorism or clandestine intelligence activities, pro 13 vided that such investigation of a United States per 14 son is not conducted solely upon the basis of activi 15 ties protected by the first amendment to the Con 16 stitution.''; 17 (3) by striking subsection (c)(3); and 18 (4) by amending subsection (d)(2)(A) to read 19 20 21 22 23 as follows: ''(A) shall specify ''(i) the identity, if known, of the per son who is the subject of the investigation; ''(ii) the identity, if known, of the per 24 son to whom is leased or in whose name is 25 listed the telephone line or other facility to EXT-18-2091-C-000608 007104-001359 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 32 1 and inserting ''for any investigation to protect 2 against international terrorism or clandestine intel 3 ligence activities, provided that such investigation of 4 a United States person is not conducted solely upon 5 the basis of activities protected by the first amend 6 ment to the Constitution''; 7 8 (2) by amending subsection (c)(2) to read as follows: 9 ''(2) a certification by the applicant that the in 10 formation likely to be obtained is relevant to an on 11 going investigation to protect against international 12 terrorism or clandestine intelligence activities, pro 13 vided that such investigation of a United States per 14 son is not conducted solely upon the basis of activi 15 ties protected by the first amendment to the Con 16 stitution.''; 17 (3) by striking subsection (c)(3); and 18 (4) by amending subsection (d)(2)(A) to read 19 20 21 22 23 as follows: ''(A) shall specify ''(i) the identity, if known, of the per son who is the subject of the investigation; ''(ii) the identity, if known, of the per 24 son to whom is leased or in whose name is 25 listed the telephone line or other facility to EXT-18-2091-C-000608 007104-001359 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 33 1 which the pen register or trap and trace 2 device is to be attached or applied; ''(iii) the attributes of the communica 3 4 tions to which the order applies, such as 5 the number or other identifier, and, if 6 known, the location of the telephone line or 7 other facility to which the pen register or 8 trap and trace device is to be attached or 9 applied and, in the case of a trap and trace 10 device, the geographic limits of the trap 11 and trace order.''. 12 (b) AUTHORIZATION DURING E MERGENCIES. 13 tion 403 of the Foreign Intelligence Surveillance Act of 14 1978 (50 U.S.C. 1843) is amended Sec 15 (1) in subsection (a), by striking ''foreign intel 16 ligence information or information concerning inter 17 national terrorism'' and inserting ''information to 18 protect against international terrorism or clandestine 19 intelligence activities, provided that such investiga 20 tion of a United States person is not conducted sole 21 ly upon the basis of activities protected by the first 22 amendment to the Constitution''; and 23 (2) in subsection (b)(1), by striking ''foreign in 24 telligence information or information concerning 25 international terrorism'' and inserting ''information EXT-18-2091-C-000609 007104-001360 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 33 1 which the pen register or trap and trace 2 device is to be attached or applied; ''(iii) the attributes of the communica 3 4 tions to which the order applies, such as 5 the number or other identifier, and, if 6 known, the location of the telephone line or 7 other facility to which the pen register or 8 trap and trace device is to be attached or 9 applied and, in the case of a trap and trace 10 device, the geographic limits of the trap 11 and trace order.''. 12 (b) AUTHORIZATION DURING E MERGENCIES. 13 tion 403 of the Foreign Intelligence Surveillance Act of 14 1978 (50 U.S.C. 1843) is amended Sec 15 (1) in subsection (a), by striking ''foreign intel 16 ligence information or information concerning inter 17 national terrorism'' and inserting ''information to 18 protect against international terrorism or clandestine 19 intelligence activities, provided that such investiga 20 tion of a United States person is not conducted sole 21 ly upon the basis of activities protected by the first 22 amendment to the Constitution''; and 23 (2) in subsection (b)(1), by striking ''foreign in 24 telligence information or information concerning 25 international terrorism'' and inserting ''information EXT-18-2091-C-000609 007104-001360 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 34 1 to protect against international terrorism or clandes 2 tine intelligence activities, provided that such inves 3 tigation of a United States person is not conducted 4 solely upon the basis of activities protected by the 5 first amendment to the Constitution''. 6 SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER 7 THE 8 LANCE ACT. FOREIGN INTELLIGENCE SURVEIL- 9 Title V of the Foreign Intelligence Surveillance Act 10 of 1978 (50 U.S.C. 1861 et seq.) is amended by striking 11 sections 501 through 503 and inserting the following: 12 ''SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR 13 FOREIGN 14 NATIONAL TERRORISM INVESTIGATIONS. 15 INTELLIGENCE AND INTER- ''(a)(1) The Director of the Federal Bureau of Inves 16 tigation or a designee of the Director (whose rank shall 17 be no lower than Assistant Special Agent in Charge) may 18 make an application for an order requiring the production 19 of any tangible things (including books, records, papers, 20 documents, and other items) for an investigation to pro 21 tect against international terrorism or clandestine intel 22 ligence activities, provided that such investigation of a 23 United States person is not conducted solely upon the 24 basis of activities protected by the first amendment to the 25 Constitution. EXT-18-2091-C-000610 007104-001361 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 34 1 to protect against international terrorism or clandes 2 tine intelligence activities, provided that such inves 3 tigation of a United States person is not conducted 4 solely upon the basis of activities protected by the 5 first amendment to the Constitution''. 6 SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER 7 THE 8 LANCE ACT. FOREIGN INTELLIGENCE SURVEIL- 9 Title V of the Foreign Intelligence Surveillance Act 10 of 1978 (50 U.S.C. 1861 et seq.) is amended by striking 11 sections 501 through 503 and inserting the following: 12 ''SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR 13 FOREIGN 14 NATIONAL TERRORISM INVESTIGATIONS. 15 INTELLIGENCE AND INTER- ''(a)(1) The Director of the Federal Bureau of Inves 16 tigation or a designee of the Director (whose rank shall 17 be no lower than Assistant Special Agent in Charge) may 18 make an application for an order requiring the production 19 of any tangible things (including books, records, papers, 20 documents, and other items) for an investigation to pro 21 tect against international terrorism or clandestine intel 22 ligence activities, provided that such investigation of a 23 United States person is not conducted solely upon the 24 basis of activities protected by the first amendment to the 25 Constitution. EXT-18-2091-C-000610 007104-001361 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 35 ''(2) An investigation conducted under this section 1 2 shall 3 ''(A) be conducted under guidelines approved by 4 the Attorney General under Executive Order 12333 5 (or a successor order); and 6 ''(B) not be conducted of a United States per 7 son solely upon the basis of activities protected by 8 the first amendment to the Constitution of the 9 United States. 10 11 12 13 ''(b) Each application under this section ''(1) shall be made to ''(A) a judge of the court established by section 103(a); or 14 ''(B) a United States Magistrate Judge 15 under chapter 43 of title 28, United States 16 Code, who is publicly designated by the Chief 17 Justice of the United States to have the power 18 to hear applications and grant orders for the 19 production of tangible things under this section 20 on behalf of a judge of that court; and 21 ''(2) shall specify that the records concerned 22 are sought for an authorized investigation conducted 23 in accordance with subsection (a)(2) to protect 24 against international terrorism or clandestine intel 25 ligence activities. EXT-18-2091-C-000611 007104-001362 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 35 ''(2) An investigation conducted under this section 1 2 shall 3 ''(A) be conducted under guidelines approved by 4 the Attorney General under Executive Order 12333 5 (or a successor order); and 6 ''(B) not be conducted of a United States per 7 son solely upon the basis of activities protected by 8 the first amendment to the Constitution of the 9 United States. 10 11 12 13 ''(b) Each application under this section ''(1) shall be made to ''(A) a judge of the court established by section 103(a); or 14 ''(B) a United States Magistrate Judge 15 under chapter 43 of title 28, United States 16 Code, who is publicly designated by the Chief 17 Justice of the United States to have the power 18 to hear applications and grant orders for the 19 production of tangible things under this section 20 on behalf of a judge of that court; and 21 ''(2) shall specify that the records concerned 22 are sought for an authorized investigation conducted 23 in accordance with subsection (a)(2) to protect 24 against international terrorism or clandestine intel 25 ligence activities. EXT-18-2091-C-000611 007104-001362 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 36 ''(c)(1) Upon an application made pursuant to this 1 2 section, the judge shall enter an ex parte order as re 3 quested, or as modified, approving the release of records 4 if the judge finds that the application meets the require 5 ments of this section. 6 ''(2) An order under this subsection shall not disclose 7 that it is issued for purposes of an investigation described 8 in subsection (a). ''(d) No person shall disclose to any other person 9 10 (other 11 gible 12 of than those persons necessary to produce the tan things under this section) that the Federal Bureau Investigation has sought or obtained tangible things 13 under this ''(e) A person who, in good faith, produces tangible 14 15 things 16 be section. under an order pursuant to this section shall not liable to any other person for such production. Such 17 production shall not be deemed to constitute a waiver of 18 any privilege in any other proceeding or context. 19 ''SEC. 502. CONGRESSIONAL OVERSIGHT. 20 21 shall ''(a) On a semiannual basis, the Attorney General fully inform the Permanent Select Committee on In 22 telligence of the House of Representatives and the Select 23 Committee 24 quests on Intelligence of the Senate concerning all re for the production of tangible things under section 25 402. EXT-18-2091-C-000612 007104-001363 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 36 ''(c)(1) Upon an application made pursuant to this 1 2 section, the judge shall enter an ex parte order as re 3 quested, or as modified, approving the release of records 4 if the judge finds that the application meets the require 5 ments of this section. 6 ''(2) An order under this subsection shall not disclose 7 that it is issued for purposes of an investigation described 8 in subsection (a). ''(d) No person shall disclose to any other person 9 10 (other 11 gible 12 of than those persons necessary to produce the tan things under this section) that the Federal Bureau Investigation has sought or obtained tangible things 13 under this ''(e) A person who, in good faith, produces tangible 14 15 things 16 be section. under an order pursuant to this section shall not liable to any other person for such production. Such 17 production shall not be deemed to constitute a waiver of 18 any privilege in any other proceeding or context. 19 ''SEC. 502. CONGRESSIONAL OVERSIGHT. 20 21 shall ''(a) On a semiannual basis, the Attorney General fully inform the Permanent Select Committee on In 22 telligence of the House of Representatives and the Select 23 Committee 24 quests on Intelligence of the Senate concerning all re for the production of tangible things under section 25 402. EXT-18-2091-C-000612 007104-001363 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 37 1 ''(b) On a semiannual basis, the Attorney General 2 shall provide to the Committees on the Judiciary of the 3 House of Representatives and the Senate a report setting 4 forth with respect to the preceding 6 month period 5 ''(1) the total number of applications made for 6 orders approving requests for the production of tan 7 gible things under section 402; and 8 9 ''(2) the total number of such orders either granted, modified, or denied.''. 10 SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO 11 USE OF PEN REGISTERS AND TRAP AND 12 TRACE DEVICES. 13 14 15 16 17 18 19 (a) GENERAL LIMITATIONS. Section 3121(c) of title 18, United States Code, is amended (1) by inserting ''or trap and trace device'' after ''pen register''; (2) by inserting '', routing, addressing,'' after ''dialing''; and (3) by striking ''call processing'' and inserting 20 ''the processing and transmitting of wire or elec 21 tronic communications so as not to include the con 22 tents of any wire or electronic communications''. 23 (b) ISSUANCE OF ORDERS. 24 25 (1) IN GENERAL. Section 3123(a) of title 18, United States Code, is amended to read as follows: EXT-18-2091-C-000613 007104-001364 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 37 1 ''(b) On a semiannual basis, the Attorney General 2 shall provide to the Committees on the Judiciary of the 3 House of Representatives and the Senate a report setting 4 forth with respect to the preceding 6 month period 5 ''(1) the total number of applications made for 6 orders approving requests for the production of tan 7 gible things under section 402; and 8 9 ''(2) the total number of such orders either granted, modified, or denied.''. 10 SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO 11 USE OF PEN REGISTERS AND TRAP AND 12 TRACE DEVICES. 13 14 15 16 17 18 19 (a) GENERAL LIMITATIONS. Section 3121(c) of title 18, United States Code, is amended (1) by inserting ''or trap and trace device'' after ''pen register''; (2) by inserting '', routing, addressing,'' after ''dialing''; and (3) by striking ''call processing'' and inserting 20 ''the processing and transmitting of wire or elec 21 tronic communications so as not to include the con 22 tents of any wire or electronic communications''. 23 (b) ISSUANCE OF ORDERS. 24 25 (1) IN GENERAL. Section 3123(a) of title 18, United States Code, is amended to read as follows: EXT-18-2091-C-000613 007104-001364 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 38 1 2 ''(a) IN GENERAL. ''(1) ATTORNEY FOR THE GOVERNMENT. 3 Upon an application made under section 3122(a)(1), 4 the court shall enter an ex parte order authorizing 5 the installation and use of a pen register or trap and 6 trace device anywhere within the United States, if 7 the court finds that the attorney for the Government 8 has certified to the court that the information likely 9 to be obtained by such installation and use is rel 10 evant to an ongoing criminal investigation. The 11 order, upon service of that order, shall apply to any 12 person or entity providing wire or electronic commu 13 nication service in the United States whose assist 14 ance may facilitate the execution of the order. 15 Whenever such an order is served on any person or 16 entity not specifically named in the order, upon re 17 quest of such person or entity, the attorney for the 18 Government or law enforcement or investigative offi 19 cer that is serving the order shall provide written or 20 electronic certification that the order applies to the 21 person or entity being served. 22 ''(2) STATE INVESTIGATIVE OR LAW ENFORCE 23 MENT OFFICER. Upon an application made under 24 section 3122(a)(2), the court shall enter an ex parte 25 order authorizing the installation and use of a pen EXT-18-2091-C-000614 007104-001365 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 38 1 2 ''(a) IN GENERAL. ''(1) ATTORNEY FOR THE GOVERNMENT. 3 Upon an application made under section 3122(a)(1), 4 the court shall enter an ex parte order authorizing 5 the installation and use of a pen register or trap and 6 trace device anywhere within the United States, if 7 the court finds that the attorney for the Government 8 has certified to the court that the information likely 9 to be obtained by such installation and use is rel 10 evant to an ongoing criminal investigation. The 11 order, upon service of that order, shall apply to any 12 person or entity providing wire or electronic commu 13 nication service in the United States whose assist 14 ance may facilitate the execution of the order. 15 Whenever such an order is served on any person or 16 entity not specifically named in the order, upon re 17 quest of such person or entity, the attorney for the 18 Government or law enforcement or investigative offi 19 cer that is serving the order shall provide written or 20 electronic certification that the order applies to the 21 person or entity being served. 22 ''(2) STATE INVESTIGATIVE OR LAW ENFORCE 23 MENT OFFICER. Upon an application made under 24 section 3122(a)(2), the court shall enter an ex parte 25 order authorizing the installation and use of a pen EXT-18-2091-C-000614 007104-001365 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 39 1 register or trap and trace device within the jurisdic 2 tion of the court, if the court finds that the State 3 law enforcement or investigative officer has certified 4 to the court that the information likely to be ob 5 tained by such installation and use is relevant to an 6 ongoing criminal investigation.''. 7 (2) CONTENTS OF ORDER. Section 3123(b)(1) 8 of title 18, United States Code, is amended 9 (A) in subparagraph (A) 10 11 12 (i) by inserting ''or other facility'' after ''telephone line''; and (ii) by inserting before the semicolon 13 at the end ''or applied''; and 14 (B) by striking subparagraph (C) and in 15 16 serting the following: ''(C) the attributes of the communications 17 to which the order applies, including the num 18 ber or other identifier and, if known, the loca 19 tion of the telephone line or other facility to 20 which the pen register or trap and trace device 21 is to be attached or applied, and, in the case of 22 an order authorizing installation and use of a 23 trap and trace device under subsection (a)(2), 24 the geographic limits of the order; and''. EXT-18-2091-C-000615 007104-001366 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 39 1 register or trap and trace device within the jurisdic 2 tion of the court, if the court finds that the State 3 law enforcement or investigative officer has certified 4 to the court that the information likely to be ob 5 tained by such installation and use is relevant to an 6 ongoing criminal investigation.''. 7 (2) CONTENTS OF ORDER. Section 3123(b)(1) 8 of title 18, United States Code, is amended 9 (A) in subparagraph (A) 10 11 12 (i) by inserting ''or other facility'' after ''telephone line''; and (ii) by inserting before the semicolon 13 at the end ''or applied''; and 14 (B) by striking subparagraph (C) and in 15 16 serting the following: ''(C) the attributes of the communications 17 to which the order applies, including the num 18 ber or other identifier and, if known, the loca 19 tion of the telephone line or other facility to 20 which the pen register or trap and trace device 21 is to be attached or applied, and, in the case of 22 an order authorizing installation and use of a 23 trap and trace device under subsection (a)(2), 24 the geographic limits of the order; and''. EXT-18-2091-C-000615 007104-001366 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 40 1 (3) NONDISCLOSURE REQUIREMENTS. Section 2 3123(d)(2) of title 18, United States Code, is 3 amended 4 5 (A) by inserting ''or other facility'' after ''the line''; and 6 (B) by striking '', or who has been ordered 7 by the court'' and inserting ''or applied, or who 8 is obligated by the order''. 9 10 (c) DEFINITIONS. (1) COURT OF COMPETENT JURISDICTION. 11 Section 3127(2) of title 18, United States Code, is 12 amended by striking subparagraph (A) and inserting 13 the following: 14 ''(A) any district court of the United 15 States (including a magistrate judge of such a 16 court) or any United States court of appeals 17 having jurisdiction over the offense being inves 18 tigated; or''. 19 (2) PEN 20 REGISTER. Section 3127(3) of title 18, United States Code, is amended 21 (A) by striking ''electronic or other im 22 pulses'' and all that follows through ''is at 23 tached'' and inserting ''dialing, routing, ad 24 dressing, or signaling information transmitted 25 by an instrument or facility from which a wire EXT-18-2091-C-000616 007104-001367 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 40 1 (3) NONDISCLOSURE REQUIREMENTS. Section 2 3123(d)(2) of title 18, United States Code, is 3 amended 4 5 (A) by inserting ''or other facility'' after ''the line''; and 6 (B) by striking '', or who has been ordered 7 by the court'' and inserting ''or applied, or who 8 is obligated by the order''. 9 10 (c) DEFINITIONS. (1) COURT OF COMPETENT JURISDICTION. 11 Section 3127(2) of title 18, United States Code, is 12 amended by striking subparagraph (A) and inserting 13 the following: 14 ''(A) any district court of the United 15 States (including a magistrate judge of such a 16 court) or any United States court of appeals 17 having jurisdiction over the offense being inves 18 tigated; or''. 19 (2) PEN 20 REGISTER. Section 3127(3) of title 18, United States Code, is amended 21 (A) by striking ''electronic or other im 22 pulses'' and all that follows through ''is at 23 tached'' and inserting ''dialing, routing, ad 24 dressing, or signaling information transmitted 25 by an instrument or facility from which a wire EXT-18-2091-C-000616 007104-001367 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 41 1 or electronic communication is transmitted, pro 2 vided, however, that such information shall not 3 include the contents of any communication''; 4 and (B) by inserting ''or process'' after ''de 5 6 vice'' each place it appears. 7 (3) TRAP AND TRACE DEVICE . Section 8 3127(4) of title 18, United States Code, is 9 amended (A) by striking ''of an instrument'' and all 10 11 that follows through the semicolon and insert 12 ing ''or other dialing, routing, addressing, and 13 signaling information reasonably likely to iden 14 tify the source of a wire or electronic commu 15 nication, provided, however, that such informa 16 tion shall not include the contents of any com 17 munication;''; and (B) by inserting ''or process'' after ''a de 18 19 vice''. 20 (4) CONFORMING AMENDMENT. Section 21 3127(1) of title 18, United States Code, is 22 amended 23 (A) by striking ''and''; and 24 (B) by inserting '', and 'contents' '' after 25 ''electronic communication service''. EXT-18-2091-C-000617 007104-001368 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 41 1 or electronic communication is transmitted, pro 2 vided, however, that such information shall not 3 include the contents of any communication''; 4 and (B) by inserting ''or process'' after ''de 5 6 vice'' each place it appears. 7 (3) TRAP AND TRACE DEVICE . Section 8 3127(4) of title 18, United States Code, is 9 amended (A) by striking ''of an instrument'' and all 10 11 that follows through the semicolon and insert 12 ing ''or other dialing, routing, addressing, and 13 signaling information reasonably likely to iden 14 tify the source of a wire or electronic commu 15 nication, provided, however, that such informa 16 tion shall not include the contents of any com 17 munication;''; and (B) by inserting ''or process'' after ''a de 18 19 vice''. 20 (4) CONFORMING AMENDMENT. Section 21 3127(1) of title 18, United States Code, is 22 amended 23 (A) by striking ''and''; and 24 (B) by inserting '', and 'contents' '' after 25 ''electronic communication service''. EXT-18-2091-C-000617 007104-001368 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 42 (5) TECHNICAL 1 AMENDMENT. Section 3124(d) 2 of title 18, United States Code, is amended by strik 3 ing ''the terms of''. 4 SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COM5 6 7 8 9 10 11 12 13 MUNICATIONS. Chapter 119 of title 18, United States Code, is amended (1) in section 2510 (A) in paragraph (17), by striking ''and'' at the end; (B) in paragraph (18), by striking the pe riod and inserting a semicolon; and (C) by inserting after paragraph (18) the 14 following: 15 ''(19) 'protected computer' has the meaning set 16 17 18 forth in section 1030; and ''(20) 'computer trespasser' ''(A) means a person who accesses a pro 19 tected computer without authorization and thus 20 has no reasonable expectation of privacy in any 21 communication transmitted to, through, or from 22 the protected computer; and 23 ''(B) does not include a person known by 24 the owner or operator of the protected computer 25 to have an existing contractual relationship with EXT-18-2091-C-000618 007104-001369 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 42 (5) TECHNICAL 1 AMENDMENT. Section 3124(d) 2 of title 18, United States Code, is amended by strik 3 ing ''the terms of''. 4 SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COM5 6 7 8 9 10 11 12 13 MUNICATIONS. Chapter 119 of title 18, United States Code, is amended (1) in section 2510 (A) in paragraph (17), by striking ''and'' at the end; (B) in paragraph (18), by striking the pe riod and inserting a semicolon; and (C) by inserting after paragraph (18) the 14 following: 15 ''(19) 'protected computer' has the meaning set 16 17 18 forth in section 1030; and ''(20) 'computer trespasser' ''(A) means a person who accesses a pro 19 tected computer without authorization and thus 20 has no reasonable expectation of privacy in any 21 communication transmitted to, through, or from 22 the protected computer; and 23 ''(B) does not include a person known by 24 the owner or operator of the protected computer 25 to have an existing contractual relationship with EXT-18-2091-C-000618 007104-001369 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 43 1 the owner or operator of the protected computer 2 for access to all or part of the protected com 3 puter.''; and 4 (2) in section 2511(2), by inserting at the end 5 the following: 6 ''(i) It shall not be unlawful under this chapter for 7 a person acting under color of law to intercept the wire 8 or electronic communications of a computer trespasser, 9 if ''(i) the owner or operator of the protected com 10 11 puter authorizes the interception of the computer 12 trespasser's communications on the protected com 13 puter; ''(ii) the person acting under color of law is 14 15 lawfully engaged in an investigation; 16 ''(iii) the person acting under color of law has 17 reasonable grounds to believe that the contents of 18 the computer trespasser's communications will be 19 relevant to the investigation; and ''(iv) such interception does not acquire commu 20 21 nications other than those transmitted to or from 22 the computer trespasser.''. 23 SEC. 218. FOREIGN INTELLIGENCE INFORMATION. 24 Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 25 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign EXT-18-2091-C-000619 007104-001370 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 43 1 the owner or operator of the protected computer 2 for access to all or part of the protected com 3 puter.''; and 4 (2) in section 2511(2), by inserting at the end 5 the following: 6 ''(i) It shall not be unlawful under this chapter for 7 a person acting under color of law to intercept the wire 8 or electronic communications of a computer trespasser, 9 if ''(i) the owner or operator of the protected com 10 11 puter authorizes the interception of the computer 12 trespasser's communications on the protected com 13 puter; ''(ii) the person acting under color of law is 14 15 lawfully engaged in an investigation; 16 ''(iii) the person acting under color of law has 17 reasonable grounds to believe that the contents of 18 the computer trespasser's communications will be 19 relevant to the investigation; and ''(iv) such interception does not acquire commu 20 21 nications other than those transmitted to or from 22 the computer trespasser.''. 23 SEC. 218. FOREIGN INTELLIGENCE INFORMATION. 24 Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 25 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign EXT-18-2091-C-000619 007104-001370 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 44 1 Intelligence Surveillance Act of 1978 are each amended 2 by striking ''the purpose'' and inserting ''a significant pur 3 pose''. 4 SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR 5 TERRORISM. 6 Rule 41(a) of the Federal Rules of Criminal Proce 7 dure is amended by inserting after ''executed'' the fol 8 lowing: ''and (3) in an investigation of domestic terrorism 9 or international terrorism (as defined in section 2331 of 10 title 18, United States Code), by a Federal magistrate 11 judge in any district in which activities related to the ter 12 rorism may have occurred, for a search of property or for 13 a person within or outside the district''. 14 SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS 15 16 17 FOR ELECTRONIC EVIDENCE. Chapter 121 of title 18, United States Code, is amended 18 (1) in section 2703, by striking ''under the 19 Federal Rules of Criminal Procedure'' every place it 20 appears and inserting ''using the procedures de 21 scribed in the Federal Rules of Criminal Procedure 22 by a court with jurisdiction over the offense under 23 investigation''; and 24 25 (2) in section 2711 (A) in paragraph (1), by striking ''and''; EXT-18-2091-C-000620 007104-001371 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 44 1 Intelligence Surveillance Act of 1978 are each amended 2 by striking ''the purpose'' and inserting ''a significant pur 3 pose''. 4 SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR 5 TERRORISM. 6 Rule 41(a) of the Federal Rules of Criminal Proce 7 dure is amended by inserting after ''executed'' the fol 8 lowing: ''and (3) in an investigation of domestic terrorism 9 or international terrorism (as defined in section 2331 of 10 title 18, United States Code), by a Federal magistrate 11 judge in any district in which activities related to the ter 12 rorism may have occurred, for a search of property or for 13 a person within or outside the district''. 14 SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS 15 16 17 FOR ELECTRONIC EVIDENCE. Chapter 121 of title 18, United States Code, is amended 18 (1) in section 2703, by striking ''under the 19 Federal Rules of Criminal Procedure'' every place it 20 appears and inserting ''using the procedures de 21 scribed in the Federal Rules of Criminal Procedure 22 by a court with jurisdiction over the offense under 23 investigation''; and 24 25 (2) in section 2711 (A) in paragraph (1), by striking ''and''; EXT-18-2091-C-000620 007104-001371 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 45 (B) in paragraph (2), by striking the pe 1 riod and inserting ''; and''; and 2 3 (C) by inserting at the end the following: 4 ''(3) the term 'court of competent jurisdiction' 5 has the meaning assigned by section 3127, and in 6 cludes any Federal court within that definition, 7 without geographic limitation.''. 8 SEC. 221. TRADE SANCTIONS. 9 (a) IN 10 Export 11 114 12 13 14 GENERAL. The Trade Sanctions Reform and Enhancement Act of 2000 (Public Law 106 387; Stat. 1549A 67) is amended (1) by amending section 904(2)(C) to read as follows: ''(C) used to facilitate the design, develop 15 ment, or production of chemical or biological 16 weapons, missiles, or weapons of mass destruc 17 tion.''; 18 (2) in section 906(a)(1) 19 (A) by inserting '', the Taliban or the ter 20 ritory of Afghanistan controlled 21 Taliban,'' after ''Cuba''; and by the 22 (B) by inserting '', or in the territory of 23 Afghanistan controlled by the Taliban,'' after 24 ''within such country''; and EXT-18-2091-C-000621 007104-001372 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 45 (B) in paragraph (2), by striking the pe 1 riod and inserting ''; and''; and 2 3 (C) by inserting at the end the following: 4 ''(3) the term 'court of competent jurisdiction' 5 has the meaning assigned by section 3127, and in 6 cludes any Federal court within that definition, 7 without geographic limitation.''. 8 SEC. 221. TRADE SANCTIONS. 9 (a) IN 10 Export 11 114 12 13 14 GENERAL. The Trade Sanctions Reform and Enhancement Act of 2000 (Public Law 106 387; Stat. 1549A 67) is amended (1) by amending section 904(2)(C) to read as follows: ''(C) used to facilitate the design, develop 15 ment, or production of chemical or biological 16 weapons, missiles, or weapons of mass destruc 17 tion.''; 18 (2) in section 906(a)(1) 19 (A) by inserting '', the Taliban or the ter 20 ritory of Afghanistan controlled 21 Taliban,'' after ''Cuba''; and by the 22 (B) by inserting '', or in the territory of 23 Afghanistan controlled by the Taliban,'' after 24 ''within such country''; and EXT-18-2091-C-000621 007104-001372 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 46 1 (3) in section 906(a)(2), by inserting '', or to 2 any other entity in Syria or North Korea'' after 3 ''Korea''. 4 (b) APPLICATION 5 FORM AND 6 Trade 7 2000 TRADE SANCTIONS RE E XPORT E NHANCEMENT ACT. Nothing in the Sanctions Reform and Export Enhancement Act of shall limit the application or scope of any law estab 8 lishing 9 order OF THE criminal or civil penalties, including any executive or regulation promulgated pursuant to such laws (or 10 similar or successor laws), for the unlawful export of any 11 agricultural commodity, medicine, or medical device to 12 (1) a foreign organization, group, or person 13 designated pursuant to Executive Order 12947 of 14 June 25, 1995; 15 (2) a Foreign Terrorist Organization pursuant 16 to the Antiterrorism and Effective Death Penalty 17 Act of 1996 (Public Law 104 132); 18 (3) a foreign organization, group, or person 19 designated pursuant to Executive Order 13224 (Sep 20 tember 23, 2001); 21 (4) any narcotics trafficking entity designated 22 pursuant to Executive Order 12978 (October 21, 23 1995) or the Foreign Narcotics Kingpin Designation 24 Act (Public Law 106 120); or EXT-18-2091-C-000622 007104-001373 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 46 1 (3) in section 906(a)(2), by inserting '', or to 2 any other entity in Syria or North Korea'' after 3 ''Korea''. 4 (b) APPLICATION 5 FORM AND 6 Trade 7 2000 TRADE SANCTIONS RE E XPORT E NHANCEMENT ACT. Nothing in the Sanctions Reform and Export Enhancement Act of shall limit the application or scope of any law estab 8 lishing 9 order OF THE criminal or civil penalties, including any executive or regulation promulgated pursuant to such laws (or 10 similar or successor laws), for the unlawful export of any 11 agricultural commodity, medicine, or medical device to 12 (1) a foreign organization, group, or person 13 designated pursuant to Executive Order 12947 of 14 June 25, 1995; 15 (2) a Foreign Terrorist Organization pursuant 16 to the Antiterrorism and Effective Death Penalty 17 Act of 1996 (Public Law 104 132); 18 (3) a foreign organization, group, or person 19 designated pursuant to Executive Order 13224 (Sep 20 tember 23, 2001); 21 (4) any narcotics trafficking entity designated 22 pursuant to Executive Order 12978 (October 21, 23 1995) or the Foreign Narcotics Kingpin Designation 24 Act (Public Law 106 120); or EXT-18-2091-C-000622 007104-001373 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 47 1 (5) any foreign organization, group, or persons 2 subject to any restriction for its involvement in 3 weapons of mass destruction or missile proliferation. 4 SEC. 222. ASSISTANCE TO LAW ENFORCEMENT AGENCIES. 5 Nothing in this Act shall impose any additional tech 6 nical obligation or requirement on a provider of wire or 7 electronic communication service or other person to fur 8 nish facilities or technical assistance. A provider of a wire 9 or electronic communication service, landlord, custodian, 10 or other person who furnishes facilities or technical assist 11 ance pursuant to section 216 shall be reasonably com 12 pensated for such reasonable expenditures incurred in pro 13 viding such facilities or assistance. 14 TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001. 15 16 17 18 SEC. 301. SHORT TITLE. 19 This title may be cited as the ''International Money 20 Laundering Abatement and Anti Terrorist Financing Act 21 of 2001''. 22 SEC. 302. FINDINGS AND PURPOSES. 23 24 25 (a) FINDINGS. The Congress finds that (1) money laundering, estimated by the Inter national Monetary Fund to amount to between 2 EXT-18-2091-C-000623 007104-001374 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 47 1 (5) any foreign organization, group, or persons 2 subject to any restriction for its involvement in 3 weapons of mass destruction or missile proliferation. 4 SEC. 222. ASSISTANCE TO LAW ENFORCEMENT AGENCIES. 5 Nothing in this Act shall impose any additional tech 6 nical obligation or requirement on a provider of wire or 7 electronic communication service or other person to fur 8 nish facilities or technical assistance. A provider of a wire 9 or electronic communication service, landlord, custodian, 10 or other person who furnishes facilities or technical assist 11 ance pursuant to section 216 shall be reasonably com 12 pensated for such reasonable expenditures incurred in pro 13 viding such facilities or assistance. 14 TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001. 15 16 17 18 SEC. 301. SHORT TITLE. 19 This title may be cited as the ''International Money 20 Laundering Abatement and Anti Terrorist Financing Act 21 of 2001''. 22 SEC. 302. FINDINGS AND PURPOSES. 23 24 25 (a) FINDINGS. The Congress finds that (1) money laundering, estimated by the Inter national Monetary Fund to amount to between 2 EXT-18-2091-C-000623 007104-001374 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 48 1 and 5 percent of global gross domestic product, 2 which is at least $600,000,000,000 annually, pro 3 vides the financial fuel that permits transnational 4 criminal enterprises to conduct and expand their op 5 erations to the detriment of the safety and security 6 of American citizens; 7 (2) money laundering, and the defects in finan 8 cial transparency on which money launderers rely, 9 are critical to the financing of global terrorism and 10 11 the provision of funds for terrorist attacks; (3) money launderers subvert legitimate finan 12 cial mechanisms and banking relationships by using 13 them as protective covering for the movement of 14 criminal proceeds and the financing of crime and 15 terrorism, and, by so doing, can threaten the safety 16 of United States citizens and undermine the integ 17 rity of United States financial institutions and of the 18 global financial and trading systems upon which 19 prosperity and growth depend; 20 (4) certain jurisdictions outside of the United 21 States that offer ''offshore'' banking and related fa 22 cilities designed to provide anonymity, coupled with 23 special tax advantages and weak financial super 24 visory and enforcement regimes, provide essential 25 tools to disguise ownership and movement of crimi EXT-18-2091-C-000624 007104-001375 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 48 1 and 5 percent of global gross domestic product, 2 which is at least $600,000,000,000 annually, pro 3 vides the financial fuel that permits transnational 4 criminal enterprises to conduct and expand their op 5 erations to the detriment of the safety and security 6 of American citizens; 7 (2) money laundering, and the defects in finan 8 cial transparency on which money launderers rely, 9 are critical to the financing of global terrorism and 10 11 the provision of funds for terrorist attacks; (3) money launderers subvert legitimate finan 12 cial mechanisms and banking relationships by using 13 them as protective covering for the movement of 14 criminal proceeds and the financing of crime and 15 terrorism, and, by so doing, can threaten the safety 16 of United States citizens and undermine the integ 17 rity of United States financial institutions and of the 18 global financial and trading systems upon which 19 prosperity and growth depend; 20 (4) certain jurisdictions outside of the United 21 States that offer ''offshore'' banking and related fa 22 cilities designed to provide anonymity, coupled with 23 special tax advantages and weak financial super 24 visory and enforcement regimes, provide essential 25 tools to disguise ownership and movement of crimi EXT-18-2091-C-000624 007104-001375 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 49 1 nal funds, derived from, or used to commit, offenses 2 ranging from narcotics trafficking, terrorism, arms 3 smuggling, and trafficking in human beings, to fi 4 nancial frauds that prey on law abiding citizens; 5 (5) transactions involving such offshore juris 6 dictions make it difficult for law enforcement offi 7 cials and regulators to follow the trail of money 8 earned by criminals, organized international criminal 9 enterprises, and global terrorist organizations; 10 (6) correspondent banking facilities are one of 11 the banking mechanisms susceptible in some cir 12 cumstances to manipulation by foreign banks to per 13 mit the laundering of funds by hiding the identity of 14 real parties in interest to financial transactions; 15 (7) private banking services can be susceptible 16 to manipulation by money launderers, for example 17 corrupt foreign government officials, particularly if 18 those services include the creation of offshore ac 19 counts and facilities for large personal funds trans 20 fers to channel funds into accounts around the 21 globe; 22 (8) United States anti money laundering efforts 23 are impeded by outmoded and inadequate statutory 24 provisions that make investigations, prosecutions, 25 and forfeitures more difficult, particularly in cases EXT-18-2091-C-000625 007104-001376 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 49 1 nal funds, derived from, or used to commit, offenses 2 ranging from narcotics trafficking, terrorism, arms 3 smuggling, and trafficking in human beings, to fi 4 nancial frauds that prey on law abiding citizens; 5 (5) transactions involving such offshore juris 6 dictions make it difficult for law enforcement offi 7 cials and regulators to follow the trail of money 8 earned by criminals, organized international criminal 9 enterprises, and global terrorist organizations; 10 (6) correspondent banking facilities are one of 11 the banking mechanisms susceptible in some cir 12 cumstances to manipulation by foreign banks to per 13 mit the laundering of funds by hiding the identity of 14 real parties in interest to financial transactions; 15 (7) private banking services can be susceptible 16 to manipulation by money launderers, for example 17 corrupt foreign government officials, particularly if 18 those services include the creation of offshore ac 19 counts and facilities for large personal funds trans 20 fers to channel funds into accounts around the 21 globe; 22 (8) United States anti money laundering efforts 23 are impeded by outmoded and inadequate statutory 24 provisions that make investigations, prosecutions, 25 and forfeitures more difficult, particularly in cases EXT-18-2091-C-000625 007104-001376 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 50 1 in which money laundering involves foreign persons, 2 foreign banks, or foreign countries; 3 (9) the ability to mount effective counter meas 4 ures to international money launderers requires na 5 tional, as well as bilateral and multilateral action, 6 using tools specially designed for that effort; and 7 (10) the Basle Committee on Banking Regula 8 tion and Supervisory Practices and the Financial 9 Action Task Force on Money Laundering, of both of 10 which the United States is a member, have each 11 adopted international anti money laundering prin 12 ciples and recommendations. 13 (b) PURPOSES. 14 The purposes of this title are (1) to increase the strength of United States 15 measures to prevent, detect, and prosecute inter 16 national money laundering and the financing of ter 17 rorism; 18 19 (2) to ensure that (A) banking transactions and financial re 20 lationships and the conduct of such transactions 21 and relationships, do not contravene the pur 22 poses of subchapter II of chapter 53 of title 31, 23 United States Code, section 21 of the Federal 24 Deposit Insurance Act, or chapter 2 of title I EXT-18-2091-C-000626 007104-001377 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 50 1 in which money laundering involves foreign persons, 2 foreign banks, or foreign countries; 3 (9) the ability to mount effective counter meas 4 ures to international money launderers requires na 5 tional, as well as bilateral and multilateral action, 6 using tools specially designed for that effort; and 7 (10) the Basle Committee on Banking Regula 8 tion and Supervisory Practices and the Financial 9 Action Task Force on Money Laundering, of both of 10 which the United States is a member, have each 11 adopted international anti money laundering prin 12 ciples and recommendations. 13 (b) PURPOSES. 14 The purposes of this title are (1) to increase the strength of United States 15 measures to prevent, detect, and prosecute inter 16 national money laundering and the financing of ter 17 rorism; 18 19 (2) to ensure that (A) banking transactions and financial re 20 lationships and the conduct of such transactions 21 and relationships, do not contravene the pur 22 poses of subchapter II of chapter 53 of title 31, 23 United States Code, section 21 of the Federal 24 Deposit Insurance Act, or chapter 2 of title I EXT-18-2091-C-000626 007104-001377 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 51 1 of Public Law 91 508 (84 Stat. 1116), or fa 2 cilitate the evasion of any such provision; and 3 (B) the purposes of such provisions of law 4 continue to be fulfilled, and that such provisions 5 of law are effectively and efficiently adminis 6 tered; 7 (3) to strengthen the provisions put into place 8 by the Money Laundering Control Act of 1986 (18 9 U.S.C. 981 note), especially with respect to crimes 10 by non United States nationals and foreign financial 11 institutions; 12 (4) to provide a clear national mandate for sub 13 jecting to special scrutiny those foreign jurisdictions, 14 financial institutions operating outside of the United 15 States, and classes of international transactions that 16 pose particular, identifiable opportunities for crimi 17 nal abuse; 18 (5) to provide the Secretary of the Treasury (in 19 this title referred to as the ''Secretary'') with broad 20 discretion, subject to the safeguards provided by the 21 Administrative Procedures Act under title 5, United 22 States Code, to take measures tailored to the par 23 ticular money laundering problems presented by spe 24 cific foreign jurisdictions, financial institutions oper EXT-18-2091-C-000627 007104-001378 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 51 1 of Public Law 91 508 (84 Stat. 1116), or fa 2 cilitate the evasion of any such provision; and 3 (B) the purposes of such provisions of law 4 continue to be fulfilled, and that such provisions 5 of law are effectively and efficiently adminis 6 tered; 7 (3) to strengthen the provisions put into place 8 by the Money Laundering Control Act of 1986 (18 9 U.S.C. 981 note), especially with respect to crimes 10 by non United States nationals and foreign financial 11 institutions; 12 (4) to provide a clear national mandate for sub 13 jecting to special scrutiny those foreign jurisdictions, 14 financial institutions operating outside of the United 15 States, and classes of international transactions that 16 pose particular, identifiable opportunities for crimi 17 nal abuse; 18 (5) to provide the Secretary of the Treasury (in 19 this title referred to as the ''Secretary'') with broad 20 discretion, subject to the safeguards provided by the 21 Administrative Procedures Act under title 5, United 22 States Code, to take measures tailored to the par 23 ticular money laundering problems presented by spe 24 cific foreign jurisdictions, financial institutions oper EXT-18-2091-C-000627 007104-001378 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 52 1 ating outside of the United States, and classes of 2 international transactions; 3 (6) to ensure that the employment of such 4 measures by the Secretary permits appropriate op 5 portunity for comment by affected financial institu 6 tions; 7 (7) to provide guidance to domestic financial in 8 stitutions on particular foreign jurisdictions, finan 9 cial institutions operating outside of the United 10 States, and classes of international transactions that 11 are of primary money laundering concern to the 12 United States Government; 13 (8) to ensure that the forfeiture of any assets 14 in connection with the anti terrorist efforts of the 15 United States permits for adequate challenge con 16 sistent with providing due process rights; 17 18 19 (9) to clarify the terms of the safe harbor from civil liability for filing suspicious activity reports; (10) to strengthen the authority of the Sec 20 retary to issue and administer geographic targeting 21 orders, and to clarify that violations of such orders 22 or any other requirement imposed under the author 23 ity contained in chapter 2 of title I of Public Law 24 91 508 and subchapters II and III of chapter 53 of EXT-18-2091-C-000628 007104-001379 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 52 1 ating outside of the United States, and classes of 2 international transactions; 3 (6) to ensure that the employment of such 4 measures by the Secretary permits appropriate op 5 portunity for comment by affected financial institu 6 tions; 7 (7) to provide guidance to domestic financial in 8 stitutions on particular foreign jurisdictions, finan 9 cial institutions operating outside of the United 10 States, and classes of international transactions that 11 are of primary money laundering concern to the 12 United States Government; 13 (8) to ensure that the forfeiture of any assets 14 in connection with the anti terrorist efforts of the 15 United States permits for adequate challenge con 16 sistent with providing due process rights; 17 18 19 (9) to clarify the terms of the safe harbor from civil liability for filing suspicious activity reports; (10) to strengthen the authority of the Sec 20 retary to issue and administer geographic targeting 21 orders, and to clarify that violations of such orders 22 or any other requirement imposed under the author 23 ity contained in chapter 2 of title I of Public Law 24 91 508 and subchapters II and III of chapter 53 of EXT-18-2091-C-000628 007104-001379 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 53 1 title 31, United States Code, may result in criminal 2 and civil penalties; 3 (11) to ensure that all appropriate elements of 4 the financial services industry are subject to appro 5 priate requirements to report potential money laun 6 dering transactions to proper authorities, and that 7 jurisdictional disputes do not hinder examination of 8 compliance by financial institutions with relevant re 9 porting requirements; 10 (12) to fix responsibility for high level coordina 11 tion of the anti money laundering efforts of the De 12 partment of the Treasury; 13 (13) to strengthen the ability of financial insti 14 tutions to maintain the integrity of their employee 15 population; and 16 (14) to strengthen measures to prevent the use 17 of the United States financial system for personal 18 gain by corrupt foreign officials and to facilitate the 19 repatriation of any stolen assets to the citizens of 20 countries to whom such assets belong. 21 SEC. 303. 4-YEAR CONGRESSIONAL REVIEW-EXPEDITED 22 23 CONSIDERATION. (a) IN GENERAL. Effective on and after the first 24 day of fiscal year 2005, the provisions of this title and 25 the amendments made by this title shall terminate if the EXT-18-2091-C-000629 007104-001380 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 53 1 title 31, United States Code, may result in criminal 2 and civil penalties; 3 (11) to ensure that all appropriate elements of 4 the financial services industry are subject to appro 5 priate requirements to report potential money laun 6 dering transactions to proper authorities, and that 7 jurisdictional disputes do not hinder examination of 8 compliance by financial institutions with relevant re 9 porting requirements; 10 (12) to fix responsibility for high level coordina 11 tion of the anti money laundering efforts of the De 12 partment of the Treasury; 13 (13) to strengthen the ability of financial insti 14 tutions to maintain the integrity of their employee 15 population; and 16 (14) to strengthen measures to prevent the use 17 of the United States financial system for personal 18 gain by corrupt foreign officials and to facilitate the 19 repatriation of any stolen assets to the citizens of 20 countries to whom such assets belong. 21 SEC. 303. 4-YEAR CONGRESSIONAL REVIEW-EXPEDITED 22 23 CONSIDERATION. (a) IN GENERAL. Effective on and after the first 24 day of fiscal year 2005, the provisions of this title and 25 the amendments made by this title shall terminate if the EXT-18-2091-C-000629 007104-001380 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 54 1 Congress 2 solving 3 the enacts a joint resolution, the text after the re clause of which is as follows: ''That provisions of International Money Laundering Abatement and Anti 4 Terrorist 5 made Financing Act of 2001, and the amendments thereby, shall no longer have the force of law.''. (b) E XPEDITED CONSIDERATION. 6 Any joint resolu 7 tion submitted pursuant to this section shall be considered 8 in the Senate in accordance with the provisions of section 9 601(b) of the International Security Assistance and Arms 10 Control Act of 1976. For the purpose of expediting the 11 consideration and enactment of a joint resolution under 12 this section, a motion to proceed to the consideration of 13 any such joint resolution after it has been reported by the 14 appropriate committee, shall be treated as highly privi 15 leged in the House of Representatives. 16 Subtitle A--International Counter Money Laundering and Related Measures 17 18 19 SEC. 311. SPECIAL MEASURES FOR JURISDICTIONS, FINAN20 CIAL 21 TRANSACTIONS OF PRIMARY MONEY LAUN- 22 DERING CONCERN. INSTITUTIONS, OR INTERNATIONAL 23 (a) IN GENERAL. 24 title 31, United States Code, is amended by inserting after 25 section Subchapter II of chapter 53 of 5318 the following new section: EXT-18-2091-C-000630 007104-001381 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 54 1 Congress 2 solving 3 the enacts a joint resolution, the text after the re clause of which is as follows: ''That provisions of International Money Laundering Abatement and Anti 4 Terrorist 5 made Financing Act of 2001, and the amendments thereby, shall no longer have the force of law.''. (b) E XPEDITED CONSIDERATION. 6 Any joint resolu 7 tion submitted pursuant to this section shall be considered 8 in the Senate in accordance with the provisions of section 9 601(b) of the International Security Assistance and Arms 10 Control Act of 1976. For the purpose of expediting the 11 consideration and enactment of a joint resolution under 12 this section, a motion to proceed to the consideration of 13 any such joint resolution after it has been reported by the 14 appropriate committee, shall be treated as highly privi 15 leged in the House of Representatives. 16 Subtitle A--International Counter Money Laundering and Related Measures 17 18 19 SEC. 311. SPECIAL MEASURES FOR JURISDICTIONS, FINAN20 CIAL 21 TRANSACTIONS OF PRIMARY MONEY LAUN- 22 DERING CONCERN. INSTITUTIONS, OR INTERNATIONAL 23 (a) IN GENERAL. 24 title 31, United States Code, is amended by inserting after 25 section Subchapter II of chapter 53 of 5318 the following new section: EXT-18-2091-C-000630 007104-001381 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 55 1 ''SEC. 5318A. SPECIAL MEASURES FOR JURISDICTIONS, FI2 NANCIAL INSTITUTIONS, OR INTERNATIONAL 3 TRANSACTIONS OF PRIMARY MONEY LAUN- 4 DERING CONCERN. 5 ''(a) 6 DERING 7 COUNTER MONEY INTERNATIONAL REQUIREMENTS. ''(1) IN LAUN GENERAL. The Secretary may require 8 domestic financial institutions and domestic financial 9 agencies to take 1 or more of the special measures 10 described in subsection (b) if the Secretary finds 11 that reasonable grounds exist for concluding that a 12 jurisdiction outside of the United States, 1 or more 13 financial institutions operating outside of the United 14 States, 1 or more classes of transactions within, or 15 involving, a jurisdiction outside of the United States, 16 or 1 or more types of accounts is of primary money 17 laundering concern, in accordance with subsection 18 (c). 19 ''(2) FORM 20 measures described in OF REQUIREMENT. The special 21 ''(A) subsection (b) may be imposed in 22 such sequence or combination as the Secretary 23 shall determine; 24 ''(B) paragraphs (1) through (4) of sub 25 section (b) may be imposed by regulation, 26 order, or otherwise as permitted by law; and EXT-18-2091-C-000631 007104-001382 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 55 1 ''SEC. 5318A. SPECIAL MEASURES FOR JURISDICTIONS, FI2 NANCIAL INSTITUTIONS, OR INTERNATIONAL 3 TRANSACTIONS OF PRIMARY MONEY LAUN- 4 DERING CONCERN. 5 ''(a) 6 DERING 7 COUNTER MONEY INTERNATIONAL REQUIREMENTS. ''(1) IN LAUN GENERAL. The Secretary may require 8 domestic financial institutions and domestic financial 9 agencies to take 1 or more of the special measures 10 described in subsection (b) if the Secretary finds 11 that reasonable grounds exist for concluding that a 12 jurisdiction outside of the United States, 1 or more 13 financial institutions operating outside of the United 14 States, 1 or more classes of transactions within, or 15 involving, a jurisdiction outside of the United States, 16 or 1 or more types of accounts is of primary money 17 laundering concern, in accordance with subsection 18 (c). 19 ''(2) FORM 20 measures described in OF REQUIREMENT. The special 21 ''(A) subsection (b) may be imposed in 22 such sequence or combination as the Secretary 23 shall determine; 24 ''(B) paragraphs (1) through (4) of sub 25 section (b) may be imposed by regulation, 26 order, or otherwise as permitted by law; and EXT-18-2091-C-000631 007104-001382 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 56 ''(C) subsection (b)(5) may be imposed 1 2 only by regulation. 3 ''(3) DURATION OF ORDERS; RULEMAKING. 4 Any order by which a special measure described in 5 paragraphs (1) through (4) of subsection (b) is im 6 posed (other than an order described in section 7 5326) ''(A) shall be issued together with a notice 8 9 10 of proposed rulemaking relating to the imposi tion of such special measure; and ''(B) may not remain in effect for more 11 12 than 120 days, except pursuant to a rule pro 13 mulgated on or before the end of the 120 day 14 period beginning on the date of issuance of 15 such order. 16 ''(4) PROCESS FOR SELECTING SPECIAL MEAS 17 URES. In selecting which special measure or meas 18 ures to take under this subsection, the Secretary 19 ''(A) shall consult with the Chairman of 20 the Board of Governors of the Federal Reserve 21 System, any other appropriate Federal banking 22 agency, as defined in section 3 of the Federal 23 Deposit Insurance Act, the Securities and Ex 24 change Commission, the National Credit Union 25 Administration Board, and in the sole discre EXT-18-2091-C-000632 007104-001383 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 56 ''(C) subsection (b)(5) may be imposed 1 2 only by regulation. 3 ''(3) DURATION OF ORDERS; RULEMAKING. 4 Any order by which a special measure described in 5 paragraphs (1) through (4) of subsection (b) is im 6 posed (other than an order described in section 7 5326) ''(A) shall be issued together with a notice 8 9 10 of proposed rulemaking relating to the imposi tion of such special measure; and ''(B) may not remain in effect for more 11 12 than 120 days, except pursuant to a rule pro 13 mulgated on or before the end of the 120 day 14 period beginning on the date of issuance of 15 such order. 16 ''(4) PROCESS FOR SELECTING SPECIAL MEAS 17 URES. In selecting which special measure or meas 18 ures to take under this subsection, the Secretary 19 ''(A) shall consult with the Chairman of 20 the Board of Governors of the Federal Reserve 21 System, any other appropriate Federal banking 22 agency, as defined in section 3 of the Federal 23 Deposit Insurance Act, the Securities and Ex 24 change Commission, the National Credit Union 25 Administration Board, and in the sole discre EXT-18-2091-C-000632 007104-001383 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 57 1 tion of the Secretary such other agencies and 2 interested parties as the Secretary may find to 3 be appropriate; and 4 ''(B) shall consider ''(i) whether similar action has been 5 6 or is being taken by other nations or multi 7 lateral groups; 8 ''(ii) whether the imposition of any 9 particular special measure would create a 10 significant competitive disadvantage, in 11 cluding any undue cost or burden associ 12 ated with compliance, for financial institu 13 tions organized or licensed in the United 14 States; and ''(iii) the extent to which the action or 15 16 the timing of the action would have a sig 17 nificant adverse systemic impact on the 18 international payment, clearance, and set 19 tlement system, or on legitimate business 20 activities involving the particular jurisdic 21 tion, institution, or class of transactions. 22 ''(5) NO LIMITATION ON OTHER AUTHORITY. 23 This section shall not be construed as superseding or 24 otherwise restricting any other authority granted to EXT-18-2091-C-000633 007104-001384 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 57 1 tion of the Secretary such other agencies and 2 interested parties as the Secretary may find to 3 be appropriate; and 4 ''(B) shall consider ''(i) whether similar action has been 5 6 or is being taken by other nations or multi 7 lateral groups; 8 ''(ii) whether the imposition of any 9 particular special measure would create a 10 significant competitive disadvantage, in 11 cluding any undue cost or burden associ 12 ated with compliance, for financial institu 13 tions organized or licensed in the United 14 States; and ''(iii) the extent to which the action or 15 16 the timing of the action would have a sig 17 nificant adverse systemic impact on the 18 international payment, clearance, and set 19 tlement system, or on legitimate business 20 activities involving the particular jurisdic 21 tion, institution, or class of transactions. 22 ''(5) NO LIMITATION ON OTHER AUTHORITY. 23 This section shall not be construed as superseding or 24 otherwise restricting any other authority granted to EXT-18-2091-C-000633 007104-001384 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 58 1 the Secretary, or to any other agency, by this sub 2 chapter or otherwise. 3 ''(b) SPECIAL MEASURES. The special measures re 4 ferred to in subsection (a), with respect to a jurisdiction 5 outside of the United States, financial institution oper 6 ating outside of the United States, class of transaction 7 within, or involving, a jurisdiction outside of the United 8 States, or 1 or more types of accounts are as follows: 9 10 11 ''(1) RECORDKEEPING AND CERTAIN FINANCIAL TRANSACTIONS. ''(A) IN GENERAL. REPORTING OF The Secretary may re 12 quire any domestic financial institution or do 13 mestic financial agency to maintain records, file 14 reports, or both, concerning the aggregate 15 amount of transactions, or concerning each 16 transaction, with respect to a jurisdiction out 17 side of the United States, 1 or more financial 18 institutions operating outside of the United 19 States, 1 or more classes of transactions within, 20 or involving, a jurisdiction outside of the United 21 States, or 1 or more types of accounts if the 22 Secretary finds any such jurisdiction, institu 23 tion, or class of transactions to be of primary 24 money laundering concern. EXT-18-2091-C-000634 007104-001385 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 58 1 the Secretary, or to any other agency, by this sub 2 chapter or otherwise. 3 ''(b) SPECIAL MEASURES. The special measures re 4 ferred to in subsection (a), with respect to a jurisdiction 5 outside of the United States, financial institution oper 6 ating outside of the United States, class of transaction 7 within, or involving, a jurisdiction outside of the United 8 States, or 1 or more types of accounts are as follows: 9 10 11 ''(1) RECORDKEEPING AND CERTAIN FINANCIAL TRANSACTIONS. ''(A) IN GENERAL. REPORTING OF The Secretary may re 12 quire any domestic financial institution or do 13 mestic financial agency to maintain records, file 14 reports, or both, concerning the aggregate 15 amount of transactions, or concerning each 16 transaction, with respect to a jurisdiction out 17 side of the United States, 1 or more financial 18 institutions operating outside of the United 19 States, 1 or more classes of transactions within, 20 or involving, a jurisdiction outside of the United 21 States, or 1 or more types of accounts if the 22 Secretary finds any such jurisdiction, institu 23 tion, or class of transactions to be of primary 24 money laundering concern. EXT-18-2091-C-000634 007104-001385 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 59 1 ''(B) FORM OF RECORDS AND REPORTS. 2 Such records and reports shall be made and re 3 tained at such time, in such manner, and for 4 such period of time, as the Secretary shall de 5 termine, and shall include such information as 6 the Secretary may determine, including ''(i) the identity and address of the 7 8 participants in a transaction or relation 9 ship, including the identity of the origi 10 nator of any funds transfer; ''(ii) the legal capacity in which a par 11 12 ticipant in any transaction is acting; ''(iii) the identity of the beneficial 13 14 owner of the funds involved in any trans 15 action, in accordance with such procedures 16 as the Secretary determines to be reason 17 able and practicable to obtain and retain 18 the information; and ''(iv) a description of any transaction. 19 20 ''(2) INFORMATION RELATING TO BENEFICIAL 21 OWNERSHIP. In addition to any other requirement 22 under any other provision of law, the Secretary may 23 require any domestic financial institution or domes 24 tic financial agency to take such steps as the Sec 25 retary may determine to be reasonable and prac EXT-18-2091-C-000635 007104-001386 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 59 1 ''(B) FORM OF RECORDS AND REPORTS. 2 Such records and reports shall be made and re 3 tained at such time, in such manner, and for 4 such period of time, as the Secretary shall de 5 termine, and shall include such information as 6 the Secretary may determine, including ''(i) the identity and address of the 7 8 participants in a transaction or relation 9 ship, including the identity of the origi 10 nator of any funds transfer; ''(ii) the legal capacity in which a par 11 12 ticipant in any transaction is acting; ''(iii) the identity of the beneficial 13 14 owner of the funds involved in any trans 15 action, in accordance with such procedures 16 as the Secretary determines to be reason 17 able and practicable to obtain and retain 18 the information; and ''(iv) a description of any transaction. 19 20 ''(2) INFORMATION RELATING TO BENEFICIAL 21 OWNERSHIP. In addition to any other requirement 22 under any other provision of law, the Secretary may 23 require any domestic financial institution or domes 24 tic financial agency to take such steps as the Sec 25 retary may determine to be reasonable and prac EXT-18-2091-C-000635 007104-001386 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 60 1 ticable to obtain and retain information concerning 2 the beneficial ownership of any account opened or 3 maintained in the United States by a foreign person 4 (other than a foreign entity whose shares are subject 5 to public reporting requirements or are listed and 6 traded on a regulated exchange or trading market), 7 or a representative of such a foreign person, that in 8 volves a jurisdiction outside of the United States, 1 9 or more financial institutions operating outside of 10 the United States, 1 or more classes of transactions 11 within, or involving, a jurisdiction outside of the 12 United States, or 1 or more types of accounts if the 13 Secretary finds any such jurisdiction, institution, or 14 transaction to be of primary money laundering con 15 cern. 16 ''(3) INFORMATION 17 ABLE THROUGH ACCOUNTS. 18 a jurisdiction outside of the United States, 1 or 19 more financial institutions operating outside of the 20 United States, or 1 or more classes of transactions 21 within, or involving, a jurisdiction outside of the 22 United States to be of primary money laundering 23 concern, the Secretary may require any domestic fi 24 nancial institution or domestic financial agency that 25 opens or maintains a payable through account in the RELATING TO CERTAIN PAY If the Secretary finds EXT-18-2091-C-000636 007104-001387 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 60 1 ticable to obtain and retain information concerning 2 the beneficial ownership of any account opened or 3 maintained in the United States by a foreign person 4 (other than a foreign entity whose shares are subject 5 to public reporting requirements or are listed and 6 traded on a regulated exchange or trading market), 7 or a representative of such a foreign person, that in 8 volves a jurisdiction outside of the United States, 1 9 or more financial institutions operating outside of 10 the United States, 1 or more classes of transactions 11 within, or involving, a jurisdiction outside of the 12 United States, or 1 or more types of accounts if the 13 Secretary finds any such jurisdiction, institution, or 14 transaction to be of primary money laundering con 15 cern. 16 ''(3) INFORMATION 17 ABLE THROUGH ACCOUNTS. 18 a jurisdiction outside of the United States, 1 or 19 more financial institutions operating outside of the 20 United States, or 1 or more classes of transactions 21 within, or involving, a jurisdiction outside of the 22 United States to be of primary money laundering 23 concern, the Secretary may require any domestic fi 24 nancial institution or domestic financial agency that 25 opens or maintains a payable through account in the RELATING TO CERTAIN PAY If the Secretary finds EXT-18-2091-C-000636 007104-001387 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 61 1 United States for a foreign financial institution in 2 volving any such jurisdiction or any such financial 3 institution operating outside of the United States, or 4 a payable through account through which any such 5 transaction may be conducted, as a condition of 6 opening or maintaining such account 7 ''(A) to identify each customer (and rep 8 resentative of such customer) of such financial 9 institution who is permitted to use, or whose 10 transactions are routed through, such payable 11 through account; and 12 ''(B) to obtain, with respect to each such 13 customer (and each such representative), infor 14 mation that is substantially comparable to that 15 which the depository institution obtains in the 16 ordinary course of business with respect to its 17 customers residing in the United States. 18 ''(4) INFORMATION RELATING TO CERTAIN COR 19 RESPONDENT ACCOUNTS. If the Secretary finds a 20 jurisdiction outside of the United States, 1 or more 21 financial institutions operating outside of the United 22 States, or 1 or more classes of transactions within, 23 or involving, a jurisdiction outside of the United 24 States to be of primary money laundering concern, 25 the Secretary may require any domestic financial in EXT-18-2091-C-000637 007104-001388 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 61 1 United States for a foreign financial institution in 2 volving any such jurisdiction or any such financial 3 institution operating outside of the United States, or 4 a payable through account through which any such 5 transaction may be conducted, as a condition of 6 opening or maintaining such account 7 ''(A) to identify each customer (and rep 8 resentative of such customer) of such financial 9 institution who is permitted to use, or whose 10 transactions are routed through, such payable 11 through account; and 12 ''(B) to obtain, with respect to each such 13 customer (and each such representative), infor 14 mation that is substantially comparable to that 15 which the depository institution obtains in the 16 ordinary course of business with respect to its 17 customers residing in the United States. 18 ''(4) INFORMATION RELATING TO CERTAIN COR 19 RESPONDENT ACCOUNTS. If the Secretary finds a 20 jurisdiction outside of the United States, 1 or more 21 financial institutions operating outside of the United 22 States, or 1 or more classes of transactions within, 23 or involving, a jurisdiction outside of the United 24 States to be of primary money laundering concern, 25 the Secretary may require any domestic financial in EXT-18-2091-C-000637 007104-001388 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 62 1 stitution or domestic financial agency that opens or 2 maintains a correspondent account in the United 3 States for a foreign financial institution involving 4 any such jurisdiction or any such financial institu 5 tion operating outside of the United States, or a cor 6 respondent account through which any such trans 7 action may be conducted, as a condition of opening 8 or maintaining such account 9 ''(A) to identify each customer (and rep 10 resentative of such customer) of any such finan 11 cial institution who is permitted to use, or 12 whose transactions are routed through, such 13 correspondent account; and 14 ''(B) to obtain, with respect to each such 15 customer (and each such representative), infor 16 mation that is substantially comparable to that 17 which the depository institution obtains in the 18 ordinary course of business with respect to its 19 customers residing in the United States. 20 ''(5) PROHIBITIONS OR CONDITIONS ON OPEN 21 ING OR MAINTAINING CERTAIN CORRESPONDENT OR 22 PAYABLE THROUGH 23 finds a jurisdiction outside of the United States, 1 24 or more financial institutions operating outside of 25 the United States, or 1 or more classes of trans ACCOUNTS. If the Secretary EXT-18-2091-C-000638 007104-001389 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 62 1 stitution or domestic financial agency that opens or 2 maintains a correspondent account in the United 3 States for a foreign financial institution involving 4 any such jurisdiction or any such financial institu 5 tion operating outside of the United States, or a cor 6 respondent account through which any such trans 7 action may be conducted, as a condition of opening 8 or maintaining such account 9 ''(A) to identify each customer (and rep 10 resentative of such customer) of any such finan 11 cial institution who is permitted to use, or 12 whose transactions are routed through, such 13 correspondent account; and 14 ''(B) to obtain, with respect to each such 15 customer (and each such representative), infor 16 mation that is substantially comparable to that 17 which the depository institution obtains in the 18 ordinary course of business with respect to its 19 customers residing in the United States. 20 ''(5) PROHIBITIONS OR CONDITIONS ON OPEN 21 ING OR MAINTAINING CERTAIN CORRESPONDENT OR 22 PAYABLE THROUGH 23 finds a jurisdiction outside of the United States, 1 24 or more financial institutions operating outside of 25 the United States, or 1 or more classes of trans ACCOUNTS. If the Secretary EXT-18-2091-C-000638 007104-001389 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 63 1 actions within, or involving, a jurisdiction outside of 2 the United States to be of primary money laun 3 dering concern, the Secretary, in consultation with 4 the Secretary of State, the Attorney General, and 5 the Chairman of the Board of Governors of the Fed 6 eral Reserve System, may prohibit, or impose condi 7 tions upon, the opening or maintaining in the United 8 States of a correspondent account or payable 9 through account by any domestic financial institu 10 tion or domestic financial agency for or on behalf of 11 a foreign banking institution, if such correspondent 12 account or payable through account involves any 13 such jurisdiction or institution, or if any such trans 14 action may be 15 respondent account or payable through account. 16 ''(c) CONSULTATIONS 17 CONSIDERED 18 TYPES OF IN conducted through such cor INFORMATION TO BE FINDING JURISDICTIONS, INSTITUTIONS, ACCOUNTS, OR TRANSACTIONS TO BE 19 MARY MONEY LAUNDERING 20 AND ''(1) IN CONCERN. GENERAL. OF PRI In making a finding that 21 reasonable grounds exist for concluding that a juris 22 diction outside of the United States, 1 or more fi 23 nancial institutions operating outside of the United 24 States, 1 or more classes of transactions within, or 25 involving, a jurisdiction outside of the United States, EXT-18-2091-C-000639 007104-001390 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 63 1 actions within, or involving, a jurisdiction outside of 2 the United States to be of primary money laun 3 dering concern, the Secretary, in consultation with 4 the Secretary of State, the Attorney General, and 5 the Chairman of the Board of Governors of the Fed 6 eral Reserve System, may prohibit, or impose condi 7 tions upon, the opening or maintaining in the United 8 States of a correspondent account or payable 9 through account by any domestic financial institu 10 tion or domestic financial agency for or on behalf of 11 a foreign banking institution, if such correspondent 12 account or payable through account involves any 13 such jurisdiction or institution, or if any such trans 14 action may be 15 respondent account or payable through account. 16 ''(c) CONSULTATIONS 17 CONSIDERED 18 TYPES OF IN conducted through such cor INFORMATION TO BE FINDING JURISDICTIONS, INSTITUTIONS, ACCOUNTS, OR TRANSACTIONS TO BE 19 MARY MONEY LAUNDERING 20 AND ''(1) IN CONCERN. GENERAL. OF PRI In making a finding that 21 reasonable grounds exist for concluding that a juris 22 diction outside of the United States, 1 or more fi 23 nancial institutions operating outside of the United 24 States, 1 or more classes of transactions within, or 25 involving, a jurisdiction outside of the United States, EXT-18-2091-C-000639 007104-001390 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 64 1 or 1 or more types of accounts is of primary money 2 laundering concern so as to authorize the Secretary 3 to take 1 or more of the special measures described 4 in subsection (b), the Secretary shall consult with 5 the Secretary of State, and the Attorney General. 6 ''(2) ADDITIONAL CONSIDERATIONS. In mak 7 ing a finding described in paragraph (1), the Sec 8 retary shall consider in addition such information as 9 the Secretary determines to be relevant, including 10 the following potentially relevant factors: 11 ''(A) JURISDICTIONAL 12 FACTORS. case of a particular jurisdiction In the 13 ''(i) evidence that organized criminal 14 groups, international terrorists, or both, 15 have transacted business in that jurisdic 16 tion; 17 (ii) the extent to which that jurisdic 18 tion or financial institutions operating in 19 that jurisdiction offer bank secrecy or spe 20 cial tax or regulatory advantages to non 21 residents or nondomiciliaries of that juris 22 diction; 23 24 ''(iii) the substance and quality of ad ministration of the bank supervisory and EXT-18-2091-C-000640 007104-001391 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 64 1 or 1 or more types of accounts is of primary money 2 laundering concern so as to authorize the Secretary 3 to take 1 or more of the special measures described 4 in subsection (b), the Secretary shall consult with 5 the Secretary of State, and the Attorney General. 6 ''(2) ADDITIONAL CONSIDERATIONS. In mak 7 ing a finding described in paragraph (1), the Sec 8 retary shall consider in addition such information as 9 the Secretary determines to be relevant, including 10 the following potentially relevant factors: 11 ''(A) JURISDICTIONAL 12 FACTORS. case of a particular jurisdiction In the 13 ''(i) evidence that organized criminal 14 groups, international terrorists, or both, 15 have transacted business in that jurisdic 16 tion; 17 (ii) the extent to which that jurisdic 18 tion or financial institutions operating in 19 that jurisdiction offer bank secrecy or spe 20 cial tax or regulatory advantages to non 21 residents or nondomiciliaries of that juris 22 diction; 23 24 ''(iii) the substance and quality of ad ministration of the bank supervisory and EXT-18-2091-C-000640 007104-001391 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 65 1 counter money laundering laws of that ju 2 risdiction; 3 ''(iv) the relationship between the vol 4 ume of financial transactions occurring in 5 that jurisdiction and the size of the econ 6 omy of the jurisdiction; 7 ''(v) the extent to which that jurisdic 8 tion is characterized as a tax haven or off 9 shore banking or secrecy haven by credible 10 international organizations or multilateral 11 expert groups; 12 ''(vi) whether the United States has a 13 mutual legal assistance treaty with that ju 14 risdiction, and the experience of United 15 States law enforcement officials, regulatory 16 officials, and tax administrators in obtain 17 ing information about transactions origi 18 nating in or routed through or to such ju 19 risdiction; and 20 ''(vii) the extent to which that juris 21 diction is characterized by high levels of of 22 ficial or institutional corruption. 23 ''(B) INSTITUTIONAL FACTORS. In the 24 case of a decision to apply 1 or more of the spe 25 cial measures described in subsection (b) only EXT-18-2091-C-000641 007104-001392 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 65 1 counter money laundering laws of that ju 2 risdiction; 3 ''(iv) the relationship between the vol 4 ume of financial transactions occurring in 5 that jurisdiction and the size of the econ 6 omy of the jurisdiction; 7 ''(v) the extent to which that jurisdic 8 tion is characterized as a tax haven or off 9 shore banking or secrecy haven by credible 10 international organizations or multilateral 11 expert groups; 12 ''(vi) whether the United States has a 13 mutual legal assistance treaty with that ju 14 risdiction, and the experience of United 15 States law enforcement officials, regulatory 16 officials, and tax administrators in obtain 17 ing information about transactions origi 18 nating in or routed through or to such ju 19 risdiction; and 20 ''(vii) the extent to which that juris 21 diction is characterized by high levels of of 22 ficial or institutional corruption. 23 ''(B) INSTITUTIONAL FACTORS. In the 24 case of a decision to apply 1 or more of the spe 25 cial measures described in subsection (b) only EXT-18-2091-C-000641 007104-001392 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 66 1 to a financial institution or institutions, or to a 2 transaction or class of transactions, or to a type 3 of account, or to all 3, within or involving a 4 particular jurisdiction ''(i) the extent to which such financial 5 6 institutions, transactions, or types of ac 7 counts are used to facilitate or promote 8 money laundering in or through the juris 9 diction; ''(ii) the extent to which such institu 10 11 tions, transactions, or types of accounts 12 are used for legitimate business purposes 13 in the jurisdiction; and 14 ''(iii) the extent to which such action 15 is sufficient to ensure, with respect to 16 transactions involving the jurisdiction and 17 institutions operating in the jurisdiction, 18 that the purposes of this subchapter con 19 tinue to be fulfilled, and to guard against 20 international money laundering and other 21 financial crimes. 22 ''(d) NOTIFICATION 23 VOKED BY THE OF SECRETARY. SPECIAL MEASURES IN Not later than 10 days 24 after the date of any action taken by the Secretary under 25 subsection (a)(1), the Secretary shall notify, in writing, EXT-18-2091-C-000642 007104-001393 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 66 1 to a financial institution or institutions, or to a 2 transaction or class of transactions, or to a type 3 of account, or to all 3, within or involving a 4 particular jurisdiction ''(i) the extent to which such financial 5 6 institutions, transactions, or types of ac 7 counts are used to facilitate or promote 8 money laundering in or through the juris 9 diction; ''(ii) the extent to which such institu 10 11 tions, transactions, or types of accounts 12 are used for legitimate business purposes 13 in the jurisdiction; and 14 ''(iii) the extent to which such action 15 is sufficient to ensure, with respect to 16 transactions involving the jurisdiction and 17 institutions operating in the jurisdiction, 18 that the purposes of this subchapter con 19 tinue to be fulfilled, and to guard against 20 international money laundering and other 21 financial crimes. 22 ''(d) NOTIFICATION 23 VOKED BY THE OF SECRETARY. SPECIAL MEASURES IN Not later than 10 days 24 after the date of any action taken by the Secretary under 25 subsection (a)(1), the Secretary shall notify, in writing, EXT-18-2091-C-000642 007104-001393 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 67 1 the Committee on Financial Services of the House of Rep 2 resentatives and the Committee on Banking, Housing, and 3 Urban Affairs of the Senate of any such action. 4 5 ALS. 6 ''(e) STUDY AND REPORT ON FOREIGN NATION ''(1) STUDY. The Secretary, in consultation 7 with the appropriate Federal agencies, including the 8 Federal banking agencies (as defined in section 3 of 9 the Federal Deposit Insurance Act), shall conduct a 10 11 study to ''(A) determine the most timely and effec 12 tive way to require foreign nationals to provide 13 domestic financial institutions and agencies 14 with appropriate and accurate information, 15 comparable to that which is required of United 16 States nationals, concerning their identity, ad 17 dress, and other related information necessary 18 to enable such institutions and agencies to com 19 ply with the reporting, information gathering, 20 and other requirements of this section; and 21 ''(B) consider the need for requiring for 22 eign nationals to apply for and obtain an identi 23 fication number, similar to what is required for 24 United States citizens through a social security 25 number or tax identification number, prior to EXT-18-2091-C-000643 007104-001394 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 67 1 the Committee on Financial Services of the House of Rep 2 resentatives and the Committee on Banking, Housing, and 3 Urban Affairs of the Senate of any such action. 4 5 ALS. 6 ''(e) STUDY AND REPORT ON FOREIGN NATION ''(1) STUDY. The Secretary, in consultation 7 with the appropriate Federal agencies, including the 8 Federal banking agencies (as defined in section 3 of 9 the Federal Deposit Insurance Act), shall conduct a 10 11 study to ''(A) determine the most timely and effec 12 tive way to require foreign nationals to provide 13 domestic financial institutions and agencies 14 with appropriate and accurate information, 15 comparable to that which is required of United 16 States nationals, concerning their identity, ad 17 dress, and other related information necessary 18 to enable such institutions and agencies to com 19 ply with the reporting, information gathering, 20 and other requirements of this section; and 21 ''(B) consider the need for requiring for 22 eign nationals to apply for and obtain an identi 23 fication number, similar to what is required for 24 United States citizens through a social security 25 number or tax identification number, prior to EXT-18-2091-C-000643 007104-001394 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 68 1 opening an account with a domestic financial 2 institution. 3 ''(2) REPORT. The Secretary shall report to 4 Congress not later than 180 days after the date of 5 enactment of this section with recommendations for 6 implementing such action referred to in paragraph 7 (1) in a timely and effective manner. 8 ''(f) DEFINITIONS. 9 vision of this subchapter, for purposes of this section, the 10 following definitions 11 12 13 Notwithstanding any other pro shall apply: ''(1) BANK DEFINITIONS. The following defini tions shall apply with respect to a bank: ''(A) ACCOUNT. The term 'account' ''(i) means a formal banking or busi 14 15 ness relationship established to provide 16 regular services, dealings, and other finan 17 cial transactions; and ''(ii) includes a demand deposit, sav 18 19 ings deposit, or other transaction or asset 20 account and a credit account or other ex 21 tension of credit. 22 ''(B) CORRESPONDENT ACCOUNT. The 23 term 'correspondent account' means an account 24 established to receive deposits from, make pay 25 ments on behalf of a foreign financial institu EXT-18-2091-C-000644 007104-001395 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 68 1 opening an account with a domestic financial 2 institution. 3 ''(2) REPORT. The Secretary shall report to 4 Congress not later than 180 days after the date of 5 enactment of this section with recommendations for 6 implementing such action referred to in paragraph 7 (1) in a timely and effective manner. 8 ''(f) DEFINITIONS. 9 vision of this subchapter, for purposes of this section, the 10 following definitions 11 12 13 Notwithstanding any other pro shall apply: ''(1) BANK DEFINITIONS. The following defini tions shall apply with respect to a bank: ''(A) ACCOUNT. The term 'account' ''(i) means a formal banking or busi 14 15 ness relationship established to provide 16 regular services, dealings, and other finan 17 cial transactions; and ''(ii) includes a demand deposit, sav 18 19 ings deposit, or other transaction or asset 20 account and a credit account or other ex 21 tension of credit. 22 ''(B) CORRESPONDENT ACCOUNT. The 23 term 'correspondent account' means an account 24 established to receive deposits from, make pay 25 ments on behalf of a foreign financial institu EXT-18-2091-C-000644 007104-001395 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 69 1 tion, or handle other financial transactions re 2 lated to such institution. ''(C) PAYABLE 3 THROUGH ACCOUNT. The 4 term 'payable through account' means an ac 5 count, including a transaction account (as de 6 fined in section 19(b)(1)(C) of the Federal Re 7 serve Act), opened at a depository institution by 8 a foreign financial institution by means of 9 which the foreign financial institution permits 10 its customers to engage, either directly or 11 through a subaccount, in banking activities 12 usual in connection with the business of bank 13 ing in the United States. 14 ''(2) DEFINITIONS APPLICABLE TO INSTITU 15 TIONS OTHER THAN BANKS. 16 nancial institution other than a bank, the Secretary 17 shall, after consultation with the Securities and Ex 18 change Commission, define by regulation the term 19 'account', and shall include within the meaning of 20 that term, to the extent, if any, that the Secretary 21 deems appropriate, arrangements similar to payable 22 through and correspondent accounts. 23 ''(3) REGULATORY With respect to any fi DEFINITION. The Sec 24 retary shall promulgate regulations defining bene 25 ficial ownership of an account for purposes of this EXT-18-2091-C-000645 007104-001396 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 69 1 tion, or handle other financial transactions re 2 lated to such institution. ''(C) PAYABLE 3 THROUGH ACCOUNT. The 4 term 'payable through account' means an ac 5 count, including a transaction account (as de 6 fined in section 19(b)(1)(C) of the Federal Re 7 serve Act), opened at a depository institution by 8 a foreign financial institution by means of 9 which the foreign financial institution permits 10 its customers to engage, either directly or 11 through a subaccount, in banking activities 12 usual in connection with the business of bank 13 ing in the United States. 14 ''(2) DEFINITIONS APPLICABLE TO INSTITU 15 TIONS OTHER THAN BANKS. 16 nancial institution other than a bank, the Secretary 17 shall, after consultation with the Securities and Ex 18 change Commission, define by regulation the term 19 'account', and shall include within the meaning of 20 that term, to the extent, if any, that the Secretary 21 deems appropriate, arrangements similar to payable 22 through and correspondent accounts. 23 ''(3) REGULATORY With respect to any fi DEFINITION. The Sec 24 retary shall promulgate regulations defining bene 25 ficial ownership of an account for purposes of this EXT-18-2091-C-000645 007104-001396 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 70 1 section. Such regulations shall address issues related 2 to an individual's authority to fund, direct, or man 3 age the account (including, without limitation, the 4 power to direct payments into or out of the ac 5 count), and an individual's material interest in the 6 income or corpus of the account, and shall ensure 7 that the identification of individuals under this sec 8 tion does not extend to any individual whose bene 9 ficial interest in the income or corpus of the account 10 is immaterial.''. 11 ''(4) OTHER TERMS. The Secretary may, by 12 regulation, further define the terms in paragraphs 13 (1) and (2) and define other terms for the purposes 14 of this section, as the Secretary deems appro 15 priate.''. 16 (b) CLERICAL AMENDMENT. 17 for The table of sections subchapter II of chapter 53 of title 31, United States 18 Code, is amended by inserting after the item relating to 19 section 5318 the following new item: ''5318A. Special measures for jurisdictions, financial institutions, or inter national transactions of primary money laundering concern.''. EXT-18-2091-C-000646 007104-001397 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 70 1 section. Such regulations shall address issues related 2 to an individual's authority to fund, direct, or man 3 age the account (including, without limitation, the 4 power to direct payments into or out of the ac 5 count), and an individual's material interest in the 6 income or corpus of the account, and shall ensure 7 that the identification of individuals under this sec 8 tion does not extend to any individual whose bene 9 ficial interest in the income or corpus of the account 10 is immaterial.''. 11 ''(4) OTHER TERMS. The Secretary may, by 12 regulation, further define the terms in paragraphs 13 (1) and (2) and define other terms for the purposes 14 of this section, as the Secretary deems appro 15 priate.''. 16 (b) CLERICAL AMENDMENT. 17 for The table of sections subchapter II of chapter 53 of title 31, United States 18 Code, is amended by inserting after the item relating to 19 section 5318 the following new item: ''5318A. Special measures for jurisdictions, financial institutions, or inter national transactions of primary money laundering concern.''. EXT-18-2091-C-000646 007104-001397 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 71 1 SEC. 312. SPECIAL DUE DILIGENCE FOR CORRESPONDENT 2 ACCOUNTS 3 COUNTS. (a) IN GENERAL. 4 AND PRIVATE BANKING AC- Section 5318 of title 31, United 5 States Code, is amended by adding at the end the fol 6 lowing: ''(i) DUE DILIGENCE 7 8 BANKING 9 VOLVING AND FOR UNITED STATES PRIVATE CORRESPONDENT BANK ACCOUNTS IN FOREIGN PERSONS. 10 ''(1) IN GENERAL . Each financial institution 11 that establishes, maintains, administers, or manages 12 a private banking account or a correspondent ac 13 count in the United States for a non United States 14 person, including a foreign individual visiting the 15 United States, or a representative of a non United 16 States person shall establish appropriate, specific, 17 and, where necessary, enhanced, due diligence poli 18 cies, procedures, and controls to detect and report 19 instances of money laundering through those ac 20 counts. 21 22 23 ''(2) MINIMUM RESPONDENT ACCOUNTS. ''(A) IN STANDARDS FOR COR GENERAL. Subparagraph (B) 24 shall apply if a correspondent account is re 25 quested or maintained by, or on behalf of, a 26 foreign bank operating EXT-18-2091-C-000647 007104-001398 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 71 1 SEC. 312. SPECIAL DUE DILIGENCE FOR CORRESPONDENT 2 ACCOUNTS 3 COUNTS. (a) IN GENERAL. 4 AND PRIVATE BANKING AC- Section 5318 of title 31, United 5 States Code, is amended by adding at the end the fol 6 lowing: ''(i) DUE DILIGENCE 7 8 BANKING 9 VOLVING AND FOR UNITED STATES PRIVATE CORRESPONDENT BANK ACCOUNTS IN FOREIGN PERSONS. 10 ''(1) IN GENERAL . Each financial institution 11 that establishes, maintains, administers, or manages 12 a private banking account or a correspondent ac 13 count in the United States for a non United States 14 person, including a foreign individual visiting the 15 United States, or a representative of a non United 16 States person shall establish appropriate, specific, 17 and, where necessary, enhanced, due diligence poli 18 cies, procedures, and controls to detect and report 19 instances of money laundering through those ac 20 counts. 21 22 23 ''(2) MINIMUM RESPONDENT ACCOUNTS. ''(A) IN STANDARDS FOR COR GENERAL. Subparagraph (B) 24 shall apply if a correspondent account is re 25 quested or maintained by, or on behalf of, a 26 foreign bank operating EXT-18-2091-C-000647 007104-001398 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 72 ''(i) under an offshore banking li 1 2 cense; or 3 ''(ii) under a banking license issued 4 by a foreign country that has been 5 designated 6 ''(I) as noncooperative with inter 7 national anti money laundering prin 8 ciples or procedures by an intergov 9 ernmental group or organization of 10 which the United States is a member; 11 or ''(II) by the Secretary as war 12 13 ranting special 14 money laundering concerns. 15 ''(B) POLICIES, measures due to PROCEDURES, AND CON 16 TROLS. The enhanced due diligence policies, 17 procedures, and controls required under para 18 graph (1) shall, at a minimum, ensure that the 19 financial institution in the United States takes 20 reasonable steps 21 ''(i) to ascertain for any such foreign 22 bank, the shares of which are not publicly 23 traded, the identity of each of the owners 24 of the foreign bank, and the nature and EXT-18-2091-C-000648 007104-001399 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 72 ''(i) under an offshore banking li 1 2 cense; or 3 ''(ii) under a banking license issued 4 by a foreign country that has been 5 designated 6 ''(I) as noncooperative with inter 7 national anti money laundering prin 8 ciples or procedures by an intergov 9 ernmental group or organization of 10 which the United States is a member; 11 or ''(II) by the Secretary as war 12 13 ranting special 14 money laundering concerns. 15 ''(B) POLICIES, measures due to PROCEDURES, AND CON 16 TROLS. The enhanced due diligence policies, 17 procedures, and controls required under para 18 graph (1) shall, at a minimum, ensure that the 19 financial institution in the United States takes 20 reasonable steps 21 ''(i) to ascertain for any such foreign 22 bank, the shares of which are not publicly 23 traded, the identity of each of the owners 24 of the foreign bank, and the nature and EXT-18-2091-C-000648 007104-001399 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 73 1 extent of the ownership interest of each 2 such owner; ''(ii) to conduct enhanced scrutiny of 3 4 such account to guard against money laun 5 dering and report any suspicious trans 6 actions under section 5318(g); and ''(iii) to ascertain whether such for 7 8 eign bank provides correspondent accounts 9 to other foreign banks and, if so, the iden 10 tity of those foreign banks and related due 11 diligence information, as appropriate under 12 paragraph (1). 13 ''(3) MINIMUM STANDARDS FOR PRIVATE BANK 14 ING ACCOUNTS. 15 quested or maintained by, or on behalf of, a non 16 United States person, then the due diligence policies, 17 procedures, and controls required under paragraph 18 (1) shall, at a minimum, ensure that the financial 19 institution takes reasonable steps 20 If a private banking account is re ''(A) to ascertain the identity of the nomi 21 nal and beneficial owners of, and the source of 22 funds deposited into, such account as needed to 23 guard against money laundering and report any 24 suspicious transactions under section 5318(g); 25 and EXT-18-2091-C-000649 007104-001400 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 73 1 extent of the ownership interest of each 2 such owner; ''(ii) to conduct enhanced scrutiny of 3 4 such account to guard against money laun 5 dering and report any suspicious trans 6 actions under section 5318(g); and ''(iii) to ascertain whether such for 7 8 eign bank provides correspondent accounts 9 to other foreign banks and, if so, the iden 10 tity of those foreign banks and related due 11 diligence information, as appropriate under 12 paragraph (1). 13 ''(3) MINIMUM STANDARDS FOR PRIVATE BANK 14 ING ACCOUNTS. 15 quested or maintained by, or on behalf of, a non 16 United States person, then the due diligence policies, 17 procedures, and controls required under paragraph 18 (1) shall, at a minimum, ensure that the financial 19 institution takes reasonable steps 20 If a private banking account is re ''(A) to ascertain the identity of the nomi 21 nal and beneficial owners of, and the source of 22 funds deposited into, such account as needed to 23 guard against money laundering and report any 24 suspicious transactions under section 5318(g); 25 and EXT-18-2091-C-000649 007104-001400 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 74 1 ''(B) to conduct enhanced scrutiny of any 2 such account that is requested or maintained 3 by, or on behalf of, a senior foreign political fig 4 ure, or any immediate family member or close 5 associate of a senior foreign political figure, to 6 prevent, detect, and report transactions that 7 may involve the proceeds of foreign corruption. 8 ''(4) DEFINITIONS 9 10 ITY. AND REGULATORY AUTHOR ''(A) OFFSHORE BANKING LICENSE. For 11 purposes of this subsection, the term 'offshore 12 banking license' means a license to conduct 13 banking activities which, as a condition of the 14 license, prohibits the licensed entity from con 15 ducting banking activities with the citizens of, 16 or with the local currency of, the country which 17 issued the license. 18 ''(B) REGULATORY AUTHORITY. The Sec 19 retary, in consultation with the appropriate 20 functional regulators of the affected financial 21 institutions, may further delineate, by regula 22 tion the due diligence policies, procedures, and 23 controls required under paragraph (1).''. 24 (b) E FFECTIVE DATE. The amendments made by 25 this section shall take effect beginning 180 days after the EXT-18-2091-C-000650 007104-001401 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 74 1 ''(B) to conduct enhanced scrutiny of any 2 such account that is requested or maintained 3 by, or on behalf of, a senior foreign political fig 4 ure, or any immediate family member or close 5 associate of a senior foreign political figure, to 6 prevent, detect, and report transactions that 7 may involve the proceeds of foreign corruption. 8 ''(4) DEFINITIONS 9 10 ITY. AND REGULATORY AUTHOR ''(A) OFFSHORE BANKING LICENSE. For 11 purposes of this subsection, the term 'offshore 12 banking license' means a license to conduct 13 banking activities which, as a condition of the 14 license, prohibits the licensed entity from con 15 ducting banking activities with the citizens of, 16 or with the local currency of, the country which 17 issued the license. 18 ''(B) REGULATORY AUTHORITY. The Sec 19 retary, in consultation with the appropriate 20 functional regulators of the affected financial 21 institutions, may further delineate, by regula 22 tion the due diligence policies, procedures, and 23 controls required under paragraph (1).''. 24 (b) E FFECTIVE DATE. The amendments made by 25 this section shall take effect beginning 180 days after the EXT-18-2091-C-000650 007104-001401 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 75 1 date of enactment of this Act with respect to accounts cov 2 ered by section 5318(i) of title 31, United States Code, 3 as added by this section, that are opened before, on, or 4 after the date of enactment of this Act. 5 SEC. 313. PROHIBITION ON 6 RESPONDENT 7 SHELL BANKS. 8 9 10 11 (a) IN GENERAL. 14 ACCOUNTS STATES WITH COR- FOREIGN Section 5318 of title 31, United States Code, is amended by inserting after section 5318(i), as added by section 312 of this title, the following: ''(j) PROHIBITION 12 RESPONDENT 13 UNITED BANKS. ON ACCOUNTS UNITED WITH STATES FOREIGN COR SHELL ''(1) IN GENERAL. A financial institution de 15 scribed in subparagraphs (A) through (F) of section 16 5312(a)(2) (in this subsection referred to as a 'cov 17 ered financial institution') shall not establish, main 18 tain, administer, or manage a correspondent account 19 in the United States for, or on behalf of, a foreign 20 bank that does not have a physical presence in any 21 country. 22 ''(2) PREVENTION OF INDIRECT SERVICE TO 23 FOREIGN SHELL BANKS. A covered financial insti 24 tution shall take reasonable steps to ensure that any 25 correspondent account established, maintained, ad EXT-18-2091-C-000651 007104-001402 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 75 1 date of enactment of this Act with respect to accounts cov 2 ered by section 5318(i) of title 31, United States Code, 3 as added by this section, that are opened before, on, or 4 after the date of enactment of this Act. 5 SEC. 313. PROHIBITION ON 6 RESPONDENT 7 SHELL BANKS. 8 9 10 11 (a) IN GENERAL. 14 ACCOUNTS STATES WITH COR- FOREIGN Section 5318 of title 31, United States Code, is amended by inserting after section 5318(i), as added by section 312 of this title, the following: ''(j) PROHIBITION 12 RESPONDENT 13 UNITED BANKS. ON ACCOUNTS UNITED WITH STATES FOREIGN COR SHELL ''(1) IN GENERAL. A financial institution de 15 scribed in subparagraphs (A) through (F) of section 16 5312(a)(2) (in this subsection referred to as a 'cov 17 ered financial institution') shall not establish, main 18 tain, administer, or manage a correspondent account 19 in the United States for, or on behalf of, a foreign 20 bank that does not have a physical presence in any 21 country. 22 ''(2) PREVENTION OF INDIRECT SERVICE TO 23 FOREIGN SHELL BANKS. A covered financial insti 24 tution shall take reasonable steps to ensure that any 25 correspondent account established, maintained, ad EXT-18-2091-C-000651 007104-001402 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 76 1 ministered, or managed by that covered financial in 2 stitution in the United States for a foreign bank is 3 not being used by that foreign bank to indirectly 4 provide banking services to another foreign bank 5 that does not have a physical presence in any coun 6 try. The Secretary shall, by regulation, delineate the 7 reasonable steps necessary to comply with this para 8 graph. 9 ''(3) E XCEPTION. Paragraphs (1) and (2) do 10 not prohibit a covered financial institution from pro 11 viding a correspondent account to a foreign bank, if 12 the foreign bank 13 ''(A) is an affiliate of a depository institu 14 tion, credit union, or foreign bank that main 15 tains a physical presence in the United States 16 or a foreign country, as applicable; and ''(B) is subject to supervision by a banking 17 18 authority in the country regulating the affili 19 ated depository institution, credit union, or for 20 eign bank described in subparagraph (A), as 21 applicable. 22 ''(4) 23 DEFINITIONS. subsection For purposes of this 24 ''(A) the term 'affiliate' means a foreign 25 bank that is controlled by or is under common EXT-18-2091-C-000652 007104-001403 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 76 1 ministered, or managed by that covered financial in 2 stitution in the United States for a foreign bank is 3 not being used by that foreign bank to indirectly 4 provide banking services to another foreign bank 5 that does not have a physical presence in any coun 6 try. The Secretary shall, by regulation, delineate the 7 reasonable steps necessary to comply with this para 8 graph. 9 ''(3) E XCEPTION. Paragraphs (1) and (2) do 10 not prohibit a covered financial institution from pro 11 viding a correspondent account to a foreign bank, if 12 the foreign bank 13 ''(A) is an affiliate of a depository institu 14 tion, credit union, or foreign bank that main 15 tains a physical presence in the United States 16 or a foreign country, as applicable; and ''(B) is subject to supervision by a banking 17 18 authority in the country regulating the affili 19 ated depository institution, credit union, or for 20 eign bank described in subparagraph (A), as 21 applicable. 22 ''(4) 23 DEFINITIONS. subsection For purposes of this 24 ''(A) the term 'affiliate' means a foreign 25 bank that is controlled by or is under common EXT-18-2091-C-000652 007104-001403 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 77 1 control with a depository institution, credit 2 union, or foreign bank; and ''(B) the term 'physical presence' means a 3 4 place of business that 5 ''(i) is maintained by a foreign bank; 6 ''(ii) is located at a fixed address 7 (other than solely an electronic address) in 8 a country in which the foreign bank is au 9 thorized to conduct banking activities, at which location the foreign bank 10 ''(I) employs 1 or more individ 11 uals on a full time basis; and 12 ''(II) maintains operating records 13 14 related to its banking activities; and 15 ''(iii) is subject to inspection by the 16 banking authority which licensed the for 17 eign bank to conduct banking activities.''. 18 SEC. 314. COOPERATIVE EFFORTS TO DETER MONEY LAUN19 20 DERING. (a) COOPERATION AMONG FINANCIAL INSTITUTIONS, 21 REGULATORY AUTHORITIES, 22 AUTHORITIES. 23 AND LAW ENFORCEMENT (1) REGULATIONS. The Secretary shall, within 24 120 days after the date of enactment of this Act, 25 adopt regulations to encourage further cooperation EXT-18-2091-C-000653 007104-001404 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 77 1 control with a depository institution, credit 2 union, or foreign bank; and ''(B) the term 'physical presence' means a 3 4 place of business that 5 ''(i) is maintained by a foreign bank; 6 ''(ii) is located at a fixed address 7 (other than solely an electronic address) in 8 a country in which the foreign bank is au 9 thorized to conduct banking activities, at which location the foreign bank 10 ''(I) employs 1 or more individ 11 uals on a full time basis; and 12 ''(II) maintains operating records 13 14 related to its banking activities; and 15 ''(iii) is subject to inspection by the 16 banking authority which licensed the for 17 eign bank to conduct banking activities.''. 18 SEC. 314. COOPERATIVE EFFORTS TO DETER MONEY LAUN19 20 DERING. (a) COOPERATION AMONG FINANCIAL INSTITUTIONS, 21 REGULATORY AUTHORITIES, 22 AUTHORITIES. 23 AND LAW ENFORCEMENT (1) REGULATIONS. The Secretary shall, within 24 120 days after the date of enactment of this Act, 25 adopt regulations to encourage further cooperation EXT-18-2091-C-000653 007104-001404 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 78 1 among financial institutions, their regulatory au 2 thorities, and law enforcement authorities, with the 3 specific purpose of encouraging regulatory authori 4 ties and law enforcement authorities to share with 5 financial institutions information regarding individ 6 uals, entities, and organizations engaged in or rea 7 sonably suspected based on credible evidence of en 8 gaging in terrorist acts or money laundering activi 9 ties. 10 11 12 (2) CONTENTS. The regulations promulgated pursuant to paragraph (1) may (A) require that each financial institution 13 designate 1 or more persons to receive informa 14 tion concerning, and to monitor accounts of in 15 dividuals, entities, and organizations identified, 16 pursuant to paragraph (1); and 17 (B) further establish procedures for the 18 protection of the shared information, consistent 19 with the capacity, size, and nature of the insti 20 tution to which the particular procedures apply. 21 (3) RULE OF CONSTRUCTION. The receipt of 22 information by a financial institution pursuant to 23 this section shall not relieve or otherwise modify the 24 obligations of the financial institution with respect 25 to any other person or account. EXT-18-2091-C-000654 007104-001405 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 78 1 among financial institutions, their regulatory au 2 thorities, and law enforcement authorities, with the 3 specific purpose of encouraging regulatory authori 4 ties and law enforcement authorities to share with 5 financial institutions information regarding individ 6 uals, entities, and organizations engaged in or rea 7 sonably suspected based on credible evidence of en 8 gaging in terrorist acts or money laundering activi 9 ties. 10 11 12 (2) CONTENTS. The regulations promulgated pursuant to paragraph (1) may (A) require that each financial institution 13 designate 1 or more persons to receive informa 14 tion concerning, and to monitor accounts of in 15 dividuals, entities, and organizations identified, 16 pursuant to paragraph (1); and 17 (B) further establish procedures for the 18 protection of the shared information, consistent 19 with the capacity, size, and nature of the insti 20 tution to which the particular procedures apply. 21 (3) RULE OF CONSTRUCTION. The receipt of 22 information by a financial institution pursuant to 23 this section shall not relieve or otherwise modify the 24 obligations of the financial institution with respect 25 to any other person or account. EXT-18-2091-C-000654 007104-001405 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 79 (4) USE 1 OF INFORMATION. Information re 2 ceived by a financial institution pursuant to this sec 3 tion shall not be used for any purpose other than 4 identifying and reporting on activities that may in 5 volve terrorist acts or money laundering activities. 6 (b) COOPERATION AMONG FINANCIAL INSTITU 7 TIONS. Upon notice provided to the Secretary, 2 or more 8 financial institutions and any association of financial insti 9 tutions may share information with one another regarding 10 individuals, 11 pected 12 A of possible terrorist or money laundering activities. financial institution or association that transmits, re 13 ceives, or shares such information for the purposes of 14 identifying 15 rorist 16 ble to any person under any law or regulation of the 18 State 19 tract States, any constitution, law, or regulation of any or political subdivision thereof, or under any con or other legally enforceable agreement (including any 20 arbitration 21 ure and reporting activities that may involve ter acts or money laundering activities shall not be lia 17 United 22 is entities, organizations, and countries sus agreement), for such disclosure or for any fail to provide notice of such disclosure to the person who the subject of such disclosure, or any other person iden 23 tified in the disclosure, except where such transmission, 24 receipt, or sharing violates this section or regulations pro 25 mulgated pursuant to this section. EXT-18-2091-C-000655 007104-001406 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 79 (4) USE 1 OF INFORMATION. Information re 2 ceived by a financial institution pursuant to this sec 3 tion shall not be used for any purpose other than 4 identifying and reporting on activities that may in 5 volve terrorist acts or money laundering activities. 6 (b) COOPERATION AMONG FINANCIAL INSTITU 7 TIONS. Upon notice provided to the Secretary, 2 or more 8 financial institutions and any association of financial insti 9 tutions may share information with one another regarding 10 individuals, 11 pected 12 A of possible terrorist or money laundering activities. financial institution or association that transmits, re 13 ceives, or shares such information for the purposes of 14 identifying 15 rorist 16 ble to any person under any law or regulation of the 18 State 19 tract States, any constitution, law, or regulation of any or political subdivision thereof, or under any con or other legally enforceable agreement (including any 20 arbitration 21 ure and reporting activities that may involve ter acts or money laundering activities shall not be lia 17 United 22 is entities, organizations, and countries sus agreement), for such disclosure or for any fail to provide notice of such disclosure to the person who the subject of such disclosure, or any other person iden 23 tified in the disclosure, except where such transmission, 24 receipt, or sharing violates this section or regulations pro 25 mulgated pursuant to this section. EXT-18-2091-C-000655 007104-001406 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 80 1 (c) RULE OF CONSTRUCTION. Compliance with the 2 provisions of this title requiring or allowing financial insti 3 tutions and any association of financial institutions to dis 4 close or share information regarding individuals, entities, 5 and organizations engaged in or suspected of engaging in 6 terrorist acts or money laundering activities shall not con 7 stitute a violation of the provisions of title V of the 8 Gramm Leach Bliley Act (Public Law 106 102). 9 SEC. 315. INCLUSION OF FOREIGN CORRUPTION OFFENSES 10 11 12 AS MONEY LAUNDERING CRIMES. Section 1956(c)(7)(B) of title 18, United States Code, is amended 13 (1) in clause (ii), by striking ''or destruction of 14 property by means of explosive or fire'' and inserting 15 ''destruction of property by means of explosive or 16 fire, or a crime of violence (as defined in section 17 16)''; 18 19 20 21 (2) in clause (iii), by striking ''1978'' and in serting ''1978)''; and (3) by adding at the end the following: ''(iv) bribery of a public official, or 22 the misappropriation, theft, or embezzle 23 ment of public funds by or for the benefit 24 of a public official; EXT-18-2091-C-000656 007104-001407 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 80 1 (c) RULE OF CONSTRUCTION. Compliance with the 2 provisions of this title requiring or allowing financial insti 3 tutions and any association of financial institutions to dis 4 close or share information regarding individuals, entities, 5 and organizations engaged in or suspected of engaging in 6 terrorist acts or money laundering activities shall not con 7 stitute a violation of the provisions of title V of the 8 Gramm Leach Bliley Act (Public Law 106 102). 9 SEC. 315. INCLUSION OF FOREIGN CORRUPTION OFFENSES 10 11 12 AS MONEY LAUNDERING CRIMES. Section 1956(c)(7)(B) of title 18, United States Code, is amended 13 (1) in clause (ii), by striking ''or destruction of 14 property by means of explosive or fire'' and inserting 15 ''destruction of property by means of explosive or 16 fire, or a crime of violence (as defined in section 17 16)''; 18 19 20 21 (2) in clause (iii), by striking ''1978'' and in serting ''1978)''; and (3) by adding at the end the following: ''(iv) bribery of a public official, or 22 the misappropriation, theft, or embezzle 23 ment of public funds by or for the benefit 24 of a public official; EXT-18-2091-C-000656 007104-001407 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 81 ''(v) smuggling or export control viola 1 2 tions involving ''(I) an item controlled on the 3 4 United States Munitions List estab 5 lished under section 38 of the Arms 6 Export Control Act (22 U.S.C. 2778); 7 or ''(II) an item controlled under 8 regulations under the Export Admin 9 10 istration Act of 1977 (15 C.F.R. 11 Parts 730 774); 12 ''(vi) an offense with respect to which 13 the United States would be obligated by a 14 multilateral treaty, either to extradite the 15 alleged offender or to submit the case for 16 prosecution, if the offender were found 17 within the territory of the United States; 18 or 19 ''(vii) the misuse of funds of, or pro 20 vided by, the International Monetary Fund 21 in contravention of the Articles of Agree 22 ment of the Fund or the misuse of funds 23 of, or provided by, any other international 24 financial institution (as defined in section 25 1701(c)(2) of the International Financial EXT-18-2091-C-000657 007104-001408 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 81 ''(v) smuggling or export control viola 1 2 tions involving ''(I) an item controlled on the 3 4 United States Munitions List estab 5 lished under section 38 of the Arms 6 Export Control Act (22 U.S.C. 2778); 7 or ''(II) an item controlled under 8 regulations under the Export Admin 9 10 istration Act of 1977 (15 C.F.R. 11 Parts 730 774); 12 ''(vi) an offense with respect to which 13 the United States would be obligated by a 14 multilateral treaty, either to extradite the 15 alleged offender or to submit the case for 16 prosecution, if the offender were found 17 within the territory of the United States; 18 or 19 ''(vii) the misuse of funds of, or pro 20 vided by, the International Monetary Fund 21 in contravention of the Articles of Agree 22 ment of the Fund or the misuse of funds 23 of, or provided by, any other international 24 financial institution (as defined in section 25 1701(c)(2) of the International Financial EXT-18-2091-C-000657 007104-001408 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 82 1 Institutions Act (22 U.S.C. 262r(c)(2)) in 2 contravention of any treaty or other inter 3 national agreement to which the United 4 States is a party, including any articles of 5 agreement of the members of the inter 6 national financial institution;''. 7 SEC. 316. ANTI-TERRORIST FORFEITURE PROTECTION. (a) RIGHT 8 9 is TO CONTEST. An owner of property that confiscated under any provision of law relating to the 10 confiscation of assets of suspected international terrorists, 11 may contest that confiscation by filing a claim in the man 12 ner set forth in the Federal Rules of Civil Procedure (Sup 13 plemental Rules for Certain Admiralty and Maritime 14 Claims), and asserting as an affirmative defense that 15 (1) the property is not subject to confiscation under such provision of law; or 16 17 (2) the innocent owner provisions of section 18 983(d) of title 18, United States Code, apply to the 19 case. 20 (b) E VIDENCE. 21 this section, the Government may rely on evidence that 22 is otherwise inadmissible under the Federal Rules of Evi 23 dence, 24 to In considering a claim filed under if a court determines that such reliance is necessary protect the national security interests of the United 25 States. EXT-18-2091-C-000658 007104-001409 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 82 1 Institutions Act (22 U.S.C. 262r(c)(2)) in 2 contravention of any treaty or other inter 3 national agreement to which the United 4 States is a party, including any articles of 5 agreement of the members of the inter 6 national financial institution;''. 7 SEC. 316. ANTI-TERRORIST FORFEITURE PROTECTION. (a) RIGHT 8 9 is TO CONTEST. An owner of property that confiscated under any provision of law relating to the 10 confiscation of assets of suspected international terrorists, 11 may contest that confiscation by filing a claim in the man 12 ner set forth in the Federal Rules of Civil Procedure (Sup 13 plemental Rules for Certain Admiralty and Maritime 14 Claims), and asserting as an affirmative defense that 15 (1) the property is not subject to confiscation under such provision of law; or 16 17 (2) the innocent owner provisions of section 18 983(d) of title 18, United States Code, apply to the 19 case. 20 (b) E VIDENCE. 21 this section, the Government may rely on evidence that 22 is otherwise inadmissible under the Federal Rules of Evi 23 dence, 24 to In considering a claim filed under if a court determines that such reliance is necessary protect the national security interests of the United 25 States. EXT-18-2091-C-000658 007104-001409 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 83 1 (c) OTHER REMEDIES. Nothing in this section shall 2 limit or otherwise affect any other remedies that may be 3 available to an owner of property under section 983 of 4 title 18, United States Code, or any other provision of law. 5 SEC. 317. LONG-ARM JURISDICTION OVER FOREIGN MONEY 6 7 8 9 LAUNDERERS. Section 1956(b) of title 18, United States Code, is amended (1) by redesignating paragraphs (1) and (2) as 10 subparagraphs (A) and (B), respectively, and mov 11 ing the margins 2 ems to the right; 12 13 (2) by inserting after ''(b)'' the following: ''PENALTIES. 14 ''(1) IN 15 (3) by inserting '', or section 1957'' after ''or 16 GENERAL. ''; (a)(3)''; and 17 (4) by adding at the end the following: 18 ''(2) JURISDICTION OVER FOREIGN PERSONS. 19 For purposes of adjudicating an action filed or en 20 forcing a penalty ordered under this section, the dis 21 trict courts shall have jurisdiction over any foreign 22 person, including any financial institution authorized 23 under the laws of a foreign country, against whom 24 the action is brought, if service of process upon the 25 foreign person is made under the Federal Rules of EXT-18-2091-C-000659 007104-001410 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 83 1 (c) OTHER REMEDIES. Nothing in this section shall 2 limit or otherwise affect any other remedies that may be 3 available to an owner of property under section 983 of 4 title 18, United States Code, or any other provision of law. 5 SEC. 317. LONG-ARM JURISDICTION OVER FOREIGN MONEY 6 7 8 9 LAUNDERERS. Section 1956(b) of title 18, United States Code, is amended (1) by redesignating paragraphs (1) and (2) as 10 subparagraphs (A) and (B), respectively, and mov 11 ing the margins 2 ems to the right; 12 13 (2) by inserting after ''(b)'' the following: ''PENALTIES. 14 ''(1) IN 15 (3) by inserting '', or section 1957'' after ''or 16 GENERAL. ''; (a)(3)''; and 17 (4) by adding at the end the following: 18 ''(2) JURISDICTION OVER FOREIGN PERSONS. 19 For purposes of adjudicating an action filed or en 20 forcing a penalty ordered under this section, the dis 21 trict courts shall have jurisdiction over any foreign 22 person, including any financial institution authorized 23 under the laws of a foreign country, against whom 24 the action is brought, if service of process upon the 25 foreign person is made under the Federal Rules of EXT-18-2091-C-000659 007104-001410 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 84 1 Civil Procedure or the laws of the country in which 2 the foreign person is found, and 3 ''(A) the foreign person commits an offense 4 under subsection (a) involving a financial trans 5 action that occurs in whole or in part in the 6 United States; 7 ''(B) the foreign person converts, to his or 8 her own use, property in which the United 9 States has an ownership interest by virtue of 10 the entry of an order of forfeiture by a court 11 of the United States; or 12 ''(C) the foreign person is a financial insti 13 tution that maintains a bank account at a fi 14 nancial institution in the United States. 15 ''(3) COURT AUTHORITY OVER ASSETS. A 16 court described in paragraph (2) may issue a pre 17 trial restraining order or take any other action nec 18 essary to ensure that any bank account or other 19 property held by the defendant in the United States 20 is available to satisfy a judgment under this section. 21 22 ''(4) FEDERAL ''(A) IN RECEIVER. GENERAL. A court described in 23 paragraph (2) may appoint a Federal Receiver, 24 in accordance with subparagraph (B) of this 25 paragraph, to collect, marshal, and take cus EXT-18-2091-C-000660 007104-001411 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 84 1 Civil Procedure or the laws of the country in which 2 the foreign person is found, and 3 ''(A) the foreign person commits an offense 4 under subsection (a) involving a financial trans 5 action that occurs in whole or in part in the 6 United States; 7 ''(B) the foreign person converts, to his or 8 her own use, property in which the United 9 States has an ownership interest by virtue of 10 the entry of an order of forfeiture by a court 11 of the United States; or 12 ''(C) the foreign person is a financial insti 13 tution that maintains a bank account at a fi 14 nancial institution in the United States. 15 ''(3) COURT AUTHORITY OVER ASSETS. A 16 court described in paragraph (2) may issue a pre 17 trial restraining order or take any other action nec 18 essary to ensure that any bank account or other 19 property held by the defendant in the United States 20 is available to satisfy a judgment under this section. 21 22 ''(4) FEDERAL ''(A) IN RECEIVER. GENERAL. A court described in 23 paragraph (2) may appoint a Federal Receiver, 24 in accordance with subparagraph (B) of this 25 paragraph, to collect, marshal, and take cus EXT-18-2091-C-000660 007104-001411 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 85 1 tody, control, and possession of all assets of the 2 defendant, wherever located, to satisfy a judg 3 ment under this section or section 981, 982, or 4 1957, including an order of restitution to any 5 victim of a specified unlawful activity. ''(B) APPOINTMENT 6 AND AUTHORITY. A 7 Federal Receiver described in subparagraph 8 (A) 9 ''(i) may be appointed upon applica 10 tion of a Federal prosecutor or a Federal 11 or State regulator, by the court having ju 12 risdiction over the defendant in the case; 13 ''(ii) shall be an officer of the court, 14 and the powers of the Federal Receiver 15 shall include the powers set out in section 16 754 of title 28, United States Code; and 17 ''(iii) shall have standing equivalent to 18 that of a Federal prosecutor for the pur 19 pose of submitting requests to obtain infor 20 mation 21 defendant 22 regarding the assets of the ''(I) from the Financial Crimes 23 Enforcement Network of the Depart 24 ment of the Treasury; or EXT-18-2091-C-000661 007104-001412 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 85 1 tody, control, and possession of all assets of the 2 defendant, wherever located, to satisfy a judg 3 ment under this section or section 981, 982, or 4 1957, including an order of restitution to any 5 victim of a specified unlawful activity. ''(B) APPOINTMENT 6 AND AUTHORITY. A 7 Federal Receiver described in subparagraph 8 (A) 9 ''(i) may be appointed upon applica 10 tion of a Federal prosecutor or a Federal 11 or State regulator, by the court having ju 12 risdiction over the defendant in the case; 13 ''(ii) shall be an officer of the court, 14 and the powers of the Federal Receiver 15 shall include the powers set out in section 16 754 of title 28, United States Code; and 17 ''(iii) shall have standing equivalent to 18 that of a Federal prosecutor for the pur 19 pose of submitting requests to obtain infor 20 mation 21 defendant 22 regarding the assets of the ''(I) from the Financial Crimes 23 Enforcement Network of the Depart 24 ment of the Treasury; or EXT-18-2091-C-000661 007104-001412 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 86 ''(II) from a foreign country pur 1 2 suant to a mutual legal assistance 3 treaty, 4 other arrangement for international 5 law enforcement assistance, provided 6 that such requests are in accordance 7 with the policies and procedures of the 8 Attorney General.''. multilateral agreement, or 9 SEC. 318. LAUNDERING MONEY THROUGH A FOREIGN 10 11 BANK. Section 1956(c) of title 18, United States Code, is 12 amended by striking paragraph (6) and inserting the fol 13 lowing: 14 ''(6) the term 'financial institution' includes 15 ''(A) any financial institution, as defined in 16 section 5312(a)(2) of title 31, United States 17 Code, or the regulations promulgated there 18 under; and 19 ''(B) any foreign bank, as defined in sec 20 tion 1 of the International Banking Act of 1978 21 (12 U.S.C. 3101).''. EXT-18-2091-C-000662 007104-001413 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 86 ''(II) from a foreign country pur 1 2 suant to a mutual legal assistance 3 treaty, 4 other arrangement for international 5 law enforcement assistance, provided 6 that such requests are in accordance 7 with the policies and procedures of the 8 Attorney General.''. multilateral agreement, or 9 SEC. 318. LAUNDERING MONEY THROUGH A FOREIGN 10 11 BANK. Section 1956(c) of title 18, United States Code, is 12 amended by striking paragraph (6) and inserting the fol 13 lowing: 14 ''(6) the term 'financial institution' includes 15 ''(A) any financial institution, as defined in 16 section 5312(a)(2) of title 31, United States 17 Code, or the regulations promulgated there 18 under; and 19 ''(B) any foreign bank, as defined in sec 20 tion 1 of the International Banking Act of 1978 21 (12 U.S.C. 3101).''. EXT-18-2091-C-000662 007104-001413 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 87 1 SEC. 319. FORFEITURE OF FUNDS IN UNITED STATES 2 INTERBANK ACCOUNTS. (a) FORFEITURE FROM UNITED STATES INTERBANK 3 4 ACCOUNT. 5 is amended by adding at the end the following: 6 7 8 9 Section 981 of title 18, United States Code, ''(k) INTERBANK ACCOUNTS. ''(1) IN GENERAL. ''(A) IN GENERAL. For the purpose of a forfeiture under this section or under the Con 10 trolled Substances Act (21 U.S.C. 801 et seq.), 11 if funds are deposited into an account at a for 12 eign bank, and that foreign bank has an inter 13 bank account in the United States with a cov 14 ered financial institution (as defined in section 15 5318A of title 31), the funds shall be deemed 16 to have been deposited into the interbank ac 17 count in the United States, and any restraining 18 order, seizure warrant, or arrest warrant in rem 19 regarding the funds may be served on the cov 20 ered financial institution, and funds in the 21 interbank account, up to the value of the funds 22 deposited into the account at the foreign bank, 23 may be restrained, seized, or arrested. 24 ''(B) AUTHORITY TO SUSPEND. The At 25 torney General, in consultation with the Sec 26 retary, may suspend or terminate a forfeiture EXT-18-2091-C-000663 007104-001414 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 87 1 SEC. 319. FORFEITURE OF FUNDS IN UNITED STATES 2 INTERBANK ACCOUNTS. (a) FORFEITURE FROM UNITED STATES INTERBANK 3 4 ACCOUNT. 5 is amended by adding at the end the following: 6 7 8 9 Section 981 of title 18, United States Code, ''(k) INTERBANK ACCOUNTS. ''(1) IN GENERAL. ''(A) IN GENERAL. For the purpose of a forfeiture under this section or under the Con 10 trolled Substances Act (21 U.S.C. 801 et seq.), 11 if funds are deposited into an account at a for 12 eign bank, and that foreign bank has an inter 13 bank account in the United States with a cov 14 ered financial institution (as defined in section 15 5318A of title 31), the funds shall be deemed 16 to have been deposited into the interbank ac 17 count in the United States, and any restraining 18 order, seizure warrant, or arrest warrant in rem 19 regarding the funds may be served on the cov 20 ered financial institution, and funds in the 21 interbank account, up to the value of the funds 22 deposited into the account at the foreign bank, 23 may be restrained, seized, or arrested. 24 ''(B) AUTHORITY TO SUSPEND. The At 25 torney General, in consultation with the Sec 26 retary, may suspend or terminate a forfeiture EXT-18-2091-C-000663 007104-001414 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 88 1 under this section if the Attorney General de 2 termines that a conflict of law exists between 3 the laws of the jurisdiction in which the foreign 4 bank is located and the laws of the United 5 States with respect to liabilities arising from 6 the restraint, seizure, or arrest of such funds, 7 and that such suspension or termination would 8 be in the interest of justice and would not harm 9 the national interests of the United States. 10 ''(2) NO REQUIREMENT FOR GOVERNMENT TO 11 TRACE FUNDS. 12 against funds that are restrained, seized, or arrested 13 under paragraph (1), it shall not be necessary for 14 the Government to establish that the funds are di 15 rectly traceable to the funds that were deposited into 16 the foreign bank, nor shall it be necessary for the 17 Government to rely on the application of section 18 984. 19 If a forfeiture action is brought ''(3) CLAIMS BROUGHT BY OWNER OF THE 20 FUNDS. If a forfeiture action is instituted against 21 funds restrained, seized, or arrested under para 22 graph (1), the owner of the funds deposited into the 23 account at the foreign bank may contest the for 24 feiture by filing a claim under section 983. EXT-18-2091-C-000664 007104-001415 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 88 1 under this section if the Attorney General de 2 termines that a conflict of law exists between 3 the laws of the jurisdiction in which the foreign 4 bank is located and the laws of the United 5 States with respect to liabilities arising from 6 the restraint, seizure, or arrest of such funds, 7 and that such suspension or termination would 8 be in the interest of justice and would not harm 9 the national interests of the United States. 10 ''(2) NO REQUIREMENT FOR GOVERNMENT TO 11 TRACE FUNDS. 12 against funds that are restrained, seized, or arrested 13 under paragraph (1), it shall not be necessary for 14 the Government to establish that the funds are di 15 rectly traceable to the funds that were deposited into 16 the foreign bank, nor shall it be necessary for the 17 Government to rely on the application of section 18 984. 19 If a forfeiture action is brought ''(3) CLAIMS BROUGHT BY OWNER OF THE 20 FUNDS. If a forfeiture action is instituted against 21 funds restrained, seized, or arrested under para 22 graph (1), the owner of the funds deposited into the 23 account at the foreign bank may contest the for 24 feiture by filing a claim under section 983. EXT-18-2091-C-000664 007104-001415 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 89 1 2 3 ''(4) DEFINITIONS. For purposes of this sub section, the following definitions shall apply: ''(A) INTERBANK ACCOUNT. The term 4 'interbank account' has the same meaning as in 5 section 984(c)(2)(B). 6 ''(B) OWNER. 7 8 ''(i) IN GENERAL. Except as pro vided in clause (ii), the term 'owner' 9 ''(I) means the person who was 10 the owner, as that term is defined in 11 section 983(d)(6), of the funds that 12 were deposited into the foreign bank 13 at the time such funds were deposited; 14 and 15 ''(II) does not include either the 16 foreign bank or any financial institu 17 tion acting as an intermediary in the 18 transfer of the funds into the inter 19 bank account. 20 ''(ii) EXCEPTION. The foreign bank 21 may be considered the 'owner' of the funds 22 (and no other person shall qualify as the 23 owner of such funds) only if EXT-18-2091-C-000665 007104-001416 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 89 1 2 3 ''(4) DEFINITIONS. For purposes of this sub section, the following definitions shall apply: ''(A) INTERBANK ACCOUNT. The term 4 'interbank account' has the same meaning as in 5 section 984(c)(2)(B). 6 ''(B) OWNER. 7 8 ''(i) IN GENERAL. Except as pro vided in clause (ii), the term 'owner' 9 ''(I) means the person who was 10 the owner, as that term is defined in 11 section 983(d)(6), of the funds that 12 were deposited into the foreign bank 13 at the time such funds were deposited; 14 and 15 ''(II) does not include either the 16 foreign bank or any financial institu 17 tion acting as an intermediary in the 18 transfer of the funds into the inter 19 bank account. 20 ''(ii) EXCEPTION. The foreign bank 21 may be considered the 'owner' of the funds 22 (and no other person shall qualify as the 23 owner of such funds) only if EXT-18-2091-C-000665 007104-001416 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 90 1 ''(I) the basis for the forfeiture 2 action is wrongdoing committed by 3 the foreign bank; or 4 ''(II) the foreign bank estab 5 lishes, by a preponderance of the evi 6 dence, that prior to the restraint, sei 7 zure, or arrest of the funds, the for 8 eign bank had discharged all or part 9 of its obligation to the prior owner of 10 the funds, in which case the foreign 11 bank shall be deemed the owner of the 12 funds to the extent of such discharged 13 obligation.''. 14 (b) BANK RECORDS. Section 5318 of title 31, 15 United States Code, is amended by adding at the end the 16 following: 17 18 19 20 21 ''(k) BANK RECORDS RELATED LAUNDERING PROGRAMS. TO ANTI MONEY ''(1) DEFINITIONS. For purposes of this sub section, the following definitions shall apply: ''(A) APPROPRIATE FEDERAL BANKING 22 AGENCY. The term 'appropriate Federal bank 23 ing agency' has the same meaning as in section 24 3 of the Federal Deposit Insurance Act (12 25 U.S.C. 1813). EXT-18-2091-C-000666 007104-001417 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 90 1 ''(I) the basis for the forfeiture 2 action is wrongdoing committed by 3 the foreign bank; or 4 ''(II) the foreign bank estab 5 lishes, by a preponderance of the evi 6 dence, that prior to the restraint, sei 7 zure, or arrest of the funds, the for 8 eign bank had discharged all or part 9 of its obligation to the prior owner of 10 the funds, in which case the foreign 11 bank shall be deemed the owner of the 12 funds to the extent of such discharged 13 obligation.''. 14 (b) BANK RECORDS. Section 5318 of title 31, 15 United States Code, is amended by adding at the end the 16 following: 17 18 19 20 21 ''(k) BANK RECORDS RELATED LAUNDERING PROGRAMS. TO ANTI MONEY ''(1) DEFINITIONS. For purposes of this sub section, the following definitions shall apply: ''(A) APPROPRIATE FEDERAL BANKING 22 AGENCY. The term 'appropriate Federal bank 23 ing agency' has the same meaning as in section 24 3 of the Federal Deposit Insurance Act (12 25 U.S.C. 1813). EXT-18-2091-C-000666 007104-001417 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 91 1 ''(B) INCORPORATED TERMS. The terms 2 'correspondent account', 'covered financial insti 3 tution', and 'foreign bank' have the same mean 4 ings as in section 5318A. 5 ''(2) 120 HOUR RULE . Not later than 120 6 hours after receiving a request by an appropriate 7 Federal banking agency for information related to 8 anti money laundering compliance by a covered fi 9 nancial institution or a customer of such institution, 10 a covered financial institution shall provide to the 11 appropriate Federal banking agency, or make avail 12 able at a location specified by the representative of 13 the appropriate Federal banking agency, information 14 and account documentation for any account opened, 15 maintained, administered or managed in the United 16 States by the covered financial institution. 17 ''(3) FOREIGN 18 ''(A) 19 RECORDS. 20 BANK RECORDS. SUMMONS OR SUBPOENA OF ''(i) IN GENERAL. The Secretary or 21 the Attorney General may issue a sum 22 mons or subpoena to any foreign bank that 23 maintains a correspondent account in the 24 United States and request records related 25 to such correspondent account, including EXT-18-2091-C-000667 007104-001418 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 91 1 ''(B) INCORPORATED TERMS. The terms 2 'correspondent account', 'covered financial insti 3 tution', and 'foreign bank' have the same mean 4 ings as in section 5318A. 5 ''(2) 120 HOUR RULE . Not later than 120 6 hours after receiving a request by an appropriate 7 Federal banking agency for information related to 8 anti money laundering compliance by a covered fi 9 nancial institution or a customer of such institution, 10 a covered financial institution shall provide to the 11 appropriate Federal banking agency, or make avail 12 able at a location specified by the representative of 13 the appropriate Federal banking agency, information 14 and account documentation for any account opened, 15 maintained, administered or managed in the United 16 States by the covered financial institution. 17 ''(3) FOREIGN 18 ''(A) 19 RECORDS. 20 BANK RECORDS. SUMMONS OR SUBPOENA OF ''(i) IN GENERAL. The Secretary or 21 the Attorney General may issue a sum 22 mons or subpoena to any foreign bank that 23 maintains a correspondent account in the 24 United States and request records related 25 to such correspondent account, including EXT-18-2091-C-000667 007104-001418 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 92 1 records maintained outside of the United 2 States relating to the deposit of funds into 3 the foreign bank. 4 ''(ii) SERVICE OF SUMMONS OR SUB 5 POENA. 6 to in clause (i) may be served on the for 7 eign bank in the United States if the for 8 eign bank has a representative in the 9 United States, or in a foreign country pur 10 suant to any mutual legal assistance trea 11 ty, multilateral agreement, or other request 12 for international law enforcement assist 13 ance. 14 ''(B) ACCEPTANCE 15 A summons or subpoena referred OF SERVICE. ''(i) MAINTAINING STATES. RECORDS IN THE Any covered financial 16 UNITED 17 institution 18 respondent account in the United States 19 for a foreign bank shall maintain records 20 in the United States identifying the owners 21 of such foreign bank and the name and ad 22 dress of a person who resides in the United 23 States and is authorized to accept service 24 of legal process for records regarding the 25 correspondent account. which maintains a cor EXT-18-2091-C-000668 007104-001419 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 92 1 records maintained outside of the United 2 States relating to the deposit of funds into 3 the foreign bank. 4 ''(ii) SERVICE OF SUMMONS OR SUB 5 POENA. 6 to in clause (i) may be served on the for 7 eign bank in the United States if the for 8 eign bank has a representative in the 9 United States, or in a foreign country pur 10 suant to any mutual legal assistance trea 11 ty, multilateral agreement, or other request 12 for international law enforcement assist 13 ance. 14 ''(B) ACCEPTANCE 15 A summons or subpoena referred OF SERVICE. ''(i) MAINTAINING STATES. RECORDS IN THE Any covered financial 16 UNITED 17 institution 18 respondent account in the United States 19 for a foreign bank shall maintain records 20 in the United States identifying the owners 21 of such foreign bank and the name and ad 22 dress of a person who resides in the United 23 States and is authorized to accept service 24 of legal process for records regarding the 25 correspondent account. which maintains a cor EXT-18-2091-C-000668 007104-001419 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 93 1 ''(ii) LAW ENFORCEMENT REQUEST. 2 Upon receipt of a written request from a 3 Federal law enforcement officer for infor 4 mation required to be maintained under 5 this paragraph, the covered financial insti 6 tution shall provide the information to the 7 requesting officer not later than 7 days 8 after receipt of the request. 9 ''(C) TERMINATION 10 11 RELATIONSHIP. OF CORRESPONDENT ''(i) TERMINATION UPON RECEIPT OF 12 NOTICE. 13 shall terminate any correspondent relation 14 ship with a foreign bank not later than 10 15 business days after receipt of written no 16 tice from the Secretary or the Attorney 17 General that the foreign bank has failed 18 A covered financial institution ''(I) to comply with a summons 19 or subpoena issued under subpara 20 graph (A); or 21 ''(II) to initiate proceedings in a 22 United States court contesting such 23 summons or subpoena. 24 ''(ii) LIMITATION 25 ON LIABILITY. A covered financial institution shall not be EXT-18-2091-C-000669 007104-001420 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 93 1 ''(ii) LAW ENFORCEMENT REQUEST. 2 Upon receipt of a written request from a 3 Federal law enforcement officer for infor 4 mation required to be maintained under 5 this paragraph, the covered financial insti 6 tution shall provide the information to the 7 requesting officer not later than 7 days 8 after receipt of the request. 9 ''(C) TERMINATION 10 11 RELATIONSHIP. OF CORRESPONDENT ''(i) TERMINATION UPON RECEIPT OF 12 NOTICE. 13 shall terminate any correspondent relation 14 ship with a foreign bank not later than 10 15 business days after receipt of written no 16 tice from the Secretary or the Attorney 17 General that the foreign bank has failed 18 A covered financial institution ''(I) to comply with a summons 19 or subpoena issued under subpara 20 graph (A); or 21 ''(II) to initiate proceedings in a 22 United States court contesting such 23 summons or subpoena. 24 ''(ii) LIMITATION 25 ON LIABILITY. A covered financial institution shall not be EXT-18-2091-C-000669 007104-001420 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 94 1 liable to any person in any court or arbi 2 tration proceeding for terminating a cor 3 respondent relationship in accordance with 4 this subsection. ''(iii) FAILURE 5 TO TERMINATE RELA 6 TIONSHIP. Failure to terminate a cor 7 respondent relationship in accordance with 8 this subsection shall render the covered fi 9 nancial institution liable for a civil penalty 10 of up to $10,000 per day until the cor 11 respondent relationship is so terminated.''. 12 (c) GRACE PERIOD. Financial institutions affected 13 by section 5333 of title 31 United States Code, as amend 14 ed by this title, shall have 60 days from the date of enact 15 ment of this Act to comply with the provisions of that sec 16 tion. 17 (d) REQUESTS FOR RECORDS. Section 3486(a)(1) 18 of title 18, United States Code, is amended by striking 19 '', or (II) a Federal offense involving the sexual exploi 20 tation or abuse of children'' and inserting '', (II) a Federal 21 offense involving the sexual exploitation or abuse of chil 22 dren, or (III) money laundering, in violation of section 23 1956, 1957, or 1960 of this title''. 24 25 (e) AUTHORITY TO ORDER CONVICTED CRIMINAL TO RETURN PROPERTY LOCATED ABROAD. EXT-18-2091-C-000670 007104-001421 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 94 1 liable to any person in any court or arbi 2 tration proceeding for terminating a cor 3 respondent relationship in accordance with 4 this subsection. ''(iii) FAILURE 5 TO TERMINATE RELA 6 TIONSHIP. Failure to terminate a cor 7 respondent relationship in accordance with 8 this subsection shall render the covered fi 9 nancial institution liable for a civil penalty 10 of up to $10,000 per day until the cor 11 respondent relationship is so terminated.''. 12 (c) GRACE PERIOD. Financial institutions affected 13 by section 5333 of title 31 United States Code, as amend 14 ed by this title, shall have 60 days from the date of enact 15 ment of this Act to comply with the provisions of that sec 16 tion. 17 (d) REQUESTS FOR RECORDS. Section 3486(a)(1) 18 of title 18, United States Code, is amended by striking 19 '', or (II) a Federal offense involving the sexual exploi 20 tation or abuse of children'' and inserting '', (II) a Federal 21 offense involving the sexual exploitation or abuse of chil 22 dren, or (III) money laundering, in violation of section 23 1956, 1957, or 1960 of this title''. 24 25 (e) AUTHORITY TO ORDER CONVICTED CRIMINAL TO RETURN PROPERTY LOCATED ABROAD. EXT-18-2091-C-000670 007104-001421 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 95 1 (1) FORFEITURE OF SUBSTITUTE PROPERTY. 2 Section 413(p) of the Controlled Substances Act (21 3 U.S.C. 853) is amended to read as follows: 4 ''(p) FORFEITURE OF SUBSTITUTE PROPERTY. 5 ''(1) IN GENERAL. Paragraph (2) of this sub 6 section shall apply, if any property described in sub 7 section (a), as a result of any act or omission of the 8 defendant 9 10 11 12 13 14 15 16 17 ''(A) cannot be located upon the exercise of due diligence; ''(B) has been transferred or sold to, or deposited with, a third party; ''(C) has been placed beyond the jurisdic tion of the court; ''(D) has been substantially diminished in value; or ''(E) has been commingled with other 18 property which cannot be divided without dif 19 ficulty. 20 ''(2) SUBSTITUTE PROPERTY. In any case de 21 scribed in any of subparagraphs (A) through (E) of 22 paragraph (1), the court shall order the forfeiture of 23 any other property of the defendant, up to the value 24 of any property described in subparagraphs (A) 25 through (E) of paragraph (1), as applicable. EXT-18-2091-C-000671 007104-001422 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 95 1 (1) FORFEITURE OF SUBSTITUTE PROPERTY. 2 Section 413(p) of the Controlled Substances Act (21 3 U.S.C. 853) is amended to read as follows: 4 ''(p) FORFEITURE OF SUBSTITUTE PROPERTY. 5 ''(1) IN GENERAL. Paragraph (2) of this sub 6 section shall apply, if any property described in sub 7 section (a), as a result of any act or omission of the 8 defendant 9 10 11 12 13 14 15 16 17 ''(A) cannot be located upon the exercise of due diligence; ''(B) has been transferred or sold to, or deposited with, a third party; ''(C) has been placed beyond the jurisdic tion of the court; ''(D) has been substantially diminished in value; or ''(E) has been commingled with other 18 property which cannot be divided without dif 19 ficulty. 20 ''(2) SUBSTITUTE PROPERTY. In any case de 21 scribed in any of subparagraphs (A) through (E) of 22 paragraph (1), the court shall order the forfeiture of 23 any other property of the defendant, up to the value 24 of any property described in subparagraphs (A) 25 through (E) of paragraph (1), as applicable. EXT-18-2091-C-000671 007104-001422 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 96 1 ''(3) RETURN OF PROPERTY TO JURISDIC 2 TION. 3 graph (1)(C), the court may, in addition to any 4 other action authorized by this subsection, order the 5 defendant to return the property to the jurisdiction 6 of the court so that the property may be seized and 7 forfeited.''. 8 9 10 11 12 In the case of property described in para (2) PROTECTIVE ORDERS. Section 413(e) of the Controlled Substances Act (21 U.S.C. 853(e)) is amended by adding at the end the following: ''(4) ORDER TO ''(A) IN REPATRIATE AND DEPOSIT. GENERAL. Pursuant to its au 13 thority to enter a pretrial restraining order 14 under this section, including its authority to re 15 strain any property forfeitable as substitute as 16 sets, the court may order a defendant to repa 17 triate any property that may be seized and for 18 feited, and to deposit that property pending 19 trial in the registry of the court, or with the 20 United States Marshals Service or the Sec 21 retary of the Treasury, in an interest bearing 22 account, if appropriate. 23 ''(B) FAILURE TO COMPLY. Failure to 24 comply with an order under this subsection, or 25 an order to repatriate property under sub EXT-18-2091-C-000672 007104-001423 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 96 1 ''(3) RETURN OF PROPERTY TO JURISDIC 2 TION. 3 graph (1)(C), the court may, in addition to any 4 other action authorized by this subsection, order the 5 defendant to return the property to the jurisdiction 6 of the court so that the property may be seized and 7 forfeited.''. 8 9 10 11 12 In the case of property described in para (2) PROTECTIVE ORDERS. Section 413(e) of the Controlled Substances Act (21 U.S.C. 853(e)) is amended by adding at the end the following: ''(4) ORDER TO ''(A) IN REPATRIATE AND DEPOSIT. GENERAL. Pursuant to its au 13 thority to enter a pretrial restraining order 14 under this section, including its authority to re 15 strain any property forfeitable as substitute as 16 sets, the court may order a defendant to repa 17 triate any property that may be seized and for 18 feited, and to deposit that property pending 19 trial in the registry of the court, or with the 20 United States Marshals Service or the Sec 21 retary of the Treasury, in an interest bearing 22 account, if appropriate. 23 ''(B) FAILURE TO COMPLY. Failure to 24 comply with an order under this subsection, or 25 an order to repatriate property under sub EXT-18-2091-C-000672 007104-001423 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 97 1 section (p), shall be punishable as a civil or 2 criminal contempt of court, and may also result 3 in an enhancement of the sentence of the de 4 fendant under the obstruction of justice provi 5 sion of the Federal Sentencing Guidelines.''. 6 SEC. 320. PROCEEDS OF FOREIGN CRIMES. 7 8 is 9 Section 981(a)(1)(B) of title 18, United States Code, amended to read as follows: ''(B) Any property, real or personal, within the 10 jurisdiction of the United States, constituting, de 11 rived from, or traceable to, any proceeds obtained di 12 rectly or indirectly from an offense against a foreign 13 nation, or any property used to facilitate such an of 14 fense, if the offense 15 ''(i) involves the manufacture, importation, 16 sale, or distribution of a controlled substance 17 (as that term is defined for purposes of the 18 Controlled Substances Act), or any other con 19 duct described in section 1956(c)(7)(B); 20 ''(ii) would be punishable within the juris 21 diction of the foreign nation by death or impris 22 onment for a term exceeding 1 year; and 23 ''(iii) would be punishable under the laws 24 of the United States by imprisonment for a 25 term exceeding 1 year, if the act or activity con EXT-18-2091-C-000673 007104-001424 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 97 1 section (p), shall be punishable as a civil or 2 criminal contempt of court, and may also result 3 in an enhancement of the sentence of the de 4 fendant under the obstruction of justice provi 5 sion of the Federal Sentencing Guidelines.''. 6 SEC. 320. PROCEEDS OF FOREIGN CRIMES. 7 8 is 9 Section 981(a)(1)(B) of title 18, United States Code, amended to read as follows: ''(B) Any property, real or personal, within the 10 jurisdiction of the United States, constituting, de 11 rived from, or traceable to, any proceeds obtained di 12 rectly or indirectly from an offense against a foreign 13 nation, or any property used to facilitate such an of 14 fense, if the offense 15 ''(i) involves the manufacture, importation, 16 sale, or distribution of a controlled substance 17 (as that term is defined for purposes of the 18 Controlled Substances Act), or any other con 19 duct described in section 1956(c)(7)(B); 20 ''(ii) would be punishable within the juris 21 diction of the foreign nation by death or impris 22 onment for a term exceeding 1 year; and 23 ''(iii) would be punishable under the laws 24 of the United States by imprisonment for a 25 term exceeding 1 year, if the act or activity con EXT-18-2091-C-000673 007104-001424 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 98 1 stituting the offense had occurred within the ju 2 risdiction of the United States.''. 3 SEC. 321. EXCLUSION OF ALIENS INVOLVED IN MONEY 4 LAUNDERING. 5 Section 212(a)(2) of the Immigration and Nationality 6 Act of 1952 (8 U.S.C. 1182(a)(2)) is amended by adding 7 at the end the following: ''(I) MONEY 8 LAUNDERING ACTIVITIES. Any alien who the consular officer or the Attor 9 10 ney General knows or has reason to believe is 11 or has been engaged in activities which, if en 12 gaged in within the United States would con 13 stitute a violation of section 1956 or 1957 of 14 title 18, United States Code, or has been a 15 knowing 16 colluder with others in any such illicit activity 17 is inadmissible.''. assister, abettor, conspirator, or 18 SEC. 322. CORPORATION REPRESENTED BY A FUGITIVE. Section 2466 of title 18, United States Code, is 19 20 amended 21 (a), by designating the present matter as subsection and adding at the end the following: 22 ''(b) Subsection (a) may be applied to a claim filed 23 by a corporation if any majority shareholder, or individual 24 filing 25 to the claim on behalf of the corporation is a person whom subsection (a) applies.''. EXT-18-2091-C-000674 007104-001425 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 98 1 stituting the offense had occurred within the ju 2 risdiction of the United States.''. 3 SEC. 321. EXCLUSION OF ALIENS INVOLVED IN MONEY 4 LAUNDERING. 5 Section 212(a)(2) of the Immigration and Nationality 6 Act of 1952 (8 U.S.C. 1182(a)(2)) is amended by adding 7 at the end the following: ''(I) MONEY 8 LAUNDERING ACTIVITIES. Any alien who the consular officer or the Attor 9 10 ney General knows or has reason to believe is 11 or has been engaged in activities which, if en 12 gaged in within the United States would con 13 stitute a violation of section 1956 or 1957 of 14 title 18, United States Code, or has been a 15 knowing 16 colluder with others in any such illicit activity 17 is inadmissible.''. assister, abettor, conspirator, or 18 SEC. 322. CORPORATION REPRESENTED BY A FUGITIVE. Section 2466 of title 18, United States Code, is 19 20 amended 21 (a), by designating the present matter as subsection and adding at the end the following: 22 ''(b) Subsection (a) may be applied to a claim filed 23 by a corporation if any majority shareholder, or individual 24 filing 25 to the claim on behalf of the corporation is a person whom subsection (a) applies.''. EXT-18-2091-C-000674 007104-001425 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 99 1 SEC. 323. ENFORCEMENT OF FOREIGN JUDGMENTS. Section 2467 of title 28, United States Code, is 2 3 amended 4 5 6 (1) in subsection (d), by adding the following after paragraph (2): ''(3) PRESERVATION OF PROPERTY. To pre 7 serve the availability of property subject to a foreign 8 forfeiture or confiscation judgment, the Government 9 may apply for, and the court may issue, a restrain 10 ing order pursuant to section 983(j) of title 18, 11 United States Code, at any time before or after an 12 application is filed pursuant to subsection (c)(1). 13 The court, in issuing the restraining order 14 ''(A) may rely on information set forth in 15 an affidavit describing the nature of the pro 16 ceeding investigation underway in the foreign 17 country, and setting forth a reasonable basis to 18 believe that the property to be restrained will be 19 named in a judgment of forfeiture at the con 20 clusion of such proceeding; or 21 ''(B) may register and enforce a restrain 22 ing order has been issued by a court of com 23 petent jurisdiction in the foreign country and 24 certified by the Attorney General pursuant to 25 subsection (b)(2). EXT-18-2091-C-000675 007104-001426 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 99 1 SEC. 323. ENFORCEMENT OF FOREIGN JUDGMENTS. Section 2467 of title 28, United States Code, is 2 3 amended 4 5 6 (1) in subsection (d), by adding the following after paragraph (2): ''(3) PRESERVATION OF PROPERTY. To pre 7 serve the availability of property subject to a foreign 8 forfeiture or confiscation judgment, the Government 9 may apply for, and the court may issue, a restrain 10 ing order pursuant to section 983(j) of title 18, 11 United States Code, at any time before or after an 12 application is filed pursuant to subsection (c)(1). 13 The court, in issuing the restraining order 14 ''(A) may rely on information set forth in 15 an affidavit describing the nature of the pro 16 ceeding investigation underway in the foreign 17 country, and setting forth a reasonable basis to 18 believe that the property to be restrained will be 19 named in a judgment of forfeiture at the con 20 clusion of such proceeding; or 21 ''(B) may register and enforce a restrain 22 ing order has been issued by a court of com 23 petent jurisdiction in the foreign country and 24 certified by the Attorney General pursuant to 25 subsection (b)(2). EXT-18-2091-C-000675 007104-001426 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 100 1 No person may object to the restraining order on 2 any ground that is the subject to parallel litigation 3 involving the same property that is pending in a for 4 eign court.''; 5 (2) in subsection (b)(1)(C), by striking ''estab 6 lishing that the defendant received notice of the pro 7 ceedings in sufficient time to enable the defendant'' 8 and inserting ''establishing that the foreign nation 9 took steps, in accordance with the principles of due 10 process, to give notice of the proceedings to all per 11 sons with an interest in the property in sufficient 12 time to enable such persons''; 13 (3) in subsection (d)(1)(D), by striking ''the de 14 fendant in the proceedings in the foreign court did 15 not receive notice'' and inserting ''the foreign nation 16 did not take steps, in accordance with the principles 17 of due process, to give notice of the proceedings to 18 a person with an interest in the property''; and 19 (4) in subsection (a)(2)(A), by inserting '', any 20 violation of foreign law that would constitute a viola 21 tion of an offense for which property could be for 22 feited under Federal law if the offense were com 23 mitted in the United States'' after ''United Nations 24 Convention''. EXT-18-2091-C-000676 007104-001427 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 100 1 No person may object to the restraining order on 2 any ground that is the subject to parallel litigation 3 involving the same property that is pending in a for 4 eign court.''; 5 (2) in subsection (b)(1)(C), by striking ''estab 6 lishing that the defendant received notice of the pro 7 ceedings in sufficient time to enable the defendant'' 8 and inserting ''establishing that the foreign nation 9 took steps, in accordance with the principles of due 10 process, to give notice of the proceedings to all per 11 sons with an interest in the property in sufficient 12 time to enable such persons''; 13 (3) in subsection (d)(1)(D), by striking ''the de 14 fendant in the proceedings in the foreign court did 15 not receive notice'' and inserting ''the foreign nation 16 did not take steps, in accordance with the principles 17 of due process, to give notice of the proceedings to 18 a person with an interest in the property''; and 19 (4) in subsection (a)(2)(A), by inserting '', any 20 violation of foreign law that would constitute a viola 21 tion of an offense for which property could be for 22 feited under Federal law if the offense were com 23 mitted in the United States'' after ''United Nations 24 Convention''. EXT-18-2091-C-000676 007104-001427 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 101 1 SEC. 324. INCREASE IN CIVIL AND CRIMINAL PENALTIES 2 FOR MONEY LAUNDERING. (a) CIVIL PENALTIES. 3 Section 5321(a) of title 31, 4 United States Code, is amended by adding at the end the 5 following: ''(7) 6 PENALTIES FOR INTERNATIONAL 7 COUNTER MONEY LAUNDERING VIOLATIONS. 8 Secretary may impose a civil money penalty in an 9 amount equal to not less than 2 times the amount 10 of the transaction, but not more than $1,000,000, 11 on any financial institution or agency that violates 12 any provision of subsection (i) or (j) of section 5318 13 or any special measures imposed under section 14 5318A.''. 15 (b) CRIMINAL PENALTIES. 16 United The Section 5322 of title 31, States Code, is amended by adding at the end the 17 following: 18 ''(d) A financial institution or agency that violates 19 any provision of subsection (i) or (j) of section 5318, or 20 any special 21 regulation 22 5318 23 to measures imposed under section 5318A, or any prescribed under subsection (i) or (j) of section or section 5318A, shall be fined in an amount equal not less than 2 times the amount of the transaction, 24 but not more than $1,000,000.''. EXT-18-2091-C-000677 007104-001428 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 101 1 SEC. 324. INCREASE IN CIVIL AND CRIMINAL PENALTIES 2 FOR MONEY LAUNDERING. (a) CIVIL PENALTIES. 3 Section 5321(a) of title 31, 4 United States Code, is amended by adding at the end the 5 following: ''(7) 6 PENALTIES FOR INTERNATIONAL 7 COUNTER MONEY LAUNDERING VIOLATIONS. 8 Secretary may impose a civil money penalty in an 9 amount equal to not less than 2 times the amount 10 of the transaction, but not more than $1,000,000, 11 on any financial institution or agency that violates 12 any provision of subsection (i) or (j) of section 5318 13 or any special measures imposed under section 14 5318A.''. 15 (b) CRIMINAL PENALTIES. 16 United The Section 5322 of title 31, States Code, is amended by adding at the end the 17 following: 18 ''(d) A financial institution or agency that violates 19 any provision of subsection (i) or (j) of section 5318, or 20 any special 21 regulation 22 5318 23 to measures imposed under section 5318A, or any prescribed under subsection (i) or (j) of section or section 5318A, shall be fined in an amount equal not less than 2 times the amount of the transaction, 24 but not more than $1,000,000.''. EXT-18-2091-C-000677 007104-001428 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 102 1 SEC. 325. REPORT AND RECOMMENDATION. Not later than 30 months after the date of enactment 2 3 of this Act, the Secretary, in consultation with the Attor 4 ney General, the Federal banking agencies (as defined at 5 section 3 of the Federal Deposit Insurance Act), the Secu 6 rities and Exchange Commission, and such other agencies 7 as the Secretary may determine, at the discretion of the 8 Secretary, shall evaluate the operations of the provisions 9 of this subtitle and make recommendations to Congress 10 as to any legislative action with respect to this subtitle 11 as the Secretary may determine to be necessary or advis 12 able. 13 SEC. 326. REPORT ON EFFECTIVENESS. The Secretary shall report annually on measures 14 15 taken pursuant to this subtitle, and shall submit the re 16 port to the Committee on Banking, Housing, and Urban 17 Affairs of the Senate and to the Committee on Financial 18 Services of the House of Representatives. 19 SEC. 327. CONCENTRATION ACCOUNTS AT FINANCIAL IN20 STITUTIONS. 21 Section 5318(h) of title 31, United States Code, as 22 amended by section 202 of this title, is amended by adding 23 at the end the following: 24 ''(3) C ONCENTRATION ACCOUNTS. The Sec 25 retary may issue regulations under this subsection 26 that govern maintenance of concentration accounts EXT-18-2091-C-000678 007104-001429 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 102 1 SEC. 325. REPORT AND RECOMMENDATION. Not later than 30 months after the date of enactment 2 3 of this Act, the Secretary, in consultation with the Attor 4 ney General, the Federal banking agencies (as defined at 5 section 3 of the Federal Deposit Insurance Act), the Secu 6 rities and Exchange Commission, and such other agencies 7 as the Secretary may determine, at the discretion of the 8 Secretary, shall evaluate the operations of the provisions 9 of this subtitle and make recommendations to Congress 10 as to any legislative action with respect to this subtitle 11 as the Secretary may determine to be necessary or advis 12 able. 13 SEC. 326. REPORT ON EFFECTIVENESS. The Secretary shall report annually on measures 14 15 taken pursuant to this subtitle, and shall submit the re 16 port to the Committee on Banking, Housing, and Urban 17 Affairs of the Senate and to the Committee on Financial 18 Services of the House of Representatives. 19 SEC. 327. CONCENTRATION ACCOUNTS AT FINANCIAL IN20 STITUTIONS. 21 Section 5318(h) of title 31, United States Code, as 22 amended by section 202 of this title, is amended by adding 23 at the end the following: 24 ''(3) C ONCENTRATION ACCOUNTS. The Sec 25 retary may issue regulations under this subsection 26 that govern maintenance of concentration accounts EXT-18-2091-C-000678 007104-001429 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 103 1 by financial institutions, in order to ensure that such 2 accounts are not used to prevent association of the 3 identity of an individual customer with the move 4 ment of funds of which the customer is the direct or 5 beneficial owner, which regulations shall, at a 6 minimum 7 ''(A) prohibit financial institutions from al 8 lowing clients to direct transactions that move 9 their funds into, out of, or through the con 10 centration accounts of the financial institution; 11 ''(B) prohibit financial institutions and 12 their employees from informing customers of 13 the existence of, or the means of identifying, 14 the concentration accounts of the institution; 15 and 16 ''(C) require each financial institution to 17 establish written procedures governing the doc 18 umentation of all transactions involving a con 19 centration account, which procedures shall en 20 sure that, any time a transaction involving a 21 concentration account commingles funds belong 22 ing to 1 or more customers, the identity of, and 23 specific amount belonging to, each customer is 24 documented.''. EXT-18-2091-C-000679 007104-001430 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 103 1 by financial institutions, in order to ensure that such 2 accounts are not used to prevent association of the 3 identity of an individual customer with the move 4 ment of funds of which the customer is the direct or 5 beneficial owner, which regulations shall, at a 6 minimum 7 ''(A) prohibit financial institutions from al 8 lowing clients to direct transactions that move 9 their funds into, out of, or through the con 10 centration accounts of the financial institution; 11 ''(B) prohibit financial institutions and 12 their employees from informing customers of 13 the existence of, or the means of identifying, 14 the concentration accounts of the institution; 15 and 16 ''(C) require each financial institution to 17 establish written procedures governing the doc 18 umentation of all transactions involving a con 19 centration account, which procedures shall en 20 sure that, any time a transaction involving a 21 concentration account commingles funds belong 22 ing to 1 or more customers, the identity of, and 23 specific amount belonging to, each customer is 24 documented.''. EXT-18-2091-C-000679 007104-001430 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 104 1 2 3 Subtitle B--Currency Transaction Reporting Amendments and Related Improvements 4 SEC. 331. AMENDMENTS RELATING TO REPORTING OF SUS5 PICIOUS ACTIVITIES. (a) AMENDMENT RELATING 6 7 MUNITY FOR 8 DISCLOSURES. TO CIVIL LIABILITY IM Section 5318(g)(3) of title 31, United States Code, is amended to read as follows: 9 10 ''(3) LIABILITY FOR DISCLOSURES. ''(A) IN GENERAL. Any financial institu 11 tion that makes a voluntary disclosure of any 12 possible violation of law or regulation to a gov 13 ernment agency or makes a disclosure pursuant 14 to this subsection or any other authority, and 15 any director, officer, employee, or agent of such 16 institution who makes, or requires another to 17 make any such disclosure, shall not be liable to 18 any person under any law or regulation of the 19 United States, any constitution, law, or regula 20 tion of any State or political subdivision of any 21 State, or under any contract or other legally en 22 forceable agreement (including any arbitration 23 agreement), for such disclosure or for any fail 24 ure to provide notice of such disclosure to the EXT-18-2091-C-000680 007104-001431 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 104 1 2 3 Subtitle B--Currency Transaction Reporting Amendments and Related Improvements 4 SEC. 331. AMENDMENTS RELATING TO REPORTING OF SUS5 PICIOUS ACTIVITIES. (a) AMENDMENT RELATING 6 7 MUNITY FOR 8 DISCLOSURES. TO CIVIL LIABILITY IM Section 5318(g)(3) of title 31, United States Code, is amended to read as follows: 9 10 ''(3) LIABILITY FOR DISCLOSURES. ''(A) IN GENERAL. Any financial institu 11 tion that makes a voluntary disclosure of any 12 possible violation of law or regulation to a gov 13 ernment agency or makes a disclosure pursuant 14 to this subsection or any other authority, and 15 any director, officer, employee, or agent of such 16 institution who makes, or requires another to 17 make any such disclosure, shall not be liable to 18 any person under any law or regulation of the 19 United States, any constitution, law, or regula 20 tion of any State or political subdivision of any 21 State, or under any contract or other legally en 22 forceable agreement (including any arbitration 23 agreement), for such disclosure or for any fail 24 ure to provide notice of such disclosure to the EXT-18-2091-C-000680 007104-001431 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 105 1 person who is the subject of such disclosure or 2 any other person identified in the disclosure. ''(B) RULE 3 OF CONSTRUCTION. Subpara graph (A) shall not be construed as creating 4 ''(i) any inference that the term 'per 5 6 son', as used in such subparagraph, may 7 be construed more broadly than its ordi 8 nary usage so as to include any govern 9 ment or agency of government; or ''(ii) any immunity against, or other 10 11 wise affecting, any civil or criminal action 12 brought by any government or agency of 13 government to enforce any constitution, 14 law, or regulation of such government or 15 agency.''. 16 (b) PROHIBITION 17 SURES. ON NOTIFICATION DISCLO Section 5318(g)(2) of title 31, United States 18 Code, is amended to read as follows: 19 ''(2) NOTIFICATION 20 OF ''(A) IN PROHIBITED. GENERAL. If a financial institu 21 tion or any director, officer, employee, or agent 22 of any financial institution, voluntarily or pur 23 suant to this section or any other authority, re 24 ports a suspicious transaction to a government 25 agency EXT-18-2091-C-000681 007104-001432 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 105 1 person who is the subject of such disclosure or 2 any other person identified in the disclosure. ''(B) RULE 3 OF CONSTRUCTION. Subpara graph (A) shall not be construed as creating 4 ''(i) any inference that the term 'per 5 6 son', as used in such subparagraph, may 7 be construed more broadly than its ordi 8 nary usage so as to include any govern 9 ment or agency of government; or ''(ii) any immunity against, or other 10 11 wise affecting, any civil or criminal action 12 brought by any government or agency of 13 government to enforce any constitution, 14 law, or regulation of such government or 15 agency.''. 16 (b) PROHIBITION 17 SURES. ON NOTIFICATION DISCLO Section 5318(g)(2) of title 31, United States 18 Code, is amended to read as follows: 19 ''(2) NOTIFICATION 20 OF ''(A) IN PROHIBITED. GENERAL. If a financial institu 21 tion or any director, officer, employee, or agent 22 of any financial institution, voluntarily or pur 23 suant to this section or any other authority, re 24 ports a suspicious transaction to a government 25 agency EXT-18-2091-C-000681 007104-001432 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 106 1 ''(i) the financial institution, director, 2 officer, employee, or agent may not notify 3 any person involved in the transaction that 4 the transaction has been reported; and 5 ''(ii) no officer or employee of the 6 Federal Government or of any State, local, 7 tribal, or territorial government within the 8 United States, who has any knowledge that 9 such report was made may disclose to any 10 person involved in the transaction that the 11 transaction has been reported, other than 12 as necessary to fulfill the official duties of 13 such officer or employee. 14 ''(B) DISCLOSURES 15 16 MENT REFERENCES. ''(i) RULE IN CERTAIN EMPLOY OF CONSTRUCTION. Not 17 withstanding the application of subpara 18 graph (A) in any other context, subpara 19 graph (A) shall not be construed as prohib 20 iting any financial institution, or any direc 21 tor, officer, employee, or agent of such in 22 stitution, from including information that 23 was included in a report to which subpara 24 graph (A) applies EXT-18-2091-C-000682 007104-001433 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 106 1 ''(i) the financial institution, director, 2 officer, employee, or agent may not notify 3 any person involved in the transaction that 4 the transaction has been reported; and 5 ''(ii) no officer or employee of the 6 Federal Government or of any State, local, 7 tribal, or territorial government within the 8 United States, who has any knowledge that 9 such report was made may disclose to any 10 person involved in the transaction that the 11 transaction has been reported, other than 12 as necessary to fulfill the official duties of 13 such officer or employee. 14 ''(B) DISCLOSURES 15 16 MENT REFERENCES. ''(i) RULE IN CERTAIN EMPLOY OF CONSTRUCTION. Not 17 withstanding the application of subpara 18 graph (A) in any other context, subpara 19 graph (A) shall not be construed as prohib 20 iting any financial institution, or any direc 21 tor, officer, employee, or agent of such in 22 stitution, from including information that 23 was included in a report to which subpara 24 graph (A) applies EXT-18-2091-C-000682 007104-001433 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 107 1 ''(I) in a written employment ref 2 erence that is provided in accordance 3 with section 18(v) of the Federal De 4 posit Insurance Act in response to a 5 request from another financial institu 6 tion, except that such written ref 7 erence may not disclose that such in 8 formation was also included in any 9 such report or that such report was 10 11 made; or ''(II) in a written termination no 12 tice or employment reference that is 13 provided in accordance with the rules 14 of the self regulatory organizations 15 registered with the Securities and Ex 16 change Commission, except that such 17 written notice or reference may not 18 disclose that such information was 19 also included in any such report or 20 that such report was made. 21 ''(ii) INFORMATION NOT REQUIRED. 22 Clause (i) shall not be construed, by itself, 23 to create any affirmative duty to include 24 any information described in clause (i) in EXT-18-2091-C-000683 007104-001434 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 107 1 ''(I) in a written employment ref 2 erence that is provided in accordance 3 with section 18(v) of the Federal De 4 posit Insurance Act in response to a 5 request from another financial institu 6 tion, except that such written ref 7 erence may not disclose that such in 8 formation was also included in any 9 such report or that such report was 10 11 made; or ''(II) in a written termination no 12 tice or employment reference that is 13 provided in accordance with the rules 14 of the self regulatory organizations 15 registered with the Securities and Ex 16 change Commission, except that such 17 written notice or reference may not 18 disclose that such information was 19 also included in any such report or 20 that such report was made. 21 ''(ii) INFORMATION NOT REQUIRED. 22 Clause (i) shall not be construed, by itself, 23 to create any affirmative duty to include 24 any information described in clause (i) in EXT-18-2091-C-000683 007104-001434 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 108 1 any employment reference or termination 2 notice referred to in clause (i).''. 3 SEC. 332. ANTI-MONEY LAUNDERING PROGRAMS. Section 5318(h) of title 31, United States Code, is 4 5 amended to read as follows: 6 7 ''(h) ANTI MONEY LAUNDERING PROGRAMS. ''(1) IN GENERAL. In order to guard against 8 money laundering through financial institutions, 9 each financial institution shall establish anti money 10 11 12 13 14 15 16 17 laundering programs, including, at a minimum ''(A) the development of internal policies, procedures, and controls; ''(B) the designation of a compliance offi cer; ''(C) an ongoing employee training pro gram; and ''(D) an independent audit function to test 18 programs. 19 ''(2) REGULATIONS. The Secretary may pre 20 scribe minimum standards for programs established 21 under paragraph (1), and may exempt from the ap 22 plication of those standards any financial institution 23 that is not subject to the provisions of the rules con 24 tained in part 103 of title 31, of the Code of Federal 25 Regulations, or any successor rule thereto, for so EXT-18-2091-C-000684 007104-001435 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 108 1 any employment reference or termination 2 notice referred to in clause (i).''. 3 SEC. 332. ANTI-MONEY LAUNDERING PROGRAMS. Section 5318(h) of title 31, United States Code, is 4 5 amended to read as follows: 6 7 ''(h) ANTI MONEY LAUNDERING PROGRAMS. ''(1) IN GENERAL. In order to guard against 8 money laundering through financial institutions, 9 each financial institution shall establish anti money 10 11 12 13 14 15 16 17 laundering programs, including, at a minimum ''(A) the development of internal policies, procedures, and controls; ''(B) the designation of a compliance offi cer; ''(C) an ongoing employee training pro gram; and ''(D) an independent audit function to test 18 programs. 19 ''(2) REGULATIONS. The Secretary may pre 20 scribe minimum standards for programs established 21 under paragraph (1), and may exempt from the ap 22 plication of those standards any financial institution 23 that is not subject to the provisions of the rules con 24 tained in part 103 of title 31, of the Code of Federal 25 Regulations, or any successor rule thereto, for so EXT-18-2091-C-000684 007104-001435 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 109 1 long as such financial institution is not subject to 2 the provisions of such rules.''. 3 SEC. 333. PENALTIES FOR VIOLATIONS OF GEOGRAPHIC 4 TARGETING ORDERS AND CERTAIN RECORD- 5 KEEPING 6 ENING EFFECTIVE PERIOD OF GEOGRAPHIC 7 TARGETING ORDERS. 8 9 10 (a) CIVIL PENALTY ORDER. FOR VIOLATION AND OF LENGTH- TARGETING Section 5321(a)(1) of title 31, United States Code, is amended (1) by inserting ''or order issued'' after ''sub 11 12 REQUIREMENTS, chapter or a regulation prescribed''; and (2) by inserting '', or willfully violating a regu 13 14 lation prescribed under section 21 of the Federal 15 Deposit Insurance Act or section 123 of Public Law 16 91 508,'' after ''sections 5314 and 5315)''. 17 (b) CRIMINAL PENALTIES 18 GETING 19 20 21 ORDER. Code, is amended FOR VIOLATION OF TAR Section 5322 of title 31, United States (1) in subsection (a) (A) by inserting ''or order issued'' after 22 ''willfully violating this subchapter or a regula 23 tion prescribed''; and 24 (B) by inserting '', or willfully violating a 25 regulation prescribed under section 21 of the EXT-18-2091-C-000685 007104-001436 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 109 1 long as such financial institution is not subject to 2 the provisions of such rules.''. 3 SEC. 333. PENALTIES FOR VIOLATIONS OF GEOGRAPHIC 4 TARGETING ORDERS AND CERTAIN RECORD- 5 KEEPING 6 ENING EFFECTIVE PERIOD OF GEOGRAPHIC 7 TARGETING ORDERS. 8 9 10 (a) CIVIL PENALTY ORDER. FOR VIOLATION AND OF LENGTH- TARGETING Section 5321(a)(1) of title 31, United States Code, is amended (1) by inserting ''or order issued'' after ''sub 11 12 REQUIREMENTS, chapter or a regulation prescribed''; and (2) by inserting '', or willfully violating a regu 13 14 lation prescribed under section 21 of the Federal 15 Deposit Insurance Act or section 123 of Public Law 16 91 508,'' after ''sections 5314 and 5315)''. 17 (b) CRIMINAL PENALTIES 18 GETING 19 20 21 ORDER. Code, is amended FOR VIOLATION OF TAR Section 5322 of title 31, United States (1) in subsection (a) (A) by inserting ''or order issued'' after 22 ''willfully violating this subchapter or a regula 23 tion prescribed''; and 24 (B) by inserting '', or willfully violating a 25 regulation prescribed under section 21 of the EXT-18-2091-C-000685 007104-001436 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 110 1 Federal Deposit Insurance Act or section 123 2 of Public Law 91 508,'' after ''under section 3 5315 or 5324)''; and 4 (2) in subsection (b) (A) by inserting ''or order issued'' after 5 6 ''willfully violating this subchapter or a regula 7 tion prescribed''; and 8 (B) by inserting ''or willfully violating a 9 regulation prescribed under section 21 of the 10 Federal Deposit Insurance Act or section 123 11 of Public Law 91 508,'' after ''under section 12 5315 or 5324),''. 13 (c) STRUCTURING TRANSACTIONS TO EVADE TAR 14 GETING 15 MENTS. 16 ORDER OR CERTAIN RECORDKEEPING REQUIRE Section 5324(a) of title 31, United States Code, is amended 17 (1) by inserting a comma after ''shall''; 18 (2) by striking ''section '' and inserting ''sec 19 tion, the reporting or recordkeeping requirements 20 imposed by any order issued under section 5326, or 21 the recordkeeping requirements imposed by any reg 22 ulation prescribed under section 21 of the Federal 23 Deposit Insurance Act or section 123 of Public Law 24 91 508 ''; EXT-18-2091-C-000686 007104-001437 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 110 1 Federal Deposit Insurance Act or section 123 2 of Public Law 91 508,'' after ''under section 3 5315 or 5324)''; and 4 (2) in subsection (b) (A) by inserting ''or order issued'' after 5 6 ''willfully violating this subchapter or a regula 7 tion prescribed''; and 8 (B) by inserting ''or willfully violating a 9 regulation prescribed under section 21 of the 10 Federal Deposit Insurance Act or section 123 11 of Public Law 91 508,'' after ''under section 12 5315 or 5324),''. 13 (c) STRUCTURING TRANSACTIONS TO EVADE TAR 14 GETING 15 MENTS. 16 ORDER OR CERTAIN RECORDKEEPING REQUIRE Section 5324(a) of title 31, United States Code, is amended 17 (1) by inserting a comma after ''shall''; 18 (2) by striking ''section '' and inserting ''sec 19 tion, the reporting or recordkeeping requirements 20 imposed by any order issued under section 5326, or 21 the recordkeeping requirements imposed by any reg 22 ulation prescribed under section 21 of the Federal 23 Deposit Insurance Act or section 123 of Public Law 24 91 508 ''; EXT-18-2091-C-000686 007104-001437 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 111 1 (3) in paragraph (1), by inserting '', to file a 2 report or to maintain a record required by an order 3 issued under section 5326, or to maintain a record 4 required pursuant to any regulation prescribed 5 under section 21 of the Federal Deposit Insurance 6 Act or section 123 of Public Law 91 508'' after 7 ''regulation prescribed under any such section''; and 8 (4) in paragraph (2), by inserting '', to file a 9 report or to maintain a record required by any order 10 issued under section 5326, or to maintain a record 11 required pursuant to any regulation prescribed 12 under section 5326, or to maintain a record required 13 pursuant to any regulation prescribed under section 14 21 of the Federal Deposit Insurance Act or section 15 123 of Public Law 91 508,'' after ''regulation pre 16 scribed under any such section''. 17 (d) LENGTHENING EFFECTIVE PERIOD 18 GRAPHIC TARGETING ORDERS. OF GEO Section 5326(d) of title 19 31, United States Code, is amended by striking ''more 20 than 60'' and inserting ''more than 180''. 21 SEC. 334. ANTI-MONEY LAUNDERING STRATEGY. 22 (b) STRATEGY. Section 5341(b) of title 31, United 23 States Code, is amended by adding at the end the fol 24 lowing: EXT-18-2091-C-000687 007104-001438 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 111 1 (3) in paragraph (1), by inserting '', to file a 2 report or to maintain a record required by an order 3 issued under section 5326, or to maintain a record 4 required pursuant to any regulation prescribed 5 under section 21 of the Federal Deposit Insurance 6 Act or section 123 of Public Law 91 508'' after 7 ''regulation prescribed under any such section''; and 8 (4) in paragraph (2), by inserting '', to file a 9 report or to maintain a record required by any order 10 issued under section 5326, or to maintain a record 11 required pursuant to any regulation prescribed 12 under section 5326, or to maintain a record required 13 pursuant to any regulation prescribed under section 14 21 of the Federal Deposit Insurance Act or section 15 123 of Public Law 91 508,'' after ''regulation pre 16 scribed under any such section''. 17 (d) LENGTHENING EFFECTIVE PERIOD 18 GRAPHIC TARGETING ORDERS. OF GEO Section 5326(d) of title 19 31, United States Code, is amended by striking ''more 20 than 60'' and inserting ''more than 180''. 21 SEC. 334. ANTI-MONEY LAUNDERING STRATEGY. 22 (b) STRATEGY. Section 5341(b) of title 31, United 23 States Code, is amended by adding at the end the fol 24 lowing: EXT-18-2091-C-000687 007104-001438 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 112 ''(12) DATA REGARDING FUNDING OF TER 1 2 RORISM. Data concerning money laundering efforts 3 related to the funding of acts of international ter 4 rorism, and efforts directed at the prevention, detec 5 tion, and prosecution of such funding.''. 6 SEC. 335. AUTHORIZATION TO INCLUDE SUSPICIONS OF IL7 LEGAL ACTIVITY IN WRITTEN EMPLOYMENT 8 REFERENCES. Section 18 of the Federal Deposit Insurance Act (12 9 10 U.S.C. 1828) is amended by adding at the end the fol 11 lowing: 12 RITTEN E MPLOYMENT R E FERENCES M AY ''(v) W 13 C ONTAIN S USPICIONS OF I NVOLVEMENT IN I LLEGAL AC 14 TIVITY. 15 ''(1) AUTHORITY TO DISCLOSE INFORMA 16 TION. Notwithstanding any other provision of law, 17 any insured depository institution, and any director, 18 officer, employee, or agent of such institution, may 19 disclose in any written employment reference relat 20 ing to a current or former institution affiliated party 21 of such institution which is provided to another in 22 sured depository institution in response to a request 23 from such other institution, information concerning 24 the possible involvement of such institution affiliated 25 party in potentially unlawful activity. EXT-18-2091-C-000688 007104-001439 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 112 ''(12) DATA REGARDING FUNDING OF TER 1 2 RORISM. Data concerning money laundering efforts 3 related to the funding of acts of international ter 4 rorism, and efforts directed at the prevention, detec 5 tion, and prosecution of such funding.''. 6 SEC. 335. AUTHORIZATION TO INCLUDE SUSPICIONS OF IL7 LEGAL ACTIVITY IN WRITTEN EMPLOYMENT 8 REFERENCES. Section 18 of the Federal Deposit Insurance Act (12 9 10 U.S.C. 1828) is amended by adding at the end the fol 11 lowing: 12 RITTEN E MPLOYMENT R E FERENCES M AY ''(v) W 13 C ONTAIN S USPICIONS OF I NVOLVEMENT IN I LLEGAL AC 14 TIVITY. 15 ''(1) AUTHORITY TO DISCLOSE INFORMA 16 TION. Notwithstanding any other provision of law, 17 any insured depository institution, and any director, 18 officer, employee, or agent of such institution, may 19 disclose in any written employment reference relat 20 ing to a current or former institution affiliated party 21 of such institution which is provided to another in 22 sured depository institution in response to a request 23 from such other institution, information concerning 24 the possible involvement of such institution affiliated 25 party in potentially unlawful activity. EXT-18-2091-C-000688 007104-001439 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 113 1 ''(2) INFORMATION NOT REQUIRED. Nothing 2 in paragraph (1) shall be construed, by itself, to cre 3 ate any affirmative duty to include any information 4 described in paragraph (1) in any employment ref 5 erence referred to in paragraph (1). 6 ''(3) MALICIOUS INTENT. Notwithstanding 7 any other provision of this subsection, voluntary dis 8 closure made by an insured depository institution, 9 and any director, officer, employee, or agent of such 10 institution under this subsection concerning poten 11 tially unlawful activity that is made with malicious 12 intent, shall not be shielded from liability from the 13 person identified in the disclosure. 14 ''(4) DEFINITION. For purposes of this sub 15 section, the term 'insured depository institution' in 16 cludes any uninsured branch or agency of a foreign 17 bank.''. 18 SEC. 336. BANK SECRECY ACT ADVISORY GROUP. 19 Section 1564 of the Annunzio Wylie Anti Money 20 Laundering Act (31 U.S.C. 5311 note) is amended 21 (1) in subsection (a), by inserting '', of non 22 governmental organizations advocating financial pri 23 vacy,'' after ''Drug Control Policy''; and EXT-18-2091-C-000689 007104-001440 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 113 1 ''(2) INFORMATION NOT REQUIRED. Nothing 2 in paragraph (1) shall be construed, by itself, to cre 3 ate any affirmative duty to include any information 4 described in paragraph (1) in any employment ref 5 erence referred to in paragraph (1). 6 ''(3) MALICIOUS INTENT. Notwithstanding 7 any other provision of this subsection, voluntary dis 8 closure made by an insured depository institution, 9 and any director, officer, employee, or agent of such 10 institution under this subsection concerning poten 11 tially unlawful activity that is made with malicious 12 intent, shall not be shielded from liability from the 13 person identified in the disclosure. 14 ''(4) DEFINITION. For purposes of this sub 15 section, the term 'insured depository institution' in 16 cludes any uninsured branch or agency of a foreign 17 bank.''. 18 SEC. 336. BANK SECRECY ACT ADVISORY GROUP. 19 Section 1564 of the Annunzio Wylie Anti Money 20 Laundering Act (31 U.S.C. 5311 note) is amended 21 (1) in subsection (a), by inserting '', of non 22 governmental organizations advocating financial pri 23 vacy,'' after ''Drug Control Policy''; and EXT-18-2091-C-000689 007104-001440 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 114 1 (2) in subsection (c), by inserting '', other than 2 subsections (a) and (d) of such Act which shall 3 apply'' before the period at the end. 4 SEC. 337. AGENCY REPORTS ON RECONCILING PENALTY 5 AMOUNTS. 6 Not later than 1 year after the date of enactment 7 of this Act, the Secretary of the Treasury and the Federal 8 banking agencies (as defined in section 3 of the Federal 9 Deposit Insurance Act (12 U.S.C. 1813)) shall each sub 10 mit their respective reports to the Congress containing 11 recommendations on possible legislation to conform the 12 penalties imposed on depository institutions (as defined in 13 section 3 of the Federal Deposit Insurance Act) for viola 14 tions of subchapter II of chapter 53 of title 31, United 15 States Code, to the penalties imposed on such institutions 16 under section 8 of the Federal Deposit Insurance Act (12 17 U.S.C. 1818). 18 SEC. 338. REPORTING OF SUSPICIOUS ACTIVITIES BY SECU19 RITIES 20 MENT COMPANY STUDY. 21 BROKERS AND DEALERS; (a) 270 DAY REGULATION DEADLINE. INVEST- Not later 22 than 270 days after the date of enactment of this Act, 23 the Secretary of the Treasury, after consultation with the 24 Securities and Exchange Commission and the Board of 25 Governors of the Federal Reserve System, shall issue final EXT-18-2091-C-000690 007104-001441 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 114 1 (2) in subsection (c), by inserting '', other than 2 subsections (a) and (d) of such Act which shall 3 apply'' before the period at the end. 4 SEC. 337. AGENCY REPORTS ON RECONCILING PENALTY 5 AMOUNTS. 6 Not later than 1 year after the date of enactment 7 of this Act, the Secretary of the Treasury and the Federal 8 banking agencies (as defined in section 3 of the Federal 9 Deposit Insurance Act (12 U.S.C. 1813)) shall each sub 10 mit their respective reports to the Congress containing 11 recommendations on possible legislation to conform the 12 penalties imposed on depository institutions (as defined in 13 section 3 of the Federal Deposit Insurance Act) for viola 14 tions of subchapter II of chapter 53 of title 31, United 15 States Code, to the penalties imposed on such institutions 16 under section 8 of the Federal Deposit Insurance Act (12 17 U.S.C. 1818). 18 SEC. 338. REPORTING OF SUSPICIOUS ACTIVITIES BY SECU19 RITIES 20 MENT COMPANY STUDY. 21 BROKERS AND DEALERS; (a) 270 DAY REGULATION DEADLINE. INVEST- Not later 22 than 270 days after the date of enactment of this Act, 23 the Secretary of the Treasury, after consultation with the 24 Securities and Exchange Commission and the Board of 25 Governors of the Federal Reserve System, shall issue final EXT-18-2091-C-000690 007104-001441 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 115 1 regulations requiring registered brokers and dealers to file 2 reports of suspicious financial transactions, consistent 3 with the requirements applicable to financial institutions, 4 and directors, officers, employees, and agents of financial 5 institutions under section 5318(g) of title 31, United 6 States Code. 7 8 (b) REPORT ON INVESTMENT COMPANIES. (1) IN GENERAL. Not later than 1 year after 9 the date of enactment of this Act, Secretary of the 10 Treasury, the Board of Governors of the Federal 11 Reserve System, and the Securities and Exchange 12 Commission shall jointly submit a report to Con 13 gress on recommendations for effective regulations 14 to apply the requirements of subchapter II of chap 15 ter 53 of title 31, United States Code, to investment 16 companies, pursuant to section 5312(a)(2)(I) of title 17 31, United States Code. 18 (2) DEFINITION. 19 For purposes of this section, the term ''investment company'' 20 (A) has the same meaning as in section 3 21 of the Investment Company Act of 1940 (15 22 U.S.C. 80a 3); and 23 (B) any person that, but for the exceptions 24 provided for in paragraph (1) or (7) of section 25 3(c) of the Investment Company Act of 1940 EXT-18-2091-C-000691 007104-001442 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 115 1 regulations requiring registered brokers and dealers to file 2 reports of suspicious financial transactions, consistent 3 with the requirements applicable to financial institutions, 4 and directors, officers, employees, and agents of financial 5 institutions under section 5318(g) of title 31, United 6 States Code. 7 8 (b) REPORT ON INVESTMENT COMPANIES. (1) IN GENERAL. Not later than 1 year after 9 the date of enactment of this Act, Secretary of the 10 Treasury, the Board of Governors of the Federal 11 Reserve System, and the Securities and Exchange 12 Commission shall jointly submit a report to Con 13 gress on recommendations for effective regulations 14 to apply the requirements of subchapter II of chap 15 ter 53 of title 31, United States Code, to investment 16 companies, pursuant to section 5312(a)(2)(I) of title 17 31, United States Code. 18 (2) DEFINITION. 19 For purposes of this section, the term ''investment company'' 20 (A) has the same meaning as in section 3 21 of the Investment Company Act of 1940 (15 22 U.S.C. 80a 3); and 23 (B) any person that, but for the exceptions 24 provided for in paragraph (1) or (7) of section 25 3(c) of the Investment Company Act of 1940 EXT-18-2091-C-000691 007104-001442 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 116 1 (15 U.S.C. 80a 3(c)), would be an investment 2 company. 3 (3) ADDITIONAL RECOMMENDATIONS. In its 4 report, the Securities and Exchange Commission 5 may make different recommendations for different 6 types of entities covered by this section. 7 (4) BENEFICIAL COMPANIES. OWNERSHIP OF PERSONAL The report described in 8 HOLDING 9 paragraph (1) shall also include recommendations as 10 to whether the Secretary should promulgate regula 11 tions to treat any corporation or business or other 12 grantor trust whose assets are predominantly securi 13 ties, bank certificates of deposit, or other securities 14 or investment instruments (other than such as relate 15 to operating subsidiaries of such corporation or 16 trust) and that has 5 or fewer common shareholders 17 or holders of beneficial or other equity interest, as 18 a financial institution within the meaning of that 19 phrase in section 5312(a)(2)(I) and whether to re 20 quire such corporations or trusts to disclose their 21 beneficial owners when opening accounts or initi 22 ating funds transfers at any domestic financial insti 23 tution. EXT-18-2091-C-000692 007104-001443 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 116 1 (15 U.S.C. 80a 3(c)), would be an investment 2 company. 3 (3) ADDITIONAL RECOMMENDATIONS. In its 4 report, the Securities and Exchange Commission 5 may make different recommendations for different 6 types of entities covered by this section. 7 (4) BENEFICIAL COMPANIES. OWNERSHIP OF PERSONAL The report described in 8 HOLDING 9 paragraph (1) shall also include recommendations as 10 to whether the Secretary should promulgate regula 11 tions to treat any corporation or business or other 12 grantor trust whose assets are predominantly securi 13 ties, bank certificates of deposit, or other securities 14 or investment instruments (other than such as relate 15 to operating subsidiaries of such corporation or 16 trust) and that has 5 or fewer common shareholders 17 or holders of beneficial or other equity interest, as 18 a financial institution within the meaning of that 19 phrase in section 5312(a)(2)(I) and whether to re 20 quire such corporations or trusts to disclose their 21 beneficial owners when opening accounts or initi 22 ating funds transfers at any domestic financial insti 23 tution. EXT-18-2091-C-000692 007104-001443 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 117 1 SEC. 339. SPECIAL REPORT ON ADMINISTRATION OF BANK 2 SECRECY PROVISIONS. (a) REPORT REQUIRED. 3 Not later than 6 months 4 after the date of enactment of this Act, the Secretary shall 5 submit a report to the Congress relating to the role of 6 the Internal Revenue Service in the administration of sub 7 chapter II of chapter 53 of title 31, United States Code 8 (commonly known as the ''Bank Secrecy Act''). (b) CONTENTS. 9 10 11 12 13 (a) The report required by subsection (1) shall specifically address, and contain rec ommendations concerning (A) whether it is advisable to shift the 14 processing of information reporting to the De 15 partment of the Treasury under the Bank Se 16 crecy Act provisions to facilities other than 17 those managed by the Internal Revenue Service; 18 and 19 (B) whether it remains reasonable and effi 20 cient, in light of the objective of both anti 21 money laundering programs and Federal tax 22 administration, for the Internal Revenue Serv 23 ice to retain authority and responsibility for 24 audit and examination of the compliance of 25 money services businesses and gaming institu EXT-18-2091-C-000693 007104-001444 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 117 1 SEC. 339. SPECIAL REPORT ON ADMINISTRATION OF BANK 2 SECRECY PROVISIONS. (a) REPORT REQUIRED. 3 Not later than 6 months 4 after the date of enactment of this Act, the Secretary shall 5 submit a report to the Congress relating to the role of 6 the Internal Revenue Service in the administration of sub 7 chapter II of chapter 53 of title 31, United States Code 8 (commonly known as the ''Bank Secrecy Act''). (b) CONTENTS. 9 10 11 12 13 (a) The report required by subsection (1) shall specifically address, and contain rec ommendations concerning (A) whether it is advisable to shift the 14 processing of information reporting to the De 15 partment of the Treasury under the Bank Se 16 crecy Act provisions to facilities other than 17 those managed by the Internal Revenue Service; 18 and 19 (B) whether it remains reasonable and effi 20 cient, in light of the objective of both anti 21 money laundering programs and Federal tax 22 administration, for the Internal Revenue Serv 23 ice to retain authority and responsibility for 24 audit and examination of the compliance of 25 money services businesses and gaming institu EXT-18-2091-C-000693 007104-001444 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 118 1 tions with those Bank Secrecy Act provisions; 2 and 3 (2) shall, if the Secretary determines that the 4 information processing responsibility or the audit 5 and examination responsibility of the Internal Rev 6 enue Service, or both, with respect to those Bank 7 Secrecy Act provisions should be transferred to other 8 agencies, include the specific recommendations of 9 the Secretary regarding the agency or agencies to 10 which any such function should be transferred, com 11 plete with a budgetary and resources plan for expe 12 ditiously accomplishing the transfer. 13 SEC. 340. BANK SECRECY PROVISIONS AND ANTI-TER14 RORIST ACTIVITIES OF UNITED STATES IN- 15 TELLIGENCE AGENCIES. (a) AMENDMENT 16 17 THE RELATING TO THE BANK SECRECY ACT. PURPOSES OF Section 5311 of title 31, 18 United States Code, is amended by inserting before the 19 period at the end the following: '', or in the conduct of 20 intelligence or counterintelligence activities, including 21 analysis, to protect against international terrorism''. 22 (b) AMENDMENT RELATING 23 PICIOUS ACTIVITIES. TO REPORTING OF SUS Section 5318(g)(4)(B) of title 31, 24 United States Code, is amended by striking ''or super 25 visory agency'' and inserting '', supervisory agency, or EXT-18-2091-C-000694 007104-001445 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 118 1 tions with those Bank Secrecy Act provisions; 2 and 3 (2) shall, if the Secretary determines that the 4 information processing responsibility or the audit 5 and examination responsibility of the Internal Rev 6 enue Service, or both, with respect to those Bank 7 Secrecy Act provisions should be transferred to other 8 agencies, include the specific recommendations of 9 the Secretary regarding the agency or agencies to 10 which any such function should be transferred, com 11 plete with a budgetary and resources plan for expe 12 ditiously accomplishing the transfer. 13 SEC. 340. BANK SECRECY PROVISIONS AND ANTI-TER14 RORIST ACTIVITIES OF UNITED STATES IN- 15 TELLIGENCE AGENCIES. (a) AMENDMENT 16 17 THE RELATING TO THE BANK SECRECY ACT. PURPOSES OF Section 5311 of title 31, 18 United States Code, is amended by inserting before the 19 period at the end the following: '', or in the conduct of 20 intelligence or counterintelligence activities, including 21 analysis, to protect against international terrorism''. 22 (b) AMENDMENT RELATING 23 PICIOUS ACTIVITIES. TO REPORTING OF SUS Section 5318(g)(4)(B) of title 31, 24 United States Code, is amended by striking ''or super 25 visory agency'' and inserting '', supervisory agency, or EXT-18-2091-C-000694 007104-001445 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 119 1 United States intelligence agency for use in the conduct 2 of intelligence or counterintelligence activities, including 3 analysis, to protect against international terrorism''. (c) AMENDMENT RELATING 4 5 REPORTS. 6 is amended to read as follows: AVAILABILITY TO OF Section 5319 of title 31, United States Code, 7 ''? 5319. Availability of reports ''The Secretary of the Treasury shall make informa 8 9 tion in a report filed under this subchapter available to 10 an agency, including any State financial institutions su 11 pervisory agency or United States intelligence agency, 12 upon request of the head of the agency. The report shall 13 be available for a purpose that is consistent with this sub 14 chapter. The Secretary may only require reports on the 15 use of such information by any State financial institutions 16 supervisory agency for other than supervisory purposes or 17 by United States intelligence agencies. However, a report 18 and records of reports are exempt from disclosure under 19 section 552 of title 5.''. 20 (d) AMENDMENT RELATING 21 THE BANK SECRECY ACT PROVISIONS. TO THE PURPOSES OF Section 21(a) of 22 the Federal Deposit Insurance Act (12 U.S.C. 1829b(a)) 23 is amended to read as follows: 24 25 OF ''(a) CONGRESSIONAL FINDINGS PURPOSE. AND DECLARATION EXT-18-2091-C-000695 007104-001446 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 119 1 United States intelligence agency for use in the conduct 2 of intelligence or counterintelligence activities, including 3 analysis, to protect against international terrorism''. (c) AMENDMENT RELATING 4 5 REPORTS. 6 is amended to read as follows: AVAILABILITY TO OF Section 5319 of title 31, United States Code, 7 ''? 5319. Availability of reports ''The Secretary of the Treasury shall make informa 8 9 tion in a report filed under this subchapter available to 10 an agency, including any State financial institutions su 11 pervisory agency or United States intelligence agency, 12 upon request of the head of the agency. The report shall 13 be available for a purpose that is consistent with this sub 14 chapter. The Secretary may only require reports on the 15 use of such information by any State financial institutions 16 supervisory agency for other than supervisory purposes or 17 by United States intelligence agencies. However, a report 18 and records of reports are exempt from disclosure under 19 section 552 of title 5.''. 20 (d) AMENDMENT RELATING 21 THE BANK SECRECY ACT PROVISIONS. TO THE PURPOSES OF Section 21(a) of 22 the Federal Deposit Insurance Act (12 U.S.C. 1829b(a)) 23 is amended to read as follows: 24 25 OF ''(a) CONGRESSIONAL FINDINGS PURPOSE. AND DECLARATION EXT-18-2091-C-000695 007104-001446 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 120 1 2 ''(1) FINDINGS. Congress finds that ''(A) adequate records maintained by in 3 sured depository institutions have a high degree 4 of usefulness in criminal, tax, and regulatory 5 investigations or proceedings, and that, given 6 the threat posed to the security of the Nation 7 on and after the terrorist attacks against the 8 United States on September 11, 2001, such 9 records may also have a high degree of useful 10 ness in the conduct of intelligence or counter 11 intelligence activities, including analysis, to pro 12 tect against domestic and international ter 13 rorism; and 14 ''(B) microfilm or other reproductions and 15 other records made by insured depository insti 16 tutions of checks, as well as records kept by 17 such institutions, of the identity of persons 18 maintaining or authorized to act with respect to 19 accounts therein, have been of particular value 20 in proceedings described in subparagraph (A). 21 ''(2) PURPOSE. It is the purpose of this sec 22 tion to require the maintenance of appropriate types 23 of records by insured depository institutions in the 24 United States where such records have a high degree 25 of usefulness in criminal, tax, or regulatory inves EXT-18-2091-C-000696 007104-001447 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 120 1 2 ''(1) FINDINGS. Congress finds that ''(A) adequate records maintained by in 3 sured depository institutions have a high degree 4 of usefulness in criminal, tax, and regulatory 5 investigations or proceedings, and that, given 6 the threat posed to the security of the Nation 7 on and after the terrorist attacks against the 8 United States on September 11, 2001, such 9 records may also have a high degree of useful 10 ness in the conduct of intelligence or counter 11 intelligence activities, including analysis, to pro 12 tect against domestic and international ter 13 rorism; and 14 ''(B) microfilm or other reproductions and 15 other records made by insured depository insti 16 tutions of checks, as well as records kept by 17 such institutions, of the identity of persons 18 maintaining or authorized to act with respect to 19 accounts therein, have been of particular value 20 in proceedings described in subparagraph (A). 21 ''(2) PURPOSE. It is the purpose of this sec 22 tion to require the maintenance of appropriate types 23 of records by insured depository institutions in the 24 United States where such records have a high degree 25 of usefulness in criminal, tax, or regulatory inves EXT-18-2091-C-000696 007104-001447 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 121 1 tigations or proceedings, recognizes that, given the 2 threat posed to the security of the Nation on and 3 after the terrorist attacks against the United States 4 on September 11, 2001, such records may also have 5 a high degree of usefulness in the conduct of intel 6 ligence or counterintelligence activities, including 7 analysis, to protect against international terrorism.''. 8 (e) AMENDMENT RELATING 9 THE BANK SECRECY ACT. 10 91 TO THE PURPOSES OF Section 123(a) of Public Law 508 (12 U.S.C. 1953(a)) is amended to read as fol 11 lows: 12 ''(a) REGULATIONS. 13 that the maintenance of appropriate records and proce 14 dures 15 any If the Secretary determines by any uninsured bank or uninsured institution, or person engaging in the business of carrying on in the 16 United States any of the functions referred to in sub 17 section (b), has a high degree of usefulness in criminal, 18 tax, or regulatory investigations or proceedings, and that, 19 given 20 and 21 on the threat posed to the security of the Nation on after the terrorist attacks against the United States September 11, 2001, such records may also have a high 22 degree of usefulness in the conduct of intelligence or coun 23 terintelligence 24 against 25 quire activities, including analysis, to protect international terrorism, he may by regulation re such bank, institution, or person.''. EXT-18-2091-C-000697 007104-001448 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 121 1 tigations or proceedings, recognizes that, given the 2 threat posed to the security of the Nation on and 3 after the terrorist attacks against the United States 4 on September 11, 2001, such records may also have 5 a high degree of usefulness in the conduct of intel 6 ligence or counterintelligence activities, including 7 analysis, to protect against international terrorism.''. 8 (e) AMENDMENT RELATING 9 THE BANK SECRECY ACT. 10 91 TO THE PURPOSES OF Section 123(a) of Public Law 508 (12 U.S.C. 1953(a)) is amended to read as fol 11 lows: 12 ''(a) REGULATIONS. 13 that the maintenance of appropriate records and proce 14 dures 15 any If the Secretary determines by any uninsured bank or uninsured institution, or person engaging in the business of carrying on in the 16 United States any of the functions referred to in sub 17 section (b), has a high degree of usefulness in criminal, 18 tax, or regulatory investigations or proceedings, and that, 19 given 20 and 21 on the threat posed to the security of the Nation on after the terrorist attacks against the United States September 11, 2001, such records may also have a high 22 degree of usefulness in the conduct of intelligence or coun 23 terintelligence 24 against 25 quire activities, including analysis, to protect international terrorism, he may by regulation re such bank, institution, or person.''. EXT-18-2091-C-000697 007104-001448 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 122 (f) AMENDMENTS TO THE RIGHT 1 2 VACY 3 is ACT. amended TO FINANCIAL PRI The Right to Financial Privacy Act of 1978 (1) in section 1112(a) (12 U.S.C. 3412(a)), by 4 5 inserting '', or intelligence or counterintelligence ac 6 tivity, investigation or analysis related to inter 7 national terrorism'' after ''legitimate law enforce 8 ment inquiry''; and (2) 9 in 3414(a)(1)) 10 section 1114(a)(1) (12 U.S.C. (A) in subparagraph (A), by striking ''or'' 11 at the end; 12 (B) in subparagraph (B), by striking the 13 period at the end and inserting ''; or''; and 14 15 (C) by adding at the end the following: 16 ''(C) a Government authority authorized to 17 conduct investigations of, or intelligence or 18 counterintelligence analyses related to, inter 19 national terrorism for the purpose of con 20 ducting such investigations or analyses.''. (g) AMENDMENT 21 22 ACT. 23 et TO THE FAIR CREDIT REPORTING The Fair Credit Reporting Act (15 U.S.C. 1681 seq.) is amended by adding at the end the following 24 new section: EXT-18-2091-C-000698 007104-001449 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 122 (f) AMENDMENTS TO THE RIGHT 1 2 VACY 3 is ACT. amended TO FINANCIAL PRI The Right to Financial Privacy Act of 1978 (1) in section 1112(a) (12 U.S.C. 3412(a)), by 4 5 inserting '', or intelligence or counterintelligence ac 6 tivity, investigation or analysis related to inter 7 national terrorism'' after ''legitimate law enforce 8 ment inquiry''; and (2) 9 in 3414(a)(1)) 10 section 1114(a)(1) (12 U.S.C. (A) in subparagraph (A), by striking ''or'' 11 at the end; 12 (B) in subparagraph (B), by striking the 13 period at the end and inserting ''; or''; and 14 15 (C) by adding at the end the following: 16 ''(C) a Government authority authorized to 17 conduct investigations of, or intelligence or 18 counterintelligence analyses related to, inter 19 national terrorism for the purpose of con 20 ducting such investigations or analyses.''. (g) AMENDMENT 21 22 ACT. 23 et TO THE FAIR CREDIT REPORTING The Fair Credit Reporting Act (15 U.S.C. 1681 seq.) is amended by adding at the end the following 24 new section: EXT-18-2091-C-000698 007104-001449 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 123 1 ''SEC. 626. DISCLOSURES TO GOVERNMENTAL AGENCIES 2 FOR COUNTERTERRORISM PURPOSES. 3 ''(a) DISCLOSURE. 4 any other provision of this title, a consumer reporting 5 agency shall 6 all Notwithstanding section 604 or furnish a consumer report of a consumer and other information in a consumer's file to a government 7 agency authorized to conduct investigations of, or intel 8 ligence or counterintelligence activities or analysis related 9 to, international terrorism when presented with a written 10 certification 11 mation is necessary for the agency's conduct or such inves 12 tigation, activity or analysis. ''(b) FORM 13 14 described OF CERTIFICATION. Treasury. ''(c) CONFIDENTIALITY. 16 17 agency, The certification in subsection (a) shall be signed by the Sec 15 retary of the No consumer reporting or officer, employee, or agent of such consumer 18 reporting 19 in by such government agency that such infor agency, shall disclose to any person, or specify any consumer report, that a government agency has 20 sought or obtained access to information under subsection 21 (a). 22 ''(d) RULE 23 625 shall be construed to limit the authority of the Direc 24 tor OF CONSTRUCTION. Nothing in section of the Federal Bureau of Investigation under this sec 25 tion. EXT-18-2091-C-000699 007104-001450 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 123 1 ''SEC. 626. DISCLOSURES TO GOVERNMENTAL AGENCIES 2 FOR COUNTERTERRORISM PURPOSES. 3 ''(a) DISCLOSURE. 4 any other provision of this title, a consumer reporting 5 agency shall 6 all Notwithstanding section 604 or furnish a consumer report of a consumer and other information in a consumer's file to a government 7 agency authorized to conduct investigations of, or intel 8 ligence or counterintelligence activities or analysis related 9 to, international terrorism when presented with a written 10 certification 11 mation is necessary for the agency's conduct or such inves 12 tigation, activity or analysis. ''(b) FORM 13 14 described OF CERTIFICATION. Treasury. ''(c) CONFIDENTIALITY. 16 17 agency, The certification in subsection (a) shall be signed by the Sec 15 retary of the No consumer reporting or officer, employee, or agent of such consumer 18 reporting 19 in by such government agency that such infor agency, shall disclose to any person, or specify any consumer report, that a government agency has 20 sought or obtained access to information under subsection 21 (a). 22 ''(d) RULE 23 625 shall be construed to limit the authority of the Direc 24 tor OF CONSTRUCTION. Nothing in section of the Federal Bureau of Investigation under this sec 25 tion. EXT-18-2091-C-000699 007104-001450 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 124 ''(e) SAFE HARBOR. 1 2 provision 3 agency of this subchapter, any consumer reporting or agent or employee thereof making disclosure of 4 consumer 5 section reports or other information pursuant to this in good faith reliance upon a certification of a gov 6 ernmental 7 tion agency pursuant to the provisions of this sec shall not be liable to any person for such disclosure 8 under this subchapter, the constitution of any State, or 9 any law 10 sion Notwithstanding any other or regulation of any State or any political subdivi of any State.''. 11 SEC. 341. REPORTING OF SUSPICIOUS ACTIVITIES BY 12 HAWALA AND OTHER UNDERGROUND BANK- 13 ING SYSTEMS. 14 (a) DEFINITION 15 5312(a)(2)(R) 16 to FOR SUBCHAPTER. Section of title 31, United States Code, is amended read as follows: 17 ''(R) a licensed sender of money or any 18 other person who engages as a business in the 19 transmission of funds, including through an in 20 formal value transfer banking system or net 21 work of people facilitating the transfer of value 22 domestically or internationally outside of the 23 conventional financial institutions system;''. 24 (b) MONEY TRANSMITTING BUSINESS. 25 5330(d)(1)(A) Section of title 31, United States Code, is amended EXT-18-2091-C-000700 007104-001451 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 124 ''(e) SAFE HARBOR. 1 2 provision 3 agency of this subchapter, any consumer reporting or agent or employee thereof making disclosure of 4 consumer 5 section reports or other information pursuant to this in good faith reliance upon a certification of a gov 6 ernmental 7 tion agency pursuant to the provisions of this sec shall not be liable to any person for such disclosure 8 under this subchapter, the constitution of any State, or 9 any law 10 sion Notwithstanding any other or regulation of any State or any political subdivi of any State.''. 11 SEC. 341. REPORTING OF SUSPICIOUS ACTIVITIES BY 12 HAWALA AND OTHER UNDERGROUND BANK- 13 ING SYSTEMS. 14 (a) DEFINITION 15 5312(a)(2)(R) 16 to FOR SUBCHAPTER. Section of title 31, United States Code, is amended read as follows: 17 ''(R) a licensed sender of money or any 18 other person who engages as a business in the 19 transmission of funds, including through an in 20 formal value transfer banking system or net 21 work of people facilitating the transfer of value 22 domestically or internationally outside of the 23 conventional financial institutions system;''. 24 (b) MONEY TRANSMITTING BUSINESS. 25 5330(d)(1)(A) Section of title 31, United States Code, is amended EXT-18-2091-C-000700 007104-001451 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 125 1 by inserting before the semicolon the following: ''or any 2 other person who engages as a business in the trans 3 mission of funds, including through an informal value 4 transfer banking system or network of people facilitating 5 the transfer of value domestically or internationally out 6 side of the conventional financial institutions system;''. 7 (d) APPLICABILITY OF RULES. 8 31, United States Code, as amended by this title, is 9 amended by adding at 11 gated 12 of 14 to OF RULES. Any rules promul pursuant to the authority contained in section 21 the Federal Deposit Insurance Act (12 U.S.C. 1829b) 13 shall 15 a the end the following: ''(l) APPLICABILITY 10 Section 5318 of title apply, in addition to any other financial institution which such rules apply, to any person that engages as business in the transmission of funds, including through 16 an informal value transfer banking system or network of 17 people facilitating the transfer of value domestically or 18 internationally 19 tutions system.''. (e) REPORT. 20 21 of outside of the conventional financial insti Not later than 1 year after the date enactment of this Act, the Secretary of the Treasury 22 shall report to Congress on the need for any additional 23 legislation relating to informal value transfer banking sys 24 tems or networks of people facilitating the transfer of 25 value domestically or internationally outside of the conven EXT-18-2091-C-000701 007104-001452 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 125 1 by inserting before the semicolon the following: ''or any 2 other person who engages as a business in the trans 3 mission of funds, including through an informal value 4 transfer banking system or network of people facilitating 5 the transfer of value domestically or internationally out 6 side of the conventional financial institutions system;''. 7 (d) APPLICABILITY OF RULES. 8 31, United States Code, as amended by this title, is 9 amended by adding at 11 gated 12 of 14 to OF RULES. Any rules promul pursuant to the authority contained in section 21 the Federal Deposit Insurance Act (12 U.S.C. 1829b) 13 shall 15 a the end the following: ''(l) APPLICABILITY 10 Section 5318 of title apply, in addition to any other financial institution which such rules apply, to any person that engages as business in the transmission of funds, including through 16 an informal value transfer banking system or network of 17 people facilitating the transfer of value domestically or 18 internationally 19 tutions system.''. (e) REPORT. 20 21 of outside of the conventional financial insti Not later than 1 year after the date enactment of this Act, the Secretary of the Treasury 22 shall report to Congress on the need for any additional 23 legislation relating to informal value transfer banking sys 24 tems or networks of people facilitating the transfer of 25 value domestically or internationally outside of the conven EXT-18-2091-C-000701 007104-001452 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 126 1 tional financial institutions system, counter money laun 2 dering and regulatory controls relating to underground 3 money movement and banking systems, such as the system 4 referred to as 'hawala', including whether the threshold 5 for the filing of suspicious activity reports under section 6 5318(g) of title 31, United States Code should be lowered 7 in the case of such systems. 8 SEC. 342. USE OF AUTHORITY OF UNITED STATES EXECU9 TIVE DIRECTORS. (a) ACTION 10 11 determines 12 has BY THE PRESIDENT. If the President that a particular foreign country has taken or committed to take actions that contribute to efforts 13 of the United States to respond to, deter, or prevent acts 14 of international terrorism, the Secretary of the Treasury 15 may, consistent with other applicable provisions of law, in 16 struct the United States Executive Director of each inter 17 national 18 the financial institution to use the voice and vote of Executive Director to support any loan or other utili 19 zation of the funds of respective institutions for such coun 20 try, or any public or private entity within such country. 21 (b) USE OF VOICE 22 Treasury may instruct 23 tor AND VOTE. The Secretary of the the United States Executive Direc of each international financial institution to aggres 24 sively use the voice and vote of the Executive Director to 25 require an auditing of disbursements at such institutions EXT-18-2091-C-000702 007104-001453 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 126 1 tional financial institutions system, counter money laun 2 dering and regulatory controls relating to underground 3 money movement and banking systems, such as the system 4 referred to as 'hawala', including whether the threshold 5 for the filing of suspicious activity reports under section 6 5318(g) of title 31, United States Code should be lowered 7 in the case of such systems. 8 SEC. 342. USE OF AUTHORITY OF UNITED STATES EXECU9 TIVE DIRECTORS. (a) ACTION 10 11 determines 12 has BY THE PRESIDENT. If the President that a particular foreign country has taken or committed to take actions that contribute to efforts 13 of the United States to respond to, deter, or prevent acts 14 of international terrorism, the Secretary of the Treasury 15 may, consistent with other applicable provisions of law, in 16 struct the United States Executive Director of each inter 17 national 18 the financial institution to use the voice and vote of Executive Director to support any loan or other utili 19 zation of the funds of respective institutions for such coun 20 try, or any public or private entity within such country. 21 (b) USE OF VOICE 22 Treasury may instruct 23 tor AND VOTE. The Secretary of the the United States Executive Direc of each international financial institution to aggres 24 sively use the voice and vote of the Executive Director to 25 require an auditing of disbursements at such institutions EXT-18-2091-C-000702 007104-001453 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 127 1 to ensure that no funds are paid to persons who commit, 2 threaten to 3 4 term (c) DEFINITION. For purposes of this section, the ''international financial institution'' means an insti 5 tution described in section 1701(c)(2) of the International 6 Financial 7 commit, or support terrorism. Institutions Act (22 U.S.C. 262r(c)(2)). Subtitle C--Currency Crimes 8 SEC. 351. BULK CASH SMUGGLING. 9 10 (a) FINDINGS. Congress finds that (1) effective enforcement of the currency re 11 porting requirements of chapter 53 of title 31, 12 United States Code (commonly referred to as the 13 Bank Secrecy Act), and the regulations promulgated 14 thereunder, has forced drug dealers and other crimi 15 nals engaged in cash based businesses to avoid using 16 traditional financial institutions; 17 (2) in their effort to avoid using traditional fi 18 nancial institutions, drug dealers, and other crimi 19 nals are forced to move large quantities of currency 20 in bulk form to and through the airports, border 21 crossings, and other ports of entry where it can be 22 smuggled out of the United States and placed in a 23 foreign financial institution or sold on the black 24 market; EXT-18-2091-C-000703 007104-001454 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 127 1 to ensure that no funds are paid to persons who commit, 2 threaten to 3 4 term (c) DEFINITION. For purposes of this section, the ''international financial institution'' means an insti 5 tution described in section 1701(c)(2) of the International 6 Financial 7 commit, or support terrorism. Institutions Act (22 U.S.C. 262r(c)(2)). Subtitle C--Currency Crimes 8 SEC. 351. BULK CASH SMUGGLING. 9 10 (a) FINDINGS. Congress finds that (1) effective enforcement of the currency re 11 porting requirements of chapter 53 of title 31, 12 United States Code (commonly referred to as the 13 Bank Secrecy Act), and the regulations promulgated 14 thereunder, has forced drug dealers and other crimi 15 nals engaged in cash based businesses to avoid using 16 traditional financial institutions; 17 (2) in their effort to avoid using traditional fi 18 nancial institutions, drug dealers, and other crimi 19 nals are forced to move large quantities of currency 20 in bulk form to and through the airports, border 21 crossings, and other ports of entry where it can be 22 smuggled out of the United States and placed in a 23 foreign financial institution or sold on the black 24 market; EXT-18-2091-C-000703 007104-001454 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 128 1 (3) the transportation and smuggling of cash in 2 bulk form may, at the time of enactment of this Act, 3 be the most common form of money laundering, and 4 the movement of large sums of cash is one of the 5 most reliable warning signs of drug trafficking, ter 6 rorism, money laundering, racketeering, tax evasion, 7 and similar crimes; 8 (4) the intentional transportation into or out of 9 the United States of large amounts of currency or 10 monetary instruments, in a manner designed to cir 11 cumvent the mandatory reporting provisions of chap 12 ter 53 of title 31, United States Code, is the equiva 13 lent of, and creates the same harm as, the smug 14 gling of goods; 15 (5) the arrest and prosecution of bulk cash 16 smugglers is an important part of law enforcement's 17 effort to stop the laundering of criminal proceeds, 18 but the couriers who attempt to smuggle the cash 19 out of the United States are typically low level em 20 ployees of large criminal organizations, and are eas 21 ily replaced, and therefore only the confiscation of 22 the smuggled bulk cash can effectively break the 23 cycle of criminal activity of which the laundering of 24 bulk cash is a critical part; EXT-18-2091-C-000704 007104-001455 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 128 1 (3) the transportation and smuggling of cash in 2 bulk form may, at the time of enactment of this Act, 3 be the most common form of money laundering, and 4 the movement of large sums of cash is one of the 5 most reliable warning signs of drug trafficking, ter 6 rorism, money laundering, racketeering, tax evasion, 7 and similar crimes; 8 (4) the intentional transportation into or out of 9 the United States of large amounts of currency or 10 monetary instruments, in a manner designed to cir 11 cumvent the mandatory reporting provisions of chap 12 ter 53 of title 31, United States Code, is the equiva 13 lent of, and creates the same harm as, the smug 14 gling of goods; 15 (5) the arrest and prosecution of bulk cash 16 smugglers is an important part of law enforcement's 17 effort to stop the laundering of criminal proceeds, 18 but the couriers who attempt to smuggle the cash 19 out of the United States are typically low level em 20 ployees of large criminal organizations, and are eas 21 ily replaced, and therefore only the confiscation of 22 the smuggled bulk cash can effectively break the 23 cycle of criminal activity of which the laundering of 24 bulk cash is a critical part; EXT-18-2091-C-000704 007104-001455 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 129 1 (6) the penalties for violations of the currency 2 reporting requirements of the chapter 53 of title 31, 3 United States Code, are insufficient to provide a de 4 terrent to the laundering of criminal proceeds; 5 (7) because the only criminal violation under 6 Federal law before the date of enactment of this Act 7 was a reporting offense, the law does not adequately 8 provide for the confiscation of smuggled currency; 9 and 10 (8) if the smuggling of bulk cash were itself an 11 offense, the cash could be confiscated as the corpus 12 delicti of the smuggling offense. 13 (b) PURPOSES. 14 15 16 17 18 19 20 The purposes of this section are (1) to make the act of smuggling bulk cash itself a criminal offense; (2) to authorize forfeiture of any cash or instru ments of the smuggling offense; (3) to emphasize the seriousness of the act of bulk cash smuggling; and (4) to prescribe guidelines for determining the 21 amount of property subject to such forfeiture in var 22 ious situations. 23 (c) BULK CASH SMUGGLING OFFENSE. EXT-18-2091-C-000705 007104-001456 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 129 1 (6) the penalties for violations of the currency 2 reporting requirements of the chapter 53 of title 31, 3 United States Code, are insufficient to provide a de 4 terrent to the laundering of criminal proceeds; 5 (7) because the only criminal violation under 6 Federal law before the date of enactment of this Act 7 was a reporting offense, the law does not adequately 8 provide for the confiscation of smuggled currency; 9 and 10 (8) if the smuggling of bulk cash were itself an 11 offense, the cash could be confiscated as the corpus 12 delicti of the smuggling offense. 13 (b) PURPOSES. 14 15 16 17 18 19 20 The purposes of this section are (1) to make the act of smuggling bulk cash itself a criminal offense; (2) to authorize forfeiture of any cash or instru ments of the smuggling offense; (3) to emphasize the seriousness of the act of bulk cash smuggling; and (4) to prescribe guidelines for determining the 21 amount of property subject to such forfeiture in var 22 ious situations. 23 (c) BULK CASH SMUGGLING OFFENSE. EXT-18-2091-C-000705 007104-001456 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 130 1 (1) IN GENERAL. Subchapter II of chapter 53 2 of title 31, United States Code, is amended by add 3 ing at the end the following: 4 ''? 5331. Bulk cash smuggling 5 6 ''(a) CRIMINAL OFFENSE. ''(1) IN GENERAL. Whoever, with the intent to 7 evade a currency reporting requirement under sec 8 tion 5316, knowingly conceals more than $10,000 in 9 currency or other monetary instruments on his or 10 her person or in any conveyance, article of luggage, 11 merchandise, or other container, and transports or 12 transfers or attempts to transport or transfer the 13 currency or monetary instruments from a place with 14 in the United States to a place outside of the United 15 States, or from a place outside of the United States 16 to a place within the United States, shall be guilty 17 of a currency smuggling offense and subject to pun 18 ishment under subsection (b). 19 ''(b) PENALTIES. 20 ''(1) PRISON TERM. A person convicted of a 21 currency smuggling offense under subsection (a), or 22 a conspiracy to commit such an offense, shall be im 23 prisoned for not more than 5 years. 24 ''(2) FORFEITURE. EXT-18-2091-C-000706 007104-001457 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 130 1 (1) IN GENERAL. Subchapter II of chapter 53 2 of title 31, United States Code, is amended by add 3 ing at the end the following: 4 ''? 5331. Bulk cash smuggling 5 6 ''(a) CRIMINAL OFFENSE. ''(1) IN GENERAL. Whoever, with the intent to 7 evade a currency reporting requirement under sec 8 tion 5316, knowingly conceals more than $10,000 in 9 currency or other monetary instruments on his or 10 her person or in any conveyance, article of luggage, 11 merchandise, or other container, and transports or 12 transfers or attempts to transport or transfer the 13 currency or monetary instruments from a place with 14 in the United States to a place outside of the United 15 States, or from a place outside of the United States 16 to a place within the United States, shall be guilty 17 of a currency smuggling offense and subject to pun 18 ishment under subsection (b). 19 ''(b) PENALTIES. 20 ''(1) PRISON TERM. A person convicted of a 21 currency smuggling offense under subsection (a), or 22 a conspiracy to commit such an offense, shall be im 23 prisoned for not more than 5 years. 24 ''(2) FORFEITURE. EXT-18-2091-C-000706 007104-001457 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 131 1 ''(A) IN GENERAL. In addition to a pris 2 on term under paragraph (1), the court, in im 3 posing sentence, shall order that the defendant 4 forfeit to the United States any property, real 5 or personal, involved in the offense, and any 6 property traceable to such property, subject to 7 subsection (d). 8 ''(B) APPLICABILITY OF OTHER LAWS. 9 The seizure, restraint, and forfeiture of prop 10 erty under this section shall be governed by sec 11 tion 413 of the Controlled Substances Act (21 12 U.S.C. 853). If the property subject to for 13 feiture is unavailable, and the defendant has no 14 substitute property that may be forfeited pursu 15 ant to section 413(p) of that Act, the court 16 shall enter a personal money judgment against 17 the defendant in an amount equal to the value 18 of the unavailable property. 19 20 ''(c) SEIZURE OF SMUGGLING CASH. ''(1) IN GENERAL. Any property involved in a 21 violation of subsection (a), or a conspiracy to com 22 mit such violation, and any property traceable there 23 to, may be seized and, subject to subsection (d), for 24 feited to the United States. EXT-18-2091-C-000707 007104-001458 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 131 1 ''(A) IN GENERAL. In addition to a pris 2 on term under paragraph (1), the court, in im 3 posing sentence, shall order that the defendant 4 forfeit to the United States any property, real 5 or personal, involved in the offense, and any 6 property traceable to such property, subject to 7 subsection (d). 8 ''(B) APPLICABILITY OF OTHER LAWS. 9 The seizure, restraint, and forfeiture of prop 10 erty under this section shall be governed by sec 11 tion 413 of the Controlled Substances Act (21 12 U.S.C. 853). If the property subject to for 13 feiture is unavailable, and the defendant has no 14 substitute property that may be forfeited pursu 15 ant to section 413(p) of that Act, the court 16 shall enter a personal money judgment against 17 the defendant in an amount equal to the value 18 of the unavailable property. 19 20 ''(c) SEIZURE OF SMUGGLING CASH. ''(1) IN GENERAL. Any property involved in a 21 violation of subsection (a), or a conspiracy to com 22 mit such violation, and any property traceable there 23 to, may be seized and, subject to subsection (d), for 24 feited to the United States. EXT-18-2091-C-000707 007104-001458 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 132 1 ''(2) APPLICABLE PROCEDURES. A seizure and 2 forfeiture under this subsection shall be governed by 3 the procedures governing civil forfeitures under sec 4 tion 981(a)(1)(A) of title 18, United States Code. 5 ''(d) PROPORTIONALITY OF FORFEITURE. 6 ''(1) MITIGATION. Upon a showing by the 7 property owner by a preponderance of the evidence 8 that the currency or monetary instruments involved 9 in the offense giving rise to the forfeiture were de 10 rived from a legitimate source and were intended for 11 a lawful purpose, the court shall reduce the for 12 feiture to the maximum amount that is not grossly 13 disproportional to the gravity of the offense. 14 ''(2) CONSIDERATIONS. In determining the 15 amount of the forfeiture under paragraph (1), the 16 court shall consider all aggravating and mitigating 17 facts and circumstances that have a bearing on the 18 gravity of the offense, including 19 20 21 ''(A) the value of the currency or other monetary instruments involved in the offense; ''(B) efforts by the person committing the 22 offense to structure currency transactions, con 23 ceal property, or otherwise obstruct justice; and 24 25 ''(C) whether the offense is part of a pat tern of repeated violations of Federal law. EXT-18-2091-C-000708 007104-001459 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 132 1 ''(2) APPLICABLE PROCEDURES. A seizure and 2 forfeiture under this subsection shall be governed by 3 the procedures governing civil forfeitures under sec 4 tion 981(a)(1)(A) of title 18, United States Code. 5 ''(d) PROPORTIONALITY OF FORFEITURE. 6 ''(1) MITIGATION. Upon a showing by the 7 property owner by a preponderance of the evidence 8 that the currency or monetary instruments involved 9 in the offense giving rise to the forfeiture were de 10 rived from a legitimate source and were intended for 11 a lawful purpose, the court shall reduce the for 12 feiture to the maximum amount that is not grossly 13 disproportional to the gravity of the offense. 14 ''(2) CONSIDERATIONS. In determining the 15 amount of the forfeiture under paragraph (1), the 16 court shall consider all aggravating and mitigating 17 facts and circumstances that have a bearing on the 18 gravity of the offense, including 19 20 21 ''(A) the value of the currency or other monetary instruments involved in the offense; ''(B) efforts by the person committing the 22 offense to structure currency transactions, con 23 ceal property, or otherwise obstruct justice; and 24 25 ''(C) whether the offense is part of a pat tern of repeated violations of Federal law. EXT-18-2091-C-000708 007104-001459 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 133 ''(e) RULE 1 OF CONSTRUCTION. For purposes of 2 subsections (b) and (c), any currency or other monetary 3 instrument that is concealed or intended to be concealed 4 in violation of subsection (a) or a conspiracy to commit 5 such violation, any article, container, or conveyance used 6 or intended to be used to conceal or transport the currency 7 or other monetary instrument, and any other property 8 used 9 be or intended to be used to facilitate the offense, shall considered property involved in the offense.''. 10 (2) CLERICAL AMENDMENT. The table of sections 11 for chapter 53 of title 31, United States Code, is amended 12 by inserting after the item relating to section 5330 the 13 following new item: ''5331. Bulk cash smuggling.''. 14 (d) CURRENCY REPORTING VIOLATIONS. Section 15 5317(c) of title 31, United States Code, is amended to 16 read as follows: 17 18 19 ''(c) FORFEITURE OF PROPERTY. ''(1) IN GENERAL. ''(A) CRIMINAL FORFEITURE . The court, 20 in imposing sentence for any violation of section 21 5313, 5316, or 5324, or any conspiracy to com 22 mit such violation, shall order the defendant to 23 forfeit all property, real or personal, involved in 24 the offense and any property traceable thereto. EXT-18-2091-C-000709 007104-001460 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 133 ''(e) RULE 1 OF CONSTRUCTION. For purposes of 2 subsections (b) and (c), any currency or other monetary 3 instrument that is concealed or intended to be concealed 4 in violation of subsection (a) or a conspiracy to commit 5 such violation, any article, container, or conveyance used 6 or intended to be used to conceal or transport the currency 7 or other monetary instrument, and any other property 8 used 9 be or intended to be used to facilitate the offense, shall considered property involved in the offense.''. 10 (2) CLERICAL AMENDMENT. The table of sections 11 for chapter 53 of title 31, United States Code, is amended 12 by inserting after the item relating to section 5330 the 13 following new item: ''5331. Bulk cash smuggling.''. 14 (d) CURRENCY REPORTING VIOLATIONS. Section 15 5317(c) of title 31, United States Code, is amended to 16 read as follows: 17 18 19 ''(c) FORFEITURE OF PROPERTY. ''(1) IN GENERAL. ''(A) CRIMINAL FORFEITURE . The court, 20 in imposing sentence for any violation of section 21 5313, 5316, or 5324, or any conspiracy to com 22 mit such violation, shall order the defendant to 23 forfeit all property, real or personal, involved in 24 the offense and any property traceable thereto. EXT-18-2091-C-000709 007104-001460 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 134 1 ''(B) APPLICABLE PROCEDURES. Forfeit 2 ures under this paragraph shall be governed by 3 the procedures set forth in section 413 of the 4 Controlled Substances Act (21 U.S.C. 853), 5 and the guidelines set forth in paragraph (3) of 6 this subsection. 7 ''(2) CIVIL FORFEITURE . Any property in 8 volved in a violation of section 5313, 5316, or 5324, 9 or any conspiracy to commit such violation, and any 10 property traceable thereto, may be seized and, sub 11 ject to paragraph (3), forfeited to the United States 12 in accordance with the procedures governing civil 13 forfeitures in money laundering cases pursuant to 14 section 981(a)(1)(A) of title 18, United States Code. 15 ''(3) MITIGATION. In a forfeiture case under 16 this subsection, upon a showing by the property 17 owner by a preponderance of the evidence that any 18 currency or monetary instruments involved in the of 19 fense giving rise to the forfeiture were derived from 20 a legitimate source, and were intended for a lawful 21 purpose, the court shall reduce the forfeiture to the 22 maximum amount that is not grossly disproportional 23 to the gravity of the offense. In determining the 24 amount of the forfeiture, the court shall consider all 25 aggravating and mitigating facts and circumstances EXT-18-2091-C-000710 007104-001461 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 134 1 ''(B) APPLICABLE PROCEDURES. Forfeit 2 ures under this paragraph shall be governed by 3 the procedures set forth in section 413 of the 4 Controlled Substances Act (21 U.S.C. 853), 5 and the guidelines set forth in paragraph (3) of 6 this subsection. 7 ''(2) CIVIL FORFEITURE . Any property in 8 volved in a violation of section 5313, 5316, or 5324, 9 or any conspiracy to commit such violation, and any 10 property traceable thereto, may be seized and, sub 11 ject to paragraph (3), forfeited to the United States 12 in accordance with the procedures governing civil 13 forfeitures in money laundering cases pursuant to 14 section 981(a)(1)(A) of title 18, United States Code. 15 ''(3) MITIGATION. In a forfeiture case under 16 this subsection, upon a showing by the property 17 owner by a preponderance of the evidence that any 18 currency or monetary instruments involved in the of 19 fense giving rise to the forfeiture were derived from 20 a legitimate source, and were intended for a lawful 21 purpose, the court shall reduce the forfeiture to the 22 maximum amount that is not grossly disproportional 23 to the gravity of the offense. In determining the 24 amount of the forfeiture, the court shall consider all 25 aggravating and mitigating facts and circumstances EXT-18-2091-C-000710 007104-001461 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 135 1 that have a bearing on the gravity of the offense. 2 Such circumstances include, but are not limited to, 3 the following: the value of the currency or other 4 monetary instruments involved in the offense; efforts 5 by the person committing the offense to structure 6 currency transactions, conceal property, or otherwise 7 obstruct justice; and whether the offense is part of 8 a pattern of repeated violations. 9 (e) CONFORMING AMENDMENTS. 10 States tion 5313(a) or 5324(a) of title 31, or''; and (2) in section 982(a)(1), striking ''of section 13 14 (1) in section 981(a)(1)(A) by striking ''of sec 11 12 Code, is amended Title 18, United 5313(a), 5316, or 5324 of title 31, or''. Subtitle E--Anticorruption Measures 15 16 17 SEC. 361. CORRUPTION OF FOREIGN GOVERNMENTS AND 18 19 RULING ELITES. It is the sense of Congress that, in deliberations be 20 tween the United States Government and any other coun 21 try on money laundering and corruption issues, the United 22 States Government should 23 (1) emphasize an approach that addresses not 24 only the laundering of the proceeds of traditional 25 criminal activity but also the increasingly endemic EXT-18-2091-C-000711 007104-001462 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 135 1 that have a bearing on the gravity of the offense. 2 Such circumstances include, but are not limited to, 3 the following: the value of the currency or other 4 monetary instruments involved in the offense; efforts 5 by the person committing the offense to structure 6 currency transactions, conceal property, or otherwise 7 obstruct justice; and whether the offense is part of 8 a pattern of repeated violations. 9 (e) CONFORMING AMENDMENTS. 10 States tion 5313(a) or 5324(a) of title 31, or''; and (2) in section 982(a)(1), striking ''of section 13 14 (1) in section 981(a)(1)(A) by striking ''of sec 11 12 Code, is amended Title 18, United 5313(a), 5316, or 5324 of title 31, or''. Subtitle E--Anticorruption Measures 15 16 17 SEC. 361. CORRUPTION OF FOREIGN GOVERNMENTS AND 18 19 RULING ELITES. It is the sense of Congress that, in deliberations be 20 tween the United States Government and any other coun 21 try on money laundering and corruption issues, the United 22 States Government should 23 (1) emphasize an approach that addresses not 24 only the laundering of the proceeds of traditional 25 criminal activity but also the increasingly endemic EXT-18-2091-C-000711 007104-001462 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 136 1 problem of governmental corruption and the corrup 2 tion of ruling elites; 3 (2) encourage the enactment and enforcement 4 of laws in such country to prevent money laundering 5 and systemic corruption; 6 (3) make clear that the United States will take 7 all steps necessary to identify the proceeds of foreign 8 government corruption which have been deposited in 9 United States financial institutions and return such 10 proceeds to the citizens of the country to whom such 11 assets belong; and 12 (4) advance policies and measures to promote 13 good government and to prevent and reduce corrup 14 tion and money laundering, including through in 15 structions to the United States Executive Director of 16 each international financial institution (as defined in 17 section 1701(c) of the International Financial Insti 18 tutions Act) to advocate such policies as a system 19 atic element of economic reform programs and ad 20 vice to member governments. 21 SEC. 362. SUPPORT FOR THE FINANCIAL ACTION TASK 22 23 24 25 FORCE ON MONEY LAUNDERING. It is the sense of Congress that (1) the United States should continue to ac tively and publicly support the objectives of the Fi EXT-18-2091-C-000712 007104-001463 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 136 1 problem of governmental corruption and the corrup 2 tion of ruling elites; 3 (2) encourage the enactment and enforcement 4 of laws in such country to prevent money laundering 5 and systemic corruption; 6 (3) make clear that the United States will take 7 all steps necessary to identify the proceeds of foreign 8 government corruption which have been deposited in 9 United States financial institutions and return such 10 proceeds to the citizens of the country to whom such 11 assets belong; and 12 (4) advance policies and measures to promote 13 good government and to prevent and reduce corrup 14 tion and money laundering, including through in 15 structions to the United States Executive Director of 16 each international financial institution (as defined in 17 section 1701(c) of the International Financial Insti 18 tutions Act) to advocate such policies as a system 19 atic element of economic reform programs and ad 20 vice to member governments. 21 SEC. 362. SUPPORT FOR THE FINANCIAL ACTION TASK 22 23 24 25 FORCE ON MONEY LAUNDERING. It is the sense of Congress that (1) the United States should continue to ac tively and publicly support the objectives of the Fi EXT-18-2091-C-000712 007104-001463 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 137 1 nancial Action Task Force on Money Laundering 2 (hereafter in this section referred to as the 3 ''FATF'') with regard to combating international 4 money laundering; 5 (2) the FATF should identify noncooperative 6 jurisdictions in as expeditious a manner as possible 7 and publicly release a list directly naming those ju 8 risdictions identified; 9 (3) the United States should support the public 10 release of the list naming noncooperative jurisdic 11 tions identified by the FATF; 12 (4) the United States should encourage the 13 adoption of the necessary international action to en 14 courage compliance by the identified noncooperative 15 jurisdictions; and 16 (5) the United States should take the necessary 17 countermeasures to protect the United States econ 18 omy against money of unlawful origin and encourage 19 other nations to do the same. 20 SEC. 363. TERRORIST FUNDING THROUGH MONEY LAUN21 DERING. 22 It is the sense of the Congress that, in deliberations 23 and negotiations between the United States Government 24 and any other country regarding financial, economic, as EXT-18-2091-C-000713 007104-001464 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 137 1 nancial Action Task Force on Money Laundering 2 (hereafter in this section referred to as the 3 ''FATF'') with regard to combating international 4 money laundering; 5 (2) the FATF should identify noncooperative 6 jurisdictions in as expeditious a manner as possible 7 and publicly release a list directly naming those ju 8 risdictions identified; 9 (3) the United States should support the public 10 release of the list naming noncooperative jurisdic 11 tions identified by the FATF; 12 (4) the United States should encourage the 13 adoption of the necessary international action to en 14 courage compliance by the identified noncooperative 15 jurisdictions; and 16 (5) the United States should take the necessary 17 countermeasures to protect the United States econ 18 omy against money of unlawful origin and encourage 19 other nations to do the same. 20 SEC. 363. TERRORIST FUNDING THROUGH MONEY LAUN21 DERING. 22 It is the sense of the Congress that, in deliberations 23 and negotiations between the United States Government 24 and any other country regarding financial, economic, as EXT-18-2091-C-000713 007104-001464 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 138 1 sistance, or defense issues, the United States should en 2 courage such other country 3 (1) to take actions which would identify and 4 prevent the transmittal of funds to and from terror 5 ists and terrorist organizations; and 6 (2) to engage in bilateral and multilateral co 7 operation with the United States and other countries 8 to identify suspected terrorists, terrorist organiza 9 tions, and persons supplying funds to and receiving 10 funds from terrorists and terrorist organizations. 11 TITLE IV--PROTECTING THE BORDER Subtitle A--Protecting the Northern Border 12 13 14 15 SEC. 401. ENSURING ADEQUATE PERSONNEL ON THE 16 NORTHERN BORDER. 17 The Attorney General is authorized to waive any 18 FTE cap on personnel assigned to the Immigration and 19 Naturalization Service to address the national security 20 needs of the United States on the Northern border. 21 SEC. 402. NORTHERN BORDER PERSONNEL. 22 23 There are authorized to be appropriated (1) such sums as may be necessary to triple the 24 number of Border Patrol personnel (from the num 25 ber authorized under current law), and the necessary EXT-18-2091-C-000714 007104-001465 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 138 1 sistance, or defense issues, the United States should en 2 courage such other country 3 (1) to take actions which would identify and 4 prevent the transmittal of funds to and from terror 5 ists and terrorist organizations; and 6 (2) to engage in bilateral and multilateral co 7 operation with the United States and other countries 8 to identify suspected terrorists, terrorist organiza 9 tions, and persons supplying funds to and receiving 10 funds from terrorists and terrorist organizations. 11 TITLE IV--PROTECTING THE BORDER Subtitle A--Protecting the Northern Border 12 13 14 15 SEC. 401. ENSURING ADEQUATE PERSONNEL ON THE 16 NORTHERN BORDER. 17 The Attorney General is authorized to waive any 18 FTE cap on personnel assigned to the Immigration and 19 Naturalization Service to address the national security 20 needs of the United States on the Northern border. 21 SEC. 402. NORTHERN BORDER PERSONNEL. 22 23 There are authorized to be appropriated (1) such sums as may be necessary to triple the 24 number of Border Patrol personnel (from the num 25 ber authorized under current law), and the necessary EXT-18-2091-C-000714 007104-001465 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 139 1 personnel and facilities to support such personnel, in 2 each State along the Northern Border; 3 (2) such sums as may be necessary to triple the 4 number of Customs Service personnel (from the 5 number authorized under current law), and the nec 6 essary personnel and facilities to support such per 7 sonnel, at ports of entry in each State along the 8 Northern Border; 9 (3) such sums as may be necessary to triple the 10 number of INS inspectors (from the number author 11 ized on the date of enactment of this Act), and the 12 necessary personnel and facilities to support such 13 personnel, at ports of entry in each State along the 14 Northern Border; and 15 (4) an additional $50,000,000 each to the Im 16 migration and Naturalization Service and the United 17 States Customs Service for purposes of making im 18 provements in technology for monitoring the North 19 ern Border and acquiring additional equipment at 20 the Northern Border. EXT-18-2091-C-000715 007104-001466 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 139 1 personnel and facilities to support such personnel, in 2 each State along the Northern Border; 3 (2) such sums as may be necessary to triple the 4 number of Customs Service personnel (from the 5 number authorized under current law), and the nec 6 essary personnel and facilities to support such per 7 sonnel, at ports of entry in each State along the 8 Northern Border; 9 (3) such sums as may be necessary to triple the 10 number of INS inspectors (from the number author 11 ized on the date of enactment of this Act), and the 12 necessary personnel and facilities to support such 13 personnel, at ports of entry in each State along the 14 Northern Border; and 15 (4) an additional $50,000,000 each to the Im 16 migration and Naturalization Service and the United 17 States Customs Service for purposes of making im 18 provements in technology for monitoring the North 19 ern Border and acquiring additional equipment at 20 the Northern Border. EXT-18-2091-C-000715 007104-001466 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 140 1 SEC. 403. ACCESS BY THE DEPARTMENT OF STATE AND 2 THE INS TO CERTAIN IDENTIFYING INFORMA- 3 TION IN THE CRIMINAL HISTORY RECORDS 4 OF VISA APPLICANTS AND APPLICANTS FOR 5 ADMISSION TO THE UNITED STATES. 6 (a) AMENDMENT 7 TIONALITY 8 9 10 ACT. OF THE IMMIGRATION Section 105 of the Immigration and Nationality Act (8 U.S.C. 1105) is amended (1) in the section heading, by inserting ''; EXCHANGE '' NA AND DATA after ''SECURITY OFFICERS''; 11 (2) by inserting ''(a)'' after ''SEC. 105.''; 12 (3) in subsection (a), by inserting ''and border'' 13 after ''internal'' the second place it appears; and 14 (4) by adding at the end the following: 15 ''(b)(1) The Attorney General and the Director of the 16 Federal Bureau of Investigation shall provide the Depart 17 ment of State and the Service access to the criminal his 18 tory record information contained in the National Crime 19 Information Center's Interstate Identification Index 20 (NCIC III), Wanted Persons File, and to any other files 21 maintained by the National Crime Information Center 22 that may be mutually agreed upon by the Attorney Gen 23 eral and the agency receiving the access, for the purpose 24 of determining whether or not a visa applicant or appli 25 cant for admission has a criminal history record indexed 26 in any such file. EXT-18-2091-C-000716 007104-001467 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 140 1 SEC. 403. ACCESS BY THE DEPARTMENT OF STATE AND 2 THE INS TO CERTAIN IDENTIFYING INFORMA- 3 TION IN THE CRIMINAL HISTORY RECORDS 4 OF VISA APPLICANTS AND APPLICANTS FOR 5 ADMISSION TO THE UNITED STATES. 6 (a) AMENDMENT 7 TIONALITY 8 9 10 ACT. OF THE IMMIGRATION Section 105 of the Immigration and Nationality Act (8 U.S.C. 1105) is amended (1) in the section heading, by inserting ''; EXCHANGE '' NA AND DATA after ''SECURITY OFFICERS''; 11 (2) by inserting ''(a)'' after ''SEC. 105.''; 12 (3) in subsection (a), by inserting ''and border'' 13 after ''internal'' the second place it appears; and 14 (4) by adding at the end the following: 15 ''(b)(1) The Attorney General and the Director of the 16 Federal Bureau of Investigation shall provide the Depart 17 ment of State and the Service access to the criminal his 18 tory record information contained in the National Crime 19 Information Center's Interstate Identification Index 20 (NCIC III), Wanted Persons File, and to any other files 21 maintained by the National Crime Information Center 22 that may be mutually agreed upon by the Attorney Gen 23 eral and the agency receiving the access, for the purpose 24 of determining whether or not a visa applicant or appli 25 cant for admission has a criminal history record indexed 26 in any such file. EXT-18-2091-C-000716 007104-001467 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 141 1 ''(2) Such access shall be provided by means of ex 2 tracts of the records for placement in the automated visa 3 lookout or other appropriate database, and shall be pro 4 vided without any fee or charge. 5 ''(3) The Federal Bureau of Investigation shall pro 6 vide periodic updates of the extracts at intervals mutually 7 agreed upon with the agency receiving the access. Upon 8 receipt of such updated extracts, the receiving agency shall 9 make corresponding updates to its database and destroy 10 previously provided 11 ''(4) Access to an extract does not entitle the Depart 12 ment of State to obtain the full content of the cor 13 responding 14 the extracts. automated criminal history record. To obtain full content of a criminal history record, the Depart 15 ment of State shall submit the applicant's fingerprints and 16 any appropriate fingerprint processing fee authorized by 17 law to the Criminal Justice Information Services Division 18 of the 19 Federal Bureau of Investigation. ''(c) The provision of the extracts described in sub 20 section 21 and (b) may be reconsidered by the Attorney General the receiving agency upon the development and de 22 ployment of a more cost effective and efficient means of 23 sharing the 24 information. ''(d) For purposes of administering this section, the 25 Department of State shall, prior to receiving access to EXT-18-2091-C-000717 007104-001468 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 141 1 ''(2) Such access shall be provided by means of ex 2 tracts of the records for placement in the automated visa 3 lookout or other appropriate database, and shall be pro 4 vided without any fee or charge. 5 ''(3) The Federal Bureau of Investigation shall pro 6 vide periodic updates of the extracts at intervals mutually 7 agreed upon with the agency receiving the access. Upon 8 receipt of such updated extracts, the receiving agency shall 9 make corresponding updates to its database and destroy 10 previously provided 11 ''(4) Access to an extract does not entitle the Depart 12 ment of State to obtain the full content of the cor 13 responding 14 the extracts. automated criminal history record. To obtain full content of a criminal history record, the Depart 15 ment of State shall submit the applicant's fingerprints and 16 any appropriate fingerprint processing fee authorized by 17 law to the Criminal Justice Information Services Division 18 of the 19 Federal Bureau of Investigation. ''(c) The provision of the extracts described in sub 20 section 21 and (b) may be reconsidered by the Attorney General the receiving agency upon the development and de 22 ployment of a more cost effective and efficient means of 23 sharing the 24 information. ''(d) For purposes of administering this section, the 25 Department of State shall, prior to receiving access to EXT-18-2091-C-000717 007104-001468 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 142 1 NCIC 2 of data but not later than 4 months after the date enactment of this subsection, promulgate final 3 regulations ''(1) to implement procedures for the taking of 4 5 fingerprints; and 6 ''(2) to establish the conditions for the use of 7 the information received from the Federal Bureau of 8 Investigation, in order ''(A) to limit the redissemination of such 9 information; 10 11 ''(B) to ensure that such information is 12 used solely to determine whether or not to issue 13 a visa to an alien or to admit an alien to the 14 United States; ''(C) to ensure the security, confidentiality, 15 and destruction of such information; and 16 ''(D) to protect any privacy rights of indi 17 viduals who are subjects of such information.''. 18 19 (b) REPORTING REQUIREMENT. 20 years after the date of enactment of this Act, the Attorney 21 General and the Secretary of State jointly shall report to 22 Congress 23 by this 24 on the implementation of the amendments made section. (c) TECHNOLOGY STANDARD 25 TITY. Not later than 2 TO CONFIRM IDEN EXT-18-2091-C-000718 007104-001469 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 143 1 (1) IN GENERAL. The Attorney General and 2 the Secretary of State jointly, through the National 3 Institute of Standards and Technology (NIST), and 4 in consultation with the Secretary of the Treasury 5 and other Federal law enforcement and intelligence 6 agencies the Attorney General or Secretary of State 7 deems appropriate, shall within 2 years after the 8 date of enactment of this section, develop and certify 9 a technology standard that can confirm the identity 10 of a person applying for a United States visa or 11 such person seeking to enter the United States pur 12 suant to a visa. 13 (2) INTEGRATED. The technology standard de 14 veloped pursuant to paragraph (1), shall be the tech 15 nological basis for a cross agency, cross platform 16 electronic system that is a cost effective, efficient, 17 fully integrated means to share law enforcement and 18 intelligence information necessary to confirm the 19 identity of such persons applying for a United States 20 visa or such person seeking to enter the United 21 States pursuant to a visa. 22 (3) ACCESSIBLE. The electronic system de 23 scribed in paragraph (2), once implemented, shall be 24 readily and easily accessible to EXT-18-2091-C-000719 007104-001470 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 144 (A) all consular officers responsible for the 1 issuance of visas; 2 (B) all Federal inspection agents at all 3 United States border inspection points; and 4 5 (C) all law enforcement and intelligence of 6 ficers as determined by regulation to be respon 7 sible for investigation or identification of aliens 8 admitted to the United States pursuant to a 9 visa. (4) REPORT. 10 Not later than 18 months after 11 the date of enactment of this Act, and every 2 years 12 thereafter, the Attorney General and the Secretary 13 of State shall jointly, in consultation with the Sec 14 retary of Treasury, report to Congress describing 15 the development, implementation and efficacy of the 16 technology standard and electronic database system 17 described in this subsection. 18 (d) STATUTORY CONSTRUCTION. 19 section, Nothing in this or in any other law, shall be construed to limit 20 the authority of the Attorney General or the Director of 21 the Federal Bureau of Investigation to provide access to 22 the criminal history record information contained in the 23 National Crime Information Center's (NCIC) Interstate 24 Identification 25 tion Index (NCIC III), or to any other informa maintained by the NCIC, to any Federal agency or EXT-18-2091-C-000720 007104-001471 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 145 1 officer 2 tion authorized to enforce or administer the immigra laws of the United States, for the purpose of such 3 enforcement 4 sistent with the National Crime Prevention and Privacy 5 Compact 6 105 7 5, or administration, upon terms that are con Act of 1998 (subtitle A of title II of Public Law 251; 42 U.S.C. 14611 16) and section 552a of title United States Code. 8 SEC. 404. LIMITED AUTHORITY TO PAY OVERTIME. The matter under the headings ''Immigration And 9 10 Naturalization 11 ment Service: Salaries and Expenses, Enforce And Border Affairs'' and ''Immigration And Natu 12 ralization Service: Salaries and Expenses, Citizenship And 13 Benefits, Immigration And Program Direction'' in the De 14 partment of Justice Appropriations Act, 2001 (as enacted 15 into law by Appendix B (H.R. 5548) of Public Law 106 16 553 (114 Stat. 2762A 58 to 2762A 59)) is amended by 17 striking the 18 none following each place it occurs: ''Provided, That of the funds available to the Immigration and Natu 19 ralization Service shall be available to pay any employee 20 overtime pay in an amount in excess of $30,000 during 21 the calendar year beginning January 1, 2001:''. EXT-18-2091-C-000721 007104-001472 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 146 1 SEC. 405. REPORT ON THE INTEGRATED AUTOMATED FIN2 GERPRINT 3 POINTS OF ENTRY AND OVERSEAS CONSULAR 4 POSTS. 5 IDENTIFICATION (a) IN GENERAL. SYSTEM FOR The Attorney General, in con 6 sultation with the appropriate heads of other Federal 7 agencies, including the Secretary of State, Secretary of the 8 Treasury, and the Secretary of Transportation, shall re 9 port to Congress on the feasibility of enhancing the Inte 10 grated Automated Fingerprint Identification System 11 (IAFIS) of the Federal Bureau of Investigation and other 12 identification systems in order to better identify a person 13 who holds a foreign passport or a visa and may be wanted 14 in connection with a criminal investigation in the United 15 States or abroad, before the issuance of a visa to that per 16 son or the entry or exit by that person from the United 17 States. 18 (b) AUTHORIZATION OF APPROPRIATIONS. There is 19 authorized to be appropriated not less than $2,000,000 20 to carry out this section. 21 Subtitle B--Enhanced Immigration Provisions 22 23 SEC. 411. DEFINITIONS RELATING TO TERRORISM. 24 (a) GROUNDS OF INADMISSIBILITY. Section 25 212(a)(3) of the Immigration and Nationality Act (8 26 U.S.C. 1182(a)(3)) is amended EXT-18-2091-C-000722 007104-001473 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 147 1 2 3 4 5 6 (1) in subparagraph (B) (A) in clause (i) (i) by amending subclause (IV) to read as follows: ''(IV) is a representative (as de fined in clause (v)) of ''(aa) a foreign terrorist or 7 8 ganization, as designated by the 9 Secretary of State under section 10 219, or 11 ''(bb) a political, social or 12 other similar group whose public 13 endorsement of acts of terrorist 14 activity the Secretary of State 15 has 16 United States efforts to reduce or 17 eliminate terrorist activities,''; 18 (ii) in subclause (V), by inserting ''or'' 19 20 21 22 determined undermines after ''section 219,''; and (iii) by adding at the end the fol lowing new subclauses: ''(VI) has used the alien's posi 23 tion of prominence within any country 24 to endorse or espouse terrorist activ 25 ity, or to persuade others to support EXT-18-2091-C-000723 007104-001474 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 148 1 terrorist activity or a terrorist organi 2 zation, in a way that the Secretary of 3 State 4 United States efforts to reduce or 5 eliminate terrorist activities, or has determined undermines 6 ''(VII) is the spouse or child of 7 an alien who is inadmissible under 8 this section, if the activity causing the 9 alien to be found inadmissible oc curred within the last 5 years,''; 10 11 12 13 14 15 16 (B) by redesignating clauses (ii), (iii), and (iv) as clauses (iii), (iv), and (v), respectively; (C) in clause (i)(II), by striking ''clause (iii)'' and inserting ''clause (iv)''; (D) by inserting after clause (i) the fol lowing: ''(ii) E XCEPTION. 17 Subclause (VII) of 18 clause (i) does not apply to a spouse or 19 child 20 ''(I) who did not know or should 21 not reasonably have known of the ac 22 tivity causing the alien to be found in 23 admissible under this section; or 24 ''(II) whom the consular officer 25 or Attorney General has reasonable EXT-18-2091-C-000724 007104-001475 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 149 1 grounds to believe has renounced the 2 activity causing the alien to be found 3 inadmissible under this section.''; 4 5 6 7 (E) in clause (iii) (as redesignated by sub paragraph (B)) (i) by inserting ''it had been'' before ''committed in the United States''; and 8 (ii) in subclause (V)(b), by striking 9 ''or firearm'' and inserting '', firearm, or 10 other weapon or dangerous device''; 11 (F) by amending clause (iv) (as redesig 12 13 nated by subparagraph (B)) to read as follows: ''(iv) ENGAGE IN TERRORIST ACTIVITY 14 DEFINED. 15 term 'engage in terrorist activity' means, 16 in an individual capacity or as a member 17 of an organization 18 As used in this chapter, the ''(I) to commit or to incite to 19 commit, under circumstances indi 20 cating an intention to cause death or 21 serious bodily injury, a terrorist activ 22 ity; 23 24 ''(II) to prepare or plan a ter rorist activity; EXT-18-2091-C-000725 007104-001476 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 150 1 ''(III) to gather information on 2 potential targets for terrorist activity; 3 ''(IV) to solicit funds or other 4 things of value for 5 ''(aa) a terrorist activity; 6 ''(bb) a terrorist organiza 7 tion described in clauses (vi)(I) 8 or (vi)(II); or 9 ''(cc) a terrorist organiza 10 tion described in clause (vi)(III), 11 unless the solicitor can dem 12 onstrate that he did not know, 13 and should not reasonably have 14 known, 15 would further the organization's 16 terrorist activity; 17 ''(V) to solicit any individual 18 that the solicitation ''(aa) to engage in conduct 19 otherwise 20 clause; described in this 21 ''(bb) for membership in a 22 terrorist organization described 23 in clauses (vi)(I) or (vi)(II); or 24 ''(cc) for membership in a 25 terrorist organization described EXT-18-2091-C-000726 007104-001477 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 151 1 in clause (vi)(III), unless the so 2 licitor can demonstrate that he 3 did not know, and should not 4 reasonably have known, that the 5 solicitation would further the or 6 ganization's terrorist activity; or 7 ''(VI) to commit an act that the 8 actor knows, or reasonably should 9 know, affords material support, in 10 cluding a safe house, transportation, 11 communications, funds, transfer of 12 funds or other material financial ben 13 efit, false documentation or identifica 14 tion, weapons (including chemical, bi 15 ological, or radiological weapons), ex 16 plosives, or training 17 18 ''(aa) for the commission of a terrorist activity; 19 ''(bb) to any individual who 20 the actor knows, or reasonably 21 should know, has committed or 22 plans to commit a terrorist activ 23 ity; EXT-18-2091-C-000727 007104-001478 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 152 ''(cc) to a terrorist organiza 1 2 tion described in clauses (vi)(I) 3 or (vi)(II); or ''(dd) to a terrorist organi 4 5 zation described in clause 6 (vi)(III), unless the actor can 7 demonstrate that he did not 8 know, and should not reasonably 9 have known, that the act would 10 further the organization's ter 11 rorist activity. 12 This clause shall not apply to any ma 13 terial support the alien afforded to an 14 organization or individual that has 15 committed terrorist activity, if the 16 Secretary of State, after consultation 17 with the Attorney General, or the At 18 torney General, 19 with the Secretary of State, concludes 20 in his sole unreviewable discretion, 21 that this clause should not apply.''; 22 and 23 24 after consultation (D) by adding at the end the following new clause: EXT-18-2091-C-000728 007104-001479 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 153 ''(vi) TERRORIST 1 ORGANIZATION DE 2 FINED. As used in clause (i)(VI) and 3 clause (iv), the term 'terrorist organiza 4 tion' means an organization ''(I) designated under section 5 219; 6 7 ''(II) otherwise designated, upon 8 publication in the Federal Register, by 9 the Secretary of State in consultation 10 with or upon the request of the Attor 11 ney General, as a terrorist organiza 12 tion, after finding that it engages in 13 the activities described in subclause 14 (I), (II), or (III) of clause (iv), or that 15 it provides material support to further 16 terrorist activity; or 17 ''(III) that is a group of two or 18 more individuals, whether organized 19 or not, which engages in the activities 20 described in subclause (I), (II), or 21 (III) of clause (iv).''; and 22 (2) by adding at the end the following new sub 23 24 25 paragraph: ''(F) ASSOCIATION NIZATIONS. WITH TERRORIST ORGA Any alien who the Secretary of EXT-18-2091-C-000729 007104-001480 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 154 1 State, after consultation with the Attorney Gen 2 eral, or the Attorney General, after consultation 3 with the Secretary of State, determines has 4 been associated with a terrorist organization 5 and intends while in the United States to en 6 gage solely, principally, or incidentally in activi 7 ties that could endanger the welfare, safety, or 8 security of the United States is inadmissible.''. 9 (b) CONFORMING AMENDMENT. Section 10 237(a)(4)(B) of the Immigration and Nationality Act (8 11 U.S.C. 1227(a)(4)(B)) is amended by striking ''section 12 212(a)(3)(B)(iii)'' 13 212(a)(3)(B)(iv)''. 14 15 and inserting ''section (c) RETROACTIVE APPLICATION OF AMENDMENTS. (1) IN GENERAL. Except as otherwise pro 16 vided in this subsection, the amendments made by 17 this section shall take effect on the date of enact 18 ment of this Act and shall apply to 19 20 (A) actions taken by an alien before, on, or after such date; and 21 (B) all aliens, without regard to the date 22 of entry or attempted entry into the United 23 States 24 (i) in removal proceedings on or after 25 such date (except for proceedings in which EXT-18-2091-C-000730 007104-001481 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 155 1 there has been a final administrative deci 2 sion before such date); or (ii) seeking admission to the United 3 States on or after such date. 4 5 (2) SPECIAL RULE FOR ALIENS IN EXCLUSION 6 OR DEPORTATION PROCEEDINGS. Notwithstanding 7 any other provision of law, the amendments made by 8 this section shall apply to all aliens in exclusion or 9 deportation proceedings on or after the date of en 10 actment of this Act (except for proceedings in which 11 there has been a final administrative decision before 12 such date) as if such proceedings were removal pro 13 ceedings. 14 (3) SPECIAL RULE FOR SECTION 219 ORGANIZA 15 TIONS 16 SECTION 212(a)(3)(B)(vi)(II). 17 AND ORGANIZATIONS (A) IN GENERAL. DESIGNATED UNDER Notwithstanding para 18 graphs (1) and (2), no alien shall be considered 19 inadmissible under section 212(a)(3) of the Im 20 migration and Nationality Act (8 U.S.C. 21 1182(a)(3)), 22 237(a)(4)(B) 23 1227(a)(4)(B)), by reason of the amendments 24 made by subsection (a), on the ground that the 25 alien engaged in a terrorist activity described in or of deportable such Act under section (8 U.S.C. EXT-18-2091-C-000731 007104-001482 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 156 1 subclause (IV)(bb), (V)(bb), or (VI)(cc) of sec 2 tion 212(a)(3)(B)(iv) of such Act (as so amend 3 ed) with respect to a group at any time when 4 the group was not a terrorist organization des 5 ignated by the Secretary of State under section 6 219 of such Act (8 U.S.C. 1189) or otherwise 7 designated under section 212(a)(3)(B)(vi)(II). 8 (B) STATUTORY CONSTRUCTION. Sub 9 paragraph (A) shall not be construed to prevent 10 an alien from being considered inadmissible or 11 deportable for having engaged in a terrorist 12 activity (i) described in subclause (IV)(bb), 13 14 (V)(bb), 15 212(a)(3)(B)(iv) of such Act (as so amend 16 ed) with respect to a terrorist organization 17 at any time when such organization was 18 designated by the Secretary of State under 19 section 219 of such Act or otherwise des 20 ignated under section 212(a)(3)(B)(vi)(II); 21 or 22 or (VI)(cc) of section (ii) described in subclause (IV)(cc), 23 (V)(cc), or (VI)(dd) of section 24 212(a)(3)(B)(iv) of such Act (as so amend EXT-18-2091-C-000732 007104-001483 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 157 1 ed) with respect to a terrorist organization 2 described in section 212(a)(3)(B)(vi)(III). (4) E XCEPTION. 3 The Secretary of State, in 4 consultation with the Attorney General, may deter 5 mine that the amendments made by this section 6 shall not apply with respect to actions by an alien 7 taken outside the United States before the date of 8 enactment of this Act upon the recommendation of 9 a consular officer who has concluded that there is 10 not reasonable ground to believe that the alien knew 11 or reasonably should have known that the actions 12 would further a terrorist activity. 13 (c) DESIGNATION 14 ZATIONS. 15 ality Act OF FOREIGN TERRORIST ORGANI Section 219(a) of the Immigration and Nation (8 U.S.C. 1189(a)) is amended 16 (1) in paragraph (1)(B), by inserting ''or ter 17 rorism (as defined in section 140(d)(2) of the For 18 eign Relations Authorization Act, Fiscal Years 1988 19 and 1989 (22 U.S.C. 2656f(d)(2)) or retains the ca 20 pability and intent to engage in terrorist activity or 21 terrorism)'' after ''212(a)(3)(B))''; 22 23 24 25 (2) in paragraph (1)(C), by inserting ''or ter rorism'' after ''terrorist activity''; (3) by amending paragraph (2)(A) to read as follows: EXT-18-2091-C-000733 007104-001484 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 158 1 ''(A) NOTICE. ''(i) TO 2 CONGRESSIONAL LEADERS. 3 Seven days before making a designation 4 under this subsection, the Secretary shall, 5 by classified communication, notify the 6 Speaker and Minority Leader of the House 7 of Representatives, the President pro tem 8 pore, Majority Leader, and Minority Lead 9 er of the Senate, and the members of the 10 relevant committees, in writing, of the in 11 tent to designate an organization under 12 this subsection, together with the findings 13 made under paragraph (1) with respect to 14 that organization, and the factual basis 15 therefor. ''(ii) PUBLICATION 16 IN FEDERAL REG 17 ISTER. 18 designation in the Federal Register seven 19 days after providing the notification under 20 clause (i).''; 21 (4) in paragraph (2)(B)(i), by striking ''sub 22 paragraph 23 (A)(ii)''; 24 25 The Secretary shall publish the (A)'' and inserting ''subparagraph (5) in paragraph (2)(C), by striking ''paragraph (2)'' and inserting ''paragraph (2)(A)(i)''; EXT-18-2091-C-000734 007104-001485 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 159 1 2 (6) in paragraph (3)(B), by striking ''sub section (c)'' and inserting ''subsection (b)''; 3 (7) in paragraph (4)(B), by inserting after the 4 first sentence the following: ''The Secretary also may 5 redesignate such organization at the end of any 2 6 year redesignation period (but not sooner than 60 7 days prior to the termination of such period) for an 8 additional 2 year period upon a finding that the rel 9 evant circumstances described in paragraph (1) still 10 exist. Any redesignation shall be effective imme 11 diately following the end of the prior 2 year designa 12 tion or redesignation period unless a different effec 13 tive date is provided in such redesignation.''; 14 (8) in paragraph (6)(A) 15 (A) by inserting ''or a redesignation made 16 under paragraph (4)(B)'' after ''paragraph 17 (1)''; 18 19 (B) in clause (i) (i) by inserting ''or redesignation'' 20 after ''designation'' the first place it ap 21 pears; and 22 (ii) by striking ''of the designation''; 23 and 24 (C) in clause (ii), by striking ''of the des 25 ignation''; EXT-18-2091-C-000735 007104-001486 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 160 1 2 3 (9) in paragraph (6)(B) (A) by striking ''through (4)'' and insert ing ''and (3)''; and 4 (B) by inserting at the end the following 5 new sentence: ''Any revocation shall take effect 6 on the date specified in the revocation or upon 7 publication in the Federal Register if no effec 8 tive date is specified.''; 9 (10) in paragraph (7), by inserting '', or the 10 revocation of a redesignation under paragraph (6),'' 11 after ''paragraph (5) or (6)''; and 12 13 (11) in paragraph (8) (A) by striking ''paragraph (1)(B)'' and 14 inserting ''paragraph (2)(B), or if a redesigna 15 tion under this subsection has become effective 16 under paragraph (4)(B)''; 17 18 19 20 (B) by inserting ''or an alien in a removal proceeding'' after ''criminal action''; and (C) by inserting ''or redesignation'' before ''as a defense''. EXT-18-2091-C-000736 007104-001487 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 161 1 SEC. 412. MANDATORY DETENTION OF SUSPECTED TER2 RORISTS; HABEAS CORPUS; JUDICIAL RE- 3 VIEW. (a) IN GENERAL. 4 The Immigration and Nationality 5 Act (8 U.S.C. 1101 et seq.) is amended by inserting after 6 section 236 the following: ''MANDATORY DETENTION 7 OF SUSPECTED 8 TERRORISTS; HABEAS CORPUS; JUDICIAL REVIEW 9 ''SEC. 10 ALIENS. 11 236A. (a) DETENTION OF TERRORIST ''(1) CUSTODY. The Attorney General shall 12 take into custody any alien who is certified under 13 paragraph (3). 14 ''(2) RELEASE. Except as provided in para 15 graph (5), the Attorney General shall maintain cus 16 tody of such an alien until the alien is removed from 17 the United States. Such custody shall be maintained 18 irrespective of any relief from removal for which the 19 alien may be eligible, or any relief from removal 20 granted the alien, until the Attorney General deter 21 mines that the alien is no longer an alien who may 22 be certified under paragraph (3). 23 ''(3) CERTIFICATION. The Attorney General 24 may certify an alien under this paragraph if the At 25 torney General has reasonable grounds to believe 26 that the alien EXT-18-2091-C-000737 007104-001488 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 162 ''(A) 1 is described in section 212(a)(3)(A)(iii), 2 212(a)(3)(A)(i), 3 212(a)(3)(B), 4 237(a)(4)(A)(iii), or 237(a)(4)(B); or 237(a)(4)(A)(i), 5 ''(B) is engaged in any other activity that 6 endangers the national security of the United 7 States. 8 ''(4) NONDELEGATION. The Attorney General 9 may delegate the authority provided under para 10 graph (3) only to the Commissioner. The Commis 11 sioner may not delegate such authority. ''(5) COMMENCEMENT 12 OF PROCEEDINGS. The 13 Attorney General shall place an alien detained under 14 paragraph (1) in removal proceedings, or shall 15 charge the alien with a criminal offense, not later 16 than 7 days after the commencement of such deten 17 tion. If the requirement of the preceding sentence is 18 not satisfied, the Attorney General shall release the 19 alien. 20 ''(b) HABEAS CORPUS 21 dicial 22 tion AND JUDICIAL REVIEW. Ju review of any action or decision relating to this sec (including judicial review of the merits of a deter 23 mination 24 sively made under subsection (a)(3)) is available exclu in habeas corpus proceedings in the United States 25 District Court for the District of Columbia. Notwith EXT-18-2091-C-000738 007104-001489 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 163 1 standing 2 2241 any other provision of law, including section of title 28, United States Code, except as provided 3 in the preceding sentence, no court shall have jurisdiction 4 to review, by habeas corpus petition or otherwise, any such 5 action or decision. 6 ''(c) STATUTORY CONSTRUCTION. 7 this section shall not be applicable to any other provisions 8 of the 9 Immigration and Nationality Act.''. (b) CLERICAL AMENDMENT. 10 of the The provisions of The table of contents Immigration and Nationality Act is amended by in 11 serting after the item relating to section 236 the following: ''Sec. 236A. Mandatory detention of suspected terrorist; habeas corpus; judicial review.''. 12 13 date (c) REPORTS. of the enactment of this Act, and every 6 months 14 thereafter, 15 the Not later than 6 months after the the Attorney General shall submit a report to Committee on the Judiciary of the House of Rep 16 resentatives 17 Senate, and the Committee on the Judiciary of the with respect to the reporting period, on 18 (1) the number of aliens certified under section 19 236A(a)(3) of the Immigration and Nationality Act, 20 as added by subsection (a); 21 (2) the grounds for such certifications; 22 (3) the nationalities of the aliens so certified; 23 (4) the length of the detention for each alien so 24 certified; and EXT-18-2091-C-000739 007104-001490 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 164 1 2 3 (5) the number of aliens so certified who (A) were granted any form of relief from removal; 4 (B) were removed; 5 (C) the Attorney General has determined 6 are no longer aliens who may be so certified; or 7 (D) were released from detention. 8 SEC. 413. MULTILATERAL COOPERATION AGAINST TERROR9 10 11 12 13 ISTS. Section 222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)) is amended (1) by striking ''except that in the discretion of'' and inserting the following: ''except that 14 ''(1) in the discretion of''; and 15 (2) by adding at the end the following: 16 ''(2) the Secretary of State, in the Secretary's 17 discretion and on the basis of reciprocity, may pro 18 vide to a foreign government information in the De 19 partment of State's computerized visa lookout data 20 base and, when necessary and appropriate, other 21 records covered by this section related to informa 22 tion in the database 23 ''(A) with regard to individual aliens, at 24 any time on a case by case basis for the pur 25 pose of preventing, investigating, or punishing EXT-18-2091-C-000740 007104-001491 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 165 1 acts that would constitute a crime in the United 2 States, including, but not limited to, terrorism 3 or trafficking in controlled substances, persons, 4 or illicit weapons; or 5 ''(B) with regard to any or all aliens in the 6 database, pursuant to such conditions as the 7 Secretary of State shall establish in an agree 8 ment with the foreign government in which that 9 government agrees to use such information and 10 records for the purposes described in subpara 11 graph (A) or to deny visas to persons who 12 would be inadmissible to the United States.''. 13 14 15 TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM 16 SEC. 501. PROFESSIONAL STANDARDS FOR GOVERNMENT 17 ATTORNEYS ACT OF 2001. 18 (a) SHORT TITLE . This title may be cited as the 19 ''Professional 20 Standards for Government Attorneys Act of 2001''. 21 (b) PROFESSIONAL STANDARDS 22 ATTORNEYS. 23 Code, FOR GOVERNMENT Section 530B of title 28, United States is amended to read as follows: EXT-18-2091-C-000741 007104-001492 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 166 1 ''? 530B. Professional Standards for Government At2 3 4 5 torneys ''(a) DEFINITIONS. ''(1) In this section: GOVERNMENT 'Government attorney' ATTORNEY. The term 6 ''(A) means the Attorney General; the 7 Deputy Attorney General; the Solicitor General; 8 the Associate Attorney General; the head of, 9 and any attorney employed in, any division, of 10 fice, board, bureau, component, or agency of 11 the Department of Justice; any United States 12 Attorney; any Assistant United States Attorney; 13 any Special Assistant to the Attorney General 14 or Special Attorney appointed under section 15 515; any Special Assistant United States Attor 16 ney appointed under section 543 who is author 17 ized to conduct criminal or civil law enforce 18 ment investigations or proceedings on behalf of 19 the United States; any other attorney employed 20 by the Department of Justice who is authorized 21 to conduct criminal or civil law enforcement 22 proceedings on behalf of the United States; any 23 independent counsel, or employee of such coun 24 sel, appointed under chapter 40; and any out 25 side special counsel, or employee of such coun EXT-18-2091-C-000742 007104-001493 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 167 1 sel, as may be duly appointed by the Attorney 2 General; and 3 ''(B) does not include any attorney em 4 ployed as an investigator or other law enforce 5 ment agent by the Department of Justice who 6 is not authorized to represent the United States 7 in criminal or civil law enforcement litigation or 8 to supervise such proceedings. 9 ''(2) STATE. The term 'State' includes a Ter 10 ritory and the District of Columbia. 11 ''(b) CHOICE OF LAW. Subject to any uniform na 12 tional rule prescribed by the Supreme Court under chapter 13 131, the standards of professional responsibility that 14 apply to a Government attorney with respect to the attor 15 ney's work for the Government shall be 16 ''(1) for conduct in connection with a pro 17 ceeding in or before a court, or conduct reasonably 18 intended to lead to a proceeding in or before a court, 19 the standards of professional responsibility estab 20 lished by the rules and decisions of the court in or 21 before which the proceeding is brought or is in 22 tended to be brought; 23 ''(2) for conduct in connection with a grand 24 jury proceeding, or conduct reasonably intended to 25 lead to a grand jury proceeding, the standards of EXT-18-2091-C-000743 007104-001494 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 168 1 professional responsibility established by the rules 2 and decisions of the court under whose authority the 3 grand jury was or will be impaneled; and ''(3) for all other conduct, the standards of pro 4 5 fessional responsibility established by the rules and 6 decisions of the Federal district court for the judicial 7 district in which the attorney principally performs 8 his or her official duties. 9 ''(c) LICENSURE. 10 foreign A Government attorney (except counsel employed in special cases) 11 ''(1) shall be duly licensed and authorized to 12 practice as an attorney under the laws of a State; 13 and ''(2) shall not be required to be a member of 14 15 the bar of any particular State. 16 ''(d) UNDERCOVER ACTIVITIES. 17 any provision of State law, including disciplinary rules, 18 statutes, 19 law, regulations, constitutional provisions, or case a Government attorney may, for the purpose of en 20 forcing Federal law, provide legal advice, authorization, 21 concurrence, 22 dercover 23 tigator 24 of Notwithstanding direction, or supervision on conducting un activities, and any attorney employed as an inves or other law enforcement agent by the Department Justice who is not authorized to represent the United 25 States in criminal or civil law enforcement litigation or EXT-18-2091-C-000744 007104-001495 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 169 1 to supervise such proceedings may participate in such ac 2 tivities, 3 of even though such activities may require the use deceit or misrepresentation, where such activities are 4 consistent with Federal law. 5 ''(e) ADMISSIBILITY 6 any disciplinary, ethical, or professional conduct rule shall 7 be OF E VIDENCE. No violation of construed to permit the exclusion of otherwise admis 8 sible evidence in any Federal criminal proceedings. 9 ''(f) RULEMAKING AUTHORITY. 10 eral The Attorney Gen shall make and amend rules of the Department of 11 Justice to ensure compliance with this section.''. 12 (c) TECHNICAL 13 The analysis for chapter 31 of title 28, United States 14 Code, 15 by striking ''Ethical standards for attorneys for the Gov 17 ernment 19 CONFORMING AMENDMENT. is amended, in the item relating to section 530B, 16 ernment'' 18 AND and inserting ''Professional standards for Gov attorneys''. (d) REPORTS. (1) UNIFORM RULE . In order to encourage the 20 Supreme Court to prescribe, under chapter 131 of 21 title 28, United States Code, a uniform national rule 22 for Government attorneys with respect to commu 23 nications with represented persons and parties, not 24 later than 1 year after the date of enactment of this 25 Act, the Judicial Conference of the United States EXT-18-2091-C-000745 007104-001496 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 170 1 shall submit to the Chief Justice of the United 2 States a report, which shall include recommenda 3 tions with respect to amending the Federal Rules of 4 Practice and Procedure to provide for such a uni 5 form national rule. 6 (2) ACTUAL OR POTENTIAL CONFLICTS. Not 7 later than 2 years after the date of enactment of 8 this Act, the Judicial Conference of the United 9 States shall submit to the Chairmen and Ranking 10 Members of the Committees on the Judiciary of the 11 House of Representatives and the Senate a report, 12 which shall include 13 (A) a review of any areas of actual or po 14 tential conflict between specific Federal duties 15 related to the investigation and prosecution of 16 violations of Federal law and the regulation of 17 Government attorneys (as that term is defined 18 in section 530B of title 28, United States Code, 19 as amended by this Act) by existing standards 20 of professional responsibility; and 21 (B) recommendations with respect to 22 amending the Federal Rules of Practice and 23 Procedure to provide for additional rules gov 24 erning attorney conduct to address any areas of EXT-18-2091-C-000746 007104-001497 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 171 1 actual or potential conflict identified pursuant 2 to the review under subparagraph (A). 3 (3) REPORT CONSIDERATIONS . In carrying out 4 paragraphs (1) and (2), the Judicial Conference of 5 the United States shall take into consideration (A) 6 the needs and circumstances of multiforum and multijurisdictional litigation; 7 8 (B) the special needs and interests of the 9 United States in investigating and prosecuting 10 violations of Federal criminal and civil law; and (C) practices that are approved under Fed 11 12 eral statutory or case law or that are otherwise 13 consistent with traditional Federal law enforce 14 ment techniques. 15 SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY RE16 17 WARDS TO COMBAT TERRORISM. (a) PAYMENT 18 RORISM. OF REWARDS TO COMBAT TER Funds available to the Attorney General may 19 be used for the payment of rewards pursuant to public 20 advertisements for assistance to the Department of Jus 21 tice to combat terrorism and defend the Nation against 22 terrorist acts, in accordance with procedures and regula 23 tions established or issued by the Attorney General. 24 25 (b) CONDITIONS. section In making rewards under this EXT-18-2091-C-000747 007104-001498 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 172 1 (1) no such reward of $250,000 or more may 2 be made or offered without the personal approval of 3 either the Attorney General or the President; 4 (2) the Attorney General shall give written no 5 tice to the Chairmen and ranking minority members 6 of the Committees on Appropriations and the Judici 7 ary of the Senate and of the House of Representa 8 tives not later than 30 days after the approval of a 9 reward under paragraph (1); 10 (3) any executive agency or military department 11 (as defined, respectively, in sections 105 and 102 of 12 title 5, United States Code) may provide the Attor 13 ney General with funds for the payment of rewards; 14 (4) neither the failure of the Attorney General 15 to authorize a payment nor the amount authorized 16 shall be subject to judicial review; and 17 (5) no such reward shall be subject to any per 18 or aggregate reward spending limitation established 19 by law, unless that law expressly refers to this sec 20 tion, and no reward paid pursuant to any such offer 21 shall count toward any such aggregate reward 22 spending limitation. EXT-18-2091-C-000748 007104-001499 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 173 1 SEC. 503. SECRETARY OF STATE'S AUTHORITY TO PAY RE2 3 4 Act WARDS. Section 36 of the State Department Basic Authorities of 1956 (Public Law 885, August 1, 1956; 22 U.S.C. 5 2708) 6 7 8 9 is amended (1) in subsection (b) (A) in paragraph (4), by striking ''or'' at the end; (B) in paragraph (5), by striking the pe 10 riod at the end and inserting '', including by 11 dismantling an organization in whole or signifi 12 cant part; or''; and 13 (C) by adding at the end the following: 14 ''(6) the identification or location of an indi 15 vidual who holds a key leadership position in a ter 16 rorist organization.''; 17 (2) in subsection (d), by striking paragraphs 18 (2) and (3) and redesignating paragraph (4) as 19 paragraph (2); and 20 (3) in subsection (e)(1), by inserting '', except 21 as personally authorized by the Secretary of State if 22 he determines that offer or payment of an award of 23 a larger amount is necessary to combat terrorism or 24 defend the Nation against terrorist acts.'' after 25 ''$5,000,000''. EXT-18-2091-C-000749 007104-001500 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 174 1 SEC. 504. DNA IDENTIFICATION OF TERRORISTS AND 2 3 OTHER VIOLENT OFFENDERS. Section 3(d)(2) of the DNA Analysis Backlog Elimi 4 nation Act of 2000 (42 U.S.C. 14135a(d)(2)) is amended 5 to read as follows: 6 ''(2) In additional to the offenses described in 7 paragraph (1), the following offenses shall be treated 8 for purposes of this section as qualifying Federal of 9 fenses, as determined by the Attorney General: ''(A) 10 Any offense listed in section 11 2332b(g)(5)(B) of title 18, United States Code. 12 ''(B) Any crime of violence (as defined in section 16 of title 18, United States Code). 13 ''(C) Any attempt or conspiracy to commit 14 any of the above offenses.''. 15 16 SEC. 505. COORDINATION WITH LAW ENFORCEMENT. 17 (a) INFORMATION ACQUIRED FROM AN E LECTRONIC 18 SURVEILLANCE. 19 Surveillance Act of 1978 (50 U.S.C. 1806), is amended 20 by adding at the end the following: 21 Section 106 of the Foreign Intelligence ''(k)(1) Federal officers who conduct electronic sur 22 veillance to acquire foreign intelligence information under 23 this title may consult with Federal law enforcement offi 24 cers to coordinate efforts to investigate or protect 25 against EXT-18-2091-C-000750 007104-001501 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 175 ''(A) actual or potential attack or other grave 1 2 hostile acts of a foreign power or an agent of a for 3 eign power; ''(B) sabotage or international terrorism by a 4 foreign power or an agent of a foreign power; or 5 ''(C) clandestine intelligence activities by an in 6 7 telligence service or network of a foreign power or by 8 an agent of a foreign power. 9 ''(2) Coordination authorized under paragraph (1) 10 shall not preclude the certification required by section 11 104(a)(7)(B) (b) INFORMATION ACQUIRED FROM 12 13 SEARCH. 14 lance 15 at or the entry of an order under section 105.''. A PHYSICAL Section 305 of the Foreign Intelligence Surveil Act of 1978 (50 U.S.C. 1825) is amended by adding the end the following: 16 ''(k)(1) 17 searches 18 this 19 cers Federal officers who conduct physical to acquire foreign intelligence information under title may consult with Federal law enforcement offi to coordinate efforts to investigate or protect 20 against 21 ''(A) actual or potential attack or other grave 22 hostile acts of a foreign power or an agent of a for 23 eign power; 24 25 ''(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or EXT-18-2091-C-000751 007104-001502 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 176 ''(C) clandestine intelligence activities by an in 1 2 telligence service or network of a foreign power or by 3 an agent of a foreign power. 4 ''(2) Coordination authorized under paragraph (1) 5 shall not preclude the certification required by section 6 303(a)(7) or the entry of an order under section 304.''. 7 SEC. 506. MISCELLANEOUS NATIONAL SECURITY AUTHORI8 9 TIES. (a) TELEPHONE 10 RECORDS. 11 Code, TOLL AND TRANSACTIONAL Section 2709(b) of title 18, United States is amended 12 (1) in the matter preceding paragraph (1), by 13 inserting ''at Bureau headquarters or a Special 14 Agent in Charge in a Bureau field office designated 15 by the Director'' after ''Assistant Director''; 16 17 18 (2) in paragraph (1) (A) by striking ''in a position not lower than Deputy Assistant Director''; and 19 (B) by striking ''made that'' and all that 20 follows and inserting the following: ''made that 21 the name, address, length of service, and toll 22 billing records sought are relevant to an author 23 ized investigation to protect against inter 24 national terrorism or clandestine intelligence ac 25 tivities, provided that such an investigation of a EXT-18-2091-C-000752 007104-001503 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 177 1 United States person is not conducted solely on 2 the basis of activities protected by the first 3 amendment to the Constitution of the United 4 States; and''; and 5 (3) in paragraph (2) 6 7 (A) by striking ''in a position not lower than Deputy Assistant Director''; and 8 (B) by striking ''made that'' and all that 9 follows and inserting the following: ''made that 10 the information sought is relevant to an author 11 ized investigation to protect against inter 12 national terrorism or clandestine intelligence ac 13 tivities, provided that such an investigation of a 14 United States person is not conducted solely 15 upon the basis of activities protected by the 16 first amendment to the Constitution of the 17 United States.''. 18 19 the (b) FINANCIAL RECORDS. Section 1114(a)(5)(A) of Right to Financial Privacy Act of 1978 (12 U.S.C. 20 3414(a)(5)(A)) is amended 21 (1) by inserting ''in a position not lower than 22 Deputy Assistant Director at Bureau headquarters 23 or a Special Agent in Charge in a Bureau field office 24 designated by the Director'' after ''designee''; and EXT-18-2091-C-000753 007104-001504 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 178 (2) by striking ''sought'' and all that follows 1 2 and inserting ''sought for foreign counter intel 3 ligence purposes to protect against international ter 4 rorism or clandestine intelligence activities, provided 5 that such an investigation of a United States person 6 is not conducted solely upon the basis of activities 7 protected by the first amendment to the Constitution 8 of the United States.''. 9 (c) CONSUMER REPORTS. 10 Credit 11 Section 624 of the Fair Reporting Act (15 U.S.C. 1681u) is amended (1) in subsection (a) 12 (A) by inserting ''in a position not lower 13 than Deputy Assistant Director at Bureau 14 headquarters or a Special Agent in Charge of a 15 Bureau field office designated by the Director'' 16 after ''designee'' the first place it appears; and 17 (B) by striking ''in writing that'' and all 18 that follows through the end and inserting the 19 following: ''in writing, that such information is 20 sought for the conduct of an authorized inves 21 tigation to protect against international ter 22 rorism or clandestine intelligence activities, pro 23 vided that such an investigation of a United 24 States person is not conducted solely upon the 25 basis of activities protected by the first amend EXT-18-2091-C-000754 007104-001505 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 179 1 ment to the Constitution of the United 2 States.''; 3 (2) in subsection (b) 4 (A) by inserting ''in a position not lower 5 than Deputy Assistant Director at Bureau 6 headquarters or a Special Agent in Charge of a 7 Bureau field office designated by the Director'' 8 after ''designee'' the first place it appears; and 9 (B) by striking ''in writing that'' and all 10 that follows through the end and inserting the 11 following: ''in writing that such information is 12 sought for the conduct of an authorized inves 13 tigation to protect against international ter 14 rorism or clandestine intelligence activities, pro 15 vided that such an investigation of a United 16 States person is not conducted solely upon the 17 basis of activities protected by the first amend 18 ment to the Constitution of the United 19 States.''; and 20 (3) in subsection (c) 21 (A) by inserting ''in a position not lower 22 than Deputy Assistant Director at Bureau 23 headquarters or a Special Agent in Charge in a 24 Bureau field office designated by the Director'' 25 after ''designee of the Director''; and EXT-18-2091-C-000755 007104-001506 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 180 1 (B) by striking ''in camera that'' and all 2 that follows through ''States.'' and inserting the 3 following: ''in camera that the consumer report 4 is sought for the conduct of an authorized in 5 vestigation to protect against international ter 6 rorism or clandestine intelligence activities, pro 7 vided that such an investigation of a United 8 States person is not conducted solely upon the 9 basis of activities protected by the first amend 10 ment to the Constitution of the United 11 States.''. 12 SEC. 507. EXTENSION OF SECRET SERVICE JURISDICTION. (a) CONCURRENT JURISDICTION UNDER 18 U.S.C. 13 14 1030. 15 is Section 1030(d) of title 18, United States Code, amended to read as follows: 16 ''(d)(1) The United States Secret Service shall, in ad 17 dition to any other agency having such authority, have the 18 authority to 19 ''(2) The Federal Bureau of Investigation shall have 20 primary 21 (a)(1) authority to investigate offenses under subsection for any cases involving espionage, foreign counter 22 intelligence, 23 disclosure 24 tions, 25 tion investigate offenses under this section. information protected against unauthorized for reasons of national defense or foreign rela or Restricted Data (as that term is defined in sec 11y of the Atomic Energy Act of 1954 (42 U.S.C. EXT-18-2091-C-000756 007104-001507 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 181 1 2014(y)), 2 United 3 of this except for offenses affecting the duties of the States Secret Service pursuant to section 3056(a) title. 4 ''(3) Such authority shall be exercised in accordance 5 with an agreement which shall be entered into by the Sec 6 retary of the Treasury and the Attorney General.''. (b) REAUTHORIZATION 7 8 U.S.C. 9 States 1344. OF JURISDICTION UNDER 18 Section 3056(b)(3) of title 18, United Code, is amended by striking ''credit and debit card 10 frauds, and false identification documents or devices'' and 11 inserting ''access device frauds, false identification docu 12 ments or devices, and any fraud or other criminal or un 13 lawful activity in or against any federally insured financial 14 institution''. 15 SEC. 508. DISCLOSURE OF EDUCATIONAL RECORDS. Section 444 of the General Education Provisions Act 16 17 (20 18 (i) 19 U.S.C. 1232g), is amended by adding after subsection a new subsection (j) to read as follows: ''(j) INVESTIGATION 20 RORISM. 21 AND PROSECUTION OF TER Notwithstanding sub ''(1) IN GENERAL. 22 sections (a) through (i) or any provision of State 23 law, the Attorney General (or any Federal officer or 24 employee, in a position not lower than an Assistant 25 Attorney General, designated by the Attorney Gen EXT-18-2091-C-000757 007104-001508 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 182 1 eral) may submit a written application to a court of 2 competent jurisdiction for an ex parte order requir 3 ing an educational agency or institution to permit 4 the Attorney General (or his designee) to 5 ''(A) collect education records in the pos 6 session of the educational agency or institution 7 that are relevant to an authorized investigation 8 or prosecution of an offense listed in section 9 2332b(g)(5)(B) of title 18 United States Code, 10 or an act of domestic or international terrorism 11 as defined in section 2331 of that title; and 12 ''(B) for official purposes related to the in 13 vestigation or prosecution of an offense de 14 scribed in paragraph (1)(A), retain, dissemi 15 nate, and use (including as evidence at trial or 16 in other administrative or judicial proceedings) 17 such records, consistent with such guidelines as 18 the Attorney General, after consultation with 19 the Secretary, shall issue to protect confiden 20 tiality. 21 ''(2) APPLICATION 22 ''(A) IN AND APPROVAL. GENERAL. An application under 23 paragraph (1) shall certify that there are spe 24 cific and articulable facts giving reason to be 25 lieve that the education records are likely to EXT-18-2091-C-000758 007104-001509 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 183 1 contain information described in paragraph 2 (1)(A). ''(B) The court shall issue an order de 3 4 scribed in paragraph (1) if the court finds that 5 the application for the order includes the certifi 6 cation described in subparagraph (A). 7 ''(3) PROTECTION OF EDUCATIONAL AGENCY 8 OR INSTITUTION. An educational agency or institu 9 tion that, in good faith, produces education records 10 in accordance with an order issued under this sub 11 section shall not be liable to any person for that pro 12 duction. ''(4) 13 RECORD KEEPING. Subsection (b)(4) 14 does not apply to education records subject to a 15 court order under this subsection.''. 16 SEC. 509. DISCLOSURE OF INFORMATION FROM NCES SUR17 18 19 of VEYS. Section 408 of the National Education Statistics Act 1994 (20 U.S.C. 9007), is amended by adding after 20 subsection (b) 21 ''(c) INVESTIGATION 22 RORISM. 23 a new subsection (c) to read as follows: AND PROSECUTION OF TER Notwithstanding sub ''(1) IN GENERAL. 24 sections (a) and (b), the Attorney General (or any 25 Federal officer or employee, in a position not lower EXT-18-2091-C-000759 007104-001510 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 184 1 than an Assistant Attorney General, designated by 2 the Attorney General) may submit a written applica 3 tion to a court of competent jurisdiction for an ex 4 parte order requiring the Secretary to permit the At 5 torney General (or his designee) to 6 ''(A) collect reports, records, and informa 7 tion (including individually identifiable informa 8 tion) in the possession of the center that are 9 relevant to an authorized investigation or pros 10 ecution of an offense listed in section 11 2332b(g)(5)(B) of title 18, United States Code, 12 or an act of domestic or international terrorism 13 as defined in section 2331 of that title; and 14 ''(B) for official purposes related to the in 15 vestigation or prosecution of an offense de 16 scribed in paragraph (1)(A), retain, dissemi 17 nate, and use (including as evidence at trial or 18 in other administrative or judicial proceedings) 19 such information, consistent with such guide 20 lines as the Attorney General, after consultation 21 with the Secretary, shall issue to protect con 22 fidentiality. 23 ''(2) APPLICATION 24 ''(A) IN 25 AND APPROVAL. GENERAL. An application under paragraph (1) shall certify that there are spe EXT-18-2091-C-000760 007104-001511 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 185 1 cific and articulable facts giving reason to be 2 lieve that the information sought is described in 3 paragraph (1)(A). 4 ''(B) The court shall issue an order de 5 scribed in paragraph (1) if the court finds that 6 the application for the order includes the certifi 7 cation described in subparagraph (A). 8 ''(3) PROTECTION. An officer or employee 9 of the Department who, in good faith, produces 10 information in accordance with an order issued 11 under this subsection does not violate sub 12 section (b)(2) and shall not be liable to any per 13 son for that production.''. TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC 15 SAFETY OFFICERS, AND 16 THEIR FAMILIES 17 Subtitle A--Aid to Families of 18 19 Public Safety Officers 14 20 SEC. 611. EXPEDITED PAYMENT FOR PUBLIC SAFETY OFFI21 CERS INVOLVED IN THE PREVENTION, INVES- 22 TIGATION, RESCUE, OR RECOVERY EFFORTS 23 RELATED TO A TERRORIST ATTACK. 24 25 of (a) IN GENERAL. Notwithstanding the limitations subsection (b) of section 1201 or the provisions of sub EXT-18-2091-C-000761 007104-001512 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 186 1 sections 2 of (c), (d), and (e) of such section or section 1202 title I of the Omnibus Crime Control and Safe Streets 3 Act of 1968 (42 U.S.C. 3796, 3796a), upon certification 4 (containing 5 pursuant 6 that 8 nent or suffered a catastrophic injury producing perma and total disability as a direct and proximate result a personal injury sustained in the line of duty as de 10 scribed in section 1201 of such Act in connection with pre 11 vention, 12 to to section 1201 of such Act) by a public agency a public safety officer employed by such agency was 7 killed 9 of investigation, rescue, or recovery efforts related a terrorist attack, the Director of the Bureau of Justice 13 Assistance 14 ficiaries, 15 after shall authorize payment to qualified bene said payment to be made not later than 30 days receipt of such certification, benefits described under 16 subpart 17 identification of all eligible payees of benefits 1 of part L of such Act (42 U.S.C. 3796 et seq.). (b) DEFINITIONS. For purposes of this section, the 18 terms ''catastrophic injury'', ''public agency'', and ''public 19 safety officer'' have the same meanings given such terms 20 in section 1204 of title I of the Omnibus Crime Control 21 and Safe Streets Act of 1968 (42 U.S.C. 3796b). EXT-18-2091-C-000762 007104-001513 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 187 1 SEC. 612. TECHNICAL CORRECTION WITH RESPECT TO EX2 PEDITED PAYMENTS FOR HEROIC PUBLIC 3 SAFETY OFFICERS. 4 Section 1 of Public Law 107 37 (an Act to provide 5 for the expedited payment of certain benefits for a public 6 safety officer who was killed or suffered a catastrophic in 7 jury as a direct and proximate result of a personal injury 8 sustained in the line of duty in connection with the ter 9 rorist attacks of September 11, 2001) is amended by 10 (1) inserting before ''by a'' the following: ''(con 11 taining identification of all eligible payees of benefits 12 pursuant to section 1201)''; 13 (2) inserting ''producing permanent and total 14 disability'' after ''suffered a catastrophic injury''; 15 and 16 (2) striking ''1201(a)'' and inserting ''1201''. 17 SEC. 613. PUBLIC SAFETY OFFICERS BENEFIT PROGRAM 18 19 PAYMENT INCREASE. (a) PAYMENTS. Section 1201(a) of the Omnibus 20 Crime Control and Safe Streets Act of 1968 (42 U.S.C. 21 3796) is amended by striking ''$100,000'' and inserting 22 ''$250,000''. 23 (b) APPLICABILITY. The amendment made by sub 24 section (a) shall apply to any death or disability occurring 25 on or after January 1, 2001. EXT-18-2091-C-000763 007104-001514 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 188 1 SEC. 614. OFFICE OF JUSTICE PROGRAMS. 2 Section 112 of title I of section 101(b) of division 3 A of Public Law 105 277 and section 108(a) of appendix 4 A of Public Law 106 113 (113 Stat. 1501A 20) are 5 amended 6 (1) after ''that Office'', each place it occurs, by 7 inserting ''(including, notwithstanding any contrary 8 provision of law (unless the same should expressly 9 refer to this section), any organization that admin 10 isters any program established in title 1 of Public 11 Law 90 351)''; and 12 13 14 15 (2) by inserting ''functions, including any'' after ''all''. Subtitle B--Amendments to the Victims of Crime Act of 1984 16 SEC. 621. CRIME VICTIMS FUND. 17 (a) DEPOSIT OF GIFTS IN THE FUND. Section 18 1402(b) of the Victims of Crime Act of 1984 (42 U.S.C. 19 10601(b)) is amended 20 21 22 23 (1) in paragraph (3), by striking ''and'' at the end; (2) in paragraph (4), by striking the period at the end and inserting ''; and''; and 24 (3) by adding at the end the following: 25 ''(5) any gifts, bequests, or donations to the 26 Fund from private entities or individuals.''. EXT-18-2091-C-000764 007104-001515 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 189 (b) FORMULA 1 FOR FUND DISTRIBUTIONS. Section 2 1402(c) of the Victims of Crime Act of 1984 (42 U.S.C. 3 10601(c)) is amended to read as follows: ''(c) FUND DISTRIBUTION; RETENTION 4 5 FUND; AVAILABILITY 6 CAL FOR YEAR LIMITATION. OF SUMS IN EXPENDITURE WITHOUT FIS 7 ''(1) Subject to the availability of money in the 8 Fund, in each fiscal year, beginning with fiscal year 9 2003, the Director shall distribute not less than 90 10 percent nor more than 110 percent of the amount 11 distributed from the Fund in the previous fiscal 12 year, except the Director may distribute up to 120 13 percent of the amount distributed in the previous 14 fiscal year in any fiscal year that the total amount 15 available in the Fund is more than 2 times the 16 amount distributed in the previous fiscal year. 17 ''(2) In each fiscal year, the Director shall dis 18 tribute amounts from the Fund in accordance with 19 subsection (d). All sums not distributed during a fis 20 cal year shall remain in reserve in the Fund to be 21 distributed during a subsequent fiscal year. Notwith 22 standing any other provision of law, all sums depos 23 ited in the Fund that are not distributed shall re 24 main in reserve in the Fund for obligation in future 25 fiscal years, without fiscal year limitation.''. EXT-18-2091-C-000765 007104-001516 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 190 1 (c) ALLOCATION 2 GRANTS. 3 of 1984 COSTS AND Section 1402(d)(4) of the Victims of Crime Act (42 U.S.C. 10601(d)(4)) is amended (2) in subparagraph (A), by striking ''48.5'' and inserting ''47.5''; (3) in subparagraph (B), by striking ''48.5'' 8 9 FOR be distributed from''; 6 7 FUNDS (1) by striking ''deposited in'' and inserting ''to 4 5 OF and inserting ''47.5''; and (4) in subparagraph (C), by striking ''3'' and 10 11 inserting ''5''. 12 (d) ANTITERRORISM E MERGENCY RESERVE. 13 tion 1402(d)(5) of the Victims of Crime Act of 1984 (42 14 U.S.C. Sec 10601(d)(5)) is amended to read as follows: 15 ''(5)(A) In addition to the amounts distributed 16 under paragraphs (2), (3), and (4), the Director 17 may set aside up to $50,000,000 from the amounts 18 transferred to the Fund for use in responding to the 19 airplane hijackings and terrorist acts that occurred 20 on September 11, 2001, as an antiterrorism emer 21 gency reserve. The Director may replenish any 22 amounts expended from such reserve in subsequent 23 fiscal years by setting aside up to 5 percent of the 24 amounts remaining in the Fund in any fiscal year EXT-18-2091-C-000766 007104-001517 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 191 1 after distributing amounts under paragraphs (2), (3) 2 and (4). Such reserve shall not exceed $50,000,000. 3 ''(B) The antiterrorism emergency reserve re 4 ferred to in subparagraph (A) may be used for sup 5 plemental grants under section 1404B and to pro 6 vide compensation to victims of international ter 7 rorism under section 1404C. 8 ''(C) Amounts in the antiterrorism emergency 9 reserve established pursuant to subparagraph (A) 10 may be carried over from fiscal year to fiscal year. 11 Notwithstanding subsection (c) and section 619 of 12 the Departments of Commerce, Justice, and State, 13 the Judiciary, and Related Agencies Appropriations 14 Act, 2001 (and any similar limitation on Fund obli 15 gations in any future Act, unless the same should 16 expressly refer to this section), any such amounts 17 carried over shall not be subject to any limitation on 18 obligations from amounts deposited to or available in 19 the Fund.''. 20 (e) VICTIMS 21 transferred 22 ing OF SEPTEMBER 11, 2001. Amounts to the Crime Victims Fund for use in respond to the airplane hijackings and terrorist acts (including 23 any related search, rescue, relief, assistance, or other simi 24 lar activities) that occurred on September 11, 2001, shall 25 not be subject to any limitation on obligations from EXT-18-2091-C-000767 007104-001518 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 192 1 amounts deposited to or available in the Fund, 2 notwithstanding 3 (1) section 619 of the Departments of Com 4 merce, Justice, and State, the Judiciary, and Re 5 lated Agencies Appropriations Act, 2001, and any 6 similar limitation on Fund obligations in such Act 7 for Fiscal Year 2002; and 8 (2) subsections (c) and (d) of section 1402 of 9 the Victims of Crime Act of 1984 (42 U.S.C. 10601). 10 11 SEC. 622. CRIME VICTIM COMPENSATION. (a) ALLOCATION 12 ASSISTANCE. 13 AND OF FUNDS FOR COMPENSATION Paragraphs (1) and (2) of section 14 1403(a) of the Victims of Crime Act of 1984 (42 U.S.C. 15 10602(a)) are amended by inserting ''in fiscal year 2002 16 and of 60 percent in subsequent fiscal years'' after ''40 17 percent''. 18 (b) LOCATION OF COMPENSABLE CRIME. Section 19 1403(b)(6)(B) of the Victims of Crime Act of 1984 (42 20 U.S.C. 10602(b)(6)(B)) is amended by striking ''are out 21 side the United States (if the compensable crime is ter 22 rorism, as defined in section 2331 of title 18), or''. 23 (c) RELATIONSHIP 24 TION TO 25 GRAMS. OF CRIME VICTIM COMPENSA MEANS TESTED FEDERAL BENEFIT PRO Section 1403 of the Victims of Crime Act of EXT-18-2091-C-000768 007104-001519 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 193 1 1984 (42 U.S.C. 10602) is amended by striking subsection 2 (c) and inserting the following: ''(c) EXCLUSION FROM INCOME, RESOURCES, 3 4 ASSETS FOR 5 standing 6 107 PURPOSES 9 that or asset eligibility requirement in any Federal, or local government program using Federal funds provides medical or other assistance (or payment or 10 reimbursement of the cost of such assistance), any amount crime victim compensation that the applicant receives 12 through 13 section 14 assets of the applicant, nor shall that amount reduce the 16 Federal, 17 eral a crime victim compensation program under this shall not be included in the income, resources, or 15 amount of the assistance available to the applicant from State, or local government programs using Fed funds, unless the total amount of assistance that the 18 applicant 19 fully receives from all such programs is sufficient to compensate the applicant for losses suffered as a re 20 sult of the crime.''. 21 (d) DEFINITIONS 22 ''STATE''. 23 of 1984 25 Notwith 42), for the purpose of any maximum allowed income, 8 State, 24 MEANS TESTS. any other law (other than title IV of Public Law 7 resource, 11 of OF AND OF ''COMPENSABLE CRIME'' AND Section 1403(d) of the Victims of Crime Act (42 U.S.C. 10602(d)) is amended (1) in paragraph (3), by striking ''crimes in volving terrorism,''; and EXT-18-2091-C-000769 007104-001520 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 194 1 (2) in paragraph (4), by inserting ''the United 2 States Virgin Islands,'' after ''the Commonwealth of 3 Puerto Rico,''. 4 (e) RELATIONSHIP OF E LIGIBLE CRIME VICTIM COM 5 PENSATION 6 PROGRAMS COMPENSATION FUND. (1) IN 7 TO THE SEPTEMBER 11TH VICTIM GENERAL. Section 1403(e) of the Vic 8 tims of Crime Act of 1984 (42 U.S.C. 10602(e)) is 9 amended by inserting ''including the program estab 10 lished under title IV of Public Law 107 42,'' after 11 ''Federal program,''. (2) COMPENSATION. 12 With respect to any com 13 pensation payable under title IV of Public Law 107 14 42, the failure of a crime victim compensation pro 15 gram, after the effective date of final regulations 16 issued pursuant to section 407 of Public Law 107 17 42, to provide compensation otherwise required pur 18 suant to section 1403 of the Victims of Crime Act 19 of 1984 (42 U.S.C. 10602) shall not render that 20 program ineligible for future grants under the Vic 21 tims of Crime Act of 1984. 22 SEC. 623. CRIME VICTIM ASSISTANCE. (a) ASSISTANCE 23 24 FOR VICTIMS COLUMBIA, PUERTO RICO, 25 AND POSSESSIONS. AND IN THE DISTRICT OF OTHER TERRITORIES Section 1404(a) of the Victims of EXT-18-2091-C-000770 007104-001521 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 195 1 Crime Act of 1984 (42 U.S.C. 10603(a)) is amended by 2 adding at the end the following: ''(6) An agency of the Federal Government per 3 4 forming local law enforcement functions in and on 5 behalf of the District of Columbia, the Common 6 wealth of Puerto Rico, the United States Virgin Is 7 lands, or any other territory or possession of the 8 United States may qualify as an eligible crime victim 9 assistance program for the purpose of grants under 10 this subsection, or for the purpose of grants under 11 subsection (c)(1).''. 12 (b) PROHIBITION ON DISCRIMINATION AGAINST CER 13 TAIN 14 VICTIMS. Crime Act of 1984 (42 U.S.C. 10603(b)(1)) is amended the end; (2) in subparagraph (E), by striking the period 17 18 (1) in subparagraph (D), by striking ''and'' at 15 16 Section 1404(b)(1) of the Victims of at the end and inserting ''; and''; and (3) by adding at the end the following: 19 20 ''(F) does not discriminate against victims 21 because they disagree with the way the State is 22 prosecuting the criminal case.''. 23 (c) GRANTS 24 PLIANCE 25 FOR EFFORTS. PROGRAM E VALUATION AND COM Section 1404(c)(1)(A) of the Vic tims of Crime Act of 1984 (42 U.S.C. 10603(c)(1)(A)) EXT-18-2091-C-000771 007104-001522 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 196 1 is amended by inserting '', program evaluation, compliance 2 efforts,'' after ''demonstration projects''. (d) ALLOCATION OF DISCRETIONARY GRANTS. 3 Sec 4 tion 1404(c)(2) of the Victims of Crime Act of 1984 (42 5 U.S.C. 10603(c)(2)) is amended (1) in subparagraph (A), by striking ''not more 6 7 than'' and inserting ''not less than''; and (2) in subparagraph (B), by striking ''not less 8 9 10 than'' and inserting ''not more than''. (e) FELLOWSHIPS 11 Section 12 (42 13 14 15 16 17 18 19 20 21 AND CLINICAL INTERNSHIPS. 1404(c)(3) of the Victims of Crime Act of 1984 U.S.C. 10603(c)(3)) is amended (1) in subparagraph (C), by striking ''and'' at the end; (2) in subparagraph (D), by striking the period at the end and inserting ''; and''; and (3) by adding at the end the following: ''(E) use funds made available to the Di rector under this subsection ''(i) for fellowships and clinical intern ships; and 22 ''(ii) to carry out programs of training 23 and special workshops for the presentation 24 and dissemination of information resulting EXT-18-2091-C-000772 007104-001523 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 197 1 from demonstrations, surveys, and special 2 projects.''. 3 SEC. 624. VICTIMS OF TERRORISM. (a) COMPENSATION AND ASSISTANCE 4 TO VICTIMS OF 5 DOMESTIC TERRORISM. 6 of Crime Act of 1984 (42 U.S.C. 10603b(b)) is amended 7 to read as follows: ''(b) VICTIMS 8 OF Section 1404B(b) of the Victims TERRORISM WITHIN THE UNITED 9 STATES. The Director may make supplemental grants as 10 provided in section 1402(d)(5) to States for eligible crime 11 victim 12 tim compensation and assistance programs, and to vic service organizations, public agencies (including Fed 13 eral, State, or local governments) and nongovernmental 14 organizations that provide assistance to victims of crime, 15 which shall be used to provide emergency relief, including 16 crisis response efforts, assistance, compensation, training 17 and technical assistance, and ongoing assistance, including 18 during 19 rorist any investigation or prosecution, to victims of ter acts or mass violence occurring within the United 20 States.''. 21 (b) ASSISTANCE 22 TERRORISM. 23 Crime TO VICTIMS OF INTERNATIONAL Section 1404B(a)(1) of the Victims of Act of 1984 (42 U.S.C. 10603b(a)(1)) is amended 24 by striking ''who are not persons eligible for compensation EXT-18-2091-C-000773 007104-001524 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 198 1 under title VIII of the Omnibus Diplomatic Security and 2 Antiterrorism Act of 1986''. 3 (c) COMPENSATION TO VICTIMS OF INTERNATIONAL 4 TERRORISM. 5 of 1984 (42 U.S.C. 10603c(b)) is amended by adding at 6 the end the following: ''The amount of compensation 7 awarded to a victim under this subsection shall be reduced 8 by any amount that the victim received in connection with 9 the same act of international terrorism under title VIII 10 of the Omnibus Diplomatic Security and Antiterrorism 11 Act of 1986.''. 12 TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION 13 14 15 Section 1404C(b) of the Victims of Crime 16 SEC. 711. EXPANSION OF REGIONAL INFORMATION SHAR17 ING SYSTEM TO FACILITATE FEDERAL-STATE- 18 LOCAL LAW ENFORCEMENT RESPONSE RE- 19 LATED TO TERRORIST ATTACKS. 20 Section 1301 of title I of the Omnibus Crime Control 21 and Safe Streets Act of 1968 (42 U.S.C. 3796h) is 22 amended 23 24 25 (1) in subsection (a), by inserting ''and ter rorist conspiracies and activities'' after ''activities''; (2) in subsection (b) EXT-18-2091-C-000774 007104-001525 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 199 (A) in paragraph (3), by striking ''and'' 1 after the semicolon; 2 (B) by redesignating paragraph (4) as 3 paragraph (5); 4 (C) by inserting after paragraph (3) the 5 6 following: 7 ''(4) establishing and operating secure informa 8 tion sharing systems to enhance the investigation 9 and prosecution abilities of participating enforce 10 ment agencies in addressing multi jurisdictional ter 11 rorist conspiracies and activities; and (5)''; and (3) by inserting at the end the following: 12 ''(d) AUTHORIZATION 13 OF A PPROPRIATION TO THE 14 BUREAU OF JUSTICE ASSISTANCE. 15 to be appropriated to the Bureau of Justice Assistance 16 to carry out this section $50,000,000 for fiscal year 2002 17 and $100,000,000 for fiscal year 2003.''. 18 TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM 19 20 There are authorized 21 SEC. 801. TERRORIST ATTACKS AND OTHER ACTS OF VIO22 LENCE 23 SYSTEMS. 24 AGAINST MASS TRANSPORTATION Chapter 97 of title 18, United States Code, is amend 25 ed by adding at the end the following: EXT-18-2091-C-000775 007104-001526 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 200 1 ''? 1993. Terrorist attacks and other acts of violence 2 3 4 5 6 against mass transportation systems ''(a) GENERAL PROHIBITIONS. Whoever willfully ''(1) wrecks, derails, sets fire to, or disables a mass transportation vehicle or ferry; ''(2) places or causes to be placed any biological 7 agent or toxin for use as a weapon, destructive sub 8 stance, or destructive device in, upon, or near a 9 mass transportation vehicle or ferry, without pre 10 viously obtaining the permission of the mass trans 11 portation provider, and with intent to endanger the 12 safety of any passenger or employee of the mass 13 transportation provider, or with a reckless disregard 14 for the safety of human life; 15 ''(3) sets fire to, or places any biological agent 16 or toxin for use as a weapon, destructive substance, 17 or destructive device in, upon, or near any garage, 18 terminal, structure, supply, or facility used in the 19 operation of, or in support of the operation of, a 20 mass transportation vehicle or ferry, without pre 21 viously obtaining the permission of the mass trans 22 portation provider, and knowing or having reason to 23 know such activity would likely derail, disable, or 24 wreck a mass transportation vehicle or ferry used, 25 operated, or employed by the mass transportation 26 provider; EXT-18-2091-C-000776 007104-001527 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 201 1 ''(4) removes appurtenances from, damages, or 2 otherwise impairs the operation of a mass transpor 3 tation signal system, including a train control sys 4 tem, centralized dispatching system, or rail grade 5 crossing warning signal; 6 ''(5) interferes with, disables, or incapacitates 7 any dispatcher, driver, captain, or person while they 8 are employed in dispatching, operating, or maintain 9 ing a mass transportation vehicle or ferry, with in 10 tent to endanger the safety of any passenger or em 11 ployee of the mass transportation provider, or with 12 a reckless disregard for the safety of human life; 13 ''(6) commits an act, including the use of a 14 dangerous weapon, with the intent to cause death or 15 serious bodily injury to an employee or passenger of 16 a mass transportation provider or any other person 17 while any of the foregoing are on the property of a 18 mass transportation provider; 19 ''(7) conveys or causes to be conveyed false in 20 formation, knowing the information to be false, con 21 cerning an attempt or alleged attempt being made or 22 to be made, to do any act which would be a crime 23 prohibited by this subsection; or 24 25 ''(8) attempts, threatens, or conspires to do any of the aforesaid acts, EXT-18-2091-C-000777 007104-001528 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 202 1 shall be fined under this title or imprisoned not more than 2 twenty 3 case years, or both, if such act is committed, or in the of a threat or conspiracy such act would be com 4 mitted, on, against, or affecting a mass transportation 5 provider engaged in or affecting interstate or foreign com 6 merce, or if in the course of committing such act, that 7 person travels or communicates across a State line in 8 order 9 a to commit such act, or transports materials across State line in aid of the commission of such act. 10 ''(b) AGGRAVATED OFFENSE. 11 offense Whoever commits an under subsection (a) in a circumstance in which 12 ''(1) the mass transportation vehicle or ferry 13 was carrying a passenger at the time of the offense; 14 or ''(2) the offense has resulted in the death of 15 16 any person, 17 shall be guilty of an aggravated form of the offense and 18 shall be fined under this title or imprisoned for a term 19 of years 20 21 22 or for life, or both. ''(c) DEFINITIONS. In this section ''(1) the term 'biological agent' has the meaning given to that term in section 178(1) of this title; 23 ''(2) the term 'dangerous weapon' has the 24 meaning given to that term in section 930 of this 25 title; EXT-18-2091-C-000778 007104-001529 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 203 ''(3) the term 'destructive device' has the mean 1 2 ing given to that term in section 921(a)(4) of this 3 title; 4 ''(4) the term 'destructive substance' has the 5 meaning given to that term in section 31 of this 6 title; 7 ''(5) the term 'mass transportation' has the 8 meaning given to that term in section 5302(a)(7) of 9 title 49, United States Code, except that the term 10 shall include schoolbus, charter, and sightseeing 11 transportation; 12 ''(6) the term 'serious bodily injury' has the 13 meaning given to that term in section 1365 of this 14 title; ''(7) the term 'State' has the meaning given to 15 16 that term in section 2266 of this title; and ''(8) the term 'toxin' has the meaning given to 17 18 that term in section 178(2) of this title.''. 19 (f) CONFORMING AMENDMENT. 20 chapter The analysis of 97 of title 18, United States Code, is amended 21 by adding at the end: ''1993. Terrorist attacks and other acts of violence against mass transportation systems.''. EXT-18-2091-C-000779 007104-001530 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 204 1 SEC. 802. EXPANSION OF THE BIOLOGICAL WEAPONS STAT2 3 4 5 6 7 8 9 10 11 UTE. Chapter 10 of title 18, United States Code, is amended (1) in section 175 (A) in subsection (b) (i) by striking ''does not include'' and inserting ''includes''; (ii) by inserting ''other than'' after ''system for''; and (iii) by inserting ''bona fide research'' 12 after ''protective''; 13 (B) by redesignating subsection (b) as sub 14 15 16 17 section (c); and (C) by inserting after subsection (a) the following: ''(b) ADDITIONAL OFFENSE. Whoever knowingly 18 possesses any biological agent, toxin, or delivery system 19 of a type or in a quantity that, under the circumstances, 20 is not reasonably justified by a prophylactic, protective, 21 bona fide research, or other peaceful purpose, shall be 22 fined under this title, imprisoned not more than 10 years, 23 or both. In this subsection, the terms 'biological agent' and 24 'toxin' do not encompass any biological agent or toxin that 25 is in its naturally occurring environment, if the biological EXT-18-2091-C-000780 007104-001531 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 205 1 agent 2 wise or toxin has not been cultivated, collected, or other extracted from its natural source.''; (2) by inserting after section 175a the fol 3 lowing: 4 5 ''SEC. 175b. POSSESSION BY RESTRICTED PERSONS. ''(a) No restricted person described in subsection (b) 6 7 shall ship or transport interstate or foreign commerce, or 8 possess 9 toxin, in or affecting commerce, any biological agent or or receive any biological agent or toxin that has been 10 shipped or transported in interstate or foreign commerce, 11 if the biological agent or toxin is listed as a select agent 12 in subsection (j) of section 72.6 of title 42, Code of Fed 13 eral Regulations, pursuant to section 511(d)(l) of the 14 Antiterrorism and Effective Death Penalty Act of 1996 15 (Public Law 104 132), and is not exempted under sub 16 section (h) of such section 72.6, or appendix A of part 17 72 of the Code of Regulations. 18 ''(b) In this section: ''(1) The term 'select agent' does not include 19 20 any such biological agent or toxin that is in its natu 21 rally occurring environment, if the biological agent 22 or toxin has not been cultivated, collected, or other 23 wise extracted from its natural source. 24 ''(2) The term 'restricted person' means an individual 25 who EXT-18-2091-C-000781 007104-001532 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 206 1 ''(A) is under indictment for a crime pun 2 ishable by imprisonment for a term exceeding 1 3 year; 4 ''(B) has been convicted in any court of a 5 crime punishable by imprisonment for a term 6 exceeding 1 year; 7 ''(C) is a fugitive from justice; 8 ''(D) is an unlawful user of any controlled 9 10 11 12 substance (as defined in section 102 of the Con trolled Substances Act (21 U.S.C. 802)); ''(E) is an alien illegally or unlawfully in the United States; 13 ''(F) has been adjudicated as a mental de 14 fective or has been committed to any mental in 15 stitution; 16 ''(G) is an alien (other than an alien law 17 fully admitted for permanent residence) who is 18 a national of a country as to which the Sec 19 retary of State, pursuant to section 6(j) of the 20 Export Administration Act of 1979 (50 U.S.C. 21 App. 2405(j)), section 620A of chapter 1 of 22 part M of the Foreign Assistance Act of 1961 23 (22 U.S.C. 2371), or section 40(d) of chapter 24 3 of the Arms Export Control Act (22 U.S.C. 25 2780(d)), has made a determination (that re EXT-18-2091-C-000782 007104-001533 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 207 1 mains in effect) that such country has repeat 2 edly provided support for acts of international 3 terrorism; or 4 ''(H) has been discharged from the Armed 5 Services of the United States under dishonor 6 able conditions. 7 ''(3) The term 'alien' has the same meaning as 8 in section 1010(a)(3) of the Immigration and Na 9 tionality Act (8 U.S.C. 1101(a)(3)). 10 ''(4) The term 'lawfully admitted for permanent 11 residence' has the same meaning as in section 12 101(a)(20) of the Immigration and Nationality Act 13 (8 U.S.C. 1101(a)(20)). 14 ''(c) Whoever knowingly violates this section shall be 15 fined as provided in this title, imprisoned not more than 16 10 years, or both, but the prohibition contained in this 17 section shall not apply with respect to any duly authorized 18 United States governmental activity.''; and 19 20 (3) in the chapter analysis, by inserting after the item relating to section 175a the following: ''175b. Possession by restricted persons.''. 21 SEC. 803. DEFINITION OF DOMESTIC TERRORISM. 22 (a) DOMESTIC TERRORISM DEFINED. 23 of title 18, United States Code, is amended Section 2331 EXT-18-2091-C-000783 007104-001534 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 208 (1) in paragraph (1)(B)(iii), by striking ''by as 1 2 sassination or kidnapping'' and inserting ''by mass 3 destruction, assassination, or kidnapping''; 4 (2) in paragraph (3), by striking ''and''; 5 (3) in paragraph (4), by striking the period at 6 the end and inserting ''; and''; and 7 (4) by adding at the end the following: 8 ''(5) the term 'domestic terrorism' means activi 9 ties that 10 ''(A) involve acts dangerous to human life 11 that are a violation of the criminal laws of the 12 United States or of any State; 13 ''(B) appear to be intended ''(i) to intimidate or coerce a civilian 14 population; 15 ''(ii) to influence the policy of a gov 16 ernment by intimidation or coercion; or 17 18 ''(iii) to affect the conduct of a gov 19 ernment by mass destruction, assassina 20 tion, or kidnapping; and 21 ''(C) occur primarily within the territorial jurisdiction of the United States.''. 22 23 (b) CONFORMING AMENDMENT. 24 title 18, United States Code, is amended to read as fol Section 3077(1) of 25 lows: EXT-18-2091-C-000784 007104-001535 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 209 1 ''(1) 'act of terrorism' means an act of domestic 2 or international terrorism as defined in section 3 2331;''. 4 SEC. 804. PROHIBITION AGAINST HARBORING TERRORISTS. (a) IN GENERAL. 5 6 States Chapter 113B of title 18, United Code, is amended by adding after section 2338 the 7 following new section: 8 ''? 2339. Harboring or concealing terrorists ''(a) Whoever harbors or conceals any person who he 9 10 knows, or has reasonable grounds to believe, has com 11 mitted, or is about to commit, an offense under section 12 32 (relating to destruction of aircraft or aircraft facilities), 13 section 175 (relating to biological weapons), section 229 14 (relating 15 nuclear materials), paragraph (2) or (3) of section 844(f) 16 (relating 17 risking 18 ing to the destruction of an energy facility), section 2280 20 2332a to violence against maritime navigation), section (relating to weapons of mass destruction), or sec 2332b (relating to acts of terrorism transcending na 22 tional boundaries) of this title, section 236(a) (relating to 23 sabotage 24 Act to arson and bombing of government property or causing injury or death), section 1366(a) (relat 19 (relating 21 tion to chemical weapons), section 831 (relating to of nuclear facilities or fuel) of the Atomic Energy of 1954 (42 U.S.C. 2284(a)), or section 46502 (relat EXT-18-2091-C-000785 007104-001536 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 210 1 ing to aircraft piracy) of title 49, shall be fined under this 2 title or imprisoned not more than ten years, or both.''. 3 ''(b) A violation of this section may be prosecuted in 4 any Federal judicial district in which the underlying of 5 fense was committed, or in any other Federal judicial dis 6 trict as provided by law.''. 7 (b) TECHNICAL AMENDMENT. 8 for chapter 113B of title 18, United States Code, is 9 amended The chapter analysis by inserting after the item for section 2338 the 10 following: ''2339. Harboring or concealing terrorists.''. 11 SEC. 805. JURISDICTION OVER CRIMES COMMITTED AT U.S. 12 13 FACILITIES ABROAD. Section 7 of title 18, United States Code, is amended 14 by adding at 15 the end the following: ''(9) With respect to offenses committed by or 16 against a United States national, as defined in sec 17 tion 1203(c) of this title 18 ''(A) the premises of United States diplo 19 matic, consular, military or other United States 20 Government missions or entities in foreign 21 States, including the buildings, parts of build 22 ings, and land appurtenant or ancillary thereto 23 or used for purposes of those missions or enti 24 ties, irrespective of ownership; and EXT-18-2091-C-000786 007104-001537 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 211 ''(B) residences in foreign States and the 1 2 land appurtenant or ancillary thereto, irrespec 3 tive of ownership, used for purposes of those 4 missions or entities or used by United States 5 personnel assigned to those missions or entities. 6 Nothing in this paragraph shall be deemed to super 7 sede any treaty or international agreement in force 8 on the date of enactment of this paragraph with 9 which this paragraph conflicts. This paragraph does 10 not apply with respect to an offense committed by 11 a person described in section 3261(a) of this title.''. 12 SEC. 806. MATERIAL SUPPORT FOR TERRORISM. 13 (a) IN GENERAL. 14 States 15 16 17 Section 2339A of title 18, United Code, is amended (1) in subsection (a) (A) by striking '', within the United States,''; 18 (B) by inserting ''229,'' after ''175,''; 19 (C) by inserting ''1993,'' after ''1992,''; 20 (D) by inserting '', section 236 of the 21 Atomic Energy Act of 1954 (42 U.S.C. 2284),'' 22 after ''of this title''; 23 24 (E) by inserting ''or 60123(b)'' after ''46502''; and EXT-18-2091-C-000787 007104-001538 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 212 1 (F) by inserting at the end the following: 2 ''A violation of this section may be prosecuted 3 in any Federal judicial district in which the un 4 derlying offense was committed, or in any other 5 Federal judicial district as provided by law.''; 6 and 7 (2) in subsection (b) (A) by striking ''or other financial securi 8 ties'' and inserting ''or monetary instruments 9 or financial securities''; and 10 (B) by inserting ''expert advice or assist 11 ance,'' after ''training,''. 12 13 (b) TECHNICAL 14 1956(c)(7)(D) AMENDMENT. Section of title 18, United States Code, is amended 15 by inserting ''or 2339B'' after ''2339A''. 16 SEC. 807. ASSETS OF TERRORIST ORGANIZATIONS. 17 Section 981(a)(1) of title 18, United States Code, is 18 amended by inserting at 19 the end the following: ''(G) All assets, foreign or domestic 20 ''(i) of any person, entity, or organization 21 engaged in planning or perpetrating any act of 22 domestic or international terrorism (as defined 23 in section 2331) against the United States, citi 24 zens or residents of the United States, or their 25 property, and all assets, foreign or domestic, af EXT-18-2091-C-000788 007104-001539 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 213 1 fording any person a source of influence over 2 any such entity or organization; ''(ii) acquired or maintained by any person 3 4 for the purpose of supporting, planning, con 5 ducting, or concealing an act of domestic or 6 international terrorism (as defined in section 7 2331) against the United States, citizens or 8 residents of the United States, or their prop 9 erty; or ''(iii) derived from, involved in, or used or 10 11 intended to be used to commit any act of do 12 mestic or international terrorism (as defined in 13 section 2331) against the United States, citi 14 zens or residents of the United States, or their 15 property.''. 16 SEC. 808. TECHNICAL CLARIFICATION RELATING TO PROVI17 SION 18 RORISM. 19 OF MATERIAL SUPPORT TO TER- No provision of the Trade Sanctions Reform and Ex 20 port Enhancement Act of 2000 (title IX of Public Law 21 106 387) shall be construed to limit or otherwise affect 22 section 2339A or 2339B of title 18, United States Code. 23 SEC. 809. DEFINITION OF FEDERAL CRIME OF TERRORISM. 24 25 Section 2332b of title 18, United States Code, is amended EXT-18-2091-C-000789 007104-001540 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 214 1 (1) in subsection (f), by inserting after ''ter 2 rorism'' the following: ''and any violation of section 3 351(e), 844(e), 844(f)(1), 956(b), 1361, 1366(b), 4 1366(c), 1751(e), 2152, or 2156 of this title,'' be 5 fore ''and the Secretary''; and 6 7 8 9 (2) in subsection (g)(5)(B), by striking clauses (i) through (iii) and inserting the following: ''(i) section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relat 10 ing to violence at international airports), 11 81 (relating to arson within special mari 12 time and territorial jurisdiction), 175 or 13 175b (relating to biological weapons), 229 14 (relating to chemical weapons), 351 (a) 15 through (d) (relating to congressional, cab 16 inet, and Supreme Court assassination and 17 kidnaping), 831 (relating to nuclear mate 18 rials), 842(m) or (n) (relating to plastic 19 explosives), 844(f) (2) through (3) (relat 20 ing to arson and bombing of Government 21 property risking or causing death), 844(i) 22 (relating to arson and bombing of property 23 used in interstate commerce), 930(c) (re 24 lating to killing or attempted killing during 25 an attack on a Federal facility with a dan EXT-18-2091-C-000790 007104-001541 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 215 1 gerous weapon), 956(a)(1) (relating to con 2 spiracy to murder, kidnap, or maim within 3 special maritime and territorial jurisdiction 4 of the United States), 1030(a)(1) (relating 5 to 6 1030(a)(5)(A)(i) resulting in damage as 7 defined in 1030(a)(5)(B)(ii) through (v) 8 (relating to protection of computers), 1114 9 (relating to killing or attempted killing of 10 officers and employees of the United 11 States), 1116 (relating to murder or man 12 slaughter 13 guests, or internationally protected per 14 sons), 1203 (relating to hostage taking), 15 1362 (relating to destruction of commu 16 nication lines, stations, or systems), 1363 17 (relating to injury to buildings or property 18 within special maritime and territorial ju 19 risdiction of the United States), 1366(a) 20 (relating to destruction of an energy facil 21 ity), 1751 (a) through (d) (relating to 22 Presidential and Presidential staff assas 23 sination and kidnaping), 1992 (relating to 24 wrecking trains), 1993 (relating to ter 25 rorist attacks and other acts of violence protection of foreign of computers), officials, official EXT-18-2091-C-000791 007104-001542 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 216 1 against mass transportation systems), 2 2155 (relating to destruction of national 3 defense materials, premises, or utilities), 4 2280 (relating to violence against maritime 5 navigation), 2281 (relating to violence 6 against maritime fixed platforms), 2332 7 (relating to certain homicides and other vi 8 olence against United States nationals oc 9 curring outside of the United States), 10 2332a (relating to use of weapons of mass 11 destruction), 2332b (relating to acts of ter 12 rorism transcending national boundaries), 13 2339 (relating to harboring terrorists), 14 2339A (relating to providing material sup 15 port to terrorists), 2339B (relating to pro 16 viding material support to terrorist organi 17 zations), or 2340A (relating to torture) of 18 this title; 19 ''(ii) section 236 (relating to sabotage 20 of nuclear facilities or fuel) of the Atomic 21 Energy Act of 1954 (42 U.S.C. 2284); or 22 ''(iii) section 46502 (relating to air 23 craft piracy), the second sentence of sec 24 tion 46504 (relating to assault on a flight 25 crew with a dangerous weapon), section EXT-18-2091-C-000792 007104-001543 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 217 1 46505(b)(3) or (c) (relating to explosive or 2 incendiary devices, or endangerment of 3 human life by means of weapons, on air 4 craft), section 46506 if homicide or at 5 tempted homicide is involved (relating to 6 application of certain criminal laws to acts 7 on aircraft), or section 60123(b) (relating 8 to destruction of interstate gas or haz 9 ardous liquid pipeline facility) of title 49.''. 10 SEC. 810. NO STATUTE OF LIMITATION FOR CERTAIN TER11 12 13 RORISM OFFENSES. (a) IN GENERAL. Section 3286 of title 18, United States Code, is amended to read as follows: 14 ''? 3286. Extension of statute of limitation for certain 15 16 terrorism offenses. ''(a) E IGHT YEAR LIMITATION. Notwithstanding 17 section 3282, no person shall be prosecuted, tried, or pun 18 ished for any noncapital offense involving a violation of 19 any provision listed in section 2332b(g)(5)(B) other than 20 a provision listed in section 3295, or a violation of section 21 112, 351(e), 1361, or 1751(e) of this title, or section 22 46504, 46505, or 46506 of title 49, unless the indictment 23 is found or the information is instituted within 8 years 24 after the offense was committed. EXT-18-2091-C-000793 007104-001544 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 218 . Notwithstanding any other ''(b) NO LIMITATION 1 2 law, an indictment may be found or an information insti 3 tuted at any time without limitation for any offense listed 4 in section 2332b(g)(5)(B), if the commission of such of 5 fense resulted in, or created a forseeable risk of, death 6 or serious bodily injury to another person.''. (b) APPLICATION. 7 The amendments made by this 8 section shall apply to the prosecution of any offense com 9 mitted before, on, or after the date of enactment of this 10 section. 11 SEC. 811. ALTERNATE MAXIMUM PENALTIES FOR TER12 RORISM OFFENSES. (a) ARSON. 13 Section 81 of title 18, United States 14 Code, is amended in the second undesignated paragraph 15 by striking ''not more than twenty years'' and inserting 16 ''for any term of years or for life''. 17 (b) DESTRUCTION 18 tion 1366 of title 18, United States Code, is amended Sec serting ''20''; and 20 (2) by adding at the end the following: 21 ''(d) Whoever is convicted of a violation of subsection 22 or (b) that has resulted in the death of any person 24 shall 25 ENERGY FACILITY. (1) in subsection (a), by striking ''ten'' and in 19 23 (a) OF AN be subject to imprisonment for any term of years or life.''. EXT-18-2091-C-000794 007104-001545 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 219 (c) MATERIAL SUPPORT 1 2 TO TERRORISTS. Section 2339A(a) of title 18, United States Code, is amended 3 (1) by striking ''10'' and inserting ''15''; and 4 (2) by striking the period and inserting ''and, 5 if the death of any person results, shall be impris 6 oned for any term of years or for life.''. 7 (d) MATERIAL SUPPORT 8 TERRORIST 9 title ORGANIZATIONS. TO DESIGNATED FOREIGN Section 2339B(a)(1) of 18, United States Code, is amended 10 (1) by striking ''10'' and inserting ''15''; and 11 (2) by striking the period after ''or both'' and 12 inserting ''and, if the death of any person results, 13 shall be imprisoned for any term of years or for 14 life.''. 15 (e) DESTRUCTION 16 RIALS. 17 is OF NATIONAL DEFENSE MATE Section 2155(a) of title 18, United States Code, amended 18 (1) by striking ''ten'' and inserting ''20''; and 19 (2) by striking the period at the end and insert 20 ing '', and, if death results to any person, shall be 21 imprisoned for any term of years or for life.''. 22 (f) SABOTAGE 23 Section 24 2284), OF NUCLEAR FACILITIES OR FUEL. 236 of the Atomic Energy Act of 1954 (42 U.S.C. is amended EXT-18-2091-C-000795 007104-001546 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 220 (1) by striking ''ten'' each place it appears and 1 inserting ''20''; 2 3 (2) in subsection (a), by striking the period at 4 the end and inserting '', and, if death results to any 5 person, shall be imprisoned for any term of years or 6 for life.''; and 7 (3) in subsection (b), by striking the period at 8 the end and inserting '', and, if death results to any 9 person, shall be imprisoned for any term of years or 10 for life.''. 11 (g) SPECIAL AIRCRAFT JURISDICTION 12 UNITED STATES. 13 States Code, is amended OF THE Section 46505(c) of title 49, United 14 (1) by striking ''15'' and inserting ''20''; and 15 (2) by striking the period at the end and insert 16 ing '', and, if death results to any person, shall be 17 imprisoned for any term of years or for life.''. 18 (h) DAMAGING OR DESTROYING AN INTERSTATE GAS 19 OR 20 HAZARDOUS LIQUID PIPELINE FACILITY. Section 60123(b) of title 49, United States Code, is amended 21 (1) by striking ''15'' and inserting ''20''; and 22 (2) by striking the period at the end and insert 23 ing '', and, if death results to any person, shall be 24 imprisoned for any term of years or for life.''. EXT-18-2091-C-000796 007104-001547 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 221 1 SEC. 812. PENALTIES FOR TERRORIST CONSPIRACIES. 2 (a) ARSON. 3 Code, is amended in the first undesignated paragraph burn''; and (2) by inserting ''or attempts or conspires to do 6 7 such an act,'' before ''shall be imprisoned''. 8 (b) KILLINGS IN FEDERAL FACILITIES. (1) Section 930(c) of title 18, United States 9 10 (1) by striking '', or attempts to set fire to or 4 5 Section 81 of title 18, United States Code, is amended 11 (A) by striking ''or attempts to kill''; 12 (B) by inserting ''or attempts or conspires 13 to do such an act,'' before ''shall be punished''; 14 and (C) by striking ''and 1113'' and inserting 15 16 ''1113, and 1117''. 17 (2) Section 1117 of title 18, United States 18 Code, is amended by inserting ''930(c),'' after ''sec 19 tion''. 20 (c) COMMUNICATIONS LINES, STATIONS, 21 TEMS. 24 25 26 SYS Section 1362 of title 18, United States Code, is 22 amended in 23 OR the first undesignated paragraph (1) by striking ''or attempts willfully or mali ciously to injure or destroy''; and (2) by inserting ''or attempts or conspires to do such an act,'' before ''shall be fined''. EXT-18-2091-C-000797 007104-001548 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 222 (d) BUILDINGS 1 OR PROPERTY WITHIN SPECIAL 2 MARITIME 3 1363 of title 18, United States Code, is amended AND TERRITORIAL JURISDICTION. Section (1) by striking ''or attempts to destroy or in 4 jure''; and 5 6 (2) by inserting ''or attempts or conspires to do 7 such an act,'' before ''shall be fined'' the first place 8 it appears. 9 (e) WRECKING TRAINS. 10 United Section 1992 of title 18, States Code, is amended by adding at the end the 11 following: ''(c) A person who conspires to commit any offense 12 13 defined 14 alties in this section shall be subject to the same pen (other than the penalty of death) as the penalties 15 prescribed 16 the for the offense, the commission of which was object of the conspiracy.''. 17 (f) MATERIAL SUPPORT TO TERRORISTS. Section 18 2339A of title 18, United States Code, is amended by in 19 serting ''or attempts or conspires to do such an act,'' be 20 fore ''shall be fined''. 21 (g) TORTURE. 22 States Section 2340A of title 18, United Code, is amended by adding at the end the fol 23 lowing: 24 ''(c) CONSPIRACY. 25 mit an offense under this section shall be subject to the A person who conspires to com EXT-18-2091-C-000798 007104-001549 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 223 1 same penalties (other than the penalty of death) as the 2 penalties prescribed for the offense, the commission of 3 which was the object of the conspiracy.''. (h) SABOTAGE 4 OF NUCLEAR FACILITIES OR FUEL. 5 Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 6 2284), is amended (1) in subsection (a) 7 8 (A) by striking '', or who intentionally and 9 willfully attempts to destroy or cause physical damage to''; 10 (B) in paragraph (4), by striking the pe 11 riod at the end and inserting a comma; and 12 13 (C) by inserting ''or attempts or conspires 14 to do such an act,'' before ''shall be fined''; and 15 (2) in subsection (b) (A) by striking ''or attempts to cause''; 16 and 17 (B) by inserting ''or attempts or conspires 18 to do such an act,'' before ''shall be fined''. 19 (i) INTERFERENCE 20 21 AND ATTENDANTS. WITH FLIGHT CREW MEMBERS Section 46504 of title 49, United 22 States Code, is amended by inserting ''or attempts or con 23 spires to do such an act,'' before ''shall be fined''. 24 (j) SPECIAL AIRCRAFT JURISDICTION 25 UNITED STATES. OF THE Section 46505 of title 49, United EXT-18-2091-C-000799 007104-001550 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 224 1 States Code, is amended by adding at the end the fol 2 lowing: ''(e) CONSPIRACY. 3 If two or more persons conspire 4 to violate subsection (b) or (c), and one or more of such 5 persons do any act to effect the object of the conspiracy, 6 each of the parties to such conspiracy shall be punished 7 as provided in such subsection.''. 8 9 OR (k) DAMAGING OR DESTROYING AN INTERSTATE GAS HAZARDOUS LIQUID PIPELINE FACILITY. 10 60123(b) destroy,''; and (2) by inserting '', or attempting or conspiring 13 14 of title 49, United States Code, is amended (1) by striking '', or attempting to damage or 11 12 Section to do such an act,'' before ''shall be fined''. 15 SEC. 813. POST-RELEASE SUPERVISION OF TERRORISTS. 16 Section 3583 of title 18, United States Code, is 17 amended by adding at 18 ''(j) SUPERVISED RELEASE TERMS 19 PREDICATES. 20 thorized 21 in the end the following: FOR TERRORISM Notwithstanding subsection (b), the au term of supervised release for any offense listed section 2332b(g)(5)(B), the commission of which re 22 sulted in, or created a foreseeable risk of, death or serious 23 bodily injury to another person, is any term of years or 24 life.''. EXT-18-2091-C-000800 007104-001551 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 225 1 SEC. 814. INCLUSION OF ACTS OF TERRORISM AS RACKET2 EERING ACTIVITY. Section 1961(1) of title 18, United States Code, is 3 4 amended (1) by striking ''or (F)'' and inserting ''(F)''; 5 and 6 7 (2) by inserting before the semicolon at the end 8 the following: '', or (G) any act that is indictable as 9 an offense listed in section 2332b(g)(5)(B)''. 10 SEC. 815. 11 12 DETERRENCE AND PREVENTION OF CYBERTERRORISM. (a) CLARIFICATION 13 COMPUTERS. 14 States Code, is amended OF PROTECTION OF PROTECTED Section 1030(a)(5) of title 18, United 15 (1) by inserting ''(i)'' after (A)''; 16 (2) by redesignating subparagraphs (B) and 17 18 19 20 21 (C) as clauses (ii) and (iii), respectively; (3) by adding ''and'' at the end of clause (iii), as so redesignated; and (4) by adding at the end the following: ''(B) caused (or, in the case of an at 22 tempted offense, would, if completed, have 23 caused) conduct described in clause (i), (ii), or 24 (iii) of subparagraph (A) that resulted in 25 ''(i) loss to 1 or more persons during 26 any 1 year period (including loss resulting EXT-18-2091-C-000801 007104-001552 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 226 1 from a related course of conduct affecting 2 1 or more other protected computers) ag 3 gregating at least $5,000 in value; 4 ''(ii) the modification or impairment, 5 or potential modification or impairment, of 6 the medical examination, diagnosis, treat 7 ment, or care of 1 or more individuals; 8 ''(iii) physical injury to any person; 9 ''(iv) a threat to public health or safe ty; or 10 ''(v) damage affecting a computer sys 11 12 tem used by or for a Government entity in 13 furtherance of the administration of jus 14 tice, national defense, or national secu 15 rity;''. 16 (b) PENALTIES. 17 States 18 19 20 21 22 23 24 Section 1030(c) of title 18, United Code is amended (1) in paragraph (2) (A) in subparagraph (A) (i) by inserting ''except as provided in subparagraph (B),'' before ''a fine''; (ii) by striking ''(a)(5)(C)'' and in serting ''(a)(5)(A)(iii)''; and (iii) by striking ''and' at the end; EXT-18-2091-C-000802 007104-001553 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 227 1 (B) in subparagraph (B), by inserting ''or 2 an attempt to commit an offense punishable 3 under this subparagraph,'' after ''subsection 4 (a)(2),'' in the matter preceding clause (i); and 5 (C) in subparagraph (C), by striking 6 ''and'' at the end; 7 (2) in paragraph (3) 8 9 (A) by striking '', (a)(5)(A), (a)(5)(B),'' both places it appears; and 10 (B) by striking ''and'' at the end; and 11 (3) by striking ''(a)(5)(C)'' and inserting 12 13 14 ''(a)(5)(A)(iii)''; and (4) by adding at the end the following new paragraphs: 15 ''(4)(A) a fine under this title, imprisonment 16 for not more than 10 years, or both, in the case of 17 an offense under subsection (a)(5)(A)(i), or an at 18 tempt to commit an offense punishable under that 19 subsection; 20 ''(B) a fine under this title, imprisonment 21 for not more than 5 years, or both, in the case 22 of an offense under subsection (a)(5)(A)(ii), or 23 an attempt to commit an offense punishable 24 under that subsection; EXT-18-2091-C-000803 007104-001554 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 228 1 ''(C) a fine under this title, imprisonment 2 for not more than 20 years, or both, in the case 3 of an offense under subsection (a)(5)(A)(i) or 4 (a)(5)(A)(ii), or an attempt to commit an of 5 fense punishable under either subsection, that 6 occurs after a conviction for another offense 7 under this section.''. 8 (c) DEFINITIONS. 9 title 18, United States Code is amended 10 Subsection (e) of section 1030 of (1) in paragraph (2)(B), by inserting '', includ 11 ing a computer located outside the United States'' 12 before the semicolon; 13 14 15 16 (2) in paragraph (7), by striking ''and'' at the end; (3) by striking paragraph (8) and inserting the following new paragraph (8): 17 ''(8) the term 'damage' means any impairment 18 to the integrity or availability of data, a program, a 19 system, or information;''; 20 21 22 23 24 25 (4) in paragraph (9), by striking the period at the end and inserting a semicolon; and (5) by adding at the end the following new paragraphs: ''(10) the term 'conviction' shall include a con viction under the law of any State for a crime pun EXT-18-2091-C-000804 007104-001555 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 229 1 ishable by imprisonment for more than 1 year, an 2 element of which is unauthorized access, or exceed 3 ing authorized access, to a computer; 4 ''(11) the term 'loss' includes any reasonable 5 cost to any victim, including the cost of responding 6 to an offense, conducting a damage assessment, and 7 restoring the data, program, system, or information 8 to its condition prior to the offense, and any revenue 9 lost, cost incurred, or other consequential damages 10 incurred because of interruption of service; 11 ''(12) the term 'person' means any individual, 12 firm, corporation, educational institution, financial 13 institution, governmental entity, or legal or other en 14 tity;''. 15 (d) DAMAGES 16 section IN CIVIL ACTIONS. Subsection (g) of 1030 of title 18, United States Code is amended 17 (1) by striking the second sentence and insert 18 ing the following new sentences: ''A suit for a viola 19 tion of subsection (a)(5) may be brought only if the 20 conduct involves one of the factors enumerated in 21 subsection (a)(5)(B). Damages for a violation involv 22 ing only conduct described in subsection (a)(5)(B)(i) 23 are limited to economic damages.''; and 24 25 (2) by adding at the end the following: ''No ac tion may be brought under this subsection for the EXT-18-2091-C-000805 007104-001556 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 230 1 negligent design or manufacture of computer hard 2 ware, computer software, or firmware.''. 3 (e) AMENDMENT 4 LATING TO OF SENTENCING GUIDELINES RE CERTAIN COMPUTER FRAUD AND ABUSE. 5 Pursuant to its authority under section 994(p) of title 28, 6 United States Code, the United States Sentencing Com 7 mission shall amend the Federal sentencing guidelines to 8 ensure that any individual convicted of a violation of sec 9 tion 1030 of title 18, United States Code, can be subjected 10 to appropriate penalties, without regard to any mandatory 11 minimum term of imprisonment. 12 SEC. 816. ADDITIONAL DEFENSE TO CIVIL ACTIONS RELAT13 ING TO PRESERVING RECORDS IN RESPONSE 14 TO GOVERNMENT REQUESTS. 15 Section 2707(e)(1) of title 18, United States Code, 16 is amended by inserting after ''or statutory authorization'' 17 the following: ''(including a request of a governmental en 18 tity under section 2703(f) of this title)''. 19 SEC. 817. 20 DEVELOPMENT AND SUPPORT OF CYBERSECURITY FORENSIC CAPABILITIES. 21 (a) IN GENERAL . The Attorney General shall estab 22 lish such regional computer forensic laboratories as the 23 Attorney 24 General considers appropriate, and provide sup port to existing computer forensic laboratories, in order EXT-18-2091-C-000806 007104-001557 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 231 1 that all such computer forensic laboratories have the 2 capability 3 (1) to provide forensic examinations with re 4 spect to seized or intercepted computer evidence re 5 lating to criminal activity (including cyberterrorism); 6 (2) to provide training and education for Fed 7 eral, State, and local law enforcement personnel and 8 prosecutors regarding investigations, forensic anal 9 yses, and prosecutions of computer related crime (in 10 11 cluding cyberterrorism); (3) to assist Federal, State, and local law en 12 forcement in enforcing Federal, State, and local 13 criminal laws relating to computer related crime; 14 (4) to facilitate and promote the sharing of 15 Federal law enforcement expertise and information 16 about the investigation, analysis, and prosecution of 17 computer related crime with State and local law en 18 forcement personnel and prosecutors, including the 19 use of multijurisdictional task forces; and 20 (5) to carry out such other activities as the At 21 torney General considers appropriate. 22 (b) AUTHORIZATION OF APPROPRIATIONS. 23 24 (1) AUTHORIZATION. There is hereby author ized to be appropriated in each fiscal year EXT-18-2091-C-000807 007104-001558 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 232 1 $50,000,000 for purposes of carrying out this sec 2 tion. 3 (2) AVAILABILITY. Amounts appropriated pur 4 suant to the authorization of appropriations in para 5 graph (1) shall remain available until expended. TITLE IX--IMPROVED INTELLIGENCE 6 7 8 SEC. 901. RESPONSIBILITIES OF DIRECTOR OF CENTRAL 9 INTELLIGENCE REGARDING FOREIGN INTEL- 10 LIGENCE COLLECTED UNDER FOREIGN IN- 11 TELLIGENCE SURVEILLANCE ACT OF 1978. 12 13 14 15 16 17 Section 103(c) of the National Security Act of 1947 (50 U.S.C. 403 3(c)) is amended (1) by redesignating paragraphs (6) and (7) as paragraphs (7) and (8), respectively; and (2) by inserting after paragraph (5) the fol lowing new paragraph (6): 18 ''(6) establish requirements and priorities for 19 foreign intelligence information to be collected under 20 the Foreign Intelligence Surveillance Act of 1978 21 (50 U.S.C. 1801 et seq.), and provide assistance to 22 the Attorney General to ensure that information de 23 rived 24 searches under that Act is disseminated so it may be 25 used efficiently and effectively for foreign intel from electronic surveillance or physical EXT-18-2091-C-000808 007104-001559 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 233 1 ligence purposes, except that the Director shall have 2 no authority to direct, manage, or undertake elec 3 tronic surveillance operations pursuant to that Act 4 unless otherwise authorized by statute or executive 5 order;''. 6 SEC. 902. INCLUSION OF INTERNATIONAL TERRORIST AC7 TIVITIES WITHIN SCOPE OF FOREIGN INTEL- 8 LIGENCE UNDER NATIONAL SECURITY ACT 9 OF 1947. 10 11 Section 3 of the National Security Act of 1947 (50 U.S.C. 401a) is amended 12 (1) in paragraph (2), by inserting before the pe 13 riod the following: '', or international terrorist activi 14 ties''; and 15 (2) in paragraph (3), by striking ''and activities 16 conducted'' and inserting '', and activities con 17 ducted,''. 18 SEC. 903. SENSE OF CONGRESS ON THE ESTABLISHMENT 19 AND MAINTENANCE OF INTELLIGENCE RELA- 20 TIONSHIPS TO ACQUIRE INFORMATION ON 21 TERRORISTS 22 TIONS. AND TERRORIST ORGANIZA- 23 It is the sense of Congress that officers and employ 24 ees of the intelligence community of the Federal Govern 25 ment, acting within the course of their official duties, EXT-18-2091-C-000809 007104-001560 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 234 1 should be encouraged, and should make every effort, to 2 establish and maintain intelligence relationships with any 3 person, entity, or group for the purpose of engaging in 4 lawful intelligence activities, including the acquisition of 5 information on the identity, location, finances, affiliations, 6 capabilities, plans, or intentions of a terrorist or terrorist 7 organization, or information on any other person, entity, 8 or group (including a foreign government) engaged in har 9 boring, comforting, financing, aiding, or assisting a ter 10 rorist or terrorist organization. 11 SEC. 904. TEMPORARY AUTHORITY TO DEFER SUBMITTAL 12 TO 13 LIGENCE AND INTELLIGENCE-RELATED MAT- 14 TERS. 15 CONGRESS OF (a) AUTHORITY TO DEFER. REPORTS ON INTEL- The Secretary of De 16 fense, Attorney General, and Director of Central Intel 17 ligence each may, during the effective period of this sec 18 tion, defer the date of submittal to Congress of any cov 19 ered intelligence report under the jurisdiction of such offi 20 cial until February 1, 2002. 21 (b) COVERED INTELLIGENCE REPORT. Except as 22 provided in subsection (c), for purposes of subsection (a), 23 a covered intelligence report is as follows: 24 25 (1) Any report on intelligence or intelligence re lated activities of the United States Government EXT-18-2091-C-000810 007104-001561 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 235 1 that is required to be submitted to Congress by an 2 element of the intelligence community during the ef 3 fective period of this section. (2) Any report or other matter that is required 4 5 to be submitted to the Select Committee on Intel 6 ligence of the Senate and Permanent Select Com 7 mittee on Intelligence of the House of Representa 8 tives by the Department of Defense or the Depart 9 ment of Justice during the effective period of this 10 section. 11 (c) E XCEPTION 12 poses 13 or 413b) is not a covered intelligence report. (d) NOTICE TO CONGRESS. Upon deferring the date submittal to Congress of a covered intelligence report 17 under 18 mittal subsection (a), the official deferring the date of sub of the covered intelligence report shall submit to 19 Congress 20 port 21 the notice of the deferral. Notice of deferral of a re shall specify the provision of law, if any, under which report would otherwise be submitted to Congress. (e) E XTENSION 23 specified 24 to For pur 503 of the National Security Act of 1947 (50 U.S.C. 15 22 CERTAIN REPORTS. of subsection (a), any report required by section 502 14 413a, 16 of FOR OF DEFERRAL. (1) Each official in subsection (a) may defer the date of submittal Congress of a covered intelligence report under the ju 25 risdiction of such official to a date after February 1, 2002, EXT-18-2091-C-000811 007104-001562 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 236 1 if such official submits to the committees of Congress 2 specified in subsection (b)(2) before February 1, 2002, a 3 certification that preparation and submittal of the covered 4 intelligence report on February 1, 2002, will impede the 5 work of officers or employees who are engaged in 6 counterterrorism 7 8 to activities. (2) A certification under paragraph (1) with respect a covered intelligence report shall specify the date on 9 which the covered intelligence report will be submitted to 10 Congress. 11 (f) E FFECTIVE PERIOD . The effective period of this 12 section 13 ment is the period beginning on the date of the enact of this Act and ending on February 1, 2002. (g) E LEMENT 14 OF THE INTELLIGENCE COMMUNITY 15 DEFINED. In this section, the term ''element of the intel 16 ligence community'' means any element of the intelligence 17 community specified or designated under section 3(4) of 18 the National Security Act of 1947 (50 U.S.C. 401a(4)). 19 SEC. 905. DISCLOSURE TO DIRECTOR OF CENTRAL INTEL20 LIGENCE 21 LATED 22 CRIMINAL INVESTIGATIONS. 23 24 OF FOREIGN INFORMATION (a) IN GENERAL. INTELLIGENCE-RE- WITH RESPECT TO Title I of the National Security Act of 1947 (50 U.S.C. 402 et seq.) is amended EXT-18-2091-C-000812 007104-001563 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 237 (1) by redesignating subsection 105B as section 1 105C; and 2 (2) by inserting after section 105A the fol 3 lowing new section 105B: 4 5 ''DISCLOSURE OF FOREIGN INTELLIGENCE ACQUIRED IN 6 CRIMINAL INVESTIGATIONS; NOTICE OF CRIMINAL 7 INVESTIGATIONS 8 SOURCES 9 ''SEC. 105B. (a) DISCLOSURE 10 LIGENCE . 11 subject 12 head OF FOREIGN OF INTELLIGENCE FOREIGN INTEL (1) Except as otherwise provided by law and to paragraph (2), the Attorney General, or the of any other department or agency of the Federal 13 Government 14 expeditiously 15 ligence, disclose to the Director of Central Intel pursuant to guidelines developed by the Attorney 16 General 17 ligence with law enforcement responsibilities, shall in consultation with the Director, foreign intel acquired by an element of the Department of Jus 18 tice or an element of such department or agency, as the 19 case may be, in the course of a criminal investigation. 20 ''(2) The Attorney General by regulation and in con 21 sultation 22 provide 23 for with the Director of Central Intelligence may for exceptions to the applicability of paragraph (1) one or more classes of foreign intelligence, or foreign 24 intelligence 25 if the with respect to one or more targets or matters, Attorney General determines that disclosure of such 26 foreign intelligence under that paragraph would jeopardize EXT-18-2091-C-000813 007104-001564 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 238 1 an ongoing law enforcement investigation or impair other 2 significant law enforcement interests. ''(b) PROCEDURES FOR NOTICE 3 4 TIGATIONS. 5 enactment 6 sultation 7 develop 8 from 9 of CRIMINAL INVES Not later than 180 days after the date of of this section, the Attorney General, in con with the Director of Central Intelligence, shall guidelines to ensure that after receipt of a report an element of the intelligence community of activity a foreign intelligence source or potential foreign intel 10 ligence source that may warrant investigation as criminal 11 activity, 12 tor the Attorney General provides notice to the Direc of Central Intelligence, within a reasonable period of 13 time, of his intention to commence, or decline to com 14 mence, a criminal investigation of such activity. ''(c) PROCEDURES. 15 16 velop The Attorney General shall de procedures for the administration of this section, in 17 cluding 18 of OF the disclosure of foreign intelligence by elements the Department of Justice, and elements of other de 19 partments and agencies of the Federal Government, under 20 subsection (a) and the provision of notice with respect to 21 criminal (b) CLERICAL AMENDMENT. 22 23 in investigations under subsection (b).''. The table of contents the first section of that Act is amended by striking the 24 item relating to section 105B and inserting the following 25 new items: EXT-18-2091-C-000814 007104-001565 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 239 ''Sec. 105B. Disclosure of foreign intelligence acquired in criminal investiga tions; notice of criminal investigations of foreign intelligence sources. ''Sec. 105C. Protection of the operational files of the National Imagery and Mapping Agency.''. 1 SEC. 906. FOREIGN TERRORIST ASSET TRACKING CENTER. (a) REPORT 2 3 February 4 Central ON RECONFIGURATION. Not later than 1, 2002, the Attorney General, the Director of Intelligence, and the Secretary of the Treasury 5 shall jointly submit to Congress a report on the feasibility 6 and desirability of reconfiguring the Foreign Terrorist 7 Asset Tracking Center and the Office of Foreign Assets 8 Control of the Department of the Treasury in order to 9 establish 10 cient a capability to provide for the effective and effi analysis and dissemination of foreign intelligence re 11 lating to the financial capabilities and resources of inter 12 national terrorist organizations. (b) REPORT REQUIREMENTS. 13 14 report under subsection (a), the Attorney General, the 15 Secretary, 16 to (1) In preparing the and the Director shall consider whether, and what extent, the capacities and resources of the Finan 17 cial Crimes Enforcement Center of the Department of the 18 Treasury may be integrated into the capability con 19 templated by the 20 report. (2) If the Attorney General, Secretary, and the Direc 21 tor determine that it is feasible and desirable to undertake 22 the reconfiguration described in subsection (a) in order to 23 establish the capability described in that subsection, the EXT-18-2091-C-000815 007104-001566 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 240 1 Attorney 2 include General, the Secretary, and the Director shall with the report under that subsection a detailed 3 proposal for legislation to achieve the reconfiguration. 4 SEC. 907. NATIONAL VIRTUAL TRANSLATION CENTER. (a) REPORT 5 6 than ESTABLISHMENT. (1) Not later February 1, 2002, the Director of Central Intel 7 ligence 8 eral shall, in consultation with the Director of the Fed Bureau of Investigation, submit to the appropriate 9 committees of Congress a report on the establishment and 10 maintenance 11 ment within the intelligence community of an ele for purposes of providing timely and accurate trans 12 lations of foreign intelligence for all other elements of the 13 intelligence 14 be ON community. In the report, the element shall referred to as the ''National Virtual Translation Cen 15 ter''. 16 17 (1) (2) The report on the element described in paragraph shall discuss the use of state of the art communica 18 tions technology, the integration of existing translation ca 19 pabilities in the intelligence community, and the utilization 20 of remote connection capacities so as to minimize the need 21 for 22 a central physical facility for the element. (b) RESOURCES. 23 by subsection The report on the element required (a) shall address the following: 24 (1) The assignment to the element of a staff of 25 individuals possessing a broad range of linguistic EXT-18-2091-C-000816 007104-001567 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 241 1 and translation skills appropriate for the purposes of 2 the element. 3 (2) The provision to the element of communica 4 tions capabilities and systems that are commensu 5 rate with the most current and sophisticated com 6 munications capabilities and systems available to 7 other elements of intelligence community. 8 (3) The assurance, to the maximum extent 9 practicable, that the communications capabilities and 10 systems provided to the element will be compatible 11 with communications capabilities and systems uti 12 lized by the Federal Bureau of Investigation in se 13 curing timely and accurate translations of foreign 14 language materials for law enforcement investiga 15 tions. (4) The development of a communications in 16 17 frastructure to ensure the efficient and secure use of 18 the translation capabilities of the element. 19 (c) SECURE COMMUNICATIONS. 20 clude a discussion of the creation of secure electronic com 21 munications 22 (a) 23 24 25 The report shall in between the element described by subsection and the other elements of the intelligence community. (d) DEFINITIONS. (1) FOREIGN In this section: INTELLIGENCE. The term ''for eign intelligence'' has the meaning given that term EXT-18-2091-C-000817 007104-001568 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 242 1 in section 3(2) of the National Security Act of 1947 2 (50 U.S.C. 401a(2)). 3 (2) ELEMENT OF THE INTELLIGENCE COMMU 4 NITY. The term ''element of the intelligence com 5 munity'' means any element of the intelligence com 6 munity specified or designated under section 3(4) of 7 the National Security Act of 1947 (50 U.S.C. 8 401a(4)). 9 SEC. 908. TRAINING OF GOVERNMENT OFFICIALS REGARD10 ING IDENTIFICATION AND USE OF FOREIGN 11 INTELLIGENCE. 12 (a) PROGRAM REQUIRED. The Attorney General 13 shall, in consultation with the Director of Central Intel 14 ligence, carry out a program to provide appropriate train 15 ing to officials described in subsection (b) in order to as 16 sist such officials in 17 18 19 (1) identifying foreign intelligence information in the course of their duties; and (2) utilizing foreign intelligence information in 20 the course of their duties, to the extent that the uti 21 lization of such information is appropriate for such 22 duties. 23 (b) OFFICIALS. The officials provided training 24 under subsection (a) are, at the discretion of the Attorney 25 General and the Director, the following: EXT-18-2091-C-000818 007104-001569 Document ID: 0.7.19343.6177-000001 S.L.C. O:\JEN\JEN01.933 243 (1) Officials of the Federal Government who 1 2 are not ordinarily engaged in the collection, dissemi 3 nation, and use of foreign intelligence in the per 4 formance of their duties. 5 (2) Officials of State and local governments 6 who encounter, or may encounter in the course of a 7 terrorist event, foreign intelligence in the perform 8 ance of their duties. 9 (c) AUTHORIZATION 10 hereby OF APPROPRIATIONS. There is authorized to be appropriated for the Department 11 of Justice such sums as may be necessary for purposes 12 of carrying out the program required by subsection (a). EXT-18-2091-C-000819 007104-001570 Document ID: 0.7.19343.6177-000001 H.L.C. F:\MDB\MDB.964 COMMITTEE AMENDMENT SUBSTITUTE ?AS TO IN THE NATURE H.R. 2975 ORDERED REPORTED FROM THE ON THE JUDICIARY OF A ON 3 COMMITTEE OCTOBER 2001 ? Strike all after the enacting clause and insert the following: 1 SECTION 1. SHORT TITLE. 2 This Act may be cited as the ''Provide Appropriate 3 Tools Required to Intercept and Obstruct Terrorism (PA4 TRIOT) Act of 2001''. 5 SEC. 2. TABLE OF CONTENTS. 6 The following is the table of contents for this Act: Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Construction; severability. TITLE I INTELLIGENCE GATHERING Subtitle A Electronic Surveillance *100501.0B6* Sec. 101. Modification of authorities relating to use of pen registers and trap and trace devices. Sec. 102. Seizure of voice mail messages pursuant to warrants. Sec. 103. Authorized disclosure. Sec. 104. Savings provision. Sec. 105. Interception of computer trespasser communications. Sec. 106. Technical amendment. Sec. 107. Scope of subpoenas for records of electronic communications. Sec. 108. Nationwide service of search warrants for electronic evidence. Sec. 109. Clarification of scope. Sec. 110. Emergency disclosure of electronic communications to protect life and limb. Sec. 111. Use as evidence. Sec. 112. Reports concerning the disclosure of the contents of electronic com munications. Subtitle B Foreign Intelligence Surveillance and Other Information Sec. 151. Period of orders of electronic surveillance of non United States per sons under foreign intelligence surveillance. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000820 007104-001571 H.L.C. F:\MDB\MDB.964 2 Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. Multi point authority. Foreign intelligence information. Foreign intelligence information sharing. Pen register and trap and trace authority. Business records. Miscellaneous national security authorities. Proposed legislation. Presidential authority. Clarification of no technology mandates. Civil liability for certain unauthorized disclosures. Sunset. TITLE II ALIENS ENGAGING IN TERRORIST ACTIVITY Subtitle A Detention and Removal of Aliens Engaging in Terrorist Activity Sec. 201. Changes in classes of aliens who are ineligible for admission and de portable due to terrorist activity. Sec. 202. Changes in designation of foreign terrorist organizations. Sec. 203. Mandatory detention of suspected terrorists; habeas corpus; judicial review. Sec. 204. Changes in conditions for granting asylum. Sec. 205. Multilateral cooperation against terrorists. Sec. 206. Requiring sharing by the Federal bureau of investigation of certain criminal record extracts with other Federal agencies in order to enhance border security. Sec. 207. Inadmissibility of aliens engaged in money laundering. Sec. 208. Program to collect information relating to nonimmigrant foreign stu dents and other exchange program participants. Sec. 209. Protection of northern border. Subtitle B Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 211. 212. 213. 214. 215. 216. 217. 218. Preservation of Immigration Benefits for Victims of Terrorism Special immigrant status. Extension of filing or reentry deadlines. Humanitarian relief for certain surviving spouses and children. ''Age out'' protection for children. Temporary administrative relief. Evidence of death, disability, or loss of employment. No benefits to terrorists or family members of terrorists. Definitions. TITLE III CRIMINAL JUSTICE Subtitle A Substantive Criminal Law *100501.0B6* Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 301. 302. 303. 304. 305. 306. 307. 308. 309. 310. Statute of limitation for prosecuting terrorism offenses. Alternative maximum penalties for terrorism crimes. Penalties for terrorist conspiracies. Terrorism crimes as rico predicates. Biological weapons. Support of terrorism through expert advice or assistance. Prohibition against harboring. Post release supervision of terrorists. Definition. Civil damages. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000821 007104-001572 H.L.C. F:\MDB\MDB.964 3 Subtitle B Sec. Sec. Sec. Sec. Sec. Sec. 351. 352. 353. 354. 355. 356. Criminal Procedure Single jurisdiction search warrants for terrorism. DNA identification of terrorists. Grand jury matters. Extraterritoriality. Jurisdiction over crimes committed at United States facilities abroad. Special agent authorities. TITLE IV FINANCIAL INFRASTRUCTURE Laundering the proceeds of terrorism. Material support for terrorism. Assets of terrorist organizations. Technical clarification relating to provision of material support to ter rorism. Sec. 405. Disclosure of tax information in terrorism and national security in vestigations. Sec. 406. Extraterritorial jurisdiction. Sec. Sec. Sec. Sec. 401. 402. 403. 404. TITLE V EMERGENCY AUTHORIZATIONS Sec. Sec. Sec. Sec. Sec. 501. 502. 503. 504. 505. Office of Justice programs. Attorney General's authority to pay rewards. Limited authority to pay overtime. Department of State reward authority. Authorization of funds for DEA police training in South and Central Asia. Sec. 506. Public safety officer benefits. TITLE VI DAM SECURITY Sec. 601. Security of reclamation dams, facilities, and resources. TITLE VII MISCELLANEOUS Sec. 701. Employment of translators by the Federal Bureau of Investigation. Sec. 702. Review of the Department of Justice. Sec. 703. Feasibility study on use of biometric identifier scanning system with access to the FBI integrated automated fingerprint identifica tion system at overseas consular posts and points of entry to the United States. Sec. 704. Study of access. Sec. 705. Enforcement of certain anti terrorism judgments. TITLE VIII PRIVATE SECURITY OFFICER QUALITY ASSURANCE *100501.0B6* Sec. Sec. Sec. Sec. Sec. 801. 802. 803. 804. 805. Short title. Findings. Background checks. Sense of Congress. Definitions. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000822 007104-001573 H.L.C. F:\MDB\MDB.964 4 1 SEC. 3. CONSTRUCTION; SEVERABILITY. Any provision of this Act held to be invalid or unen- 2 3 forceable by its terms, or as applied to any person or cir4 cumstance, shall be construed so as to give it the max5 imum effect permitted by law, unless such holding shall 6 be one of utter invalidity or unenforceability, in which 7 event such provision shall be deemed severable from this 8 Act and shall not affect the remainder thereof or the appli9 cation of such provision to other persons not similarly situ10 ated or to other, dissimilar circumstances. 13 TITLE I--INTELLIGENCE GATHERING Subtitle A--Electronic Surveillance 14 SEC. 101. MODIFICATION OF AUTHORITIES RELATING TO 15 USE OF PEN REGISTERS AND TRAP AND 16 TRACE DEVICES. 11 12 (a) GENERAL LIMITATION 17 18 MENTAL AGENCIES. 21 *100501.0B6* 22 23 24 USE BY GOVERN- Section 3121(c) of title 18, United 19 States Code, is amended 20 ON (1) by inserting ''or trap and trace device'' after ''pen register''; (2) by inserting '', routing, addressing,'' after ''dialing''; and (3) by striking ''call processing'' and inserting 25 ''the processing and transmitting of wire and elec- 26 tronic communications''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000823 007104-001574 H.L.C. F:\MDB\MDB.964 5 1 2 (b) ISSUANCE OF ORDERS. (1) IN GENERAL. Subsection (a) of section 3 3123 of title 18, United States Code, is amended to 4 read as follows: 5 ''(a) IN GENERAL. *100501.0B6* 6 ''(1) Upon an application made under section 7 3122(a)(1), the court shall enter an ex parte order 8 authorizing the installation and use of a pen register 9 or trap and trace device anywhere within the United 10 States, if the court finds that the attorney for the 11 Government has certified to the court that the infor- 12 mation likely to be obtained by such installation and 13 use is relevant to an ongoing criminal investigation. 14 The order shall, upon service thereof, apply to any 15 person or entity providing wire or electronic commu- 16 nication service in the United States whose assist- 17 ance may facilitate the execution of the order. 18 Whenever such an order is served on any person or 19 entity not specifically named in the order, upon re- 20 quest of such person or entity, the attorney for the 21 Government or law enforcement or investigative offi- 22 cer that is serving the order shall provide written or 23 electronic certification that the assistance of the per- 24 son or entity being served is related to the order. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000824 007104-001575 H.L.C. F:\MDB\MDB.964 6 1 ''(2) Upon an application made under section 2 3122(a)(2), the court shall enter an ex parte order 3 authorizing the installation and use of a pen register 4 or trap and trace device within the jurisdiction of 5 the court, if the court finds that the State law-en- 6 forcement or investigative officer has certified to the 7 court that the information likely to be obtained by 8 such installation and use is relevant to an ongoing 9 criminal investigation.''. 10 (2) CONTENTS OF ORDER. Subsection (b)(1) 11 of section 3123 of title 18, United States Code, is 12 amended 13 14 15 16 (A) in subparagraph (A) (i) by inserting ''or other facility'' after ''telephone line''; and (ii) by inserting before the semicolon 17 at the end ''or applied''; and 18 (B) by striking subparagraph (C) and in- 19 20 serting the following: ''(C) the attributes of the communications *100501.0B6* 21 to which the order applies, including the num- 22 ber or other identifier and, if known, the loca- 23 tion of the telephone line or other facility to 24 which the pen register or trap and trace device 25 is to be attached or applied, and, in the case of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000825 007104-001576 H.L.C. F:\MDB\MDB.964 7 1 an order authorizing installation and use of a 2 trap and trace device under subsection (a)(2), 3 the geographic limits of the order; and''. 4 (3) NONDISCLOSURE REQUIREMENTS. Sub- 5 section (d)(2) of section 3123 of title 18, United 6 States Code, is amended 7 8 (A) by inserting ''or other facility'' after ''the line''; and 9 (B) by striking '', or who has been ordered 10 by the court'' and inserting ''or applied, or who 11 is obligated by the order''. 12 13 (c) DEFINITIONS. (1) COURT OF COMPETENT JURISDICTION. 14 Paragraph (2) of section 3127 of title 18, United 15 States Code, is amended by striking subparagraph 16 (A) and inserting the following: *100501.0B6* 17 ''(A) any district court of the United 18 States (including a magistrate judge of such a 19 court), or any United States court of appeals, 20 having jurisdiction over the offense being inves- 21 tigated; or''. 22 (2) PEN 23 REGISTER. Paragraph (3) of section 3127 of title 18, United States Code, is amended 24 (A) by striking ''electronic or other im- 25 pulses'' and all that follows through ''is at- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000826 007104-001577 H.L.C. F:\MDB\MDB.964 8 1 tached'' and inserting ''dialing, routing, ad- 2 dressing, or signaling information transmitted 3 by an instrument or facility from which a wire 4 or electronic communication is transmitted (but 5 not including the contents of such communica- 6 tion)''; and (B) by inserting ''or process'' after ''de- 7 8 vice'' each place it appears. 9 (3) TRAP AND TRACE DEVICE . Paragraph (4) 10 of section 3127 of title 18, United States Code, is 11 amended (A) by inserting ''or process'' after ''a de- 12 13 vice''; and *100501.0B6* 14 (B) by striking ''of an instrument'' and all 15 that follows through the end and inserting ''or 16 other dialing, routing, addressing, and signaling 17 information reasonably likely to identify the 18 source of a wire or electronic communication 19 (but not including the contents of such commu- 20 nication);''. 21 (4) CONFORMING AMENDMENT. Section 22 3127(1) of title 18, United States Code, is 23 amended 24 (A) by striking ''and''; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000827 007104-001578 H.L.C. F:\MDB\MDB.964 9 (B) by inserting '', and 'contents' '' after 1 '' 'electronic communication service' ''. 2 (d) NO LIABILITY 3 4 VIDERS. FOR INTERNET SERVICE PRO- Section 3124(d) of title 18, United States Code, 5 is amended by striking ''the terms of''. 6 SEC. 102. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT 7 8 9 10 11 12 TO WARRANTS. Title 18, United States Code, is amended (1) in section 2510 (A) in paragraph (1), by striking all the words after ''commerce''; and (B) in paragraph (14), by inserting ''wire 13 or'' after ''transmission of''; and 14 (2) in section 2703 15 (A) in the headings for subsections (a) and 16 (b), by striking ''CONTENTS 17 and inserting ''CONTENTS 18 TRONIC''; OF ELECTRONIC'' OF WIRE OR ELEC- *100501.0B6* 19 (B) in subsection (a), by striking ''contents 20 of an electronic'' and inserting ''contents of a 21 wire or electronic'' each place it appears; and 22 (C) in subsection (b), by striking ''any 23 electronic'' and inserting ''any wire or elec- 24 tronic'' each place it appears. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000828 007104-001579 H.L.C. F:\MDB\MDB.964 10 1 SEC. 103. AUTHORIZED DISCLOSURE. Section 2510(7) of title 18, United States Code, is 2 3 amended by inserting '', and (for purposes only of section 4 2517 as it relates to foreign intelligence information as 5 that term is defined in section 101(e) of the Foreign Intel6 ligence Surveillance Act of 1978 (50 U.S.C. 1801(e)) any 7 Federal law enforcement, intelligence, national security, 8 national defense, protective, immigration personnel, or the 9 President or Vice President of the United States'' after 10 ''such offenses''. 11 SEC. 104. SAVINGS PROVISION. Section 2511(2)(f) of title 18, United States Code, 12 13 is amended (1) by striking ''or chapter 121'' and inserting 14 '', chapter 121, or chapter 206''; and 15 (2) by striking ''wire and oral'' and inserting 16 ''wire, oral, and electronic''. 17 18 SEC. 105. INTERCEPTION OF COMPUTER TRESPASSER COM- 19 20 MUNICATIONS. Chapter 119 of title 18, United States Code, is 21 amended *100501.0B6* 22 23 24 25 26 (1) in section 2510 (A) in paragraph (17), by striking ''and'' at the end; (B) in paragraph (18), by striking the period and inserting a semi-colon; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000829 007104-001580 H.L.C. F:\MDB\MDB.964 11 (C) by adding after paragraph (18) the fol- 1 2 lowing: 3 ''(19) 'protected computer' has the meaning set 4 forth in section 1030; and ''(20) 'computer trespasser' means a person 5 6 who accesses a protected computer without author- 7 ization and thus has no reasonable expectation of 8 privacy in any communication transmitted to, 9 through, or from the protected computer.''; (2) in section 2511(2), by inserting after para- 10 11 graph (h) the following: 12 ''(i) It shall not be unlawful under this chapter for 13 a person acting under color of law to intercept the wire 14 or electronic communications of a computer trespasser, 15 if 16 ''(i) the owner or operator of the protected com- 17 puter authorizes the interception of the computer 18 trespasser's communications on the protected com- 19 puter; 20 21 ''(ii) the person acting under color of law is *100501.0B6* lawfully engaged in an investigation; 22 ''(iii) the person acting under color of law has 23 reasonable grounds to believe that the contents of 24 the computer trespasser's communications will be 25 relevant to the investigation; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000830 007104-001581 H.L.C. F:\MDB\MDB.964 12 ''(iv) such interception does not acquire commu- 1 2 nications other than those transmitted to or from 3 the computer trespasser.''; and (3) in section 2520(d)(3), by inserting ''or 4 5 2511(2)(i)'' after ''2511(3)''. 6 SEC. 106. TECHNICAL AMENDMENT. Section 2518(3)(c) of title 18, United States Code, 7 8 is amended by inserting ''and'' after the semicolon. 9 SEC. 107. SCOPE OF SUBPOENAS FOR RECORDS OF ELEC- 10 11 TRONIC COMMUNICATIONS. Section 2703(c)(1)(C) of title 18, United States 12 Code, is amended 13 (1) by striking ''entity the name, address, local 14 and long distance telephone toll billing records, tele- 15 phone number or other subscriber number or iden- 16 tity, and length of service of a'' and inserting the 17 following: 18 ''entity the *100501.0B6* 19 ''(i) name; 20 ''(ii) address; 21 ''(iii) local and long distance telephone connec- 22 tion records, or records of session times and dura- 23 tions; 24 25 ''(iv) length of service (including start date) and types of service utilized; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000831 007104-001582 H.L.C. F:\MDB\MDB.964 13 ''(v) telephone or instrument number or other 1 2 subscriber number or identity, including any tempo- 3 rarily assigned network address; and ''(vi) means and source of payment (including 4 any credit card or bank account number); 5 6 of a''; and (2) by striking ''and the types of services the 7 8 subscriber or customer utilized,'' after ''of a sub- 9 scriber to or customer of such service''. 10 SEC. 108. NATIONWIDE SERVICE OF SEARCH WARRANTS 11 12 FOR ELECTRONIC EVIDENCE. Chapter 121 of title 18, United States Code, is 13 amended 14 (1) in section 2703, by striking ''under the 15 Federal Rules of Criminal Procedure'' each place it 16 appears and inserting ''using the procedures de- 17 scribed in the Federal Rules of Criminal Procedure 18 by a court with jurisdiction over the offense under 19 investigation''; and 20 (2) in section 2711 *100501.0B6* 21 (A) in paragraph (1), by striking ''and''; 22 (B) in paragraph (2), by striking the pe- 23 24 25 riod and inserting ''; and''; and (C) by adding the following new paragraph at the end: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000832 007104-001583 H.L.C. F:\MDB\MDB.964 14 1 ''(3) the term 'court of competent jurisdiction' 2 has the meaning given that term in section 3127, 3 and includes any Federal court within that defini- 4 tion, without geographic limitation.''. 5 SEC. 109. CLARIFICATION OF SCOPE. Section 2511(2) of title 18, United States Code, as 6 7 amended by section 105(2) of this Act, is further amended 8 by adding at the end the following: ''(j) With respect to a voluntary or obligatory disclo- 9 10 sure of information (other than information revealing cus11 tomer cable viewing activity) under this chapter, chapter 12 121, or chapter 206, subsections (c)(2)(B) and (h) of sec13 tion 631 of the Communications Act of 1934 do not 14 apply.''. 15 SEC. 110. EMERGENCY DISCLOSURE OF ELECTRONIC COM- 16 MUNICATIONS TO PROTECT LIFE AND LIMB. 17 (a) Section 2702 of title 18, United States Code, is 18 amended 19 (1) by amending the heading to read as follows: 20 ''? 2702. Voluntary disclosure of customer commu21 *100501.0B6* 22 23 24 25 nications or records'' ; (2) in subsection (a)(2)(B) by striking the period and inserting ''; and''; (3) in subsection (a), by inserting after paragraph (2) the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000833 007104-001584 H.L.C. F:\MDB\MDB.964 15 1 ''(3) a provider of remote computing service or 2 electronic communication service to the public shall 3 not knowingly divulge a record or other information 4 pertaining to a subscriber to or customer of such 5 service (not including the contents of communica- 6 tions covered by paragraph (1) or (2)) to any gov- 7 ernmental entity.''; 8 9 (4) in subsection (b), by striking ''E XCEPTIONS. A person or entity'' and inserting ''E XCEPDISCLOSURE COMMUNICATIONS. 10 TIONS FOR 11 provider described in subsection (a)''; 12 (5) in subsection (b)(6) (B) in subparagraph (B), by striking the period and inserting ''; or''; (C) by inserting after subparagraph (B) 17 18 ''or''; 15 16 A (A) in subparagraph (A)(ii), by striking 13 14 OF the following: *100501.0B6* 19 ''(C) if the provider reasonably believes 20 that an emergency involving immediate danger 21 of death or serious physical injury to any per- 22 son requires disclosure of the information with- 23 out delay.''; and 24 (6) by inserting after subsection (b) the fol- 25 lowing: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000834 007104-001585 H.L.C. F:\MDB\MDB.964 16 1 ''(c) E XCEPTIONS 2 RECORDS. FOR DISCLOSURE OF CUSTOMER A provider described in subsection (a) may di- 3 vulge a record or other information pertaining to a sub4 scriber to or customer of such service (not including the 5 contents of communications covered by subsection (a)(1) 6 or (a)(2)) 7 ''(1) as otherwise authorized in section 2703; 8 ''(2) with the lawful consent of the customer or 9 subscriber; ''(3) as may be necessarily incident to the ren- 10 11 dition of the service or to the protection of the rights 12 or property of the provider of that service; ''(4) to a governmental entity, if the provider 13 14 reasonably believes that an emergency involving im- 15 mediate danger of death or serious physical injury to 16 any person justifies disclosure of the information; or 17 ''(5) to any person other than a governmental 18 entity.''. 19 (b) Section 2703 of title 18, United States Code, is 20 amended 21 *100501.0B6* (1) so that the section heading reads as follows: 22 ''? 2703. Required disclosure of customer communica23 tions or records''; 24 (2) in subsection (c)(1) October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000835 007104-001586 H.L.C. F:\MDB\MDB.964 17 1 (A) in subparagraph (A), by striking ''Ex- 2 cept'' and all that follows through ''only when'' 3 in subparagraph (B) and inserting ''A govern- 4 mental entity may require a provider of elec- 5 tronic communication service or remote com- 6 puting service to disclose a record or other in- 7 formation pertaining to a subscriber to or cus- 8 tomer of such service (not including the con- 9 tents of communications) only when''; 10 11 (B) by striking ''or'' at the end of clause (iii) of subparagraph (B); 12 (C) by striking the period at the end of 13 clause (iv) of subparagraph (B) and inserting ''; 14 or''; 15 (D) by inserting after clause (iv) of sub- 16 paragraph (B) the following: 17 ''(v) seeks information pursuant to subpara- 18 19 20 21 graph (B).''; (E) in subparagraph (C), by striking ''(B)'' and inserting ''(A)''; and *100501.0B6* (F) by redesignating subparagraph (C) as 22 subparagraph (B); and 23 (3) in subsection (e), by striking ''or certifi- 24 cation'' and inserting ''certification, or statutory au- 25 thorization''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000836 007104-001587 H.L.C. F:\MDB\MDB.964 18 (c) The table of sections at the beginning of chapter 1 2 121 of title 18, United States Code, is amended so that 3 the items relating to sections 2702 through 2703 read as 4 follows: ''2702. ''2703. 5 Voluntary disclosure of customer communications or records. Required disclosure of customer communications or records.''. SEC. 111. USE AS EVIDENCE. 6 (a) IN GENERAL. 7 States Code, is amended 8 9 Section 2515 of title 18, United (1) by striking ''wire or oral'' in the heading and inserting ''wire, oral, or electronic''; 10 (2) by striking ''Whenever any wire or oral 11 communication has been intercepted'' and inserting 12 ''(a) Except as provided in subsection (b), whenever 13 any wire, oral, or electronic communication has been 14 intercepted, or any electronic communication in elec- 15 tronic storage has been disclosed''; 16 17 18 19 (3) by inserting ''or chapter 121'' after ''this chapter''; and (4) by adding at the end the following: ''(b) Subsection (a) does not apply to the disclosure, *100501.0B6* 20 before a grand jury or in a criminal trial, hearing, or other 21 criminal proceeding, of the contents of a communication, 22 or evidence derived therefrom, against a person alleged to 23 have intercepted, used, or disclosed the communication in October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000837 007104-001588 H.L.C. F:\MDB\MDB.964 19 1 violation of this chapter, or chapter 121, or participated 2 in such violation.''. 3 (b) SECTION 2517. Paragraphs (1) and (2) of sec- 4 tion 2517 are each amended by inserting ''or under the 5 circumstances described in section 2515(b)'' after ''by this 6 chapter''. 7 (c) SECTION 2518. 8 States Code, is amended 9 10 11 12 13 Section 2518 of title 18, United (1) in subsection (7), by striking ''subsection (d)'' and inserting ''subsection (8)(d)''; and (2) in subsection (10) (A) in paragraph (a) (i) by striking ''or oral'' each place it 14 appears and inserting '', oral, or elec- 15 tronic''; 16 (ii) by striking the period at the end 17 of clause (iii) and inserting a semicolon; 18 and *100501.0B6* 19 (iii) by inserting ''except that no sup- 20 pression may be ordered under the cir- 21 cumstances described in section 2515(b).'' 22 before ''Such motion''; and 23 (B) by striking paragraph (c). 24 (d) CLERICAL AMENDMENT. The item relating to 25 section 2515 in the table of sections at the beginning of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000838 007104-001589 H.L.C. F:\MDB\MDB.964 20 1 chapter 119 of title 18, United States Code, is amended 2 to read as follows: ''2515. Prohibition of use as evidence of intercepted wire, oral, or electronic communications.''. 3 SEC. 112. REPORTS CONCERNING THE DISCLOSURE OF THE 4 CONTENTS 5 TIONS. OF ELECTRONIC COMMUNICA- Section 2703 of title 18, United States Code, is 6 7 amended by adding at the end the following: ''(g) REPORTS CONCERNING 8 9 THE 10 THE DISCLOSURE CONTENTS OF E LECTRONIC COMMUNICATIONS. OF ''(1) By January 31 of each calendar year, the 11 judge issuing or denying an order, warrant, or sub- 12 poena, or the authority issuing or denying a sub- 13 poena, under subsection (a) or (b) of this section 14 during the preceding calendar year shall report on 15 each such order, warrant, or subpoena to the Ad- 16 ministrative Office of the United States Courts 17 18 19 *100501.0B6* 20 21 ''(A) the fact that the order, warrant, or subpoena was applied for; ''(B) the kind of order, warrant, or subpoena applied for; ''(C) the fact that the order, warrant, or 22 subpoena was granted as applied for, was modi- 23 fied, or was denied; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000839 007104-001590 H.L.C. F:\MDB\MDB.964 21 1 2 3 4 ''(D) the offense specified in the order, warrant, subpoena, or application; ''(E) the identity of the agency making the application; and 5 ''(F) the nature of the facilities from which 6 or the place where the contents of electronic 7 communications were to be disclosed. 8 ''(2) In January of each year the Attorney Gen- 9 eral or an Assistant Attorney General specially des- 10 ignated by the Attorney General shall report to the 11 Administrative Office of the United States Courts 12 ''(A) the information required by subpara- 13 graphs (A) through (F) of paragraph (1) of this 14 subsection with respect to each application for 15 an order, warrant, or subpoena made during 16 the preceding calendar year; and 17 ''(B) a general description of the disclo- 18 sures made under each such order, warrant, or 19 subpoena, including *100501.0B6* 20 ''(i) the approximate number of all 21 communications disclosed and, of those, 22 the approximate number of incriminating 23 communications disclosed; 24 25 ''(ii) the approximate number of other communications disclosed; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000840 007104-001591 H.L.C. F:\MDB\MDB.964 22 1 ''(iii) the approximate number of per- 2 sons whose communications were disclosed. 3 ''(3) In June of each year, beginning in 2003, 4 the Director of the Administrative Office of the 5 United States Courts shall transmit to the Congress 6 a full and complete report concerning the number of 7 applications for orders, warrants, or subpoenas au- 8 thorizing or requiring the disclosure of the contents 9 of electronic communications pursuant to subsections (a) and (b) of this section and the number 11 of orders, warrants, or subpoenas granted or denied 12 pursuant to subsections (a) and (b) of this section 13 during the preceding calendar year. Such report 14 shall include a summary and analysis of the data re- 15 quired to be filed with the Administrative Office by 16 paragraphs (1) and (2) of this subsection. The Di- 17 rector of the Administrative Office of the United 18 States Courts is authorized to issue binding regula- 19 tions dealing with the content and form of the re- 20 ports required to be filed by paragraphs (1) and (2) 21 of this subsection.''. *100501.0B6* 10 October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000841 007104-001592 H.L.C. F:\MDB\MDB.964 23 3 Subtitle B--Foreign Intelligence Surveillance and Other Information 4 SEC. 151. PERIOD OF ORDERS OF ELECTRONIC SURVEIL- 1 2 5 LANCE OF NON-UNITED STATES PERSONS 6 UNDER FOREIGN INTELLIGENCE SURVEIL- 7 LANCE. (a) INCLUDING AGENTS OF 8 A FOREIGN POWER. (1) 9 Section 105(e)(1) of the Foreign Intelligence Surveillance 10 Act of 1978 (50 U.S.C. 1805(e)(1)) is amended by insert11 ing ''or an agent of a foreign power, as defined in section 12 101(b)(1)(A),'' after ''or (3),''. (2) Section 304(d)(1) of such Act (50 U.S.C. 13 14 1824(d)(1)) is amended by inserting ''or an agent of a 15 foreign power, as defined in section 101(b)(1)(A),'' after 16 ''101(a),''. (b) PERIOD 17 OF ORDER. Such section 304(d)(1) is 18 further amended by striking ''forty-five'' and inserting 19 ''90''. 20 SEC. 152. MULTI-POINT AUTHORITY. *100501.0B6* 21 Section 105(c)(2)(B) of the Foreign Intelligence Sur- 22 veillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amend23 ed by inserting '', or, in circumstances where the Court 24 finds that the actions of the target of the electronic sur25 veillance may have the effect of thwarting the identifica- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000842 007104-001593 H.L.C. F:\MDB\MDB.964 24 1 tion of a specified person, such other persons,'' after 2 ''specified person''. 3 SEC. 153. FOREIGN INTELLIGENCE INFORMATION. Sections 104(a)(7)(B) and 303(a)(7)(B) of the For- 4 5 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 6 1804(a)(7)(B), 1823(a)(7)(B)) are each amended by 7 striking ''that the'' and inserting ''that a significant''. 8 SEC. 154. FOREIGN INTELLIGENCE INFORMATION SHAR- 9 ING. It shall be lawful for foreign intelligence information 10 11 (as that term is defined in section 101(e) of the Foreign 12 Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(e)) 13 obtained as part of a criminal investigation (including in14 formation obtained pursuant to chapter 119 of title 18, 15 United States Code) to be provided to any Federal law16 enforcement-, intelligence-, protective-, national-defense, 17 or immigration personnel, or the President or the Vice 18 President of the United States, for the performance of of19 ficial duties. 20 SEC. 155. PEN REGISTER AND TRAP AND TRACE AUTHOR- 21 *100501.0B6* 22 ITY. Section 402(c) of the Foreign Intelligence Surveil- 23 lance Act of 1978 (50 U.S.C. 1842(c)) is amended 24 25 (1) in paragraph (1), by adding ''and'' at the end; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000843 007104-001594 H.L.C. F:\MDB\MDB.964 25 (2) in paragraph (2) 1 (A) by inserting ''from the telephone line 2 3 to which the pen register or trap and trace de- 4 vice is to be attached, or the communication in- 5 strument or device to be covered by the pen 6 register or trap and trace device'' after ''ob- 7 tained''; and (B) by striking ''; and'' and inserting a pe- 8 riod; and 9 (3) by striking paragraph (3). 10 11 SEC. 156. BUSINESS RECORDS. 12 (a) IN GENERAL. Section 501 of the Foreign Intel- 13 ligence Surveillance Act of 1978 (50 U.S.C. 1861) is 14 amended to read as follows: 15 ''ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN 16 INTELLIGENCE AND INTERNATIONAL TERRORISM IN- 17 VESTIGATIONS 18 ''SEC. 501. (a) In any investigation to gather foreign 19 intelligence information or an investigation concerning 20 international terrorism, such investigation being con21 ducted by the Federal Bureau of Investigation under such *100501.0B6* 22 guidelines as the Attorney General may approve pursuant 23 to Executive Order No. 12333 (or a successor order), the 24 Director of the Federal Bureau of Investigation or a des25 ignee of the Director (whose rank shall be no lower than 26 Assistant Special Agent in Charge) may make an applica- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000844 007104-001595 H.L.C. F:\MDB\MDB.964 26 1 tion for an order requiring the production of any tangible 2 things (including books, records, papers, documents, and 3 other items) that are relevant to the investigation. 4 5 6 7 ''(b) Each application under this section ''(1) shall be made to ''(A) a judge of the court established by section 103(a) of this Act; or 8 ''(B) a United States magistrate judge 9 under chapter 43 of title 28, United States 10 Code, who is publicly designated by the Chief 11 Justice of the United States to have the power 12 to hear applications and grant orders for the 13 release of records under this section on behalf 14 of a judge of that court; and 15 ''(2) shall specify that the records concerned 16 are sought for an investigation described in sub- 17 section (a). 18 ''(c)(1) Upon application made pursuant to this sec- 19 tion, the judge shall enter an ex parte order as requested 20 requiring the production the tangible things sought if the *100501.0B6* 21 judge finds that the application satisfies the requirements 22 of this section. 23 ''(2) An order under this subsection shall not disclose 24 that it is issued for purposes of an investigation described 25 in subsection (a). October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000845 007104-001596 H.L.C. F:\MDB\MDB.964 27 ''(d) A person who, in good faith, produces tangible 1 2 things under an order issued pursuant to this section shall 3 not be liable to any other person for such production. Such 4 production shall not be deemed to constitute a waiver of 5 any privilege in any other proceeding or context.''. (b) CONFORMING AMENDMENTS. 6 (1) Section 502 of 7 such Act (50 U.S.C. 1862) is repealed. (2) Section 503 of such Act (50 U.S.C. 1863) is re- 8 9 designated as section 502. (c) CLERICAL AMENDMENT. 10 The table of contents 11 at the beginning of the Foreign Intelligence Surveillance 12 Act of 1978 (50 U.S.C. 1801 et seq.) is amended by strik13 ing the items relating to title V and inserting the fol14 lowing: ''TITLE V ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE PURPOSES ''Sec. 501. Access to certain business records for foreign intelligence and inter national terrorism investigations. ''Sec. 502. Congressional oversight.''. 15 SEC. 157. MISCELLANEOUS NATIONAL-SECURITY AUTHORI- 16 17 TIES. (a) Section 2709(b) of title 18, United States Code, *100501.0B6* 18 is amended 19 (1) in paragraph (1) 20 (A) by inserting '', or electronic commu- 21 nication transactional records'' after ''toll bill- 22 ing records''; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000846 007104-001597 H.L.C. F:\MDB\MDB.964 28 1 (B) by striking ''made that'' and all that 2 follows through the end of such paragraph and 3 inserting ''made that the name, address, length 4 of service, and toll billing records sought are 5 relevant to an authorized foreign counterintel- 6 ligence investigation; and''; and 7 (2) in paragraph (2), by striking ''made that'' 8 and all that follows through the end of such para- 9 graph and inserting ''made that the information 10 sought is relevant to an authorized foreign counter- 11 intelligence investigation.''. 12 (b) Section 624 of the Fair Credit Reporting Act 13 (Public Law 90 321; 15 U.S.C. 1681u), as added by sec14 tion 601(a) of the Intelligence Authorization Act for Fiscal 15 Year 1996 (P.L. 104 93; 110 Stat. 974), is amended 16 (1) in subsection (a), by striking ''writing that'' 17 and all that follows through the end and inserting 18 ''writing that such information is necessary for the 19 conduct of an authorized foreign counterintelligence 20 investigation.''; *100501.0B6* 21 (2) in subsection (b), by striking ''writing that'' 22 and all that follows through the end and inserting 23 ''writing that such information is necessary for the 24 conduct of an authorized foreign counterintelligence 25 investigation.''; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000847 007104-001598 H.L.C. F:\MDB\MDB.964 29 1 (3) in subsection (c), by striking ''camera that'' 2 and all that follows through ''States.'' and inserting 3 ''camera that the consumer report is necessary for 4 the conduct of an authorized foreign counterintel- 5 ligence investigation.''. 6 SEC. 158. PROPOSED LEGISLATION. Not later than August 31, 2003, the President shall 7 8 propose legislation relating to the provisions set to expire 9 by section 160 of this Act as the President may judge nec10 essary and expedient. 11 SEC. 159. PRESIDENTIAL AUTHORITY. 12 Section 203 of the International Emergency Eco- 13 nomic Powers Act (50 U.S.C. 1702) is amended in sub14 section (a)(1) 15 16 17 18 19 20 21 (1) in subparagraph (A) (A) in clause (ii), by adding ''or'' after ''thereof,''; and (B) by striking clause (iii) and inserting the following: ''(iii) the importing or exporting of cur- *100501.0B6* rency or securities, 22 by any person, or with respect to any property, sub- 23 ject to the jurisdiction of the United States;''; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000848 007104-001599 H.L.C. F:\MDB\MDB.964 30 1 (2) by striking after subparagraph (B), ''by any 2 person, or with respect to any property, subject to 3 the jurisdiction of the United States.''; 4 (3) in subparagraph (B) 5 (A) by inserting after ''investigate'' the fol- 6 lowing: '', block during the pendency of an in- 7 vestigation for a period of not more than 90 8 days (which may be extended by an additional 9 60 days if the President determines that such 10 blocking is necessary to carry out the purposes 11 of this Act)''; and 12 (B) by striking ''interest;'' and inserting 13 ''interest, by any person, or with respect to any 14 property, subject to the jurisdiction of the 15 United States; and''; and 16 (4) by adding at the end the following new sub- 17 18 paragraph: ''(C) when a statute has been enacted author- *100501.0B6* 19 izing the use of force by United States armed forces 20 against a foreign country, foreign organization, or 21 foreign national, or when the United States has been 22 subject to an armed attack by a foreign country, for- 23 eign organization, or foreign national, confiscate any 24 property, subject to the jurisdiction of the United 25 States, of any foreign country, foreign organization, October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000849 007104-001600 H.L.C. F:\MDB\MDB.964 31 1 or foreign national against whom United States 2 armed forces may be used pursuant to such statute 3 or, in the case of an armed attack against the 4 United States, that the President determines has 5 planned, authorized, aided, or engaged in such at- 6 tack; and 7 ''(i) all right, title, and interest in any 8 property so confiscated shall vest when, as, and 9 upon the terms directed by the President, in 10 such agency or person as the President may 11 designate from time to time, *100501.0B6* 12 ''(ii) upon such terms and conditions as 13 the President may prescribe, such interest or 14 property shall be held, used, administered, liq- 15 uidated, sold, or otherwise dealt with in the in- 16 terest of and for the benefit of the United 17 States, except that the proceeds of any such liq- 18 uidation or sale, or any cash assets, shall be 19 segregated from other United States Govern- 20 ment funds and shall be used only pursuant to 21 a statute authorizing the expenditure of such 22 proceeds or assets, and 23 ''(iii) such designated agency or person 24 may perform any and all acts incident to the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000850 007104-001601 H.L.C. F:\MDB\MDB.964 32 1 accomplishment or furtherance of these pur- 2 poses.''. 3 SEC. 160. CLARIFICATION OF NO TECHNOLOGY MANDATES. Nothing in this Act shall impose any additional tech- 4 5 nical obligation or requirement on a provider of wire or 6 electronic communication service or other person to fur7 nish facilities, services, or technical assistance. 8 SEC. 161. CIVIL LIABILITY FOR CERTAIN UNAUTHORIZED 9 10 DISCLOSURES. (a) CHAPTER 119. 11 States Code, is amended 12 13 14 Section 2520 of title 18, United (1) by redesignating paragraph (2) of subsection (c) as paragraph (3); (2) by inserting after paragraph (1) of sub- 15 section (c) the following: 16 ''(2) In an action under this section by a citizen or 17 legal permanent resident of the United States against the 18 United States or any Federal investigative or law enforce19 ment officer (or against any State investigative or law en20 forcement officer for disclosure or unlawful use of infor*100501.0B6* 21 mation obtained from Federal investigative or law enforce22 ment officers), the court may assess as damages whichever 23 is the greater of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000851 007104-001602 H.L.C. F:\MDB\MDB.964 33 1 ''(A) the sum of actual damages suffered by the 2 plaintiff and any profits made by the violator as a 3 result of the violation; or 4 ''(B) statutory damages of whichever is the 5 greater of $100 a day for each day of violation or 6 $10,000.''; and 7 8 (3) by adding at the end the following: ''(f) IMPROPER DISCLOSURE IS VIOLATION. Any 9 disclosure or use by an investigative or law enforcement 10 officer of information beyond the extent permitted by sec11 tion 2517 is a violation of this chapter for purposes of 12 section 2520(a). 13 ''(g) ADMINISTRATIVE DISCIPLINE. If a court de- 14 termines that the United States or any agency or bureau 15 thereof has violated any provision of this section and the 16 court finds that the circumstances surrounding the viola17 tion raise questions of whether or not an officer or em18 ployee thereof acted willfully or intentionally with respect 19 to the violation, the agency or bureau shall promptly ini20 tiate a proceeding to determine whether or not disciplinary *100501.0B6* 21 action is warranted against the officer or employee who 22 was responsible for the violation. In such case, if the head 23 of the agency or bureau determines discipline is not appro24 priate, he or she shall report his or her conclusions and 25 the reasons therefor to the Deputy Inspector General for October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000852 007104-001603 H.L.C. F:\MDB\MDB.964 34 1 Civil Rights, Civil Liberties, and the Federal Bureau of 2 Investigation. 3 ''(h) ACTIONS AGAINST THE UNITED STATES. Any 4 action against the United States shall be conducted under 5 the procedures of the Federal Tort Claims Act. Any award 6 against the United States shall be deducted from the 7 budget of the appropriate agency or bureau employing or 8 managing the officer or employee who was responsible for 9 the violation.''. 10 (b) CHAPTER 121. 11 States Code, is amended 12 13 14 Section 2707 of title 18, United (1) in subsection (c), by inserting ''(1)'' before ''The court''; (2) by adding at the end of subsection (c) the 15 following: 16 ''(2) In an action under this section by a citizen or 17 legal permanent resident of the United States against the 18 United States or any Federal investigative or law enforce19 ment officer (or against any State investigative or law en20 forcement officer for disclosure or unlawful use of infor*100501.0B6* 21 mation obtained from Federal investigative or law enforce22 ment officers), the court may assess as damages whichever 23 is the greater of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000853 007104-001604 H.L.C. F:\MDB\MDB.964 35 1 ''(A) the sum of actual damages suffered by the 2 plaintiff and any profits made by the violator as a 3 result of the violation; or 4 ''(B) statutory damages of $10,000.''; and 5 (3) by adding at the end the following: 6 ''(f) IMPROPER DISCLOSURE IS VIOLATION. Any 7 disclosure or use by an investigative or law enforcement 8 officer of information beyond the extent permitted by sec9 tion 2517 is a violation of this chapter for purposes of 10 section 2707(a). 11 ''(g) ADMINISTRATIVE DISCIPLINE. If a court de- 12 termines that the United States or any agency or bureau 13 thereof has violated any provision of this section and the 14 court finds that the circumstances surrounding the viola15 tion raise questions of whether or not an officer or em16 ployee thereof acted willfully or intentionally with respect 17 to the violation, the agency or bureau shall promptly ini18 tiate a proceeding to determine whether or not disciplinary 19 action is warranted against the officer or employee who 20 was responsible for the violation. In such case, if the head *100501.0B6* 21 of the agency or bureau determines discipline is not appro22 priate, he or she shall report his or her conclusions and 23 the reasons therefor to the Deputy Inspector General for 24 Civil Rights, Civil Liberties, and the Federal Bureau of 25 Investigation. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000854 007104-001605 H.L.C. F:\MDB\MDB.964 36 1 ''(h) ACTIONS AGAINST THE UNITED STATES. Any 2 action against the United States shall be conducted under 3 the procedures of the Federal Tort Claims Act. Any award 4 against the United States shall be deducted from the 5 budget of the appropriate agency or bureau employing or 6 managing the officer or employee who was responsible for 7 the violation.''. 8 (c) CHAPTER 206. 9 (1) IN GENERAL. Chapter 206 of title 18, 10 United States Code, is amended by adding at the 11 end the following: 12 ''? 3128. Civil action 13 ''(a) CAUSE OF ACTION. Except as provided in sub- 14 sections (d) and (e) of section 3124, any person aggrieved 15 by any violation of this chapter may in a civil action re16 cover from the person or entity which engaged in that vio17 lation such relief as may be appropriate. 18 ''(b) RELIEF. In any action under this section, ap- 19 propriate relief includes 20 21 *100501.0B6* 22 23 24 25 ''(1) such preliminary and other equitable or declaratory relief as may be appropriate; ''(2) damages under subsection (c) and punitive damages in appropriate cases; and ''(3) a reasonable attorney's fee and other litigation costs reasonably incurred. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000855 007104-001606 H.L.C. F:\MDB\MDB.964 37 1 ''(c) DAMAGES. In any action under this section, the 2 court may assess as damages whichever is the greater of 3 ''(1) the sum of the actual damages suffered by 4 the plaintiff and any profits made by the violator as 5 a result of the violation; or 6 7 ''(2) statutory damages of $10,000. ''(d) LIMITATION. A civil action under this section 8 may not be commenced later than 2 years after the date 9 upon which the claimant first has a reasonable oppor10 tunity to discover the violation. 11 ''(e) IMPROPER DISCLOSURE IS VIOLATION. Any 12 disclosure or use by an investigative or law enforcement 13 officer of information beyond the extent permitted by sec14 tion 2517 is a violation of this chapter for purposes of 15 section 3128(a). 16 ''(f) ADMINISTRATIVE DISCIPLINE. If a court deter- 17 mines that the United States or any agency or bureau 18 thereof has violated any provision of this section and the 19 court finds that the circumstances surrounding the viola20 tion raise questions of whether or not an officer or em*100501.0B6* 21 ployee thereof acted willfully or intentionally with respect 22 to the violation, the agency or bureau shall promptly ini23 tiate a proceeding to determine whether or not disciplinary 24 action is warranted against the officer or employee who 25 was responsible for the violation. In such case, if the head October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000856 007104-001607 H.L.C. F:\MDB\MDB.964 38 1 of the agency or bureau determines discipline is not appro2 priate, he or she shall report his or her conclusions and 3 the reasons therefor to the Deputy Inspector General for 4 Civil Rights, Civil Liberties, and the Federal Bureau of 5 Investigation. ''(g) ACTIONS AGAINST 6 THE UNITED STATES. Any 7 action against the United States shall be conducted under 8 the procedures of the Federal Tort Claims Act. Any award 9 against the United States shall be deducted from the 10 budget of the appropriate agency or bureau employing or 11 managing the officer or employee who was responsible for 12 the violation.''. (2) CLERICAL AMENDMENT. 13 The table of sections 14 at the beginning of chapter 206 of title 18, United States 15 Code, is amended by adding at the end the following new 16 item: ''3128. Civil action.''. 17 (d) FOREIGN INTELLIGENCE SURVEILLANCE ACT 18 1978. (1) Section 110 of the Foreign Intelligence Sur- 19 veillance Act of 1978 (50 U.S.C. 1810) is amended *100501.0B6* 22 23 24 25 (A) by inserting ''(a)'' before ''CIVIL ACTION. 20 21 OF ''; (B) by inserting ''or entity'' after ''shall have a cause of action against any person''; (C) by striking ''(a) actual'' and inserting ''(1) actual''; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000857 007104-001608 H.L.C. F:\MDB\MDB.964 39 1 2 3 4 5 6 7 (D) by striking ''(b) punitive'' and inserting ''(2) punitive''; (E) by striking ''(c) reasonable'' and inserting ''(3) reasonable''; (F) by striking ''$1,000'' and inserting ''$10,000''; and (G) by adding at the end the following new sub- 8 sections: 9 ''(b) LIMITATION. A civil action under this section 10 may not be commenced later than 2 years after the date 11 upon which the claimant first has a reasonable oppor12 tunity to discover the violation. 13 ''(c) ADMINISTRATIVE DISCIPLINE . If a court deter- 14 mines that the United States or any agency or bureau 15 thereof has violated any provision of this section and the 16 court finds that the circumstances surrounding the viola17 tion raise questions of whether or not an officer or em18 ployee thereof acted willfully or intentionally with respect 19 to the violation, the agency or bureau shall promptly ini20 tiate a proceeding to determine whether or not disciplinary *100501.0B6* 21 action is warranted against the officer or employee who 22 was responsible for the violation. In such case, if the head 23 of the agency or bureau determines discipline is not appro24 priate, the head shall report conclusions for the determina25 tion and the reasons therefor to the Deputy Inspector October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000858 007104-001609 H.L.C. F:\MDB\MDB.964 40 1 General for Civil Rights, Civil Liberties, and the Federal 2 Bureau of Investigation. 3 ''(d) ACTIONS AGAINST THE UNITED STATES. Any 4 action against the United States shall be conducted under 5 the procedures of the Federal Tort Claims Act. Any award 6 against the United States shall be deducted from the 7 budget of the appropriate agency or bureau employing or 8 managing the officer or employee who was responsible for 9 the violation.''. 10 (2) Section 308 of the the Foreign Intelligence Sur- 11 veillance Act of 1978 (50 U.S.C. 1828) is amended 12 13 14 15 16 17 18 (A) by inserting ''(a) CIVIL ACTION. '' before ''An aggrieved person,''; (B) by inserting ''or entity'' after ''shall have a cause of action against any person''; (C) by striking ''$1,000'' and inserting ''$10,000''; and (D) by adding at the end the following new sub- 19 sections: 20 ''(b) LIMITATION. A civil action under this section *100501.0B6* 21 may not be commenced later than 2 years after the date 22 upon which the claimant first has a reasonable oppor23 tunity to discover the violation. 24 ''(c) ADMINISTRATIVE DISCIPLINE . If a court deter- 25 mines that the United States or any agency or bureau October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000859 007104-001610 H.L.C. F:\MDB\MDB.964 41 1 thereof has violated any provision of this section and the 2 court finds that the circumstances surrounding the viola3 tion raise questions of whether or not an officer or em4 ployee thereof acted willfully or intentionally with respect 5 to the violation, the agency or bureau shall promptly ini6 tiate a proceeding to determine whether or not disciplinary 7 action is warranted against the officer or employee who 8 was responsible for the violation. In such case, if the head 9 of the agency or bureau determines discipline is not appro10 priate, the head shall report the conclusions for the deter11 mination and the reasons therefor to the Deputy Inspector 12 General for Civil Rights, Civil Liberties, and the Federal 13 Bureau of Investigation. 14 ''(d) ACTIONS AGAINST THE UNITED STATES. Any 15 action against the United States shall be conducted under 16 the procedures of the Federal Tort Claims Act. Any award 17 against the United States shall be deducted from the 18 budget of the appropriate agency or bureau employing or 19 managing the officer or employee who was responsible for 20 the violation.''. 21 *100501.0B6* (3)(A) Title IV of the the Foreign Intelligence Sur- 22 veillance Act of 1978 (50 U.S.C. 1841 et seq.) is amended 23 by adding at the end the following new sections: 24 25 ''PENALTIES ''SEC. 407. (a) PROHIBITED ACTIVITIES. A person 26 is guilty of an offense if the person intentionally October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000860 007104-001611 H.L.C. F:\MDB\MDB.964 42 1 ''(1) installs or uses a pen register or trap and 2 trace device under color of law except as authorized 3 by statute; or 4 ''(2) discloses or uses information obtained 5 under color of law by using a pen register or trap 6 and trace device, knowing or having reason to know 7 that the information was obtained through using a 8 pen register or trap and trace device not authorized 9 by statute. 10 ''(b) DEFENSE . It is a defense to a prosecution 11 under subsection (a) that the defendant was a law enforce12 ment or investigative officer engaged in the course of his 13 official duties and the pen register or trap and trace device 14 was authorized by and conducted pursuant to a search 15 warrant or court order of a court of competent jurisdic16 tion. 17 ''(c) PENALTIES. An offense described in this sec- 18 tion is punishable by a fine of not more than $10,000 or 19 imprisonment for not more than five years, or both. 20 ''(d) FEDERAL JURISDICTION . There is Federal ju- *100501.0B6* 21 risdiction over an offense under this section if the person 22 committing the offense was an officer or employee of the 23 United States at the time the offense was committed. 24 25 ''CIVIL LIABILITY ''SEC. 408. (a) CIVIL ACTION. An aggrieved person, 26 other than a foreign power or an agent of a foreign power, October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000861 007104-001612 H.L.C. F:\MDB\MDB.964 43 1 as defined in section 101(a) or (b)(1)(A), respectively, who 2 has been subjected to a pen register or trap and trace de3 vice or about whom information obtained by a pen register 4 or trap and trace device has been disclosed or used in vio5 lation of section 407 shall have a cause of action against 6 any person or entity who committed such violation and 7 shall be entitled to recover 8 ''(1) actual damages, but not less than liq- 9 uidated damages of $10,000, whichever is greater; 10 ''(2) punitive damages; and 11 ''(3) reasonable attorney's fees and other inves- 12 tigation and litigation costs reasonably incurred. 13 ''(b) LIMITATION. A civil action under this section 14 may not be commenced later than 2 years after the date 15 upon which the claimant first has a reasonable oppor16 tunity to discover the violation. 17 ''(c) ADMINISTRATIVE DISCIPLINE. If a court deter- 18 mines that the United States or any agency or bureau 19 thereof has violated any provision of this section and the 20 court finds that the circumstances surrounding the viola*100501.0B6* 21 tion raise questions of whether or not an officer or em22 ployee thereof acted willfully or intentionally with respect 23 to the violation, the agency or bureau shall promptly ini24 tiate a proceeding to determine whether or not disciplinary 25 action is warranted against the officer or employee who October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000862 007104-001613 H.L.C. F:\MDB\MDB.964 44 1 was responsible for the violation. In such case, if the head 2 of the agency or bureau determines discipline is not appro3 priate, the head shall report the conclusions for the deter4 mination and the reasons therefor to the Deputy Inspector 5 General for Civil Rights, Civil Liberties, and the Federal 6 Bureau of Investigation. ?(d) ACTIONS AGAINST 7 THE UNITED STATES. Any 8 action against the United States shall be conducted under 9 the procedures of the Federal Tort Claims Act. Any award 10 against the United States shall be deducted from the 11 budget of the appropriate agency or bureau employing or 12 managing the officer or employee who was responsible for 13 the violation.?''. (B) The table of contents at the beginning of the For- 14 15 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 16 1801 et seq.) is amended by adding at the end of the items 17 relating to title IV the following new items: ''Sec. 407. Penalties. ''Sec. 408. Civil liability.''. 18 SEC. 162. SUNSET. 19 This title and the amendments made by this title *100501.0B6* 20 (other than sections 106 (relating to technical amend21 ment), 109 (relating to clarification of scope), and 159 22 (relating to presidential authority)) and the amendments 23 made by those sections shall take effect on the date of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000863 007104-001614 H.L.C. F:\MDB\MDB.964 45 1 enactment of this Act and shall cease to have any effect 2 on December 31, 2003. 7 TITLE II--ALIENS ENGAGING IN TERRORIST ACTIVITY Subtitle A--Detention and Removal of Aliens Engaging in Terrorist Activity 8 SEC. 201. CHANGES IN CLASSES OF ALIENS WHO ARE INELI- 3 4 5 6 9 GIBLE FOR ADMISSION AND DEPORTABLE 10 11 DUE TO TERRORIST ACTIVITY. (a) ALIENS INELIGIBLE 12 TERRORIST ACTIVITIES. FOR ADMISSION DUE TO Section 212(a)(3)(B) of the Im- 13 migration and Nationality Act (8 U.S.C. 1182(a)(3)(B)) 14 is amended 15 (1) in clause (i) 16 (A) in subclauses (I), (II), and (III), by 17 striking the comma at the end and inserting a 18 semicolon; 19 20 21 *100501.0B6* 22 (B) by amending subclause (IV) to read as follows: ''(IV) is a representative of ''(a) a foreign terrorist orga- 23 nization, as designated by the 24 Secretary of State under section 25 219; or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000864 007104-001615 H.L.C. F:\MDB\MDB.964 46 1 ''(b) a political, social, or 2 other similar group whose public 3 endorsement of terrorist activity 4 the Secretary of State has deter- 5 mined undermines the efforts of 6 the United States to reduce or 7 eliminate terrorist activities;''; 8 (C) in subclause (V), by striking any 9 comma at the end, by striking any ''or'' at the 10 11 12 13 end, and by adding ''; or'' at the end; and (D) by inserting after subclause (V) the following: ''(VI) has used the alien's promi- *100501.0B6* 14 nence within a foreign state or the 15 United States to endorse or espouse 16 terrorist activity, or to persuade oth- 17 ers to support terrorist activity or a 18 terrorist organization, in a way that 19 the Secretary of State has determined 20 undermines the efforts of the United 21 States to reduce or eliminate terrorist 22 activities;''; 23 (2) in clause (ii) 24 (A) in the matter preceding subclause (I), 25 by striking ''(or which, if committed in the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000865 007104-001616 H.L.C. F:\MDB\MDB.964 47 1 United States,'' and inserting ''(or which, if it 2 had been or were to be committed in the United 3 States,''; and 4 (B) in subclause (V)(b), by striking ''explo- 5 sive or firearm'' and inserting ''explosive, fire- 6 arm, or other object''; 7 (3) by amending clause (iii) to read as follows: 8 9 ''(iii) E NGAGE ITY DEFINED. IN TERRORIST ACTIV- As used in this Act, the 10 term 'engage in terrorist activity' means, 11 in an individual capacity or as a member 12 of an organization 13 14 15 16 17 ''(I) to commit a terrorist activity; ''(II) to plan or prepare to commit a terrorist activity; ''(III) to gather information on 18 potential targets for a terrorist activ- 19 ity; 20 21 ''(IV) to solicit funds or other *100501.0B6* things of value for 22 ''(a) a terrorist activity; 23 ''(b) an organization des- 24 ignated as a foreign terrorist or- 25 ganization under section 219; or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000866 007104-001617 H.L.C. F:\MDB\MDB.964 48 1 ''(c) a terrorist organization 2 described in clause (v)(II), but 3 only if the solicitor knows, or rea- 4 sonably should know, that the so- 5 licitation would further a ter- 6 rorist activity; 7 ''(V) to solicit any individual ''(a) to engage in conduct 8 9 otherwise 10 clause; described in this ''(b) for membership in a 11 12 terrorist government; ''(c) for membership in an 13 14 organization designated as a for- 15 eign terrorist organization under 16 section 219; or *100501.0B6* 17 ''(d) for membership in a 18 terrorist organization described 19 in clause (v)(II), but only if the 20 solicitor knows, or reasonably 21 should know, that the solicitation 22 would further a terrorist activity; 23 or 24 ''(VI) to commit an act that the 25 actor knows, or reasonably should October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000867 007104-001618 H.L.C. F:\MDB\MDB.964 49 1 know, affords material support, in- 2 cluding a safe house, transportation, 3 communications, funds, transfer of 4 funds or other material financial ben- 5 efit, false documentation or identifica- 6 tion, weapons (including chemical, bi- 7 ological, and radiological weapons), 8 explosives, or training 9 10 ''(a) for the commission of a terrorist activity; 11 ''(b) to any individual who 12 the actor knows, or reasonably 13 should know, has committed or 14 plans to commit a terrorist activ- 15 ity; 16 ''(c) to an organization des- 17 ignated as a foreign terrorist or- 18 ganization under section 219; or 19 ''(d) to a terrorist organiza- *100501.0B6* 20 tion described in clause (v)(II), 21 but only if the actor knows, or 22 reasonably should know, that the 23 act would further a terrorist ac- 24 tivity.''; and 25 (4) by adding at the end the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000868 007104-001619 H.L.C. F:\MDB\MDB.964 50 1 ''(v) TERRORIST ORGANIZATION DE - 2 FINED. As used in this subparagraph, the 3 term 'terrorist organization' means 4 ''(I) an organization designated 5 as a foreign terrorist organization 6 under section 219; or 7 ''(II) with regard to a group that 8 is not an organization described in 9 subclause (I), a group of 2 or more 10 individuals, whether organized or not, 11 which engages in, or which has a sig- 12 nificant subgroup which engages in, 13 the activities described in subclause 14 (I), (II), or (III) of clause (iii). 15 ''(vi) SPECIAL RULE FOR MATERIAL *100501.0B6* 16 SUPPORT. Clause (iii)(VI)(b) shall not be 17 construed to include the affording of mate- 18 rial support to an individual who com- 19 mitted or planned to commit a terrorist ac- 20 tivity, if the alien establishes by clear and 21 convincing evidence that such support was 22 afforded only after such individual perma- 23 nently and publicly renounced, rejected the 24 use of, and had ceased to engage in, ter- 25 rorist activity.''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000869 007104-001620 H.L.C. F:\MDB\MDB.964 51 (b) ALIENS INELIGIBLE 1 2 E NDANGERMENT. FOR ADMISSION DUE TO Section 212(a)(3) of the Immigration 3 and Nationality Act (8 U.S.C. 1182(a)(3)) is amended by 4 adding at the end the following: ''(F) E NDANGERMENT. 5 Any alien who the 6 Secretary of State, after consultation with the 7 Attorney General, or the Attorney General, 8 after consultation with the Secretary of State, 9 determines has been associated with a terrorist 10 organization and intends while in the United 11 States to engage solely, principally, or inciden- 12 tally in activities that could endanger the wel- 13 fare, safety, or security of the United States is 14 inadmissible.''. (c) ALIENS DEPORTABLE DUE 15 16 TIVITIES. TO TERRORIST AC- Section 237(a)(4)(B) of the Immigration and 17 Nationality (8 U.S.C. 1227(a)(4)(B)) is amended to read 18 as follows: 19 20 21 ''(B) TERRORIST is deportable who ACTIVITIES. Any alien *100501.0B6* ''(i) has engaged, is engaged, or at 22 any time after admission engages in ter- 23 rorist activity (as defined in section 24 212(a)(3)(B)(iii)); October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000870 007104-001621 H.L.C. F:\MDB\MDB.964 52 1 2 ''(ii) is a representative (as defined in section 212(a)(3)(B)(iv)) of ''(I) a foreign terrorist organiza- 3 4 tion, as designated by the Secretary of 5 State under section 219; or ''(II) a political, social, or other 6 7 similar group whose public endorse- 8 ment of terrorist activity ''(a) is intended and likely to 9 10 incite or produce imminent law- 11 less action; and ''(b) has been determined by 12 13 the Secretary of State to under- 14 mine the efforts of the United 15 States to reduce or eliminate ter- 16 rorist activities; or 17 ''(iii) has used the alien's prominence 18 within a foreign state or the United 19 States *100501.0B6* 20 ''(I) to endorse, in a manner that 21 is intended and likely to incite or 22 produce imminent lawless action and 23 that has been determined by the Sec- 24 retary of State to undermine the ef- 25 forts of the United States to reduce or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000871 007104-001622 H.L.C. F:\MDB\MDB.964 53 1 eliminate terrorist activities, terrorist 2 activity; or 3 ''(II) to persuade others, in a 4 manner that is intended and likely to 5 incite or produce imminent lawless ac- 6 tion and that has been determined by 7 the Secretary of State to undermine 8 the efforts of the United States to re- 9 duce or eliminate terrorist activities, 10 to support terrorist activity or a ter- 11 rorist organization (as defined in sec- 12 tion 212(a)(3)(B)(v)).''. 13 14 (d) RETROACTIVE APPLICATION OF AMENDMENTS. (1) IN GENERAL. The amendments made by 15 this section shall take effect on the date of the en- 16 actment of this Act and shall apply to 17 (A) actions taken by an alien before such 18 date, as well as actions taken on or after such 19 date; and *100501.0B6* 20 (B) all aliens, without regard to the date 21 of entry or attempted entry into the United 22 States 23 (i) in removal proceedings on or after 24 such date (except for proceedings in which October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000872 007104-001623 H.L.C. F:\MDB\MDB.964 54 1 there has been a final administrative deci- 2 sion before such date); or (ii) seeking admission to the United 3 States on or after such date. 4 5 (2) SPECIAL RULE FOR ALIENS IN EXCLUSION 6 OR DEPORTATION PROCEEDINGS. 7 any other provision of law, the amendments made by 8 this section shall apply to all aliens in exclusion or 9 deportation proceedings on or after the date of the 10 enactment of this Act (except for proceedings in 11 which there has been a final administrative decision 12 before such date) as if such proceedings were re- 13 moval proceedings. 14 (3) SPECIAL 15 16 TIONS. Notwithstanding RULE FOR SECTION 219 ORGANIZA- (A) IN GENERAL. Notwithstanding para- *100501.0B6* 17 graphs (1) and (2), no alien shall be considered 18 inadmissible under section 212(a)(3) of the Im- 19 migration and Nationality Act (8 U.S.C. 20 1182(a)(3)), 21 237(a)(4)(B) 22 1227(a)(4)(B)), by reason of the amendments 23 made by subsection (a), on the ground that the 24 alien engaged in a terrorist activity described in 25 subclause (IV)(b), (V)(c), or (VI)(c) of section or of deportable such Act under section (8 U.S.C. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000873 007104-001624 H.L.C. F:\MDB\MDB.964 55 1 212(a)(3)(B)(iii) of such Act (as so amended) 2 with respect to a group at any time when the 3 group was not a foreign terrorist organization 4 designated by the Secretary of State under sec- 5 tion 219 of such Act (8 U.S.C. 1189). 6 (B) CONSTRUCTION. Subparagraph (A) 7 shall not be construed to prevent an alien from 8 being considered inadmissible or deportable for 9 having engaged in a terrorist activity 10 (i) described in subclause (IV)(b), 11 (V)(c), 12 212(a)(3)(B)(iii) 13 amended) with respect to a foreign ter- 14 rorist organization at any time when such 15 organization was designated by the Sec- 16 retary of State under section 219 of such 17 Act; or 18 or (VI)(c) of section of such Act (as so (ii) described in subclause (IV)(c), *100501.0B6* 19 (V)(d), or (VI)(d) of section 20 212(a)(3)(B)(iii) 21 amended) with respect to any group de- 22 scribed in any of such subclauses. of such Act (as so October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000874 007104-001625 H.L.C. F:\MDB\MDB.964 56 1 SEC. 202. CHANGES IN DESIGNATION OF FOREIGN TER- 2 RORIST ORGANIZATIONS. (a) DESIGNATION 3 4 ZATIONS. OF FOREIGN TERRORIST ORGANI- Section 219(a) of the Immigration and Nation- 5 ality Act (8 U.S.C. 1189(a)) is amended 6 (1) in paragraph (1) 7 (A) in subparagraph (B), by striking 8 ''212(a)(3)(B));'' and inserting ''212(a)(3)(B)), 9 engages in terrorism (as defined in section 10 140(d)(2) of the Foreign Relations Authoriza- 11 tion Act, Fiscal Years 1988 and 1989 (22 12 U.S.C. 2656f(d)(2)), or retains the capability 13 and intent to engage in terrorist activity or to 14 engage in terrorism (as so defined);''; and 15 (B) in subparagraph (C), by inserting ''or 16 terrorism'' after ''activity''; 17 (2) in paragraph (2) 18 19 20 21 (A) by amending subparagraph (A) to read as follows: ''(A) NOTICE. ''(i) IN GENERAL. Seven days before *100501.0B6* 22 a designation is made under this sub- 23 section, the Secretary of State shall, by 24 classified communication, notify the Speak- 25 er and minority leader of the House of 26 Representatives, the President pro tem- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000875 007104-001626 H.L.C. F:\MDB\MDB.964 57 1 pore, majority leader, and minority leader 2 of the Senate, the members of the relevant 3 committees, and the Secretary of the 4 Treasury, in writing, of the intent to des- 5 ignate a foreign organization under this 6 subsection, together with the findings 7 made under paragraph (1) with respect to 8 that organization, and the factual basis 9 therefor. 10 ''(ii) PUBLICATION OF DESIGNA- 11 TION. 12 lish the designation in the Federal Register 13 seven days after providing the notification 14 under clause (i).''; 15 (B) in subparagraph (B), by striking 16 The Secretary of State shall pub- ''(A).'' and inserting ''(A)(ii).''; and 17 (C) in subparagraph (C), by striking 18 ''paragraph (2),'' and inserting ''subparagraph 19 (A)(i),''; 20 (3) in paragraph (3)(B), by striking ''sub- 21 *100501.0B6* section (c).'' and inserting ''subsection (b).'; 22 (4) in paragraph (4)(B), by inserting after the 23 first sentence the following: ''The Secretary may also 24 redesignate such organization at the end of any 2- 25 year redesignation period (but not sooner than 60 October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000876 007104-001627 H.L.C. F:\MDB\MDB.964 58 1 days prior to the termination of such period) for an 2 additional 2-year period upon a finding that the rel- 3 evant circumstances described in paragraph (1) still 4 exist. Any redesignation shall be effective imme- 5 diately following the end of the prior 2-year designa- 6 tion or redesignation period unless a different effec- 7 tive date is provided in such redesignation.''; 8 9 (5) in paragraph (6) (A) in subparagraph (A) 10 (i) in the matter preceding clause (i), 11 by inserting ''or a redesignation made 12 under paragraph (4)(B)'' after ''paragraph 13 (1)''; 14 15 (ii) in clause (i) (I) by inserting ''or redesigna- 16 tion'' after ''designation'' the first 17 place it appears; and 18 (II) by striking ''of the designa- 19 tion;'' and inserting a semicolon; and 20 (iii) in clause (ii), by striking ''of the *100501.0B6* 21 designation.'' and inserting a period; 22 (B) in subparagraph (B), by striking 23 ''through (4)'' and inserting ''and (3)''; and 24 (C) by adding at the end the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000877 007104-001628 H.L.C. F:\MDB\MDB.964 59 ''(C) E FFECTIVE 1 DATE . Any revocation 2 shall take effect on the date specified in the 3 revocation or upon publication in the Federal 4 Register if no effective date is specified.''; 5 (6) in paragraph (7), by inserting '', or the rev- 6 ocation of a redesignation under paragraph (6),'' 7 after ''(5) or (6)''; and 8 (7) in paragraph (8) (A) by striking ''(1)(B),'' and inserting 9 10 ''(2)(B), or if a redesignation under this sub- 11 section has become effective under paragraph 12 (4)(B)''; (B) by inserting ''or an alien in a removal 13 proceeding'' after ''criminal action''; and 14 (C) by inserting ''or redesignation'' before 15 ''as a defense''. 16 (b) AUTHORITY TO INITIATE DESIGNATIONS, REDES- 17 18 IGNATIONS, AND REVOCATIONS. Section 219 of the Im- 19 migration and Nationality Act (8 U.S.C. 1189), as amend20 ed by subsection (a), is further amended *100501.0B6* 21 (1) by striking ''Secretary'' each place such 22 term appears, excluding subparagraphs (A) and (C) 23 of subsection (a)(2), and inserting ''official specified 24 under subsection (d)''; 25 (2) in subsection (c) October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000878 007104-001629 H.L.C. F:\MDB\MDB.964 60 (A) in paragraph (2), by adding ''and'' at 1 the end; 2 (B) in paragraph (3), by striking ''; and'' 3 at the end and inserting a period; and 4 (C) by striking paragraph (4); and 5 (3) by adding at the end the following: 6 ''(d) IMPLEMENTATION 7 8 TIES. 9 OF DUTIES AND AUTHORI- ''(1) BY SECRETARY OR ATTORNEY GEN- 10 ERAL. 11 section, the duties under this section shall, and au- 12 thorities under this section may, be exercised by 13 Except as otherwise provided in this sub- ''(A) the Secretary of State 14 ''(i) after consultation with the Sec- 15 retary of the Treasury and with the con- 16 currence of the Attorney General; or 17 ''(ii) upon instruction by the Presi- 18 dent pursuant to paragraph (2); or 19 ''(B) the Attorney General *100501.0B6* 20 ''(i) after consultation with the Sec- 21 retary of the Treasury and with the con- 22 currence of the Secretary of State; or 23 24 ''(ii) upon instruction by the President pursuant to paragraph (2). October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000879 007104-001630 H.L.C. F:\MDB\MDB.964 61 1 ''(2) CONCURRENCE. The Secretary of State 2 and the Attorney General shall each seek the other's 3 concurrence in accordance with paragraph (1). In 4 any case in which such concurrence is denied or 5 withheld, the official seeking the concurrence shall 6 so notify the President and shall request the Presi- 7 dent to make a determination as to how the issue 8 shall be resolved. Such notification and request of 9 the President may not be made before the earlier 10 11 12 of ''(A) the date on which a denial of concurrence is received; or 13 ''(B) the end of the 60-day period begin- 14 ning on the date the concurrence was sought. 15 ''(3) E XCEPTION. It shall be the duty of the 16 Secretary of State to carry out the procedural re- 17 quirements of paragraphs (2)(A) and (6)(B) of sub- 18 section (a) in all cases, including cases in which a 19 designation or revocation is initiated by the Attorney 20 General.''. *100501.0B6* October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000880 007104-001631 H.L.C. F:\MDB\MDB.964 62 1 SEC. 203. MANDATORY DETENTION OF SUSPECTED TER- 2 RORISTS; HABEAS CORPUS; JUDICIAL RE- 3 VIEW. (a) IN GENERAL. 4 The Immigration and Nationality 5 Act (8 U.S.C. 1101 et seq.) is amended by inserting after 6 section 236 the following: 7 ''MANDATORY DETENTION HABEAS CORPUS; JUDICIAL REVIEW 8 9 ''SEC. 10 ALIENS. 11 OF SUSPECTED TERRORISTS; 236A. (a) DETENTION OF TERRORIST ''(1) CUSTODY. The Attorney General shall 12 take into custody any alien who is certified under 13 paragraph (3). 14 ''(2) RELEASE. Except as provided in para- *100501.0B6* 15 graphs (5) and (6), the Attorney General shall main- 16 tain custody of such an alien until the alien is re- 17 moved from the United States or found not to be in- 18 admissible or deportable, as the case may be. Except 19 as provided in paragraph (6), such custody shall be 20 maintained irrespective of any relief from removal 21 for which the alien may be eligible, or any relief 22 from removal granted the alien, until the Attorney 23 General determines that the alien is no longer an 24 alien who may be certified under paragraph (3). 25 26 ''(3) CERTIFICATION. The Attorney General may certify an alien under this paragraph if the At- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000881 007104-001632 H.L.C. F:\MDB\MDB.964 63 1 torney General has reasonable grounds to believe 2 that the alien 3 ''(A) is described in 4 212(a)(3)(A)(i), 5 212(a)(3)(B), 6 237(a)(4)(A)(iii), or 237(a)(4)(B); or section 212(a)(3)(A)(iii), 237(a)(4)(A)(i), 7 ''(B) is engaged in any other activity that 8 endangers the national security of the United 9 States. 10 ''(4) NONDELEGATION. The Attorney General 11 may delegate the authority provided under para- 12 graph (3) only to the Deputy Attorney General. The 13 Deputy Attorney General may not delegate such au- 14 thority. 15 ''(5) COMMENCEMENT OF PROCEEDINGS. The *100501.0B6* 16 Attorney General shall place an alien detained under 17 paragraph (1) in removal proceedings, or shall 18 charge the alien with a criminal offense, not later 19 than 7 days after the commencement of such deten- 20 tion. If the requirement of the preceding sentence is 21 not satisfied, the Attorney General shall release the 22 alien. 23 ''(6) LIMITATION ON INDEFINITE DETEN- 24 TION. An alien detained under paragraph (1) who 25 has been ordered removed based on one or more of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000882 007104-001633 H.L.C. F:\MDB\MDB.964 64 1 the grounds of inadmissibility or deportability re- 2 ferred to in paragraph (3)(A), who has not been re- 3 moved within the removal period specified under sec- 4 tion 241(a)(1)(A), and whose removal is unlikely in 5 the reasonably foreseeable future, may be detained 6 for additional periods of up to six months if the At- 7 torney General demonstrates that the release of the 8 alien will not protect the national security of the 9 United States or adequately ensure the safety of the 10 community or any person. 11 ''(b) HABEAS CORPUS AND JUDICIAL REVIEW. Ju- 12 dicial review of any action or decision relating to this sec13 tion (including judicial review of the merits of a deter14 mination made under subsection (a)(3) or (a)(6)) is avail15 able exclusively in habeas corpus proceedings initiated in 16 the United States District Court for the District of Colum17 bia. Notwithstanding any other provision of law, including 18 section 2241 of title 28, United States Code, except as 19 provided in the preceding sentence, no court shall have 20 jurisdiction to review, by habeas corpus petition or other*100501.0B6* 21 wise, any such action or decision.''. (b) CLERICAL AMENDMENT. 22 The table of contents 23 of the Immigration and Nationality Act is amended by in24 serting after the item relating to section 236 the following: ''Sec. 236A. Mandatory detention of suspected terrorists; habeas corpus; judicial review.''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000883 007104-001634 H.L.C. F:\MDB\MDB.964 65 1 (c) REPORTS. Not later than 6 months after the 2 date of the enactment of this Act, and every 6 months 3 thereafter, the Attorney General shall submit a report to 4 the Committee on the Judiciary of the House of Rep5 resentatives and the Committee on the Judiciary of the 6 Senate, with respect to the reporting period, on 7 (1) the number of aliens certified under section 8 236A(a)(3) of the Immigration and Nationality Act, 9 as added by subsection (a); 10 (2) the grounds for such certifications; 11 (3) the nationalities of the aliens so certified; 12 (4) the length of the detention for each alien so 13 14 certified; and (5) the number of aliens so certified who (A) were granted any form of relief from 15 16 removal; 17 (B) were removed; 18 (C) the Attorney General has determined 19 are no longer an alien who may be so certified; 20 or 21 *100501.0B6* (D) were released from detention. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000884 007104-001635 H.L.C. F:\MDB\MDB.964 66 1 SEC. 204. CHANGES IN CONDITIONS FOR GRANTING ASY- 2 LUM. (a) IN GENERAL. 3 4 Immigration and Section 208(b)(2)(A)(v) of the Nationality 5 1158(b)(2)(A)(v)) is amended Act (8 U.S.C. 6 (1) by striking ''inadmissible under'' each place 7 such term appears and inserting ''described in''; and 8 (2) by striking ''removable under'' and inserting ''described in''. 9 (b) RETROACTIVE APPLICATION OF AMENDMENTS. 10 11 The amendments made by subsection (a) shall take effect 12 on the date of the enactment of this Act and shall apply 13 to 14 (1) actions taken by an alien before such date, 15 as well as actions taken on or after such date; and 16 (2) all aliens, without regard to the date of 17 entry or attempted entry into the United States, 18 whose application for asylum is pending on or after 19 such date (except for applications with respect to 20 which there has been a final administrative decision 21 before such date). *100501.0B6* 22 SEC. 205. MULTILATERAL COOPERATION AGAINST TERROR- 23 24 ISTS. Section 222(f) of the Immigration and Nationality 25 Act (8 U.S.C. 1202(f)) is amended October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000885 007104-001636 H.L.C. F:\MDB\MDB.964 67 1 (1) by striking ''The records'' and inserting 2 ''(1) Subject to paragraphs (2) and (3), the 3 records''; 4 (2) by striking ''United States,'' and all that 5 follows through the period at the end and inserting 6 ''United States.''; and 7 8 (3) by adding at the end the following: ''(2) In the discretion of the Secretary of State, cer- 9 tified copies of such records may be made available to a 10 court which certifies that the information contained in 11 such records is needed by the court in the interest of the 12 ends of justice in a case pending before the court. 13 ''(3)(A) Subject to the provisions of this paragraph, 14 the Secretary of State may provide copies of records of 15 the Department of State and of diplomatic and consular 16 offices of the United States (including the Department of 17 State's automated visa lookout database) pertaining to the 18 issuance or refusal of visas or permits to enter the United 19 States, or information contained in such records, to for20 eign governments if the Secretary determines that it is *100501.0B6* 21 necessary and appropriate. 22 ''(B) Such records and information may be provided 23 on a case-by-case basis for the purpose of preventing, in24 vestigating, or punishing acts of terrorism. General access 25 to records and information may be provided under an October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000886 007104-001637 H.L.C. F:\MDB\MDB.964 68 1 agreement to limit the use of such records and information 2 to the purposes described in the preceding sentence. ''(C) The Secretary of State shall make any deter- 3 4 mination under this paragraph in consultation with any 5 Federal agency that compiled or provided such records or 6 information. ''(D) To the extent possible, such records and infor- 7 8 mation shall be made available to foreign governments on 9 a reciprocal basis.''. 10 SEC. 206. REQUIRING SHARING BY THE FEDERAL BUREAU 11 OF INVESTIGATION OF CERTAIN CRIMINAL 12 RECORD EXTRACTS WITH OTHER FEDERAL 13 AGENCIES IN ORDER TO ENHANCE BORDER 14 SECURITY. 15 (a) IN GENERAL. Section 105 of the Immigration 16 and Nationality Act (8 U.S.C. 1105), is amended 17 18 19 20 (1) in the section heading, by adding ''AND DATA EXCHANGE '' at the end; (2) by inserting ''(a) LIAISON WITH INTERNAL SECURITY OFFICERS. '' after ''105.''; *100501.0B6* 21 (3) by striking ''the internal security of'' and 22 inserting ''the internal and border security of''; and 23 (4) by adding at the end the following: 24 ''(b) CRIMINAL HISTORY RECORD INFORMATION. 25 The Attorney General and the Director of the Federal Bu- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000887 007104-001638 H.L.C. F:\MDB\MDB.964 69 1 reau of Investigation shall provide the Secretary of State 2 and the Commissioner access to the criminal history 3 record information contained in the National Crime Infor4 mation Center's Interstate Identification Index, Wanted 5 Persons File, and to any other files maintained by the Na6 tional Crime Information Center that may be mutually 7 agreed upon by the Attorney General and the official to 8 be provided access, for the purpose of determining whether 9 a visa applicant or applicant for admission has a criminal 10 history record indexed in any such file. Such access shall 11 be provided by means of extracts of the records for place12 ment in the Department of State's automated visa lookout 13 database or other appropriate database, and shall be pro14 vided without any fee or charge. The Director of the Fed15 eral Bureau of Investigation shall provide periodic updates 16 of the extracts at intervals mutually agreed upon by the 17 Attorney General and the official provided access. Upon 18 receipt of such updated extracts, the receiving official shall 19 make corresponding updates to the official's databases 20 and destroy previously provided extracts. Such access to *100501.0B6* 21 any extract shall not be construed to entitle the Secretary 22 of State to obtain the full content of the corresponding 23 automated criminal history record. To obtain the full con24 tent of a criminal history record, the Secretary of State 25 shall submit the applicant's fingerprints and any appro- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000888 007104-001639 H.L.C. F:\MDB\MDB.964 70 1 priate fingerprint processing fee authorized by law to the 2 Criminal Justice Information Services Division of the Fed3 eral Bureau of Investigation. 4 ''(c) RECONSIDERATION. The provision of the ex- 5 tracts described in subsection (b) may be reconsidered by 6 the Attorney General and the receiving official upon the 7 development and deployment of a more cost-effective and 8 efficient means of sharing the information. 9 ''(d) REGULATIONS. For purposes of administering 10 this section, the Secretary of State shall, prior to receiving 11 access to National Crime Information Center data, pro12 mulgate final regulations 13 14 ''(1) to implement procedures for the taking of fingerprints; and 15 ''(2) to establish the conditions for the use of 16 the information received from the Federal Bureau of 17 Investigation, in order 18 19 ''(A) to limit the redissemination of such information; *100501.0B6* 20 ''(B) to ensure that such information is 21 used solely to determine whether to issue a visa 22 to an individual; 23 24 ''(C) to ensure the security, confidentiality, and destruction of such information; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000889 007104-001640 H.L.C. F:\MDB\MDB.964 71 ''(D) to protect any privacy rights of indi- 1 viduals who are subjects of such information.''. 2 (b) CLERICAL AMENDMENT. 3 The table of contents 4 of the Immigration and Nationality Act is amended by 5 amending the item relating to section 105 to read as fol6 lows: ''Sec. 105. Liaison with internal security officers and data exchange.''. 7 (c) E FFECTIVE DATE AND IMPLEMENTATION. The 8 amendments made by this section shall take effect on the 9 date of the enactment of this Act and shall be fully imple10 mented not later than 18 months after such date. 11 (d) REPORTING REQUIREMENT. Not later than 2 12 years after the date of the enactment of this Act, the At13 torney General and the Secretary of State, jointly, shall 14 report to the Congress on the implementation of the 15 amendments made by this section. 16 (e) CONSTRUCTION. Nothing in this section, or in 17 any other law, shall be construed to limit the authority 18 of the Attorney General or the Director of the Federal 19 Bureau of Investigation to provide access to the criminal 20 history record information contained in the National *100501.0B6* 21 Crime Information Center's Interstate Identification 22 Index, or to any other information maintained by such 23 center, to any Federal agency or officer authorized to en24 force or administer the immigration laws of the United 25 States, for the purpose of such enforcement or administra- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000890 007104-001641 H.L.C. F:\MDB\MDB.964 72 1 tion, upon terms that are consistent with sections 212 2 through 216 of the National Crime Prevention and Pri3 vacy Compact Act of 1998 (42 U.S.C. 14611 et seq.). 4 SEC. 207. INADMISSIBILITY OF ALIENS ENGAGED IN MONEY 5 LAUNDERING. (a) AMENDMENT 6 7 ALITY ACT. TO IMMIGRATION AND NATION- Section 212(a)(2) of the Immigration and 8 Nationality Act (8 U.S.C. 1182(a)(2)) is amended by add9 ing at the end the following: 10 ''(I) MONEY LAUNDERING. Any alien 11 ''(i) who a consular officer or the At- 12 torney General knows, or has reason to be- 13 lieve, has engaged, is engaging, or seeks to 14 enter the United States to engage, in an 15 offense which is described in section 1956 16 of title 18, United States Code (relating to 17 laundering of monetary instruments); or 18 ''(ii) who a consular officer or the At- *100501.0B6* 19 torney General knows is, or has been, a 20 knowing aider, 21 spirator, or colluder with others in an of- 22 fense which is described in such section; 23 24 abettor, assister, con- is inadmissible.''. (b) MONEY LAUNDERING WATCHLIST. Not later 25 than 90 days after the date of the enactment of this Act, October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000891 007104-001642 H.L.C. F:\MDB\MDB.964 73 1 the Secretary of State shall develop, implement, and cer2 tify to the Congress that there has been established a 3 money laundering watchlist, which identifies individuals 4 worldwide who are known or suspected of money laun5 dering, which is readily accessible to, and shall be checked 6 by, a consular or other Federal official prior to the 7 issuance of a visa or admission to the United States. The 8 Secretary of State shall develop and continually update the 9 watchlist in cooperation with the Attorney General, the 10 Secretary of the Treasury, and the Director of Central In11 telligence. 12 SEC. 208. PROGRAM TO COLLECT INFORMATION RELATING 13 TO NONIMMIGRANT FOREIGN STUDENTS AND 14 OTHER EXCHANGE PROGRAM PARTICIPANTS. 15 (a) CHANGES IN DEADLINES. Section 641 of the Il- 16 legal Immigration Reform and Immigrant Responsibility 17 Act of 1996 (8 U.S.C. 1372) is amended 18 (1) in subsection (f), by striking ''Not later *100501.0B6* 19 than 4 years after the commencement of the pro- 20 gram established under subsection (a),'' and insert- 21 ing ''Not later than 120 days after the date of the 22 enactment of the PATRIOT Act of 2001,''; and 23 24 (2) in subsection (g)(1), by striking ''12 months'' and inserting ''120 days''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000892 007104-001643 H.L.C. F:\MDB\MDB.964 74 1 (b) INCREASED FEE FOR CERTAIN STUDENTS. Sec- 2 tion 641(e)(4)(A) of the Illegal Immigration Reform and 3 Immigrant Responsibility Act of 1996 (8 U.S.C. 4 1372(e)(4)(A)) is amended by adding at the end the fol5 lowing: ''In the case of an alien who is a national of a 6 country, the government of which the Secretary of State 7 has determined, for purposes of section 6(j)(1) of the Ex8 port Administration Act of 1979 (50 U.S.C. App. 9 2405(j)(1)), has repeatedly provided support for acts of 10 international terrorism, the Attorney General may impose 11 on, and collect from, the alien a fee that is greater than 12 that imposed on other aliens described in paragraph (3).''. 13 (c) DATA E XCHANGE . Section 641 of the Illegal Im- 14 migration Reform and Immigrant Responsibility Act of 15 1996 (8 U.S.C. 1372) is amended 16 17 18 (1) by redesignating subsection (h) as subsection (i); and (2) by inserting after subsection (g) the fol- 19 lowing: 20 ''(h) DATA E XCHANGE . Notwithstanding any other *100501.0B6* 21 provision of law, the Attorney General shall provide to the 22 Secretary of State and the Director of the Federal Bureau 23 of Investigation the information collected under subsection 24 (a)(1).''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000893 007104-001644 H.L.C. F:\MDB\MDB.964 75 1 SEC. 209. PROTECTION OF NORTHERN BORDER. There are authorized to be appropriated 2 (1) such sums as may be necessary to triple the 3 4 number of Border Patrol personnel (from the num- 5 ber authorized under current law) in each State 6 along the northern border; 7 (2) such sums as may be necessary to triple the 8 number of Immigration and Naturalization Service 9 inspectors (from the number authorized under cur- 10 rent law) at ports of entry in each State along the 11 northern border; and 12 (3) an additional $50,000,000 to the Immigra- 13 tion and Naturalization Service for purposes of en- 14 hancing technology for security and enforcement at 15 the northern border, such as infrared technology and 16 technology that enhances coordination between the 17 Governments of Canada and the United States gen- 18 erally and specifically between Canadian police and 19 the Federal Bureau of Investigation. 22 Subtitle B--Preservation of Immigration Benefits for Victims of Terrorism 23 SEC. 211. SPECIAL IMMIGRANT STATUS. 20 21 *100501.0B6* 24 (a) IN GENERAL. For purposes of the Immigration 25 and Nationality Act (8 U.S.C. 1101 et seq.), the Attorney 26 General may provide an alien described in subsection (b) October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000894 007104-001645 H.L.C. F:\MDB\MDB.964 76 1 with the status of a special immigrant under section 2 101(a)(27) of such Act (8 U.S.C. 1101(a(27)), if the 3 alien 4 (1) files with the Attorney General a petition 5 under section 204 of such Act (8 U.S.C. 1154) for 6 classification under section 203(b)(4) of such Act (8 7 U.S.C. 1153(b)(4)); and 8 (2) is otherwise eligible to receive an immigrant 9 visa and is otherwise admissible to the United States 10 for permanent residence, except in determining such 11 admissibility, the grounds for inadmissibility speci- 12 fied in section 212(a)(4) of such Act (8 U.S.C. 13 1182(a)(4)) shall not apply. 14 (b) ALIENS DESCRIBED. 15 (1) PRINCIPAL 16 in this subsection if 17 ALIENS. An alien is described (A) the alien was the beneficiary of 18 (i) a petition that was filed with the 19 Attorney General on or before September 20 11, 2001 21 *100501.0B6* (I) under section 204 of the Im- 22 migration and Nationality Act (8 23 U.S.C. 1154) to classify the alien as 24 a family-sponsored immigrant under 25 section 203(a) of such Act (8 U.S.C. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000895 007104-001646 H.L.C. F:\MDB\MDB.964 77 1 1153(a)) or as an employment-based 2 immigrant under section 203(b) of 3 such Act (8 U.S.C. 1153(b)); or (II) under section 214(d) (8 4 5 U.S.C. 1184(d)) of such Act to au- 6 thorize 7 immigrant visa to the alien under sec- 8 tion 101(a)(15)(K) of such Act (8 9 U.S.C. 1101(a)(15)(K)); or the issuance of a non- (ii) an application for labor certifi- 10 11 cation under section 212(a)(5)(A) of such 12 Act (8 U.S.C. 1182(a)(5)(A)) that was 13 filed under regulations of the Secretary of 14 Labor on or before such date; and 15 (B) such petition or application was re- 16 voked or terminated (or otherwise rendered 17 null), either before or after its approval, due to 18 a specified terrorist activity that directly re- 19 sulted in 20 21 (i) the death or disability of the peti- *100501.0B6* tioner, applicant, or alien beneficiary; or 22 (ii) loss of employment due to physical 23 damage to, or destruction of, the business 24 of the petitioner or applicant. 25 (2) SPOUSES AND CHILDREN. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000896 007104-001647 H.L.C. F:\MDB\MDB.964 78 1 2 (A) IN GENERAL. An alien is described in this subsection if 3 (i) the alien was, on September 10, 4 2001, the spouse or child of a principal 5 alien described in paragraph (1); and (ii) the alien 6 (I) is accompanying such prin- 7 cipal alien; or 8 (II) is following to join such prin- 9 10 cipal alien not later than September 11 11, 2003. 12 (B) CONSTRUCTION. For purposes of 13 construing the terms ''accompanying'' and ''fol- 14 lowing to join'' in subparagraph (A)(ii), any 15 death of a principal alien that is described in 16 paragraph (1)(B)(i) shall be disregarded. 17 (3) GRANDPARENTS OF ORPHANS. An alien is *100501.0B6* 18 described in this subsection if the alien is a grand- 19 parent of a child, both of whose parents died as a 20 direct result of a specified terrorist activity, if either 21 of such deceased parents was, on September 10, 22 2001, a citizen or national of the United States or 23 an alien lawfully admitted for permanent residence 24 in the United States. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000897 007104-001648 H.L.C. F:\MDB\MDB.964 79 (c) PRIORITY DATE. 1 Immigrant visas made avail- 2 able under this section shall be issued to aliens in the 3 order in which a petition on behalf of each such alien is 4 filed with the Attorney General under subsection (a)(1), 5 except that if an alien was assigned a priority date with 6 respect to a petition described in subsection (b)(1)(A)(i), 7 the alien may maintain that priority date. (d) NUMERICAL LIMITATIONS. 8 For purposes of the 9 application of sections 201 through 203 of the Immigra10 tion and Nationality Act (8 U.S.C. 1151 1153) in any fis11 cal year, aliens eligible to be provided status under this 12 section shall be treated as special immigrants described 13 in section 101(a)(27) of such Act (8 U.S.C. 1101(a)(27)) 14 who are not described in subparagraph (A), (B), (C), or 15 (K) of such section. 16 SEC. 212. EXTENSION OF FILING OR REENTRY DEADLINES. (a) AUTOMATIC E XTENSION OF NONIMMIGRANT STA- 17 18 TUS. 19 (1) IN GENERAL. Notwithstanding section 214 *100501.0B6* 20 of the Immigration and Nationality Act (8 U.S.C. 21 1184), in the case of an alien described in paragraph 22 (2) who was lawfully present in the United States as 23 a nonimmigrant on September 10, 2001, the alien 24 may remain lawfully in the United States in the 25 same nonimmigrant status until the later of October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000898 007104-001649 H.L.C. F:\MDB\MDB.964 80 1 (A) the date such lawful nonimmigrant 2 status otherwise would have terminated if this 3 subsection had not been enacted; or (B) 1 year after the death or onset of dis- 4 5 ability described in paragraph (2). 6 (2) ALIENS DESCRIBED. (A) PRINCIPAL 7 ALIENS. An alien is de- 8 scribed in this paragraph if the alien was dis- 9 abled as a direct result of a specified terrorist 10 activity. (B) SPOUSES 11 AND CHILDREN. An alien is 12 described in this paragraph if the alien was, on 13 September 10, 2001, the spouse or child of 14 (i) a principal alien described in subparagraph (A); or 15 (ii) an alien who died as a direct re- 16 sult of a specified terrorist activity. 17 18 (3) AUTHORIZED EMPLOYMENT. During the *100501.0B6* 19 period in which a principal alien or alien spouse is 20 in lawful nonimmigrant status under paragraph (1), 21 the alien shall be provided an ''employment author- 22 ized'' endorsement or other appropriate document 23 signifying authorization of employment not later 24 than 30 days after the alien requests such authoriza- 25 tion. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000899 007104-001650 H.L.C. F:\MDB\MDB.964 81 (b) NEW DEADLINES 1 2 OF FOR NONIMMIGRANT STATUS. 3 (1) FILING E XTENSION OR CHANGE DELAYS. In the case of an alien 4 who was lawfully present in the United States as a 5 nonimmigrant on September 10, 2001, if the alien 6 was prevented from filing a timely application for an 7 extension or change of nonimmigrant status as a di- 8 rect result of a specified terrorist activity, the alien's 9 application shall be considered timely filed if it is 10 filed not later than 60 days after it otherwise would 11 have been due. 12 (2) DEPARTURE DELAYS. In the case of an *100501.0B6* 13 alien who was lawfully present in the United States 14 as a nonimmigrant on September 10, 2001, if the 15 alien is unable timely to depart the United States as 16 a direct result of a specified terrorist activity, the 17 alien shall not be considered to have been unlawfully 18 present in the United States during the period be- 19 ginning on September 11, 2001, and ending on the 20 date of the alien's departure, if such departure oc- 21 curs on or before November 11, 2001. 22 (3) SPECIAL 23 TURN FROM ABROAD. 24 25 RULE FOR ALIENS UNABLE TO RE - (A) PRINCIPAL ALIENS. In the case of an alien who was in a lawful nonimmigrant status October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000900 007104-001651 H.L.C. F:\MDB\MDB.964 82 1 on September 10, 2001, but who was not 2 present in the United States on such date, if 3 the alien was prevented from returning to the 4 United States in order to file a timely applica- 5 tion for an extension of nonimmigrant status as 6 a direct result of a specified terrorist activity 7 (i) the alien's application shall be con- 8 sidered timely filed if it is filed not later 9 than 60 days after it otherwise would have 10 been due; and 11 (ii) the alien's lawful nonimmigrant 12 status shall be considered to continue until 13 the later of 14 (I) the date such status otherwise 15 would have terminated if this sub- 16 paragraph had not been enacted; or 17 (II) the date that is 60 days 18 after the date on which the applica- 19 tion described in clause (i) otherwise 20 would have been due. 21 *100501.0B6* (B) SPOUSES AND CHILDREN. In the case 22 of an alien who is the spouse or child of a prin- 23 cipal alien described in subparagraph (A), if the 24 spouse or child was in a lawful nonimmigrant 25 status on September 10, 2001, the spouse or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000901 007104-001652 H.L.C. F:\MDB\MDB.964 83 1 child may remain lawfully in the United States 2 in the same nonimmigrant status until the later 3 of 4 (i) the date such lawful nonimmigrant 5 status otherwise would have terminated if 6 this subparagraph had not been enacted; 7 or 8 (ii) the date that is 60 days after the 9 date on which the application described in 10 subparagraph (A) otherwise would have 11 been due. 12 13 (c) DIVERSITY IMMIGRANTS. (1) WAIVER OF FISCAL YEAR LIMITATION. *100501.0B6* 14 Notwithstanding section 203(e)(2) of the Immigra- 15 tion and Nationality Act (8 U.S.C. 1153(e)(2)), an 16 immigrant visa number issued to an alien under sec- 17 tion 203(c) of such Act for fiscal year 2001 may be 18 used by the alien during the period beginning on Oc- 19 tober 1, 2001, and ending on April 1, 2002, if the 20 alien establishes that the alien was prevented from 21 using it during fiscal year 2001 as a direct result of 22 a specified terrorist activity. 23 (2) WORLDWIDE LEVEL. In the case of an 24 alien entering the United States as a lawful perma- 25 nent resident, or adjusting to that status, under October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000902 007104-001653 H.L.C. F:\MDB\MDB.964 84 1 paragraph (1), the alien shall be counted as a diver- 2 sity immigrant for fiscal year 2001 for purposes of 3 section 201(e) of the Immigration and Nationality 4 Act (8 U.S.C. 1151(e)), unless the worldwide level 5 under such section for such year has been exceeded, 6 in which case the alien shall be counted as a diver- 7 sity immigrant for fiscal year 2002. (3) TREATMENT 8 9 TAIN ALIENS. OF FAMILY MEMBERS OF CER- In the case of a principal alien *100501.0B6* 10 issued an immigrant visa number under section 11 203(c) of the Immigration and Nationality Act (8 12 U.S.C. 1153(c)) for fiscal year 2001, if such prin- 13 cipal alien died as a direct result of a specified ter- 14 rorist activity, the aliens who were, on September 15 10, 2001, the spouse and children of such principal 16 alien shall, if not otherwise entitled to an immigrant 17 status and the immediate issuance of a visa under 18 subsection (a), (b), or (c) of section 203 of such Act, 19 be entitled to the same status, and the same order 20 of consideration, that would have been provided to 21 such alien spouse or child under section 203(d) of 22 such Act if the principal alien were not deceased. 23 (d) E XTENSION 24 VISAS. OF E XPIRATION OF IMMIGRANT Notwithstanding the limitations under section 25 221(c) of the Immigration and Nationality Act (8 U.S.C. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000903 007104-001654 H.L.C. F:\MDB\MDB.964 85 1 1201(c)), in the case of any immigrant visa issued to an 2 alien that expires or expired before December 31, 2001, 3 if the alien was unable to effect entry to the United States 4 as a direct result of a specified terrorist activity, then the 5 period of validity of the visa is extended until December 6 31, 2001, unless a longer period of validity is otherwise 7 provided under this subtitle. 8 (e) GRANTS OF PAROLE E XTENDED. In the case of 9 any parole granted by the Attorney General under section 10 212(d)(5) of the Immigration and Nationality Act (8 11 U.S.C. 1182(d)(5)) that expires on a date on or after Sep12 tember 11, 2001, if the alien beneficiary of the parole was 13 unable to return to the United States prior to the expira14 tion date as a direct result of a specified terrorist activity, 15 the parole is deemed extended for an additional 90 days. 16 (f) VOLUNTARY DEPARTURE . Notwithstanding sec- 17 tion 240B of the Immigration and Nationality Act (8 18 U.S.C. 1229c), if a period for voluntary departure under 19 such section expired during the period beginning on Sep20 tember 11, 2001, and ending on October 11, 2001, such *100501.0B6* 21 voluntary departure period is deemed extended for an ad22 ditional 30 days. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000904 007104-001655 H.L.C. F:\MDB\MDB.964 86 1 SEC. 213. HUMANITARIAN RELIEF FOR CERTAIN SURVIVING 2 3 SPOUSES AND CHILDREN. (a) TREATMENT 4 withstanding the AS IMMEDIATE RELATIVES. second sentence of Notsection 5 201(b)(2)(A)(i) of the Immigration and Nationality Act 6 (8 U.S.C. 1151(b)(2)(A)(i)), in the case of an alien who 7 was the spouse of a citizen of the United States at the 8 time of the citizen's death and was not legally separated 9 from the citizen at the time of the citizen's death, if the 10 citizen died as a direct result of a specified terrorist activ11 ity, the alien (and each child of the alien) shall be consid12 ered, for purposes of section 201(b) of such Act, to remain 13 an immediate relative after the date of the citizen's death, 14 but only if the alien files a petition under section 15 204(a)(1)(A)(ii) of such Act within 2 years after such date 16 and only until the date the alien remarries. 17 (b) SPOUSES, CHILDREN, UNMARRIED SONS 18 DAUGHTERS 19 ALIENS. 20 OF LAWFUL PERMANENT AND RESIDENT (1) IN GENERAL. Any spouse, child, or unmar- *100501.0B6* 21 ried son or daughter of an alien described in para- 22 graph (3) who is included in a petition for classifica- 23 tion as a family-sponsored immigrant under section 24 203(a)(2) of the Immigration and Nationality Act (8 25 U.S.C. 1153(a)(2)) that was filed by such alien be- 26 fore September 11, 2001, shall be considered (if the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000905 007104-001656 H.L.C. F:\MDB\MDB.964 87 1 spouse, child, son, or daughter has not been admit- 2 ted or approved for lawful permanent residence by 3 such date) a valid petitioner for preference status 4 under such section with the same priority date as 5 that assigned prior to the death described in para- 6 graph (3)(A). No new petition shall be required to 7 be filed. Such spouse, child, son, or daughter may be 8 eligible for deferred action and work authorization. 9 (2) SELF-PETITIONS. Any spouse, child, or 10 unmarried son or daughter of an alien described in 11 paragraph (3) who is not a beneficiary of a petition 12 for classification as a family-sponsored immigrant 13 under section 203(a)(2) of the Immigration and Na- 14 tionality Act may file a petition for such classifica- 15 tion with the Attorney General, if the spouse, child, 16 son, or daughter was present in the United States 17 on September 11, 2001. Such spouse, child, son, or 18 daughter may be eligible for deferred action and 19 work authorization. 20 (3) ALIENS 21 *100501.0B6* 22 23 DESCRIBED. in this paragraph if the alien An alien is described (A) died as a direct result of a specified terrorist activity; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000906 007104-001657 H.L.C. F:\MDB\MDB.964 88 1 (B) on the day of such death, was lawfully 2 admitted for permanent residence in the United 3 States. 4 (c) APPLICATIONS FOR 5 SURVIVING SPOUSES AND 6 BASED IMMIGRANTS. 7 (1) IN GENERAL. ADJUSTMENT CHILDREN OF OF STATUS BY E MPLOYMENT- Any alien who was, on Sep- 8 tember 10, 2001, the spouse or child of an alien de- 9 scribed in paragraph (2), and who applied for ad- 10 justment of status prior to the death described in 11 paragraph (2)(A), may have such application adju- 12 dicated as if such death had not occurred. 13 14 15 16 17 18 (2) ALIENS DESCRIBED. in this paragraph if the alien An alien is described (A) died as a direct result of a specified terrorist activity; and (B) on the day before such death, was (i) an alien lawfully admitted for per- *100501.0B6* 19 manent residence in the United States by 20 reason of having been allotted a visa under 21 section 203(b) of the Immigration and Na- 22 tionality Act (8 U.S.C. 1153(b)); or 23 (ii) an applicant for adjustment of 24 status to that of an alien described in October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000907 007104-001658 H.L.C. F:\MDB\MDB.964 89 1 clause (i), and admissible to the United 2 States for permanent residence. (d) WAIVER 3 OF PUBLIC CHARGE GROUNDS. In de- 4 termining the admissibility of any alien accorded an immi5 gration benefit under this section, the grounds for inad6 missibility specified in section 212(a)(4) of the Immigra7 tion and Nationality Act (8 U.S.C. 1182(a)(4)) shall not 8 apply. 9 SEC. 214. ''AGE-OUT'' PROTECTION FOR CHILDREN. 10 For purposes of the administration of the Immigra- 11 tion and Nationality Act (8 U.S.C. 1101 et seq.), in the 12 case of an alien 13 (1) whose 21st birthday occurs in September 14 2001, and who is the beneficiary of a petition or ap- 15 plication filed under such Act on or before Sep- 16 tember 11, 2001, the alien shall be considered to be 17 a child for 90 days after the alien's 21st birthday 18 for purposes of adjudicating such petition or applica- 19 tion; and 20 (2) whose 21st birthday occurs after September *100501.0B6* 21 2001, and who is the beneficiary of a petition or ap- 22 plication filed under such Act on or before Sep- 23 tember 11, 2001, the alien shall be considered to be 24 a child for 45 days after the alien's 21st birthday October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000908 007104-001659 H.L.C. F:\MDB\MDB.964 90 1 for purposes of adjudicating such petition or applica- 2 tion. 3 SEC. 215. TEMPORARY ADMINISTRATIVE RELIEF. The Attorney General, for humanitarian purposes or 4 5 to ensure family unity, may provide temporary administra6 tive relief to any alien who (1) was lawfully present in the United States on 7 September 10, 2001; 8 9 (2) was on such date the spouse, parent, or 10 child of an individual who died or was disabled as 11 a direct result of a specified terrorist activity; and 12 (3) is not otherwise entitled to relief under any other provision of this subtitle. 13 14 SEC. 216. EVIDENCE OF DEATH, DISABILITY, OR LOSS OF 15 16 EMPLOYMENT. (a) IN GENERAL. The Attorney General shall estab- 17 lish appropriate standards for evidence demonstrating, for 18 purposes of this subtitle, that any of the following oc19 curred as a direct result of a specified terrorist activity: *100501.0B6* 20 (1) Death. 21 (2) Disability. 22 (3) Loss of employment due to physical damage 23 to, or destruction of, a business. 24 (b) WAIVER OF REGULATIONS. The Attorney Gen- 25 eral shall carry out subsection (a) as expeditiously as pos- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000909 007104-001660 H.L.C. F:\MDB\MDB.964 91 1 sible. The Attorney General is not required to promulgate 2 regulations prior to implementing this subtitle. 3 SEC. 217. NO BENEFITS TO TERRORISTS OR FAMILY MEM- 4 BERS OF TERRORISTS. Notwithstanding any other provision of this subtitle, 5 6 nothing in this subtitle shall be construed to provide any 7 benefit or relief to (1) any individual culpable for a specified ter- 8 rorist activity; or 9 (2) any family member of any individual de- 10 scribed in paragraph (1). 11 12 SEC. 218. DEFINITIONS. (a) APPLICATION 13 14 ALITY ACT PROVISIONS. OF IMMIGRATION AND NATION- Except as otherwise specifically 15 provided in this subtitle, the definitions used in the Immi16 gration and Nationality Act (excluding the definitions ap17 plicable exclusively to title III of such Act) shall apply in 18 the administration of this subtitle. 19 (b) SPECIFIED TERRORIST ACTIVITY. For purposes 20 of this subtitle, the term ''specified terrorist activity'' *100501.0B6* 21 means any terrorist activity conducted against the Govern22 ment or the people of the United States on September 11, 23 2001. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000910 007104-001661 H.L.C. F:\MDB\MDB.964 92 1 2 3 4 TITLE III--CRIMINAL JUSTICE Subtitle A--Substantive Criminal Law SEC. 301. STATUTE OF LIMITATION FOR PROSECUTING 5 6 TERRORISM OFFENSES. (a) IN GENERAL. Section 3286 of title 18, United 7 States Code, is amended to read as follows: 8 ''? 3286. Terrorism offenses 9 ''(a) An indictment may be found or an information 10 instituted at any time without limitation for any Federal 11 terrorism offense or any of the following offenses: 12 ''(1) A violation of, or an attempt or conspiracy *100501.0B6* 13 to violate, section 32 (relating to destruction of air- 14 craft or aircraft facilities), 37(a)(1) (relating to vio- 15 lence at international airports), 175 (relating to bio- 16 logical weapons), 229 (relating to chemical weap- 17 ons), 351(a) (d) (relating to congressional, cabinet, 18 and Supreme Court assassination and kidnaping), 19 791 (relating to harboring terrorists), 831 (relating 20 to nuclear materials), 844(f) or (i) when it relates 21 to bombing (relating to arson and bombing of cer- 22 tain property), 1114(1) (relating to protection of of- 23 ficers and employees of the United States), 1116, if 24 the offense involves murder (relating to murder or 25 manslaughter of foreign officials, official guests, or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000911 007104-001662 H.L.C. F:\MDB\MDB.964 93 1 internationally protected persons), 1203 (relating to 2 hostage taking), 1751(a) (d) (relating to Presi- 3 dential and Presidential staff assassination and kid- 4 naping), 2332(a)(1) (relating to certain homicides 5 and other violence against United States nationals 6 occurring outside of the United States), 2332a (re- 7 lating to use of weapons of mass destruction), 2332b 8 (relating to acts of terrorism transcending national 9 boundaries) of this title. 10 ''(2) Section 236 (relating to sabotage of nu- 11 clear facilities or fuel) of the Atomic Energy Act of 12 1954 (42 U.S.C. 2284); 13 ''(3) Section 601 (relating to disclosure of iden- 14 tities of covert agents) of the National Security Act 15 of 1947 (50 U.S.C. 421). 16 ''(4) Section 46502 (relating to aircraft piracy) 17 of title 49. 18 ''(b) An indictment may be found or an information 19 instituted within 15 years after the offense was committed 20 for any of the following offenses: 21 *100501.0B6* ''(1) Section 175b (relating to biological weap- 22 ons), 842(m) or (n) (relating to plastic explosives), 23 930(c) if it involves murder (relating to possessing 24 a dangerous weapon in a Federal facility), 956 (re- 25 lating to conspiracy to injure property of a foreign October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000912 007104-001663 H.L.C. F:\MDB\MDB.964 94 1 government), 1030(a)(1), 1030(a)(5)(A), or 2 1030(a)(7) (relating to protection of computers), 3 1362 (relating to destruction of communication 4 lines, stations, or systems), 1366 (relating to de- 5 struction of an energy facility), 1992 (relating to 6 trainwrecking), 2152 (relating to injury of fortifica- 7 tions, harbor defenses, or defensive sea areas), 2155 8 (relating to destruction of national defense mate- 9 rials, premises, or utilities), 2156 (relating to pro- 10 duction of defective national defense materials, 11 premises, or utilities), 2280 (relating to violence 12 against maritime navigation), 2281 (relating to vio- 13 lence against maritime fixed platforms), 2339A (re- 14 lating to providing material support to terrorists), 15 2339B (relating to providing material support to 16 terrorist organizations), or 2340A (relating to tor- 17 ture). 18 ''(2) Any of the following provisions of title 49: *100501.0B6* 19 the second sentence of section 46504 (relating to as- 20 sault on a flight crew with a dangerous weapon), 21 section 46505(b)(3), (relating to explosive or incen- 22 diary devices, or endangerment of human life by 23 means of weapons, on aircraft), section 46506 if 24 homicide or attempted homicide is involved, or sec- 25 tion 60123(b) (relating to destruction of interstate October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000913 007104-001664 H.L.C. F:\MDB\MDB.964 95 1 gas or hazardous liquid pipeline facility) of title 2 49.''. 3 (b) CLERICAL AMENDMENT. The table of sections 4 at the beginning of chapter 213 of title 18, United States 5 Code, is amended by amending the item relating to section 6 3286 to read as follows: ''3286. Terrorism offenses.''. (c) APPLICATION. 7 The amendments made by this 8 section shall apply to the prosecution of any offense com9 mitted before, on, or after the date of enactment of this 10 section. 11 SEC. 302. ALTERNATIVE MAXIMUM PENALTIES FOR TER- 12 13 RORISM CRIMES. Section 3559 of title 18, United States Code, is 14 amended by adding after subsection (d) the following: 15 ''(e) AUTHORIZED TERMS 16 TERRORISM CRIMES. OF IMPRISONMENT FOR A person convicted of any Federal 17 terrorism offense may be sentenced to imprisonment for 18 any term of years or for life, notwithstanding any max19 imum term of imprisonment specified in the law describing 20 the offense. The authorization of imprisonment under this *100501.0B6* 21 subsection is supplementary to, and does not limit, the 22 availability of any other penalty authorized by the law de23 scribing the offense, including the death penalty, and does 24 not limit the applicability of any mandatory minimum October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000914 007104-001665 H.L.C. F:\MDB\MDB.964 96 1 term of imprisonment, including any mandatory life term, 2 provided by the law describing the offense.''. 3 SEC. 303. PENALTIES FOR TERRORIST CONSPIRACIES. Chapter 113B of title 18, United States Code, is 4 5 amended (1) by inserting after section 2332b the fol- 6 lowing: 7 8 ''? 2332c. Attempts and conspiracies ''(a) Except as provided in subsection (c), any person 9 10 who attempts or conspires to commit any Federal ter11 rorism offense shall be subject to the same penalties as 12 those prescribed for the offense, the commission of which 13 was the object of the attempt or conspiracy. ''(b) Except as provided in subsection (c), any person 14 15 who attempts or conspires to commit any offense described 16 in section 25(2) shall be subject to the same penalties as 17 those prescribed for the offense, the commission of which 18 was the object of the attempt or conspiracy. ''(c) A death penalty may not be imposed by oper- 19 20 ation of this section.''; and *100501.0B6* 21 (2) in the table of sections at the beginning of 22 the chapter, by inserting after the item relating to 23 section 2332b the following new item: ''2332c. Attempts and conspiracies.''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000915 007104-001666 H.L.C. F:\MDB\MDB.964 97 1 SEC. 304. TERRORISM CRIMES AS RICO PREDICATES. 2 Section 1961(1) of title 18, United States Code, is 3 amended 4 5 6 (1) by striking ''or (F)'' and inserting ''(F)''; and (2) by striking ''financial gain.'' and inserting 7 ''financial gain, or (G) any act that is a Federal ter- 8 rorism offense or is indictable under any of the fol- 9 lowing provisions of law: section 32 (relating to de- *100501.0B6* 10 struction of aircraft or aircraft facilities), 37(a)(1) 11 (relating to violence at international airports), 175 12 (relating to biological weapons), 229 (relating to 13 chemical weapons), 351(a) (d) (relating to congres- 14 sional, cabinet, and Supreme Court assassination 15 and kidnaping), 831 (relating to nuclear materials), 16 842(m) or (n) (relating to plastic explosives), 844(f) 17 or (i) when it involves a bombing (relating to arson 18 and bombing of certain property), 930(c) when it in- 19 volves an attack on a Federal facility, 1114 when it 20 involves murder (relating to protection of officers 21 and employees of the United States), 1116 when it 22 involves murder (relating to murder or manslaughter 23 of foreign officials, official guests, or internationally 24 protected persons), 1203 (relating to hostage tak- 25 ing), 1362 (relating to destruction of communication 26 lines, stations, or systems), 1366 (relating to de- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000916 007104-001667 H.L.C. F:\MDB\MDB.964 98 1 struction of an energy facility), 1751(a) (d) (relat- 2 ing to Presidential and Presidential staff assassina- 3 tion 4 trainwrecking), 2280 (relating to violence against 5 maritime navigation), 2281 (relating to violence 6 against maritime fixed platforms), 2332a (relating 7 to use of weapons of mass destruction), 2332b (re- 8 lating to acts of terrorism transcending national 9 boundaries), 2339A (relating to providing material 10 support to terrorists), 2339B (relating to providing 11 material support to terrorist organizations), or 12 2340A (relating to torture) of this title; section 236 13 (relating to sabotage of nuclear facilities or fuel) of 14 the Atomic Energy Act of 1954 (42 U.S.C. 2284); 15 or section 46502 (relating to aircraft piracy) or 16 60123(b) (relating to destruction of interstate gas or 17 hazardous liquid pipeline facility) of title 49;''. 18 and kidnaping), 1992 (relating to SEC. 305. BIOLOGICAL WEAPONS. 19 Chapter 10 of title 18, United States Code, is 20 amended 21 *100501.0B6* 22 23 24 25 (1) in section 175 (A) in subsection (b) (i) by striking, ''section, the'' and inserting ''section ''(1) the''; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000917 007104-001668 H.L.C. F:\MDB\MDB.964 99 (ii) by striking ''does not include'' and 1 inserting ''includes''; 2 (iii) by inserting ''other than'' after 3 ''system for''; and 4 (iv) by striking ''purposes.'' and in- 5 serting ''purposes, and 6 7 ''(2) the terms biological agent and toxin do not 8 encompass any biological agent or toxin that is in its 9 naturally-occurring environment, if the biological 10 agent or toxin has not been cultivated, collected, or 11 otherwise extracted from its natural source.''; (B) by redesignating subsection (b) as sub- 12 13 section (c); and (C) by inserting after subsection (a) the 14 15 16 following: ''(b) ADDITIONAL OFFENSE . Whoever knowingly 17 possesses any biological agent, toxin, or delivery system 18 of a type or in a quantity that, under the circumstances, 19 is not reasonably justified by a prophylactic, protective, 20 or other peaceful purpose, shall be fined under this title, *100501.0B6* 21 imprisoned not more than 10 years, or both.''; 22 23 (2) by inserting after section 175a the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000918 007104-001669 H.L.C. F:\MDB\MDB.964 100 1 ''? 175b. Possession by restricted persons 2 ''(a) No restricted person described in subsection (b) 3 shall ship or transport in interstate or foreign commerce, 4 or possess in or affecting commerce, any biological agent 5 or toxin, or receive any biological agent or toxin that has 6 been shipped or transported in interstate or foreign com7 merce, if the biological agent or toxin is listed as a select 8 agent in subsection (j) of section 72.6 of title 42, Code 9 of Federal Regulations, pursuant to section 511(d)(1) of 10 the Antiterrorism and Effective Death Penalty Act of 11 1996 (Public Law 104 132), and is not exempted under 12 subsection (h) of such section 72.6, or Appendix A of part 13 72 of such title; except that the term select agent does 14 not include any such biological agent or toxin that is in 15 its naturally-occurring environment, if the biological agent 16 or toxin has not been cultivated, collected, or otherwise 17 extracted from its natural source. 18 ''(b) As used in this section, the term 'restricted per- 19 son' means an individual who 20 21 ''(1) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year; *100501.0B6* 22 ''(2) has been convicted in any court of a crime 23 punishable by imprisonment for a term exceeding 1 24 year; 25 ''(3) is a fugitive from justice; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000919 007104-001670 H.L.C. F:\MDB\MDB.964 101 1 ''(4) is an unlawful user of any controlled sub- 2 stance (as defined in section 102 of the Controlled 3 Substances Act (21 U.S.C. 802)); 4 5 ''(5) is an alien illegally or unlawfully in the United States; 6 ''(6) has been adjudicated as a mental defective 7 or has been committed to any mental institution; or 8 ''(7) is an alien (other than an alien lawfully 9 admitted for permanent residence) who is a national 10 of a country as to which the Secretary of State, pur- 11 suant to section 6(j) of the Export Administration 12 Act of 1979 (50 U.S.C. App. 2405(j)), section 620A 13 of chapter 1 of part M of the Foreign Assistance Act 14 of 1961 (22 U.S.C. 2371), or section 40(d) of chap- 15 ter 3 of the Arms Export Control Act (22 U.S.C. 16 2780(d)), has made a determination that remains in 17 effect that such country has repeatedly provided 18 support for acts of international terrorism. 19 ''(c) As used in this section, the term 'alien' has the 20 same meaning as that term is given in section 1010(a)(3) *100501.0B6* 21 of the Immigration and Nationality Act (8 U.S.C. 22 1101(a)(3)), and the term 'lawfully' admitted for perma23 nent residence has the same meaning as that term is given 24 in section 101(a)(20) of the Immigration and Nationality 25 Act (8 U.S.C. 1101(a)(20)). October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000920 007104-001671 H.L.C. F:\MDB\MDB.964 102 ''(d) Whoever knowingly violates this section shall be 1 2 fined under this title or imprisoned not more than ten 3 years, or both, but the prohibition contained in this section 4 shall not apply with respect to any duly authorized govern5 mental activity under title V of the National Security Act 6 of 1947.''; and 7 (3) in the table of sections in the beginning of 8 such chapter, by inserting after the item relating to 9 section 175a the following: ''175b. Possession by restricted persons.''. 10 SEC. 306. SUPPORT OF TERRORISM THROUGH EXPERT AD- 11 VICE OR ASSISTANCE. Section 2339A of title 18, United States Code, is 12 13 amended (1) in subsection (a) 14 (A) by striking ''a violation'' and all that 15 16 follows through ''49'' and inserting ''any Fed- 17 eral terrorism offense or any offense described 18 in section 25(2)''; and (B) by striking ''violation,'' and inserting 19 *100501.0B6* 20 ''offense,''; and 21 (2) in subsection (b), by inserting ''expert advice or assistance,'' after ''training,''. 22 23 SEC. 307. PROHIBITION AGAINST HARBORING. 24 (a) Title 18, United States Code, is amended by in- 25 serting before section 792 the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000921 007104-001672 H.L.C. F:\MDB\MDB.964 103 1 ''? 791. Prohibition against harboring ''Whoever harbors or conceals any person who he 2 3 knows has committed, or is about to commit, an offense 4 described in section 25(2) or this title shall be fined under 5 this title or imprisoned not more than ten years or both. 6 There is extraterritorial Federal jurisdiction over any vio7 lation of this section or any conspiracy or attempt to vio8 late this section. A violation of this section or of such a 9 conspiracy or attempt may be prosecuted in any Federal 10 judicial district in which the underlying offense was com11 mitted, or in any other Federal judicial district as pro12 vided by law.''. (b) The table of sections at the beginning of chapter 13 14 37 of title 18, United States Code, is amended by inserting 15 before the item relating to section 792 the following: ''791. 16 Prohibition against harboring.''. SEC. 308. POST-RELEASE SUPERVISION OF TERRORISTS. Section 3583 of title 18, United States Code, is 17 18 amended by adding at the end the following: ''(j) SUPERVISED RELEASE TERMS 19 20 OFFENSES. FOR TERRORISM Notwithstanding subsection (b), the author- *100501.0B6* 21 ized terms of supervised release for any Federal terrorism 22 offense are any term of years or life.''. 23 SEC. 309. DEFINITION. 24 (a) Chapter 1 of title 18, United States Code, is 25 amended October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000922 007104-001673 H.L.C. F:\MDB\MDB.964 104 1 2 (1) by adding after section 24 a new section as follows: 3 ''? 25. Federal terrorism offense defined 4 ''As used in this title, the term 'Federal terrorism 5 offense' means an offense that is 6 ''(1) is calculated to influence or affect the con- 7 duct of government by intimidation or coercion; or 8 to retaliate against government conduct; and 9 ''(2) is a violation of, or an attempt or con- *100501.0B6* 10 spiracy to violate- section 32 (relating to destruction 11 of aircraft or aircraft facilities), 37 (relating to vio- 12 lence at international airports), 81 (relating to arson 13 within special maritime and territorial jurisdiction), 14 175, 175b (relating to biological weapons), 229 (re- 15 lating to chemical weapons), 351(a) (d) (relating to 16 congressional, cabinet, and Supreme Court assas- 17 sination and kidnaping), 791 (relating to harboring 18 terrorists), 831 (relating to nuclear materials), 19 842(m) or (n) (relating to plastic explosives), 844(f) 20 or (i) (relating to arson and bombing of certain 21 property), 930(c), 956 (relating to conspiracy to in- 22 jure property of a foreign government), 1030(a)(1), 23 1030(a)(5)(A), or 1030(a)(7) (relating to protection 24 of computers), 1114 (relating to protection of offi- 25 cers and employees of the United States), 1116 (re- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000923 007104-001674 H.L.C. F:\MDB\MDB.964 105 1 lating to murder or manslaughter of foreign officials, 2 official guests, or internationally protected persons), 3 1203 (relating to hostage taking), 1361 (relating to 4 injury of Government property or contracts), 1362 5 (relating to destruction of communication lines, sta- 6 tions, or systems), 1363 (relating to injury to build- 7 ings or property within special maritime and terri- 8 torial jurisdiction of the United States), 1366 (relat- 9 ing to destruction of an energy facility), 1751(a) (d) *100501.0B6* 10 (relating to Presidential and Presidential staff assas- 11 sination and kidnaping), 1992, 2152 (relating to in- 12 jury of fortifications, harbor defenses, or defensive 13 sea areas), 2155 (relating to destruction of national 14 defense materials, premises, or utilities), 2156 (re- 15 lating to production of defective national defense 16 materials, premises, or utilities), 2280 (relating to 17 violence against maritime navigation), 2281 (relating 18 to violence against maritime fixed platforms), 2332 19 (relating to certain homicides and other violence 20 against United States nationals occurring outside of 21 the United States), 2332a (relating to use of weap- 22 ons of mass destruction), 2332b (relating to acts of 23 terrorism transcending national boundaries), 2339A 24 (relating to providing material support to terrorists), 25 2339B (relating to providing material support to October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000924 007104-001675 H.L.C. F:\MDB\MDB.964 106 1 terrorist organizations), or 2340A (relating to tor- 2 ture); ''(3) section 236 (relating to sabotage of nu- 3 4 clear facilities or fuel) of the Atomic Energy Act of 5 1954 (42 U.S.C. 2284); ''(4) section 601 (relating to disclosure of iden- 6 7 tities of covert agents) of the National Security Act 8 of 1947 (50 U.S.C. 421); or ''(5) any of the following provisions of title 49: 9 10 section 46502 (relating to aircraft piracy), the sec- 11 ond sentence of section 46504 (relating to assault on 12 a flight crew with a dangerous weapon), section 13 46505(b)(3), (relating to explosive or incendiary de- 14 vices, or endangerment of human life by means of 15 weapons, on aircraft), section 46506 if homicide or 16 attempted homicide is involved, or section 60123(b) 17 (relating to destruction of interstate gas or haz- 18 ardous liquid pipeline facility) of title 49.''; and *100501.0B6* 19 (2) in the table of sections in the beginning of 20 such chapter, by inserting after the item relating to 21 section 24 the following: ''25. Federal terrorism offense defined.''. 22 (b) Section 2332b(g)(5)(B) of title 18, United States 23 Code, is amended by striking ''is a violation'' and all that 24 follows through ''title 49'' and inserting ''is a Federal ter25 rorism offense''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000925 007104-001676 H.L.C. F:\MDB\MDB.964 107 1 (c) Section 2331 of title 18, United States Code, is 2 amended 3 (1) in paragraph (1)(B) (A) by inserting ''(or to have the effect)'' 4 5 after ''intended''; and (B) in clause (iii), by striking ''by assas- 6 7 sination or kidnapping'' and inserting ''(or any 8 function thereof) by mass destruction, assas- 9 sination, or kidnapping (or threat thereof)''; 10 (2) in paragraph (3), by striking ''and''; 11 (3) in paragraph (4), by striking the period and 12 inserting ''; and''; and 13 (4) by inserting the following paragraph (4): 14 ''(5) the term 'domestic terrorism' means activi- 15 ties that 16 ''(A) involve acts dangerous to human life 17 that are a violation of the criminal laws of the 18 United States or of any State; and 19 20 21 *100501.0B6* 22 23 24 ''(B) appear to be intended (or to have the effect) ''(i) to intimidate or coerce a civilian population; ''(ii) to influence the policy of a government by intimidation or coercion; or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000926 007104-001677 H.L.C. F:\MDB\MDB.964 108 ''(iii) to affect the conduct of a gov- 1 2 ernment (or any function thereof) by mass 3 destruction, assassination, or kidnapping 4 (or threat thereof).''. 5 SEC. 310. CIVIL DAMAGES. Section 2707(c) of title 18, United States Code, is 6 7 amended by striking ''$1,000'' and inserting ''$10,000''. Subtitle B--Criminal Procedure 8 9 SEC. 351. SINGLE-JURISDICTION SEARCH WARRANTS FOR 10 TERRORISM. Rule 41(a) of the Federal Rules of Criminal Proce- 11 12 dure is amended by inserting after ''executed'' the fol13 lowing: ''and (3) in an investigation of domestic terrorism 14 or international terrorism (as defined in section 2331 of 15 title 18, United States Code), by a Federal magistrate 16 judge in any district court of the United States (including 17 a magistrate judge of such court), or any United States 18 Court of Appeals, having jurisdiction over the offense 19 being investigated, for a search of property or for a person 20 within or outside the district''. 21 *100501.0B6* SEC. 352. DNA IDENTIFICATION OF TERRORISTS. 22 Section 3(d)(1) of the DNA Analysis Backlog Elimi- 23 nation Act of 2000 (42 U.S.C. 14135a(d)(1)) is 24 amended October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000927 007104-001678 H.L.C. F:\MDB\MDB.964 109 (1) by redesignating subparagraph (G) as sub- 1 paragraph (H); and 2 (2) by inserting after subparagraph (F) the a 3 new subparagraph as follows: 4 ''(G) Any Federal terrorism offense (as defined 5 in section 25 of title 18, United States Code).''. 6 7 SEC. 353. GRAND JURY MATTERS. 8 Rule 6(e)(3)(C) of the Federal Rules of Criminal Pro- 9 cedure is amended 10 (1) by adding after clause (iv) the following: *100501.0B6* 11 ''(v) when permitted by a court at the 12 request of an attorney for the government, 13 upon a showing that the matters pertain to 14 international or domestic terrorism (as de- 15 fined in section 2331 of title 18, United 16 States Code) or national security, to any 17 Federal law enforcement, intelligence, na- 18 tional security, national defense, protective, 19 immigration personnel, or to the President 20 or Vice President of the United States, for 21 the performance of official duties.''; 22 23 24 25 (2) by striking ''or'' at the end of clause (iii); and (3) by striking the period at the end of clause (iv) and inserting ''; or''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000928 007104-001679 H.L.C. F:\MDB\MDB.964 110 1 SEC. 354. EXTRATERRITORIALITY. Chapter 113B of title 18, United States Code, is 2 3 amended (1) in the heading for section 2338, by striking 4 5 ''Exclusive''; 6 (2) in section 2338, by inserting ''There is 7 extraterritorial Federal jurisdiction over any Federal 8 terrorism offense and any offense under this chap- 9 ter, in addition to any extraterritorial jurisdiction 10 that may exist under the law defining the offense, if 11 the person committing the offense or the victim of 12 the offense is a national of the United States (as de- 13 fined in section 101 of the Immigration and Nation- 14 ality Act) or if the offense is directed at the security 15 or interests of the United States.'' before ''The dis- 16 trict courts''; and (3) in the table of sections at the beginning of 17 18 such chapter, by striking ''Exclusive'' in the item re- 19 lating to section 2338. 20 SEC. 355. JURISDICTION OVER CRIMES COMMITTED AT *100501.0B6* 21 UNITED STATES FACILITIES ABROAD. 22 Section 7 of title 18, United States Code, is amended 23 by adding at the end the following: 24 ''(9)(A) With respect to offenses committed by 25 or against a United States national, as defined in 26 section 1203(c) of this title October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000929 007104-001680 H.L.C. F:\MDB\MDB.964 111 ''(i) the premises of United States diplo- 1 2 matic, consular, military, or other United 3 States Government missions or entities in for- 4 eign states, including the buildings, parts of 5 buildings, and the land appurtenant or ancillary 6 thereto, irrespective of ownership, used for pur- 7 poses of those missions or entities; and ''(ii) residences in foreign states and the 8 land appurtenant or ancillary thereto, irrespec- 9 10 tive of ownership, used for purposes of those 11 missions or entities or used by United States 12 personnel assigned to those missions or entities, 13 except that this paragraph does not supercede 14 any treaty or international agreement in force 15 on the date of the enactment of this paragraph. 16 ''(B) This paragraph does not apply with re- 17 spect to an offense committed by a person described 18 in section 3261(a).''. 19 SEC. 356. SPECIAL AGENT AUTHORITIES. 20 (a) GENERAL AUTHORITY OF SPECIAL AGENTS. *100501.0B6* 21 Section 37(a) of the State Department Basic Authorities 22 Act of 1956 (22 U.S.C. 2709(a)) is amended 23 24 (1) by striking paragraph (2) and inserting the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000930 007104-001681 H.L.C. F:\MDB\MDB.964 112 ''(2) in the course of performing the functions 1 2 set forth in paragraphs (1) and (3), obtain and exe- 3 cute search and arrest warrants, as well as obtain 4 and serve subpoenas and summonses, issued under 5 the authority of the United States;''; (2) in paragraph (3)(F) by inserting ''or Presi- 6 7 dent-elect'' after ''President''; and (3) by striking paragraph (5) and inserting the 8 9 following: 10 ''(5) in the course of performing the functions 11 set forth in paragraphs (1) and (3), make arrests 12 without warrant for any offense against the United 13 States committed in the presence of the special 14 agent, or for any felony cognizable under the laws 15 of the United States if the special agent has reason- 16 able grounds to believe that the person to be ar- 17 rested has committed or is committing such felony.''. 18 (b) CRIMES. Section 37 of such Act (22 U.S.C. 19 2709) is amended by inserting after subsection (c) the fol20 lowing new subsections: 21 *100501.0B6* ''(d) INTERFERENCE WITH AGENTS. Whoever 22 knowingly and willfully obstructs, resists, or interferes 23 with a Federal law enforcement agent engaged in the per24 formance of the protective functions authorized by this October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000931 007104-001682 H.L.C. F:\MDB\MDB.964 113 1 section shall be fined under title 18 or imprisoned not 2 more than one year, or both. ''(e) PERSONS UNDER PROTECTION 3 4 AGENTS. Whoever engages in any conduct OF SPECIAL ''(1) directed against an individual entitled to 5 protection under this section, and 6 ''(2) which would constitute a violation of sec- 7 8 tion 112 or 878 of title 18, United States Code, if 9 such individual were a foreign official, an official 10 guest, or an internationally protected person, shall 11 be subject to the same penalties as are provided for 12 such conduct directed against an individual subject 13 to protection under such section of title 18.''. TITLE IV--FINANCIAL INFRASTRUCTURE 14 15 16 SEC. 401. LAUNDERING THE PROCEEDS OF TERRORISM. Section 1956(c)(7)(D) of title 18, United States 17 18 Code, is amended by inserting ''or 2339B'' after ''2339A''. 19 SEC. 402. MATERIAL SUPPORT FOR TERRORISM. 20 Section 2339A of title 18, United States Code, is *100501.0B6* 21 amended 22 (1) in subsection (a), by adding at the end the 23 following ''A violation of this section may be pros- 24 ecuted in any Federal judicial district in which the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000932 007104-001683 H.L.C. F:\MDB\MDB.964 114 1 underlying offense was committed, or in any other 2 Federal judicial district as provided by law.''; and 3 (2) in subsection (b), by striking ''or other fi- 4 nancial securities'' and inserting ''or monetary in- 5 struments or financial securities''. 6 SEC. 403. ASSETS OF TERRORIST ORGANIZATIONS. 7 Section 981(a)(1) of title 18, United States Code, is 8 amended by inserting after subparagraph (F) the fol9 lowing: 10 ''(G) All assets, foreign or domestic 11 ''(i) of any person, entity, or organization 12 engaged in planning or perpetrating any act of 13 domestic terrorism or international terrorism 14 (as defined in section 2331) against the United 15 States, citizens or residents of the United 16 States, or their property, and all assets, foreign 17 or domestic, affording any person a source of 18 influence over any such entity or organization; 19 ''(ii) acquired or maintained by any person *100501.0B6* 20 for the purpose of supporting, planning, con- 21 ducting, or concealing an act of domestic ter- 22 rorism or international terrorism (as defined in 23 section 2331) against the United States, citi- 24 zens or residents of the United States, or their 25 property; or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000933 007104-001684 H.L.C. F:\MDB\MDB.964 115 ''(iii) derived from, involved in, or used or 1 2 intended to be used to commit any act of do- 3 mestic terrorism or international terrorism (as 4 defined in section 2331) against the United 5 States, citizens or residents of the United 6 States, or their property.''. 7 SEC. 404. TECHNICAL CLARIFICATION RELATING TO PROVI- 8 SION 9 RORISM. OF MATERIAL SUPPORT TO TER- No provision of title IX of Public Law 106 387 shall 10 11 be understood to limit or otherwise affect section 2339A 12 or 2339B of title 18, United States Code. 13 SEC. 405. DISCLOSURE OF TAX INFORMATION IN TER- 14 RORISM AND NATIONAL SECURITY INVES- 15 TIGATIONS. (a) DISCLOSURE WITHOUT 16 17 TION A REQUEST OF INFORMA- RELATING TO TERRORIST ACTIVITIES, E TC. Para- 18 graph (3) of section 6103(i) of the Internal Revenue Code 19 of 1986 (relating to disclosure of return information to 20 apprise appropriate officials of criminal activities or emer*100501.0B6* 21 gency circumstances) is amended by adding at the end the 22 following new subparagraph: 23 ''(C) TERRORIST 24 ''(i) IN 25 ACTIVITIES, ETC. GENERAL. Except as pro- vided in paragraph (6), the Secretary may October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000934 007104-001685 H.L.C. F:\MDB\MDB.964 116 1 disclose in writing return information 2 (other than taxpayer return information) 3 that may be related to a terrorist incident, 4 threat, or activity to the extent necessary 5 to apprise the head of the appropriate Fed- 6 eral law enforcement agency responsible 7 for investigating or responding to such ter- 8 rorist incident, threat, or activity. The 9 head of the agency may disclose such re- 10 turn information to officers and employees 11 of such agency to the extent necessary to 12 investigate or respond to such terrorist in- 13 cident, threat, or activity. 14 ''(ii) DISCLOSURE TO THE DEPART- 15 MENT OF JUSTICE . 16 return information may also be disclosed to 17 the Attorney General under clause (i) to 18 the extent necessary for, and solely for use 19 in preparing, an application under para- 20 graph (7)(D). 21 Returns and taxpayer *100501.0B6* ''(iii) TAXPAYER IDENTITY. For pur- 22 poses of this subparagraph, a taxpayer's 23 identity shall not be treated as taxpayer 24 return information. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000935 007104-001686 H.L.C. F:\MDB\MDB.964 117 ''(iv) TERMINATION. 1 No disclosure 2 may be made under this subparagraph 3 after December 31, 2003.''. 4 (b) DISCLOSURE UPON REQUEST 5 RELATING TO OF INFORMATION TERRORIST ACTIVITIES, E TC. Subsection 6 (i) of section 6103 of such Code (relating to disclosure 7 to Federal officers or employees for administration of Fed8 eral laws not relating to tax administration) is amended 9 by redesignating paragraph (7) as paragraph (8) and by 10 inserting after paragraph (6) the following new paragraph: 11 12 13 14 15 ''(7) DISCLOSURE UPON REQUEST OF INFORMA- TION RELATING TO TERRORIST ACTIVITIES, ETC. ''(A) DISCLOSURE AGENCIES. TO LAW ENFORCEMENT ''(i) IN GENERAL. Except as pro- *100501.0B6* 16 vided in paragraph (6), upon receipt by the 17 Secretary of a written request which meets 18 the requirements of clause (iii), the Sec- 19 retary may disclose return information 20 (other than taxpayer return information) 21 to officers and employees of any Federal 22 law enforcement agency who are personally 23 and directly engaged in the response to or 24 investigation of terrorist incidents, threats, 25 or activities. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000936 007104-001687 H.L.C. F:\MDB\MDB.964 118 1 ''(ii) DISCLOSURE TO STATE AND 2 LOCAL LAW ENFORCEMENT AGENCIES. 3 The head of any Federal law enforcement 4 agency may disclose return information ob- 5 tained under clause (i) to officers and em- 6 ployees of any State or local law enforce- 7 ment agency but only if such agency is 8 part of a team with the Federal law en- 9 forcement agency in such response or in- 10 vestigation and such information is dis- 11 closed only to officers and employees who 12 are personally and directly engaged in such 13 response or investigation. 14 REQUIREMENTS. ''(iii) A request *100501.0B6* 15 meets the requirements of this clause if 16 ''(I) the request is made by the 17 head of any Federal law enforcement 18 agency (or his delegate) involved in 19 the response to or investigation of ter- 20 rorist incidents, threats, or activities, 21 and 22 ''(II) the request sets forth the 23 specific reason or reasons why such 24 disclosure may be relevant to a ter- 25 rorist incident, threat, or activity. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000937 007104-001688 H.L.C. F:\MDB\MDB.964 119 ''(iv) LIMITATION 1 ON USE OF INFOR- 2 MATION. 3 subparagraph shall be solely for the use of 4 the officers and employees to whom such 5 information is disclosed in such response 6 or investigation. 7 ''(B) 8 9 Information disclosed under this DISCLOSURE AGENCIES. TO INTELLIGENCE ''(i) IN GENERAL. Except as pro- *100501.0B6* 10 vided in paragraph (6), upon receipt by the 11 Secretary of a written request which meets 12 the requirements of clause (ii), the Sec- 13 retary may disclose return information 14 (other than taxpayer return information) 15 to those officers and employees of the De- 16 partment of Justice, the Department of 17 the Treasury, and other Federal intel- 18 ligence agencies who are personally and di- 19 rectly engaged in the collection or analysis 20 of intelligence and counterintelligence in- 21 formation or investigation concerning ter- 22 rorists and terrorist organizations and ac- 23 tivities. For purposes of the preceding sen- 24 tence, the information disclosed under the 25 preceding sentence shall be solely for the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000938 007104-001689 H.L.C. F:\MDB\MDB.964 120 1 use of such officers and employees in such 2 investigation, collection, or analysis. 3 ''(ii) REQUIREMENTS. A request 4 meets the requirements of this subpara- 5 graph if the request 6 7 8 9 ''(I) is made by an individual described in clause (iii), and ''(II) sets forth the specific reason or reasons why such disclosure 10 may be relevant to a terrorist inci- 11 dent, threat, or activity. 12 ''(iii) REQUESTING INDIVIDUALS. An 13 individual described in this subparagraph 14 is an individual 15 ''(I) who is an officer or em- *100501.0B6* 16 ployee of the Department of Justice 17 or the Department of the Treasury 18 who is appointed by the President 19 with the advice and consent of the 20 Senate or who is the Director of the 21 United States Secret Service, and 22 ''(II) who is responsible for the 23 collection and analysis of intelligence 24 and counterintelligence information October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000939 007104-001690 H.L.C. F:\MDB\MDB.964 121 1 concerning terrorists and terrorist or- 2 ganizations and activities. 3 ''(iv) TAXPAYER IDENTITY. For pur- 4 poses of this subparagraph, a taxpayer's 5 identity shall not be treated as taxpayer 6 return information. 7 ''(C) DISCLOSURE 8 9 DERS. UNDER EX PARTE OR- ''(i) IN GENERAL. Except as pro- *100501.0B6* 10 vided in paragraph (6), any return or re- 11 turn information with respect to any speci- 12 fied taxable period or periods shall, pursu- 13 ant to and upon the grant of an ex parte 14 order by a Federal district court judge or 15 magistrate under clause (ii), be open (but 16 only to the extent necessary as provided in 17 such order) to inspection by, or disclosure 18 to, officers and employees of any Federal 19 law enforcement agency or Federal intel- 20 ligence agency who are personally and di- 21 rectly engaged in any investigation, re- 22 sponse to, or analysis of intelligence and 23 counterintelligence information concerning 24 any terrorist activity or threats. Return or 25 return information opened pursuant to the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000940 007104-001691 H.L.C. F:\MDB\MDB.964 122 1 preceding sentence shall be solely for the 2 use of such officers and employees in the 3 investigation, response, or analysis, and in 4 any judicial, administrative, or grand jury 5 proceedings, pertaining to any such ter- 6 rorist activity or threat. 7 ''(ii) APPLICATION FOR ORDER. The 8 Attorney General, the Deputy Attorney 9 General, the Associate Attorney General, 10 any Assistant Attorney General, or any 11 United States attorney may authorize an 12 application to a Federal district court 13 judge or magistrate for the order referred 14 to in clause (i). Upon such application, 15 such judge or magistrate may grant such 16 order if he determines on the basis of the 17 facts submitted by the applicant that 18 ''(I) there is reasonable cause to *100501.0B6* 19 believe, based upon information be- 20 lieved to be reliable, that the taxpayer 21 whose return or return information is 22 to be disclosed may be connected to a 23 terrorist activity or threat, 24 25 ''(II) there is reasonable cause to believe that the return or return infor- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000941 007104-001692 H.L.C. F:\MDB\MDB.964 123 1 mation may be relevant to a matter 2 relating to such terrorist activity or 3 threat, and ''(III) the return or return infor- 4 5 mation is sought exclusively for use in 6 a Federal investigation, analysis, or 7 proceeding concerning terrorist activ- 8 ity, terrorist threats, or terrorist orga- 9 nizations. 10 11 12 ''(D) SPECIAL RULE FOR EX PARTE DIS- CLOSURE BY THE IRS. ''(i) IN GENERAL. Except as pro- *100501.0B6* 13 vided in paragraph (6), the Secretary may 14 authorize an application to a Federal dis- 15 trict court judge or magistrate for the 16 order referred to in subparagraph (C)(i). 17 Upon such application, such judge or mag- 18 istrate may grant such order if he deter- 19 mines on the basis of the facts submitted 20 by the applicant that the requirements of 21 subclauses (I) and (II) of subparagraph 22 (C)(ii) are met. 23 ''(ii) LIMITATION 24 MATION. 25 clause (i) Information ON USE OF INFOR- disclosed under October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000942 007104-001693 H.L.C. F:\MDB\MDB.964 124 1 ''(I) may be disclosed only to the 2 extent necessary to apprise the head 3 of the appropriate Federal law en- 4 forcement agency responsible for in- 5 vestigating or responding to a ter- 6 rorist incident, threat, or activity, and 7 ''(II) shall be solely for use in a 8 Federal investigation, analysis, or pro- 9 ceeding concerning terrorist activity, 10 terrorist threats, or terrorist organiza- 11 tions. 12 The head of such Federal agency may dis- 13 close such information to officers and em- 14 ployees of such agency to the extent nec- 15 essary to investigate or respond to such 16 terrorist incident, threat, or activity. 17 ''(E) TERMINATION. No disclosure may 18 be made under this paragraph after December 19 31, 2003.''. 20 21 (c) CONFORMING AMENDMENTS. *100501.0B6* (1) Section 6103(a)(2) of such Code is amended 22 by inserting ''any local law enforcement agency re- 23 ceiving information under subsection (i)(7)(A),'' 24 after ''State,''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000943 007104-001694 H.L.C. F:\MDB\MDB.964 125 1 (2) The heading of section 6103(i)(3) of such 2 Code is amended by inserting ''OR 3 ''CRIMINAL''. 4 5 after (3) Paragraph (4) of section 6103(i) of such Code is amended (A) in subparagraph (A) by inserting ''or 6 7 TERRORIST'' (7)(C)'' after ''paragraph (1)'', and 8 (B) in subparagraph (B) by striking ''or 9 (3)(A)'' and inserting ''(3)(A) or (C), or (7)''. 10 (4) Paragraph (6) of section 6103(i) of such 11 Code is amended (A) by striking ''(3)(A)'' and inserting 12 13 ''(3)(A) or (C)'', and (B) by striking ''or (7)'' and inserting 14 15 ''(7), or (8)''. 16 (5) 17 amended of such Code is (A) in subparagraph (A) by striking 18 19 Section 6103(p)(3) ''(7)(A)(ii)'' and inserting ''(8)(A)(ii)'', and *100501.0B6* 20 (B) in subparagraph (C) by striking 21 ''(i)(3)(B)(i)'' and inserting ''(i)(3)(B)(i) or 22 (7)(A)(ii)''. 23 (6) 24 amended Section 6103(p)(4) of such Code is October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000944 007104-001695 H.L.C. F:\MDB\MDB.964 126 (A) in the matter preceding subparagraph 1 (A) 2 3 (i) by striking ''or (5),'' the first place 4 it appears and inserting ''(5), or (7),'', and (ii) by striking ''(i)(3)(B)(i)'' and in- 5 6 serting ''(i)(3)(B)(i) or (7)(A)(ii)'', and 7 (B) in subparagraph (F)(ii) by striking ''or 8 (5),'' the first place it appears and inserting 9 ''(5) or (7),''. 10 (7) Section 6103(p)(6)(B)(i) of such Code is 11 amended by striking ''(i)(7)(A)(ii)'' and inserting 12 ''(i)(8)(A)(ii)''. 13 (8) Section 7213(a)(2) of such Code is amended 14 by striking ''(i)(3)(B)(i),'' and inserting ''(i)(3)(B)(i) 15 or (7)(A)(ii),''. 16 (e) E FFECTIVE DATE . The amendments made by 17 this section shall apply to disclosures made on or after 18 the date of the enactment of this Act. 19 SEC. 406. EXTRATERRITORIAL JURISDICTION. 20 Section 1029 of title 18, United States Code, is *100501.0B6* 21 amended by adding at the end the following: 22 ''(h) Any person who, outside the jurisdiction of the 23 United States, engages in any act that, if committed with24 in the jurisdiction of the United States, would constitute 25 an offense under subsection (a) or (b) of this section, shall October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000945 007104-001696 H.L.C. F:\MDB\MDB.964 127 1 be subject to the fines, penalties, imprisonment, and for2 feiture provided in this title if 3 ''(1) the offense involves an access device 4 issued, owned, managed, or controlled by a financial 5 institution, account issuer, credit card system mem- 6 ber, or other entity within the jurisdiction of the 7 United States; and 8 ''(2) the person transports, delivers, conveys, 9 transfers to or through, or otherwise stores, secrets, 10 or holds within the jurisdiction of the United States, 11 any article used to assist in the commission of the 12 offense or the proceeds of such offense or property 13 derived therefrom.''. TITLE V--EMERGENCY AUTHORIZATIONS 14 15 16 SEC. 501. OFFICE OF JUSTICE PROGRAMS. 17 (a) In connection with the airplane hijackings and 18 terrorist acts (including, without limitation, any related 19 search, rescue, relief, assistance, or other similar activi20 ties) that occurred on September 11, 2001, in the United *100501.0B6* 21 States, amounts transferred to the Crime Victims Fund 22 from the Executive Office of the President or funds appro23 priated to the President shall not be subject to any limita24 tion on obligations from amounts deposited or available 25 in the Fund. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000946 007104-001697 H.L.C. F:\MDB\MDB.964 128 1 (b) Section 112 of title I of section 101(b) of division 2 A of Public Law 105 277 and section 108(a) of the De3 partments of Commerce, Justice, and State, The Judici4 ary, and Related Agencies Appropriations Act, 2000 (H.R. 5 3421 of the 106th Congress, as enacted into law by section 6 1000(a)(1) of Public Law 106 113; Appendix A; 113 7 Stat. 1501A 20) are amended 8 (1) after ''that Office'', each place it occurs, by 9 inserting ''(including, notwithstanding any contrary 10 provision of law (unless the same should expressly 11 refer to this section), any organization that admin- 12 isters any program established in title I of Public 13 Law 90 351)''; and 14 (2) by inserting ''functions, including any'' 15 after ''all''. 16 (c) Section 1404B(b) of the Victims of Crime Act of 17 1984 (42 U.S.C. 10603b) is amended by inserting '', to 18 victim service organizations, to public agencies (including 19 Federal, State, or local governments), and to non-govern20 mental organizations that provide assistance to victims of *100501.0B6* 21 crime,'' after ''programs''. 22 (d) Section 1 of Public Law 107 37 is amended 23 (1) by inserting ''(containing identification of 24 all eligible payees of benefits under section 1201)'' 25 before ''by a''; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000947 007104-001698 H.L.C. F:\MDB\MDB.964 129 (2) by inserting ''producing permanent and 1 2 total disability'' after ''suffered a catastrophic in- 3 jury''; and 4 (3) 5 6 by striking ''1201(a)'' and inserting ''1201''. SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY RE- 7 WARDS. 8 (a) IN GENERAL. (1) Title 18, United States Code, 9 is amended by striking sections 3059 through 3059B and 10 inserting the following: 11 ''? 3059. Rewards and appropriations therefor 12 ''(a) IN GENERAL. Subject to subsection (b), the 13 Attorney General may pay rewards in accordance with 14 procedures and regulations established or issued by the 15 Attorney General. 16 ''(b) LIMITATIONS. The following limitations apply 17 with respect to awards under subsection (a): 18 ''(1) No such reward, other than in connection 19 with a terrorism offense or as otherwise specifically 20 provided by law, shall exceed $2,000,000. *100501.0B6* 21 ''(2) No such reward of $250,000 or more may 22 be made or offered without the personal approval of 23 either the Attorney General or the President. 24 25 ''(3) The Attorney General shall give written notice to the Chairmen and ranking minority mem- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000948 007104-001699 H.L.C. F:\MDB\MDB.964 130 1 bers of the Committees on Appropriations and the 2 Judiciary of the Senate and the House of Represent- 3 atives not later than 30 days after the approval of 4 a reward under paragraph (2); 5 ''(4) Any executive agency or military depart- 6 ment (as defined, respectively, in sections 105 and 7 102 of title 5) may provide the Attorney General 8 with funds for the payment of rewards. 9 ''(5) Neither the failure to make or authorize 10 such a reward nor the amount of any such reward 11 made or authorized shall be subject to judicial re- 12 view. 13 ''(c) DEFINITION. In this section, the term 'reward' 14 means a payment pursuant to public advertisements for 15 assistance to the Department of Justice.''. 16 (2) The items relating to sections 3059A through 17 3059B in the table of sections at the beginning of chapter 18 203 of title 18, United States Code, are repealed. 19 (b) CONFORMING AMENDMENTS. *100501.0B6* 20 (1) Section 3075 of title 18, United States 21 Code, and that portion of section 3072 of title 18, 22 United States Code, that follows the first sentence, 23 are repealed. 24 25 (2) Public Law 101 647 is amended (A) in section 2565 (12 U.S.C. 4205) October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000949 007104-001700 H.L.C. F:\MDB\MDB.964 131 1 (i) by striking all the matter after 2 ''section 2561,'' in subsection (c)(1) and 3 inserting ''the Attorney General may, in 4 the Attorney General's discretion, pay a re- 5 ward to the declaring.''; and 6 (ii) by striking subsection (e); and 7 (B) by striking section 2569 (12 U.S.C. 4209). 8 9 SEC. 503. LIMITED AUTHORITY TO PAY OVERTIME. 10 The matter under the headings ''Immigration And 11 Naturalization Service: Salaries and Expenses, Enforce12 ment And Border Affairs'' and ''Immigration And Natu13 ralization Service: Salaries and Expenses, Citizenship And 14 Benefits, Immigration Support And Program Direction'' 15 in the Department of Justice Appropriations Act, 2001 16 (as enacted into law by Appendix B (H.R. 5548) of Public 17 Law 106 553 (114 Stat. 2762A 58 to 2762A 59)) is 18 amended by striking each place it occurs: ''Provided'' and 19 all that follows through ''That none of the funds available 20 to the Immigration and Naturalization Service shall be *100501.0B6* 21 available to pay any employee overtime pay in an amount 22 in excess of $30,000 during the calendar year beginning 23 January 1, 2001:''. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000950 007104-001701 H.L.C. F:\MDB\MDB.964 132 1 SEC. 504. DEPARTMENT OF STATE REWARD AUTHORITY. 2 (a) CHANGES IN REWARD AUTHORITY. Section 36 3 of the State Department Basic Authorities Act of 1956 4 (22 U.S.C. 2708) is amended 5 (1) in subsection (b) graph (4); (B) by striking the period at the end of 8 9 (A) by striking ''or'' at the end of para- 6 7 paragraph (5) and inserting '', including by dis- 10 mantling an organization in whole or significant 11 part; or''; and (C) by adding at the end the following new 12 13 paragraph: 14 ''(6) the identification or location of an indi- 15 vidual who holds a leadership position in a terrorist 16 organization.''; 17 (2) in subsection (d), by striking paragraphs 18 (2) and (3) and redesignating paragraph (4) as 19 paragraph (2); and 20 21 *100501.0B6* 22 23 (3) by amending subsection (e)(1) to read as follows: ''(1) AMOUNT OF AWARD. ''(A) Except as provided in subparagraph 24 (B), no reward paid under this section may ex- 25 ceed $10,000,000. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000951 007104-001702 H.L.C. F:\MDB\MDB.964 133 1 ''(B) The Secretary of State may authorize 2 the payment of an award not to exceed 3 $25,000,000 if the Secretary determines that 4 payment of an award exceeding the amount 5 under subparagraph (A) is important to the na- 6 tional interest of the United States.''. (b) SENSE 7 8 LATING TO THE OF CONGRESS REGARDING REWARDS RE - SEPTEMBER 11, 2001 ATTACK. It is the 9 sense of the Congress that the Secretary of State should 10 use the authority of section 36 of the State Department 11 Basic Authorities Act of 1956, as amended by subsection 12 (a), to offer a reward of $25,000,000 for Osama bin 13 Laden and other leaders of the September 11, 2001 attack 14 on the United States. 15 SEC. 505. AUTHORIZATION OF FUNDS FOR DEA POLICE 16 17 TRAINING IN SOUTH AND CENTRAL ASIA. In addition to amounts otherwise available to carry 18 out section 481 of the Foreign Assistance Act of 1961 (22 19 U.S.C. 2291), there is authorized to be appropriated to 20 the President not less than $5,000,000 for fiscal year *100501.0B6* 21 2002 for regional antidrug training in the Republic of 22 Turkey by the Drug Enforcement Administration for po23 lice, as well as increased precursor chemical control efforts 24 in the South and Central Asia region. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000952 007104-001703 H.L.C. F:\MDB\MDB.964 134 1 SEC. 506. PUBLIC SAFETY OFFICER BENEFITS. (a) IN GENERAL. 2 Section 1201(a) of title I of the 3 Omnibus Crime Control and Safe Streets Act of 1968 (42 4 U.S.C. 3796) is amended by striking ''$100,000'' and in5 serting ''$250,000''. (b) E FFECTIVE DATE. 6 The amendment made by 7 this section shall apply to any death or disability occurring 8 on or after January 1, 2001. TITLE VI--DAM SECURITY 9 10 SEC. 601. SECURITY OF RECLAMATION DAMS, FACILITIES, 11 12 AND RESOURCES. Section 2805(a) of the Reclamation Recreation Man- 13 agement Act of 1992 (16 U.S.C. 460l 33(a)) is amended 14 by adding at the end the following: 15 ''(3) Any person who violates any such regulation 16 which is issued pursuant to this Act shall be fined under 17 title 18, United States Code, imprisoned not more than 18 6 months, or both. Any person charged with a violation 19 of such regulation may be tried and sentenced by any 20 United States magistrate judge designated for that pur21 pose by the court by which such judge was appointed, in *100501.0B6* 22 the same manner and subject to the same conditions and 23 limitations as provided for in section 3401 of title 18, 24 United States Code. 25 ''(4) The Secretary may October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000953 007104-001704 H.L.C. F:\MDB\MDB.964 135 1 ''(A) authorize law enforcement personnel from 2 the Department of the Interior to act as law enforce- 3 ment officers to maintain law and order and protect 4 persons and property within a Reclamation project 5 or on Reclamation lands; 6 ''(B) authorize law enforcement personnel of 7 any other Federal agency that has law enforcement 8 authority, with the exception of the Department of 9 Defense, or law enforcement personnel of any State 10 or local government, including Indian tribes, when 11 deemed economical and in the public interest, and 12 with the concurrence of that agency or that State or 13 local government, to act as law enforcement officers 14 within a Reclamation project or on Reclamation 15 lands with such enforcement powers as may be so 16 assigned them by the Secretary to carry out the reg- 17 ulations promulgated under paragraph (2); 18 ''(C) cooperate with any State or local govern- *100501.0B6* 19 ment, including Indian tribes, in the enforcement of 20 the laws or ordinances of that State or local govern- 21 ment; and 22 ''(D) provide reimbursement to a State or local 23 government, including Indian tribes, for expendi- 24 tures incurred in connection with activities under 25 subparagraph (B). October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000954 007104-001705 H.L.C. F:\MDB\MDB.964 136 1 ''(5) Officers or employees designated or authorized 2 by the Secretary under paragraph (4) are authorized to 3 ''(A) carry firearms within a Reclamation 4 project or on Reclamation lands and make arrests 5 without warrants for any offense against the United 6 States committed in their presence, or for any felony 7 cognizable under the laws of the United States if 8 they have reasonable grounds to believe that the per- 9 son to be arrested has committed or is committing 10 such a felony, and if such arrests occur within a 11 Reclamation project or on Reclamation lands or the 12 person to be arrested is fleeing therefrom to avoid 13 arrest; 14 ''(B) execute within a Reclamation project or 15 on Reclamation lands any warrant or other process 16 issued by a court or officer of competent jurisdiction 17 for the enforcement of the provisions of any Federal 18 law or regulation issued pursuant to law for an of- 19 fense committed within a Reclamation project or on 20 Reclamation lands; and 21 *100501.0B6* ''(C) conduct investigations within a Reclama- 22 tion project or on Reclamation lands of offenses 23 against the United States committed within a Rec- 24 lamation project or on Reclamation lands, if the 25 Federal law enforcement agency having investigative October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000955 007104-001706 H.L.C. F:\MDB\MDB.964 137 1 jurisdiction over the offense committed declines to 2 investigate the offense or concurs with such inves- 3 tigation. 4 ''(6)(A) Except as otherwise provided in this para- 5 graph, a law enforcement officer of any State or local gov6 ernment, including Indian tribes, designated to act as a 7 law enforcement officer under paragraph (4) shall not be 8 deemed a Federal employee and shall not be subject to 9 the provisions of law relating to Federal employment, in10 cluding those relating to hours of work, rates of compensa11 tion, employment discrimination, leave, unemployment 12 compensation, and Federal benefits. 13 ''(B) For purposes of chapter 171 of title 28, United 14 States Code, popularly known as the Federal Tort Claims 15 Act, a law enforcement officer of any State or local govern16 ment, including Indian tribes, shall, when acting as a des17 ignated law enforcement officer under paragraph (4) and 18 while under Federal supervision and control, and only 19 when carrying out Federal law enforcement responsibil20 ities, be considered a Federal employee. 21 *100501.0B6* ''(C) For purposes of subchapter I of chapter 81 of 22 title 5, United States Code, relating to compensation to 23 Federal employees for work injuries, a law enforcement 24 officer of any State or local government, including Indian 25 tribes, shall, when acting as a designated law enforcement October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000956 007104-001707 H.L.C. F:\MDB\MDB.964 138 1 officer under paragraph (4) and while under Federal su2 pervision and control, and only when carrying out Federal 3 law enforcement responsibilities, be deemed a civil service 4 employee of the United States within the meaning of the 5 term 'employee' as defined in section 8101 of title 5, and 6 the provisions of that subchapter shall apply. Benefits 7 under this subchapter shall be reduced by the amount of 8 any entitlement to State or local workers' compensation 9 benefits arising out of the same injury or death. 10 ''(7) Nothing in paragraphs (3) through (9) shall be 11 construed or applied to limit or restrict the investigative 12 jurisdiction of any Federal law enforcement agency, or to 13 affect any existing right of a State or local government, 14 including Indian tribes, to exercise civil and criminal juris15 diction within a Reclamation project or on Reclamation 16 lands. 17 ''(8) For the purposes of this subsection, the term 18 'law enforcement personnel' means employees of a Fed19 eral, State, or local government agency, including an In20 dian tribal agency, who have successfully completed law *100501.0B6* 21 enforcement training approved by the Secretary and are 22 authorized to carry firearms, make arrests, and execute 23 service of process to enforce criminal laws of their employ24 ing jurisdiction. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000957 007104-001708 H.L.C. F:\MDB\MDB.964 139 ''(9) The law enforcement authorities provided for in 1 2 this subsection may be exercised only pursuant to rules 3 and regulations promulgated by the Secretary and ap4 proved by the Attorney General.''. TITLE VII--MISCELLANEOUS 5 6 SEC. 701. EMPLOYMENT OF TRANSLATORS BY THE FED- 7 8 ERAL BUREAU OF INVESTIGATION. (a) AUTHORITY. The Director of the Federal Bu- 9 reau of Investigation is authorized to expedite the employ10 ment of personnel as translators to support 11 counterterrorism investigations and operations without re12 gard to applicable Federal personnel requirements and 13 limitations. 14 (b) SECURITY REQUIREMENTS. The Director of the 15 Federal Bureau of Investigation shall establish such secu16 rity requirements as are necessary for the personnel em17 ployed as translators. 18 (c) REPORT. The Attorney General shall report to 19 the Committees on the Judiciary of the House of Rep20 resentatives and the Senate on *100501.0B6* 21 (1) the number of translators employed by the 22 FBI and other components of the Department of 23 Justice; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000958 007104-001709 H.L.C. F:\MDB\MDB.964 140 1 (2) any legal or practical impediments to using 2 translators employed by other Federal State, or local 3 agencies, on a full, part-time, or shared basis; and 4 (3) the needs of the FBI for specific translation 5 services in certain languages, and recommendations 6 for meeting those needs. 7 SEC. 702. REVIEW OF THE DEPARTMENT OF JUSTICE. (a) APPOINTMENT 8 9 FOR OF DEPUTY INSPECTOR GENERAL CIVIL RIGHTS, CIVIL LIBERTIES, 10 BUREAU OF INVESTIGATION. AND THE FEDERAL The Inspector General of 11 the Department of Justice shall appoint a Deputy Inspec12 tor General for Civil Rights, Civil Liberties, and the Fed13 eral Bureau of Investigation (hereinafter in this section 14 referred to as the ''Deputy''). 15 (b) CIVIL RIGHTS 16 The Deputy shall AND CIVIL LIBERTIES REVIEW. 17 (1) review information alleging abuses of civil 18 rights, civil liberties, and racial and ethnic profiling 19 by government employees and officials including em- 20 ployees and officials of the Department of Justice; 21 *100501.0B6* (2) make public through the Internet, radio, tel- 22 evision, and newspaper advertisements information 23 on the responsibilities and functions of, and how to 24 contact, the Deputy; and October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000959 007104-001710 H.L.C. F:\MDB\MDB.964 141 1 (3) submit to the Committee on the Judiciary 2 of the House of Representatives and the Committee 3 on the Judiciary of the Senate on a semi-annual 4 basis a report on the implementation of this sub- 5 section and detailing any abuses described in para- 6 graph (1), including a description of the use of 7 funds appropriations used to carry out this sub- 8 section. 9 (c) INSPECTOR GENERAL OVERSIGHT PLAN FOR THE 10 FEDERAL BUREAU OF INVESTIGATION. Not later than 11 30 days after the date of the enactment of this Act, the 12 Inspector General of the Department of Justice shall sub13 mit to the Congress a plan for oversight of the Federal 14 Bureau of Investigation. The Inspector General shall con15 sider the following activities for inclusion in such plan: 16 (1) FINANCIAL SYSTEMS. Auditing the finan- 17 cial systems, information technology systems, and 18 computer security systems of the Federal Bureau of 19 Investigation. 20 (2) PROGRAMS AND PROCESSES. Auditing and *100501.0B6* 21 evaluating programs and processes of the Federal 22 Bureau of Investigation to identify systemic weak- 23 nesses or implementation failures and to recommend 24 corrective action. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000960 007104-001711 H.L.C. F:\MDB\MDB.964 142 1 (3) INTERNAL AFFAIRS OFFICES. Reviewing 2 the activities of internal affairs offices of the Federal 3 Bureau of Investigation, including the Inspections 4 Division and the Office of Professional Responsi- 5 bility. 6 (4) PERSONNEL. Investigating allegations of 7 serious misconduct by personnel of the Federal Bu- 8 reau of Investigation. 9 (5) OTHER PROGRAMS AND OPERATIONS. Re- 10 viewing matters relating to any other program or 11 and operation of the Federal Bureau of Investiga- 12 tion that the Inspector General determines requires 13 review. 14 (6) RESOURCES. Identifying resources needed 15 by the Inspector General to implement such plan. 16 (d) REVIEW OF INVESTIGATIVE TOOLS. Not later 17 than August 31, 2003, the Deputy shall review the imple18 mentation, use, and operation (including the impact on 19 civil rights and liberties) of the law enforcement and intel20 ligence authorities contained in title I of this Act and pro*100501.0B6* 21 vide a report to the President and Congress. October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000961 007104-001712 H.L.C. F:\MDB\MDB.964 143 1 SEC. 703. FEASIBILITY STUDY ON USE OF BIOMETRIC IDEN- 2 TIFIER SCANNING SYSTEM WITH ACCESS TO 3 THE FBI INTEGRATED AUTOMATED FINGER- 4 PRINT IDENTIFICATION SYSTEM AT OVER- 5 SEAS CONSULAR POSTS AND POINTS OF 6 ENTRY TO THE UNITED STATES. 7 (a) IN GENERAL. The Attorney General, in con- 8 sultation with the Secretary of State and the Secretary 9 of Transportation, shall conduct a study on the feasibility 10 of utilizing a biometric identifier (fingerprint) scanning 11 system, with access to the database of the Federal Bureau 12 of Investigation Integrated Automated Fingerprint Identi13 fication System, at consular offices abroad and at points 14 of entry into the United States to enhance the ability of 15 State Department and immigration officials to identify 16 aliens who may be wanted in connection with criminal or 17 terrorist investigations in the United States or abroad 18 prior to the issuance of visas or entry into the United 19 States. 20 (b) REPORT TO CONGRESS. Not later than 90 days 21 after the date of the enactment of this Act, the Attorney *100501.0B6* 22 General shall submit a report summarizing the findings 23 of the study authorized under subsection (a) to the Com24 mittee on International Relations and the Committee on 25 the Judiciary of the House of Representatives and the October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000962 007104-001713 H.L.C. F:\MDB\MDB.964 144 1 Committee on Foreign Relations and the Committee on 2 the Judiciary of the Senate. 3 SEC. 704. STUDY OF ACCESS. 4 (a) IN GENERAL. Not later than December 31, 5 2002, the Federal Bureau of Investigation shall study and 6 report to Congress on the feasibility of providing to air7 lines access via computer to the names of passengers who 8 are suspected of terrorist activity by Federal officials. (b) AUTHORIZATION. 9 There are authorized to be ap- 10 propriated for fiscal years 2002 though 2003 not more 11 than $250,000 to carry out subsection (a). 12 SEC. 705. ENFORCEMENT OF CERTAIN ANTI-TERRORISM 13 14 JUDGMENTS. (a) SHORT TITLE. This section may be cited as the 15 ''Justice for Victims of Terrorism Act''. 16 (b) DEFINITION. 17 (1) IN 18 19 20 21 GENERAL. Section 1603(b) of title 28, United States Code, is amended (A) in paragraph (3) by striking the period and inserting ''; and''; *100501.0B6* (B) by redesignating paragraphs (1), (2), 22 and (3) as subparagraphs (A), (B), and (C), re- 23 spectively; 24 25 (C) by striking ''(b)'' through ''entity '' and inserting the following: October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000963 007104-001714 H.L.C. F:\MDB\MDB.964 145 1 ''(b) An 'agency or instrumentality of a foreign state' 2 means ''(1) any entity ''; and 3 4 (D) by adding at the end the following: 5 ''(2) for purposes of sections 1605(a)(7) and 6 1610(a)(7) and (f), any entity as defined under sub- 7 paragraphs (A) and (B) of paragraph (1), and sub- 8 paragraph (C) of paragraph (1) shall not apply.''. (2) TECHNICAL 9 AND CONFORMING AMEND- 10 MENT. Section 1391(f)(3) of title 28, United 11 States Code, is amended by striking ''1603(b)'' and 12 inserting ''1603(b)(1)''. 13 (c) E NFORCEMENT JUDGMENTS. OF Section 14 1610(f) of title 28, United States Code, is amended 15 16 (1) in paragraph (1) (A) in subparagraph (A) by striking ''(in- *100501.0B6* 17 cluding any agency or instrumentality or such 18 state)'' and inserting ''(including any agency or 19 instrumentality of such state), except to the ex- 20 tent of any punitive damages awarded''; and 21 (B) by adding at the end the following: 22 ''(C) Notwithstanding any other provision of law, 23 moneys due from or payable by the United States (includ24 ing any agency or instrumentality thereof) to any state 25 against which a judgment is pending under section October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000964 007104-001715 H.L.C. F:\MDB\MDB.964 146 1 1605(a)(7) shall be subject to attachment and execution 2 with respect to that judgment, in like manner and to the 3 same extent as if the United States were a private person, 4 except to the extent of any punitive damages awarded.''; 5 and (2) by striking paragraph (3) and adding the 6 7 following: 8 ''(3)(A) Subject to subparagraph (B), upon deter- 9 mining on an asset-by-asset basis that a waiver is nec10 essary in the national security interest, the President may 11 waive this subsection in connection with (and prior to the 12 enforcement of) any judicial order directing attachment in 13 aid of execution or execution against any property subject 14 to the Vienna Convention on Diplomatic Relations or the 15 Vienna Convention on Consular Relations. 16 ''(B) A waiver under this paragraph shall not apply 17 to *100501.0B6* 18 ''(i) if property subject to the Vienna Conven- 19 tion on Diplomatic Relations or the Vienna Conven- 20 tion on Consular Relations has been used for any 21 nondiplomatic purpose (including use as rental prop- 22 erty), the proceeds of such use; or 23 ''(ii) if any asset subject to the Vienna Conven- 24 tion on Diplomatic Relations or the Vienna Conven- 25 tion on Consular Relations is sold or otherwise October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000965 007104-001716 H.L.C. F:\MDB\MDB.964 147 1 transferred for value to a third party, the proceeds 2 of such sale or transfer. 3 ''(C) In this paragraph, the term 'property subject 4 to the Vienna Convention on Diplomatic Relations or the 5 Vienna Convention on Consular Relations' and the term 6 'asset subject to the Vienna Convention on Diplomatic Re7 lations or the Vienna Convention on Consular Relations' 8 mean any property or asset, respectively, the attachment 9 in aid of execution or execution of which would result in 10 a violation of an obligation of the United States under the 11 Vienna Convention on Diplomatic Relations or the Vienna 12 Convention on Consular Relations, as the case may be. 13 ''(4) For purposes of this subsection, all assets of any 14 agency or instrumentality of a foreign state shall be treat15 ed as assets of that foreign state.''. 16 (d) E FFECTIVE DATE. The amendments made by 17 this section shall apply to any claim for which a foreign 18 state is not immune under section 1605(a)(7) of title 28, 19 United States Code, arising before, on, or after the date 20 of the enactment of this Act. 21 *100501.0B6* (e) PAYGO ADJUSTMENT. The Director of the Office 22 of Management and Budget shall not make any estimates 23 of changes in direct spending outlays and receipts under 24 section 252(d) of the Balanced Budget and Emergency October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000966 007104-001717 H.L.C. F:\MDB\MDB.964 148 1 Deficit Control Act of 1985 (2 U.S.C. 902(d)) for any fis2 cal year resulting from the enactment of this section. 3 4 5 TITLE VIII--PRIVATE SECURITY OFFICER QUALITY ASSURANCE SEC. 801. SHORT TITLE. This title may be cited as the ''Private Security Offi- 6 7 cer Quality Assurance Act of 2001''. 8 SEC. 802. FINDINGS. 9 10 11 12 Congress finds that (1) employment of private security officers in the United States is growing rapidly; (2) the private security industry provides nu- 13 merous opportunities for entry-level job applicants, 14 including individuals suffering from unemployment 15 due to economic conditions or dislocations; 16 (3) sworn law enforcement officers provide sig- *100501.0B6* 17 nificant services to the citizens of the United States 18 in its public areas, and are only supplemented by 19 private security officers who provide prevention and 20 reporting services in support of, but not in place of, 21 regular sworn police; 22 (4) given the growth of large private shopping 23 malls, and the consequent reduction in the number 24 of public shopping streets, the American public is 25 more likely to have contact with private security per- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000967 007104-001718 H.L.C. F:\MDB\MDB.964 149 1 sonnel in the course of a day than with sworn law 2 enforcement officers; 3 (5) regardless of the differences in their duties, 4 skill, and responsibilities, the public has difficulty in 5 discerning the difference between sworn law enforce- 6 ment officers and private security personnel; and 7 (6) the American public demands the employ- 8 ment of qualified, well-trained private security per- 9 sonnel as an adjunct, but not a replacement for sworn law enforcement officers. 10 11 SEC. 803. BACKGROUND CHECKS. 12 (a) IN GENERAL. An association of employers of 13 private security officers, designated for the purpose of this 14 section by the Attorney General, may submit fingerprints 15 or other methods of positive identification approved by the 16 Attorney General, to the Attorney General on behalf of 17 any applicant for a State license or certificate of registra18 tion as a private security officer or employer of private 19 security officers. In response to such a submission, the At20 torney General may, to the extent provided by State law *100501.0B6* 21 conforming to the requirements of the second paragraph 22 under the heading ''Federal Bureau of Investigation'' and 23 the subheading ''Salaries and Expenses'' in title II of Pub24 lic Law 92 544 (86 Stat. 1115), exchange, for licensing 25 and employment purposes, identification and criminal his- October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000968 007104-001719 H.L.C. F:\MDB\MDB.964 150 1 tory records with the State governmental agencies to 2 which such applicant has applied. (b) REGULATIONS. 3 The Attorney General may pre- 4 scribe such regulations as may be necessary to carry out 5 this section, including measures relating to the security, 6 confidentiality, accuracy, use, and dissemination of infor7 mation and audits and recordkeeping and the imposition 8 of fees necessary for the recovery of costs. (c) REPORT. 9 The Attorney General shall report to 10 the Senate and House Committees on the Judiciary 2 11 years after the date of enactment of this Act on the num12 ber of inquiries made by the association of employers 13 under this section and their disposition. 14 SEC. 804. SENSE OF CONGRESS. It is the sense of Congress that States should partici- 15 16 pate in the background check system established under 17 section 803. 18 SEC. 805. DEFINITIONS. 19 As used in this title (1) the term ''employee'' includes an applicant 20 21 *100501.0B6* for employment; (2) the term ''employer'' means any person 22 23 24 25 that (A) employs one or more private security officers; or October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000969 007104-001720 H.L.C. F:\MDB\MDB.964 151 1 (B) provides, as an independent con- 2 tractor, for consideration, the services of one or 3 more private security officers (possibly includ- 4 ing oneself); 5 (3) the term ''private security officer'' 6 (A) means 7 (i) an individual who performs secu- 8 rity services, full or part time, for consider- 9 ation as an independent contractor or an 10 employee, whether armed or unarmed and 11 in uniform or plain clothes whose primary 12 duty is to perform security services, or *100501.0B6* 13 (ii) an individual who is an employee 14 of an electronic security system company 15 who is engaged in one or more of the fol- 16 lowing activities in the State: burglar 17 alarm technician, fire alarm technician, 18 closed circuit television technician, access 19 control technician, or security system mon- 20 itor; but 21 (B) does not include 22 23 (i) sworn police officers who have law enforcement powers in the State, October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000970 007104-001721 H.L.C. F:\MDB\MDB.964 152 1 (ii) attorneys, accountants, and other 2 professionals who are otherwise licensed in 3 the State, 4 (iii) employees whose duties are pri- 5 marily internal audit or credit functions, 6 (iv) persons whose duties may inciden- 7 tally include the reporting or apprehension 8 of shoplifters or trespassers, or (v) an individual on active duty in the 9 10 military service; 11 (4) the term ''certificate of registration'' means 12 a license, permit, certificate, registration card, or 13 other formal written permission from the State for 14 the person to engage in providing security services; 15 16 17 18 19 (5) the term ''security services'' means the performance of one or more of the following: (A) the observation or reporting of intrusion, larceny, vandalism, fire or trespass; (B) the deterrence of theft or misappro- *100501.0B6* 20 priation of any goods, money, or other item of 21 value; 22 23 (C) the observation or reporting of any unlawful activity; October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000971 007104-001722 H.L.C. F:\MDB\MDB.964 153 1 (D) the protection of individuals or prop- 2 erty, including proprietary information, from 3 harm or misappropriation; 4 5 (E) the control of access to premises being protected; 6 (F) the secure movement of prisoners; 7 (G) the maintenance of order and safety at 8 athletic, entertainment, or other public activi- 9 ties; 10 (H) the provision of canine services for 11 protecting premises or for the detection of any 12 unlawful device or substance; and 13 (I) the transportation of money or other 14 valuables by armored vehicle; and 15 (6) the term ''State'' means any of the several 16 States, the District of Columbia, the Commonwealth 17 of Puerto Rico, the United States Virgin Islands, 18 American Samoa, Guam, and the Commonwealth of 19 the Northern Mariana Islands. *100501.0B6* October 5, 2001 (1 2:39 PM) F:\V7\1 00501 \1 00501 .0B6 Document ID: 0.7.19343.6177-000002 EXT-18-2091-C-000972 007104-001723 Senate and House Bill Comparison Senate Bill Provision No. Senate Bill Description Corresponding House Bill No. 2 Construction and severability clause 2 101 Establishes a fund to reimburse DOJ components for costs incurred to rebuild facilities, investigate and prosecute terrorism, and to reimburse other Federal agencies for detaining individuals in foreign countries accused of terrorist acts. None 102 Sense of Congress condemning discrimination against Arab and Muslim Americans None 103 Authorizes $200M for FY 2002, 2003 and 2004 for the FBI Technical Support Center (established by AEDPA) None 104 Broadens Attorney General's authority to request the Secretary of Defense to support DOJ activities in emergency situations involving weapons of mass destruction None 105 Directs the Secret Service to develop a national network of electronic crime task forces modeled on the New York task force None 201 Plain Language Description N/A Differences from Senate Bill Notes Same. No corresponding provision. Adds terrorism statutes as Title III predicate offenses, includes chemical weapons offenses under 18 U.S.C. 229. Technical Language Description Amends 18 U.S.C. 2516(1), which lists predicate offenses for electronic 1 EXT-18-2091-C-000973 007104-001724 Document ID: 0.7.19343.6177-000003 surveillance orders under Title III, by adding 18 U.S.C. 229 (relating to chemical weapons) and 18 U.S.C. 2332, 2332a, 2332b, 2332d (relating to the use of weapons of mass destruction, acts of terrorism transcending national boundaries, and engaging in financial transactions with countries supporting international terrorism) and 18 U.S.C. 2339A or 2339B (providing material support or resources to terrorists or designated terrorist organizations). 202 Plain Language Description None. Allows voice wiretaps in computer hacking investigations. Technical Language Description Adds Section 1030 to list of offenses in 18 USC 2516(1). 203(a) Permits (without court order) sharing of grand jury information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel 353 Requires court order. Subject to sunset. 203(b) Sharing of wiretap information regarding foreign intelligence and counterintelligence (Under NSA) and foreign intelligence information (as defined) with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel 103 limited to "foreign intelligence information" under FISA 203(c) Requires AG to establish procedure for information sharing in 203(a) and (b) N/A No comparable provision 2 EXT-18-2091-C-000974 007104-001725 Document ID: 0.7.19343.6177-000003 203(d) Permits sharing of information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel notwithstanding other law 154 Essentially the same coverage; subject to sunset provision 204 Plain Language Description 104 Same. House subject to sunset provision. Assures that foreign intelligence gathering authorities are not disrupted by changes to pen/trap statute Technical: amends 2511(2)(f) to exempt out chapter 121 (the pen/trap statute) 205 Employment of translators by the FBI None 206 Allows court to authorize roving surveillance where court finds that the actions of the target may have effect of thwarting the identification of a target. 152 Same. Subject to sunset. 207 Initial authorization for surveillance and search of officers/employees of foreign powers changed to 120 days; can be extended for one year period. All other searches authorized for 90 day period. 151 Surveillance and search of officers/ employees of foreign powers can be authorized for one year. All other searches authorized for 90 day period/ authorization. Subject to sunset. 208 N/A Increases the number of judges on the FISA Court to 11, no less than 3 of whom must live within 20 miles of Washington, D.C. 209 Plain Language Description 102 N/A Same. Subject to sunset Allows acquisition of voice mail stored with a third party provider to be obtained with a search warrant, rather than a wiretap order. Technical: strikes stored voice from 3 EXT-18-2091-C-000975 007104-001726 Document ID: 0.7.19343.6177-000003 definition of "wire communications" and expands provisions for stored electronic communications to include stored voice. 210 Plain Language Description 107 Same, except for the way in which the subdivisions are labeled. Speeds investigations by allowing investigators to obtain via subpoena a slightly broader class of records to identify computer criminals. Technical: broadens categories of information related to electronic communications obtainable under 2703(c)(1)(C). 4 EXT-18-2091-C-000976 007104-001727 Document ID: 0.7.19343.6177-000003 211 Plain Language Description 109 House bill attempts to achieve the same goal as Senate bill, but fails to clarify the law by introducing an ambiguous term. Clarifies that statutes governing telephone and Internet communications (and not the burdensome provisions of the cable act) apply where cable companies are providing Internet or telephone service. Technical: House bill (1) uses the undefined term "cable viewing activity," which could include viewing of web pages or viewing "streaming video" over the Internet; and (2) references "Section 631(a)" when correct citation is "Section 631". Technical: creates an exception to 47 USC 551 (the "Cable Act") for voluntary or obligatory disclosure of communications and records of communications under the wiretap statute, the pen/trap statute, and ECPA. 212 Plain Language Description Plain Language Description 110 Plain Language Description Identical, except that it includes a change to 2703 to confirm that providers have civil immunity for such disclosures to the government. (1) allows providers to disclose communications and records of communications to protect life and limb; and (2) clarifies that victims of computer hacking can disclose non-content records to protect their rights and property. Technical: Technical: (1) adds amendment to 2702(b)(6) for emergency disclosure; and (2) makes a structural changes to 2702 and 2703 to broaden providers' ability to disclose records to the government. 213 Amends 18 USC 3103a to permit delayed notice of search warrants; may seize property where is "reasonably necessary" [No equivalent; corresponds to stricken section 352 of 5 EXT-18-2091-C-000977 007104-001728 Document ID: 0.7.19343.6177-000003 Administration bill.] 155 214 To get pen-trap must certify that information likely to be obtained is relevant to an ongoing investigation to protect against IT or clandestine intelligence activities, provided that such investigation of a US Person is not conducted upon the basis of constitutionally protected activities. 215 156 Business records provision allows any designee of FBI director no lower than ASAC to apply to FISA court or a magistrate designated by Chief Justice for an ex parte order requiring production of any tangible things for an investigation to protect against IT or clandestine intel activities so long as the investigation is conducted under AG Guidelines under EO 12333 and for a US person that the investigation is not based on constitutionally protected behavior. To get pen-trap must certify that the information likely to be obtained from the telephone line to which the pen-trap is attached is relevant to ongoing FI or IT investigation being conducted by FBI under AG Guidelines. Same except that there is no reference to investigation based on constitutionally protected behavior or reporting requirement. Also requires semiannual reporting to Congress. 216 Plain Language Description 101 Amends the pen/trap statute to (1) clearly apply to the Internet; and (2) allow for a single order valid across the country. Technical: The Senate bill makes even more explicit that pen/trap orders cannot collect content. The house bill has amends 3124, the provider assistance requirement. Technical Language Description Changes words like "device" to "device or process" and includes all "dialing, routing, addressing, and signaling information"; and (2) allows federal courts to issue orders valid throughout the country 217 Plain: allows law enforcement to assist victims of crime in monitoring hackers trespassing on their computers. Plain: The two provisions are almost the same, except with the phrasing of the content exclusion. 105 House bill contains an explicit immunity provision for providers. 6 EXT-18-2091-C-000978 007104-001729 Document ID: 0.7.19343.6177-000003 Senate bill excludes from the definition of "computer trespasser" individuals who have "an existing contractual relationship" for access to all or part of the protected computer. Technical: amends the wiretap statute to allow persons acting under color of law to intercept "computer trespassers" with the consent of the computer owner. 218 AG must certify that "a significant purpose" of the surveillance or search is foreign intelligence. 153 Same. Subject to sunset. 219 Allows search warrants in terrorism investigations to be obtained in any district "in which activities related to the terrorism may have occurred" and executable nationwide. 351 Same, except that search warrant has to be obtained in any district having "jurisdiction over the offense being investigated." 220 Plain: allows investigators to get order in local court for communications stored by providers anywhere in the country (court must have jurisdiction over the offense). 108 Same. 160 House bill provision would apply to services. The Senate bill has a second sentence (redundant with current law) that assures providers reasonable compensation. Technical: amends 2703(a) to give nationwide effect to search warrants for stored electronic communications. 222 Plain: Attempts to protect providers from having to develop or deploy new technology as a result of the Bill, and assure that they will be reasonably compensated. Technical: The Senate bill does not include "services" in the first sentence, and the second sentence is not present in the House bill. Technical: Adds free-standing provision to effectuate above intent. Compensation applies only to pen/trap amendments Title III Money Laundering and Financial Infrastructure N/A This title of the Senate Bill are the provisions passed out of the Senate Banking Committee, for which there are no corresponding provisions in the House 7 EXT-18-2091-C-000979 007104-001730 Document ID: 0.7.19343.6177-000003 bill. 315 Adds foreign corruption offenses as specified unlawful activities for money laundering crimes. No corresponding house provision No corresponding house provision 316 allows Government to use otherwise inadmissible evidence in contested forfeitures of assets of international terrorists if court determines that such use is needed to protect national security interests. Otherwise, standard 18 U.S.C. ?983 civil forfeiture procedures apply. no corresponding house provision no corresponding house provision 317 amends 18 U.S.C.?1956(b) to give district court "long-arm" jurisdiction over foreign bank that commits money laundering offense in the United States; authorizes restraint of assets found in U.S. to satisfy civil judgment. no corresponding house provision no corresponding house provision 318 a technical amendment to make clear that the definition of "financial institution" in 18 U.S.C. ?? 1956 and 1957 includes foreign banks. no corresponding house provision no corresponding house provision 319 provides for forfeiture of funds in United States interbank accounts no corresponding house provision no corresponding house provision 320 amends 18 U.S.C. ? 981(a)(1)(B) to allow the United States to institute its own civil forfeiture action against proceeds of foreign criminal offenses when such proceeds are found in the United States. no corresponding house provision no corresponding house provision 321 no corresponding provides for exclusion from the United house provision States by consular officer or the Attorney General of aliens reasonably believed to be or to have been involved in activities that would constitute money laundering if done in the United States. no corresponding provision 322 clarifies that 28 U.S.C. ? 2466, [Senate bill has typo "18 U.S.C."] which bars a fugitive from contesting forfeiture of the no corresponding house provision no corresponding provision 8 EXT-18-2091-C-000980 007104-001731 Document ID: 0.7.19343.6177-000003 proceeds of crime, applies also to corporations that the fugitive controls. 323 creates procedure in 28 U.S.C.? 2467 for federal courts, which are authorized by that statute to enforce foreign judgments for forfeiture of criminal proceeds, to restrain property pending the proceeding, and expands such foreign forfeiture judgment enforcement authority beyond drug-related forfeitures to any foreign crimes for which forfeiture would be available if committed in the United States. no corresponding house provision no corresponding house provision 333 provides penalty under Bank Secrecy Act for violations of 31 U.S.C. ? 5326 (pertaining to Geographic Targeting orders) no corresponding house provision no corresponding house provision 351 makes currency smuggling a criminal offense and codifies procedures set forth by the Supreme Court for determining whether forfeitures of the smuggled cash violates the Excessive Fines Clause. no corresponding house provision no corresponding house provision 401 Northern Border 209 House: Authorizes "to be appropriated" necessary funds to triple Northern border Border Patrol and INS officials, and $50,000,000 for systems additions. 402 Northern Border 403 206 NCIC-III data sharing Amends INA ? 105 to authorize FBI to share criminal record systems information with INS and State for visa application adjudication purposes, by "extracts" or more information if SecState provides alien's finger prints and other information to FBI. Pilot aspect in that AG is authorized to reconsider "extracts" provision. 404 One-time expansion of INS authority to pay overtime 503 Same. 9 EXT-18-2091-C-000981 007104-001732 Document ID: 0.7.19343.6177-000003 413 205 Multilateral cooperation against terrorists. Provision for SecState to provide visa and other record information to courts and 3d governments, in SecState's discretion. 501 McDade modification: establishes choice-of-law defaults; eliminates requirement of being member of bar of particular state; permits counseling of undercover activities N/A No comparable provision 502 Enhances the AG's authority to pay rewards in connection with terrorism. 502 Enhances AG's authority to pay rewards under all circumstances. 503 Enhances Sec. State's authority to pay rewards in connection with terrorism. 504 Same as Senate, but-- (1) no single reward may exceed $25M; & (2) sense of House that a $25M reward should be offered. 504 Expands DNA sample collection predicates for federal offenders to include all offenses in 2332b(g)(5)(B) list, all crimes of violence (as defined in 18 USC 16), and attempts and conspiracies to commit such crimes. 352 Adds as DNA sample collection predicates for federal offenders any "Federal terrorism offense" under section 309(a) definition. 505 Allows "federal officers" who conduct electronic surveillance or physical search under FISA to consult with federal law enforcement officers to coordinate efforts N/A 10 EXT-18-2091-C-000982 007104-001733 Document ID: 0.7.19343.6177-000003 to investigate or protect against actual or potential attack, grave hostile acts, sabotage, IT or clandestine intelligence activities by foreign power. 506 Allows for issuance of NSLs for toll and transaction records, financial records and consumer reports by FBI HQ Deputy Assistant Director or higher or SAC. 157 507 Extends certain jurisdiction of Secret Service (concurrently with FBI's). None. 508 N/A Eliminates restrictions on obtaining educational records. Person not lower than Assistant AG can apply for an ex parte order to obtain educational records that are relevant to an authorized investigation or prosecution of a grave felony or an act of domestic or international terrorism after showing specific and articulable facts showing that the records are likely to contain information related to the offenses. AG required to issue guidelines to protect confidentiality of records retained, disseminated and used. 509 N/A Eliminates restrictions on production of information from National Center for Education Statistics and allows person not lower than Assistant AG to collect information provided that there are 11 EXT-18-2091-C-000983 007104-001734 Document ID: 0.7.19343.6177-000003 specific and articulable facts giving reason to believe the records are likely to contain information related to a grave felony or an act of domestic or international terrorism. AG required to issue guidelines to protect confidentiality of records retained, disseminated and used. 611 Provides for expedited payment of PSOB benefits in connection with terrorism None. 612 Technical amendments to Pub. L. 107-37. 501(d) Same as Senate provision. 613 Raises base amount of PSOB benefits from $100K to $250K. 506 Same as Senate provision. 614 Enhances authority of AAG/OJP to manage OJP 501(b) Same as Senate provision. 621 Makes changes in crime victims comp. program; one is: amounts received by the Crime Victims Fund from the Pres. $40B emergency fund are not subject to spending cap 501(a) Amounts received by the Crime Victims Fund from the Pres. $40B emergency fund are not subject to spending cap 622 Makes changes in the crime victims comp. program None. 623 Makes changes in the crime victims comp. program None. 624 Makes many minor changes in the crime victims comp. program; one expands use of its emergency reserve 501(c) Expands use of the emergency reserve. 801 Creates crime for terrorist attacks on mass transportation systems N/A No comparable provision 802 305 Strengthens biological weapons offense. Adds new offense of possessing bio-agent or toxin of type or in quantity not reasonably justified for legitimate purpose. Adds criminal prohibition of convicted felons, etc., possessing listed bio-agents or toxins. Similar to Senate provision, but appears to be earlier version. Tauzin proposal under consideration. 12 EXT-18-2091-C-000984 007104-001735 Document ID: 0.7.19343.6177-000003 309 (1) Creates new 18 USC 25 defining "Federal terrorism offense," including terrorist motivation requirement in 25(1), and offense list in 25(2)-(5). (2) Substitutes "Federal terrorism offense" as defined in the new section 25 for the existing offense list in 18 USC 2332b(g)(5). (This affects the A.G.'s primary investigative jurisdiction under 2332b(f).) (3) Terrorism definitions differ House definition of "domestic terrorism" includes apparent effect (not just intent). 803, 809 (1) Amends list of terrorism crimes in 18 USC 2332b(g)(5)(B) adds some but deletes or restricts others. (2) Makes conforming amendment to 2332b(f) to avoid reduction of A.G.'s primary investigative jurisdiction. (3) Adds definition of "domestic terrorism" to 18 USC 2331 and makes conforming change in existing definition of "international terrorism." 804 307 Creates new harboring offense where perpetrator knows or has reasonable grounds to believe that the person harbored has committed or is about to commit an offense in a short list of highly serious terrorism crimes. Includes venue provision. Creates harboring offense where perpetrator knows that the person harbored has committed or is about to commit an offense in the 25(2) list of terrorism crimes. (The provisions says "section 25(2) or this title," which would cover all title 18 offenses; presumably this is a drafting error and the intended reference is just the 25(2) offenses.) Includes explicit extraterritoriality and venue provisions. 805 Includes in special maritime and territorial 355 jurisdiction offenses in U.S. foreign missions and related residences, committed by or against U.S. nationals. Excludes offenses by persons covered under 18 USC 3261(a) (which provides Senate provision broader regarding coverage of buildings and lands associated with the missions. 13 EXT-18-2091-C-000985 007104-001736 Document ID: 0.7.19343.6177-000003 separate extraterritorial provision for persons accompanying the armed forces). 806 306, 402 In material support of terrorists offense: (1) deletes "within the U.S." restriction, (2) adds some additional predicate offenses, (3) adds venue for prosecution in district of underlying offense, (4) adds "monetary instruments" and "expert advice or assistance" as types of prohibited support. Also, adds material support of foreign terrorist organizations as money laundering predicate. 806(a)(1)(A) Strikes restriction of scope of the material support of terrorists offense to acts within the United States 806(b) (and also sections 809 and 814) 401 Makes 18 U.S.C. ? 2339B a specified unlawful activity for money laundering offenses. Section 806(b) does this the same way as section 401 of the House bill; however, section 806(b) is redundant in the Senate bill because 809 accomplishes the same result by adding 18 U.S.C. ? 2339B to 18 U.S.C. ?2332b(g)(5)(B) which section 814 incorporates into 18 U.S.C. ? 1961(1), all 354 Does not delete "within the U. S." restriction. Amends material support predicates to be "any Federal terrorism offense" (as defined in section 309(a)) and all terrorism crimes in 25(2) list. Same as Senate bill on venue, "monetary instruments," "expert advice or assistance," and money laundering predicates. General provision providing extraterritorial jurisdiction over any "Federal terrorism offense" (as defined in section 309(a)) or offense under the terrorism chapter of title 18. House bill specifically adds 18 U.S.C.?2339B (material support to foreign terrorist organizations) as a new specified unlawful activity (SUA) for money laundering offenses at 18 U.S.C. ? 1956(c)(7)(D) 14 EXT-18-2091-C-000986 007104-001737 Document ID: 0.7.19343.6177-000003 of whose offenses are specified unlawful activities (SUAs) for money laundering under to 18 U.S.C. ? 1956(c)(7)(A). 807 Amends 18 U.S.C. ?981(a)(1) to provide civil forfeiture of assets involved with terrorism. 403 Same 808 Technical clarification avoiding conflict of Trade Sanctions Reform and Export Enhancement Act of 2000 with 18 U.S.C. ?? 2339A and 2339B. 404 Same 810 No limitation period for prosecution of terrorism crimes involving occurrence or foreseeable risk of death or serious injury. 301 No limitation period for prosecution of any "Federal terrorism offense" (as defined in section 309(a)) or for any offense in a list of major terrorism crimes. 15 year limitation period for prosecution of offenses in a list of lesser terrorism crimes. 811 302 Amends statutes defining various terrorism crimes to provide base maximum prison terms of at least 15 or 20 years, and up to life imprisonment were death results. 812 Amends statutes defining various terrorism crimes to add conspiracy language and provide increased conspiracy penalties. 303 Enacts general attempt and conspiracy provisions applicable to "Federal terrorism offense[s]" and to offenses listed in new 18 USC 25(2). (See section 309(a) of bill.) For the covered offenses, this consistently equalizes attempt and conspiracy penalties to the penalties for the object offense. 813 Authorizes postrelease supervision periods 308 Authorizes postrelease supervision Authorizes imprisonment up to life for person convicted of any "Federal terrorism offense" (as defined in section 309(a)). 15 EXT-18-2091-C-000987 007104-001738 Document ID: 0.7.19343.6177-000003 of up to life for persons convicted of terrorism crimes involving occurrence or foreseeable risk of death or serious injury. periods of up to life for persons convicted of any "Federal terrorism offense" (as defined in section 309(a)). 814 Adds terrorism crimes as RICO predicates 304 (through cross-reference to 2332b(g)(5)(B) list as amended by section 809). Adds as RICO predicates any "Federal terrorism offense" (as defined in section 309(a)) and all terrorism crimes in an extensive list. 815 Plain: Makes a number of amendments to the computer hacking law to fix problems encountered in its application and assure adequate penalties for cyber-terrorists. None Technical: Numerous technical changes to 18 USC 1030; doubles penalty for damaging a protected computer. Contains one technical error (page 225, lines 21-24). 901 N/A Amends National Security Act of 1947 to give the DCI the responsibility of establishing requirements and priorities for foreign intelligence information under FISA and provide assistance to AG to ensure that information derived from electronic surveillance of physical searches under FISA is disseminated so it may be used efficiently and effectively for FI purposes. DCI shall have no authority to direct, manage, or undertake elec surv operations. 902 Expands scope of definition of foreign N/A 16 EXT-18-2091-C-000988 007104-001739 Document ID: 0.7.19343.6177-000003 intelligence to include international terrorist activities. N/A 904 Defers submission of semi-annual reports to 2/1/02. 905 N/A AG shall disclose to DCI pursuant to AG Guidelines FI acquired by an element of DOJ during a criminal investigation. Note this does not say that the AG has to provide FI obtained during intel investigation. AG can provide exceptions for classes of information to protect an ongoing investigation. AG must notify DCI within a reasonable period of time days of decision to commence or decline to commence criminal investigation of such activity. [No provision] No corresponding provision. 111 Extends statutory exclusionary rule to permit suppression of electronic evidence. [No provision] No corresponding provision 112 Plain Language Description Adds a reporting requirement to the stored wire and electronic communications 17 EXT-18-2091-C-000989 007104-001740 Document ID: 0.7.19343.6177-000003 provision at chapter 121 of Title 18, U.S.C. At 18 U.S.C. 2703(g), the courts [and agencies using administrative subpoena would have to report to the Administrative Office of the U.S. Courts (AOUSC), and then the AOUSC to Congress, concerning the applications for obtaining (mislabeled "disclosure") wire or electronic communications in storage or from a remote computing service, whether granted by the court or denied, along with certain numerical details. [The inclusion of wire communications in storage/remote computing service in 18 U.S.C. 2703(a) and (b) would be added elsewhere in the pending electronic surveillance amendments.] Technical Language Description Would amend 18 U.S.C. 2703 to append a new subsection (g) "Reports concerning the Disclosure [sic] of the Contents of Electronic Communications" that would require judges or other authorities to report to the AOUSC by January 31 of each year concerning proceedings under 2703(a) and (b) regarding the obtaining of stored wire or electronic communications during the preceding calendar year. The entities reporting to the AOUSC must provide: the fact and type of order, warrant, or subpoena applied for [or if an administrative subpoena was utilized]; whether the application was granted, modified, or denied; the offenses specified; the agency making the application [or utilizing an administrative subpoena]; "the nature of the facilities from which or the place where the contents of electronic communications were to be disclosed"; and a general description of the communications 18 EXT-18-2091-C-000990 007104-001741 Document ID: 0.7.19343.6177-000003 obtained, including the approximate number (and the number of incriminating ones) and the approximate number of persons whose communications were obtained. By June of each year starting in 2003 [year not listed as to the judges' reporting requirement], the AOUSC N/A 161(d) (1) Liquidated damages for civil actions increased to $10,000; new 2 year statute of limitation. If a court finds there are questions as to whether or not an employee "willfully or intentionally violated" FISA, employee must be referred to administrative proceeding. If the administrative board clears the employee, conclusions and support must be sent to Deputy I.G. for Civil Rights 19 EXT-18-2091-C-000991 007104-001742 Document ID: 0.7.19343.6177-000003 N/A [No provision] No corresponding provision 161(d)(3) Amends section on pen-traps to provide for fine and/or prison if individual intentionally instals/uses pen-trap under color of law except as authorized by statute or discloses or uses information obtained under color of law by using pen-trap while knowing or having reason to believe that the information was obtained using pen-trap device not authorized by statute. Also extends civil liability provision to pen-traps. 162 Plain: all of the electronic surveillance improvements (except sec. 109) would sunset in 2003. 20 EXT-18-2091-C-000992 007104-001743 Document ID: 0.7.19343.6177-000003 [No provision] No corresponding provision 160 Plain Language Description All of the electronic surveillance improvements (except sec. 109) would sunset in 2003. [No provision] No corresponding provision. 204 Amends existing INA ? 208 political asylum bars relative to terrorist aliens to make clear that alien need not be charged with and found removable on a terrorism charge under ? 212(a)(3(B) and ? 237(a)(4)(B) for the bar to apply. Existing language in ? 208(b)(2), "inadmissable under" and "removable under," would read "described in." House 204(b) would make this provision retroactive to all aliens and cases in which no final order has issued. 21 EXT-18-2091-C-000993 007104-001744 Document ID: 0.7.19343.6177-000003 [No provision] No corresponding provision 207 Adds new money laundering provision to INA, new ? 212(a)(2)(I), with respect to "any alien who a consular officer or the Attorney General knows or has reason to believe has engaged, is engaging, or seeks to enter" the U.S. to in conduct in violation of 18 U.S.C. ? 1956, or any alien who a consular officer or the AG "knows is, or has been, a knowing aider, abettor, assister, conspirator, or colludes with others" in a ? 1956 offense. Also requires SecState to establish within 90 days post enactment, an international "money laundering watch list, which identifies individuals worldwide who are known or suspected of money laundering" for visa adjudication purposes. Requires "list" updates by SecState, with AG, SecTreasury, and CIA cooperation. No corresponding provision 208 Amends IIRIRA with respect to foreign students to require foreign students from state sponsors of terrorism to pay higher fees. [No provision] 22 EXT-18-2091-C-000994 007104-001745 Document ID: 0.7.19343.6177-000003 No corresponding provision 209 Authorizes "to be appropriated" necessary funds to triple Northern border Border Patrol and INS officials, and $50,000,000 for systems additions. No corresponding provision Title II, Subtitle B Entitled "Preservation of Immigration Benefits for Victims of Terrorism," this title contains numerous provisions, some of them complex, to preserve the ability of aliens affected by the WTCP to preserve existing status and applications that may lapse. No corresponding provision 310 Increases minimum liquidated damages in suits alleging violations of the "stored communications" chapter from $1000 to $10,000. [No provision] [No provision] [No provision] 23 EXT-18-2091-C-000995 007104-001746 Document ID: 0.7.19343.6177-000003 N/A No comparable provision N/A No comparable provision in antiterrorism 405 bill; provision similiar to House 405 is being considered for inclusion in Senate's Victim Tax Relief Act, which is on a fast track Provides for disclosure of tax information that may be related to "terrorist incident, threat, or activity." Provision is far more restrictive than old Administration Section 405 for example, would prohibit Secretary from disclosing if doing so would compromise a confidential informant or any civil or criminal tax investigation, regardless of importance of terrorist threat; 2-year Sunset N/A No comparable provision 406 Provides extraterritorial jurisdiction for narrow category of credit-card fraud offenses under 18 USC 1029; provision deleted from Senate because it was unnecessary and may suggest lack of extra-territorial application in other fraud statutes 702 Appoints Deputy Inspector General for Civil Rights, Civil Liberties, and the FBI, who will review info alleging violations of civil rights, civil liberties, and racial profiling by DOJ employees. N/A 355 Provides blanket extraterritorial jurisdiction over "any Federal terrorism offense," requiring showing of Terrorism mens rea 24 EXT-18-2091-C-000996 007104-001747 Document ID: 0.7.19343.6177-000003 TITLE II SUBTITLE A ALIENS ENGAGING IN TERRORIST ACTIVITY DETENTION AND REMOVAL OF ALIENS ENGAGING IN TERRORIST ACTIVITY Current Law Problems/Need Administration Bill Committee Bill Senate Bill Representatives of Organizations Endorsing Terrorism An alien should be inadmissible and deportable for being a representative of an organization that endorses terrorist activity. An alien is inadmissible if he is a representative of a political, social, or other similar group whose public endorsement of terrorist activity the Secretary of State has determined undermines the efforts of the U.S. to reduce or eliminate terrorist activity. SAME AS ADMIN (section 201(a)). In addition, the bill makes an alien deportable on the same grounds if the endorsement is intended and likely to incite or produce imminent lawless action. (section 201(c)). SAME AS ADMIN (section 411(a)). An alien is inadmissible if he has used his prominence within a foreign state or the U.S. to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines the efforts of the U.S. to reduce or eliminate terrorist activities. SAME AS ADMIN (section SAME AS ADMIN 201(a)). In addition, the bill (section 411(a)). makes an alien deportable on the same grounds if done in a manner that is intended and likely to incite or produce imminent lawless action. (section 201(c)). The spouse and children of an alien terrorist are inadmissible if the terrorist activity occured within the last 5 years. DELETED An alien is not inadmissible or deportable for being a representative of an organization that endorses terrorist activity. An alien should be inadmissible and deportable An alien is not for endorsing or espousing inadmissible or deportable terrorist activity in a way that for endorsing or espousing undermines the efforts of the terrorist activity in a way U.S. to fight terrorism. that undermines the efforts of the U.S. to fight terrorism. Advocates of Terrorism Family Members of Terrorists The spouse and children of alien terrorists are not inadmissible. The spouse and children of alien terrorists should be inadmissible. SIMILAR TO ADMIN, but provides an exception where the spouse or child did not know of the proscribed activity or has renounced the activity. EXT-18-2091-C-000997 007104-001748 Document ID: 0.7.19343.6177-000004 (section 411(a)). Objects Used by Terrorists An alien is inadmissible and deportable for using explosives or a firearm in a terrorist attack. Material Support to Terrorist Organizations An alien is not inadmissible or deportable for providing material support, including contributing funds, to a terrorist organization. However, an alien is inadmissible and deportable for soliciting funds for or membership in a terrorist organization. Terrorist Organizations Aliens can use other items, such as boxcutters, knives, and airplanes, in terrorist attacks. An alien is inadmissible and deportable for using explosives or a firearm or other weapon or dangerous device in a terrorist attack. An alien is inadmissible and SAME AS ADMIN (section deportable for using 411(a). explosives or a firearm or other object in a terrorist attack. (section 201(a)). An alien should be inadmissible and deportable for contributing funds to a terrorist organization. An alien is inadmissible and deportable for committing an act that the alien knows or reasonably should know provides material support (including contributing funds) to any organization that alien knows or reasonably should know is a terrorist organization. An alien is inadmissible and deportable for contributing funds or material support to or soliciting funds for or membership in an organization that has been designated as a terrorist organization by the Secretary of State, or for contributing to, or soliciting membership in or funds for, any non-designated terrorist organization if the alien knows or reasonably should know that the funds, material support or solicitation will further terrorist activity. (section 201(a)). An alien is inadmissible and deportable for contributing funds or material support to or soliciting funds for or membership in an organization that has been designated as a terrorist organization by the Secretary of State, or has been designated by the Secretary of State as an organization engaging in terrorist activities or providing material support to terrorists, or for contributing to, or soliciting membership in or funds for, any non-designated terrorist organization if the alien cannot demonstrate that he did not know nor reasonably should know that the funds, material support or solicitation will further terrorist activity. This provision shall not apply to any material support or contributed funds if the Secretary of State or AG determine that it should not. (section 411(a)). The term should be defined. A terrorist organization is A terrorist organization is A terrorist organization is EXT-18-2091-C-000998 007104-001749 Document ID: 0.7.19343.6177-000004 The term "terrorist organization" is not defined for purposes of the immigration law. either an organization designated by the Secretary of State as a foreign terrorist organization or any organization that commits, intends to commit, or has committed (or materially supports), or that has a significant subgroup that does so, terrorist activity, regardless of any other activities conducted by the organization or its subgroups. For a group that has committed terrorist activity, the Secretary of State can decide that it is no longer a terrorist organization. either an organization designated by the Secretary of State as a foreign terrorist organization or any group of two of more individuals which commits terrorist activities or plans or prepares to commit (including locating targets for) terrorist activities. This latter category includes any group which has a significant subgroup that carries out such activities. (section 201(a)). either an organization designated by the Secretary of State as a foreign terrorist organization, or designated by the Secretary of State as an organization engaging in terrorist activities or providing material support to terrorists, or any group of two of more individuals which commits terrorist activities or plans or prepares to commit (including locating targets for) terrorist activities. (section 411(a)). Endangerment of An alien U.S. should be inadmissible An alien is not for being inadmissible for associated being associated with a with a terrorist terrorist organization and organization intending to come and intending to the U.S. to to come to engage in activities the U.S. to that could engage in endanger the U.S. activities that could endanger the U.S. An alien is inadmissible for being associated with a terrorist organization and intending while in the U.S. to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the U.S. SAME AS ADMIN (section 201(b)). SAME AS ADMIN (section 411(a)). It should be Designation of Foreign Terrorist clarified that Organizations the Secretary of State can Section 219 of the redesignate It is clarified that the Secretary of State can redesignate an organization as a terrorist organization and can revoke a designation or SAME AS ADMIN In addition, either the Secretary or the Attorney General may recommend an organization for designation, and the organization will be so designated if the other concurs. In SAME AS ADMIN (section 411(c)). EXT-18-2091-C-000999 007104-001750 Document ID: 0.7.19343.6177-000004 Immigration and Nationality Act contains a process whereby the Secretary of State can designate an organization as a foreign terrorist organization. an redesignation. organization as a terrorist organization and can revoke a designation or redesignation . Representative of An alien None Terrorist should be Organization deportable for being a An alien is not representativ deportable for e of a foreign being a terrorist representative of a organization foreign terrorist so designated organization so by the designated by the Secretary of Secretary of State. State. Detention of Terrorists By regulation, the INS can detain an alien for 48 hours before making a decision as to charging the alien with a crime or a deportable offense (except that in the event of an emergency or other extraordinary circumstance, an additional reasonable time is The INS needs more flexibility in detaining aliens suspected of being terrorists. The INS shall detain an alien until removed from the U.S. if the Attorney General has certified that he has reason to believe that the alien may commit, further, or facilitate acts of terrorism, espionage, sabotage, the unlawful opposition to or overthrow of the U.S. government, or engage in any other activity that endangers the national security of the U.S. There would be no administrative review of the detention by immigration judges and judicial review instances where either official cannot gain the other's concurrence, the President shall decide on the requested designation. (section 202). An alien is deportable for being a representative of a foreign terrorist organization so designated by the Secretary of State. (section 201(c)). None The INS shall detain an alien until removed from the U.S. if the AG (or the DAG not further delegable) has certified that he has reasonable grounds to believe that the alien is inadmissible or deportable under the terrorism grounds. If the Attorney General has not placed the alien in removal proceedings or charged him with a criminal offense not later than 7 days after the commencement of detention, the alien shall be released. There would be no administrative review of the detention by immigration judges and judicial review would be limited to habeas corpus review by the U.S. District Court for the District of Columbia. Such review would include review of the merits of the certification. The AG shall The INS shall detain an alien until removed from the U.S. if the AG (or the INS Commissioner not further delegable) has certified that he has reasonable grounds to believe that the alien is inadmissible or deportable under the terrorism grounds. If the Attorney General has not placed the alien in removal proceedings or charged him with a criminal offense not later than 7 days after the commencement of detention, the alien shall be released. There would be no administrative review of the EXT-18-2091-C-001000 007104-001751 Document ID: 0.7.19343.6177-000004 allowed). Once the alien is charged with a deportable offense, he may be detained by the INS until a final decision is reached on deporting him. The INS must detain an alien accused of being a terrorist. would be limited to habeas corpus review by the U.S. District Court for the District of Columbia. report to Congress every 6 months on the use of this detention mechanism. The alien shall be maintained in custody irrespective of any relief from removal granted the alien, until the Attorney General determines that the alien no longer warrants certification. However, if an alien detained pursuant to this section is ordered removed as a terrorist (or on the other grounds allowing certification) has not been removed within 90 days and is unlikely to be removed in the reasonably foreseeable future, the alien may be detained for additional periods of up to six months if the Attorney General demonstrates that release will not protect the national security of the United States or ensure the Detention is reviewable by an immigration judge and in federal court by writ of habeas corpus. detention by immigration judges and judicial review would be limited to habeas corpus review by the U.S. District Court for the District of Columbia. Such review would include review of the merits of the certification. The AG shall report to Congress every 6 months on the use of this detention mechanism. The alien shall be maintained in custody irrespective of any relief from removal granted the alien, until the Attorney General determines that the alien no longer warrants certification. (section 412). The Such records can be provided Multilateral Cooperation government to a foreign government on a against Terrorism should be case-by-case basis able to The records of the provide such State Department records to a pertaining to the foreign issuance of or government refusal to issue for the visas to enter the purpose of U.S. are preventing, confidential and investigating, can be used only in or punishing the formulation acts of and enforcement of terrorism. U.S. law. SIMILAR TO ADMIN, but only for the SIMILAR TO ADMIN, but purpose of preventing, investigating, or only for purposes of punishing acts of terrorism. (section 205). preventing, investigating, or punishing acts that are crimes in the U.S. (section 413). Interagency Data The State Sharing Department and INS The State should have Department and access to the SAME AS ADMIN (section 206). The Justice Department shall provide to the State Department and the INS access to the criminal history record information contained SAME AS ADMIN (section 403). EXT-18-2091-C-001001 007104-001752 Document ID: 0.7.19343.6177-000004 NCIC INS do not have adequate access to database. the NCIC database. in the National Crime Information Center's Interstate Identification Index, Wanted Persons File, and to any other files maintained by the NCIC that may be mutually agreed upon by the Justice Department and the official to be provided access, for purposes of determining whether a visa applicant or an applicant for admission has a criminal history record. Such access shall be provided by means of extracts of the records for placement in the State Department's automated visa lookout database or other appropriate database. The State Department shall establish the conditions for the use of the information in order to limit the redissemination of the information, to ensure that it is used solely to determine whether to issue a visa, to ensure the security, confidentiality and destruction of the information, and to protect any privacy rights of the subjects of the information. Asylum for Terrorists If the INS charges an alien for purposes of removal or The INS None should be able in such an instance to oppose a grant of asylum on It is clarified that even if the INS charges an alien for purposes of removal or deportation with a non terrorist-based offense, if the alien seeks asylum, the INS can seek to oppose its grant by providing evidence that the alien is a terrorist. (section 204). None EXT-18-2091-C-001002 007104-001753 Document ID: 0.7.19343.6177-000004 deportation with a non terrorist-based offense, and the alien seeks asylum, the INS cannot seek to oppose its grant by providing evidence that the alien is a terrorist. the basis on the applicant being a terrorist. Northern Border More needs None to be done to prevent alien terrorists from entering the U.S. from Canada. Authorizes the appropriation of funds necessary to triple the number of Border Patrol personnel in each State along the northern border and the number of INS inspectors at each port of entry along the northern border. The Act also authorizes $50 million to the INS for purposes of making improvements in technology for monitoring the northern border and acquiring additional equipment at the northern border. (section 209). Authorizes the appropriation of funds necessary to triple the number of Border Patrol personnel in each State along the northern border, the number of INS inspectors at ports of entry along the northern border, and the number of Customs agents at ports of entry. The Act also authorizes $50 million each to the INS and the Customs Service for purposes of making improvements in technology for monitoring the northern border and acquiring additional equipment at the northern border. The cap on INS personnel assigned to the northern border is eliminated (section 401-402). Inadmissibility of Alien money None Money launderers Launderers should be inadmissible. Alien money launderers are not inadmissible. An alien is inadmissible alien who the government know or has reason to believe is a money launderer. The Secretary of State shall create a watchlist, to be checked before the issuance of a visa or admission into the U.S., which identifies persons who are known or suspected of money laundering. (section An alien is inadmissible alien who the government know or has reason to believe is a money launderer. (section 321). Few border patrol agents patrol the northern border. EXT-18-2091-C-001003 007104-001754 Document ID: 0.7.19343.6177-000004 207). Foreign Students The Illegal Immigration Reform and Immigrant Responsibility Act of 1996set up a foreign student tracking system that has never been fully implemented. The system is to be funded by a fee on foreign students. CIPRIS None should be implemented expeditiously . The date by which the system must be None fully operational is advanced and students who are nationals of countries that have repeatedly provided support for acts of international terrorism may be assessed a higher fee than other foreign students. In addition, the Act provides that the Attorney General shall provide to the Secretary of State and the Director of the FBI the information collected by the system. (section 208). EXT-18-2091-C-001004 007104-001755 Document ID: 0.7.19343.6177-000004 Dinh, Viet From : Dinh, Viet Sent : Tuesday , October 09, 200110 :53 AM To : Dinh, Viet; 'Fishman, George '; 'cwolff@ovp.cop.gov '; 'makan _ delrahim@judiciary.senate.gov'; 'Dudas, Jon'; 'john_mashburn@lott.senate.gov '; ': 'P eterlin , Margaret' ; 'Farry, Doug'; 'stuart _ nash@judiciary.senate.gov '; 'Courtney _S._ Elwood@who.eop.gov'; ' Brett_ M._ Kavanaugh@who.eop.gov '; 'Nancy_P._Dorn@who.eop.gov '; 'Candi da_P ._Wolff@ovp.eop .gov'; 'Robert _ Marsh@who.eop.gov'; 'Timothy_ E._ Flanigan@wh o.eop .gov'; 'Courtney_S._ Elwood@who.eop.gov '; 'Kristen_Silverberg@who.eop.go v'; Bryant, Dan; Newstead , Jennifer; Karp, David J; Elwood, John; Tliorsen, Carl; O' Brien, Pat; Lindemann, Michael; Painter, Christopher; Geise, Jack; Kris, David; Madan, Rafael; 'will.moschella@mail.house .gov'; 'jay.apperson@mail.house.gov'; 'Richar d_E._ Gre-en@omb.eop.gov '; 'Heather_ Wingate-@who.eop.gov '; 'Matthew_Kirk@w ho.eop.gov'; 'Bradford_A._ Berenson@who.eop .gov'; Ayres, David; Israel ite, David; Tucker, Mindy; Dryden, Susan; Dinh, Viet; Sales, Nathan; Keefer, Wendy J Subject : New Side-by-side comparison Attachments : revised house-senate side by side.wpd All, Please find enclosed a revised side-by-side comparison of the Senate and House anti-terrorism bills. Best, Viet Dinh EXT-18-2091-C-001005 007104-001756 Docume nt ID: 0.7.19343.6205 Senate and House Bill Comparison Senate Bill Provision No. Senate Bill Description Corresponding House Bill No. 2 Construction and severability clause 2 101 Establishes a fund to reimburse DOJ components for costs incurred to rebuild facilities, investigate and prosecute terrorism, and to reimburse other Federal agencies for detaining individuals in foreign countries accused of terrorist acts No corresponding House provision 102 Sense of Congress condemning discrimination against Arab and Muslim Americans No corresponding House provision 103 Authorizes $200M for FY 2002, 2003 and 2004 for the FBI Technical Support Center (established by AEDPA) No corresponding House Provision 104 Broadens Attorney General's authority to request the Secretary of Defense to support DOJ activities in emergency situations involving weapons of mass destruction No corresponding House provision 105 Directs the Secret Service to develop a national network of electronic crime task forces modeled on the New York task force No corresponding House provision 106 Expands Presidential authority, without a formal declaration of war, to seize assets of foreign persons, countries, and organizations involved in armed hostilities or attacks on the United States 159 201 Plain Language Description No corresponding House provision Differences from Senate Bill Notes Same Requires a statute authorizing use of military force by the President prior to seizure of assets; deletes classified evidence provision Adds terrorism statutes as Title III predicate offenses, includes chemical weapons offenses under 18 U.S.C. 229 1 EXT-18-2091-C-001006 007104-001757 Document ID: 0.7.19343.6205-000001 Technical Amends 18 U.S.C. 2516(1), which lists predicate offenses for electronic surveillance orders under Title III, by adding 18 U.S.C. 229 (relating to chemical weapons) and 18 U.S.C. 2332, 2332a, 2332b, 2332d (relating to the use of weapons of mass destruction, acts of terrorism transcending national boundaries, and engaging in financial transactions with countries supporting international terrorism) and 18 U.S.C. 2339A or 2339B (providing material support or resources to terrorists or designated terrorist organizations) 202 Plain Language Description No corresponding House provision Allows voice wiretaps in computer hacking investigations Technical Adds Section 1030 to list of offenses in 18 USC 2516(1) 203(a) Permits (without court order) sharing of grand jury information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel 353 Requires court order; subject to sunset provision 203(b) Sharing of wiretap information regarding foreign intelligence and counterintelligence (under NSA) and foreign intelligence information (as defined) with federal law-enforcement, intelligence, protective, immigration, 103 Limited to "foreign intelligence information" under FISA 2 EXT-18-2091-C-001007 007104-001758 Document ID: 0.7.19343.6205-000001 national defense and national security personnel 203(c) Requires AG to establish procedure for information sharing in 203(a) and (b) No corresponding House provision 203(d) Permits sharing of information regarding foreign intelligence, counterintelligence, and foreign intelligence information with federal law-enforcement, intelligence, protective, immigration, national defense and national security personnel notwithstanding other law 154 Limited to "foreign intelligence information" under FISA; subject to sunset provision 204 Plain Language Description 104 Same; subject to sunset provision Assures that foreign intelligence gathering authorities are not disrupted by changes to pen/trap statute Technical Amends 2511(2)(f) to exempt chapter 121 (the pen/trap statute) 205 Employment of translators by the FBI 701 Essentially same 206 Allows court to authorize roving surveillance where court finds that the actions of the target may have effect of thwarting the identification of a target 152 Same; subject to sunset provision 207 Initial authorization for surveillance and search of officers/employees of foreign powers changed to 120 days; can be extended for one year period; all other searches authorized for 90 day period 151 Surveillance and search of officers/ employees of foreign powers can be authorized for one year; all other searches authorized for 90 day period/ authorization; subject to sunset provision 208 Increases the number of judges on the FISA Court to 11, no less than 3 of whom must live within 20 miles of Washington, D.C. No corresponding House provision 209 Plain Language Description 102 Same; subject to sunset provision Allows acquisition of voice mail stored with a third party provider to be obtained 3 EXT-18-2091-C-001008 007104-001759 Document ID: 0.7.19343.6205-000001 with a search warrant, rather than a wiretap order Technical Strikes stored voice from definition of "wire communications" and expands provisions for stored electronic communications to include stored voice 210 Plain Language Description 107 Same, except for the way in which the subdivisions are labeled Speeds investigations by allowing investigators to obtain via subpoena a slightly broader class of records to identify computer criminals Technical Broadens categories of information related to electronic communications obtainable under 2703(c)(1)(C) 4 EXT-18-2091-C-001009 007104-001760 Document ID: 0.7.19343.6205-000001 211 Plain Language Description 109 House bill (1) excludes "cable viewing activity," which if undefined could include viewing of web pages or viewing "streaming video" over the Internet; and (2) references "Section 631(a)" when correct citation is "Section 631". 110 Plain Language Description Clarifies that statutes governing telephone and Internet communications (and not the burdensome provisions of the cable act) apply where cable companies are providing Internet or telephone service Technical Creates an exception to 47 USC 551 (the "Cable Act") for voluntary or obligatory disclosure of communications and records of communications under the wiretap statute, the pen/trap statute, and ECPA 212 Plain Language Description (1) Allows providers to disclose communications and records of communications to protect life and limb; and (2) clarifies that victims of computer hacking can disclose non-content records to protect their rights and property Same except that House includes a change to 2703 to confirm that providers have civil immunity for such disclosures to the government. Technical Essentially the same technical amendments to 2702 and 2703 Technical (1) Adds amendment to 2702(b)(6) for emergency disclosure; and (2) makes a structural changes to 2702 and 2703 to broaden providers' ability to disclose records to the government 213 Amends 18 USC ? 3103a to permit delayed notice of search warrants; may [No equivalent; corresponds to 5 EXT-18-2091-C-001010 007104-001761 Document ID: 0.7.19343.6205-000001 seize property where is "reasonably necessary" stricken section 352 of Administration bill.] 214 To get pen-trap must certify that information likely to be obtained is relevant to an ongoing investigation to protect against IT or "clandestine intelligence activities", provided that such investigation of a U.S. person is not conducted solely upon the basis of First Amendment activities 155 215 156 Business records provision allows any designee of FBI director no lower than ASAC to apply to FISA court or a magistrate designated by Chief Justice for an ex parte order requiring production of any tangible things for an investigation to protect against IT or "clandestine intelligence activities" so long as the investigation is conducted under AG Guidelines under EO 12333 and for a U.S. person that the investigation is not solely conducted upon the basis of First Amendment activities To get pen-trap must certify that the information likely to be obtained from the telephone line to which the pen-trap is attached is relevant to ongoing FI or IT investigation being conducted by FBI under AG Guidelines; does not have limitation on First Amendment activities Same except no limitation on First Amendment activities Also requires semiannual reporting to Congress 216 Plain Language Description 101 Plain Language Description Almost the same, except with the phrasing of the content exclusion Amends the pen/trap statute to (1) clearly apply to the Internet; and (2) allow for a single order valid across the country Technical Technical Language Description The Senate bill makes even more explicit that pen/trap orders cannot collect content. Changes words like "device" to "device or process" and includes all "dialing, routing, addressing, and signaling information"; and (2) allows federal courts to issue orders valid throughout the country 217 Plain Language Description 105 House bill contains explicit immunity 6 EXT-18-2091-C-001011 007104-001762 Document ID: 0.7.19343.6205-000001 provision for providers; subject to sunset provision Allows law enforcement to assist victims of crime in monitoring hackers trespassing on their computers Senate bill excludes from the definition of "computer trespasser" individuals who have "an existing contractual relationship" for access to all or part of the protected computer; no such exclusion in House bill. Technical Amends the wiretap statute to allow persons acting under color of law to intercept "computer trespassers" with the consent of the computer owner 218 AG must certify that "a significant purpose" of the surveillance or search is foreign intelligence 153 Same; subject to sunset provision 219 Allows search warrants in terrorism investigations to be obtained in any district "in which activities related to the terrorism may have occurred" and executable nationwide 351 Same, except that search warrant has to be obtained in any district having "jurisdiction over the offense being investigated" 220 Plain Language Description 108 Same; subject to sunset provision Allows investigators to get order in local court for communications stored by providers anywhere in the country (court must have jurisdiction over the offense) Technical Amends 2703(a) to give nation-wide effect to search warrants for stored electronic communications 221 Amends Trade Sanctions Reform and Export Enhancement Act by authorizing President to prevent provision of agricultural and medicinal devices, generally excepted from trade sanctions, when those devices could be used to develop weapons of mass destruction; specifically provides authority to restrict No corresponding House provision 7 EXT-18-2091-C-001012 007104-001763 Document ID: 0.7.19343.6205-000001 exports to Taliban controlled portions of Afghanistan 222 Plain Language Description 160 Plain Language Description Attempts to protect providers from having to develop or deploy new technology as a result of the Bill, and assure that they will be reasonably compensated House bill applies to services; Senate bill has a second sentence (redundant with current law) that assures providers reasonable compensation Technical Technical Adds free-standing provision to effectuate above intent; compensation applies only to pen-trap amendments The Senate bill does not include "services" in the first sentence, and the second sentence is not present in the House bill. Title III Money Laundering and Financial Infrastructure No corresponding House provisions This title of the Senate Bill are the provisions passed out of the Senate Banking Committee, for which there are no corresponding provisions in the House bill. 303 Four-year Congressional review required on Title III provisions under expedited consideration No corresponding House Provision applied specifically to money laundering 311 No corresponding Permits Secretary to direct special House provision measures established in 31 U.S.C. ? 5318 to be taken for up to 120-days with regard to suspected money laundering by domestic financial institutions; expands record-keeping requirements 312 No corresponding Requires financial institutions handling accounts of non-U.S. persons to establish House provision policies and procedures of due diligence in identifying beneficial and nominal owners of those accounts 313 Generally prohibits United States' correspondent accounts with foreign shell banks No corresponding House provision 314 Requires regulations establishing cooperation among financial institutions, regulatory authorities, and law No corresponding House provision 8 EXT-18-2091-C-001013 007104-001764 Document ID: 0.7.19343.6205-000001 enforcement to deter money laundering activities 315 Adds foreign corruption offenses as specified unlawful activities for money laundering crimes No corresponding House provision 316 Allows Government to use otherwise inadmissible evidence in contested forfeitures of assets of international terrorists if court determines that such use is needed to protect national security interests; otherwise, standard 18 U.S.C. ?983 civil forfeiture procedures apply No corresponding House provision 317 No corresponding Amends 18 U.S.C.?1956(b) to give House provision district court "long-arm" jurisdiction over foreign bank that commits money laundering offense in the United States; authorizes restraint of assets found in U.S. to satisfy civil judgment. 318 Technical amendment to make clear that the definition of "financial institution" in 18 U.S.C. ?? 1956 and 1957 includes foreign banks No corresponding House provision 319 Provides for forfeiture of funds in United States interbank accounts No corresponding House provision 320 Amends 18 U.S.C. ? 981(a)(1)(B) to allow the United States to institute its own civil forfeiture action against proceeds of foreign criminal offenses when such proceeds are found in the United States No corresponding House provision 321 No corresponding Provides for exclusion from the United House provision States by consular officer or the Attorney General of aliens reasonably believed to be or to have been involved in activities that would constitute money laundering if done in the United States 322 Clarifies that 28 U.S.C. ? 2466, [Senate bill has typo "18 U.S.C."] which bars a No corresponding House provision 9 EXT-18-2091-C-001014 007104-001765 Document ID: 0.7.19343.6205-000001 fugitive from contesting forfeiture of the proceeds of crime, applies also to corporations that the fugitive controls 323 Creates procedure in 28 U.S.C.? 2467 for federal courts, which are authorized by that statute to enforce foreign judgments for forfeiture of criminal proceeds, to restrain property pending the proceeding, and expands such foreign forfeiture judgment enforcement authority beyond drug-related forfeitures to any foreign crimes for which forfeiture would be available if committed in the United States No corresponding House provision [but similar attempt to provide effective enforcement of judgments as House bill section 705] 324 Increases civil and criminal penalties for money laundering No corresponding House provision 325 Requires a report and recommendation from SEC and others evaluating the operations of this subtitle 30-months after enactment No corresponding House provision 326 Requires report by Secretary on effectiveness of these provisions No corresponding House provision 327 Brings concentration accounts within regulatory authority of Secretary regarding prevention of financial institutions from permitting movement of funds without related or associated identity of customer No corresponding House provision 331 Encourages reporting of suspicious activity by, primarily, releasing financial institutions and their agents from liability for reporting such activity No corresponding House provision 332 Requires financial institutions to establish anti-money laundering programs No corresponding House provision 333 Provides penalty under Bank Secrecy Act for violations of 31 U.S.C. ? 5326 (pertaining to Geographic Targeting orders) No corresponding House provision 10 EXT-18-2091-C-001015 007104-001766 Document ID: 0.7.19343.6205-000001 334 Describes an anti-money laundering strategy No corresponding House provision 335 Permits inclusion of suspicion of illegal activity in various written communications and employee references, free from liability No corresponding House provision 336 Technical amendment to Bank Secrecy Act regarding Bank Secrecy advisory groups No corresponding House provision 337 Requires agency reports recommending possible legislation to conform penalties for various money laundering offenses No corresponding House provision 338 Requires regulations to be enacted requiring the reporting of suspicious activity of security brokers and dealers and requiring a report on investment companies within one year of enactment No corresponding House provision 11 EXT-18-2091-C-001016 007104-001767 Document ID: 0.7.19343.6205-000001 339 Requires Secretary to report on administration of Bank Secrecy provisions within six months of enactment No corresponding House provision 340 Technical amendments to Bank Secrecy Act, Right to Financial Privacy Act, and Fair Credit Reporting Act to conform to other provisions No corresponding House provision 341 Extends requirements of reporting suspicious activity to the activities of Hawala and other underground banking systems, such as informal value transfer systems No corresponding House provision 342 Makes support through voice and vote of Executive Directors of financial institutions a benefit available to foreign countries which act to contribute, to respond, to deter, and to prevent international terrorism No corresponding House provision 351 Makes currency smuggling a criminal offense and codifies procedures set forth by the Supreme Court for determining whether forfeitures of the smuggled cash violates the Excessive Fines Clause No corresponding House provision 361, 362, 363 Sense of Congress as to topics to be covered during U.S. negotiations with foreign governments regarding money laundering No corresponding House provisions 401 Northern Border; authorizes AG to waive No corresponding 12 EXT-18-2091-C-001017 007104-001768 Document ID: 0.7.19343.6205-000001 any cap on number of personnel House provision 402 Northern Border; authorizes funds, including $50,000,000 for systems 209 403 206 NCIC-III data sharing Amends INA ? 105 to authorize FBI to share criminal record systems information with INS and State for visa application adjudication purposes, by "extracts" or more information if SecState provides alien's finger prints and other information to FBI; pilot aspect in that AG authorized to reconsider "extracts" provision Same 404 One-time expansion of INS authority to pay overtime 503 Same 413 Multilateral cooperation against terrorists; provision for SecState to provide visa and other record information to courts and foreign governments, in Sec.State's discretion 205 Same 501 McDade modification: establishes choice-of-law defaults; eliminates requirement of being member of bar of particular state; permits counseling of undercover activities No corresponding House provision 502 Enhances the AG's authority to pay rewards in connection with terrorism 502 House bill authorizes "to be appropriated" necessary funds to triple Northern border Border Patrol and INS officials, and $50,000,000 for systems additions Enhances AG's authority to pay rewards under all circumstances 13 EXT-18-2091-C-001018 007104-001769 Document ID: 0.7.19343.6205-000001 504 503 Enhances Sec. State's authority to pay rewards in connection with terrorism Same as Senate, but-- (1) no single reward may exceed $25M; & (2) sense of House that a $25M reward should be offered 504 352 Expands DNA sample collection predicates for federal offenders to include 2332b(g)(5)(B) list of terrorist offenses, all crimes of violence (as defined in 18 USC 16), and attempts and conspiracies to commit such crimes 505 Allows "federal officers" who conduct electronic surveillance or physical search under FISA to consult with federal law enforcement officers to coordinate efforts to investigate or protect against actual or potential attack, grave hostile acts, sabotage, IT or clandestine intelligence activities by foreign power No corresponding House provision 506 Allows for issuance of NSLs for toll and transaction records, financial records and consumer reports by FBI HQ Deputy Assistant Director or higher or SAC 157 507 Extends certain jurisdiction of Secret Service (concurrently with FBI's) No corresponding House provision 508 Eliminates restrictions on obtaining No corresponding educational records; person not lower than House provision Adds as DNA sample collection predicates for federal offenders any "Federal terrorism offense" under House section 309(a) definition 14 EXT-18-2091-C-001019 007104-001770 Document ID: 0.7.19343.6205-000001 Assistant AG can apply for an ex parte order to obtain educational records that are relevant to an authorized investigation or prosecution of a grave felony or an act of domestic or international terrorism after showing specific and articulable facts showing that the records are likely to contain information related to the offenses; AG required to issue guidelines to protect confidentiality of records retained, disseminated and used 509 No corresponding Eliminates restrictions on production of House provision information from National Center for Education Statistics and allows person not lower than Assistant AG to collect information provided that there are specific and articulable facts giving reason to believe the records are likely to contain information related to a grave felony or an act of domestic or international terrorism; AG required to issue guidelines to protect confidentiality of records retained, disseminated and used 611 Provides for expedited payment of PSOB benefits in connection with terrorism No corresponding House provision 612 Technical amendments to Pub. L. 107-37. 501(d) Same 613 Raises base amount of PSOB benefits from $100K to $250K. 506 Same 614 Enhances authority of AAG/OJP to manage OJP 501(b) Same 621 Makes changes in crime victims comp. program; one is: amounts received by the Crime Victims Fund from the Pres. $40B emergency fund are not subject to spending cap 501(a) Amounts received by the Crime Victims Fund from the Pres. $40B emergency fund are not subject to spending cap 622 Makes changes in the crime victims comp. program No corresponding House provision 15 EXT-18-2091-C-001020 007104-001771 Document ID: 0.7.19343.6205-000001 623 Makes changes in the crime victims comp. program No corresponding House provision 624 Makes many minor changes in the crime victims comp. program; one expands use of its emergency reserve 501(c) 711 No corresponding Establishes secure information sharing House provision systems to enhance investigation and prosecution abilities of agencies involved in investigations or prosecutions of multi-jurisdiction terrorist activities; authorizes funds for BJA of $50million for 2002 and $100 million for 2003 801 Creates crime for terrorist attacks on mass transportation systems No corresponding House provision 802 Strengthens biological weapons offense; adds new offense of possessing bio-agent or toxin of type or in quantity not reasonably justified for legitimate purpose; adds criminal prohibition of convicted felons, etc., possessing listed bio-agents or toxins 305 Expands use of the emergency reserve Similar to Senate provision, but appears to be earlier version; Tauzin proposal under consideration 16 EXT-18-2091-C-001021 007104-001772 Document ID: 0.7.19343.6205-000001 309 (1) Creates new 18 USC 25 defining "Federal terrorism offense," including terrorist motivation requirement in 25(1), and offense list in 25(2)-(5). (2) Substitutes "Federal terrorism offense" as defined in the new section 25 for the existing offense list in 18 USC 2332b(g)(5). (This affects the A.G.'s primary investigative jurisdiction under 2332b(f).) (3) Terrorism definitions differ House definition of "domestic terrorism" includes apparent effect (not just intent). 803, 809 (1) Amends list of terrorism crimes in 18 USC 2332b(g)(5)(B) adds some but deletes or restricts others. (2) Makes conforming amendment to 2332b(f) to avoid reduction of A.G.'s primary investigative jurisdiction. (3) Adds definition of "domestic terrorism" to 18 USC 2331 and makes conforming change in existing definition of "international terrorism." 804 307 Creates new harboring offense where perpetrator knows or has reasonable grounds to believe that the person harbored has committed or is about to commit an offense in a short list of highly serious terrorism crimes. Includes venue provision Creates harboring offense where perpetrator knows that the person harbored has committed or is about to commit an offense in the 25(2) list of terrorism crimes. (The provisions says "section 25(2) or this title," which would cover all title 18 offenses; presumably this is a drafting error and the intended reference is just the 25(2) offenses.) Includes explicit extraterritoriality and venue provisions. 805 Includes in special maritime and territorial 355 jurisdiction offenses in U.S. foreign missions and related residences, committed by or against U.S. nationals. Excludes offenses by persons covered under 18 USC 3261(a) (which provides Senate provision broader regarding coverage of buildings and lands associated with the missions 17 EXT-18-2091-C-001022 007104-001773 Document ID: 0.7.19343.6205-000001 separate extraterritorial provision for persons accompanying the armed forces) 806 306, 402 In material support of terrorists offense: (1) deletes "within the U.S." restriction, (2) adds some additional predicate offenses, (3) adds venue for prosecution in district of underlying offense, (4) adds "monetary instruments" and "expert advice or assistance" as types of prohibited support. Also, adds material support of foreign terrorist organizations as money laundering predicate. 806(a)(1)(A) Strikes restriction of scope of the material support of terrorists offense to acts within the United States 806(b) (and also sections 809 and 814) 401 Makes 18 U.S.C. ? 2339B a specified unlawful activity for money laundering offenses; section 806(b) does this the same way as section 401 of the House bill; however, section 806(b) is redundant in the Senate bill because 809 accomplishes the same result by adding 18 U.S.C. ? 2339B to 18 U.S.C. ?2332b(g)(5)(B) which section 814 incorporates into 18 U.S.C. ? 1961(1), all 354 Does not delete "within the U. S." restriction; amends material support predicates to be "any Federal terrorism offense" (as defined in section 309(a)) and all terrorism crimes in 25(2) list; same as Senate bill on venue, "monetary instruments," "expert advice or assistance," and money laundering predicates General provision providing extraterritorial jurisdiction over any "Federal terrorism offense" (as defined in section 309(a)) or offense under the terrorism chapter of title 18 House bill specifically adds 18 U.S.C.?2339B (material support to foreign terrorist organizations) as a new specified unlawful activity (SUA) for money laundering offenses at 18 U.S.C. ? 1956(c)(7)(D) 18 EXT-18-2091-C-001023 007104-001774 Document ID: 0.7.19343.6205-000001 of whose offenses are specified unlawful activities (SUAs) for money laundering under to 18 U.S.C. ? 1956(c)(7)(A). 807 Amends 18 U.S.C. ?981(a)(1) to provide civil forfeiture of assets involved with terrorism 403 Same 808 Technical clarification avoiding conflict of Trade Sanctions Reform and Export Enhancement Act of 2000 with 18 U.S.C. ?? 2339A and 2339B 404 Same 810 No limitation period for prosecution of terrorism crimes involving occurrence or foreseeable risk of death or serious injury 301 No limitation period for prosecution of any "Federal terrorism offense" (as defined in section 309(a)) or for any offense in a list of major terrorism crimes; 15 year limitation period for prosecution of offenses in a list of lesser terrorism crimes 811 302 Amends statutes defining various terrorism crimes to provide base maximum prison terms of at least 15 or 20 years, and up to life imprisonment where death results 812 Amends statutes defining various terrorism crimes to add conspiracy language and provide increased conspiracy penalties 303 Enacts general attempt and conspiracy provisions applicable to "Federal terrorism offense[s]" and to offenses listed in new 18 USC 25(2) (see section 309(a) of bill); for the covered offenses, consistently equalizes attempt and conspiracy penalties to the penalties for the object offense 813 Authorizes postrelease supervision periods 308 Authorizes postrelease supervision Authorizes imprisonment up to life for person convicted of any "Federal terrorism offense" (as defined in section 309(a)) 19 EXT-18-2091-C-001024 007104-001775 Document ID: 0.7.19343.6205-000001 of up to life for persons convicted of terrorism crimes involving occurrence or foreseeable risk of death or serious injury periods of up to life for persons convicted of any "Federal terrorism offense" (as defined in section 309(a)) 814 Adds terrorism crimes as RICO predicates 304 (through cross-reference to 2332b(g)(5)(B) list as amended by section 809) Adds as RICO predicates any "Federal terrorism offense" (as defined in section 309(a)) and all terrorism crimes in an extensive list 815 Plain Language Description No corresponding House provision Makes a number of amendments to the computer hacking law to fix problems encountered in its application and assure adequate penalties for cyber-terrorists Technical Numerous technical changes to 18 USC 1030; doubles penalty for damaging a protected computer (contains one technical error (page 225, lines 21-24)) 816 Technical amendment to 18 U.S.C. ? 2707 adding defenses to civil actions regarding preservation of records in response to government requests No corresponding House provision 817 Directs AG to establish cybersecurity forensic capabilities No corresponding House provision 901 Amends National Security Act of 1947 to give the DCI the responsibility of establishing requirements and priorities for foreign intelligence information under No corresponding House provision 20 EXT-18-2091-C-001025 007104-001776 Document ID: 0.7.19343.6205-000001 FISA and provide assistance to AG to ensure that information derived from electronic surveillance of physical searches under FISA is disseminated so it may be used efficiently and effectively for FI purposes; DCI shall have no authority to direct, manage, or undertake elec surv operations 902 Expands scope of definition of foreign intelligence to include international terrorist activities No corresponding House provision 903 Sense of Congress that intelligence community employees should maintain relationships with persons and groups for purposes of lawful intelligence activities regarding terrorism No corresponding House provision 904 Defers submission of semi-annual reports to 2/1/02 No corresponding House provision 905 AG shall disclose to DCI pursuant to AG Guidelines FI acquired by an element of DOJ during a criminal investigation (Note this does not say that the AG has to provide FI obtained during intelligence investigation) No corresponding House provision AG can provide exceptions for classes of information to protect an ongoing investigation AG must notify DCI within a reasonable period of time days of decision to commence or decline to commence criminal investigation of such activity 21 EXT-18-2091-C-001026 007104-001777 Document ID: 0.7.19343.6205-000001 906 Directs AG, Director of CIA, and Secretary of Treasury to submit joint report by 2/01/02 on reconfiguring Foreign Terrorist Asset Tracking System No corresponding House provision 907 Directs Directors of CIA and FBI to submit report by 2/01/02 regarding National Virtual Translation Center No corresponding House provision 22 EXT-18-2091-C-001027 007104-001778 Document ID: 0.7.19343.6205-000001 908 Requires establishment of program of appropriate training of government officials regarding identification and use of foreign intelligence No corresponding House provision [No provision] No corresponding Senate provision 111 Extends statutory exclusionary rule to permit suppression of electronic evidence [No provision] No corresponding Senate provision 112 Plain Language Description Adds a reporting requirement to the stored wire and electronic communications provision at chapter 121 of Title 18, U.S.C. At 18 U.S.C. 2703(g), the courts [and agencies using administrative subpoena would have to report to the 23 EXT-18-2091-C-001028 007104-001779 Document ID: 0.7.19343.6205-000001 Administrative Office of the U.S. Courts (AOUSC), and then the AOUSC to Congress, concerning the applications for obtaining (mislabeled "disclosure") wire or electronic communications in storage or from a remote computing service, whether granted by the court or denied, along with certain numerical details. [The inclusion of wire communications in storage/remote computing service in 18 U.S.C. 2703(a) and (b) would be added elsewhere in the pending electronic surveillance amendments.] Technical Language Description Would amend 18 U.S.C. 2703 to append a new subsection (g) "Reports concerning the Disclosure [sic] of the Contents of Electronic Communications" that would require judges or other authorities to report to the AOUSC by January 31 of each year concerning proceedings under 2703(a) and (b) regarding the obtaining of stored wire or electronic communications during the preceding calendar year. The entities reporting to the AOUSC must provide: the fact and type of order, warrant, or subpoena applied for [or if an administrative subpoena was utilized]; whether the application was granted, modified, or denied; the offenses specified; the agency making the application [or utilizing an administrative subpoena]; "the nature of the facilities from which or the place where the contents of electronic communications were to be disclosed"; and a general description of the communications obtained, including the approximate number (and the number of incriminating ones) and the approximate number of persons whose communications were 24 EXT-18-2091-C-001029 007104-001780 Document ID: 0.7.19343.6205-000001 obtained. By June of each year starting in 2003 [year not listed as to the judges' reporting requirement], the AOUSC [No provision] No corresponding Senate provision 158 Directs the President to present legislation by August 31, 2003, relating to the provisions that will sunset pursuant to House bill section 160 25 EXT-18-2091-C-001030 007104-001781 Document ID: 0.7.19343.6205-000001 [No provision] No corresponding Senate provision 161(d) (1) Liquidated damages for civil actions increased to $10,000; new 2 year statute of limitation. If a court finds there are questions as to whether or not an employee "willfully or intentionally violated" FISA, employee must be referred to administrative proceeding. If the administrative board clears the employee, conclusions and support must be sent to Deputy I.G. for Civil Rights. [No provision] No corresponding Senate provision 161(d)(3) Amends section on pen-traps to provide for fine and/or prison if individual intentionally installs/uses pen-trap under color of law except as authorized by statute or discloses or uses information obtained under color of law by using pen-trap while knowing or having reason to believe that the information was obtained using pen-trap device not authorized by statute; extends civil liability provision to pen-traps 26 EXT-18-2091-C-001031 007104-001782 Document ID: 0.7.19343.6205-000001 [No provision] No corresponding Senate provision 162 All of the electronic surveillance improvements (except sec. 109) would sunset in 2003. [No provision] No corresponding Senate provision 201, 202, 203 Changes classes of aliens ineligible for admission and deportable to those involved with terrorist activity Changes designation of foreign terrorist organizations and mandates detention of suspected terrorists 27 EXT-18-2091-C-001032 007104-001783 Document ID: 0.7.19343.6205-000001 [No provision] No corresponding Senateprovision 204 Amends existing INA ? 208 political asylum bars relative to terrorist aliens to make clear that alien need not be charged with and found removable on a terrorism charge under ? 212(a)(3(B) and ? 237(a)(4)(B) for the bar to apply. Existing language in ? 208(b)(2), "inadmissable under" and "removable under," would read "described in." House 204(b) would make this provision retroactive to all aliens and cases in which no final order has issued. [No provision] No corresponding Senate provision 207 Adds new money laundering provision to INA, new ? 212(a)(2)(I), with respect to "any alien who a consular officer or the Attorney General knows or has reason to believe has engaged, is engaging, or seeks to enter" the U.S. to in conduct in violation of 18 U.S.C. ? 1956, or any alien who a consular officer or the AG "knows is, or has been, a knowing aider, abettor, assister, conspirator, or colludes with others" in a ? 1956 offense; also requires SecState to establish within 90 days post enactment, an international "money laundering watch list, which identifies individuals worldwide who are known or suspected of money laundering" for visa adjudication purposes. Requires "list" updates by SecState, with AG, SecTreasury, and CIA cooperation No corresponding Senate provision 208 Amends IIRIRA with respect to foreign students to require foreign students from state sponsors of terrorism to pay higher fees [No provision] 28 EXT-18-2091-C-001033 007104-001784 Document ID: 0.7.19343.6205-000001 No corresponding Senate provision Title II, Subtitle B Entitled "Preservation of Immigration Benefits for Victims of Terrorism," this title contains numerous provisions, some of them complex, to preserve the ability of aliens affected by the WTCP to preserve existing status and applications that may lapse No corresponding Senate provision 310 Increases minimum liquidated damages in suits alleging violations of the "stored communications" chapter from $1000 to $10,000 No corresponding Senate provision 355 Provides blanket extraterritorial jurisdiction over "any Federal terrorism offense," requiring showing of Terrorism mens rea [No provision] [No provision] [No provision] 29 EXT-18-2091-C-001034 007104-001785 Document ID: 0.7.19343.6205-000001 [No provision] No corresponding Senate provision 356 Expands the authority of special agents with regard to warrantless activities and provides a penalty for interfering with the work of special agents or those under the protection of special agents [No provision] No corresponding provision in antiterrorism bill; provision similiar to House 405 is being considered for inclusion in Senate's Victim Tax Relief Act, which is on a fast track 405 Provides for disclosure of tax information that may be related to "terrorist incident, threat, or activity"; provision is far more restrictive than old Administration Section 405 for example, would prohibit Secretary from disclosing if doing so would compromise a confidential informant or any civil or criminal tax investigation, regardless of importance of terrorist threat; 2-year Sunset [No provision] No corresponding Senate provision 406 Provides extraterritorial jurisdiction for narrow category of credit-card fraud offenses under 18 USC 1029; provision deleted from Senate because it was unnecessary and may suggest lack of extra-territorial application in other fraud statutes [No provision] No corresponding Senate provision 601 Amends the Reclamation Recreation Management Act of 1992 to establish a criminal penalty for violating the regulations of that Act; authorizes officers 30 EXT-18-2091-C-001035 007104-001786 Document ID: 0.7.19343.6205-000001 working within that Act to carry firearms, execute warrants, investigate, and take similar action to enforce [No provision] No corresponding Senate provision 702 Appoints Deputy Inspector General for Civil Rights, Civil Liberties, and the FBI, who will review info alleging violations of civil rights, civil liberties, and racial profiling by DOJ employees [No provision] No corresponding Senate provision 703 Directs the conducting of a feasibility study on the use of biometric identifier scanning system (fingerprinting) abroad and at points of entry into the United States [No provision] No corresponding Senate provision 704 Directs the FBI to conduct a study by the end of next year of the feasibility of providing computer access to airlines of the names of suspected terrorists [No provision] No corresponding Senate provision 705 Justice for Victims of Terrorism Act; provides enforcement mechanisms for the enforcement of certain anti-terrorism judgments, including the attachment of property subject to the Vienna Convention [No provision] No corresponding Senate provisions Title VIII Private Security Officer Quality Assurance; provides procedures for ensuring the quality of private security officers hired by entities in the United States, including required background checks 31 EXT-18-2091-C-001036 007104-001787 Document ID: 0.7.19343.6205-000001 Dinh, Viet From : Dinh, Viet Sent : Tuesday , October 30, 2001 6:22 PM To: 'Heather_ Wingate@who.eop.gov'; 'Makan Oelrahim ' Cc: Bryant, Dan; Newstead, Jennifer; 'john _ mashburn@lott.senate.gov'; 'stewart _verdery@aml.senate.gov';' hunter bates'; 'stephen higgins'; 'a lex dahl'; 'rena johnson '; 'ed haden '; 'Bra dford_A._ Berenson@who.eop.gov '; 'Brett _ M._ Kavanaugh@who.eop.g ov'; 'Kyle_Sampson@who.eop.gov'; 'eric ueland' Subje ct : RE: Re{2]: No 8:00 am mtg. Tues. morning on judges Jenn and I have a conflict from 3:00 to 3:45 --Original Message-From: Heather_ Wingate@who.eop.gov [ mailto:Heather _ Wingate@who.eop.gov] Sent: Tuesday, October 30, 2001 5:07 PM To: Makan Oelrahim Cc: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; john_ mashbum@lott.senate .gov; stewart _ver dery@aml .senate.gov; hunter bates; stephen higgins; alex dah l; rena johnson; ed haden; Bradford _A._ Berenson@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov; Kyle_Sampson@who.eop.gov; eric ueland Subject: Re: Re[2]: No 8:00 am mtg. Tues. morning on judges Sorry to do th is, but can we do 3:15 instead of 2:30 tomo rrow?HW (Embedded image moved Makan_ Delrahim@judiciary.senate.gov to file: Oelrahim) pic22596.pcx) 10/30/2001 01:40:59 PM (Makan Record Type: Record To: See the dist ribution list at the bottom of this message cc: Subject: Re(2): No 8:00 am mtg. Tues. morning on ju dges EXT-18-2091-C-001037 007104-001788 Document ID: 0.7.19343.666 1 let's do it at 2:30 tommororow in SD 145. I would expect it will take 30 min to 1 hour tops. Makan _________ Reply Separator _________ morning on judges Author: Heather_Wingate@who.eop.gov Subject: Re: No 8:00 am mtg . Tues. Date: 10/30/20011:28 PM See note below. Brad can 't do 9:30 tomorrow (Wed.). How about any time b/w 2 and 4pm tomorrow (we both have a 4pm here that we need to attend , so the latest start time would be 3pm)? -----Forwarded by Heather Wingate/WHO/EOP on 10/30/2001 01:25 PM ------ Bradford A. Berenson 10/30/200 1 08:08: 11 AM Record Type: Record To: Heather Wingate/WHO/EOP@EOP cc: bee: Subject: Re: No 8:00 am mtg. Tues. morning on ju dges (Document link: Heather Wingate) Doesn 't work. I've got a 10:00 am at DOJ. I'm good tomorrow between 2 and 4. Heather Wingate 10/29/2001 07:16:23 PM Record Type: Record To: Zfad S. Ojakli/WHO/EOP@EOP, Brett M. Kavanaugh/WHO/EOP@EOP, Bradford A. Berenson/WHO/EOP@EOP cc: Subject: No 8:00 am mtg. Tues. morning on ju dges Howabout 9:30 Wednesday? That works for Makan and John Mashburn. let me know if that works ASAP. HW -----Forwarded by Heathe r Wingate/WHO/EOP on 10/29/200 1 07:12 PM -EXT-18-2091-C-001038 007104-001789 Document ID: 0.7.19343.666 1 (Embedded image moved "Sutton, Jason" to file: 10/29/2001 05:16:48 PM pic22365.pcx) Record Type: Recor d To: See the distribution list at the bottom of this message cc: Subject: No 8:00 am mtg. Tues. morning on ju dges There will be no 8:00 am meeting tomorow morning (Tues.) w/ Hill staff on judges . The meeting will be rescheduled for later this week or next week. -Original Message--From: Brinkley, Winnie Sent: Monday, October 2-9,200111:13 AM To: Adam Ciongoli; Allison_ L._ Riepenhoff@who.eop.gov@inetgw; 8 radford_A._Berenson@who.eop.gov%inetgw; Brett_M._Kavanaugh@who.eop.gov%inetgw; Dan Bryant; Deloris Cole; Heather_ Wingate@who.eop.gov; James Carroll; Jason Sutton; Jennifer Newstead; Kristen Ullman; Linda Long; Lizette Benedi; Lori Ra bjohns; Lori SharpeDay; Matthew_E._Smith@who.eop.gov%inetgw; Mindy Tucker; Neal Suit; Patrick O'Brien; Sheila Joy; Tim_ Goeglein@who.eop.gov%inetgw; Timothy_E._Flanigan@who.eop.gov%inetgw; Viet Dinh; Winnie Brinkley; Ziad_ S._ Oja kli@who .eop.gov %inetgw Subject: Reminder: Judicial Confirmation Working Group Mtg today at 4pm. Main Justice Room 4646. Importance: High Message Sent To:___________________________ _ "Brinkley, Winnie" (Receipt Notification Requested) (1PM Return Requested) "Ciongoli, Adam" (Receipt Notification Request ed ) {1PMReturn Requested) "Bryant, Dan" (Receipt Notification Requeste d) EXT-18-2091-C-001039 007104-001790 Document ID: 0.7.19343 .666 1 (1PM Heturn Hequeste0J "Cole, Deloris L" (Receipt Notification Requested) (1PM Return Requested) "Carroll, James W (OLP)" <.James.W.Ca rroll@usdoj.gov> (Receipt Notification Requested) (1PM Return Requested) "Newstead, Jennifer" (Receipt Notification Requeste d) (1PM Return Requested) "Ullman, Kristen A" (Receipt Notification Requested) {1PMReturn Requeste d) "Long, Linda E" (Receipt Notification Requested) (1PMReturn Requeste d) "Benedi, Lizette O" (Receipt Notification Requested) {1PMReturn Requeste d) "Rabjohns, Lori" (Receipt Notification Requested) (1PM Return Requeste d) "Day, Lori Sharpe" {Receipt Notification Requested) {1PMReturn Requested) "Tucker, Mindy" (Receipt Notification Requested) (1PM Return Requeste d) "Suit, Neal" (Receipt Notification Requested) (1PM Return Requested) "O'Brien, Pat" (Receipt Notification Requested) (1PM Return Requeste d) "Joy, Sheila" (Receipt Notification Requested) (1PM Return Requested) "Dinh, Viet" (Receipt Notification Requested) (1PMReturn Requested) Allison L. Riepenhoff/WHO/EOP Bradford A. Berenson/WHO/EOP Brett M. Kavanaugh/WHO/EOP Heather Wingate/WHO/EOP Matthew E. Smith/WHO/EOP Tim Goeglein/WHO/EOP Timothy E. Flanigan/WHO/EOP Ziad S. Ojakli/WHO/ EOP Received: from mailsims1.senate.gov ({156.33.203.10)) by mailexch.senate.govwith SMTP (IMA Internet Exchange 3.13) id 004B3EC7; Tue, 30 Oct 200 1 13:29:39 -0500 Receive d: from eop2.eop.gov (eop253.eop.gov) by mailsims 1.senate.gov (Sun Internet Mail Server sims .3.S.2000.03.23.18.03.p10) with SMTP id <0GM100BJE7ELTE@mailsims1.senate .gov> EXT-18-2091-C-001040 007104-001791 Document ID: 0.7.19343 .666 1 for Makan _ Delrahim@judiciary.senate.gov; Tue, 30 Oct 200113:30:22 -0500 (EST) Received: from conversion. EOP2.EOP.GOV by EOP.GOV {PMDFV5.2-33 #37157) id <01KA43T33ZXS90Z6BQ@EOP. GOV> for Makan _ Oelrahim@judiciary.senate.gov; Tue , 30 Oct 200113:29:16 -0500 (EST) Received: from mhub2.eop.gov ((198.137.241.11 )) by EDP.GOV (PMDF V5.2-33 #37157) with ESMTPid <01KA43SUN5S28ZK2T1@EOP .GOV>; Tue, 30 Oct 200113:29:03 -0500 (EST) Received: from sgeop01.eop.gov ((165 .119.1. 33)) by mhub.eop.go v (PMDF V5.2-33 #37157) with SMTP id <01KA43S9QH7A8YC8IW@mhub.eop.gov>; Tue, 30 Oct 200 1 13:28:35 -0500 (EST) Received: by sgeop01.eop.gov(Lotus SMTP MTA v4.6.7 {934.112-30-1999)) id 85256AFS.00657AA1; Tue, 30 Oct 200113:28:25 -0500 Date: Tue, 30 Oct 200113:28:18 -0500 From: Heather_Wingate@who.e-op.gov Subject: Re: No 8:00 am mtg. Tues. morning on ju dges To: Makan_Oelrahim@judiciary.senate.gov, John._ Mashburn@lott.senate.gov, Stewart _ Verdery@aml.senate.gov Message-id: <85256AF5.006579C6.00@sg eop01.eop .gov> MIME-version: 1.0 Content -type: MULTIPART/MIXED; BOUNDARY;::"Boundary _ (ID_ syDOBvHXOS4xiX+ba406Ww)" X-Lotus-FromDomain: EOP EXT-18-2091-C-001041 007104-001792 Document ID: 0.7.19343.666 1 Dinh, Viet From : Dinh, Viet Sent : Friday, November 02, 2001 9:43 AM To: 'Heather_Wingate@who.eop.gov'; Cc: Bryant, Dan; Newstead, Jennifer; Bryant, Dan; 'je ff_taylor@judiciary.senate.gov'; 'c andi_wolff@vp.senate.gov'; 'makan _ de lrahim@judiciary.senate.gov '; 'Bradford_A._Berenson@ who. eop.gov '; '8rett_M._ Kavanaugh@who.eop.gov ' Subject : RE: Nominees & the War on Terrorism 'Chris Myers' VDD -Original Message-From: Heather_ Wingate@who.eop.gov {mailto:Heather _ Wingate@who.eop.gov} Sent : Friday, November 02, 2001 8:36 AM To: Chris Myers Cc: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; Bryant, Dan; jeff _ taylor@judiciary.senate.gov; candi_ wolff@vp.senate.gov; makan _ delrahim@judiciary.senate.gov; Bradford_A._ Berenson@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov Subject: Re: Nominees & the War on Terrorism Thanks, Chris. Very much love the interest you all have on noms . Let me gather with our DoJ/WH Counsel folks and get back with you re: helping you with that message. Brett/Brad/Dan/Jennifer/V iet, let's discuss the email below from Chris with Republican Conference. I'll be in touch this morning on this issue. Thanks! (Embedded image moved Chris_Mye rs@src.senate.gov (Chris Myers) to file: 11/0 1/200 1 07:07 :44 PM pic11449.pcx) Record Type: Record EXT-18-2091-C-001042 007104-001793 Document ID: 0.7.19343.6668 To: See the distribution list at the bottom ot this message cc: Subject: Nominees & the War on Terrorism Heather, Dan, Candi, Jeff, Thanks so much for attending the AAR. Mark & I will soon type up notes & bounce them off of all of you. PLtASI: let us know it you have any thoughts or ideas. Also, we 'd love to have help us with this? Judiciary Committee? Dept of Justice? Who could thanks , chris myers, sen repub conf 224 -2928 Slow confirmation pace hit as hurting security By Audrey Hudson THE WASHINGTONTIMES The Senate is shirking its duty to approve key presidential nominees to lead the charge in the war against terrorism , a leading Republican said yester day. President Clinton's appointees were approve d within eight months, but at the current speed it will take at least a year to confirm Bush administration nominees, said Sen. Fred Thompson , Tennessee Republican and ranking member of the Government Affairs Committee. That means President Bush will serve one-quarter of his te rm without his team in place. "Now that may just be political fun an d games until we get to a situation that we have here now, but we see it has national security implications, and we all must do a bette r job, " Mr. Thompson said. Positions that remain unconfirmed include undersecretaries of the Air Force and Army, assistant to the secretary of de fense for nuclear and chemical and biological defense programs, assistant secretary of state for population , refugees and migration and two positions at the Federal Emergency Management Agency, deputy director and associate director. Sen. Joseph I. Lieberman, Connecticut Democrat and cha irman of the Senate Governmental Affairs Committe e , said he is also concerned about the delay and is exploring a legislative solution with Mr. Thompson. "Every part of the svstem is to blame, " Mr. Lieberman said. EXT-18-2091-C-001043 007104-001794 Document ID: 0.7.19343 .6668 In some cases, the holdup is excessive pre-screening or late nominees from the administrat ion, Mr. Lieberman said. "We want to approve them quickly, but we want to make sure they are qualif ied to serve in the United States," said Sen. Robert G. Torricelli, New Jersey Democrat. The Senate has confirmed 102 positions, but 14 nominations and 11 announ ced nominations are outstanding . Additionally, th ere are 17 holdovers from the Clinton administration and Mr. Bush has yet to name appointments for 20 positions, according to the President ial Appointee Commission established by the Brookings Inst itut ion. "It's importa nt that the administration get these names up here and that Congress react to them promptly," Mr. Thompson said . Sen. Susan Collins, Maine Republican , said it must be a top priority for th e Senate to approve essent ial nominees. "It is critical to get the nominees through the process to assist and lead in the fight against terrorism, " Miss Collins said. Americans express an increased confidence in presidential appointees since the September 11 terrorist atta cks, exceeding confidence in elected members of Congress , according to a poll by the Brookings Institution 's Presidential Appointee Initiative. The nationw ide survey compares results from an identic a l July poll that found Americans were high ly critical of appointees and the appointment process. Seventy-nine percent of Americans now have a very favorable or somewhat favorable view of president ial appo intees, up near ly 20 pe rcent. Forty-two percent of Americans now say they would strongly encourage a close friend who is successfu l in bus iness to take a presidential appointment , up from 30 percent. "This report shows that Americans clearly believe that president ial appointees play a critical role in government , particularly during the current terrorist crisis," said Paul C. Light, senior adviser to the Presidential Appointee Initiative. "Americans turn to the fede ra l government in times of crisis because its very purpose is to solve broad, complex problems that the private sector cannot," Mr. Light said. Message Sent To:____________________________ _ jeff _ taylor@judiciary.senate.gov Heather Wingate/WHO/EDP dan.bryant@usdoj.gov candi_ wolff@vp.senate.gov makan_delrahim@judiciary.senate.gov EXT-18-2091-C-001044 007104-001795 Document ID: 0.7.19343 .6668 Dinh, Viet From : Dinh, Viet Sent : Wednesday, November 07, 200 1 9:51 AM To: 'Heather_Wingate@who.eop.gov'; Cc: Bryant, Dan; Newstead, Jennifer; barbara ledeen'; 'jeff_taylor@judiciary.senate.gov'; 'candi _ wolff@vp.senate.gov '; 'makan _delrahim@judiciary.senate.gov'; ' Bradford_A._Berenson@who.eop.gov '; 'Brett_ M._ Kavanaugh@who .eop.gov '; 'rena_johnson@ju diciary.senate.gov ' Subject : RE: Estra da 'Chris Myers' Jennifer has both and will email to all. --Original Message--From: Heathe r_ Wingate@who.eop.gov {mailto:Heather _ Wingate@who.eop.gov) Sent~ Wednesday, November 07, 2001 9:48 AM To: Chris Myers Cc: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; barbara ledeen; jeff_taylor@judiciary.senate.gov; candi_wolff@vp.senate.gov; makan _ delrahim@judiciary .senate .gov; Bradford_ A._ Berenson@who.eop .gov; Brett_M._Kavanaugh@who.eop.gov; rena_johnson@judiciary.senate.gov Subject: Re: Estrada Viet/Jennifer, could you email estrada talkers to Chris? Also, Viet, you mentioned that we now have a draft letter on estrada for us to provide to our friends on the Hill for Members signatures? I still haven 't seen it. I know Makan , the Conference, Nickles and other stand ready to help us get signatures. Can we please make sure that draft is provided to our frien ds today? We really need to have that letter available for signature at Policy lunch next week. I'm thinking Nickles might want to spear head that effort, but Makan let me know what you think. HW (Embedded image moved Chris_ Myers@src.senate.gov {Chris Myers) to file: 11/07/200 1 09:14:30 AM pic09449.pcx) Record Type: Record EXT-18-2091-C-001045 007104-001796 Document ID: 0.7.19343.6684 To: Heather Wingate/WHO/EOP@EOP cc: See the distribution list at the bottom of this message Subject: Estrada Can someone at DoJ &/or Jud Com please send us talking pts on Estrada? As long as its okay w/ everyone else, the SRC will coordinate -- shooting for the middle of next week. Also, I'll ensure that Nickles & Domenici's offices are consulted & invited, beginning that process this morning. {I've already talked w/ Nickles' office.) __ _ ______ Reply Sepa rator _ ________ CAPTURETERRORISTSAuthor: Heather_ Wingate@who.eop.gov Subject: Re: Re[2): NEEDJUDGESTO Date: 11/6/01 8:22 PM Sounds great. I know Hatch, Nickles and Domenici all have a particula r interest in Estrada, so it would be good to have their staffs fully looped in and assisting in such an event. Pushing it to next week obviously makes that more realistic. Rena/Makan, is that good on you r end? {Embedded image moved to file: 11/06/2001 07:48:49 PM pic25772.pcx) Record Type: Record To: Heather Wingate/WHO/EOP, Chris_Myers@src.senate.gov cc: See the distribution list at the bottom of this message Subject: Re: Re{2]: NHD JUDGESTO CAPTURETERRORISTS EXT-18-2091-C-001046 007104-001797 Document ID: 0.7.19343 .6684 KRO Message Copied To:__________________________ _ jeff _ taylor@judiciary.senate.gov dan.bryant@usdoj.gov candi _ wolff@vp.senate.gov makan_delrahim@judiciary.senate.gov Bradfo rd A. Berenson/WHO/EOP Brett M. Kavanaugh/WHO/ EOP jennifer.newstead@usdoj.gov viet.dinh@usdoj.gov rena_johnson@judiciary.senate.gov h,ioUl?MoUl?MoUl?MoUl?MoUl?MoUl?M oUl?MoUl?AAoUl?Md E Ol?M?lxl?A?MAM ??E?A? MM?MOE?A?MMAMOE?A?AA A?AMOE?A?MAMOE?A?AA A?AO ??A?A?AMO? ?A?AA EXT-18-2091-C-001047 007104-001798 Documen t ID: 0.7.19343 .6684 ((AU(( AA?A AA?AAAO ?AA AU? A AAAAA ?? ? A?? EAA?AO?? A AO? EA A?AAA AO?A AIA ?? AA A O?AA AIA ?? A??AAEA AO? AE A ?A AIAAA?AO?A AEA ?A OA?A? AAO? A A?A ?A OAAA?AE? A A A? ?A ?? ?AAA?? ?A AA AA? EXT-18-2091-C-001048 007104-001799 Document ID: 0.7.19343 .6684 AA O???AAA AA EMA ?AA AA u AA ?AA A AA?AA? AA A Y?AA A A?A??AAA P?AA AA ?AE ?AAAA ? A??A A ?A? ?AA A A ?AA ? AA?A? ?AAA A? ?AAE ?IA ?AAA ?? OE IA ?A? ??A?A EU O? A A? EXT-18-2091-C-001049 007104-001800 Document ID: 0.7.19343 .6684 t. ?A?? ?E E? l?AA I:? UE A AOE?A?U ?E?A? AxE? AdEOl?AoUl?AAoUl?AA ?????????AAAA ?AIEd??d???????????????? ???????????AAAA?AIEd??d???????????????????????????AAAA?AIEd??d?????????????????? ?????????AAAA?A IEd??d???????????????????????????AAAA?A[E d??d???????????????????? ???????AAAA? AIEd??d??????????????????????????? AAAA? A[E d??d???????????????????????????AAAA?AIEd??d???????????????????????????AAAA?AIEd? AAAA? AIEd??d ?d??????????????????????????? AAAA? AIEd??d??????????????????????????? ???????????????????????????AAAA?AIEd??d???????????????????????????d????????????? ????? Rece ived: from mails imsl.senate.gov ({156.33.203 .10)) by mailex ch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 004DFB71; Tue, 6 Nov 2001 20:24 :56 -0500 Rece ived: from eopl .eop.gov (eop 15 1.eop.gov) by mailsims l .senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23.18.03.plO) with SMTP id ; Tue, 6 Nov 2001 20:25:51 -0S00 {EST)Received: from convers ion.EOP2.EOP.GOV by EOP.GOV(PMDF V5.2-33 #37157) id <01KAEABGFYQ8911PV9@EOP.GOV>; Tue, 06 Nov 2001 20:23:02 -0500 (EST) Rece ived: from mhub2.eop.gov (1198.137.241.11]) by EOP.GOV {PMDF VS.2-33 #371S7) with ESMTPid <01KAEAATYZTE8ZKS8X@EOP.GOV> ; Tue, 06 Nov 2001 20:22:29 -0S00 (EST) Received: from sgeop01 .eop.gov ((165.119.1.33]) by mhub.eop.gov (PMDF VS.2-33 #37157) with SMTP id <0 1KAEAAKCW708YDB4S@mhub.eop.gov>; Tue, 06 Nov 2001 20:22:16 -0500 (EST}Received: by sgeop01.eop.gov(lotu5 SMTP MTAv4 .6.7 (934.112-30-1999)) id 85256AFD.000786A6 ; Tue, 06 Nov 2001 20:22:12 -0S00 Date: Tue, 06 Nov 2001 20:22:07 -0500 Fro~ ate@ who.eop.gov Subject: Re: Re(2]: NEEDJUD --.= c: chris_ myers@src.senate.gov, jeff _taylor@jud iciary.senate.gov , dan.bryant@usdoj.gov , candi_ wolff@vp.senate.gov , makan_delrahim@ judiciary .senate.go v, Bradford_A._ Berenson@who .eop.gov , Brett_ M._ Kavanaugh@who .eop.go v, jennifer.ne wstead@usdoj.gov , viet.dinh@usdoj.gov , rena_johnson@judiciary.senate.gov Messageid: <85256AFD.00078S8A.OO@sgeop01.eop.gov> MIME-version: 1.0 Content-type: MULTIPART/ MIXED; BOUNDARY= "Boundary_(I EXT-18-2091-C-001050 007104-001801 Document ID: 0.7.19343 .6684 Message Copied To:__________________________ _ Barbara Ledeen) jeff _ taylor@judiciary.senate.gov dan.bryant@usdoj.gov candi_ wolff@vp.senate.gov makan _ delrahim@judic iary.senate.gov Bradford A. Berenson/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP jennifer.newstead@usdoj.gov viet.dinh@usdoj.gov rena_johnson@judiciary.senate.gov EXT-18-2091-C-001051 007104-001802 Document ID: 0.7.19343 .6684 O'Brie n, Pat From : O' Brien, Pat Sent : Thursday, November 08, 200112:22 PM To: ' Rena Johnson '; 'Barbara Ledeen '; '; 'Heather _ Wingate@who.eop.gov ' Cc: Bryant, Dan; Newstead, Jennifer; Dinh, Viet; 'Jeff Taylor'; 'Makan Delrahim '; 'Chris Myers '; 'can di_ wolff@vp.senate.gov '; ' Bradford_A._ Berenson@who.eop .gov'; 'Br ett_M._Kavanaugh@who.eop.gov '; 'Tim_Goeglein@who.eop.gov '; 'Stewart_ Verde ry@aml.senate.gov' Su bject : RE: Re[3}: Estrada strategy 2 or 11 is fine with me - please send a definitive time and place around when you are able. Thanks! -Original Message-From: Rena Johnson [mailto:Rena _Johnson@judiciary.senate.gov} Sent: Thursday , November 08, 200111:50 AM To: Barbara Ledeen Heather_ Wingate@who.eop.gov Cc: Bryant, Dan; Newstead, Jennifer; O'Brien, Pat; Dinh, Viet; Jeff Taylor; Makan Delrahim; Chris Myers; ca ndi_wolff@vp.s enate.gov; Bradford _A._ Berenson@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov; Tim_ Goeglein@who.eop.gov; Stewart_ Verdery@aml.senate.gov Subject: Re[3}: Estrada strategy I understan d that the WH Counsel 's Office needs to meet in the morning , so better to keep it at 11 a.m. if that works for everyone else. I'm trying to reschedule my prior commitment. If your conference room is not available for 11 a.m., Barbara, we can do it in the 152 Dirksen conference room at that time. Reply Separator Author: Subject: Re(2]: Estrada strategy Barbara Ledeen) Date : 11/8/200 110:52 AM I have booke d the conferen ce room in Santorums's personal office Russell 120 for Friday at 2. Can we meet there an d then? Barbara Ledeen Director of Coalit ions Senate Republican Conferen ce _________ Reply Separator _________ Date: 11/7 /0 1 10:22 PM Subject: Re: Estrada strategy Author: Ok, Thursday press conference, Friday meeting. EXT-18-2091-C-001052 007104-001803 Document ID: 0.7.19343.6798 Chris Myers - can we book the Senate swamp next Thursday r Maybe 11 AM r And where would be a goo d location for the Friday meeting? KRD Subject: RE: VRAMeeting Date: 4/9/2002 12:08 PM Attached is a new draft of the amendment for today's meeting. Thanks and talk to you all at 4:00pm. -Original Message-From: Bene-di, Lizette D Sent: Monday, April 08, 2002 7:42 PM Document ID: 0.7.19343.7413 --------------- EXT-18-2091-C-001074 007104-001825 To: Sutton, Jason; 'Stwist@viad.com'; ' 'Matthew_Lamberti@judiciary.senate.gov '; Clement, Paul D; Ho, James; Martens, Matthew; Coughlin, Robert; 'Brett _ M._ Kavanaugh@who.eop.gov' Cc: 'dshay@viad.com ' Subject: RE:VRAMeeting As it turns out, 3:00pm does not entirely work for everyone and because Viet wants to ensure that everyone is able to discuss the remaining issues, he has changed his schedule and moved a 4:00pm meeting. So, can everyone make it for a conference call at 4:00pm on Tuesday, April 9? Lizette -Original Message-From: Sutton, Jason Sent: Monday, April 08, 2002 6:31 PM ; 'Matthew_ Lamberti@judiciary.senate.gov '; Clement, Paul D; Ho, James; Martens, Matthew; Coughlin, Robert; 'Brett _ M._ Kavanaugh@who.eop.gov ' Cc: 'dshay@viad.com ' Subject: RE:VRAMeeting Importance: High the call-in number for tomorrow's (Tuesday} 3:00 conference call is: 202.353.0879 passcode is 4691 thanks. --Original Message--From: Benedi, Lizette D Sent: Friday, April OS, 2002 6:25 PM To: 'Stwist@v iad.com'; ' 'Matthew_Lamberti@judiciary.senate.gov'; Clement, Paul D; Ho, James; Martens, Matthew; Coughlin, Robert; 'Brett _ M._ Kavanaugh@who.eop.gov ' Cc: Sutton, Jason; 'dshay@viad.com ' Subject: VRAMeeting Still no time that works for everyone. Can you ple ase let me know as soon as possible of your availability on Tuesday from 3:00-4:00pm? If that doesn't work, I will get more available times to you on Monday. Once again, thanks for your cooperation and patience. Lizette {202) 514 -3824 Received: from mailsims2.senate.gov {[156.33.203. 11)) by IMAEXC2.senate.gov with SMTP (IMA Internet Exchange 3.13} id 00287SF2; Tue, 9 Apr 2002 12:11:50 -0400 Received: from wdcsun022.usdoj.gov (wdcsun4.usdoj.gov} by mailsims2.senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23.18.03.p10} with SMTP id <0GUBOOML26UA6@mailsims2.senate.gov>; T , IQ Q Anr 'J()Jl') 1 'Jo1 c;.c;7 _OJ.Lnn li:-nT\ ~Ql"Civc_rl o f r nm \,<,th r ,c:rln i am, llnr--..lhnct r 1 ?7 () n 11\ hv EXT-18-2091-C-001075 007104-001826 Document ID: 0.7.19343 .7413 wdcsun022.usdoj.gov (Nets cape Messag ing Server 4.15) with ESMTPid GUB6BGOO.ZGL;Tue, 09 Apr 2002 12:11:40-0400 Received: (from x400@1ocalhost) by wt6.usdoj.gov (8.9.3 (PHNE_18546)/8.9.3) id MAA28841; Tue, 09 Apr 2002 12:11:39 -0400 (EDT) Received: by TELEMAIL;Tue, 09 Apr 2002 12:08:19 0400 Date: Tue, 09 Apr 2002 12:08:20 -0400 From: "Bened i, Lizette D" Subject: RE: VRA Meeting To: "Dinh, Viet" (Receipt Notification Requested) (1PM Return Requested), "Sutton, Jason" (Receipt Notification Requested) (1PM Return Requested}, "Clement, Paul D" (Receipt Notification Requested) (1PMReturn Requested), "Ho, James" (Receipt Notification Requested) (1PMRetum Requested), "Coughlin , Robert" (Receipt Notification Requested ) (1PMReturn Requested), "'Stwist@via d.com "' 1PMReturn Recei t Notification Re uested Requested), ' (Receipt Notification Requested) (1PMReturn Requeste , att ew_ am ert1 (Receipt Notification Requested} (1PMReturn Requested), "Mart ens , Matthew" (Receipt Notification Requested) (1PMReturn Requested), "'Brett_M._Kavanaugh@who.eop.gov "' <8rett_M._Kavanaugh@who.eop.gov> (Receipt Notification Requested} {1PMReturn Requested) Cc: "'dshay@viad .com"' (Receipt Notification Requested) {1PMReturn Requested) Message-id: <0JMD0081-020409160819Z-254268* /PR MD=USDOJ-JCON/ADMD=/C=US/"@MHS> Autoforwarded: FALSEContent-identifier. RE: VRA Meeting MIME-version: 1.0 X-Mailer: NetJunction (Netlunction 5.1.1-pO)/MIME Content-type: MULTIPART/MIXED; BOUNDARY="Boundary_(IO_rwdOxEirywrUnmdi4E9aOQ)" Importance: Normal Original-encoded-information-types: IAS-Text Priority: Normal Precedence: first-class UA-content-id: RE: VRA Meeting X400-MTS-identifier. [/P=USDOJ-JCON/A= /C=US/;JMD008 1-020409 160819Z-254268] X-Priority: 3 (Normal} EXT-18-2091-C-001076 007104-001827 Document ID: 0.7.19343 .7413 15 * DOJ SUGGESTED REVISION* 9 April 2002 JOINT RESOLUTION Proposing an amendment to the Constitution of the United States to protect the rights of crime victims. Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid for all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress, and which shall take effect on the 180th day after ratification of this article: "ARTICLE "SECTION 1. The rights of victims of violent crime, being capable of protection without denying the constitutional rights of those accused of victimizing them, are hereby established and shall not be denied by any State or the United States and may be restricted only as provided in this article. "SECTION 2. A victim of violent crime shall have the right to reasonable and timely notice of any public proceeding involving the crime and of any release or escape of the accused; the rights not to be excluded from such public proceeding and reasonably to be heard at public release, plea, sentencing, reprieve, and pardon, and commutation proceedings; and the right to adjudicative decisions that duly consider the victim's safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender. These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity. "SECTION 3. Nothing in this article shall be construed to provide grounds for a new trial or to authorize any claim for damages. Only the victim or the victim's lawful representative may assert the rights established by this article, and no person accused of the crime may obtain any form of relief hereunder. "SECTION 4. Congress shall have the power to enforce by appropriate legislation the provisions of this article., except those pertaining to federal pardon and commutation proceedings." Nothing in this article shall be construed to alter or affect, or to grant Congress power to enact legislation pertaining to, the President's authority to grant reprieves or pardons. "SECTION 5. This article shall take effect on the 180th day after its ratification. EXT-18-2091-C-001077 007104-001828 Document ID: 0.7.19343.7413-000001 "SECTION 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress." EXT-18-2091-C-001078 007104-001829 Document ID: 0.7.19343.7413-000001 Dinh, Viet From : Dinh, Viet Sent : Sunday, April 14, 2002 12:16 AM To : '/DDV=Matthew_Lamberti@judiciary.senate.gov/DDT=RFC 822/0 =INETGW/P=GOV+OOJ/A=TELEMAIL/C=US/'; ' David_ Hantman@judiciary.se nate.gov '; '? ' stw ist@viad.com' Cc: Ho, James; Benedi , Lizette D; 'b rett _ m._ kavanaugh@who.eop.gov'; Subject : 'garry _malphrus@opd.eop.gov' Re: can we talk Sat morning? All clear with VRA.Thank you so much. - Sent from my BlackBerry. --Origin al Message-From: Dinh, Viet To: '/DDV=Matthew _ Lamberti@judiciary.senate.gov/DDT =RFC-822/0 =INETGW/P-=GOV+DOJ/A =TE lEMAJL/C=US/' ;'Oavid_Hantman@judici ary.senate.gov ' ;' gov>; 'stwist@viad.com' CC: Ho, James ; Benedi, Lizette D ; 'brett_m._kavanaugh@who.eop.gov' ; 'ga rry_malphrus@opd.eop .gov' Sent: Sat Apr 13 10:23:17 2002 Subject: Re: can we talk Sat morning? Lizette is coordinating for noon. Cam each one of you call 5145000 an d give your number where you will be at noon and the comman d center will call you to link in the con fe rence call. Thanks. - Sent from my BlackBerry. -Ori ginal MessageFrom: Matthew Lamberti To: Dinh, Viet ; David Hantman ; Stephen Higgins? 'stwist(a)viad.com' CC: Ho, James ; Benedi, Lizette D ; 'brett(u)m. {u)kavanaugh( a}who.eop.gov' ; 'gary( u}malphrus( a)opd.eop.gov ' Sent: Sat Apr 13 00:59:2 1 2002 Subject: Re[2): can we talk Sat morn ing? I left a message at 514 -5000 but they are having trouble reaching you. Let' s do the conference call at noon. At this point, we are fine with the time limitation being in section S. However, we do want to be sure that Tribe is on boar d and so need to talk about the "decisions" issue. _________ Reply Separator _________ Subject: Re: can we talk Sat morning? EXT-18-2091-C-001079 007104-001830 Document ID: 0.7.19343.7430 Author: ??rnnh; Viet"" Date: 4/ 12/2002 7: 14 PM This is very troubling given that presi dential sche dule has been predicated on closure! But I am willing to talk. You can reach me at 5145000 tell me if I need to set up the conf cal. Call in will be at same number - Sent from my BlackBerry. Received: from mailsims2.senate.gov ([156.33 .203.11)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 00 1DCOF6;Fri, 12 Apr 2002 19:14:44 -0400 Received: from wdcsun022.usdoj .gov (wdcsun4 .usdo j.gov) by mailsims2.senate.gov (Sun Internet Mail Server sims .3.5.2000.03.23.18.03.p l O) with SMTP id <0GUHOOK7UA30P9@mailsims2.senate.gov>; Fri, 12 Apr 2002 19:19:00 -0400 (EDT) Received: from wt6.usdoj.gov (localhost [127.0.0. 1)) by wdcsun022.usdoj.gov (Netscape Messaging Server 4.15) with ESMTPid GUH9WH03.80C; Fri, 12 Apr 2002 19:14:4 1 -0400 Received: (from x400@1ocalhost ) by wt6.us doj.gov (8.9.3 (PHNE_18546)/8 .9.3) id TAA13213; Fri, 12 Apr 2002 19:14:41 -0400 (EDT}Received: by TELEMAIL;Fri, 12 Apr 2002 19:14:18 0400 Date: Fri, 12 Apr 2002 19:14 :19 -0400 From: "Dinh, Viet" Subject: Re: can we talk Sat morning? To: Matthew _ Lamberti@judiciary.senate.gov, '" " < , "'stwist@via d.com"' , "'David_ Hantman@judiciary.senate.gov"' Cc: "Ho, James" , "Bene di, Lizette D" , "'brett_m. _ kavanaugh@who.eop.gov'" , "'gary _ malphrus@opd.eop. gov"' Message-id: <"JMD00810204 12231418Z -286290*/PRMD=USDOJ-JCON/ADMD= /C=US/"@MHS> Autoforwarded: FALSEContent identifier: Re: can we talk MIME-version: 1.0 X-Mailer: NetJunction (Netlunction 5.1.1-pO)/MIME Content-type: TEXT/PLAIN;CHARSET=US-ASCII Importance: Normal Original-encoded-information-types : IAS-Text Priority: Normal Precedence: first-class UA-<:ontent-id: Re: can we talk X400-MT5-identifier: {/P=USDOJ-JCON/A=/C=US/;JMD00 81-0 20412231418Z -286290 ) X-Priority: 3 (Normal) EXT-18-2091-C-001080 007104-001831 Document ID: 0.7.19343 .7430 Goodl ing, Mon ica From : Goodling, Monica Sent : Monday, April 29, 2002 8:27 PM To : 'Makan Delrahim '; Comsto ck, Barbara; Newstead , Jennifer; Dinh, Viet; 'heather _ wingate@who.eop.gov '; 'Brett_ M._ Kavanaugh@ who.eop.gov '; 'Bra dford_A._Berenson@who.eop.gov '; 'Kyle_Sampson@who.eop.gov ' Cc: Sales , Nathan ; Willett , Don Subje ct: RE:Judges Message of the Week Makan - thanks. I love the "first 11 " stats ... these are great. --Or iginal Message--From: Makan Delrah im [ma ilto:Makan _ Delrah im@judiciary.senate.gov] Sent: Monday , April 29, 2002 5:36 PM To: Comstock, Barbara ; Newstead , Jennifer; Goodling , Monica ; Dinh, Viet; heather _ wingate@who.eop.gov ; Brett_ M._ Kavanaugh@who.eop.gov; Bradford_A._Berenson@who.eop.gov; Kyle_Sampson@who.eop.gov Subject: Judges Message of the Week This will be Hatch' s message of the week and you guys might consider gett ing this theme through DOJ / WH press and see if it is someth ing that could be used against sen . Dems . Democrats say t hey are conf irming judicia l nominees at a re-cord-breaking pace, faster than ever before. I see things different ly. At a t ime of nat ional emergency, with a judicial vacancy cris is, my Democrat friends are simp ly not treating President Bush fairly . What they are doing isnt right. Lets compare the treatment of President Bushs first 11 circuit court nominees to the first 11 of previous presidents. Pres ident Reagan , the first President Bush and President Clinton all enjoyed a 100% confirmation rate on t heir first 11 Circuit Court nominees , and all were conf irmed well within a year. President Reagans first 11 were confirmed in an average of 39 days, the first Pres ident Bushs first 11 averaged 88 days , and President Clintons first 11 only 115 days . The longest any of thes e individuals were he ld up in Committee was 202 days. President Bush nom inated his first 11 on May 9th, 2001, almost a year ago. In stark contrast to previous presidents , 8 of Pres ident Bushs 11 are still pend ing in Committee , and we are coming up on the year anniversary of the ir nom inations; nearly 365 days and only 3 of 11 of the Presidents first nominees are conf irmed. Worse yet , only 3 of 11 have gotten a hearing ! Democrats have not even given them a hearing ! Democrats have set a re cord breaking pace a lright, they are confirm ing with the velocity of molasses. EXT-18-2091-C-001081 007104-001832 Document ID: 0.7.19343.7510 Sales, Nathan From : Sales, Nathan Sent : Tuesday , July 16, 2002 4:28 PM To: 'Anne_Womack@who.eop.gov '; Willett, Don Cc: Charnes, Adam; Remington, Kristi L; Corallo, Mark; Goodling, Monica; O'Brien, Pat ; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; 'barbara ledeen (email) '; 'Nicolle_Devenish@who.eop.gov '; 'Brett_M._Kavanaugh@who.eop.gov ' Subje ct: RE: op-eds I think Steve and Monica have the draft . -- Original Message-- From: Anne_ Womack@who.eop.gov [mailto:Anne_ Womack@who.eop.gov] Sent: Tuesday , July 16, 2002 4:25 PM To: Willett , Don Cc: Charnes, Adam; Remington, Kristi L; Corallo, Mark; Goodling, Monica; Sales , Nathan; O' Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; barbara ledeen (e-mail); Nicolle_Devenish@who.eop.gov; Brett_ M._ Kavanaugh@who.eop.gov Subject: op-eds EXT-18-2091-C-001082 007104-001833 Document ID: 0.7.19343.5066 Goodl ing, Mon ica From : Goodling, Monica Sent : Tues day, July 16, 2002 4:59 PM To: 'Anne_Womack@who.eop.gov '; Willett, Don Cc: Charnes, Adam; Remington, Kristi L; Corallo, Mark; Sales, Nathan; O'Brien , Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; ' ba rbara ledeen (email) '; ' Nicolle_D evenish@who.e.op.gov '; ' Brett_M._Kav a na ugh@who.eop.gov ' ; 'J enni fer Oschal ' Subject : RE: op-eds Atta chments : - 5-3.doc; owenoped.wp d Tks ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo EXT-18-2091-C-001083 007104-001834 Document ID: 0.7.19343.8063 -Original Message--From: Anne_ Womack@who.eop.gov {ma ilto:Anne _ Womack@who.eop.gov] Sent : Tuesday, July 16, 2002 4:25 PM To: Willett , Don Cc: Charnes, Adam; Remington, Krist i L; Corallo, Mark; Goodling, Monica; Sales, Nathan; O' Brien, Pat; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; barbara ledeen {e-mail); Nicolle_ Devenish@who.eop.gov; Brett_M._Kavanaugh@ who. eop.gov Subject: op-eds EXT-18-2091-C-001084 007104-001835 Document ID: 0.7.19343.8063 Viet/Don, you have mentioned that DOJ has some op-eds in the can on Owen to be placed. Media Affairs has offered to help out and get some of them placed. can you send them over? want to build some momentum. Thanks! EXT-18-2091-C-001085 007104-001836 Document ID: 0.7.19343 .8063 Dinh, Viet From : Dinh, Viet Sent : Wednesday , July 17, 2002 4:17 PM To: 'Tim_Goeglein@who.eop.gov'; Cc: ' Brett_M._Kavanaugh@who.eop.gov ' Subjec t : RE: RE: NRA 'Barbara Ledeen' -Original Message-From: Tim_ Goeglein@who.eop.gov ( ma ilto:Tim_ Goeglein@who.eop.gov) Sent: Wednesday, July 17, 2002 3:58 PM To: Barbara Ledeen Cc: Dinh, Viet; Brett_M._Kavanaugh@who .eop.gov Subject: Re:RE: NRA Warmly tsg (Embedded image moved to file: 07/17/2002 02:48:52 PM pic00364.pcx) (Barbara Ledeen) Record Type : Record To: "Dinh; Viet " , Tim Goeglein/WHO/EOP@ EOP, Brett M. Kavanaugh/WHO/EOP@?OP cc: Subject: Re:RE: NRA EXT-18-2091-C-001086 007104-001837 Document ID: 0.7.19343.8079 Barbara Ledeen Director of Coalitions Senate Republican Conference 202 -224 -2763 _________ Reply Separator _________ Date: 7/17/2002 11:52 AM Subject: RE: NRAAuthor: "Dinh; Viet" I agree. Tim, Brett is lead on the Raggi issue. thanks --Original Message-From: Barbara Ledeen (mailto: Sent: Wednesday, July 17, 2002 11 :38 AM To: Dinh, Viet; Tim_Goeglein@who.eop.gov Subject: NRA I spoke with Chuck Cunningham this morning and asked why the NTA hasn 't engaged. He told me that if the re is material about a judicial nomination having rule d on a gun issue they would be involve d but they will not engaged on the overall theme-only on a judge by judge basi< Barbara Ledeen Director of Coalitions Senate Republican Conferen ce 202-224-2763 Received: from mailsimsl.senate.gov ([156.33.203. 10)) by mailexch.senate.gov with SMTP (IMAInternet Exchange 3.13) id 00444DFD; Wed, 17 Jul 2002 11:56:17 -0400 Received: from wdcsun022.usdoj.gov (wdcs un4.usdoj.gov) by mailsims1.senate.gov (Sun Internet Mail Server sims.3.S.2000.03.23.18.03.plO) with SMTP id <0GZE001FWHKJE9@mailsimsl .senate.gov> for Wed, 17 Jul 2002 11:55:35 -0400 (EDT) Received: from wt6 .usdoj.gov (localhost [127.0.0.1) ) by wdcsun022.usdoj.gov (Netscape Messaging Server 4.15) with ESMTPid GZEHK002.J4F;Wed, 17 Jul 2002 11:55:12 -0400 Received: (from x400@1ocalhost) by wt6.usdoj.gov (8.9.3 (PHNE_ 24419)/8.9.3) id LAA00205;Wed, 17 Jul 20021 1:55:11 -0400 {EDT) Received: by TELEMAIL;Wed, 17 Jul 2002 11:52:00 -0400 Date: Wed, 17 Jul 2002 11:52:00 -0400 From: "Dinh, Viet" Subject: RE: NRATo: ' Barbara Ledeen ' < (Receipt Notification Requested) {1PMReturn Requested), "'Tim_ Goeglein@who.eop.gov"' (Receipt Notification Requested), '"Kavanaugh, Brett"' (Receipt Notification Requested) (1PMReturn Requested) Message-id: <"JMD0081-020717155200Z -428922*/PRMD=USDOJ-J CON/ADMD= /C =US/"@MHS> Autoforwarded: FALSEContent-identifier : RE: NRAMIME-version: 1.0 XMailer: NetJunction (NetJunction S.1.1-p2)/MIME Content-type: TEXT/PLAIN;CHARSET=US-ASCII Importance: Normal Original-encoded-information-types: IAS-Text Priority: Normal Precedence: firstclass UA-content-id: RE: NRAX400-MTS-identifier: r/P=USDOJ-JCON/A=/C=US/;JMD0081-020 7171SS EXT-18-2091-C-001087 007104-001838 Document ID: 0.7.19343 .8079 200Z-428922) X-Priority: 3 (Norma l) EXT-18-2091-C-001088 007104-001839 Document ID: 0.7.19343 .8079 Dinh , Viet From : Dinh, Viet Sent : Thursday, July 25, 2002 7:17 PM To: Benczkowski, Brian A; Joy, Sheila; Chames, Adam; Willett, Don; Keefer, Wendy J; Benedi, Lizette D; Loughlin, Ann L (OLP); Sales, Nathan; Hall, William; Remington, Kristi L; 'allison_L._Riepenhoff@who.eop.gov'; 'brett_m._kavanaugh@who.eop.gov ' ; 'ti mothy _ E._ Flanigan@who.eop.gov' Subject : Re: Judicial Nominations Hearing Ah the plot thickens ... Message---Original From: Benczkowski, Brian A To: Joy, Sheila ; Dinh, Viet ; Charnes, Adam ; Willett, Don ; Keefer, Wendy J ; Bene-di, Lizette D ; Loughlin, Ann L {OLP) ; Sales, Nathan ; Hall, William ; Remington, Kristi L Sent: Thu Jul 25 18:45: 16 2002 Subject : RE: Judicial Nominations Hearing -Original Message-From: Joy, Sheila Sent: Thursday, July 25, 2002 6:35 PM To: Dinh, Viet; Charnes, Adam; Willett, Don; Keefer, Wendy J; Benedi, Lizette D; Loughlin, Ann L (OLP); Sales, Nathan; Benczkowski, Brian A; Hall, William; Remington, Kristi L Subject: FW: Judicial Nominations Hearing --Original Message--From: Rachel Arfa [mailto:Rachel_Arfa@judiciary.senate.gov] Sent: Thursday, July 25, 2002 6:14 PM To: Scottfinan, Nancy; Joy, Sheila Subject: Judicial Nominations Hearing Hi Sheila and Nancy: Here are the nomines for our next round .. which will take place on Thursday, August l at 2pm in n:~i.~-- ,,c EXT-18-2091-C-001089 007104-001840 Document ID: 0.7.19343.814 1 Ult"-!>~1 1 ??0. James Gardner Ron Clark Lawrence Block Reena Raggi See you next week, and have a terrific evening , Rachel EXT-18-2091-C-001090 007104-001841 Document ID: 0.7.19343 .814 1 Willett, Don From: Sent: To: Subject: Willett, Don Thursday, August 29, 2002 1:00 PM Dinh, Viet; Charnes, Adam; Joy, Sheila; Remington, Kristi L; Keefer, Wendy J; Sales, Nathan; Benedi, Lizette D; Benczkowski, Brian A; Koebele, Steve; Hall, Billy; Loughlin, Ann L (OLP); Brad Berenson (E-mail); Brett Kavanaugh (E-mail); Heather Wingate (E-mail); O'Brien, Pat; Goodling, Monica; Anne Womack (E-mail); Tim Goeglein (E-mail); Kay Daly (E-mail); Barbara Ledeen (E-mail); Leonard Leo (E-mail); Jennifer Oschal (E-mail) FYI -- Senate Judiciary Committee business mtg. tentatively scheduled for next Thurs., Sept. 5 This mark-up has been given a so-called "protective notice" and can be cancelled as late as next Wed., Sept. 4 (and many Senators won't even return until that day). No specific names have been mentioned for the mark-up. been tentatively penciled in. The only info. we have is that a mark-up has DRW EXT-18-2091-C-001091 007104-001842 Document ID: 0.7.19343.8217 Brett_M ._Kavanaugh@ w ho.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Thursday, August 29, 2002 2:40 PM To: Willett , Don Cc: Charnes, Adam; Loughlin, Ann L (OLP};Hall, Billy; Benc2kowski, Brian A; Remington, Kristi L; Benedi, Lizette D; Goodling, Monica; Sales, Nathan; O' Brien, Pat; Joy, Sheila; Koebele, Steve; Dinh, Viet; Keefer, Wendy J; Bradford _A._ Berenson@who .eop.gov; Heathe r_ Wingate@who.eop.gov; Anne_Womack@who.eop.gov; Tim_Goeglein@who.eop.gov; kay daly (e-mail); barbara ledeen {e-mail); leonard leo (e-mail); jennifer oschal {e-mail) Subjec t : President ' s comments today in Oklahoma at Sen. lnhofe event And finally, we need to get him back up there so he'll support some judges that I nominated. (Applause.) I found fine people to serve on our bench; good , honorable, honest people. We named one, Priscilla Owen , recently. She's smart, she 's capable, one of the top students when she was in law school at Baylor. She got elected twice - I think twice, but I know she got electe d at least twice statewide in Texas , with overwhelming numbers. She 's a very, very smart and capable woman. But somehow , some of them up the re don 't like her. I guess maybe they don't like the fact that I nominate d her . But this isn't right for the judicial system, for them to be playing politics with a fine, smart, capable- woman. And we need people like Jim lnhofe up there to defend my judicial nominees in Washington , D.C. {Applause .) EXT-18-2091-C-001092 007104-001843 Document ID: 0.7.19343.8219 Estrada , Migue l A. From : Estra da, Migue l A. Sent : Thursday , September 19, 2002 12 :03 PM To: Sales , Nathan ; Bryant, Dan; Benczkowski, Brian A; Dinh, Viet; Brown, Jamie E (OLA); Koebele, Steve; Chames, Adam; 'Brett(u)M. (u)Kavanaugh(a} who.eop.gov '; 'rena( u )johnson( a )judiciary .senate.gov ' Subjec t : RE: Change in moot time tomorrow I am downstairs. Not cleared . No one is answe ring his phone at OLP. Or so I am told. --Or iginal Message--From: Charnes , Adam To: Koebele, Steve ; Brown, Jamie E (OLA) ; Dinh, Viet ; Benczkowski, Brian A ; Bryant , Dan ; Sales, Nathan ; Estrada , Miguel A. ; 'Brett( u) M.(u )Kavanaugh (a )who.eop .gov' ; 'rena( u )johnson( a )judiciary.senate .gov' Sent: Thu Sep 19 10:34 :03 2002 Subject: RE: Change in moot time tomorrow Yes. -Or iginal Message - From: Estrada, Migue l A. [mailto :MEstrada@gibsondunn.com] Se nt : Thursday , September 19, 2002 10:34 AM To: Koebele , Steve; Brown, Jam ie E (OLA); Dinh, Viet; Charnes, Adam; Benczkowski, Brian A; Bryant, Dan; Sa les , Nathan; 'Brett( u}M.[u)Kavanaugh( a }who.e-op.gov'; 'rena( u )johnson (a )judiciary.senate.gov ' Subject: RE: Change in moot time tomorrow Is the venue the same as earlier this week? -Or iginal Message-From: Sales, Nathan [mailto :Nathan.Sales@usdoj .gov) Sent: Wednesday , September 18, 2002 7:12 PM To: Bryant, Dan; Benczkowski, Brian A; Charnes, Adam; Dinh, Viet; Brown, Jamie E (OLA}; Koebele, Steve; 'Brett_M._Kavanaugh@who.eop.gov '; 'rena~ohnson@ju diciary.senate.gov '; Estrada, Miguel A. Subject: Re: Change in moot time tomorrow EXT-18-2091-C-001093 007104-001844 Document ID: 0.7.19343.8415 The only indispensible person is the one democrat who 's going to vote for Miguel. But noon is fine with me. --O riginal Message--From: Bryant, Dan To: Benczkowski, Brian A ; 'Brett _ M._ Kavanaugh@who.eop.gov ' ; Charnes , Adam ; Dinh, Viet ; Sales , Nathan ; 'rena_johnson@judiciary.senate.gov ' ; Brown, Jamie E (OLA} ; ' Estrada , Miguel A.' ; Koebele, Steve Sent : Wed Sep 18 19:10:06 2002 Subject: RE: Change in moot time tomorrow You better not be suggesting that Viet is indispensable ... Noon works for me. -Original Message-From: Benczkowski , Brian A Sent: Wednesday, September 18, 2002 7:04 PM To: 'Brett_M._Kavanaugh@who.eop.gov ' ; Charnes, Adam; Dinh, Viet; Sales, Nathan; 'rena_johnson@judiciary.senate.gov'; Brown, Jamie E (OLA); Bryant, Dan; 'Estrada, Miguel A.' ; Koebele , Steve Subject: Change in moot time tomorro w Importance : High Is it possible to move tomorrow ' s moot back to 12 noon (from 1 pm)? An indispensible party who shall remain nameless has an unavoidable conflict. Please advise of any objections. Thanks. Brian A. Benczkowski Counsel Office of Legal Policy United States Department of Justice 950 Pennsylvania Ave .., NW Room 4533 Washington, DC 20530 Telephone: (202) 616-2004 Fax: (202} 514-1685 ?-mail: Brian.A.Benczkowski@usdoj.gov EXT-18-2091-C-001094 007104-001845 Document ID: 0.7.19343.8415 This message may contain confident ial and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then imme diate ly delete this message. This message may contain confident ial and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete th is message. ------------------------------------- -------------------- EXT-18-2091-C-001095 007104-001846 Documen t ID: 0.7.19343 .8415 Sales , Nathan From : Sales, Nathan Sent : Friday, November 01, 2002 5 :18 PM To : Charnes , Adam; Willett , Don; Keefer , Wen dy J; Bencz.kowski, Brian A; Koebele, Steve; Brett Kavanaugh (E-mail) Cc: Barbara ledeen (E-mail) Subject : Miguel Estrada and Hispanic Outreach Attachments : asap.msg Impo rtan ce : High Team Estrada , I j ust fielded a phone call from Barbara Ledeen. The bottom line is there's a group of Hispanic Republicans meeting in Manhattan at 6 PM tonig ht, and they want someone from t he Just ice Department (Senator Hat ch and his staff, the first choices , had conflicts ) to go up to discuss Miguel Est rada. They've offered to pay all expenses . Nathan EXT-18-2091-C-001096 007104-001847 Document ID: 0.7.19343.5290 Barba ra Ledeen From : Barbara Ledeen Sent : Friday, November 0 1, 2002 5:09 PM To: Sales, Nathan Subje ct : asap S~ <~ -the Republican Club of Northern Manhattan >>Date : 10/29/2002 4:38 PM Author: Martin Berusch > > We continue to work hard on the Estrada agenda , > and hope to be making headway pretty soonwe ' ll let> you know how it' s going as events develop ... > > On anothe r note, Hispanics Across America would > like to invite Sen Orrin Hatch, Sen John McCain and/or> > Sen Kay Bailey Hutchinson to attend the inauguration > of the Northern Manhattan Republican Club, which will > > take place on Friday, November 1 at 6PM at 481 > Fort Washington Avenue in Washington Heights, New York. > > This is an important event for all of us as we > > expect between 400-500 guests-all influential Hispanic > > community members who will be responsible in > > promoting the Republican agenda throughout the area. We hope >>to count on our Senator ' s support. Please reply asap, > > thank you. Martin Berusch >> VP HAA Barbara Ledeen Director of Coalitions Senate Republican Conference 202-224 -2763 EXT-18-2091-C-001097 007104-001848 Document ID: 0.7.19343.5290 -000001 Washington, Tracy T Subject: to discuss Dennis Shedd Start: End: Friday, November 15, 2002 4:45 PM Friday, November 15, 2002 5:15 PM Recurrence: (none) Meeting Status: Meeting organizer Organizer: Required Attendees: Washington, Tracy T Benczkowski, Brian A; Keefer, Wendy J; Schauder, Andrew; Day, Lori Sharpe; Huff, Chris; 'Brett_M._Kavanaugh@who.eop.gov b(6) Jennifer Oschal Email 'Tim_Goeglein@who.eop.gov'; b(6) Kay Daly Email b(6) Barbara Ledeen Senate Email 'Bradford_A._Berenson@who.eop.gov'; Hall, William; Sales, Nathan; Goodling, Monica Importance: High Dial In: Passco (b) (6) EXT-18-2091-C-001098 007104-001849 Document ID: 0.7.19343.8712 Sales , Nathan From : Sales, Nathan Sent : Friday, November 15, 2002 5:57 PM To : Dinh, Viet; Benczkowsk i, Brian A; Keefer , Wendy J; Schauder , Andrew; Day, Lori Sharpe ; Huff, 'Tim_ Goeglein@w Chris; ' Brett_M._Kavanaugh@who.eop.gov '; ? ' Bradford_A._B ho.eop.gov' ; erenson@who.eop.gov '; Hall, William Subject : Re: Updated: to discuss Denn is Shedd Importance : High Another quick thought: reaching out to will we be --Original Message--From: Wash ington , Tracy T To: Benczkowsk i, Brian A < Brian.A.Benczkowski@USDOJ.gov> ; Keefer, Wendy J ; Schauder , Andrew ; Day, Lori Sharpe ; Huff, Chris ; ' Brett_M._Kavanaugh@who .eop.g ov' ; ; 'Tim_Goeg lein@who.eop.gov ' ; Hall, William ; Sales , Nathan Sent: Fri Nov 15 16:04:12 2002 Subject: Updated: to discuss Denn is Shedd When: Friday, November 15, 2002 4:45 PM-5:15 PM (GMT-05:00) Eastern Time {US & Canada). Dial In: Passcoc EXT-18-2091-C-001099 007104-001850 Document ID: 0.7.19343 .533 1 Sales , Nathan From: Sales, Nathan Sent : Wednesday , January 08, 2003 11:06 AM To : Dinh, Viet; Charnes , Adam; Benczkowski, Brian A; Bene di, Lizette D; Hall, William; ' Brett Kavanaugh (E-mail)'; 'Kyle_Sarnpson@who .eop.gov '; Bryant, Dan; O' Brien, Pat ; Brown, Jamie E {OLA);'Alex Dahl (E-mail) ' Cc: 'Jeffrey Sutton (E-mail)'; 'msfried@JonesDay.com' Subject : RE: Sutton prep sess ion We j ust got word that Jeff Sutton 's meeting with Sen . Bnb Dole has be-enmoved up. so we need to reschedule toda y's moot court . Instead of beginning at 12:30. it wil l now start at noon. We'll sti ll be meeting at the same place : DOJ room 4237. Thanks . Nathan --- Origina l Message--From: Sales, Nathan Sent: Tuesday, January 07, 2003 3:43 PM To: Dinh, Viet ; Charnes, Adam; Benczkowski, Brian A; Benedi, Lizette D; Hall, William; Brett Kavanaugh (Emai l); 'Kyle_Sampson@who.eop.gov'; Bryant, Dan; O'Brien, Pat; Brown, Jamie E (OLA);Alex Dahl (E-mai l) Cc: Jeffrey Sutton (E-mail}; 'msfried@JonesDay.com' Subject: Sutton prep session We would like to hold another moot court for Jeff Sutton t omorrow, January 8, at 12:30. The sess ion wil l take place at the Justice Department in room 4237 . Please advise if y ou'll be able to make it. For those of yo u who don't work at DOJ, y ou can use the visitor entrance on Const itution Ave. We'll make sure that you're pre-cleared with secu rity . Best , Nathan EXT-18-2091-C-001100 007104-001851 Document ID: 0.7.19343.5420 Dinh, Viet From : Dinh, Viet Sent : Tuesday , January 28, 2003 6:31 PM To : ' Delrahim, Makan (Judiciary) ' ; Brown, Jamie E (OLA};'Heather Wingate (Email)' ; 'Ziad_S._ Ojak li@who.eop.gov ' ; ' Brett_ M._ Kavanaugh@who.eop.gov' Cc: ' Comisac, RenaJohnson (Judiciary)'; ' Dahl, Alex (Judiciary) '; Benczkowski, Brian A Subject : RE: Tomorrow 's Conference Mtg Bencz, Can you give Makan my stuff? thanks, Viet -Origin al Message-From: Delrahim, Makan (Judiciary) [mailto:Makan _ Delrahim@Ju diciary.senate.gov) Sent: Tuesday, January 28, 2003 5:58 PM To: Brown, Jamie E (OLA};Dinh, Viet; Heather Wingate (E-mail); Ziad_S._Ojakli@ who. eop.gov; Brett_M._Kavanaugh@who.eop.gov Cc: Comisac, RenaJohnson (Judiciary); Dahl, Alex (Judiciary) Subject: Tomorrow's Conference Mtg Heather/Brett: Can you tell me what the Judge intends to cover at this event/ Jamie/Viet: Can you tell me what Viet will cover? Thanks. This will help me better prepare Sen. Hatch. Makan Makan Delrahim Staff Director/ Chief Counsel Committee on the Judiciary United States Senate Washington DC 20510 Fax: 202-228-1115 Phone: 202-22 4-04 18 EXT-18-2091-C-001101 007104-001852 Document ID: 0.7.19343.8924 Sales , Nathan From : Sales, Nathan Sent : Satur day, March 08, 2003 2:47 PM To : Benczkowski, Brian A; Koebele, Steve; ' Makan _ Delrahim@Judiciary.senate.gov'; ' Rena _Johnson _ Comisac@Judici ary.senate.gov '; 'Alex_Oahl@judiciary.senate.gov'; 'brett.kavanau gh@who.eop.go v' Cc: ' Beth_Jafari@cornyn.senate.gov ' Subject : Re: TX Justice Priscilla Owen vs. LAJustice James L Dennis Those with longer memories than I should weigh in, but my recollection is that we drew precisely that comparison last fall. -Original Messa > From: James C. Ho < To: Sales, Nathan ; Benczkowski, Brian A ; Koebele, Steve ; Makan_Delrahim@Judiciary.senate.gov ; Rena _Johnson _ Comisac@Judiciary.senate.gov ; Alex_Oahl@judiciary.senate.gov ; brett .kavanaugh@who.eop.gov CC: Beth_Jafar i@cornyn.senate.gov Sent: Sat Mar 08 14:44:02 2003 Subject: TXJustice Priscilla Owen vs. LAJustice James L Dennis Looking through Leahy' s w ritten Qs and As, _ II ,._ o o 224-2934 (work) (NEW) (mobile) (home) EXT-18-2091-C-001102 007104-001853 Document ID: 0.7.19343.5596 Brett M ._Kavanaugh@ w ho.eop .gov From : Brett_ M._ Kavanaugh@who.eop.gov Sent : Thursday , March 20, 2003 12:58 PM To: Delrahim , Makan (Judiciary) Cc: Benczkowsk i, Brian A; Brown, Jamie E (OLA); Dinh, Viet ; David_ G._ Leitch@who.eop.gov; comisa c, renajohnson (jud iciary); dahl , alex (judicic1ry); Wendy _J._Grubbs@ who.eop.gov ; Ziad_ S._Ojak li@who .eop.gov Subje ct : Re: FW: We have blue slips for Michigan nominees ! Attachme nts : att1.htm ; ATTACHMENT.TXT ; pic20457.htm (Embedded ima ge moved "Delrahim , Makan (Judiciary}" to file: pic20457.pcx) 03/ 20/2003 11:55:18 AM Record Type : Recor d To: "dinh, viet " , "Benczkowski , Brian A" , David G. Leitch/WHO / EOP@EOP, Brett M. Kavanaugh/WHO / EOP@EOP cc: See the distribution list at the bottom of th is message Subject: FW: We have blue slips for Michigan nominees ! --Or iginal Message- From: Comisac , RenaJohnson (Judiciary) Sent : Wednes day, March 19, 2003 5:32 PM EXT-18-2091-C-001103 007104-001854 Document ID: 0.7.19343.9554 To: Delrahim, Makan (Judiciary); Dahl, Alex (Judiciary); Tapia , Margarita (Judiciary) Cc: Caramanica, Jessica (Judiciary); Snell, BethAnn (Judiciary) ; Prior, Swe-n (Judiciary) Subject: We have blue slips for Michigan nom inees! Importance : High Both Levin and Stabenow have returne d negative blue slips for all five pending Michigan nominees the 4 circuits and 1 district. The blue slips are accompanied by a letter to OGH explaining that the WH has rejected their proposals for bipartisan solution to the situat ion, which has "left us in this position." They also attach all of their correspondence to the White House and Leahy on this issue since 200 1 (but none of the WH responses, or Abraham 's letter explaining the problems with White and Lewis). The Dems are very clever. The problem this creates is that if OGH points to the Abraham letter as the reason why White and Lewis didn 't move , he will be accused of hypocrisy since he would not move White and Lewis over Abraham ' s objection, but is willing to move Kuhl over Boxer' s objection. EXT-18-2091-C-001104 007104-001855 Document ID: 0.7.19343 .9554 FY I- Also , we will be sending a letter to WH forwarding Levin/ Stabenow letter to Hatch . The letter will restate Hatch blues lip policy namely that negatives are not conc lusive so long as consu lation took place . Once you have a draft response let's work to gether t o ensu re no problems w ith Ab raham letter . -- --Or iginal Message-- From: Comisac, RenaJohnson (Judiciary} Sent: Wednesday, March 19, 2003 5:32 PM To: Delrahim, Makan (Judiciary); Dahl, Alex (Judiciary); Tapia, Margar it a (Judiciary) Cc: Caramanica., Jessica (Judiciary) ; Snell, BethAnn (Judiciary); Prior, Swen (Judiciary) Subject: We have blue slips for Michigan< /stl:p lace> nominees! Importance: High EXT-18-2091-C-001105 007104-001856 Document ID: 0.7.19343.9554-000001 Message Copied To:_____________________________________________________________ "Brown, Jamie E (OLA)" "Comisac, RenaJohnson (Judiciary)" "Dahl, Alex (Judiciary)" Wendy J. Grubbs/WHO/EOP@EOP Ziad S. Ojakli/WHO/EOP@EOP EXT-18-2091-C-001106 007104-001857 Document ID: 0.7.19343.9554-000002 mm mauwmuxumsuwrs ?mun?n 007104-001858 Document ID: 0.7.19343.9554?000003 Benczkowski , Brian A From : Benczkowsk i, Brian A Sent : Thursday , March 20, 2003 5:57 PM To: ' Comisac, RenaJohnson (Judiciary)'; Brown, Jamie E (OLA); ' Delrah im, Makan (Judiciary)'; 'Dahl, Alex (Judiciary) ' Cc: Dinh, Viet; ' Brett_M ._Kavanaugh@who.eop.gov '; 'Wendy_J._Grubbs@who.eop.gov ' Subje ct: RE: Analysis of Previously Released documents/SG Doc requests --Original Message-From: Comisac, RenaJohnson (Judiciary) [mailto: Rena _John son_ Com isac@Ju diciary.senate.gov] Sent: Thursday, March 20, 2003 3:25 PM To: Brown, Jamie E {OLA}; Delrahim , Makan (Judiciary}; Dah l, Alex (Judiciary) Cc: Dinh, Viet; Benczkowsk i, Brian A; Brett_M._Kavanaugh@who.eop.gov; Wendy _J._ Grubbs@who.eop.gov Subject: RE: Analysis of Previous ly Released documents /S G Doc requests This is great. Thank you. Two questions. -Or iginal Message--From: Brown, Jamie E (OLA) {mai lto:Jamie.E.Bro wn@usdoj.gov) Sent : Thursday , March 20, 2003 1:43 PM EXT-18-2091-C-001108 007104-001859 Documen t ID: 0.7.19343.9565 To: Delrahim, Makan (Judiciary}; Comisac, RenaJohnson (Judiciary}; Dahl, Alex (Judiciary) Cc: Benczkowski , Brian A; Dinh, Viet; 'Brett _M._ Kavanaugh@who.eop.gov '; 'Wendy_J._ Grubbs@who.eop.gov ' Subject: RE:Analysis of Previously Released documents/SG Doc requests Requested analysis attached -Or iginal Message-From: Delrahim , Makan (Judiciary) fmailto:Makan_Delrahim@Judiciary.senate.gov) Sent: Tuesday , March 11, 2003 11:35 PM To: Brown, Jamie E (OLA); Benczkowski , Brian A; Dinh, Viet; Alberto _ R._ Gonzales@who.eop.gov; Leitch, David G.; Brett_M._Kavanaugh@who.eop.gov; Wendy_J._Grubbs@who.eop.gov; Ziad Cc: Comisac , RenaJohnson (Judiciary); Dahl, Alex (Judiciary}; Hatch, Orrin (Hatch) Subject: Analysis of Prev iously Released documents/SG Doc req uests Importance: High Ojakli, Makan Delrahim Staff Director/ Chief Counsel Committee on the Judiciary United States Senate Washington DC 20510 Fax: 202-228-1115 Phone: 202-224-0418 EXT-18-2091-C-001109 007104-001860 Documen t ID: 0.7.19343.9565 Joy, Shei la From : Joy, Sheila Sent : Wednesday, April 16, 2003 4:32 PM To : 'ckuhl@lasuperiorcourt.org '; Dinh, Viet; Charnes, Adam; Benczkowski, Brian A; Remington, Kristi L; 'Brett_ M._ Kavanaugh@who.eop.gov ' Subject : FW: kuhl question Attachments : Kuhl Written questions 2.doc -Original Message-From: Katie_ Stahl@Judiciary.senate .gov [mailto:Katie_Stahl@Judiciary.senate.gov) Sent: Wednesday, April 16, 2003 3:35 PM To: Joy, Sheila; Rena_Johnson_Comisac@Judiciary.senate.gov; Alex_ Dahl@Judiciary.senate .gov; Ryan_ Higginbotham@Judiciary.senate.gov; Amy_ Haywood@Judiciary .senate.gov; Payam_Soliemanzadeh@Judiciary.senate.gov; Cherylyn_ LeBon@Judiciary.senate .gov; Tanya _ Green@Judiciary.senate.gov; Swen Prior Judicia .senate. ov? Subject: FW: kuhl question CONFIDENTIALITY NOTE: The information contained in this e-mail is legally privileged and confidential information intended only for the use of the individuals or entities named as addressees. If you, the reader of this message, are not the intended recipient, you are here-by notified that any dissemination, distribution , publication, or copying of this message is strictly prohibited . If you have received this message in error, please forgive the inconvenience , immediately notify the sen der, and delete the original message without keeping a copy. --Original Message-- From: Berman, Jeff (Judiciary) Sent: Wednesday, April 16, 2003 3:16 PM To: Stahl, Katie (Judiciary) Subject : kuhl question one more follow-up for jud ge kuhl. thanks . jeff EXT-18-2091-C-001110 007104-001861 Document ID: 0.7.19343.9673 I want to follow-up on Senator Grassley's questions the qui tam provisions of the False Claims Act. regarding your advocacy on In 1993, you filed a brief in United States ex rel. Rohan v. Newbert. On page 46 of that brief, you wrote: "The Justice Department recently released for publication a July 18, 1989 Memorandum of the Department's Office of Legal Counsel (OLC), opining that the qui tam provisions of the False Claims Act are unconstitutional.... [We] respectfully refer the Court to that Memorandum... . The OLC Memorandum concludes: 'The Office of Legal Counsel believes the qui tam provisions of the False Claims Act are patently unconstitutional. In our view, this is not even a close question.' (emphasis in brief)." You included a footnote that said, "Such memoranda periodically are published as Opinions of the Office of Legal Counsel. This memorandum is not yet printed in a bound volume." You attached the memorandum to your brief for the court's consideration. The memorandum on which you were asking the court to rely was published in the first year of the first Bush Administration. During the remaining three-and-ahalf years of the Bush Administration, the opinion advanced in that memorandum (namely, that the qui tam provisions of the False Claims Act are unconstitutional) was never adopted by the Department of Justice. In January of 1993, just days before you filed your brief, President Clinton assumed office. His Department of Justice, as would be expected given President Clinton's support for whistleblower protections, also did not adopt the opinion advanced in the 1989 memorandum. Nowhere in your brief did you advise the court that the OLC memorandum on which you were relying had never been adopted as the official position of the United States government. After you filed your brief, the Department of Justice took the unusual step of submitting a letter to the court clarifying the government's position. The letter reads in part: "It has come to our attention that some of the litigants in these cases have relied in their briefs on a memorandum dated July 18, 1989, from then-Assistant Attorney General William P. Barr to then-Attorney General Dick Thornburgh, addressing the constitutionality of these provisions of the False Claims Act. I am writing now to make clear to the Court, in light of that reliance, that the Memorandum from Assistant Attorney General Barr was never adopted by the Attorney General, and does not represent the position of the United States." (emphasis added) EXT-18-2091-C-001111 007104-001862 Document ID: 0.7.19343.9673-000001 a. b. Why did you rely on the OLC memorandum without advising the court that it did not represent the official position of the Department of Justice? Under the rules of professional conduct in California at the time you filed the brief (and now), "[a]n attorney has an unqualified duty to refrain from acts which mislead the court." Especially given that the United States Department of Justice saw your reliance on the OLC memorandum as sufficiently misleading that it sent a highly unusual letter correcting the record, do you believe that in relying on the memorandum in that manner you fulfilled your obligation to be candid with the court? EXT-18-2091-C-001112 007104-001863 Document ID: 0.7.19343.9673-000001 Dinh, Viet From : Dinh, Viet Sent : Wednesday, May 07, 2003 5:10 PM To : 'James_Ho@Judiciary.senate.gov '; Benczkowski , Brian A; '8rett _ M._ Kavanaugh@who.eop.gov ' Cc: Brown, Jamie E (OLA} Subject : RE: Paula Williams I have no idea. Jamie?!? -Original Message-From: James _ Ho@Judiciary.senate.gov {mailto:James_Ho@Judiciary.senate.gov] Sent Wednesday, May 07, 2003 4:36 PM To: Benczkowsk i, Brian A; Dinh, Viet ; Brett_M._Kavanaug h@wh o.eop.gov Subject: Paula Williams Someone from DOJ named Paula Williams has called our office to talk about the Schumer proposal. I know that the White House has already responded to the proposal, so before I respond to her, I wanted to make sure that I should be ta lking to her. I don 't know her. Thanks for any info . James C. Ho Chief Counsel U.S. Senate Subcommittee on the Constitution, Civil Rights & Property Rights U.S. Senator John Cornyn, Chairman James _ Ho@judiciary.senate.gov ry.senate.gov> to file: 05/09/2003 04:20 :35 PM pic14567 .pcx) Record Type: Record To: Brett M. Kavanaugh/WHO / EOP@EOP, viet.dinh@usdoj.gov, makan_delrahim@judiciary.senate .gov cc: mon ica .goodling%@usdo j.gov Subject: Judicature Article Draft: The Selection Process Section Dear Brett, Viet and Makan, The wheels grind slowly but they do grind . Copied below is a draft of one of the substantive sect ions {The Selection Process) for the Judicature article that Sheldon Goldman and I have written with, of course , the help of your interview input. In a separate e-mail, I will forward the section drafted on "The Confirmation Process." As we promised, we are giving you an a dvance look at these two sections and , of course, we are interested in any comments or concerns that you might have. The se two sections represent the major port ions of th e article drawn from our interviews. Other sect ions of the piece, as in the past , will present "the numbers" documenting jud icial select ion during EXT-18-2091-C-001114 007104-001865 Document ID: 0.7.19343 .9992 the first two years of President Bush's term . Much of the data for those sections was der ived from the DOJ web sjte and/or th e Judiciary Committ ee quest ionnair es. Thanks , again, for all of your assistance in our preparation of this piece. I ant icipate that we will be back in the field towards the latter part of President Bush's term to work on a summary piece cove ring the full four years. Again, we welcome your comments (return e-mail would be fine) and hope that you find these sections of interest. I will forward the "Confirmation Process" section draft right behind this material. I should also note that I will be out of town next week from Monday afternoon through Thursday morning. Thus, it would be very helpful if any comments that you send my way during this period are copied as well to Sheldon Goldman at . All best, elliot >Date: Fri, 09 May 2003 09:17:49-0400 (EDT)>From: SHELDONGOLDMAN >Subject : The Selection Process >X-Sender: goldman@yolen.oit.umass.edu >To: elliot slotnick > >Hi Elliot, > >I have finally finished editing the selection process and the confirmation >process. I may have to do a bit more cutting but I am sending the >selection process in this e-mail and the confirmation process in another >e-mail. Would you be able to send both out to the people we interviewed >an d told we would run their quotes by them? I hope to wrap things up this >weekend and send the ms to David on Monday. > >Best, > >Shelly > >The Selection Process > > Any assessment of the processes utilized for selecting ju dges >during the first two years of the Bush presidency must start with the >recognition that staffing the ju diciary was a central component of the >President 's domestic policy agenda. As stated by Assistant Attorney >General Viet Dinh: > "The legal legacy that the presi dent leaves [is as J > impo rtant as anything else we do in terms of legislative > policy .... We want to ensure that the highest quality> judg es, the highest quality intellects, men and women > with the highest integrity, populate the fe deral bench. > And let's be clear about it, we want to ensure that the > President 's mandate to us that the men and women who > are nominated by him to be on the bench have his vision > of the proper role of the ju diciary. That is, a judiciary > that will follow the law, not make the law, a ju diciary > that will interp ret the Constitution, not legislate from> the bench." 3 > Associate White House Counsel Brett Kavanaugh adde d that the >Presiden t, > "is very interested in this and thinks it is one of his most > important responsibilities on the domestic side. Obviously, > he has a lot of things going on, but he has devoted more > attention to the issue of ju dges than any other president." 4 > Such a characterization stands , for some, in sharp contrast >to the place of ju dicial selection in the presidential priorities of >the Clinton White House where, according to Nan Aron, Executive >Director of the Alliance for Justice, the administration could be >accused of "not making judgeships a priority .... "S In the Bush >administ rat ion, however, "it was ucn, rlo-.. r frnm tho n11tc:ot th<>t .i11...laoc: ~ ,uorc anina tn ho c11r-h <>uicihlc n.<:irt nf tho Prcci...lont'c nrnar-:>m EXT-18-2091-C-001115 007104-001866 Document ID: 0.7.19343 .9992 >Judgeships were both symbolically and actually symbols of presidential >power." > For Aron, these differences are reflective of broader differences >in the generic approach to the issue of judicial selection in Democratic >and >Republican administrations. "It 's my view Republicans care about results. >They care about, at the end of the day, will th is person do what I want >them to do on the bench in terms of carrying out my political imperatives. >And to the Democrats, it's still large ly patronage.There 's no vision there >for the Democrats. There 's no sense of guiding principles." > For its part, of course, the Bush administration would >characterize its ju dicia l vision in terms of the way in which nominees >view the scope of judicial power and not through an orientat ion towards >reaching particula r results. Indeed , as Viet Dinh noted, > "We are also e.xtremely clear in following the President 's > mandate that we should not , and do not, and can not> employ any litmus test on any one particu lar issue, because > in doing so we would be guilty of politicizin g the ju diciary > and that is as detrimental as if we were unable to identify > men and women who would follow the law rather than > legislate from the bench." > Structurally, at the most basic level, the processes utilized by >the Bush administration for designating judicial nominees are not >dramatically different than recent presidencies in their re liance upon >senior personnel from the White House , primarily the Office of the White >House Counsel, where both Alberto Gonzalez, White House Counsel, and Brett >Kavanaugh, Associate White House Counsel , are deeply involved in judicial >selection matters, and the Department of Justice, primarily through the >Office of Legal Policy {OLP), a division headed by Assistant Attorney >General Viet Dinh. The OLP replaced the Office of Policy Development >(OPD) from the Clinton and Bush Sr. years, a change that has been seen as >symbolically significant by some. > The Office of Legal Policy was the name given to the new Justice >Department division create d by the Reag an administration. By returning to >the original name of the office, this perhaps signalled that this >Presi dent Bush's judicial selection behavior woul d be more like that of >President Reagan , known for his aggressive pursuit of a conservativ e >agenda through judicial appointments, than that of his two successors. C. >Boyden Gray, who served as the White House Counsel during the first Bush's >ten ure did not see any such mot ivation in the change , noting that "Every >Justice Department is slightly different. I think it's just a question of >personal style. "6 Viet Dinh opined that the change underscored that it >was "important to us to get back to the history of the estab lishment of >the office. The day I was sworn into office, the Attorney General signed >the order renaming the office, the Office of Legal Policy. That's the >name [that] ... reflects the fact that what we do is not simply >development policy, but also evaluating, implementing and gene rating >policy." > At the heart of the Bush administration 's judicial selection >processes is the Judicial Selection Committee, a joint enterprise between >White House personnel and OLP chaired by Alberto Gonzalez. In our >interviews with Viet Dinh and Brett Kavanaugh we attempted to ascertain >the precise membership of this group but, beyond confirming thei r own >participation and that of Gonzalez, we were unable to identify the other >participants. This stance was taken , Dinh explained, "in order to >preserve the deliberative process for the President. But suffice it to >say that the primary participants are from the White House Counsels Office >an d the Department of Justice comprising both this office and the Attorney >General when appropriate. " Kavanaugh explained that not identifying names >was "part of a larger principle that we don't usually discuss who is >involved in the deliberative process and who is making what >recommendations to the President. "> When we noted that our research during the Clinton administration >revealed that representatives from the First Lady's office, the >Vice-Presi dent 's office, legislative affairs , and the President's Chief of >Staff, among others, were present at meetings of the Judicial Selection >Committee during the Clinton years, Dinh adde d that, "the people who would >have an interest in this process are represented" but did not offer >further elaboration. > The Judicial Selection Committee , according to Kavanaugh, "gets >together and discusses just where EXT-18-2091-C-001116 007104-001867 Document ID: 0.7.19343 .9992 we stand on both the nominations side >and the confirmation side." At the outset of the selection process, the >Committee oversees the deve lopment of names to take to the President for >his initial approval, what Dinh labeled, "the presidential check-off." >Characterizing the level of presidential involvement at this relat ively >early stage of ju dicial selection Dinh noted that, "I do know that he has > (exercise d) direct, personal and specific decision making authority on >each and every candidate. So when I say it is a presidential check -off, I >mean it is [literally] a presidential check -off." As in past >administrations, the names of potential District Court nominees are >initially submitted, according to Dinh, "from the [home state] senators, >or whoever the relevant player is .... " For the circuit courts the names >tend to be generated more by the administration. > Once the president approves to move forward, the Department of >Justice oversees a two-pronged background investigation of the potential >nominee including an inte rna l vetting process conducted by OLP staff as >well as a fie ld investigation conducted by the FBIwhich is characterize d >by Dinh as "your normal background investigation for presidential >pe rso nnel but specifically targeted toward ju dicial nominees going into >issues of temperament and impartiality in addition to the normal >backgroun d check. In describing the OLP investigation, Dinh noted that it >"is quite similar, actually, to the activities of interest groups such as >the >American Bar Association where we contact members of the bench and bar in >the affected community and do a staff vett ing report." The American Bar >Association's own vetting of candidates, however, historically done prior >to their nomination by the president , has been removed from the Bush >selection processes , a matter that will be explored further below. > Dinh reported that the meetings of the Judicial Selection >Committee were held "as necessary and once a week unless there is no >business, a luxury rarely if ever enjoyed during the first two years of >the Bush administration when large numbers of nominees were processe d to >be sent to the Senate. All interviews of potential nominees were >conducted at the White House although both Viet Dinh and Brett Kavanaugh >characterized the Judicial Selection Committee as completely collaborative >in its >operation , with no distinct role played by White House as distinct from >Justice Department participants. According to Dinh, > "We do not think of ourselves as separate offices serving > different functions. We do have primary responsibilities, > we do have specific expertise, but when we introduce > ourselves to the candidates or other people we may intro duce >ourselves as being from the Department of Justice or we > may not. We do not think of our participation as part of the > White House Counsel's Office or part of the Department of> Justice. I think it is just a concerted effort to serve the > President the best way we can." > Kavanaugh concur red, describing the process as "really >collaborative, we work together, [and} try to be a seamless whole .11 > Significantly under Clinton the political facets of judicial >selection were openly avowed to be the province of White House personnel >while the more professional facets of the evaluation of can didate >credentials were handled by the Justice Department. Under Bush, it >appears , no such >distinctions are recognized. As assessed by Dinh, > "It's just a matter of we're all sitting here cont ributing> to the decision-making process. There 's not a separate > Department of Justice interview and then a White House > interview. There's a joint interview, with joint input, > with joint assessment that is not divided between politics > and qualifications." > Dinh did concede , however, that there was one important facet >of the process where some distinction of function could be found: > 'The outreach to senators, the liaisons for senators, > are done by the White House Counsel 's Office, and that > may be more in regard to what you mean by politics, > whether it [the nomination )is going to fly or not. > The White House Counsel 's Office handles the contact and >consultations to all home state senators , even on > circuit courts , and even if the person is from the > opposite party." >And it is in the performance of this consultative role that one finds the >greatest divide between the characterization of the process by the >adm inistration and its supporters, and the perception of Senate Democrats >and the administration 's critics. Viet Dinh put it quite succinctly. " We >recognize home state senators ' prerogatives, that's why we consult." Brett >Kavanaugh concurred , noting, "We consult with the home 11 c;t;:it,::, c;,::,n::itnrc; nn >hnth rli,trkt ..-m 1rt ;:in rl ..-n11rt, nf ::inn,::,::ik ::inrl r11n hv th Pm hc:,fnr,::, ::in !=RI EXT-18-2091-C-001117 007104-001868 Document ID: 0.7.19343 .9992 _..,.~ ....... - ..,.......?-'?"""" _..,.- ? ' - .., ..............._..,. .............................. - ? .................... __. -? ....'"",.,..... _ .__,,- ? ?- ~ -? o .., 1 ............. ., .........' ........... -? o o -? >background check, names of people who are under consideration to get their >reactions ahead of time , and that helps avoid problems down the road." >Kavanaugh added , "We maintain consultation logs, and I think there 's been >extensive consultation." > Consultation does not, in any sense , convey, however, that >senators have a veto power over the administration 's choices , whether the >senators are Democrats or Republicans . According to Kavanaugh > "Consultat ion doesn 't mean, obviously, that the home > state senator picks ... the judge , but it does mean that > we consult in the sense of discussing potential names > with them and hear what they have to say. If someone > says , 'Well, gee , I wish you would pick my person,' and > that's an overstatement just to give you a flavor,> that 's different from a home state senator (saying)> 'Gee, that person has real problems, let me tell you > about the prob lems. ' That kind of thing we take very > seriously. Sometimes home state senators have specific >information that may not have come to us. "> Sharing this view of extensive White House consultation with home >state senators was Judiciary Committee Republican Chief Counsel Makan >Delrahim, a senior staff assistant serving Senator Orrin Hatch: > "I don 't think we have to worry about this White House. > They've been just incredible , the amount of consultation > they've had with the home state senators .... "7 > As noted, however, the area of consultation is one about which >there is considerable disagreement concerning the performance of the >President's judicial se lection team. According to Elliot >Mincberg, Legal Director of People For the American Way, for example , >"What you saw was almost a complete abandonment of Clinton's efforts to >put the advice back into advice and consent. Unfortunately, what we've >been seeing from the president is confrontation rather than consultation >and cooperation." 8 Marcia Kuntz, of the Alliance For Justice, linked >the >issue of consultation with broader concerns. > "The admin istrat ion's penchant for secrecy is very much > evident in its conduct of the judicial select ion process, > both in cutting out the ABAand not circulating these > names ahead of time, and in its failure to consult > with the Senate before nomination. The names just > don 't get out there in the same way. There's no public> discussion , there 's no vetting outside the administration." 9 > Democratic staff members in the Senate who were involved in >discussions of potential nominees in consultative processes raised similar >themes. One noted: > "There is no interest or evidence that there will be > balance or moderation coming from the White House. > They don 't want a check and balance on this, they want > a blank check. Their view of consultation , negotiation, > building relationships, is a very narrow view. It remains a >unilateralist view o.fhow to create a relationship. There > were times , fairly early in the process, where suggestions > were being made , arrangements could have been made , > nobody was trying to rub anybody 's face in anyth ing, > where we thought accommodations on all sides could > have been worked out. But there was no interest in> doing that. There was a lot of the 'p ermanent campaign ' going >on." If, indeed, the fundamental approach to the nature of consultative >processes has been altered from the Clinton years, and we must note that >none of the parties interviewed and quoted here are disinterested , there >are important consequences that can follow. A Democratic staffer >observed: > "The President has every right to nominate ... , but all > we're asking is, 'Don 't send us the worst guys.' Hatch used > to call up Clinton and say, 'Don't send me that guy. I don 't > think I can get him through.' Or, 'I'm not going to be able> to support him.' And they 'd listen. Now I've had a .federal > judge tell me 'You know what? I give the Republicans > their due. They play hardball. That's why they are going > to win.' Clinton certainly didn 't {play hardball). And we > don 't. We believe in this institution too much. There was > a check and balance ... that is pretty much going to go > away. What we 're going to be left with is when you can > get 51 guys to vote against a judicial nominees or 41 > people to filibuster a judicial nominee , that's the only> time they're in trouble. "> When the Administration 's vetting o.fa potential nominee, through >its Judicial Selection Committee, is completed, and the re is satisfaction >that appropr iate consultations have been held and the cand idate passes >muster, the name will be forwarded to the President for his signing off on >the formal EXT-18-2091-C-001118 007104-001869 Documen t ID: 0.7.19343 .9992 nomination. At this stage, according to Brett Kavanaugh, the >President > "is very involved in the process. Obviously, you don 't > discuss things with a president, this president > or any president, till you have everything refined and > the decision and options tied up in a way that 's appropriate > for his time , particularly now since there are a number of> issues on his plate, since September 11th particularly."> There remain two areas of judicial selection processes under Bush >that warrant additional exploration because they represent potentially >significant departures from the status quo characterizing the approach of >past administrations. First, at the outset of his administration, >Pres ident Bush ended the formal role played by the American Bar >Association in the rating of candidates before final decisions on >nominations were made by the President. More recently, the President >offered a timetab le proposal suggesting the parameters for the flow of all >phases of the judicial >selectionprocess from notification requirements suggested for sitting >judges regarding their plans for stepping down from the bench through the >time taken to conduct various facets of the confirmation process. > From the admin istration 's perspective, the swirl of controversy >that surrounded the removal of the ABA's formal participation in the >presidential stages of judicial selection could be characterized as much >ado about very litt le. Viet Dinh noted that the administration recognized >that the ABA, > "through the Senate Judiciary Committee and through > individual senators, had a role in this process. It was > very clear when I took office that Senator Leahy, then > Chairman of the Senate Judiciary Committee would not > dear any person for a hearing unless and until that person > had received a rating from the ABA. So the ABAwas an > integral part of the Senate Judiciary Committee 's > consideration of the candidacy and we did everything in > our power to cooperate in that process." >Towards that end, Dinh established a procedure whereby when a nomination >was sent to the Senate for confirmation consideration, the name was >concurrently sent to the ABAso that they could start their review >processes. > Brett Kavanaugh further elaborated on the administration 's >position >on ABAinvolvement in judicial selection, a position he felt was > "widely mischaracterized. The President felt it was > unfair and unwise to give one group preferential access > to the process, particularly when there are a number of > bar associations that we hear from and the ABAhad this > preferred role, which seemed unwise. It was not a> suggestion that the ABAshouldn 't be rating judges.In fact , the > President has touted on numerous occasions the fact that > the ABAhas rated people like Justice Owen well qualified , >unanimously. So it wasn 't commentary on whether it was >appropriate for the ABAto rate judges. It was commentary > on the fact that no one group should really be part of the > nomination process , and it goes, in some ways , to a broader > issue of presidential prerogatives and what 's appropriate. > It was obviously interpreted as a way of kicking the ABA> out . And, obviously, the ABAwould rather be involved > in the front end rather than the confirmation side , the > back end. But we felt, the President certainly felt, that > the appropriate thing was for the ABAand every other > group that was to rate the President's nominees, to have > the same shot. I think there was a sense at the beginning > that this means that the President is going to be turning > to people who are not qualified because he's scared or> afraid of the rating process. Nothing could be further> from the truth. We welcome an examination of the > qualifications of his nominees . So I think it was, > as things often are when decisions are made by a > president, there was a lot of politics going on. But> it was really a principled decision about what the > appropriate role for the ABAwas and not a decision > about what kind of nominees there would be nor a > decision about whether the ABAappropriately could > rate the judges. " > Boyden Gray succinctly summarized the view that little has really >changed. "The ABA, I think , is just as honored now as it was when I was >there. The only thing is that they don 't get the upfront knowledge about >it, but they 're full players. They're getting everything they 've always >had." A similar assessment was offered by Makan Delrahim from his >perspective as Republican Chief Counsel of the Judiciary Committee which , >when first chaired by Orrin Hatch during the Clinton years, had ended the >ABA >Committee ' s "most favored" status in the oro c ess . a change lasting until >the Democrats regained EXT-18-2091-C-001119 007104-001870 Documen t ID: 0.7.19343 .9992 4 --? ? ?? ? ? ? ..... -- - o ? ?-- .. ?-?-?-- _ .. _ .. __ o o .. , ,_ r?----- , - -??- ?--o- ?-- ? ???o _.,.... ???- --? ?o-??-?--- ?-o- ????-- COntrolof the Senate chamber an d Patrick Leahy >assumed the Judiciary Committee chairmanship. > "Senator Hatch looked at it as a matter of equity. > Should the Hispanic Bar Association do a vetting > before the Committee acts on it or the presi dent > sends it down? What about the Minority law Students > Association? Any association could provide useful > advice an d they should. And the ABAis just one of> them . . .. They've provided their service and it > has been valuable." > Since the advent of the 108th Congress, with the ABAremoved from >the presidential facets of ju dicial selection, the Republicans back in >control of the Senate, and Senator Orrin Hatch again chairing the >Judiciary Committee, the question of what status the ABA's post-hoc >ratings will play in the confirmation process looms both larger and on >somewhat more tenuous footing. Indeed, as Delrahim underscored, > "The ABAcan do its work, but we're not going > to allow the ABAto delay our consideration of> judicial nominees. I mean there 's no constitutional > reason ... to allow any outside group to delay the > advice and consent process of the Senate." > Critics of the administration 's posture towards the ABAsee the >implications of its removal from the front end of the selection process in >a much more negative light with unhappy cons equences. Nan Aron, for >example, argues that, > "One diffe rence between now and yea rs before is the > chilling effect that excluding the ABAhas had on the > desire and ability of lawyers to be upfront, to share > their views of the nominees. It's staggering. I> remember from the '80s lawyers would call and say , > 'Just got word from the ABAthat so and so had been > nominated. You guys ought to take a look."' >Now, as Marcia Kuntz added, "the re is a lot of pressure on people not to >be candid .Once somebody is nominated, there is an inevitability to >confirmation, so why would they stick their necks out and say anything >negative ." > In Aron's view, this reality is consistent with a broader >administration motivation for altering the ABA's role in the process in >the first place: > "I am convinced, I am absolutely convinced, that > the reason the administration removed the ABA,> I don't care what they say , is not because they are > afraid of the rating, because we all know that> ratings were uniformly high .It wasn 't the ratings > that cause d them to take them out. It was their> desire for total and complete secrecy, and that 's > another thing that's a huge departure. It's a > major change. It's shrouding the enti re judicial > selection process in secrecy ." > The secon d major departure of the Bush approach to judicial >selection, the nascent effort to regulate the time parameters of the >process, was not unveiled until October 31, 2002 , just one week before >the 2002 congressional elections. The President's proposal, stemming, in >part, from his view that the Senate had displayed a poor record in >confirming his nominees, contained four central recommendations, >collectively targeted at filling vacancies expeditiously as seats on the >federal bench became open. To succeed, the President's proposal would >require behavio ral changes not only in the administration's own behavior, >in some instances, but in the institutional behavior of the senate an d the >judiciary as well. > 1. Federal judges should give a year 's notice of their intention to > take retirement or senior status. > 2. The president should nominate a replacement judge within 180 days > of receiving such notice. > 3. The Senate Judiciary Committee shoul d hold hearings within 90 days > of receiving a nomination. > 4. The full Senate should hold a floor vote within 180 days of the > initial receipt of the nomination . > From the perspective of the Judiciary Committee and a newly >seated Republican majority, Makan Oelrahim welcomed the proposal, noting >that the President, > "doesn't come at this with any baggage. He wasn't part > of the Senate befo re, during the Clinton administration. > He wasn't, certainly, in the White House during the Clinton > a dministration. So he comes to this like a businessman and> a manager does, looks at this , and goes 'What's wrong with> this process?." >Adding to its luster was the notion that the proposal was targete d at the >process irrespective of the occupant of the White House. Viet Dinh >emphasized this point. "I think it's a perfectly sensible plan. It >operates irrespective of who is in power, either in the administration or >in the Senate." Recognizing that the plan required considerable >cooperation from participants in the process outside of White House >control, Dinh noted the administration's flexibility in how meeting the >guidelines might be >accomplished: > "We would support a Senate rule change to codify this , > but we would support anything short of a EXT-18-2091-C-001120 007104-001871 Document ID: 0.7.19343 .9992 rule change. A> Judiciary Committee rule change, a bipartisan gentlemen's >agreement , Judicial Conference resolutions, whatever it > is in order to get as close to the ideal that there should be > an orderly process of at least giving a person a full day> hearing and an up or down vote."> In a similar vein, Associate White House Counsel Brett Kavanaugh > note d that, "things rarely happen overnight, but he has set out a > marker. The President ultimately would like to see the Senate come > aroun d to the view that it would make sense to have a standard > process that applies to every judicial nominee. " In Kavenaugh 's > view, such a standardized process would enable the judicial selection > process to emerge from the tit for tat obstructionism that has > characterized both the Clinton and Bush administration 's selection > efforts. Kavanau gh added: > "Have a process that people know the rules in advance , > the rules of the road. We're going to have hea rings; > we're going to have votes. And if you think someone is out > of the mainstream, it is incumbent upon you to make that > case, whether you are a Republican objecting to a Clinton > nominee or a Democ rat objecting to a Bush nominee. And, >ultimately, you have to convince your colleagues that> is the case an d not bott le up a nominee. That's not fair> to the nominee, it's unfair to the president, it hurts the > courts, (and] breaks down the whole process. It deters good people >from gettin g involved." >While committed, in the long run, to the necessity for a Senate rule >change as an ultimate goal , Kavanaugh admitted, > "That takes time . .A lot of times , ideas like this, you > keep plugging, you keep plugging and, ultimately, it > may come to fruition. And that 's what we plan to do > with this. The President said the goal is to have > a new judge ready to take office the day the old ju dge >retires.That's the seamless transition we 're seeking. > That's a process. Perfection will probably never be > achieved. But improving the process significantly , > we think, can be achieved in these kind of timetables."> In analyzing the President 's mandate , it is important to >underscore >the- critical "end game" of the proposed process, floor action on a >nomination. According to Viet Dinh, > "This process is not meant as a wayto overri de > ... prerogatives of home state senators. To the > extent that we can accommodate those interests > and also succeed in expe ditious resolution, great!. > With respect to holds, a hold is nothing but an > intention to filibuster. And its only force is the > prerogative to filibuster on the floor. We have > absolutely no intention of disturbing [the] century> old tradition of Senators to filibuster on the floor. > ... [T]he call for a vote on the floor within 180 days > is nothing but astatement, 'Hey, let 's get it out in > the open.' It's not necessarily a call that you have > to have passed clotu re within 180 days. If you > want to exercise the floor prerogative of denying > cloture, fine, just do it. Do it within 180 days, > according to normal rules of floor debate, including> filibuster, but do it out in the open ."> Some skepticism about the President 's proposal can be seen among >the administration's supporters. Boyden Gray, for example, note d that , > "I think they 'll try and hold to it. Maybe they'll be > able to. But I, myself, am a little bit skeptical of > finite timetables that you have to get so and so out. > It's just not quite susceptible to such precision. >In addition to such practical concerns about the plan's operation, >substantive criticisms of the proposal were also offered , in this >instance , from the Democratic si de of the Senate aisle . One ai de noted >that, > "The proposal doesn 't take into account when a > president stacks nominations, numerous nominees > at the be-ginning. There is no regard to how> controversial they may be, how time consuming the > records may be. They are just supposed to get a > hearing pretty quickly." >Another Senate aide offere d, > "Portraying it as a situation that has gotten worse > is just playing into their argument. Their a rgument > has now gotten to the point where the President is > seriously committed to the proposal that he made > right before the election. 'Okay, let's just take > politics out of this; I'll just take all the marbles. > Forget about blue slips, forget about hearings, forget> ab.out everybody. We'll just have this arbitrary time > clock that says within 180 days I get an up or down > vote. A Democratic president's moderate nominees> were not allowed to 1w forth. but now we 're suooosed > to flio the switch." >While not EXT-18-2091-C-001121 007104-001872 Document ID: 0.7.19343 .9992 opposed, in principle, to a "neutral" proposal institute d under >a >veil of ignorance at some future time when nobody could know the identity >of the president or the partisan balance of the Senate, hecontinued, > "We shoul d say we will start this with the next > president. This is an interesting set of concepts. > Let's start it with the next set of guys so that none> of us really benefit. Well, I can assure you that will> never be offe red. "> Synthesizing the multiple concerns raised about the President's >proposal Elliot Mincberg of People For the American Way asserte d that , >"aspirational goals may not be a bad idea to suggest in the abstract, but >it's important to always conside r individual circumstances ." Citing >complaints that some of the earliest Bush nominees were still waitin g to >have their hearings, Mincberg continu e d, > "Well, from the perspective of the administration of > the Courts, there is a very good reason for that. If you > process nominees first in, first out, you're going to> have a huge number of vacancies because if the first > ones are the most controversial ones , and you take the > most time to review, then the result is that the ones > who are less cont rovers ial don 't get reviewed . So I > think it's important, frankly, from my perspective, to> add some things of a more qualitative nature. I think> that the more moderate , less controversial nominees > should get priority in processing and they always have, > an d they shoul d, because it makes perfect sense from the > perspective of helping the courts do their job. And that's> something that's hard to write in the rules, but is > something that has to be considere d. And it's a bit > counterintuitive to the notion that every nominee > shoul d follow a particular schedule. It is certainly true > that there is a need to try and make the process work > better, but again, I think where that starts, is not with > attempted timetables , but with attempts to try and > lower the temperature of the process a little." >In the final analys is, Mincberg noted, there was a certain irony in the >president's proposal. > "It really isn't app ropriate for a president on the > one hand to say, at least quietly , I'm going to > put a strong ideological stamp on the ju diciary but, > on the other hand, I want these guys processed in > an assembly line process. It doesn 't make sense. > It's not consistent with the whole division of> author ity in advice and consent." Elliot E. Slotnick Professor of Political Science Associate Dean The Graduate School The Ohio State University 250 University Hall 230 N. Oval Mall Columbus, Ohio 43210 614-292-6031 (office) 614-2 92-3656 (Fax) slotnick.1@osu.edu EXT-18-2091-C-001122 007104-001873 Document ID: 0.7.19343 .9992 01123 007104-001874 Document ID: 0.7.19343.9992?000001 Dinh, Viet From: Sent: To: Bcc: Subject: Dinh, Viet Tuesday, June 03, 2003 3:55 PM Dinh, Viet Ayres, David; Israelite, David; Kobach, Kris W; Nielson, Howard; Richmond, Susan; Laufman, David; Levey, Stuart; Margolis, David; Tandy, Karen P; Higbee, David; Klitenic, Jason; Olson, Theodore B; Elwood, John; Chertoff, Michael; Jaso, Eric; Majoras, Deborah; Sansonetti, Thomas L.; Cruden, John; Rosenstein, Rod J.; Reyna, Ben; Cerda, Victor X; Fine, Glenn A.; Roth, Monique; Geise, Jack; 'Bartolomucci, Chris'; 'Kavanaugh, Brett'; Comstock, Barbara; Goodling, Monica; Duckett, Josie; Beach, Andrew; Ciongoli, Adam; Wray, Chris; Keisler, Peter D; Clement, Paul D; Salmons, David B; Bradshaw, Sheldon; Nahmias, David; Swartz, Bruce; McCallum, Robert; Jordan, William E; Coffin, Shannen; Flippin, Laura; Bucholtz, Jeffrey; Katsas, Gregory; Pate, R. Hewitt; Moschella, William; Daniels, Deborah; Henke, Tracy; Nolan, Cheri; Corts, Paul R; Hitch, Vance; Simms, Joanne W; Garcia, Mike J.; Lewis, Guy; Fuller, Christopher; Lindemann, Michael; 'David_G._Leitch@who.eop.gov'; Corallo, Mark; Boyd, Ralph; 'Garry_Malphrus@opd.eop.gov'; 'Schlapp. Matt'; 'Alan_Gilbert@opd.eop.gov'; Schauder, Andrew; 'Ashley_Snee@who.eop.gov'; 'Benjamin_A._Powell@who.eop.gov'; 'Daryl_L._Joseffer@omb.eop.gov'; 'Delrahim, Makan (Judiciary)'; 'Edward_McNally@who.eop.gov'; 'Francisco, Noel'; 'Gonzales, Alberto'; 'H._Bryan_Cunningham@nsc.eop.gov'; 'Jennifer_G._Newstead@who.eop.gov'; 'JFWood@omb.eop.gov'; 'Joel_D._Kaplan@who.eop.gov'; 'John_B._Bellinger@nsc.eop.gov'; 'Ken Wainstein (E-mail)'; 'Kyle_Sampson@who.eop.gov'; 'Lefkowitz, Jay P.'; 'Nguyen Mina'; 'Richard_Falkenrath@who.eop.gov'; 'Smith, Matthew'; 'Theodore_W._Ullyot@who.eop.gov'; 'wgrubbs@who.eop.gov'; Bryant, Dan; Taylor, Jeffrey; Thompson, Larry D; Collins, Dan; #**; Murphy, Paul B; Harris, Paul (SMO); Garre, Gregory G; Millett, Patricia A; Whelan, M Edward III; Philbin, Patrick; Fisher, Alice; Malcolm, John; O'Connor, Eileen J. (AAG/TAX); Brown, Jamie E (OLA); Hart, Sarah; Flores, Robert; Gillis, John; Day, Lori Sharpe; Baker, James; Oosterbaan, Andrew; Driscoll, Bob; Wiggins, Mike; 'Diana_L._Schacht@opd.eop.gov'; 'Lefkowitz, Jay P.' Farewell Dear Colleagues, It's time for me to say goodbye. I have thanked the President and the Attorney General for the opportunity they gave me to repay, in small measure, the debt that my family and I owe to America and her people. I want now to thank you all for having enriched my life, for showing me the boundless potential of camaraderie, commitment, and professionalism. I will always treasure our time serving Justice together. I hope you will in the future find some excuse to call EXT-18-2091-C-001124 007104-001875 Document ID: 0.7.19343.10024 and chat with this absent-minded academic. I am a b(6) Viet Dinh personal email and (b) (6) All best, Viet EXT-18-2091-C-001125 007104-001876 Document ID: 0.7.19343.10024 U.S. Department of Justice Office of Information Policy Sixth Floor 441 G Street, NW Washington, DC 20530-0001 Telephone: (202) 514-3642 Mr. Gabe Roth Fix the Court 1440 G Street NW, Suite 801 Washington, DC 20005 gabe@fixthecourt.com November 6, 2019 Re: DOJ-2018-007104 (OLP) 18-cv-02091 (D.D.C.) VRB:TAZ:SJD Dear Gabe Roth: This is our fourth interim response to your Freedom of Information Act (FOIA) request dated and received in this Office on July 24, 2018, for correspondence between the Office of Legal Policy and Brett Kavanaugh from January 20, 2001 to May 30, 2006. This response is made on behalf of the Office of Legal Policy (OLP). Previously, on October 5 and October 17, 2018, as well as September 9, 2019, we provided you with interim responses. At this time, I have determined that an additional 126 pages are appropriate for release, with excisions made pursuant to Exemptions 5 and 6 of the FOIA, 5 U.S.C. ? 552(b)(5) and (b)(6), and copies are enclosed. Additionally, I have determined that 128 pages should be withheld in full pursuant to Exemption 5 of the FOIA. Exemption 5 pertains to certain inter- and intra-agency communications protected by civil discovery privileges. Exemption 6 pertains to information the release of which would constitute a clearly unwarranted invasion of the personal privacy of third parties. Please be advised that duplicative records have not been processed and are marked accordingly in the enclosed pages. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. ? 552(c) (2018). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. If you have any questions regarding this response, please contact Laura Hunt of the Department's Civil Division, Federal Programs Branch at (202) 616-8337. Sincerely, Enclosures Vanessa R. Brinkmann Senior Counsel Remington , Kristi L From: Remington, Kristi L Sent : Wednesday, December 4, 2002 11:15 AM To: Willett, Don; Keefer, Wendy J; Charnes, Adam; ' Brett Kavanaugh' Subject : SJC meeting There was one-other issue I forgot to mention: be handling logistics. - Original Message- From: Willett, Don Sent: Wednesday , December 04, 2002 11:04 AM To: Remington, Kristi L Subject: RE: RE: RE:Tues meetings Did they see these weekly counsel meetings starting in Jan.? --Original Message-From: Remington, Kristi L Sent : Wednesday, December 04, 2002 10:59 AM To: Willett, Don; Goodling, Monica Cc: Charnes, Adam; Keefer, Wendy J; 'Brett Kavanaugh (E-mail)' Subject: RE: RE: RE:Tues meetings The-SJC staff called the meeting to let everyone know that January - March would be very busy with judges. They also wanted to make sure the counsels would get their individual Senators involved. There was a lot of talk ing at the meetin g, but the following were the majo r issues for OLP/WH: - Original Message- -From: Willett, Don C ~~._, IAl~.J-~~ .J ~ .. ri~ ~- mL..~~ t\,1 "lt\t\"l 1 f\,1 1 I\ r.11 EXT-18-2091-D-000001 007 104-00 1877 Document ID: 0.7.19343 .5287 ;:>t::lll, V\lt::Ullt::!>UdY, Ut::'-1:IIIUt::I V'l- 1 GBPVVGBP .J.V;.J. J. l"'\IVI To: Remington, Kristi L; Goodling, Monica Cc: Charnes , Adam; Keefer, Wendy J; Brett Kavanaugh (E-ma il) Subject: FW: RE: RE:Tues meetings Kristi When you get a chance today , can you e-mail us a download on yeste rday's 2:15 Manny mtg.? Thanks. ORW -Original MessageFrom: Manuel Miranda (mailto :Manue l_ Miranda@judiciary.senate.gov] Sent: Thursday , November 28, 2002 2:44 PM To: Willett, Don Cc: Remington, Kristi L Subject: Re:RE: RE:Tues meetings Kristi is great , it's really so that one person can report back to all at OLP what we a re looking at from a final product perspective. I am copying Brett on this string in case he wants to attend. This meeting is just to touch base and I didn 't want to just take a lot of folk's time, but Brett or any others from the WH Counsel are welcome. (Brett, it would be useful if your new press person attended the 3:15 along with Merci.) _________ Reply Separator _________ Subject: RE: RE: Tues meetings Author: "Willett; Don" Date: 11/27/2002 4:37 PM Manny, I now have 4 judicial interviews scattered throughout Tues. afternoon. Kristi can cover the Hill mtg. if you want to keep the 2:15 time slot. Is this Hill/DoJ only, no WH? ORW -Original Message- From: Manuel Miranda [mailto:Manuel_Miranda@judiciary.senate.gov) Sent: Wednesday, November 27, 2002 2:48 PM To: Willett, Don; Goodling, Monica Subject: Re:RE:Tues meetings Great , it's just for purposes of reporting to everyone at OLP. And so as not to take to many people 's time. _ ________ Reply Separator _________ Subject : RE: Tues meetings Author: "Willett; Don" Date: 11/27/2002 2:30 PM EXT-18-2091-D-000002 007 104-001878 Document ID: 0.7.19343 .5287 I have a jud icial interview @ 2:00 on Tues. but can likely get someone to cover it. Bottom line: I and/or probab ly Adam {maybe Wendy and/or Kristi, too) will be there. DRW --Or iginal Message--From: Manuel Miranda (ma ilto:Manue l_ Miranda@judiciary.senate.gov] Sent: Wednesday, November 27, 2002 2 :20 PM To: Willett, Don; Goodling , Monica Subject: Tues meetings Monica and Don, I copied you on an email to counsel w ith the thought that you or someone from your offices cou ld attend the respective meetings on Tuesday. Let me know. Manny _________ Forward Header __________ To: JC Counsels Subject: Nominations Meetings Author: Manuel Miranda Date: 11/ 27/2002 2:20 PM Hello friends. Now that we all have had t ime to think a few things through , we would like to bring us a ll together for some joint think ing on judicial nominations in the immed iate future. Let's meet on Tuesday at 2:15 in the Utah Room (Hatch persona l office). Feel free to bring other counsel or staff who will work with you on nomna itions issues. Although the hope is to get us to have a re laxed discussion , the meeting shou ld last no more than one hour. One ot her thing , please invite your Senator 's press secretary or commnications staff on nominations issues either to attend with you at 2:15 or to arrive at 3:15 for a meeting on communications . Have a peaceful an d Happy Thanksgiving! Manny EXT-18-2091-D-000003 007 104-001879 Document ID: 0.7.19343 .5287 Newstead , Jennife r From : Newstead, Jennifer Sent : Tuesday , December 11, 2001 6:07 PM To: '/DDV=-H._ Christopher_ Bartolomucci@who.eop.gov/DDT=RFC822/0 =INETGW/P=GOV+DOJ/ A=TELEMAIL/C=US/';Dinh, Viet; 'Bra dford_A._Berenson@who .eop .gov' ; 'Rachel_L._ Brand@who.eop.gov '; 'C ourtney_S._Elwood@who.eop.gov ' ; 'Noel_J._Francisco@who.eop.gov'; 'Brett_M ._ Kavanaugh@who.eop.gov ' ; 'Kyle_ Sampson@who.eop.gov '; ' Helgard _ C._ Walker@ who.eop.g ov' Subject : RE: Wash. Times Story on Judges At yesterday's confirmation working group meeting we discussed a possible strategy - would be welcome. Jen -Or iginal Message-From: /DDV=H._ Christopher_ Bartolomucci@who.eop.gov/DDT = RFC-822/O=IN ETGW/P =GOV+ DOJ/A=TELEMAIL/C =US/ [mailto:/DDV=H. _Christopher_ Bartolomucci@who.eop.gov /DDT =-RFC-822/O=INETG W/P=GOV+DOJ/A=TELEMAIL/C=US/] Sent Tuesday, December 11, 2001 5:55 PM To: Newstead, Jennifer; Dinh, Viet; Bradford_A._Berenson@who.eop.gov; Rachel _L_ Brand@who.eop.gov; Courtney _ S._ Elwood@who.eop.gov; Noel_J._Francisco@who.eop.gov; Brett_M._Kavanaugh@who.eop.gov; Kyle_ Sampson@who.eop.gov; Helgard _ C._ Walker@who.eop.gov Subject: Wash. Times .Story on Judges EXT-18-2091-D-000004 0071 04-001880 Documen t ID: 0.7.19343 .6868 007104-001881 Document ID: Newstead , Jennife r From: Newstead, Jennifer Sent : Wednesday, January 23, 2002 3:36 PM To: 'Bre-tt_M._Kavanaug h@who.eop.gov'; 'Anne_Wom ack@who.eop .gov' Cc: Dinh, Viet Subject : Attachments: Here are talking points on Pickering that -O riginal Message- From: Brett_M._Kavanaugh@who.eop.gov {mailto:Brett_M._ Kavanaugh@who.eop.gov] Sent: Wednesda y, January 23, 2002 3:18 PM To: Anne_Womack@who.eop.gov Cc: Newstead, Jennifer; Dinh, Viet; Alberto_ R._Gonzales@who.eop.gov; Timothy_E._Flanigan@who.eop.gov; Noel_J._Francisco@who.eop.gov; Helgard _ C._ Walker@who .eop.gov; Bradford _A._ Berenson@who.eop.gov; Heather_ Wingate@w ho.eop.gov Subject: Re: Pickering Anne : I'll talk to Viet/Jen who have the lea d on th is and will make sure you get the info you need. Anne Womack 01/23/2002 03 :11:31 PM Record Type: Record To: Brett M. Kavanaugh/WHO/ EOP@EOP cc: See the distribution list at the bottom of this message Subject: Re: Pickering (Document link: Brett M. Kavanaugh) EXT-18-2091-D-000006 007 104-001882 Documen t ID: 0.7.19343 .7062 someone please give me some background on what the problem is with him. Message Copie d To:__________________________ _ alberto r. gonzales /who/ eop@eop timothy e. flanigan/who/eop@eop noel j. francisco/who/eop@eop helgard c. walker/who/eop@eop bradford a. berenson/who/eop@eop viet.dinh@usdoj.gov @ inet jennifer.newstead@usdoj.gov @ inet heather wingate/w ho/ eop@eop EXT-18-2091-D-000007 007 104-001883 Documen t ID: 0.7.19343 .7062 Dinh, Viet From : Dinh, Viet Sent : Wednesday , January 23, 2002 5:41 PM To : ' Bradford_A._ Berenson@who.eop.gov '; Newstead , Jennifer; ' Brett_ M._ Kavanaugh@who.eop.gov' Subject : RE: WSJ -Original Message-From: Bradford_A._Berenson@who.eop.gov [mailto:Bradford_A._Berenson@who.eop.gov] Sent: Wednesday, January 23, 2002 4:53 PM To: Newstead, Jennifer; Dinh, Viet; Brett_M._Kavanaugh@who.eop.gov Subject: WSJ Jess Bravin of the WSJ is doing a story on tomorrow 's news conference with a specific focus on . Someone shou ld probably Pickering. His number is - EXT-18-2091-D-000008 0071 04-001884 Documen t ID: 0.7.19343.7079 Brett_ M. _ Kavanaugh @wh o.eo p.gov From : Brett_ M._Kavanaugh@who .eop.gov Sent : Thursday , January 24, 2002 9:57 AM To: Newstea d, Jennifer; Dinh, Viet Subj ect : Pickering This is almost certa inly not a nove l idea , but I th ink .- EXT-18-2091-D-000009 007 104- 001885 Document ID: 0.7.19343.7072 New st ead , Jennife r From : Newstead, Jennifer Sent : Thursday, January 24, 2002 10:34 AM To: 'Anne_ Womack@who.eop.gov ' Cc: Dinh, Viet; ' Brett_M._Kavanaugh@who.eop.gov' Subje ct : RE: Pickering -- Original Message-- From: Anne_ Womack@who.eop.gov (mailto:Ann e_ Womack@who. e op.gov] Sent: Thursday , January 24, 2002 9:51 AM To: Newstead , Jennifer Cc: Dinh, Viet; Brett_ M._ Kavanaugh@who.eop.gov Subject: RE: Pickering EXT-18-2091-D-000010 0071 04- 001886 Document ID: 0.7.19343.7074 Newstead , Jennife r From: Newstead , Jennife r Sent : Thursday , January 24, 2002 12:39 PM To: Dinh, Viet; 'brett_m._kavanaugh@who.eop.gov Cc: Benedi, Lizette D; Benczkowski, Brian A Subject : FW: Pickering Op-Ed Attachments: Dillard.Oped.wpd ' FYI,our first report on this morning 's press conference is that Pickering heard again that the hearing will be the first week in Feb. with Feinstein chairing . Jen - Original Message- From: Ed Haden (mailto: Ed_Haden@judic iary.senate.gov] Sent: Thursday , January 24 , 2002 12:33 PM To: Newstead , Jennifer Subject: Pickering Op,- Ed Mime message with no plain text. EXT-18-2091-D-000011 007104-001887 Documen t ID: 0.7.19343 .7076 Dinh, Viet From : Dinh, Viet Sent : Friday, January 25, 2002 9:25 AM To: 'Anne_ Womack@who.eop.gov '; Newstead, Jennifer Cc: 'Brett_M._Kavanaugh@who.eop.gov' Subje ct : RE: Pickering We will monitor item 2; we already have pre-arranged surrogates and op~ed materials to go. --Or iginal Message--From: Anne_ Womack@who.eop.gov [mailto:Anne_ Womack@who.eop.gov] Sent~Thursday , January 24, 2002 8:23 PM To: Newstead , Jennifer Cc: Dinh, Viet; Brett_M._Kavanaugh@who .eop .gov Subject: RE: Pickering Brett and I can work together on that from this end, or Viet and Jennifer, if you all would like to take the lead, that 's fine too. Just let me know. let me know how everyone wants to divide up the labor. Thanks EXT-18-2091-D-000012 0071 04-001888 Document ID: 0.7.19343.708 1 Dinh, Viet From : Dinh, Viet Sent : Sunday, January 27, 2002 2:55 PM To: ' Bradford_A._ Berenson@who.eop.gov '; 'Alberto _R._ Gonzales@who.eop.gov '; 'Ti mothy_ E._ Flanigan@who.eop.gov '; ' Brett_ M._ Kavanaugh@who.eop.gov ' Cc: Newstead, Jennifer Subject : RE: letter to Leahy Brad, Viet -Or iginal Message-From: Bradford_ A._ Berenson@ who.eop.gov [mailto:Bradford_A._Berenson@who.eop.gov] Sent: Saturday, January 26, 2002 3:55 PM To: Alberto _ R._ Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov ; 8rett_M._Kavanaugh@ who.eop.gov Cc: Newstead, Jennifer, Dinh, Viet Subject: Letter to Leahy EXT-18-2091-D-000013 0071 04-001889 Documen t ID: 0.7.19343.7089 {See attached file: Response to Leahy Floor Statement.doc} Here's the draft. I'm also sending it to Viet and Jenni fer in case they have suggest ions. - - EXT-18-2091-D-000014 007 104-001890 Document ID: 0.7.19343 .7089 Brett_M ._Kavanaugh@ wh o.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Wednesday, February 6, 2002 5:57 PM To: Newstead , Jennifer; Dinh, Viet; Alberto_R._Gonzales@who.eop.gov; Timothy_ E._ Flanigan@who.eop.gov; Bradford _A _ Berenson@who.eop.gov; Helgar d_ C._Walker@who.eop .gov; Courtney _S._ Elwood@who.eop.gov; /DDV=H._ Christopher_ Bartolomucci@who.eo p.gov/DDT=RFC-822/0=INETGW/P=GOV+DOJ/A=TELEMAIL/C=US/; Kyle_Sampson@ who.eop.gov; Rachel_L._Brand@who.eop.gov; Noel_J._ Francisco@who.eop.gov; Robert _ W._ Cobb@who .eop.gov Subject : Pickering/Holmstead precedent I missed the meeti ng, but Kyle informs me that there was discussion of the DOJ documents related to Pickering . Four t hou ghts: EXT-18-2091-D-000015 007104-00189 1 Documen t ID: 0.7.19343.7111 Dinh , Viet From : Dinh, Viet Sent : Thursday , February 21, 2002 9:28 AM To: 'Heather_Wingate@who.eop.gov Jason Cc: Newstead , Jennifer; '/DDV=H._ Christopher_ Bartolomucci@who.eop.gov/DDT =-RFC822/O=INETGW /P =GOV+DOJ/A=TELEMAIL/C=US/' Subject : RE: couple of things that need immediate attn. ' ; ' Brett_M._Kavanaugh@who.eop.gov '; Sutton , Done with Rufe. Jason sutton will coordinate redaction briefing. --Or iginal Message--From: Heather _ Wingate@who.eop.gov ( mailto:Heather _ Wingate@who.eop.gov) Sent~ Wednesday, February 20, 2002 7:04 PM To: Dinh, Viet; Brett_ M._ Kavanaugh@who.eop.gov Cc: Newstead , Jennifer; /DOV=H._Christopher_Bartolomucci@who.eop.gov/DDT=RFC -822/0=-INETGW/P=GOV+ OOJ/A=TELEMAIL/C=US/ Subject : couple of things that need immediate attn. Viet and Brett, during our meeting today w/Specter 's staff they mentioned that they had rec'd a call from Cynthia Rufe inquiring about whether or not she should sign the ABA confidentiality waiver or if she should sign the one from OLP. Also, Viet, I need to know what time you all can do the briefing tomorrow for Judiciary on the content contained in the redacted portions of the Pickering documents. EXT-18-2091-D-000016 007 104-001892 Documen t ID: 0.7.19343.7240 Dinh, Viet From : Dinh, Viet Sent : Wednesday, March 13, 2002 11:03 AM To : 'Heather _Wingate@who.eop.gov '; O' Brien, Pat; 'Brett _ M._ Kavanaugh@who.eop .gov' Cc: 'Ziad_S._ Ojakli@who.eop.gov ' Subject : RE: Judicial Nominations & The Biz Community We are a lready on it. -Original Message-From: Heather _ Wingate@who.eop.gov (mailto :Heather _ Wingate@who .eop.gov] Sent: Wednesday, March 13, 2002 10:00 AM To: O' Brien, Pat; Dinh, Viet; Brett_ M._ Kavanaugh@who.eop.gov Cc: Ziad_S._ Ojakli@who.eop.gov Subject: Judicial Nominations & The Biz Community (Embedded image moved Chris_ Myers@s rc.senate.gov (Chris Myers) to file: 03/12/2002 02:15:24 PM pic06555.pcx) Record Type: Record To: See the distribution list at the bottom of this message cc: (Barbara Ledeen) , Heather Wingate/WHO/EOP@EOP , Ziad S. Ojakli/WHO/EOP@ EOP Subject: Judicial Nominations & The Biz Community To: Dept of Justice & White House Ofc of Legal Counsel Fr: Chris Myers (42928) & Barbara Ledeen EXT-18-2091-D-000017 007 104-00 1893 Document ID: 0.7.19343 .7284 (42763), Sen Repub Conference-------- EXT-18-2091-D-000018 007104-00 1894 Document JD: 0.7.19343 .7284 Koebele, Steve From: Sent: To: Cc: Subject: Attachments: Koebele, Steve Tuesday, May 21, 2002 6:54 PM Willett, Don; Dinh, Viet; 'brett_m._kavanaugh@who.eop.gov' Loughlin, Ann L (OLP); Keefer, Wendy J; Sales, Nathan Sen Hutchison - Request for Approval to Send Abortion Case Cites-Feinstein Version.wpd; Enron-Cases-Line Comment final 4-17-02.wpd; Enron-Cases-Analysis 04-17-02.wpd; PaytoPlay-Rebuttal-Very Close Hold-Front Page.doc; PaytoPlay-Rebuttal-Very Close Hold-Exhibit.DOC Don, Viet & Brett -Approval Request Re Justice Owe (b) (5) Background: During the May 16 meeting of Justice Owen, Sen Feinstein, Sen. Hutchison and staff of the two senators', Sen Feinstein requested (1) copies of the parental notification and buffer zone cases, (2) two articles published by the Houston Chronicle and the Austin American-Statesman covering the July 1998 buffer zone case, and (3) Enron case information. Further, parroting the Texans for Public Justice Pay to Play report (linking contributions to the contributors' success rate), Sen Feinstein also questioned Justice Owen regarding connections between lawyer/law firm contributions and contributor success at the Court. Sen Hutchison inquired of Justice Owen, out of Sen Feinstein's hearing, whether counterveiling arguments could be proffered. Sen Hutchison Request: Counsel Joe Jacquot, would like all Pay to Play rebuttal information in order to present in camera to Sen Hutchison. This documentation is in addition to the parental notification, buffer zone, and Enron case information. Key Commentary: (b) (5) - f Arguments: (b) (5) (b) (5) Attached are the following: 1. Index to copies of the parental notification and buffer zone cases. EXT-18-2091-D-000019 007104-001895 Document ID: 0.7.19343.7614 2. Enron case information, two items. 3. Report rebuttal cover sheet. 4. Link to Pay to Play report on TPJ website (our Exhibit A). http://www.tpj.org/reports/paytoplay/paytoplay.pdf 5. Report rebuttal Exhibit B. Thank you very much. Steve 307-3024. EXT-18-2091-D-000020 007104-001896 Document ID: 0.7.19343.7614 Opinions of the Supreme Court of Texas Involving Parental Notification and Buffer Zones Parental Notification Cases TAB 1 TAB 2 TAB 3 TAB 4 TAB 5 TAB 6 TAB 7 TAB 8 TAB 9 In re Doe, 19 S.W.3d 249 (Tex. 2000) In re Doe 2, 19 S.W.3d 278 (Tex. 2000) In re Doe 1, 19 S.W.3d 300 (Tex. 2000) In re Doe 3, 19 S.W.3d 300 (Tex. 2000) In re Doe 4, 19 S.W.3d 322 (Tex. 2000) In re Doe 4, 19 S.W.3d 337 (Tex. 2000) In re Doe, 19 S.W.3d 346 (Tex. 2000) In re Doe 10, 2002 Tex. LEXIS 47 (No. 02-0376) Orders in which the Supreme Court of Texas did not issue a written opinion. In re Doe 5, (00-0636); In re Doe 6, (00-0801); In re Doe 7, (00-1242); In re Doe 8, (01-0705); and In re Doe 9, (02-0132). Owen Writes for Majority While Dissent Points to Parental Notification Statute TAB 10 Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000). Buffer Zones Around Abortion Clinics TAB 11 Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc., 975 S.W.2d 546 (Tex. 1998). TAB 12 Media clips covering the buffer zone cases. Houston Chronicle, July 4, 1998; and Austin American-Statesman, July 4, 1998. Rider Barring Use of State Funds to Dispense Drugs to Minors Without Parental Consent TAB 13 Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439 (Tex. 1998). EXT-18-2091-D-000021 007104-001897 Document ID: 0.7.19343.7614-000001 Sales, Nathan Sales, Nathan Friday, July 19, 2002 2:14 PM Brett Kavanaugh (E-mail); Anne Womack (E-mail); Heather Wingate (E-mail) Willett, Don; Remington, Kristi L; Koebele, Steve; Charnes, Adam; Keefer, Wendy J Subject: Owen's opening statement Attachments: Owen opening statement 2.doc From: Sent: To: Cc: All, Here's a proposed draft for Owen's opening statement. (b) (5) Thanks, Nathan EXT-18-2091-D-000022 007104-001898 Document ID: 0.7.19343.5088 Sales, Nat han From : Sales, Nathan Sent : Wednesday, July 17, 200210:45 AM To : Dinh1 Viet; 'Heather _ Wingate@who.eop.gov '; 'Brett _ M._ Kavanaugh@who.eop .gov' Cc: Willett, Don; Ko-ebele, Steve; Remington, Kristi L; 'Anne_ Womack@who.eop.gov'; Keefer, Wendy J Subject: RE: Administration Documen t on Owen to give to Re-pubs and De-ms The purple kool-aid is start ing to look mighty refres hing to Kristi, Steve, and I. - Original Message--From: Dinh, Viet Sent: Wednesday, July 17, 2002 10:44 AM To: 'Heather_Wingate@who.eop.gov'; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Willett , Don; Sales, Nathan; Koebele, Steve; 'Anne_Woma ck@who.eop.gov'; Keefer, Wendy J Subject: RE: Administration Document on Owen to give to Re-pubs and Dems Okay, then let's re-prioritize accordingly. Don and Wendy , please ensure adequate staff support-I fear that Nathan is about to die in his office. thanks --Original Message- -From: Heather_ Wingate@who.eop.gov {mailto:Heather _ Wingate@who.eop.gov] Sent: Wednesday, July 17, 200210:01 AM To: Brett_M._Kavanaugh@who.eop.gov Cc: Willett , Don; Sales, Nathan; Koebele, Steve ; Dinh, Viet; Heather_ Wingate@who.eop.gov; Anne_ Womack@who.eop.gov Subject: Re: Administration Document on Owen to give to Re-pubs and De-ms EXT-18-2091-D-000023 007 104- 001899 Document ID: 0.7.19343.5075 Sales , Nathan From : Sales, Nathan Sent : Friday, July 19, 2002 2:21 PM To: Willett, Don; Remington, Kristi L; 'Brett_M._Kavanaugh@who.e-op.gov' Cc: Charnes, Adam; Koebele, Steve; 'Heather Wingate (E-mail)'; Keefer, Wendy J Subject : RE: FW: Administration Document on Owen to give to Repubs and Dems Roger. -Original Message-From: Willett, Don Sent: Friday, July 19, 2002 2:20 PM To: Sales, Nathan; Remington, Kristi L; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Koebele, Steve; 'Heathe r Wingate (E-mail)'; Keefer, Wendy J Subject: RE: FW: Administration Document on Owen to give to Repubs and Oems --Ori ginal Message- -From: Sales, Nathan Sent: Friday, July 19, 2002 2:17 PM To: Willett , Don; Remington, Kristi L; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Koebele, Steve; 'Heath er Wingate (E-mail) '; Keefer, Wendy J Subject: RE: FW: Administration Document on Owen to give to Repubs and Oems Sounds good. The 3-pager on , etc. cases is done. I'll tackle the - . -Original Message-From: Willett, Don Sent: Friday, July 19, 2002 2:15 PM To: Sales, Nathan; Remington, Kristi L; 'Brett_M._Kavanaugh@who.e-op.gov' Cc: Charnes, Adam; Koebele, Steve; Heather Wingate (E-mail); Keefer, Wendy J Subject: RE: FW: Administration Document on Owen to give to Re-pubs and Dems EXT-18-2091-D-000024 0071 04-001900 Documen t ID: 0.7.19343 .5097 - Original Message- From: Sales, Nathan Sent: Friday, July 19, 2002 2:02 PM To: Willett , Don; Remington, Krist i L; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes , Adam; Koebele, Steve Subject: RE: FW: Administration Document on Owen to give to Repubs and Oems I don 't think it's possib le to do a one-pager for every s ing le case cited by the Dems. -Or iginal Message--From: Willett , Don Sent: Friday, July 19, 2002 1:55 PM To: Remington, Krist i L; 'Brett_M._Kavanaugh@ who.eop.gov ' Cc: Charnes , Adam; Sales, Nathan ; Koebele, Steve Subject: RE: FW: Administrat ion Document on Owen to give to Repubs and Oems Everyone, Brett and I just spoke. Brett , pis. corre ct me if I get any of this wrong. -. EXT-18-2091-D-000025 007 104-001901 Documen t ID: 0.7.19343 .5097 -. ORW - Original Message- From: Remington, Kristi L Sent: Friday, July 19, 2002 1:37 PM To: ' Brett_M._Kavanaugh@who.e-op.gov '; Willett , Don Cc: Charnes , Adam ; Sales, Nathan ; Koebele, Steve Subject: RE: FW: Administration Document on Owen to give to Repubs and Dems - Original MessageFrom: Brett_M._Kavanaug h@who.eop.go v [mailto:8rett _ M._ Kavanaugh@who.eop.gov] Sent: Friday, July 19, 2002 1:06 PM To: Willett , Don Cc: Charnes , Adam; Remington , Krist i L; Sales , Nathan; Koebele, Steve Subject: Re: FW: Administ ration Document on Owen to give to Repubs and Oems (Embedded image moved "Willett, Don" to file: 07/ 19/ 2002 01:02:01 PM pic08380.pcx) Recor d Type: Record EXT-18-2091-D-000026 007 104-001902 Document ID: 0.7.19343 .5097 To: Brett M. Kavanaugh/WH0/ E0P@E0P cc: "Remington, Kristi L" (Receipt Notification Requested) (1PMReturn Requested), "Sales, Nathan " (Receipt Notification Requested) (1PMReturn Requested) , "Koebele, Steve" (Receipt Notification Requested) (1PMReturn Requested), "Charnes , Adam" (Receipt Notification Requested) (1PMReturn Requested) Subject: FW: Administration Document on Owen to give to Repubs and Dems Brett, see below. Did you env ision We're trying to decipher what you have in mind for that part of your proposed outline. -Original Message-From: Willett , Don Sent: Friday, July 19, 2002 12:25 PM To: Remington, Kristi L; Sales , Nathan; Koebele, Steve Subject: FW: Administration Document on Owen to give to Repubs and Dems - : Does Brett's proposed outline for the - materials (below) envision puttin DRW -Original MessageFrom: Brett_ M._ Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanaugh@who.eop.gov] Sent: Wednesday, July 17, 2002 10:01 AM To: Heather_ Wingate@who.eop.gov Cc: Willett , Don; Sales, Nathan; Koebele, Steve; Dinh, Viet; Heather _ Wingate@who.eop.gov; Anne_ Womack@who.eop.gov Subject: Re: Administration Document on Owen to give to Repubs and Dems I agree with Heather. I think it would be great to EXT-18-2091-D-000027 007 104-001903 Documen t ID: 0.7.19343 .5097 Heather Wingate 07/17/2002 09:40:56 AM Record Type: Record To: Brett M. Kavanaugh/WHO/EOP@EOP cc: See the distribution list at the bottom of this message bee: Subject: Re: Administration Document on Owen to give to Repubs and Dems (Document link: Brett M. Kavanaugh) Brett M. Kavanaugh 07/17/2002 08:58:43 AM Record Type: Record To: "Sales, Nathan" cc: See the distribution list at the bottom of this message bee: Subject: Re: Administration Document on Owen to give to Repubs and Dems (Document link: Heather Wingate} Maybe a goal of (Embedded image moved "Sales, Nathan" PM pic21603.pcx) n _ - _l 'T' - _n __ to file: 07/16/2002 10:26:03 -- 1 EXT-18-2091-D-000028 007 104-001904 Documen t ID: 0.7.19343.5097 Kecora , ype : Kecora To: See the distribution list at the bottom of this message cc: Subject: Re: Administration Document on Owen to give to Repubs and Dems This sounds like a good idea to me. We def inite ly can put this together, but t iming may be a bit of an issue . OLP is currently - Original Message- -From: Heather_ Wingate@who.eop .gov To: Willett , Don ; Sales, Nathan ; Koebele, Steve ; Dinh, Viet ; Brett_ M._ Kavanaugh@who.eop.gov ; Anne_ Womack@who .eop.gov Sent: Tue Jul 16 22 :07:57 2002 Subject: Re: Administration Document on Owen to give to Repubs and Oems Origina l Messa ge .From:Brett M. Kavanaugh / WHO/EOP To: , , , anne woma ck/who/ eop@eop , nathan.sa les@usdoj.gov , Heathe r Wingate/WHO / EOP@EOP Cc: Date: 07/ 16/ 2002 07:30:59 PM Subject: Administration Document on Owen to give to Repubs and Dems -. EXT-18-2091-D-000029 007 104-001905 Document ID: 0.7.19343 .5097 (largely done) (also with a 1-page summary of each major subject matter- again largely done} [this part Message Sent To:___________________________ _ "Willett, Don" "Koebele, Steve" "Dinh, Viet" Heather Wingate/WHO/EOP@EOP Brett M. Kavanaugh/WHO/EOP@EOP Anne Womack/WHO/EOP@EOP Message Copie d To:___________________________ _ "willett, don" "koebele, steve" "dinh, viet" heather wingate/who/eop@eop anne womack/who/eop@eop Message Copied To:___________________________ "--o-- __ ...L. __ 11 ___ ,.__L __ --1--r-\ . . -J-! -- _ ~~- EXT-18-2091-D-000030 007 104-001906 Document ID: 0.7.19343 .5097 sa1es, naman -.:.naman.sa1es(!:!)usaoJ .gov;,- "willett, don" "koebele, steve" "dinh, viet" heather wingate/who/eop@eop anne womack/who/eop@eop EXT-18-2091-D-000031 007 104-001907 Document ID: 0.7.19343 .5097 Koebele, Steve From: Sent: To: Cc: Subject: Attachments: Koebele, Steve Monday, July 22, 2002 8:44 PM 'brett_m._kavanaugh@who.eop.gov'; Willett, Don Dinh, Viet; Charnes, Adam; Remington, Kristi L Cases - Length of Time at TX S CT Ford v. Miles-Other Case Wait-Rev.xls Brett -- Following up on the Ford v Miles case, attached is a breakdown of cases and the lenth of wait at the Supreme Court of Texas (far right hand column provides the number of days). Ford Motor v. Mile is 173rd longest time on the Court. Thank you, Steve. EXT-18-2091-D-000032 007104-001908 Document ID: 0.7.19343.8124 677ef933299a478c85ccf194acf33b52 Number Style Granted 94-0287 State Farm Lloyds v. Nicolau 06/15/94 07/09/97 1120 94-0325 Healthtrust, Inc. v. Caldwell 06/22/94 05/16/97 1059 94-0329 St. Paul Fire & Marine Ins. Co. v. Caldwell 06/22/94 05/16/97 1059 94-0385 Healthtrust, Inc. v. Caldwell 06/22/94 05/16/97 1059 D-0446 Foremost Paving, Inc. v. Lopez 02/06/91 11/24/93 1022 C-9639 Chapa v. Garcia 03/21/90 12/31/92 1016 C-6649 Amarillo Oil Co. v. Energy-Agri Prod., Inc. 09/23/87 06/27/90 1008 C-6733 Kinerd v. Colonial Leasing Co. 02/24/88 11/14/90 994 C-9343 State Dept. of Highways v. Payne 04/04/90 12/22/92 993 C-9502 Minton v. Perez 03/21/90 11/11/92 966 C-8576 Travis v. City of Mesquite 10/25/89 05/20/92 938 D-1507 Transportation Ins. Co. v. Moriel 12/11/91 06/08/94 910 C-6617 DeSantis v. Wackenhut Corp. 12/16/87 06/06/90 903 C-8405 Alvarado v. Farah Mfg. Co. 09/20/89 03/11/92 903 C-9343 State Dept. of Highways v. Payne 04/04/90 09/23/92 903 C-7376 Bowman v. Lumberton Indep. School Dist. 07/13/88 12/31/90 901 D-2022 Texas Educ. Agency v. Leeper 10/07/92 03/16/95 890 D-1239 American Physicians Ins. Exchange v. Garcia 10/16/91 03/09/94 875 D-0184 Twyman v. Twyman 12/19/90 05/05/93 868 C-6007 Day & Co. v. Texland Petroleum, Inc. 10/28/87 03/07/90 861 95-1159 Uniroyal Goodrich Tire Co. v. Martinez 06/14/96 10/15/98 853 02/24/88 06/20/90 847 01/27/00 05/23/02 847 C-6733 Kinerd v. Colonial Leasing Co. 99-0673 Rocor Int'l, Inc. v. National Union Fire Ins. Co. Issued Time C-7480 Stauffer v. Henderson 09/14/88 12/31/90 838 C-9403 Walker v. Packer 01/24/90 05/07/92 834 C-6000 Sun Exploration & Prod. Co. v. Jackson 07/15/87 10/25/89 833 97-0954 City of Midland v. O'Bryant 03/13/98 06/15/00 825 95-0355 Schlumberger Technology Corp. v. Swanson 09/14/95 12/11/97 819 12/12/90 03/03/93 812 11/15/96 02/04/99 811 D-1794 HL Farm Corp. v. Self 03/11/92 05/11/94 791 D-1507 Transportation Ins. Co. v. Moriel 12/11/91 02/02/94 784 95-0969 Hyundai Motor Co. v. Alvarado 04/12/96 06/05/98 784 99-0313 Barnett v. Barnett 10/21/99 12/06/01 777 D-1693 Exxon Corp. v. Chick Kam Choo 04/29/92 06/08/94 770 C-7339 Martin v. Credit Protection Ass'n, Inc. 05/04/88 06/06/90 763 C-9403 Walker v. Packer 01/24/90 02/19/92 756 D-0715 McRoberts v. Ryals 06/05/91 06/30/93 756 D-1326 C&H Nationwide, Inc. v. Thompson 05/27/92 06/22/94 756 96-1154 Quick v. City of Austin 09/04/97 09/30/99 756 97-0954 City of Midland v. O'Bryant 03/13/98 04/06/00 755 D-0872 State v. Flag-Redfern Oil Co. 05/01/91 05/19/93 749 D-0874 State v. Rutherford Oil Corp. 05/01/91 05/19/93 749 06/14/96 07/03/98 749 D-3173 Krishnan v. Sepulveda 06/03/93 06/15/95 742 C-9989 May v. United Services Ass'n 12/12/90 12/22/92 741 D-4561 Saenz v. Fidelity & Guar. Ins. Underwriters 06/08/94 06/14/96 737 D-0740 Valenzuela v. Aquino 05/01/91 05/05/93 735 D-0296 Greathouse v. Charter Nat'l Bank-Southwest 12/19/90 12/22/92 734 C-9556 Texas Ass'n of Business v. Texas Air Control Bd. 96-0583 X.L. Ins. Co. v. Mehaffy 95-1159 Uniroyal Goodrich Tire Co. v. Martinez 94-0992 Universe Life Ins. Co. v. Giles 07/07/95 07/09/97 733 95-0085 Morgan Stanley & Co. v. Texas Oil Co. 06/22/95 06/20/97 729 94-0856 Vesecky v. Vesecky 12/08/94 11/15/96 708 Page 1 EXT-18-2091-D-000033 007104-001909 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-0756 Graff v. Beard 06/19/91 05/19/93 700 D-1794 HL Farm Corp. v. Self 03/11/92 02/09/94 700 97-1027 Osterberg v. Peca 03/13/98 02/10/00 699 97-1027 Osterberg v. Peca 03/13/98 02/03/00 692 D-2775 Celtic Life Ins. Co. v. Coats 12/16/92 11/03/94 687 D-0235 William H. McGee & Co. v. Schick 01/23/91 12/09/92 686 D-0963 Boyles v. Kerr 06/19/91 05/05/93 686 D-1903 Ruiz v. Conoco, Inc. 03/25/92 02/09/94 686 03/26/98 02/10/00 686 C-7291 Eckman v. Centennial Sav. Bank 04/13/88 02/21/90 679 D-2830 Public Utility Comm'n v. GTE-Southwest, Inc. 06/09/93 04/13/95 673 D-0872 State v. Flag-Redfern Oil Co. 05/01/91 03/03/93 672 D-0874 State v. Rutherford Oil Corp. 05/01/91 03/03/93 672 02/09/96 12/11/97 671 D-0650 Railroad Comm'n v. Lone Star Gas Co. 03/06/91 12/31/92 666 D-3096 Prudential Ins. Co. v. Jefferson Assoc., Ltd. 05/19/93 03/16/95 666 06/22/94 04/18/96 666 03/11/92 01/05/94 665 05/18/94 03/07/96 659 D-1006 State v. Schmidt 01/08/92 10/27/93 658 D-1509 State v. Austex, Ltd. 01/08/92 10/27/93 658 97-1068 Dubai Petroleum Co. v. Kazi 03/26/98 01/06/00 651 99-0793 Lee Lewis Constr., Inc. v. Harrison 03/09/00 12/20/01 651 96-1201 State Farm Mut. Auto. Ins. Co. v. Traver 03/21/97 12/31/98 650 04/29/92 02/02/94 644 98-1128 Pustejovsky v. Pittsburgh Corning Corp. 02/25/99 11/30/00 644 95-1036 Merrell Dow Pharmaceuticals, Inc. v. Havner 02/09/96 11/13/97 643 94-0008 Amstadt v. United States Brass Corp. 06/08/94 03/07/96 638 94-0123 United States Brass Corp. v. Andraus 06/08/94 03/07/96 638 C-8282 Southwestern Bell Telephone Co. v. Delanney 09/20/89 06/19/91 637 D-1235 Forbau v. Aetna Life Ins. Co. 04/08/92 01/05/94 637 06/22/94 03/14/96 631 D-0489 Russell v. Ingersoll-Rand Co. 01/23/91 10/14/92 630 C-6007 Day & Co. v. Texland Petroleum, Inc. 10/28/87 07/12/89 623 D-1693 Exxon Corp. v. Chick Kam Choo 04/29/92 01/12/94 623 10/01/98 06/15/00 623 10/19/88 07/03/90 622 11/03/94 07/12/96 617 C-7641 Higginbotham v. General Life & Accident Ins. Co. 02/01/89 10/10/90 616 C-7796 Wilson v. Dunn 02/15/89 10/24/90 616 C-7910 Raborn v. Davis 10/19/88 06/27/90 616 D-1349 Sage Street Assoc. v. Northdale Constr. Co. 10/23/91 06/30/93 616 D-1639 Exxon Corp. v. Tidwell 04/01/92 12/08/93 616 D-2022 Texas Educ. Agency v. Leeper 10/07/92 06/15/94 616 D-4260 Werner v. Colwell 11/24/93 08/01/95 615 C-7286 Mitchell v. Missouri-Kansas-Texas R.R. 06/22/88 02/21/90 609 C-7551 Southwestern Bell Telephone Co. v. FDP Corp. 10/18/89 06/19/91 609 C-8367 Guardian Royal Exchange Assurance, Ltd. v. English China Clays 06/28/89 02/27/91 609 95-1014 City of Tyler v. Likes 04/12/96 12/11/97 608 96-0079 Murphy v. Campbell 04/12/96 12/11/97 608 10/12/88 06/06/90 602 97-1068 Dubai Petroleum Co. v. Kazi 95-1036 Merrell Dow Pharmaceuticals, Inc. v. Havner 94-0278 Lenape Resources Corp. v. Tennessee Gas Pipeline Co. D-1794 HL Farm Corp. v. Self 94-0023 United States Brass Corp. v. Kochie D-1693 Exxon Corp. v. Chick Kam Choo 94-0433 Computer Assoc. Int'l, Inc. v. Altai, Inc. 98-0685 FM Properties Operating Co. v. City of Austin C-7880 Wingate v. Hajdik 94-0781 State Farm Fire & Cas. Co. v. Gandy C-7805 Juliette Fowler Homes, Inc. v. Welch Assoc., Inc. 94-1124 Minnesota Mining & Mfg. Co. v. Nishika Ltd. 02/09/96 10/02/97 601 95-1291 Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc. 05/31/96 01/16/98 595 Page 2 EXT-18-2091-D-000034 007104-001910 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 96-0287 Owens-Corning Fiberglas Corp. v. Malone 10/18/96 06/05/98 595 96-0512 Owens-Corning Fiberglas Corp. v. Wasiak 10/18/96 06/05/98 595 D-3733 City of La Porte v. Barfield 09/10/93 04/27/95 594 D-3836 City of La Porte v. Prince 09/10/93 04/27/95 594 D-4100 Mosley v. Employers Cas. Co. 02/02/94 09/14/95 589 11/09/95 06/20/97 589 D-0671 Keetch v. Kroger Co. 04/24/91 12/02/92 588 C-8910 Stewart Title Guaranty Co. v. Sterling 06/13/90 01/15/92 581 D-1742 In re J.W.T. 07/01/92 02/02/94 581 96-0881 Bristol-Myers Squibb Co. v. Marshall 12/13/96 07/14/98 578 96-0931 Ethyl Corp. v. Stone 12/13/96 07/14/98 578 11/14/90 06/10/92 574 00-0081 Johnson v. Brewer & Pritchard 08/24/00 03/21/02 574 95-0771 Mayhew v. Town of Sunnyvale 08/16/96 03/13/98 574 D-0992 State v. Durham 09/05/91 03/31/93 573 D-0650 Railroad Comm'n v. Lone Star Gas Co. 03/06/91 09/23/92 567 96-0244 Johnson & Higgins of Texas, Inc. v. Keneco Energy, Inc. 06/28/96 01/16/98 567 96-1131 In re EPIC Holdings, Inc. 06/12/97 12/31/98 567 96-1133 In re George 06/12/97 12/31/98 567 C-9115 Joachim v. First Court of Appeals 11/15/89 05/30/91 561 D-2747 Oliver v. Oliver 11/18/92 06/02/94 561 D-4260 Werner v. Colwell 11/24/93 06/08/95 561 D-0296 Greathouse v. Charter Nat'l Bank-Southwest 12/19/90 07/01/92 560 11/30/00 06/13/02 560 05/30/91 12/09/92 559 12/13/96 06/23/98 557 94-1317 Federal Sign v. Texas Southern Univ. D-0180 Larsen v. FDIC 00-0325 Mariner Fin. Group v. Bossley D-0571 Hines v. Hash 96-0986 Latham v. Castillo D-2786 Natividad v. Alexsis, Inc. 10/21/92 04/28/94 554 D-0138 Delaney v. University of Houston 10/24/90 04/29/92 553 D-2775 Celtic Life Ins. Co. v. Coats 12/16/92 06/22/94 553 C-7611 Eye-Site, Inc. v. Blackburn 03/22/89 09/19/90 546 C-8910 Stewart Title Guaranty Co. v. Sterling 06/13/90 12/11/91 546 D-0732 Westgate, Ltd. v. State 06/05/91 12/02/92 546 D-1326 C&H Nationwide, Inc. v. Thompson 05/27/92 11/24/93 546 97-0182 Northern Natural Gas Co. v. Conoco, Inc. 10/02/97 04/01/99 546 98-0968 Texas Ass'n of Counties Pool v. Matagroda County 06/24/99 12/21/00 546 03/25/92 09/19/93 543 96-0425 General Tire, Inc. v. Kepple 12/13/96 06/05/98 539 98-1076 Golden Eagle Archery, Inc. v. Jackson 01/07/99 06/29/00 539 D-4131 Smithkline Beecham Corp. v. Doe 02/02/94 07/21/95 534 D-4353 National Union Fire Ins. Co. v. CBI Industries, Inc. 04/20/94 10/05/95 533 C-6649 Amarillo Oil Co. v. Energy-Agri Prod., Inc. 09/23/87 03/08/89 532 C-7743 Dow Chem. Co. v. Alfaro 11/16/88 05/02/90 532 C-8282 Southwestern Bell Telephone Co. v. Delanney 09/20/89 03/06/91 532 C-9128 Peat Marwick Main & Co. v. Haass 03/28/90 09/11/91 532 C-9611 Orange County v. Ware 06/06/90 11/20/91 532 D-0963 Boyles v. Kerr 06/19/91 12/02/92 532 96-0244 Johnson & Higgins of Texas, Inc. v. Keneco Energy, Inc. 06/28/96 12/11/97 531 94-1227 American Tobacco Co. v. Grinnell 01/11/96 06/20/97 526 C-6821 Donwerth v. Preston II Chrysler-Dodge, Inc. 01/27/88 07/05/89 525 C-7446 Chenault v. Bexar County Commissioners Court 07/13/88 12/20/89 525 C-7806 Gorman v. Life Ins. Co. of North America 10/18/89 03/27/91 525 C-9343 State Dept. of Highways v. Payne 04/04/90 09/11/91 525 D-0233 MBank El Paso v. Sanchez 01/23/91 07/01/92 525 D-1903 Ruiz v. Conoco, Inc. Page 3 EXT-18-2091-D-000035 007104-001911 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 98-0479 Continental Cas. Ins. Co. v. Functional Restoration Assocs. 10/29/98 04/06/00 525 98-0539 Ford Motor Co. v. Sheldon 12/03/98 05/11/00 525 96-1201 State Farm Mut. Auto. Ins. Co. v. Traver 03/21/97 08/25/98 522 98-0218 Crown Life Ins. Co. v. Casteel 08/25/98 01/27/00 520 05/06/92 10/06/93 518 99-0273 Williams v. Lara 01/27/00 06/28/01 518 95-1036 Merrell Dow Pharmaceuticals, Inc. v. Havner 02/09/96 07/09/97 516 94-0504 Concord Oil Co. v. Pennzoil Exploration & Production Co. 05/25/95 10/18/96 512 C-8203 Eagle Properties, Ltd. v. Scharbauer 11/01/89 03/27/91 511 C-9294 Transamerican Natural Gas Corp. v. Powell 01/24/90 06/19/91 511 D-3000 Goodyear Tire & Rubber Co. v. Portilla 01/27/93 06/22/94 511 95-0515 Heritage Resources, Inc. v. NationsBank 10/27/95 03/21/97 511 95-1344 Edward D. Jones & Co. v. Fletcher 12/13/96 05/08/98 511 96-0545 Ford Motor Co. v. Miles 10/25/96 03/19/98 510 C-8271 Sun Marine Terminals, Inc. v. Artoc Bank & Trust, Ltd. 04/19/89 09/06/90 505 C-7551 Southwestern Bell Telephone Co. v. FDP Corp. 10/18/89 03/06/91 504 D-0503 LeLeaux v. White 12/12/90 04/29/92 504 00-0037 Monsanto Co. v. Boustany 11/09/00 03/28/02 504 97-0654 American Home Prods. Corp. v. Ramirez 08/15/97 12/31/98 503 97-0655 American Home Prods. Corp. v. Tanner 08/15/97 12/31/98 503 97-1027 Osterberg v. Peca 03/13/98 07/29/99 503 94-0989 Juhl v. Airington 02/16/95 06/28/96 498 94-1233 Tilton v. Marshall 03/02/95 07/12/96 498 C-7743 Dow Chem. Co. v. Alfaro 11/16/88 03/28/90 497 C-7744 Moreno v. Sterling Drug, Inc. 11/16/88 03/28/90 497 C-9438 Braden v. Downey 02/07/90 06/19/91 497 D-0477 Weirich v. Weirich 02/13/91 06/24/92 497 D-0562 Holt Atherton Industries, Inc. v. Heine 02/06/91 06/17/92 497 12/03/98 04/13/00 497 C-7910 Raborn v. Davis 10/19/88 02/21/90 490 D-2393 State v. Morales 09/09/92 01/12/94 490 10/02/97 02/04/99 490 C-6817 Summers v. Consolidated Capital Special Trust 02/24/88 06/21/89 483 C-6820 Lee v. Key West Towers, Inc. 02/24/88 06/21/89 483 D-1001 Caballero v. Central Power & Light Co. 01/22/92 05/19/93 483 D-1183 Dreyer v. Greene 07/01/92 10/27/93 483 D-2501 Guynes v. Galveston County 07/01/92 10/27/93 483 96-0194 Texas Mexican Ry. v. Bouchet 10/18/96 02/13/98 483 98-1107 Wal-Mart Stores, Inc. v. Sturges 11/12/99 03/08/01 482 95-0342 Salinas v. Rafati 03/07/96 06/27/97 477 01/30/91 05/20/92 476 97-1162 Owens Corning v. Carter 03/13/98 07/01/99 475 97-1163 Owens Corning v. Carroll 03/13/98 07/01/99 475 97-1164 Owens Corning v. Aday 03/13/98 07/01/99 475 97-1165 Owens Corning v. Chandler 03/13/98 07/01/99 475 97-1166 Owens-Corning Fiberglas Corp. v. Deford 03/13/98 07/01/99 475 C-6880 State v. Thomas 11/04/87 02/15/89 469 C-7806 Gorman v. Life Ins. Co. of North America 10/18/89 01/30/91 469 C-8081 Martinez v. Second Injury Fund 01/25/89 05/09/90 469 C-8323 Cathey v. Metropolitan Life Ins. Co. 10/18/89 01/30/91 469 97-1171 In re Alford Chevrolet-Geo 02/26/98 06/10/99 469 97-0944 Brewerton v. Dalrymple 03/13/98 06/24/99 468 02/26/92 06/03/93 463 D-2197 Richards v. League of United Latin American Citizens 98-0617 City of Garland v. The Dallas Morning News 97-0403 HECI Exploration Co. v. Neel D-0560 Hughston v. Williams Constr. Corp. D-1799 General Chem. Corp. v. De La Lastra Page 4 EXT-18-2091-D-000036 007104-001912 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-8843 Schroeder v. Texas Iron Works, Inc. 03/07/90 06/12/91 462 D-1893 Bailey v. Cherokee County Appraisal Dist. 06/24/92 09/29/93 462 00-0625 Southwestern Elec. Power Co. v. Grant 12/21/00 03/28/02 462 94-0856 Vesecky v. Vesecky 12/08/94 03/14/96 462 95-0444 Arthur Andersen & Co. v. Perry Equip. Corp. 02/09/96 05/16/97 462 95-0744 Little v. Smith 10/27/95 01/31/97 462 97-1168 Ingersoll-Rand Co. v. Valero Energy Corp. 05/21/98 08/26/99 462 98-0028 GTE Southwest, Inc. v. Bruce 03/26/98 07/01/99 462 98-0154 Southwestern Ref. Co. v. Bernal 02/04/99 05/11/00 462 98-0408 Mallios v. Baker 10/01/98 01/06/00 462 95-0934 Bohatch v. Butler & Binion 10/18/96 01/22/98 461 96-1092 Pilarcik v. Emmons 01/10/97 04/14/98 459 03/30/94 06/29/95 456 03/07/96 06/06/97 456 C-7482 Willard Goolsby, Inc. v. Bright Banc Savings Ass'n 11/30/88 02/28/90 455 D-0201 Gifford-Hill & Co. v. Wise County Appraisal Dist. 01/23/91 04/22/92 455 D-0494 Henry S. Miller Co. v. Bynum 04/03/91 07/01/92 455 D-0599 In the Interest of S.A.V. & K.E.V. 04/03/91 07/01/92 455 D-2388 Wal-Mart Stores, Inc. v. Alexander 09/09/92 12/08/93 455 D-2475 Wilson v. Winsett 09/09/92 12/08/93 455 96-0675 Worthy v. Collagen Corp. 11/15/96 02/13/98 455 97-1044 Fleming Foods of Texas, Inc. v. Sharp 09/10/98 12/09/99 455 97-0648 Hyundai Motor Co. v. Rodriguez 03/13/98 06/10/99 454 95-1257 United States Government v. Marks 04/12/96 07/09/97 453 95-1273 Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. 04/12/96 07/09/97 453 D-1090 Diamond Shamrock Refining & Marketing Co. v. Mendez 10/09/91 12/31/92 449 C-8467 Williams v. Khalaf 09/06/89 11/28/90 448 99-0406 Lehmann v. Har-Con Corp. 11/12/99 02/01/01 447 99-0461 Harris v. Harbour Title Co. 11/12/99 02/01/01 447 98-0130 Rhone-Poulenc, Inc. v. Steel 04/14/98 07/01/99 443 D-1239 American Physicians Ins. Exchange v. Garcia 10/16/91 12/31/92 442 D-2378 Timberlawn Psychiatric Hosp. v. Hall 07/01/92 09/16/93 442 04/13/95 06/28/96 442 C-6957 Public Utility Comm'n v. AT&T Communications, Inc. 04/27/88 07/12/89 441 C-7655 Coulson v. Lake LBJ Municipal Util. Dist. 09/28/88 12/13/89 441 D-0040 National Union Fire Ins. Co. v. Dominguez 10/21/92 01/05/94 441 D-1742 In re J.W.T. 07/01/92 09/15/93 441 D-2003 Eli Lilly & Co. v. Marshall 01/29/92 04/14/93 441 D-3078 Director, State Employees Workers' Compensation Div. v. Evans 02/24/93 05/11/94 441 96-1091 Schlueter v. Schlueter 04/18/97 07/03/98 441 97-1052 Houston Lighting & Power Co. v. Auchan USA Inc. 03/26/98 06/10/99 441 98-0679 Tune v. Texas Dept. of Pub. Safety 04/22/99 07/06/00 441 D-4413 Texas Dept. of Human Serv. v. Hinds 03/30/94 06/08/95 435 C-9979 Caller-Times Pub. Co. v. Triad Communications, Inc. 12/19/90 02/26/92 434 D-0107 Phillips v. Phillips 10/03/90 12/11/91 434 D-0619 State v. Windham 04/03/91 06/10/92 434 D-0692 State v. Dopyera 04/24/91 07/01/92 434 D-2003 Eli Lilly & Co. v. Marshall 01/29/92 04/07/93 434 95-1317 Burlington Northern R.R. v. TUCO, Inc. 04/12/96 06/20/97 434 96-1080 MCI Telecommunications Corp. v. Texas Util. Elec. Co. D-4454 State Farm Life Ins. Co. v. Beaston 95-1254 First USA Management, Inc. v. Esmond 94-1237 Cities for Fair Utility Rates v. Public Util. Comm'n 03/19/98 05/27/99 434 C-8576 Travis v. City of Mesquite 10/25/89 12/31/90 432 C-8405 Alvarado v. Farah Mfg. Co. 09/20/89 11/21/90 427 02/08/01 04/11/02 427 00-0337 In re A.D. Page 5 EXT-18-2091-D-000037 007104-001913 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 96-0249 Provident Amer. Ins. Co. v. Castaneda 10/30/97 12/31/98 427 11/01/89 12/31/90 425 05/11/94 07/07/95 422 C-6968 Sesco Prod. Co. v. Atex Pipe & Supply, Inc. 07/12/89 09/06/90 421 D-3058 R Communications, Inc. v. Sharp 03/03/93 04/28/94 421 D-4185 Parkway Co. v. Woodruff 04/20/94 06/15/95 421 D-4296 M.R. Champion, Inc. v. Mizell 01/05/94 03/02/95 421 02/16/95 04/12/96 421 C-7340 Texas Employment Comm'n v. Hughes Drilling Fluids 09/14/88 11/08/89 420 C-8400 Haddock v. Arnspiger 04/26/89 06/20/90 420 C-8984 Maxus Exploration Co. v. Moran Bros., Inc. 04/25/90 06/19/91 420 C-9328 Victoria Bank & Trust Co. v. Brady 04/25/90 06/19/91 420 D-0461 Jacobs v. Sellers 04/17/91 06/10/92 420 D-0689 First Baptist Church v. Bexar County Appraisal Review Bd. 04/17/91 06/10/92 420 D-0816 Heldenfels Bros., Inc. v. City of Corpus Christi 04/10/91 06/03/92 420 D-1325 Estate of Pollack v. McMurrey 05/06/92 06/30/93 420 D-2003 Eli Lilly & Co. v. Marshall 01/29/92 03/24/93 420 D-2197 Richards v. League of United Latin American Citizens 05/06/92 06/30/93 420 D-2474 Allstate Ins. Co. v. Watson 11/18/92 01/12/94 420 D-3088 Texas Instruments, Inc. v. Teletron Energy Mgmt., Inc. 02/24/93 04/20/94 420 D-3331 City of Lancaster v. Chambers 04/21/93 06/15/94 420 C-8147 Huston v. FDIC 94-0110 Republic Ins. Co. v. Stoker 94-1143 Continental Airlines, Inc. v. Kiefer 00-1003 Gage Van Horn & Assoc., Inc. v. Tatom 04/26/01 06/20/02 420 94-0245 Virginia Indonesia Co. v. Harris County Appraisal Dist. 09/08/94 10/27/95 414 C-7559 Guaranty Federal Savings Bank v. Horseshoe Operating Co. 03/22/89 05/09/90 413 C-7720 Intercontinental Consolidated Cos. v. University Sav. Ass'n 03/22/89 05/09/90 413 C-8203 Eagle Properties, Ltd. v. Scharbauer 11/01/89 12/19/90 413 C-8272 FDIC v. Coleman 04/26/89 06/13/90 413 C-9175 Vastine v. Bank of Dallas 03/07/90 04/24/91 413 D-0664 Lyons v. Millers Cas. Ins. Co. 10/21/92 12/08/93 413 D-1244 Centex Corp. v. Dalton 09/18/91 11/04/92 413 D-1574 First Nat'l Bank v. O'Dell 05/06/92 06/23/93 413 D-1576 National Tank Co. v. Brotherton 02/19/92 04/07/93 413 95-0522 San Antonio Idep. Sch. Dist. v. McKinney 10/27/95 12/13/96 413 97-0884 In re Masonite 04/30/98 06/17/99 413 97-0885 In re Masonite 04/30/98 06/17/99 413 99-0231 Bland Indep. Sch. Dist. v. Blue 10/21/99 12/07/00 413 99-0261 Torrington Co. v. Stutzman 11/04/99 12/21/00 413 03/30/94 05/11/95 407 03/30/95 05/10/96 407 C-6535 Rose v. Doctors Hosp. Facilities 11/08/89 12/19/90 406 C-8045 Glenn v. Narsutis 12/07/88 01/17/90 406 D-0092 Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp. 12/12/90 01/22/92 406 D-0592 Texas Educ. Agency v. Cypress-Fairbanks Indep. School Dist. 03/27/91 05/06/92 406 D-0671 Keetch v. Kroger Co. 04/24/91 06/03/92 406 D-1163 Elbaor v. Smith 10/23/91 12/02/92 406 D-2213 Dresser Indus., Inc. v. Lee 09/16/92 10/27/93 406 D-4374 Holloway v. Skinner 94-1329 Enron Corp. v. Spring Indep. Sch. Dist. 96-1077 Montgomery County Hosp. Dist. v. Brown 01/31/97 03/13/98 406 97-0812 In re Bay Area Citizens Against Lawsuit Abuse 10/30/97 12/10/98 406 97-1135 Bradley v. State ex rel. White 02/26/98 04/08/99 406 98-0617 City of Garland v. The Dallas Morning News 12/03/98 01/13/00 406 94-0041 Peeler v. Hughes & Luce 06/22/94 08/01/95 405 94-0278 Lenape Resources Corp. v. Tennessee Gas Pipeline Co. 06/22/94 08/01/95 405 95-1291 Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc. 05/31/96 07/09/97 404 Page 6 EXT-18-2091-D-000038 007104-001914 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-9256 Simpson v. Canales 02/28/90 04/03/91 399 C-9419 National Union Fire Ins. Co. v. Hudson Energy Co. 05/16/90 06/19/91 399 D-0679 Office of Public Utility Counsel v. Public Utility Comm'n 05/19/93 06/22/94 399 D-0946 Bandy v. First State Bank 05/08/91 06/10/92 399 D-2195 Chambers v. Conaway 09/23/92 10/27/93 399 D-2560 National County Mut. Fire Ins. Co. v. Johnson 09/23/92 10/27/93 399 D-2578 General Motors Corp. v. Saenz 11/04/92 12/08/93 399 D-3053 City of El Paso v. Public Utility Comm'n 05/19/93 06/22/94 399 D-3154 State v. Public Util. Comm'n 05/19/93 06/22/94 399 D-3155 State v. Public Util. Comm'n 05/19/93 06/22/94 399 95-0983 Lefmark Management Co. v. Old 04/12/96 05/16/97 399 95-1314 Friesenhahn v. Ryan 12/13/96 01/16/98 399 97-1168 Ingersoll-Rand Co. v. Valero Energy Corp. 05/21/98 06/24/99 399 98-0478 El Paso Natural Gas Co. v. Minco Oil & Gas, Inc. 10/15/98 11/18/99 399 98-0582 State v. $217,590 03/11/99 04/13/00 399 99-0366 Utts v. Short 11/04/99 12/07/00 399 96-0995 H. E. Butt Grocery Co. v. Bilotto 06/12/97 07/14/98 397 96-1095 Gross v. Innes 06/12/97 07/14/98 397 D-3465 Hoechst Celanese Corp. v. Chambers 05/05/93 06/02/94 393 D-4578 Star-Telegram, Inc. v. Doe 05/11/94 06/08/95 393 D-4603 St. John v. Pope 05/11/94 06/08/95 393 04/02/97 04/30/98 393 D-0732 Westgate, Ltd. v. State 06/05/91 07/01/92 392 D-1235 Forbau v. Aetna Life Ins. Co. 04/08/92 05/05/93 392 97-0276 State Bar of Texas v. Jefferson 00-1015 Board of Adjustment v. Wende 04/26/01 05/23/02 392 00-1127 Texas A&M Univ. v. Lawson 05/24/01 06/20/02 392 98-0907 In re Dallas Morning News, Inc. 11/19/98 12/16/99 392 99-0184 Abrams v. Jones 06/10/99 07/06/00 392 10/27/93 11/22/94 391 96-0001 Perry Homes Contractors, Inc. v. Patterson 02/09/96 03/06/97 391 97-1146 In re N.J.A. 06/05/98 07/01/99 391 97-0430 Ford Motor Co. v. Tyson 06/20/97 07/14/98 389 98-0159 Fuller-Austin Insulation Co. v. Estate of Bilder 08/25/98 09/16/99 387 94-0437 Hull State Bank v. Jones 06/22/95 07/12/96 386 95-0289 Romero v. State 06/22/95 07/12/96 386 97-0423 Smith Barney, Inc. v. Lindsay 06/12/97 07/03/98 386 C-7969 Burns v. Thomas 03/08/89 03/28/90 385 C-9317 Alexander Oil Co. v. City of Seguin 10/24/90 11/13/91 385 D-0526 Shoemake v. Fogel, Ltd. 02/06/91 02/26/92 385 D-2578 General Motors Corp. v. Saenz 11/04/92 11/24/93 385 00-0091 Shah v. Moss 11/30/00 12/20/01 385 00-0270 Churchill Forge, Inc. v. Brown 10/26/00 11/15/01 385 94-1065 Lewis & Lambert Metal Contractors, Inc. v. Jackson 12/22/95 01/10/97 385 96-0085 St. Luke's Episcopal Hosp. v. Agbor 05/31/96 06/20/97 385 96-0745 Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen 09/19/96 10/09/97 385 96-0839 Texas Boll Weevil Eradication Foundation, Inc. v. Abbott 09/19/96 10/09/97 385 97-0182 Northern Natural Gas Co. v. Conoco, Inc. 10/02/97 10/22/98 385 98-0363 Chilkewitz v. Hyson 10/01/98 10/21/99 385 98-1053 Prudential Ins. Co. of America v. Financial Review Servs., Inc. 06/10/99 06/29/00 385 12/08/93 12/22/94 379 D-3930 Union Bankers Ins. Co. v. Shelton D-4218 State Bar of Texas v. Gomez 94-0460 Ex parte Swate 04/27/95 05/10/96 379 C-7100 Texas Real Estate Commission v. Nagle 02/24/88 03/08/89 378 C-7286 Mitchell v. Missouri-Kansas-Texas R.R. 06/22/88 07/05/89 378 Page 7 EXT-18-2091-D-000039 007104-001915 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-8949 Evans v. Pollock 10/25/89 11/07/90 378 C-9832 McGraw v. Maris 02/06/91 02/19/92 378 D-0629 Johnson v. Lynaugh 06/19/91 07/01/92 378 D-0822 Attorney General v. Lavan 06/19/91 07/01/92 378 D-0863 State v. Malone Serv. Co. 04/17/91 04/29/92 378 D-1820 Ex parte Hall 03/25/92 04/07/93 378 D-1847 Wornick Co. v. Casas 06/17/92 06/30/93 378 D-1990 Smith v. Sewell 04/08/92 04/21/93 378 00-0070 Interstate Northborough Partnership v. State 10/12/00 10/25/01 378 96-1165 Stier v. Reading & Bates Corp. 03/26/98 04/08/99 378 98-1046 National Liab. & Fire Ins. Co. v. Allen 04/22/99 05/04/00 378 97-0827 Douglas v. Delp 03/13/98 03/25/99 377 98-0006 Rodriguez v. Service Lloyds Ins. Co. 06/23/98 07/01/99 373 98-0560 Fitzgerald v. Advanced Spine Fixation Sys., Inc. 06/23/98 07/01/99 373 94-0054 Barber v. Colorado Indep. Sch. Dist. 06/15/94 06/22/95 372 C-8181 Ortega v. First RepublicBank 02/22/89 02/28/90 371 C-8350 American Nat'l Petroleum Co. v. Transcontinental Gas Pipe Line Corp. 10/04/89 10/10/90 371 C-8669 Shumway v. Horizon Credit Corp. 01/10/90 01/16/91 371 D-1364 Bard v. Charles R. Myers Ins. Agency, Inc. 10/09/91 10/14/92 371 D-2003 Eli Lilly & Co. v. Marshall 01/29/92 02/03/93 371 00-0816 City of Corpus Christi v. Public Utility Comm'n 08/24/00 08/30/01 371 00-0821 Power Choice, Inc. v. Public Utility Comm'n 08/24/00 08/30/01 371 00-1152 King v. Dallas Fire Ins. Co. 05/24/01 05/30/02 371 00-1256 In re R.J.H. 05/24/01 05/30/02 371 95-1278 Green Int'l, Inc. v. Solis 05/31/96 06/06/97 371 96-0247 Texas Utils. Elec. Co. v. Timmons 06/14/96 06/20/97 371 99-0121 Lozano v. Lozano 03/02/00 03/08/01 371 99-1002 Bally Total Fitness Corp. v. Jackson 04/13/00 04/19/01 371 95-0692 Richey v. Brookshire Grocery Co. 07/08/96 07/09/97 366 98-0322 Drilex Systems, Inc. v. Flores 08/25/98 08/26/99 366 94-1198 Anderson Producing, Inc. v. Koch Oil Co. 05/11/95 05/10/96 365 D-0722 Bank One v. Moody 04/17/91 04/15/92 364 D-1090 Diamond Shamrock Refining & Marketing Co. v. Mendez 10/09/91 10/07/92 364 D-1339 State Farm Fire & Cas. Co. v. S.S. 07/01/92 06/30/93 364 D-1742 In re J.W.T. 07/01/92 06/30/93 364 D-1799 General Chem. Corp. v. De La Lastra 02/26/92 02/24/93 364 00-1309 Continental Cas. Co. v. Downs 06/07/01 06/06/02 364 98-1168 Gulf Ins. Co. v. Burns Motors, Inc. 04/22/99 04/20/00 364 99-0169 Horizon/CMS HealthCare Corp. v. Auld 08/26/99 08/24/00 364 99-0490 Fortune Prod. Co. v. Conoco, Inc. 12/02/99 11/30/00 364 02/17/90 02/13/91 361 96-1013 Liberty Mut. Ins. Co. v. Garrison Contractors, Inc. 04/18/97 04/14/98 361 97-0449 Mid Century Ins. Co. v. Lindsey 04/14/98 04/08/99 359 06/22/95 06/14/96 358 94-0777 General Motors Corp. v. Bloyed 02/16/95 02/09/96 358 95-1286 Smith v. Merrit 03/07/96 02/28/97 358 96-0123 City of Amarillo v. Martin 06/12/97 06/05/98 358 96-1246 Kolster v. City of El Paso 06/12/97 06/05/98 358 C-7687 Central Educ. Agency v. George West Indep. Sch. Dist. 10/12/88 10/04/89 357 C-9966 Remington Arms Co. v. Caldwell 06/27/90 06/19/91 357 D-2481 F/R Cattle Co. v. State 12/02/92 11/24/93 357 D-2501 Guynes v. Galveston County 07/01/92 06/23/93 357 D-3413 Ellis County State Bank v. Keever 06/30/93 06/22/94 357 C-9249 Bexar County Sheriff's Civil Serv. Commission v. Davis D-4202 Johnson & Johnson Medical, Inc. v. Sanchez Page 8 EXT-18-2091-D-000040 007104-001916 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 06/02/94 05/25/95 357 94-1229 Gulf States Utilities Co. v. Public Utility Comm'n D-4333 Corpus Christi People's Baptist Church, Inc. v. Nueces Co. App. Dist. 02/09/96 01/31/97 357 99-0728 Resendez v. Johnson 01/27/00 01/18/01 357 99-1118 City of Harlingen v. Sharboneau 05/25/00 05/17/01 357 97-0592 Temple-Inland Forest Prods. Corp. v. Carter 05/08/98 04/29/99 356 97-1208 Thapar v. Zezulka 07/03/98 06/24/99 356 94-0111 Ricardo N., Inc. v. De Argueta 06/22/94 06/08/95 351 94-0281 Doe v. Boys Club, Inc. 06/22/94 06/08/95 351 94-0433 Computer Assoc. Int'l, Inc. v. Altai, Inc. 06/22/94 06/08/95 351 C-7658 Sullivan v. Sullivan 04/05/89 03/21/90 350 C-8149 McIlvain v. Jacobs 06/28/89 06/13/90 350 D-0307 Federal Land Bank Ass'n v. Sloane 12/19/90 12/04/91 350 D-0570 Bryant v. Texas American Bank/Levelland 02/27/91 02/12/92 350 D-0946 Bandy v. First State Bank 05/08/91 04/22/92 350 D-1637 Chrysler Corp. v. Blackmon 10/30/91 10/14/92 350 00-1020 County of Cameron v. Brown 06/07/01 05/23/02 350 00-1206 In re Halliburton Co. 06/14/01 05/30/02 350 01-0008 American Cyanamid Co. v. Geye 06/21/01 06/06/02 350 94-1004 Texas Beef Cattle Co. v. Green 05/11/95 04/25/96 350 95-1073 Texarkana Memorial Hosp., Inc. v. Murdock 05/10/96 04/25/97 350 98-0946 Texas Workers' Compensation Ins. Fund v. Del Indus., Inc. 04/22/99 04/06/00 350 99-1114 Texas Natural Res. Conservation Comm'n v. IT Davy 04/26/01 04/11/02 350 97-0707 Read v. Scott Fetzer Co. 01/16/98 12/31/98 349 97-0729 KPMG Peat Marwick v. Harrison County Housing Finance Corp. 04/14/98 03/25/99 345 D-1893 Bailey v. Cherokee County Appraisal Dist. 06/24/92 06/03/93 344 C-8299 Murray v. San Jacinto Agency, Inc. 05/10/89 04/18/90 343 C-9548 Reagan v. Vaughn 03/28/90 03/06/91 343 D-0347 State v. Cantu 10/03/90 09/11/91 343 D-1213 American Centennial Ins. Co. v. Canal Ins. Co. 01/08/92 12/16/92 343 D-2885 Meador-Brady Mgmt. Corp. v. Texas Motor Vehicle Comm'n 12/16/92 11/24/93 343 00-0037 Monsanto Co. v. Boustany 11/09/00 10/18/01 343 00-1114 Texas Mun. League v. Texas Workers' Comp. Comm'n 04/26/01 04/04/02 343 95-0052 Benchmark Bank v. Crowder 03/30/95 03/07/96 343 96-0362 Deloitte & Touche v. Fourteenth Court of Appeals 06/28/96 06/06/97 343 97-0454 Clark v. Texas Home Health 06/27/97 06/05/98 343 97-1187 Mellon Mortgage Co. v. Holder 10/01/98 09/09/99 343 99-0667 Kenedy Memorial Foundation v. Dewhurst 01/13/00 12/21/00 343 D-3589 Fredonia State Bank v. General American Life Ins. Co. 06/30/93 06/02/94 337 D-3616 Browning-Ferris Indus., Inc. v. Lieck 06/30/93 06/02/94 337 D-4557 Texas Dept. of Pub. Safety Officers Ass'n v. Denton 05/11/94 04/13/95 337 01/11/96 12/13/96 337 D-3057 Jackson v. Thweatt 04/07/93 03/09/94 336 D-3437 Federal Debt Mgmt, Inc. v. Weatherly 04/07/93 03/09/94 336 00-0277 Collins v. Ison-Newsome 01/11/01 12/13/01 336 94-1017 Felts v. Harris County 02/16/95 01/18/96 336 94-1187 State v. Heal 02/16/95 01/18/96 336 95-0444 Arthur Andersen & Co. v. Perry Equip. Corp. 02/09/96 01/10/97 336 95-0939 Edinburg Hosp. Auth. v. Trevino 03/07/96 02/06/97 336 95-1064 Williams Indus., Inc. v. John F. Beasley Constr. Co. 06/14/96 05/16/97 336 95-1160 Trinity Universal Ins. Co. v. Cowan 06/14/96 05/16/97 336 98-0888 CMH Homes, Inc. v. Daenen 03/11/99 02/10/00 336 04/20/94 03/16/95 330 04/20/94 03/16/95 330 95-0827 Continental Coffee Products Co. v. Cazarez D-4559 Thomas v. Oldham 94-0207 Gibson v. Spinks Page 9 EXT-18-2091-D-000041 007104-001917 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-7889 Aluminum Co. of America v. Alm 03/08/89 01/31/90 329 C-8363 Goeke v. Houston Lighting & Power Co. 10/18/89 09/12/90 329 C-8805 Black v. Victoria Lloyds Ins. Co. 10/18/89 09/12/90 329 C-9979 Caller-Times Pub. Co. v. Triad Communications, Inc. 12/19/90 11/13/91 329 D-0124 DSC Finance Corp. v. Moffitt 10/24/90 09/18/91 329 D-0695 Psychiatric Institutes of America, Inc. v. O'Neill 01/23/91 12/18/91 329 D-1716 Rusk Indus., Inc. v. Hopkins County Tax Appraisal Dist. 02/26/92 01/20/93 329 D-2324 Remington Arms Co. v. Caldwell 05/20/92 04/14/93 329 96-0442 Dawson-Austin v. Austin 03/21/97 02/13/98 329 96-1224 Brown v. Shwarts 04/18/97 03/13/98 329 98-0857 Hernandez v. Tokai Corp. 10/01/98 08/26/99 329 99-0419 Turner v. KTRK Television, Inc. 01/27/00 12/21/00 329 96-0245 Wadewitz v. Montgomery 08/16/96 07/09/97 327 D-4004 City of Beaumont v. Bouillion 03/30/94 02/16/95 323 D-4059 Transport Ins. Co. v. Faircloth 05/11/94 03/30/95 323 94-0152 Edgewood Indep. Sch. Dist. v. Meno 03/30/94 02/16/95 323 95-0086 City of Murphy v. City of Parker 03/30/95 02/16/96 323 C-9202 Beaumont Bank v. Buller 05/16/90 04/03/91 322 D-1472 Guillot v. Hix 11/06/91 09/23/92 322 D-1659 McConnell v. Southside Indep. Sch. Dist. 06/03/92 04/21/93 322 D-2324 Remington Arms Co. v. Caldwell 05/20/92 04/07/93 322 D-3194 Jackson v. City of Galveston 02/24/93 01/12/94 322 00-0688 Riyad Bank v. Gailani 12/21/00 11/08/01 322 00-0944 City of Austin v. Travis County Landfill Co. 05/10/01 03/28/02 322 98-0034 Keck, Mahin & Cate v. National Union Fire Ins. Co. 07/08/99 05/25/00 322 C-9249 Bexar County Sheriff's Civil Serv. Commission v. Davis 02/17/90 12/31/90 317 D-3855 National Indus. Sand Ass'n v. Gibson 06/15/94 04/27/95 316 D-4353 National Union Fire Ins. Co. v. CBI Industries, Inc. 04/20/94 03/02/95 316 94-0098 McDaniel v. Yarbrough 04/20/94 03/02/95 316 94-0259 Owens-Illinois, Inc. v. Estate of Burt 06/15/94 04/27/95 316 94-0262 Owens-Illinois, Inc. v. Friley 06/15/94 04/27/95 316 95-0003 Wichita County v. Hart 03/30/95 02/09/96 316 D-0080 Luckel v. White 12/12/90 10/23/91 315 D-0201 Gifford-Hill & Co. v. Wise County Appraisal Dist. 01/23/91 12/04/91 315 D-1272 T. O. Stanley Boot Co. v. Bank of El Paso 01/22/92 12/02/92 315 D-1804 Atascosa County Appraisal Dist. v. Tymrak 04/01/92 02/10/93 315 D-3413 Ellis County State Bank v. Keever 06/30/93 05/11/94 315 00-0436 Bragg v. Edwards Aquifer Auth. 04/05/01 02/14/02 315 98-1238 Kerrville State Hosp. v. Hernandez 08/26/99 07/06/00 315 99-0041 Cash America Int'l, Inc. v. Bennett 08/26/99 07/06/00 315 99-0108 Texas Dept. of Transp. v. Able 08/26/99 07/06/00 315 99-0141 Texas Parks & Wildlife Dept. v. Gonzalez 08/26/99 07/06/00 315 99-0981 Levine v. Bayne, Snell & Krause, Ltd. 03/23/00 02/01/01 315 96-0994 Shepherd v. Ledford 03/21/97 01/29/98 314 96-1243 Transamerican Natural Gas Corp. v. Fuentes 03/21/97 01/29/98 314 97-0278 Willy v. Coastal States Management Co. 09/04/97 07/14/98 313 98-0184 Burrow v. Arce 08/25/98 07/01/99 310 98-0218 Crown Life Ins. Co. v. Casteel 08/25/98 07/01/99 310 98-0322 Drilex Systems, Inc. v. Flores 08/25/98 07/01/99 310 C-7246 Casso v. Brand 07/06/88 05/10/89 308 C-7774 Axelson, Inc. v. McIlhany 12/20/89 10/24/90 308 C-7824 Tom L. Scott, Inc. v. McIlhany 12/20/89 10/24/90 308 C-9274 Caulley v. Caulley 06/20/90 04/24/91 308 Page 10 EXT-18-2091-D-000042 007104-001918 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-9731 Public Utility Comm'n v. Gulf States Utilities Co. 05/30/90 04/03/91 308 C-9938 T. F. Stone-Liberty Land Assoc. v. FSLIC 11/14/90 09/18/91 308 D-0190 Havner v. E-Z Mart Stores, Inc. 04/24/91 02/26/92 308 D-0791 George A. Fuller Co. v. Carpet Services, Inc. 03/27/91 01/29/92 308 D-3639 Sorokolit v. Rhodes 06/16/93 04/20/94 308 00-0547 American Motorists Ins. Co. v. Fodge 01/11/01 11/15/01 308 00-0581 E.I. duPont de Nemours & Co. v. Pecan Valley Nut Co. 12/21/00 10/25/01 308 94-1124 Minnesota Mining & Mfg. Co. v. Nishika Ltd. 02/09/96 12/13/96 308 98-0132 Intratex Gas Co. v. Beeson 05/06/99 03/09/00 308 98-0578 Brainard v. State 12/03/98 10/07/99 308 98-0645 State v. Vitapro Foods, Inc. 02/04/99 12/09/99 308 94-0152 Edgewood Indep. Sch. Dist. v. Meno 03/30/94 01/30/95 306 96-0584 Praesel v. Johnson 06/12/97 04/14/98 306 C-8131 Schlobohm v. Schapiro 04/19/89 02/17/90 304 C-6535 Rose v. Doctors Hosp. Facilities 11/08/89 09/06/90 302 D-1939 Texas Dept. of Mental Health & Mental Retardation v. Petty 03/04/92 12/31/92 302 95-0316 Memorial Hosp. v. McCown 09/14/95 07/12/96 302 95-0340 Brownwood Regional Med. Ctr. v. McCown 09/14/95 07/12/96 302 95-0596 Kincaid v. Brooks 09/14/95 07/12/96 302 97-0171 Operation Rescue - National v. Planned Parenthood of Houston 09/04/97 07/03/98 302 97-0237 Gammill v. Jack Williams Chevrolet, Inc. 09/04/97 07/03/98 302 C-8285 Lee v. City of Houston 06/27/90 04/24/91 301 D-0119 City of San Antonio v. Fourth Court of Appeals 11/14/90 09/11/91 301 D-0986 Amberboy v. Societe de Banque Privee 06/19/91 04/15/92 301 D-2159 Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas 06/10/92 04/07/93 301 D-2377 State Farm Fire & Cas. Co. v. Reed 12/02/92 09/29/93 301 00-0061 Brown v. Todd 08/24/00 06/21/01 301 00-1145 Texas Natural Res. Conservation Comm'n v. Sierra Club 04/26/01 02/21/02 301 96-1078 Brown v. Bank of Galveston 04/18/97 02/13/98 301 99-0204 Texas Dept. of Public Safety v. Petta 06/15/00 04/12/01 301 97-0961 Gibbs v. Jackson 06/05/98 04/01/99 300 D-4270 Texas Workers' Compensation Comm'n v. Garcia 04/20/94 02/09/95 295 D-4598 City of Brownsville v. Alvarado 06/08/94 03/30/95 295 D-4600 Twin City Fire Ins. Co. v. Davis 09/15/94 07/07/95 295 C-7275 Garza v. Maverick Market, Inc. 05/18/88 03/08/89 294 C-9567 Ex parte Brister 02/28/90 12/19/90 294 D-0537 Laster v. First Huntsville Properties Co. 02/20/91 12/11/91 294 D-1208 University of Texas v. York 04/14/93 02/02/94 294 D-2809 Ex parte Tucci 09/09/92 06/30/93 294 D-2819 Ex parte Terry 09/09/92 06/30/93 294 D-2820 Ex parte Mahoney 09/09/92 06/30/93 294 D-2821 Ex parte Wright 09/09/92 06/30/93 294 D-2822 Ex parte Benham 09/09/92 06/30/93 294 D-2823 Ex parte Slovenic 09/09/92 06/30/93 294 D-2824 Ex parte Jewitt 09/09/92 06/30/93 294 D-2938 Piotrowski v. Minns 02/17/93 12/08/93 294 96-0346 Goode v. Shoukfeh 06/28/96 04/18/97 294 99-0472 In re O.G.M. 08/26/99 06/15/00 294 97-0028 Dallas County Mental Health & Mental Retardation v. Bossley 06/27/97 04/14/98 291 97-0454 Clark v. Texas Home Health 06/27/97 04/14/98 291 94-0495 Ex parte Chambers 06/15/94 03/30/95 288 95-0382 Firestone Steel Products Co. v. Barajas 09/14/95 06/28/96 288 03/22/89 01/03/90 287 C-7559 Guaranty Federal Savings Bank v. Horseshoe Operating Co. Page 11 EXT-18-2091-D-000043 007104-001919 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-7720 Intercontinental Consolidated Cos. v. University Sav. Ass'n 03/22/89 01/03/90 287 C-8660 Criswell v. European Crossroads Shopping Center, Ltd. 09/06/89 06/20/90 287 C-8711 Payne & Keller, Inc. v. P.P.G. Indus., Inc. 09/06/89 06/20/90 287 C-9395 Crain v. San Jacinto Sav. Ass'n 03/28/90 01/09/91 287 D-0022 Fort Bend County Drainage Dist. v. Sbrusch 11/28/90 09/11/91 287 D-0355 Balderama v. Western Cas. Life Ins. Co. 01/09/91 10/23/91 287 D-0566 Owens-Corning Fiberglas Corp. v. Caldwell 01/23/91 11/06/91 287 D-2124 Page Petroleum, Inc. v. Dresser Indus., Inc. 06/24/92 04/07/93 287 D-3135 Russell v. Russell 02/10/93 11/24/93 287 D-3148 Weaber v. Lorensen 02/10/93 11/24/93 287 D-3293 Harris County v. Dillard 03/24/93 01/05/94 287 D-4447 Bailey v. Vanscot Concrete Co. 06/02/94 03/16/95 287 00-0816 City of Corpus Christi v. Public Utility Comm'n 08/24/00 06/07/01 287 00-0821 Power Choice, Inc. v. Public Utility Comm'n 08/24/00 06/07/01 287 98-0872 Ken Petroleum Corp. v. Questor Drilling Corp. 09/16/99 06/29/00 287 98-0883 Weber Energy Corp. v. Grey Wolf Drilling Co. 09/16/99 06/29/00 287 98-1046 National Liab. & Fire Ins. Co. v. Allen 04/22/99 02/03/00 287 99-0121 Lozano v. Lozano 03/02/00 12/14/00 287 09/10/93 06/22/94 285 95-0341 Barcelo v. Elliott 08/01/95 05/10/96 283 95-0385 Pharo v. Chambers County 08/01/95 05/10/96 283 D-1903 Ruiz v. Conoco, Inc. 03/25/92 12/31/92 281 D-4448 Haynes & Boone v. Bowser Bouldin, Ltd. 06/22/94 03/30/95 281 94-0377 French v. Chevron U.S.A. Inc. 06/22/94 03/30/95 281 94-1057 Maritime Overseas Corp. v. Ellis 07/09/97 04/16/98 281 94-1206 Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd. 01/11/96 10/18/96 281 95-0474 Irving Healthcare Sys. v. Brooks 10/05/95 07/12/96 281 D-3684 Sysco Food Serv., Inc. v. Trapnell C-7446 Chenault v. Bexar County Commissioners Court 07/13/88 04/19/89 280 C-7798 Walker v. Blue Water Garden Apartments 12/14/88 09/20/89 280 C-9682 Anderson v. City of Seven Points 05/16/90 02/20/91 280 D-0666 Aduddell v. Parkhill 02/13/91 11/20/91 280 00-1220 Texas State Bank v. Amaro 06/21/01 03/28/02 280 94-0465 University of Texas Medical Sch. v. Than 09/15/94 06/22/95 280 97-0976 Standard Fruit & Vegetable Co. v. Johnson 03/26/98 12/31/98 280 98-1014 City of Fort Worth v. Zimlich 09/23/99 06/29/00 280 99-0320 American Airlines Employees Federal Credit Union v. Martin 12/02/99 09/07/00 280 99-0859 Montgomery Indep. Sch. Dist. v. Davis 03/02/00 12/07/00 280 C-9052 Cherokee Water Co. v. Gregg County Appraisal Dist. 03/28/90 12/31/90 278 D-1418 Scott v. Twelfth Court of Appeals 03/13/92 12/16/92 278 D-4558 R.K. v. Ramirez 02/02/94 11/03/94 274 94-0356 Mid-American Indem. Ins. Co. v. King 10/06/94 07/07/95 274 95-0521 Buys v. Buys 09/14/95 06/14/96 274 96-0684 Southwestern Elec. Power Co. v. Burlington Northern R.R. 06/12/97 03/13/98 274 97-0231 Childs v. Haussecker 10/02/97 07/03/98 274 97-0280 Trevino v. Ortega 09/04/97 06/05/98 274 97-0324 Humble Sand & Gravel, Inc. v. Martinez 10/02/97 07/03/98 274 97-0404 Appraisal Review Bd. of Galveston County v. Tex-Air Helicopter, Inc. 09/04/97 06/05/98 274 C-7687 Central Educ. Agency v. George West Indep. Sch. Dist. 10/12/88 07/12/89 273 C-9064 Rhodes v. Cahill 01/10/90 10/10/90 273 C-9845 Tyra v. City of Houston 03/20/91 12/18/91 273 D-1588 Lohec v. Galveston County Commissioners Court 02/19/92 11/18/92 273 D-3755 State v. Biggar 06/30/93 03/30/94 273 11/30/00 08/30/01 273 00-0041 Wagner & Brown, Ltd. v. Horwood Page 12 EXT-18-2091-D-000044 007104-001920 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 00-0338 Texas Dept. of Criminal Justice v. Miller 09/21/00 06/21/01 273 95-1273 Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc. 04/12/96 01/10/97 273 96-0387 Associated Indem. Corp. v. CAT Contracting, Inc. 05/16/97 02/13/98 273 97-1044 Fleming Foods of Texas, Inc. v. Sharp 09/10/98 06/10/99 273 98-1126 Badouh v. Badouh 04/29/99 01/27/00 273 99-1268 In re Canales 05/04/00 02/01/01 273 99-1307 In re County of Jim Wells 05/04/00 02/01/01 273 97-0926 Kelley-Coppedge, Inc. v. Highlands Ins. Co. 02/13/98 11/12/98 272 98-0198 In re C.O.S. 07/03/98 04/01/99 272 98-0308 In re D.I.B. 07/03/98 04/01/99 272 96-1039 Insurance Co. of N. Amer. v. Morris 10/16/97 07/14/98 271 12/16/92 09/10/93 268 06/08/94 03/02/95 267 C-8181 Ortega v. First RepublicBank 02/22/89 11/15/89 266 C-9548 Reagan v. Vaughn 03/28/90 12/19/90 266 D-0370 Tubelite v. Risica & Sons, Inc. 03/20/91 12/11/91 266 D-0584 Lear Siegler Inc. v. Perez 02/27/91 11/20/91 266 D-0938 Cox v. Thee Evergreen Church 10/09/91 07/01/92 266 D-1854 Taylor v. Argonaut Southwest Ins. Co. 03/25/92 12/16/92 266 D-2324 Remington Arms Co. v. Caldwell 05/20/92 02/10/93 266 00-0523 Reeder v. Daniel 02/15/01 11/08/01 266 00-0936 TXU Elec. Co. v. Public Util. Comm'n 12/07/00 08/30/01 266 94-0503 Global Serv., Inc. v. Bianchi 10/06/94 06/29/95 266 96-0092 Stewart Title Guar. Co. v. Aiello 05/10/96 01/31/97 266 97-0654 American Home Prods. Corp. v. Ramirez 08/15/97 05/08/98 266 97-0655 American Home Prods. Corp. v. Tanner 08/15/97 05/08/98 266 98-1080 University of Houston v. Clark 09/23/99 06/15/00 266 99-0326 Erner v. Thomas 09/23/99 06/15/00 266 99-0366 Utts v. Short 06/07/01 02/28/02 266 06/03/93 02/23/94 265 95-1270 Hammerly Oaks, Inc. v. Edwards 03/21/97 12/11/97 265 96-0898 Farmers Texas County Mut. Ins. Co. v. Griffin 02/21/97 11/13/97 265 97-0228 Commission for Lawyer Discipline v. Benton 10/23/97 07/14/98 264 94-1024 A&T Consultants, Inc. v. Sharp 11/03/94 07/21/95 260 97-0475 Timberwalk Apts. Ptnr, Inc. v. Cain 10/16/97 07/03/98 260 97-0573 Perry v. Nash 10/16/97 07/03/98 260 C-7514 McKinney v. Nat'l Union Fire Ins. Co. 09/21/88 06/07/89 259 C-7810 Adams v. Petrade Int'l, Inc. 07/12/89 03/28/90 259 C-8177 Robinson v. Central Texas MHMR Center 03/08/89 11/22/89 259 C-9274 Caulley v. Caulley 06/20/90 03/06/91 259 C-9504 BHP Petroleum Co. v. Millard 03/07/90 11/21/90 259 D-0353 Williams v. Patton 02/13/91 10/30/91 259 D-0678 Hughes v. Mahaney & Higgins 03/06/91 11/20/91 259 D-1391 Guillory v. Port of Houston Auth. 05/06/92 01/20/93 259 D-1558 Davenport v. Garcia 10/02/91 06/17/92 259 D-1867 Remington Arms Co. v. Canales 01/08/92 09/23/92 259 D-3258 State v. Kitchen 03/24/93 12/08/93 259 00-0156 Public Util. Comm'n v. City Public Ser. Bd. 10/12/00 06/28/01 259 00-0948 Texas Dept. of Transp. v. Garza 05/10/01 01/24/02 259 01-0036 Travis County v. Pelzel & Assocs., Inc. 08/23/01 05/09/02 259 01-0231 Union Pacific R.R. v. Williams 09/20/01 06/06/02 259 01-0232 Lenz v. Lenz 09/20/01 06/06/02 259 94-1187 State v. Heal 02/16/95 11/02/95 259 D-2775 Celtic Life Ins. Co. v. Coats 94-0049 Gonzalez v. Avalos D-3464 Richards v. Neuhaus Page 13 EXT-18-2091-D-000045 007104-001921 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 95-0084 Estes v. Akins 10/27/95 07/12/96 259 97-0268 Baptist Mem'l Hosp. Sys. v. Sampson 09/04/97 05/21/98 259 98-0363 Chilkewitz v. Hyson 10/01/98 06/17/99 259 98-0446 DeWitt County Elec. Cooperative, Inc. v. Parks 10/15/98 07/01/99 259 98-1031 Lane Bank Equip. Co. v. Smith S. Equip. Co. 04/22/99 01/06/00 259 98-1138 Fort Worth Indep. Sch. Dist. v. City of Fort Worth 08/26/99 05/11/00 259 99-0557 Underkofler v. Vanasek 06/15/00 03/01/01 259 99-0670 Texas Dept. of Public Safety v. Barlow 08/24/00 05/10/01 259 99-1100 Gilbert v. El Paso Co. Hosp. Dist. 05/04/00 01/18/01 259 99-1165 Apex Towing Co. v. Tolin 06/15/00 03/01/01 259 96-1026 Verbugt v. Dorner 03/21/97 12/04/97 258 95-0500 American Airlines, Inc. v. Shupe 08/01/95 04/12/96 255 96-0555 Republican Party of Texas v. Dietz 06/19/96 02/28/97 254 98-0247 Sipriano v. Great Spring Waters of America, Inc. 08/25/98 05/06/99 254 94-0161 Duncan v. Board of Disciplinary Appeals 06/08/94 02/16/95 253 94-0162 In re Duncan 06/08/94 02/16/95 253 96-0101 Griffin Indus. Inc. v. Thirteenth Court of Appeals 03/07/96 11/15/96 253 C-7655 Coulson v. Lake LBJ Municipal Util. Dist. 09/28/88 06/07/89 252 C-8285 Lee v. City of Houston 06/27/90 03/06/91 252 C-8789 North Alamo Water Supply Corp. v. Willacy County Appraisal Dist. 06/13/90 02/20/91 252 C-9525 Sharyland Water Supply Corp. v. Hidalgo County Appraisal Dist. 06/13/90 02/20/91 252 C-9992 Allied General Agency, Inc. v. Moody 10/21/92 06/30/93 252 D-0621 First Title Co. v. Garrett 09/30/92 06/09/93 252 D-1451 Upshaw v. Trinity Cos. 01/22/92 09/30/92 252 00-0710 McAllen Med. Ctr., Inc. v. Cortez 12/21/00 08/30/01 252 94-0579 Padilla v. LaFrance 09/15/94 05/25/95 252 98-0442 General Motors Corp. v. Sanchez 10/22/98 07/01/99 252 98-0724 In re Nolo Press/Folk Law, Inc. 08/06/98 04/15/99 252 98-1018 Huckabee v. Time Warner Entertainment Co. 08/26/99 05/04/00 252 99-1056 American Home Prods. Corp. v. Clark 04/13/00 12/21/00 252 97-0868 WFAA-TV, Inc. v. McLemore 01/16/98 09/24/98 251 95-0434 Texaco, Inc. v. Central Power & Light Co. 09/14/95 05/18/96 247 97-0970 McCamish, Martin, Brown & Loeffler v. F. E. Appling Interests 08/25/98 04/29/99 247 D-4411 Houston Health Clubs, Inc. v. Rickey 02/02/94 10/06/94 246 D-4505 Houston Lighting & Power Co. v. Atchison, T. & S.F. Ry. 04/20/94 12/22/94 246 95-0021 Texas Water Comm'n v. Brushy Creek Municipal Util. Dist. 06/08/95 02/09/96 246 96-1154 Quick v. City of Austin 09/04/97 05/08/98 246 97-0630 Van Horn v. Chambers 10/30/97 07/03/98 246 C-7593 Stracener v. United Services Automobile Ass'n 01/11/89 09/13/89 245 C-7615 Gaulding v. Celotex Corp. 10/05/88 06/07/89 245 C-7874 United Services Automobile Ass'n v. Hestilow 01/11/89 09/13/89 245 C-9104 Lewelling v. Lewelling 01/17/90 09/19/90 245 C-9555 Greater Houston Transp. Co. v. Phillips 04/18/90 12/19/90 245 D-0805 Citizens Nat'l Bank v. Cockrell 07/01/92 03/03/93 245 D-1288 Heggen v. Pemelton 10/23/91 06/24/92 245 D-1439 Lee v. Downey 04/15/92 12/16/92 245 D-2476 Stegall v. Oadra 10/07/92 06/09/93 245 D-3889 Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1 10/13/94 06/15/95 245 00-1261 Wal-Mart Stores, Inc. v. Reece 10/18/01 06/20/02 245 94-0541 Weiner v. Wasson 10/06/94 06/08/95 245 94-1004 Texas Beef Cattle Co. v. Green 05/11/95 01/11/96 245 95-1257 United States Government v. Marks 04/12/96 12/13/96 245 97-1205 Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist. 04/30/98 12/31/98 245 Page 14 EXT-18-2091-D-000046 007104-001922 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 98-0487 NME Hospitals, Inc. v. Rennels 10/01/98 06/03/99 245 98-0601 Phi Delta Theta Co. v. Moore 10/29/98 07/01/99 245 98-0661 Texas Farmers Ins. Co. v. Murphy 10/29/98 07/01/99 245 99-0966 Bradford v. Vento 08/24/00 04/26/01 245 94-1338 Smith v. Clary Corp. 07/07/95 03/07/96 244 96-1208 Coastal Corp. v. Garza 11/13/97 07/14/98 243 D-2369 Republic Ins. Co. v. Davis 10/07/92 06/03/93 239 D-3262 Light v. Centel Cellular Co. 10/06/93 06/02/94 239 D-4612 Phoenix Founders, Inc. v. Marshall 02/09/94 10/06/94 239 11/16/95 07/12/96 239 C-7698 Loftin v. Martin 09/28/88 05/24/89 238 C-7945 Ex parte Adell 09/21/88 05/17/89 238 C-7973 McClendon v. Ingersoll-Rand Co. 02/22/89 10/18/89 238 C-8786 Williams v. Glash 09/06/89 05/02/90 238 D-3930 Union Bankers Ins. Co. v. Shelton 10/27/93 06/22/94 238 00-0173 Coastal Liquids Transp. v. Harris County 09/14/00 05/10/01 238 94-0514 Abbott Laboratories, Inc. v. Segura 11/03/94 06/29/95 238 94-0567 Triplex Communications, Inc. v. Riley 10/13/94 06/08/95 238 94-0641 Plainsman Trading Co. v. Crews 09/15/94 05/11/95 238 94-0670 Crowson v. Wakeham 09/15/94 05/11/95 238 99-1159 Harris County Bail Bond Bd. v. Blackwood 07/06/00 03/01/01 238 96-0044 Williams v. Olivo 11/15/96 07/09/97 236 98-0219 Atascosa County v. Atascosa County Appraisal Dist. 08/25/98 04/15/99 233 95-0017 Railroad Comm'n v. Torch Operating Co. 05/04/95 12/22/95 232 97-0684 Scherer v. Thirteenth Court of Appeals 10/16/97 06/05/98 232 95-0120 National Ass'n of Indep. Insurers v. Texas Dept. of Insurance C-8889 Coalition of Cities v. Third Court of Appeals 09/06/89 04/25/90 231 C-8890 Cities of Bridge City v. Third Court of Appeals 09/06/89 04/25/90 231 C-8949 Evans v. Pollock 10/25/89 06/13/90 231 C-9287 Coalition of Cities v. Public Utility Comm'n 01/24/90 09/12/90 231 C-9611 Orange County v. Ware 06/06/90 01/23/91 231 D-0713 Texas Water Comm'n v. Coalition Advocating a Safe Environment 04/03/91 11/20/91 231 D-1320 Religious of the Sacred Heart v. City of Houston 01/29/92 09/16/92 231 D-3099 American Petrofina, Inc. v. Allen 06/16/93 02/02/94 231 00-0022 Great Dane Trailers, Inc. v. Estate of Wells 10/26/00 06/14/01 231 00-0722 In re American Homestar, Inc. 10/19/00 06/07/01 231 00-0829 Yzaguirre v. KCS Resources, Inc. 01/11/01 08/30/01 231 94-0619 Green Int'l, Inc. v. State 03/30/95 11/16/95 231 95-0168 Broders v. Heise 10/27/95 06/14/96 231 98-0592 Surgitek v. Abel 11/12/98 07/01/99 231 D-3795 Hernandez v. Gulf Group Lloyds 09/10/93 04/28/94 230 96-0100 ACS Investors, Inc. v. McLaughlin 07/08/96 02/21/97 228 C-9185 Don Docksteader Motors, Ltd. v. Patal Enterprises, Ltd. 01/24/90 09/06/90 225 D-4248 Kassen v. Hatley 03/30/94 11/10/94 225 D-4527 Fisk Electric Co. v. Constructors & Assoc., Inc. 04/20/94 12/01/94 225 C-7616 Johnson v. Swain 02/22/89 10/04/89 224 C-7815 Flores v. Fourth Court of Appeals 11/16/88 06/28/89 224 C-8191 Philipp Brothers, Inc. v. Oil Country Specialists, Ltd. 06/07/89 01/17/90 224 C-8448 Nelson v. Neal 06/28/89 02/07/90 224 C-9060 Koslow's v. Mackie 02/28/90 10/10/90 224 C-9469 Spencer v. Eagle Star Ins. Co. 06/30/93 02/09/94 224 C-9671 Cassidy v. Northwest Tech Center Assoc., Ltd. 06/27/90 02/06/91 224 C-9822 State v. Lowry 06/27/90 02/06/91 224 D-0092 Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp. 12/12/90 07/24/91 224 Page 15 EXT-18-2091-D-000047 007104-001923 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-1539 Koepp v. Utica Mut. Ins. Co. 11/20/91 07/01/92 224 D-1750 Jack B. Anglin Co. v. Tipps 04/08/92 11/18/92 224 D-2100 Valdez v. Diamond Shamrock Refining & Marketing Co. 04/22/92 12/02/92 224 D-2168 Grounds v. Tolar Indep. Sch. Dist. 11/11/92 06/23/93 224 01-0168 Exxon Pipeline Co. v. Zwahr 10/11/01 05/23/02 224 94-0055 Randall's Food Markets, Inc. v. Johnson 06/02/94 01/12/95 224 94-0573 Centeq Realty, Inc. v. Siegler 10/13/94 05/25/95 224 99-0074 Hughes Wood Prods., Inc. v. Wagner 08/26/99 04/06/00 224 99-0976 In re Lock 11/09/00 06/21/01 224 95-0401 National Medical Enterprises, Inc. v. Godbey 10/27/95 06/06/96 223 96-0745 Texas Boll Weevil Eradication Foundation, Inc. v. Lewellen 09/19/96 04/30/97 223 96-0839 Texas Boll Weevil Eradication Foundation, Inc. v. Abbott 09/19/96 04/30/97 223 97-0323 City of Odessa v. Barton 09/04/97 04/14/98 222 97-0582 In re Meador 09/04/97 04/14/98 222 97-0889 Patterson v. Planned Parenthood of Houston 11/13/97 06/23/98 222 07/09/97 02/13/98 219 95-0897 Johnson County Sheriff's Posse, Inc. v. Endsley 11/22/95 06/28/96 219 97-0661 Malone v. Foster 10/30/97 06/05/98 218 98-0841 In re Missouri Pacific R.R. 11/25/98 07/01/99 218 98-0842 In re Missouri Pacific R.R. 11/25/98 07/01/99 218 98-0843 In re Southern Pacific Transp. Co. 11/25/98 07/01/99 218 C-7532 Gee v. Liberty Mut. Fire Ins. Co. 07/13/88 02/15/89 217 C-8182 Peek v. Equipment Serv. Co. 04/05/89 11/08/89 217 C-8426 Peek v. Neeswig 04/05/89 11/08/89 217 C-8819 Jackson v. S.P. Leasing Corp. 10/18/89 05/23/90 217 D-1937 Getty Oil Co. v. Insurance Co. of North America 04/08/92 11/11/92 217 D-1971 Palmer v. The Coble Wall Trust Co. 03/25/92 10/28/92 217 D-2997 Mafrige v. Ross 03/24/93 10/27/93 217 D-3186 Browning-Ferris, Inc. v. Reyna 04/14/93 11/17/93 217 D-4340 K.D.F. v. Rex 11/17/93 06/22/94 217 00-0142 Lawrence v. CDB Servs., Inc. 08/24/00 03/29/01 217 00-0201 Lambert v. Affiliated Foods, Inc. 08/24/00 03/29/01 217 00-1076 Haase v. Glazner 04/26/01 11/29/01 217 94-1323 Leitch v. Hornsby 05/10/96 12/13/96 217 95-0943 El Paso Elec. Co. v. Texas Dept. of Insurance 05/10/96 12/13/96 217 95-1255 Trammell Crow Co. v. Harkinson 08/16/96 03/21/97 217 98-0253 National Collegiate Athletic Ass'n v. Jones 10/01/98 05/06/99 217 98-0753 Waco Indep. Sch. Dist. 10/07/99 05/11/00 217 99-1291 Meritor Automotive, Inc. v. Ruan Leasing Co. 08/24/00 03/29/01 217 D-4128 Canadian Helicopters Ltd. v. Wittig 09/29/93 04/28/94 211 D-4160 Catalina v. Blasdel 11/03/93 06/02/94 211 95-0717 Dallas Central Appraisal Dist. v. W. V. Grant Evangelistic Ass'n, Inc. 11/16/95 06/14/96 211 95-0933 CSR Ltd. v. Link 11/16/95 06/14/96 211 97-0309 Clint Indep. Sch. Dist. v. Cash Investments, Inc. 11/06/97 06/05/98 211 97-1093 Balandran v. Safeco Ins. Co. 12/04/97 07/03/98 211 C-7524 State v. Bachynsky 10/05/88 05/03/89 210 C-7728 Plas-Tex, Inc. v. U.S. Steel Corp. 09/21/88 04/19/89 210 C-8140 Brown-Forman Corp. v. Brune 03/22/89 10/18/89 210 C-8895 Thompson v. Travelers Indemnity Co. 10/11/89 05/09/90 210 C-9411 Tarrant County Hosp. Dist. v. Armendarez 09/12/90 04/10/91 210 D-0270 Nance v. Resolution Trust Corp. 11/07/90 06/05/91 210 D-0853 Rhea v. Williams 04/17/91 11/13/91 210 D-1235 Forbau v. Aetna Life Ins. Co. 04/08/92 11/04/92 210 D-4095 State Farm Fire & Cas. Co. v. Simmons Page 16 EXT-18-2091-D-000048 007104-001924 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-1589 Taub v. City of Deer Park 11/24/93 06/22/94 210 D-3310 National Union Fire Ins. Co. v. Valdez 03/03/93 09/29/93 210 D-3492 National Union Fire Ins. Co.v. Ninth Court of Appeals 03/31/93 10/27/93 210 00-0070 Interstate Northborough Partnership v. State 10/12/00 05/10/01 210 00-1093 Coastal Oil & Gas Corp. v. Coates Energy Trusts 08/23/01 03/21/02 210 01-0150 Guadalupe-Blanco River Auth. v. Kraft 10/11/01 05/09/02 210 96-0690 Board of Trustees of Bastrop Indep. Sch. Dist. v. Toungate 03/27/97 10/23/97 210 97-1140 Holland v. Wal-Mart Stores, Inc. 12/03/98 07/01/99 210 99-1015 General Servs. Comm'n v. Little-Tex Insulation Co. 07/06/00 02/01/01 210 99-1070 Texas Dep't of Transp. v. Aer-Aerotron, Inc. 07/06/00 02/01/01 210 98-0396 Stephens v. American Home Assurance Co. 05/08/98 12/03/98 209 06/06/90 12/31/90 208 95-1077 United Blood Servs. v. Longoria 07/08/96 01/31/97 207 94-0734 Reinhart v. Young 11/22/94 06/15/95 205 95-0710 Central Appraisal Dist. v. Lall 11/22/95 06/14/96 205 06/10/92 12/31/92 204 10/16/97 05/08/98 204 C-8467 Williams v. Khalaf 09/06/89 03/28/90 203 C-8893 Evans v. Illinois Employers Ins. 11/08/89 05/30/90 203 D-0830 Tovar v. Spector 03/06/91 09/25/91 203 D-1764 Granada Corp. v. First Court of Appeals 05/27/92 12/16/92 203 D-3363 Texas Farmers Ins. Co. v. Soriano 11/24/93 06/15/94 203 D-3404 Aluminum Co. of America v. Bullock 06/23/93 01/12/94 203 D-3543 Benson v. Ford Motor Co. 06/02/94 12/22/94 203 D-3544 Monsanto Co. v. Cornerstones Mun. Util. Dist. 05/05/93 11/24/93 203 D-3826 Rogers v. Ricane Enterprises, Inc. 11/24/93 06/15/94 203 D-4440 Huckabay v. Irving Healthcare Authority 06/02/94 12/22/94 203 00-1146 State v. Bristol Hotel Asset Co. 05/10/01 11/29/01 203 94-0566 Laidlaw Waste Systems, Inc. v. City of Wilmer 12/08/94 06/29/95 203 94-0859 Ford Motor Co. v. Leggat 12/01/94 06/22/95 203 95-0159 Mercedes-Benz Credit Corp. v. Rhyne 12/22/95 07/12/96 203 95-0954 CMMC v. Salinas 12/22/95 07/12/96 203 97-0483 Union Pacific Resources Co. v. Thirteenth Court of Appeals 09/04/97 03/26/98 203 98-0333 Gunn Infiniti, Inc. v. O'Byrne 12/03/98 06/24/99 203 98-0806 In re Users Sys. Servs., Inc. 12/03/98 06/24/99 203 98-1131 In re Union Pacific R.R. 12/10/98 07/01/99 203 99-1227 Grapevine Excavation Inc. v. Maryland Lloyds 12/16/99 07/06/00 203 D-0962 Travel Masters, Inc. v. Star Tours, Inc. 05/30/91 12/18/91 202 C-9468 Winters v. Houston Chronicle Publishing Co. 02/21/90 09/06/90 197 C-7514 McKinney v. Nat'l Union Fire Ins. Co. 09/21/88 04/05/89 196 C-9223 McGill v. Johnson 05/16/90 11/28/90 196 C-9937 Railroad Comm'n v. Pend Oreille Oil & Gas Co. 11/21/90 06/05/91 196 D-0091 Harris County District Attorney v. J.T.S. 10/10/90 04/24/91 196 D-0811 Jupiter Oil Co. v. Snow 04/10/91 10/23/91 196 D-1376 Fibreboard Corp. v. Pool 04/29/92 11/11/92 196 D-1425 Camacho v. Samaniego 10/23/91 05/06/92 196 D-1558 Davenport v. Garcia 10/02/91 04/15/92 196 D-2746 Rodriguez v. Rodriguez 11/04/92 05/19/93 196 D-2779 Aetna Cas. & Sur. Co. v. Specia 09/09/92 03/24/93 196 D-3633 Dodd v. Meno 06/30/93 01/12/94 196 D-3782 Commonwealth Lloyd's Ins. Co. v. Cullen/Frost Bank 10/27/93 05/11/94 196 C-9611 Orange County v. Ware D-2387 Guzman v. Guzman 97-0573 Perry v. Nash 01-0406 Lubbock County v. Trammel's Lubbock Bail Bonds 12/06/01 06/20/02 196 94-0792 Burroughs Wellcome Co. v. Crye 12/01/94 06/15/95 196 Page 17 EXT-18-2091-D-000049 007104-001925 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 94-0843 E. I. du Pont de Nemours & Co. v. Robinson 12/01/94 06/15/95 196 94-1176 Park Place Hosp. v. Milo 04/20/95 11/02/95 196 95-0885 Medina v. Herrera 10/27/95 05/10/96 196 98-0216 Wilson v. Andrews 06/10/99 12/23/99 196 98-0520 Baker Hughes, Inc. v. KECO R. & D., Inc. 03/25/99 10/07/99 196 98-1141 In re Birdwell 11/04/99 05/18/00 196 99-1042 Quantum Chem. Corp. v. Toennies 08/24/00 03/08/01 196 97-0182 Northern Natural Gas Co. v. Conoco, Inc. 10/02/97 04/14/98 194 96-0148 St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tak Co. 02/13/98 08/25/98 193 06/24/92 12/31/92 190 96-0945 Santa Rosa Health Care Corp. v. Garcia 09/04/97 03/13/98 190 97-0630 Van Horn v. Chambers 10/30/97 05/08/98 190 C-7635 Lyles v. Roberts 10/26/88 05/03/89 189 C-7691 Babcock v. Northwest Memorial Hospital 09/21/88 03/29/89 189 C-7972 Clark v. Trailways, Inc. 11/23/88 05/31/89 189 C-8462 Vortt Exploration Co. v. Chevron U.S.A., Inc. 10/11/89 04/18/90 189 C-9063 Roberts v. First State Bank 12/13/89 06/20/90 189 C-9216 Matthews Constr. Co. v. Rosen 03/07/90 09/12/90 189 D-1594 Dallas Central Appraisal Dist. v. Seven Investment Co. 12/04/91 06/10/92 189 D-1678 Geo Viking, Inc. v. Tex-Lee Operating Co. 04/22/92 10/28/92 189 D-1737 Dallas Central Appraisal Dist. v. Las Colinas Corp. 12/04/91 06/10/92 189 D-4097 Bridgestone/Firestone, Inc. v. Glyn-Jones 12/08/93 06/15/94 189 D-2185 Tijerina v. City of Tyler 00-0548 In re FirstMerit Bank 12/07/00 06/14/01 189 01-0086 City of Austin v. Southwestern Bell Tel. Co. 11/29/01 06/06/02 189 94-0838 Bonham State Bank v. Beadle 12/01/94 06/08/95 189 98-1012 Kroger Co. v. Keng 11/04/99 05/11/00 189 99-0026 In re MacDonald 09/23/99 03/30/00 189 99-1117 San Antonio Area Foundation v. Lang 05/04/00 11/09/00 189 97-0373 In re Long 07/03/98 01/07/99 188 94-0390 Bradbury v. Central Power & Light Co. 06/22/94 12/22/94 183 C-9981 Ex parte Pryor 06/20/90 12/19/90 182 C-9983 Joseph E. Seagram & Sons, Inc. v. McGuire 10/31/90 05/01/91 182 D-0092 Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp. 12/12/90 06/12/91 182 D-0333 Roark v. Stallworth Oil & Gas, Inc. 12/19/90 06/19/91 182 D-0400 Murdock v. Murdock 12/19/90 06/19/91 182 D-0467 Mower v. Boyer 12/19/90 06/19/91 182 D-0547 Schultz v. Fifth Court of Appeals 12/12/90 06/12/91 182 D-1093 Briones v. Solomon 11/06/91 05/06/92 182 00-0250 Holy Cross Church of God in Christ v. Wolf 10/12/00 04/12/01 182 00-0513 Butnaru v. Ford Motor Co. 12/07/00 06/07/01 182 00-0936 TXU Elec. Co. v. Public Util. Comm'n 12/07/00 06/07/01 182 94-0773 Texas Dep't of Mental Health & Mental Retardation v. Gaither 09/15/94 03/16/95 182 97-1011 Garcia v. Martinez 10/08/98 04/08/99 182 98-0429 Louisiana-Pacific Corp. v. Andrade 04/22/99 10/21/99 182 99-0616 In re George 01/06/00 07/06/00 182 99-0648 In re Epic Holdings, Inc. 01/06/00 07/06/00 182 12/31/92 06/30/93 181 95-0515 Heritage Resources, Inc. v. NationsBank 10/27/95 04/25/96 181 95-1195 City of Sherman v. Henry 01/11/96 07/08/96 179 D-2680 Kramer v. Lewisville Memorial Hosp. D-0272 Beck v. Beck 12/05/90 05/30/91 176 D-2803 Tarrant County Water Control & Improvement Dist. No. 1 v. Haupt, Inc. 12/09/92 06/03/93 176 95-0773 Kerrville State Hosp. v. Clark 11/16/95 05/10/96 176 97-0161 Caldwell v. Barnes 11/13/97 05/08/98 176 Page 18 EXT-18-2091-D-000050 007104-001926 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-7248 Carr v. Brasher 11/16/88 05/10/89 175 C-7642 Lofton v. Texas Brine Corp. 03/29/89 09/20/89 175 C-9302 Union Carbide Corp. v. Moye 05/30/90 11/21/90 175 C-9515 Mancorp, Inc. v. Culpepper 06/20/90 12/12/90 175 D-0542 Texas Bd. of Chiropractic Examiners v. Eighth Court of Appeals 12/12/90 06/05/91 175 D-1439 Lee v. Downey 04/15/92 10/07/92 175 D-1571 O'Connor v. First Court of Appeals 03/25/92 09/16/92 175 D-2057 Gibson v. Methodist Hospital 06/24/92 12/16/92 175 D-2313 Ector County v. Stringer 06/24/92 12/16/92 175 D-2316 Ector County v. Hill 06/24/92 12/16/92 175 D-2761 De Checa v. Diagnostic Center Hosp., Inc. 10/14/92 04/07/93 175 D-3411 Little v. X-Pert Corp. 06/16/93 12/08/93 175 D-3811 State Bar of Texas v. Humphreys 10/06/93 03/30/94 175 D-3982 Diamond Shamrock Refining & Mktg. Co. v. Nueces County Appraisal Dist. 10/27/93 04/20/94 175 D-4093 First Bank v. Tony's Tortilla Factory, Inc. 11/17/93 05/11/94 175 00-0229 Long Distance Int'l, Inc v. Telefonos de Mexico 12/21/00 06/14/01 175 00-0292 Subaru of Amer., Inc. v. David McDavid Nissan, Inc. 12/07/00 05/31/01 175 00-0643 M.D. Anderson Cancer Ctr. v. Novak 12/21/00 06/14/01 175 94-0634 Harwell v. State Farm Mut. Auto. Ins. Co. 10/06/94 03/30/95 175 94-1053 Universal Serv. Co. v. Ung 12/22/94 06/15/95 175 98-0125 In re Continental General Tire, Inc. 05/21/98 11/12/98 175 98-0800 Mid-Century Ins. Co. v. Kidd 01/07/99 07/01/99 175 98-1024 Nationwide Mut. Ins. Co. v. Gerlich 01/07/99 07/01/99 175 99-0755 Texas Health Enter., Inc. v. Geisler 08/24/00 02/15/01 175 99-1011 Payne v. Galen Hosp. Corp. 03/02/00 08/24/00 175 C-9064 Rhodes v. Cahill 01/10/90 07/03/90 174 D-0639 Borders v. Hartman 12/31/90 06/19/91 170 C-8717 Heaton v. Fulton 03/21/90 09/06/90 169 D-4473 Costello v. Smith 04/20/94 10/06/94 169 C-7734 Snadon v. Joe T. Garcia's Enterprises, Inc. 01/11/89 06/28/89 168 C-8147 Huston v. FDIC 11/01/89 04/18/90 168 C-8660 Criswell v. European Crossroads Shopping Center, Ltd. 09/06/89 02/21/90 168 D-0220 Perez v. Briercroft Serv. Corp. 11/21/90 05/08/91 168 D-2082 Barr v. Sunbelt Federal Savings 04/08/92 09/23/92 168 D-2100 Valdez v. Diamond Shamrock Refining & Marketing Co. 04/22/92 10/07/92 168 D-2367 Del Valle Indep. Sch. Dist. v. Lopez 06/24/92 12/09/92 168 D-4015 Wilson v. Texas Parks & Wildlife Dept. 01/05/94 06/22/94 168 94-0357 Brownsville-Valley Regional Medical Ctr. v. Gamez 09/15/94 03/02/95 168 97-1039 Proctor v. Andrews 01/16/98 07/03/98 168 D-1430 Sears, Roebuck & Co. v. Ramirez 08/29/91 02/12/92 167 D-0855 Transwestern Pipeline Co. v. Wood 03/27/91 09/09/91 166 D-4395 Missouri Pacific RR. v. Lemon 02/16/95 08/01/95 166 10/30/97 04/14/98 166 97-0825 Austin v. Healthtrust, Inc. C-9422 Baxter v. Ruddle 03/28/90 09/06/90 162 05/11/94 10/20/94 162 C-7129 Butler v. Holt Machinery Co. 05/03/89 10/11/89 161 C-9242 Advertising & Policy Comm. v. Avis Rent A Car Sys., Inc. 05/09/90 10/17/90 161 C-9877 Jones v. Strauss 06/27/90 12/05/90 161 D-0147 Hooks v. Fourth Court of Appeals 11/14/90 04/24/91 161 D-1067 Odle v. City of Denison 11/13/91 04/22/92 161 D-1145 Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. 09/18/91 02/26/92 161 D-1536 Black v. Dallas County Child Welfare Unit 01/08/92 06/17/92 161 D-2133 Moran Towing & Transp. Co. v. Salyer 04/29/92 10/07/92 161 94-0046 State Farm Fire & Cas. Co. v. Woodlock Page 19 EXT-18-2091-D-000051 007104-001927 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 04/21/93 09/29/93 161 00-0348 Texas Natural Resource & Conservation Comm'n v. White D-3324 Jones v. Valadez 11/16/00 04/26/01 161 00-0829 Yzaguirre v. KCS Resources, Inc. 01/11/01 06/21/01 161 01-0287 Argonaut Ins. Co. v. Baker 01/10/02 06/20/02 161 94-0878 Union Pump Co. v. Albritton 12/01/94 05/11/95 161 98-0554 Urrutia v. Decker 10/29/98 04/08/99 161 98-1100 Elliott-Williams Co. v. Diaz 07/08/99 12/16/99 161 95-1339 L.M. Healthcare, Inc. v. Childs 04/12/96 09/19/96 160 05/11/94 10/13/94 155 94-0421 Caballero v. Central Power & Light Co. 06/15/94 11/17/94 155 95-1165 Walker v. Harris 01/11/96 06/14/96 155 C-7379 Mount Pleasant Indep. Sch. Dist. v. Lindburg 09/14/88 02/15/89 154 C-8118 Martin v. Martin 02/08/89 07/12/89 154 C-8617 Texas Dept. of Human Serv. v. E.B. 05/09/90 10/10/90 154 C-8995 Bockelmann v. Marynick 11/22/89 04/25/90 154 C-9006 Viles v. Security Nat'l Ins. 11/15/89 04/18/90 154 C-9071 Marino v. State Farm Fire & Cas. Ins. Co. 11/22/89 04/25/90 154 C-9207 Enserch Corp. v. Parker 01/03/90 06/06/90 154 D-1320 Religious of the Sacred Heart v. City of Houston 01/29/92 07/01/92 154 D-2937 Turner v. First Court of Appeals 12/31/92 06/03/93 154 94-0416 Smith v. Houston Chem. Serv., Inc. 09/15/94 02/16/95 154 96-0022 Grain Dealers Mut. Ins. Co. v. McKee 11/15/96 04/18/97 154 98-0728 Southeastern Pipe Line Co. v. Tichacek 01/07/99 06/10/99 154 99-1071 Texas A&M Univ. v. Dalmac Constr. Co. 08/31/00 02/01/01 154 99-1301 Stringer v. Cendant Mortgage Corp. 01/06/00 06/08/00 154 D-4397 FDIC v. Nueces County 01/31/90 07/03/90 153 94-1233 Tilton v. Marshall C-9308 Webb County Appraisal Dist. v. New Laredo Hotel, Inc. 03/02/95 08/01/95 152 95-0881 Barshop v. Medina County Underground Water Conservation Dist. 01/30/96 06/28/96 150 95-1150 Cincinnati Life Ins. Co. v. Cates 02/09/96 07/08/96 150 95-1283 Liberty Nat'l Fire Ins. Co. v. Akin 02/09/96 07/08/96 150 94-0002 Copeland v. Boone 05/11/94 10/06/94 148 95-0652 Redman Homes, Inc. v. Ivy 11/16/95 04/12/96 148 C-8063 Millhouse v. Wiesenthal 01/11/89 06/07/89 147 C-8089 Cosgrove v. Grimes 02/01/89 06/28/89 147 C-8915 McAllen Methodist Hosp. v. Longoria 10/04/89 02/28/90 147 D-0100 Cecil v. Smith 10/03/90 02/27/91 147 D-0363 Ferguson v. Ninth Court of Appeals 10/10/90 03/06/91 147 D-1464 Star-Telegram, Inc v. Walker 02/05/92 07/01/92 147 D-1827 Eli Lilly & Co. v. Marshall 12/04/91 04/29/92 147 D-2170 Speer v. Presbyterian Children's Home & Serv. Agency 09/09/92 02/03/93 147 D-2174 Collum v. City of Abilene 06/17/92 11/11/92 147 D-4045 Thomas v. Ray 11/03/93 03/30/94 147 D-4202 Johnson & Johnson Medical, Inc. v. Sanchez 06/22/95 11/16/95 147 00-0418 Helena Chem. Co. v. Wilkins 11/30/00 04/26/01 147 97-0384 Mirzadeh v. Mirzadeh 12/04/97 04/30/98 147 98-0115 Earle v. Ratliff 02/04/99 07/01/99 147 98-0256 Blum v. Lanier 02/04/99 07/01/99 147 98-0808 Phillips v. Beaber 01/07/99 06/03/99 147 97-1073 Texas Workers' Compensation Ins. Fund v. Rodriguez 06/05/98 10/29/98 146 D-3869 Mentis v. Barnard 09/10/93 02/02/94 145 C-9476 De Gonzalez v. Mission Am. Ins. Co. 04/18/90 09/06/90 141 C-9739 Ex parte Lee 04/18/90 09/06/90 141 C-7865 Holloway v. Fifth Court of Appeals 10/12/88 03/01/89 140 Page 20 EXT-18-2091-D-000052 007104-001928 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-7942 Vinson v. Burgess 01/11/89 05/31/89 140 C-8101 Commissioners Court v. Winborne 01/11/89 05/31/89 140 C-8899 Humana Hosp. Corp. v. American Medical Sys., Inc. 10/11/89 02/28/90 140 D-1423 Meraz v. Odom 01/22/92 06/10/92 140 D-2481 F/R Cattle Co. v. State 12/02/92 04/21/93 140 D-3153 Berger v. Berger 05/19/93 10/06/93 140 94-0922 Syntax, Inc. v. Hall 12/22/94 05/11/95 140 95-0250 United States Catholic Conference, Inc. v. Ashby 04/12/96 08/30/96 140 97-1039 Proctor v. Andrews 01/16/98 06/05/98 140 98-1220 Havlen v. McDougall 08/26/99 01/13/00 140 99-0411 Embrey v. Royal Ins. Co. of Am. 12/02/99 04/20/00 140 97-0125 General Motors Corp. v. Gayle 02/21/97 07/09/97 138 97-0229 Hatley v. Texas A & M University 09/04/97 01/16/98 134 C-7507 Sterner v. Marathon Oil Co. 10/26/88 03/08/89 133 C-8892 Greenhalgh v. Service Lloyds Ins. Co. 11/29/89 04/11/90 133 C-9537 Bazile v. Aetna Cas. & Surety Co. 05/09/90 09/19/90 133 C-9782 Spears v. Fourth Court of Appeals 06/13/90 10/24/90 133 D-1885 Boyert v. Tauber 02/19/92 07/01/92 133 D-2252 Tarrant Appraisal Dist. v. Moore 09/16/92 01/27/93 133 D-3997 Moore v. Brunswick Bowling & Billiards Corp. 12/08/93 04/20/94 133 D-4171 Cain v. Hearst Corp. 02/09/94 06/22/94 133 01-0734 Minyard Food Stores, Inc. v. Goodman 01/31/02 06/13/02 133 99-0453 Henson v. Southern Farm Bureau Cas. Ins. Co. 12/02/99 04/13/00 133 97-0894 Collingsworth Gen. Hosp. v. Texas Employment Comm'n 02/13/98 06/25/98 132 97-1005 Lumbermen's Mut. Cas. Co. v. Manasco 02/13/98 06/23/98 130 95-0391 Davenport v. State 06/22/95 10/27/95 127 95-1041 Nootsie, Ltd. v. Williamson County Appraisal Dist. 03/07/96 07/12/96 127 C-7109 Rogers v. Ricane Enterprises, Inc. 02/08/89 06/14/89 126 C-7801 NCNB Texas Nat'l Bank v. Coker 10/19/88 02/22/89 126 C-9186 Cate v. Dover Corp. 01/31/90 06/06/90 126 C-9865 Ex parte Grisham 05/30/90 10/03/90 126 D-2753 Willingham Auto World v. Jones 09/30/92 02/03/93 126 D-2835 Forbis v. Trinity Universal Ins. Co. 12/16/92 04/21/93 126 D-4066 City of San Antonio v. Rodriguez 11/24/93 03/30/94 126 00-0453 In re City of Georgetown 10/12/00 02/15/01 126 94-0648 Travelers' Indem. Co. v. Fuller 10/13/94 02/16/95 126 94-0782 DeWitt v. Harris County 02/16/95 06/22/95 126 96-0683 Commissioners Court v. Agan 10/18/96 02/21/97 126 D-2308 Schultz v. Cadle Co. 12/31/92 05/05/93 125 C-9538 Brady v. Fourteenth Court of Appeals 02/16/90 06/20/90 124 D-0378 Edgewood Indep. Sch. Dist. v. Kirby 10/24/90 02/25/91 124 D-3751 Berry Property Mgmt., Inc. v. Bliskey 09/10/93 01/12/94 124 03/07/96 07/08/96 123 D-4530 Brook v. Brook 02/02/94 06/02/94 120 95-0882 Welsh v. Welsh 01/11/96 05/10/96 120 C-7534 Cherne Industries, Inc. v. Magallanes 09/28/88 01/25/89 119 C-8033 Beck v. Beck 02/08/89 06/07/89 119 C-8215 Shook v. Herman 07/12/89 11/08/89 119 C-8813 Best v. Ryan Auto Group, Inc. 11/22/89 03/21/90 119 C-9289 General Land Office v. Oxy U.S.A., Inc. 01/17/90 05/16/90 119 C-9953 Texas-New Mexico Power Co. v. Texas Indus. Energy Consumers 12/05/90 04/03/91 119 C-9966 Remington Arms Co. v. Caldwell 06/27/90 10/24/90 119 D-0758 London Market Cos. v. Schattman 02/13/91 06/12/91 119 95-0978 Tenneco Inc. v. Enterprise Products Co. Page 21 EXT-18-2091-D-000053 007104-001929 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-1567 Texas Gas Exploration Corp. v. Fluor Corp. 03/04/92 07/01/92 119 D-3041 Exxon Corp. v. West Texas Gathering Co. 03/03/93 06/30/93 119 D-4179 In re Thacker 02/16/94 06/15/94 119 00-0846 Furr's Supermarkets, Inc. v. Bethune 03/01/01 06/28/01 119 94-1148 Caterpillar, Inc. v. Shears 03/02/95 06/29/95 119 95-0174 Crown Central Petroleum Corp. v. Garcia 03/02/95 06/29/95 119 95-1242 Scott & White Mem. Hosp. v. Schexnider 08/16/96 12/13/96 119 97-0900 Van v. Pena 12/03/98 04/01/99 119 98-1243 In re Alcatel USA, Inc. 09/09/99 01/06/00 119 02/01/90 05/30/90 118 95-0505 Dow Chem. Co. v. Garcia 07/07/95 11/02/95 118 95-0633 Dow Chem. Co. v. Sanderson 07/07/95 11/02/95 118 D-3302 Bird v. W.C.W. 09/10/93 01/05/94 117 D-3694 Board of Law Examiners v. Stevens 09/10/93 01/05/94 117 11/26/96 03/21/97 115 D-1469 Carrollton-Farmers Branch Ind. Sch. Dist. v. Edgewood Ind. Sch. Dist. 10/09/91 01/30/92 113 D-1477 Andrews Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. 10/09/91 01/30/92 113 D-1493 McCarty v. County Educ. Dist. #21 10/09/91 01/30/92 113 D-1544 Reyes v. Mitchell County Educ. Dist. 10/09/91 01/30/92 113 D-1560 Highland Park Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist. 10/09/91 01/30/92 113 D-2060 Fitch v. Fourteenth Court of Appeals 02/18/92 06/10/92 113 D-2064 Bentsen v. Fourteenth Court of Appeals 02/18/92 06/10/92 113 03/16/95 07/07/95 113 C-7426 McKinley v. Stripling 09/21/88 01/11/89 112 C-8079 Commercial Life Ins. Co. v. Texas State Board of Ins. 03/01/89 06/21/89 112 C-8295 State v. 1985 Chevrolet 06/21/89 10/11/89 112 C-8461 Rainbo Baking Co. v. Stafford 10/11/89 01/31/90 112 C-8847 Rogers v. Clinton 02/21/90 06/13/90 112 C-9521 Dickson v. Simpson 10/24/90 02/13/91 112 D-0450 Bullock v. House of Lloyd Inc. 02/20/91 06/12/91 112 D-0747 Texas-New Mexico Power Co. v. Stem 06/19/91 10/09/91 112 D-1665 Rowntree v. Hunsucker 02/05/92 05/27/92 112 D-1901 Ex parte Buller 01/08/92 04/29/92 112 D-2895 First Nat'l Bank v. Tex Sun Beechcraft North, Inc. 12/16/92 04/07/93 112 95-0075 Bigham v. Dempster 02/16/95 06/08/95 112 95-0081 Bigham v. Beck 02/16/95 06/08/95 112 95-0852 Jennings v. Burgess 11/16/95 03/07/96 112 96-1299 Mobil Oil Corp. v. Ellender 01/16/98 05/08/98 112 98-0623 Villarreal v. San Antonio Truck & Equipment 02/04/99 05/27/99 112 98-0784 Melton v. State 01/07/99 04/29/99 112 D-2886 Archer v. Transportation Ins. Co. 12/31/92 04/21/93 111 C-8823 River Oaks Trust Co. v. Stovall 07/07/89 10/25/89 110 97-0631 D.S.A., Inc. c. Hillsboro Indep. Sch. Dist. 05/08/98 08/25/98 109 97-0941 State v. Roland 05/08/98 08/25/98 109 D-4376 Trinity River Auth. v. URS Consultants, Inc. 01/12/94 04/28/94 106 C-8050 Southern States Transportation, Inc. v. State 02/08/89 05/24/89 105 C-8052 In re Estate of Devitt 07/12/89 10/25/89 105 C-8055 Womco, Inc. v. Market Planners Ins. Agency, Inc. 06/28/89 10/11/89 105 C-8353 Edgewood Indep. Sch. Dist. v. Kirby 06/21/89 10/04/89 105 C-9108 Coalition of Cities v. Public Utility Comm'n 10/11/89 01/24/90 105 C-9384 Ex parte Jordan 01/03/90 04/18/90 105 C-9596 City of Fort Worth v. Williams 06/27/90 10/10/90 105 D-1366 Exxon Corp. v. Perez 05/27/92 09/09/92 105 C-9501 Ayres v. Canales 96-0496 The Science Spectrum, Inc. v. Martinez 95-0206 Sonnier v. Chisholm-Ryder Co. Page 22 EXT-18-2091-D-000054 007104-001930 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-2650 Davis v. Griffith 11/04/92 02/17/93 105 D-2651 Hebert v. Griffith 11/04/92 02/17/93 105 D-2884 Duross v. Freeman 12/09/92 03/24/93 105 D-3328 Barbero v. Wittig 02/03/93 05/19/93 105 D-3845 Phillips Petroleum Co. v. Garcia 09/29/93 01/12/94 105 94-1231 State v. Pruett 03/02/95 06/15/95 105 95-0678 Maritime Overseas Corp. v. Waiters 10/27/95 02/09/96 105 95-0873 Huie v. DeShazo 10/27/95 02/09/96 105 95-0874 Servants of the Paraclete v. Ashby 10/27/95 02/09/96 105 96-0292 State v. Thirteenth Court of Appeals 06/06/96 09/19/96 105 96-1263 Miller v. Metro Health Found. 12/04/97 03/19/98 105 C-9217 City of Weatherford v. Parker County 03/21/90 07/03/90 104 D-1735 Wittneben v. Lewis 10/31/91 02/12/92 104 01-0137 Doody v. Ameriquest Mortgage Co. 02/26/01 06/07/01 101 94-0504 Concord Oil Co. v. Pennzoil Exploration & Production Co. 11/17/97 02/26/98 101 95-1251 Holmes v. Morales 03/07/96 06/14/96 99 95-1292 Bruni v. Bruni 03/07/96 06/14/96 99 C-7781 Rodriguez v. Naylor Industries, Inc. 10/19/88 01/25/89 98 C-8063 Millhouse v. Wiesenthal 01/11/89 04/19/89 98 C-8849 Ramos v. Frito-Lay, Inc. 10/25/89 01/31/90 98 C-9031 Acker v. Texas Water Commission 01/24/90 05/02/90 98 C-9049 Nolan v. Ramsey 10/25/89 01/31/90 98 C-9155 Association of Texas Professional Educators v. Kirby 11/22/89 02/28/90 98 D-2351 Duke v. Maryland Cas. Co. 09/09/92 12/16/92 98 D-3839 Brosseau v. Woods 06/23/93 09/29/93 98 00-0386 Texas Dept. of Protective & Regulatory Servs. v. Sherry 02/15/01 05/24/01 98 96-0433 Diaz v. Westphal 12/13/96 03/21/97 98 96-0967 Mitchell Energy Corp. v. Ashworth 01/10/97 04/18/97 98 98-0076 In re Texas Parks & Wildlife Dept. 05/21/98 08/25/98 96 96-0357 Microsoft Corp. v. Sixth Court of Appeals 06/28/96 10/01/96 95 07/29/91 10/30/91 93 06/15/94 09/15/94 92 C-7616 Johnson v. Swain 02/22/89 05/24/89 91 C-8024 Ames v. Ames 04/12/89 07/12/89 91 C-8117 Trevino v. Murray 07/12/89 10/11/89 91 C-8689 Damon v. Cornett 09/20/89 12/20/89 91 C-9464 City of Richardson v. Responsible Dog Owners 03/28/90 06/27/90 91 D-0379 General Electric Co. v. Falcon Ridge Apartments 03/20/91 06/19/91 91 D-0473 Texaco Refining & Marketing, Inc. v. Estate of Dau Van Tran 01/23/91 04/24/91 91 D-0714 McLaren v. Beard 03/20/91 06/19/91 91 D-1494 Ex parte Sipes 09/11/91 12/11/91 91 D-3089 GTE Communication Systems Corp. v. Tanner 03/31/93 06/30/93 91 D-3172 Rivercenter Assoc. v. Rivera 03/24/93 06/23/93 91 D-3811 State Bar of Texas v. Humphreys 10/06/93 01/05/94 91 00-0282 Allstate Ins. Co. v. Bonner 02/08/01 05/10/01 91 01-0318 In re Cornyn 08/30/01 11/29/01 91 96-0590 Bandera Electric Cooperative, Inc. v. Gilchrist 03/21/97 06/20/97 91 99-0843 In re V.L.K. 03/23/00 06/22/00 91 D-0378 Edgewood Indep. Sch. Dist. v. Kirby 10/24/90 01/22/91 90 C-9225 City of Garland v. Barrera 12/31/90 03/27/91 86 D-4545 Kos v. Packer 03/09/94 06/02/94 85 D-1328 Casares v. Marsh 94-0442 Enis v. Smith 95-0949 Tenneco Oil Co. v. Galveston Terminals, Inc. 03/07/96 05/31/96 85 95-1209 Travelers Indem. Co. v. Mayfield 03/07/96 05/31/96 85 Page 23 EXT-18-2091-D-000055 007104-001931 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-8558 Edwards v. Lone Star Gas Co. 10/11/89 01/03/90 84 C-9522 Bushell v. Dean 11/21/90 02/13/91 84 D-0206 Brown v. Martin Gas Sales, Inc. 06/19/91 09/11/91 84 D-1119 Germania Ins. Co. v. Dicken 09/25/91 12/18/91 84 D-1520 Johnson v. City of Houston 11/13/91 02/05/92 84 D-1840 Otis Elevator Co. v. Parmelee 01/20/93 04/14/93 84 D-2453 Womack v. Reddin 12/02/92 02/24/93 84 D-4560 Ex parte Delcourt 03/30/94 06/22/94 84 00-0141 Spradlin v. Jim Walter Homes, Inc. 09/14/00 12/07/00 84 01-0383 Texas Dept. of Transp. v. Needham 02/14/02 05/09/02 84 95-0048 Able Supply Co. v. Moye 02/16/95 05/11/95 84 96-0489 Maple Run at Austin Mun. Util. Dist. v. Monaghan 07/26/96 10/18/96 84 98-0598 In re Continental Airlines, Inc. 07/03/98 09/24/98 83 98-0599 In re Legend Airlines, Inc. 07/03/98 09/24/98 83 C-7784 Hellman v. Mateo 04/26/89 07/12/89 77 C-8089 Cosgrove v. Grimes 02/01/89 04/19/89 77 C-8170 Tice v. City of Pasadena 01/11/89 03/29/89 77 C-8195 Freeman v. City of Pasadena 01/11/89 03/29/89 77 C-9551 Correa v. First Court of Appeals 02/21/90 05/09/90 77 C-9552 Carter v. First Court of Appeals 02/21/90 05/09/90 77 D-0749 Ex parte MacCallum 02/13/91 05/01/91 77 D-1857 McConnell v. Memorial Constr. Co. 12/16/92 03/03/93 77 D-2864 Wellborn v. Sears, Roebuch & Co. 09/23/92 12/09/92 77 D-3274 City of San Antonio v. Singleton 04/14/93 06/30/93 77 D-4090 Stewart v. USA Custom Paint & Body Shop, Inc. 11/17/93 02/02/94 77 94-0581 Grant v. Thirteenth Court of Appeals 10/06/94 12/22/94 77 00-0232 Ernst & Young v. Pacific Mut. Life Ins. Co. 10/19/00 01/03/01 76 97-0151 Bleeker v. Villarreal 10/16/97 12/31/97 76 97-0498 Trinity Universal Ins. Co. v. Bleeker 01/29/98 04/14/98 75 D-3489 State Farm Mut. Auto. Ins. Co. v. Dellana 03/24/93 06/03/93 71 C-7662 Marshall v. Vise 01/18/89 03/29/89 70 C-7911 The Houston Chronicle Publishing Co. v. Mattox 01/11/89 03/22/89 70 C-8620 Ex parte Garza 05/03/89 07/12/89 70 C-8621 Ex parte Leal 05/03/89 07/12/89 70 C-9132 Flanner v. Logan 12/20/89 02/28/90 70 C-9408 Driskill v. State 02/07/90 04/18/90 70 D-3329 Jaffe Aircraft Corp. v. Carr 09/29/93 12/08/93 70 02/15/01 04/26/01 70 D-0229 Texas Instruments Inc. v. Packer 09/06/90 11/14/90 69 C-8166 Atlantic Richfield Co. v. Petroleum Personnel, Inc. 02/22/89 04/26/89 63 C-8279 Garcia v. Kastner Farms, Inc. 05/10/89 07/12/89 63 C-8627 Ex parte Gonzales 05/10/89 07/12/89 63 C-8628 Ex parte Garza 05/10/89 07/12/89 63 C-8629 Ex parte Leal 05/10/89 07/12/89 63 D-0044 Responsive Terminal Systems, Inc. v. Boy Scouts of America 11/14/90 01/16/91 63 D-0971 Stewart-Kuss v. Moore 04/17/91 06/19/91 63 D-1549 Richards v. Mena 10/09/91 12/11/91 63 D-2962 Old Republic Ins. Co. v. Scott 12/02/92 02/03/93 63 10/11/01 12/13/01 63 D-3668 Rhodes v. Batilla 09/10/93 11/10/93 61 C-7998 Minnick v. Robinson 12/20/89 02/14/90 56 C-9776 Ex parte Lindley 05/02/90 06/27/90 56 D-0657 Sentry Ins. v. Moss 01/30/91 03/27/91 56 00-0386 Texas Dept. of Protective & Regulatory Servs. v. Sherry 01-0220 West Oaks Hosp., Inc. v. Jones Page 24 EXT-18-2091-D-000056 007104-001932 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-0972 Hartford Accident & Indem. Co. v. Abascal 04/24/91 06/19/91 56 D-3902 Tilton v. Moye 12/08/93 02/02/94 56 D-4302 Orix Credit Alliance, Inc. v. OmniBank 02/02/94 03/30/94 56 D-4311 City of Dallas v. Mitchell 12/08/93 02/02/94 56 00-0527 Kanz v. Hood 03/01/01 04/26/01 56 01-0521 ITT Hartfield Ins. Co. v. Home Depot, Inc. 02/14/02 04/11/02 56 95-0379 Continental Cas. Co. v. Flores 10/27/95 12/22/95 56 98-1070 Wal-Mart Stores, Inc. v. McKenzie 07/01/99 08/26/99 56 99-1204 Texas Workers' Compensation Ins. Fund v. Mandlbauer 08/24/00 10/19/00 56 D-1282 Firestone v. Marshall 07/12/91 09/05/91 55 D-3664 Thomas v. Pryor 09/10/93 11/03/93 54 C-9577 Carter v. Fourteenth Court of Appeals 02/20/90 04/11/90 50 C-7949 Haney v. Purcell Co. 04/05/89 05/24/89 49 C-8305 Daugherty v. Southern Pacific Transp. Co. 04/26/89 06/14/89 49 C-9579 Masinga v. 160th Judicial District Court 05/02/90 06/20/90 49 D-1193 Valley Baptist Medical Centre v. Bennett 02/12/92 04/01/92 49 D-2662 Wentworth v. Meyer 07/29/92 09/16/92 49 D-2771 Havner v. E-Z Mart Stores, Inc. 12/16/92 02/03/93 49 D-3890 Office of Pub. Util. Council v. Public Util. Comm'n 10/27/93 12/15/93 49 D-4087 Dallas Central Appraisal Dist. v. United States Postal Serv. 10/27/93 12/15/93 49 D-4188 Young Men's Christian Ass'n v. Moye 09/29/93 11/17/93 49 D-0106 Cass v. Jones 07/27/90 09/12/90 47 D-1345 Pelt v. Wittig 07/23/91 09/05/91 44 95-0228 Phillips Petroleum Co. v. Daigle 08/01/95 09/14/95 44 95-0301 Provident Nat'l Assurance Co. v. Stephens 09/14/95 10/27/95 43 96-0643 State v. Hardberger 07/18/96 08/30/96 43 C-8617 Texas Dept. of Human Serv. v. E.B. 05/09/90 06/20/90 42 C-8771 Whitson v. Goodbodys, Inc. 01/03/90 02/14/90 42 C-8974 National Union Fire Ins. Co. v. Lerma 01/24/90 03/07/90 42 D-0754 DeMary v. Sanderson 02/13/91 03/27/91 42 D-0794 United States Ins. Group. v. Lloyd 02/27/91 04/10/91 42 D-0810 HSP of Texas, Inc. v. Hall 02/27/91 04/10/91 42 D-1102 City of San Antonio v. Rodriguez 02/26/92 04/08/92 42 D-1817 Terrazas v. Ramirez 12/04/91 01/15/92 42 D-4350 International Armament Corp. v. Martin 12/08/93 01/19/94 42 03/11/99 04/22/99 42 98-0934 In re Perritt C-9396 Brown v. Meyer 12/29/89 02/07/90 40 C-9538 Brady v. Fourteenth Court of Appeals 02/16/90 03/28/90 40 C-9798 Ex parte Holland 05/04/90 06/13/90 40 D-1374 Syntek Finance Corp. v. Canales 08/02/91 09/11/91 40 C-9655 State v. Andrews 03/26/90 05/02/90 37 C-9243 Advertising & Policy Comm. v. Avis Rent A Car Sys., Inc. 09/12/90 10/17/90 35 C-9303 Chase Manhattan Bank v. Lindsay 02/28/90 04/04/90 35 D-0698 Lawrence v. Gonzalez 01/23/91 02/27/91 35 D-2245 Kawasaki Motors Corp. v. Thompson 02/02/94 03/09/94 35 D-3393 Texas Water Comm'n v. Dellana 02/17/93 03/24/93 35 D-4292 Dorsett Bros. Concrete Supp., Inc. v. Safeco Title Ins. Co. 01/12/94 02/16/94 35 01-0512 In re Nitla S.A. 03/07/02 04/11/02 35 98-1073 In re J7S Inc. 04/22/99 05/27/99 35 98-1082 In re J7S Cattle Co. 04/22/99 05/27/99 35 C-8861 Minnick v. Coker 08/17/89 09/20/89 34 D-2792 Finlay v. Federal Deposit Ins. Corp. 12/31/92 02/03/93 34 D-2942 Cabrera v. Cedarapids, Inc. 12/31/92 02/03/93 34 Page 25 EXT-18-2091-D-000057 007104-001933 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 97-0023 Rapid-American Corp. v. Link 02/21/97 03/27/97 34 01-0570 In re Bolle, Inc. 09/20/01 10/23/01 33 00-0601 Lone Star Gas Co. v. EFP Corp. 11/19/01 12/20/01 31 C-8994 Martin v. Gulf Ins. Group 05/09/90 06/06/90 28 C-9172 Ex parte Mosquedo 10/25/89 11/22/89 28 D-0321 Henderson v. O'Neill 10/03/90 10/31/90 28 D-0375 Nan Travis Memorial Hosp. v. Touchy 10/10/90 11/07/90 28 D-0808 Ramirez v. Packer 03/06/91 04/03/91 28 D-4012 Parker v. Frost Nat'l Bank 03/09/94 04/06/94 28 94-0269 Temple Indep. Sch. Dist. v. English 03/02/95 03/30/95 28 95-0750 University Hosp., Inc. v. Cooke 10/18/96 11/15/96 28 95-0805 City of Alamo v. Montes 10/18/96 11/15/96 28 96-0481 Aramark Uniform Servs., Inc. v. Tyson 11/15/96 12/13/96 28 94-0079 Cessna Aircraft Co. v. Chambers 05/11/94 06/02/94 22 10/09/91 10/30/91 21 01-0822 In re M.A.C. 02/28/02 03/21/02 21 96-0204 Williams v. Brooks 01/10/97 01/31/97 21 98-0818 In re City of Dallas 09/03/98 09/24/98 21 C-9948 Ex parte Wilson 06/07/90 06/27/90 20 C-9949 Ex parte Wilson 06/07/90 06/27/90 20 C-9446 Bloom v. Fourth Court of Appeals 01/19/90 02/07/90 19 D-2032 Dawkins v. Meyer 02/07/92 02/26/92 19 96-0364 Certain Underwriters at Lloyd's of London v. Johnson 04/24/96 05/10/96 16 02-0104 In re Gamble 02/04/02 02/19/02 15 C-8682 Cropper v. Caterpillar Tractor Co. 09/06/89 09/20/89 14 D-0299 Marshall v. Fifth Court of Appeals 09/19/90 10/03/90 14 D-1817 Terrazas v. Ramirez 12/04/91 12/18/91 14 D-1549 Richards v. Mena 94-0593 Dow Corning Corp. v. Schneider 09/01/94 09/15/94 14 94-0759 Dow Corning Corp. v. Soussan 09/01/94 09/15/94 14 94-0761 Dow Corning Corp. v. Bianchi 09/01/94 09/15/94 14 95-0480 Occidental Chem. Corp. v. Banales 06/01/95 06/15/95 14 C-9506 Sears v. Bayoud 02/07/90 02/14/90 7 D-0516 Ex parte Williams 11/14/90 11/21/90 7 D-0596 Ex parte Boyd 12/12/90 12/19/90 7 D-0865 Pan American Sales Corp. v. Rhea 04/03/91 04/10/91 7 01-0979 In re Perry 10/15/01 10/22/01 7 99-0406 Lehmann v. Har-Con Corp. 08/26/99 09/02/99 7 99-0461 Harris v. Harbour Title Co. 08/26/99 09/02/99 7 01-0728 Perry v. Del Rio 09/07/01 09/12/01 5 01-0810 Perry v. Cotera 09/07/01 09/12/01 5 01-0827 In re Bentsen 09/07/01 09/12/01 5 01-0988 Perry v. Del Rio 10/15/01 10/19/01 4 C-9448 Martinez v. Fourteenth Court of Appeals 01/19/90 01/22/90 3 10/16/01 10/19/01 3 D-2856 Slagle v. Hannah 09/15/92 09/16/92 1 C-7192 Warren v. Triland Investment Group 11/22/89 11/22/89 0 C-7194 Responsive Terminal Systems, Inc. v. Boy Scouts of America 07/05/89 07/05/89 0 C-7555 Dorchester Gas Producing Co. v. Hagy 10/04/89 10/04/89 0 C-7658 Sullivan v. Sullivan 04/05/89 04/05/89 0 C-7784 Hellman v. Mateo 04/26/89 04/26/89 0 C-7785 Redland Fabricating & Welding, Inc. v. Aramco Serv. Co. 04/05/89 04/05/89 0 C-7821 Packer v. Fifth Court of Appeals 02/08/89 02/08/89 0 C-7955 State Farm County Mut. Ins. Co. v. Ollis 01/11/89 01/11/89 0 01-1002 Del Rio v. Perry Page 26 EXT-18-2091-D-000058 007104-001934 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-7986 Bobbitt v. Weeks 05/17/89 05/17/89 0 C-7994 Eshleman v. Shield 02/15/89 02/15/89 0 C-8103 Migura v. Dukes 05/24/89 05/24/89 0 C-8117 Trevino v. Murray 07/12/89 07/12/89 0 C-8148 Otis Elevator Co. v. Bedre 06/21/89 06/21/89 0 C-8160 Dobbins v. Redden 02/28/90 02/28/90 0 C-8191 Philipp Brothers, Inc. v. Oil Country Specialists, Ltd. 06/07/89 06/07/89 0 C-8211 Lone Star Gas Co. v. Railroad Comm'n 04/05/89 04/05/89 0 C-8226 Splettstosser v. Myer 11/08/89 11/08/89 0 C-8250 Roberson v. Robinson 04/19/89 04/19/89 0 C-8267 State v. Garza 09/20/89 09/20/89 0 C-8284 Boothe v. Hausler 03/08/89 03/08/89 0 C-8288 Snoke v. Republic Underwriters Ins. Co. 05/03/89 05/03/89 0 C-8295 State v. 1985 Chevrolet 06/21/89 06/21/89 0 C-8356 Palmer Well Serv., Inc. v. Mack Trucks, Inc. 07/12/89 07/12/89 0 C-8361 Sharp v. Broadway Nat'l Bank 02/14/90 02/14/90 0 C-8396 Cincinnati Inc. v. Hernandez 06/14/89 06/14/89 0 C-8430 Rose v. Fifth Court of Appeals 03/22/89 03/22/89 0 C-8456 Texas Alcoholic Beverage Comm'n v. Sierra 02/14/90 02/14/90 0 C-8461 Rainbo Baking Co. v. Stafford 10/11/89 10/11/89 0 C-8473 LBL Oil Co. v. International Power Services, Inc. 09/20/89 09/20/89 0 C-8543 Sadler v. Sadler 05/17/89 05/17/89 0 C-8571 Sosa v. City of Balch Springs 06/07/89 06/07/89 0 C-8607 Johnson v. City of Fort Worth 06/28/89 06/28/89 0 C-8642 State Bar v. Evans 06/28/89 06/28/89 0 C-8665 Paragon Sales Co. v. New Hampshire Ins. Co. 06/28/89 06/28/89 0 C-8672 Talmantez v. Strauss 06/28/89 06/28/89 0 C-8729 State v. Arnold 10/18/89 10/18/89 0 C-8736 American Medical Int'l, Inc. v. Casseb 07/12/89 07/12/89 0 C-8742 International Union v. Johnson Controls, Inc. 03/07/90 03/07/90 0 C-8784 Burkard v. Asco Co. 11/08/89 11/08/89 0 C-8807 Preferred Heating & Air Conditioning Co. v. Shelby 10/04/89 10/04/89 0 C-8813 Best v. Ryan Auto Group, Inc. 11/22/89 11/22/89 0 C-8864 Dorchester Master Ltd. Partnership v. Hunt 04/25/90 04/25/90 0 C-8971 Emerald Oaks Hotel/Conference Center, Inc. v. Zardenetta 09/13/89 09/13/89 0 C-8976 Gant v. DeLeon 02/28/90 02/28/90 0 C-9003 Vawter v. Garvey 03/07/90 03/07/90 0 C-9028 INA v. Briscoe 11/29/89 11/29/89 0 C-9147 San Jacinto River Auth. v. Duke 01/10/90 01/10/90 0 C-9175 Vastine v. Bank of Dallas 03/07/90 03/07/90 0 C-9178 Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp. 04/25/90 04/25/90 0 C-9211 Athari v. Hutcheson 01/16/91 01/16/91 0 C-9225 City of Garland v. Barrera 12/31/90 12/31/90 0 C-9246 Christiansen v. Prezelski 01/10/90 01/10/90 0 C-9250 Emerson v. Tunnell 05/02/90 05/02/90 0 C-9254 Shadowbrook Apartments v. Abu-Ahmad 01/31/90 01/31/90 0 C-9303 Chase Manhattan Bank v. Lindsay 02/28/90 02/28/90 0 C-9369 Hayden v. Liberty Mut. Fire Ins. Co. 02/28/90 02/28/90 0 C-9391 Smith v. Williams 02/28/90 02/28/90 0 C-9439 Berry v. Berry 03/28/90 03/28/90 0 C-9449 Lee v. Braeburn Valley West Civic Ass'n 03/07/90 03/07/90 0 C-9469 Spencer v. Eagle Star Ins. Co. 06/30/93 06/30/93 0 C-9470 Biffle v. Morton Rubber Indus. 02/21/90 02/21/90 0 Page 27 EXT-18-2091-D-000059 007104-001935 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 C-9490 Mapco, Inc. v. Forrest 03/07/90 03/07/90 0 C-9522 Bushell v. Dean 11/21/90 11/21/90 0 C-9559 Mayhew v. Caprito 05/30/90 05/30/90 0 C-9589 Holmes v. Harrison 11/21/90 11/21/90 0 C-9598 Gill Sav. Ass'n v. Chair King, Inc. 10/17/90 10/17/90 0 C-9621 Grand Prairie Indep. Sch. Dist. v. Vaughn 06/20/90 06/20/90 0 C-9627 Carter v. Mapco, Inc. 05/09/90 05/09/90 0 C-9670 City of Temple Civil Serv. Comm'n v. Bender 04/25/90 04/25/90 0 C-9877 Jones v. Strauss 11/11/92 11/11/92 0 D-0002 Worford v. Stamper 11/14/90 11/14/90 0 D-0032 Pan American Life Ins. Co. v. Erbauer Constr. Corp. 01/30/91 01/30/91 0 D-0046 New York Underwriters Ins. Co. v. Sanchez 12/05/90 12/05/90 0 D-0047 Tesoro Petroleum v. Smith 10/17/90 10/17/90 0 D-0081 Garvey v. Vawter 09/19/90 09/19/90 0 D-0124 DSC Finance Corp. v. Moffitt 10/24/90 10/24/90 0 D-0130 Blackman v. Langford 09/19/90 09/19/90 0 D-0163 Ex parte Garcia 09/06/90 09/06/90 0 D-0171 Ragsdale v. Progressive Voters League 12/31/90 12/31/90 0 D-0206 Brown v. Martin Gas Sales, Inc. 06/19/91 06/19/91 0 D-0215 McConnell v. May 10/10/90 10/10/90 0 D-0239 M.S. v. All Saints Episcopal Hosp. 01/23/91 01/23/91 0 D-0371 Powers v. Palacios 06/12/91 06/12/91 0 D-0420 Tricentrol Oil Trading, Inc. v. Annesley 05/08/91 05/08/91 0 D-0422 Anderson v. Snider 04/10/91 04/10/91 0 D-0434 Ticor Title Ins. Co. v. Lacy 11/28/90 11/28/90 0 D-0464 Chevron U.S.A., Inc. v. Simon 06/12/91 06/12/91 0 D-0478 Landmark Amer. Ins. Co. v. Pulse Ambulance Serv., Inc. 06/19/91 06/19/91 0 D-0508 Isuani v. Manske-Sheffield Radiology Group 01/23/91 01/23/91 0 D-0569 Southland Life Ins. Co. v. Small 03/27/91 03/27/91 0 D-0572 F & A Equipment Leasing v. Federal Deposit Ins. Corp. 07/01/92 07/01/92 0 D-0720 Brownsville Navigation Dist. v. Izaguirre 05/06/92 05/06/92 0 D-0770 Feith Systems & Software, Inc. v. Design Information Systems 06/05/91 06/05/91 0 D-0848 Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc. 06/19/91 06/19/91 0 D-0852 Weaver v. Southwest Nat'l Bank 06/05/91 06/05/91 0 D-0858 Ross Stores, Inc. v. Redken Laboratories, Inc. 06/12/91 06/12/91 0 D-0866 O'Connor v. Sam Houston Medical Hosp., Inc. 04/24/91 04/24/91 0 D-0898 Welex v. Broom 10/16/91 10/16/91 0 D-0940 Johnson v. Butler 06/19/91 06/19/91 0 D-0953 Smith v. O'Neill 06/19/91 06/19/91 0 D-0954 Ex parte Sproull 09/11/91 09/11/91 0 D-0980 Hood v. Amarillo Nat'l Bank 09/18/91 09/18/91 0 D-0987 Head v. Twelfth Court of Appeals 06/19/91 06/19/91 0 D-0996 Halsell v. Dehoyos 06/05/91 06/05/91 0 D-1024 Wood v. Brown 11/20/91 11/20/91 0 D-1060 Ex parte Eastland 06/19/91 06/19/91 0 D-1063 Ex parte Perales 09/05/91 09/05/91 0 D-1069 Dancy v. Daggett 09/18/91 09/18/91 0 D-1086 In re C.C.G. 12/04/91 12/04/91 0 D-1093 Briones v. Solomon 11/06/91 11/06/91 0 D-1102 City of San Antonio v. Rodriguez 02/26/92 02/26/92 0 D-1126 Malaysia British Assurance v. El Paso Reyco, Inc. 05/06/92 05/06/92 0 D-1132 Gannon v. Baker 11/06/91 11/06/91 0 D-1145 Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. 09/18/91 09/18/91 0 Page 28 EXT-18-2091-D-000060 007104-001936 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-1145 Chapin & Chapin, Inc. v. Texas Sand & Gravel Co. 09/30/92 09/30/92 0 D-1170 General Elec. Credit Corp. v. Midland Central Appraisal Dist. 10/16/91 10/16/91 0 D-1172 Ex parte Elliot 09/11/91 09/11/91 0 D-1192 Towers of Texas, Inc. v. J&J Systems, Inc. 04/22/92 04/22/92 0 D-1194 Thordson v. City of Houston 09/18/91 09/18/91 0 D-1197 Mapco, Inc. v. Carter 10/23/91 10/23/91 0 D-1250 State First Nat'l Bank v. Mollenhour 09/25/91 09/25/91 0 D-1276 Texas Dept. of Human Serv. v. White 10/23/91 10/23/91 0 D-1287 Service Lloyds Ins. Co. v. Harbison 11/06/91 11/06/91 0 D-1289 State v. $11,014 10/23/91 10/23/91 0 D-1291 Creel v. District Attorney 10/30/91 10/30/91 0 D-1294 Elder Constr., Inc. v. City of Colleyville 09/16/92 09/16/92 0 D-1323 Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Hughes 04/22/92 04/22/92 0 D-1325 Estate of Pollack v. McMurrey 05/06/92 05/06/92 0 D-1366 Exxon Corp. v. Perez 05/27/92 05/27/92 0 D-1373 Felderhoff v. Felderhoff 11/13/91 11/13/91 0 D-1386 Mossler v. Shields 11/06/91 11/06/91 0 D-1404 Southwestern Bell Telephone Co. v. John Carlo Texas, Inc. 12/09/92 12/09/92 0 D-1418 Scott v. Twelfth Court of Appeals 03/13/92 03/13/92 0 D-1421 Ex parte Briley 10/09/91 10/09/91 0 D-1452 Crown Life Ins. Co. v. Estate of Gonzalez 11/06/91 11/06/91 0 D-1476 H. E. Butt Grocery Co. v. Warner 12/02/92 12/02/92 0 D-1503 Smith v. Southwest Feed Yards, Ltd. 06/24/92 06/24/92 0 D-1518 Gulf Coast Investment Corp. v. Brown 12/04/91 12/04/91 0 D-1519 Siewert v. Siewert 01/22/92 01/22/92 0 D-1539 Koepp v. Utica Mut. Ins. Co. 11/20/91 11/20/91 0 D-1557 John v. State 02/26/92 02/26/92 0 D-1592 State v. $435,000 10/07/92 10/07/92 0 D-1597 Cahill v. Lyda 02/05/92 02/05/92 0 D-1603 Orozco v. Sander 01/22/92 01/22/92 0 D-1670 American Trading & Production Corp. v. Delgado 01/22/92 01/22/92 0 D-1677 Gold Kist, Inc. v. Texas Utilities Electric Co. 05/06/92 05/06/92 0 D-1678 Geo Viking, Inc. v. Tex-Lee Operating Co. 04/22/92 04/22/92 0 D-1680 Green v. Morales 06/24/92 06/24/92 0 D-1701 Klein Indep. Sch. Dist. v. Wilson 04/29/92 04/29/92 0 D-1714 Bank One v. Sunbelt Savings 02/05/92 02/05/92 0 D-1734 Esquivel v. Watson 01/22/92 01/22/92 0 D-1772 Smith v. Lippmann 02/19/92 02/19/92 0 D-1827 Eli Lilly & Co. v. Marshall 12/04/91 12/04/91 0 D-1836 Chandler v. Hyundai Motor Co. 05/06/92 05/06/92 0 D-1840 Otis Elevator Co. v. Parmelee 01/20/93 01/20/93 0 D-1898 In re V.C. 04/29/92 04/29/92 0 D-1899 In re R.P. 04/29/92 04/29/92 0 D-1900 In re D.V. 04/29/92 04/29/92 0 D-1970 Borden, Inc. v. De la Rosa 07/01/92 07/01/92 0 D-1988 Larouche v. Secretary of State 01/29/92 01/29/92 0 D-2005 Ex parte Hernandez 03/25/92 03/25/92 0 D-2018 State v. Tex-J Ranches, Inc. 10/21/92 10/21/92 0 D-2025 Kennedy v. Eden 09/16/92 09/16/92 0 D-2031 Mueller v. Saravia 03/25/92 03/25/92 0 D-2057 Gibson v. Methodist Hospital 06/24/92 06/24/92 0 D-2072 Exxon Gas System, Inc. v. Brandywine Indus. Gas, Inc. 06/17/92 06/17/92 0 D-2090 Miller Brewing Co. v. Villarreal 04/29/92 04/29/92 0 Page 29 EXT-18-2091-D-000061 007104-001937 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-2136 Martinez v. Windsor Park Dev. Co. 06/24/92 06/24/92 0 D-2180 Landoll Corp. v. Morris 12/09/92 12/09/92 0 D-2205 Clements v. Barnes 06/17/92 06/17/92 0 D-2228 Geters v. Eagle Ins. Co. 06/24/92 06/24/92 0 D-2234 City of Wichita Fallas v. ITT Commercial Finance Corp. 05/27/92 05/27/92 0 D-2257 HCA Health Serv. of Texas, Inc. v. Salinas 10/07/92 10/07/92 0 D-2278 Harbison-Fischer Mfg. Co. v. Mohawk Data Sciences Corp. 11/11/92 11/11/92 0 D-2282 Pietila v. Crites 02/24/93 02/24/93 0 D-2293 McGough v. First Court of Appeals 06/17/92 06/17/92 0 D-2294 Rooke v. Jenson 09/09/92 09/09/92 0 D-2296 State v. Munday Enterprises 11/24/93 11/24/93 0 D-2299 Thomas v. Allen 09/23/92 09/23/92 0 D-2304 Bacon v. General Devices, Inc. 06/03/92 06/03/92 0 D-2320 R.V. Industries v. County of Webb 04/07/93 04/07/93 0 D-2321 Commonwealth Lloyd's Ins. Co. v. Thomas 01/20/93 01/20/93 0 D-2348 Rogers v. Stell 07/01/92 07/01/92 0 D-2360 State Dept. of Highways & Public Transp. v. Cotner 01/20/93 01/20/93 0 D-2425 Howell v. Thompson 10/21/92 10/21/92 0 D-2444 Kidder, Peabody & Co. v. Lutheran Brotherhood 11/11/92 11/11/92 0 D-2479 Texas Health Enterprises, Inc. v. Krell 07/01/92 07/01/92 0 D-2518 Schein v. American Restaurant Group, Inc. 04/07/93 04/07/93 0 D-2522 One 1985 Chevrolet v. State 02/24/93 02/24/93 0 D-2539 Fanning v. Fanning 01/27/93 01/27/93 0 D-2559 Bowen v. Aetna Cas. & Sur. Co. 09/16/92 09/16/92 0 D-2595 Stiles v. Resolution Trust Corp. 12/08/93 12/08/93 0 D-2601 H. B. Zachry Co. v. Gonzalez 02/03/93 02/03/93 0 D-2608 State v. Brister 07/03/92 07/03/92 0 D-2616 Schindler v. Austwell Farmers' Cooperative 10/14/92 10/14/92 0 D-2638 State v. Spurs 10/07/92 10/07/92 0 D-2683 Guaranty County Mut. Ins. Co. v. Kline 12/31/92 12/31/92 0 D-2686 Quail Harbor Condominium Ass'n, Inc. v. Gonzales 10/14/92 10/14/92 0 D-2780 State v. Dowd 11/24/93 11/24/93 0 D-2781 Commonwealth Land Title Co. v. Dulworth 12/16/92 12/16/92 0 D-2848 Capital Income Properties-LXXX v. Blackmon 12/16/92 12/16/92 0 D-2878 Eckles v. City of Lubbock 12/31/92 12/31/92 0 D-2893 Meyerland Co. v. FDIC 01/27/93 01/27/93 0 D-2932 State v. $80,631 12/16/92 12/16/92 0 D-2947 The Island on Lake Travis, Ltd. v. The Hayman Co. 03/03/93 03/03/93 0 D-2962 Old Republic Ins. Co. v. Scott 12/02/92 12/02/92 0 D-2987 Bennett v. French Int'l & Calvert Motor Co. 12/02/92 12/02/92 0 D-3108 Faulkner v. Culver 03/24/93 03/24/93 0 D-3138 Oak Park Townhouses v. Brazosport Bank 03/24/93 03/24/93 0 D-3153 Berger v. Berger 05/19/93 05/19/93 0 D-3156 Fruehauf Corp. v. Carrillo 02/24/93 02/24/93 0 D-3162 Horrocks v. Texas Dept. of Transp. 04/14/93 04/14/93 0 D-3166 El Paso Natural Gas Co. v. Berryman 05/19/93 05/19/93 0 D-3185 Federal Express Corp. v. Dutschmann 02/03/93 02/03/93 0 D-3190 Houston Cable TV, Inc. v. Inwood West Civic Ass'n 05/19/93 05/19/93 0 D-3198 Blair v. Fletcher 03/03/93 03/03/93 0 D-3201 Levit v. Adams 03/24/93 03/24/93 0 D-3251 Martinez v. The Crime Stoppers Advisory Council 01/08/93 01/08/93 0 D-3252 In re B.I.V. 02/02/94 02/02/94 0 D-3258 State v. Kitchen 03/24/93 03/24/93 0 Page 30 EXT-18-2091-D-000062 007104-001938 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-3262 Light v. Centel Cellular Co. 10/06/93 10/06/93 0 D-3274 City of San Antonio v. Singleton 04/14/93 04/14/93 0 D-3301 FDIC v. Gray 03/24/93 03/24/93 0 D-3322 Sawyer v. Millard 03/24/93 03/24/93 0 D-3326 Nuernberg v. Texas Employment Comm'n 06/16/93 06/16/93 0 D-3328 Barbero v. Wittig 02/03/93 02/03/93 0 D-3377 Vanscot Concrete Co. v. Bailey 05/19/93 05/19/93 0 D-3387 Edwards v. Holleman 06/16/93 06/16/93 0 D-3427 Hennigan v. I.P. Petroleum Co. 06/30/93 06/30/93 0 D-3430 Penrod Drilling Corp. v. Williams 06/16/93 06/16/93 0 D-3488 State Farm Fire & Cas. Co. v. Costley 06/23/93 06/23/93 0 D-3519 Hughes v. Habitat Apartments 09/10/93 09/10/93 0 D-3564 Forman v. Fina Oil & Chem. Co. 06/30/93 06/30/93 0 D-3627 State v. Edwards 11/24/93 11/24/93 0 D-3637 Riner v. Briargrove Park Property Owners, Inc. 06/30/93 06/30/93 0 D-3648 Chicago Title Ins. Co. v. McDaniel 01/05/94 01/05/94 0 D-3654 VE Corp. v. Ernst & Young 06/16/93 06/16/93 0 D-3659 Sears, Roebuck & Co. v. Meadows 04/20/94 04/20/94 0 D-3666 Mauze v. Curry 09/10/93 09/10/93 0 D-3678 Marino v. Hartsfield 01/05/94 01/05/94 0 D-3703 Little v. Daggett 06/23/93 06/23/93 0 D-3741 Viola v. Ratner Corp. 08/26/93 08/26/93 0 D-3773 State v. Centennial Mortgage Corp. 11/24/93 11/24/93 0 D-3800 State v. Burris 05/11/94 05/11/94 0 D-3803 Springer v. Spruiell 11/24/93 11/24/93 0 D-3804 Springer v. First Nat'l Bank 11/24/93 11/24/93 0 D-3811 State Bar of Texas v. Humphreys 06/23/93 06/23/93 0 D-3819 McConathy v. McConathy 01/05/94 01/05/94 0 D-3831 Davis v. Zoning Board of Adjustment 11/24/93 11/24/93 0 D-3844 Walling v. Metcalfe 10/06/93 10/06/93 0 D-3850 Sanchez v. Board of Disciplinary Appeals 04/20/94 04/20/94 0 D-3860 Jamar v. Patterson 11/17/93 11/17/93 0 D-3866 Cadle Co. v. Estate of Weaver 03/09/94 03/09/94 0 D-3927 Dallas/Fort Worth Int'l Airport Bd. v. City of Irving 09/29/93 09/29/93 0 D-3927 Dallas/Fort Worth Int'l Airport Bd. v. City of Irving 10/27/93 10/27/93 0 D-3928 Borden, Inc. v. Rios 08/26/93 08/26/93 0 D-3962 County of Alameda v. Smith 09/29/93 09/29/93 0 D-3990 Liberty Mut. Ins. Co. v. Cruz 12/08/93 12/08/93 0 D-3994 Allstate Ins. Co. v. Carter 09/10/93 09/10/93 0 D-4005 Academy of Model Aeronautics, Inc v. Packer 09/10/93 09/10/93 0 D-4031 In re R.A.G. 11/24/93 11/24/93 0 D-4044 City of Abilene v. Public Util. Comm'n 07/21/95 07/21/95 0 D-4055 State Bar of Texas v. Kilpatrick 01/05/94 01/05/94 0 D-4061 Nationwide Mut. Ins. Co. v. Crowe 11/03/93 11/03/93 0 D-4071 State v. Allen 01/05/94 01/05/94 0 D-4088 State v. Hynes 11/24/93 11/24/93 0 D-4095 State Farm Fire & Cas. Co. v. Simmons 07/09/97 07/09/97 0 D-4150 Henderson v. Floyd 01/12/95 01/12/95 0 D-4152 Tippy v. Walker 11/17/93 11/17/93 0 D-4157 EKA Liquidators v. Phillips 03/09/94 03/09/94 0 D-4177 Old Republic Ins. Co. v. Scott 03/30/94 03/30/94 0 D-4220 Service Lloyds Ins. Co. v. Thomas 12/22/93 12/22/93 0 D-4231 Commercial Life Ins. Co. v. Texas State Bd. of Ins. 02/09/94 02/09/94 0 Page 31 EXT-18-2091-D-000063 007104-001939 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 D-4258 Walden v. Jeffery 03/16/95 03/16/95 0 D-4260 Werner v. Colwell 11/24/93 11/24/93 0 D-4276 Ex parte Jordan 11/17/93 11/17/93 0 D-4296 M.R. Champion, Inc. v. Mizell 01/05/94 01/05/94 0 D-4305 Aetna Cas. & Sur. Co. v. Texas Comm'r of Ins. 12/31/93 12/31/93 0 D-4357 Rios v. Calhoon 04/20/94 04/20/94 0 D-4386 GNB, Inc. v. Collin County Appraisal Dist. 03/09/94 03/09/94 0 D-4393 Martinez v. Humble Sand & Gravel, Inc. 04/20/94 04/20/94 0 D-4400 Office of Public Utility Counsel v. Public Utility Comm'n 06/22/94 06/22/94 0 D-4415 Freis v. Canales 04/28/94 04/28/94 0 D-4506 Ex parte Lowe 06/08/94 06/08/94 0 D-4516 Atchison, T. & S.F. Ry. v. Sanchez 03/30/94 03/30/94 0 D-4546 Szczepanik v. First Southern Trust Co. 06/02/94 06/02/94 0 D-4560 Ex parte Delcourt 03/30/94 03/30/94 0 D-4582 Mischer Corp. v. Heil-Quaker Corp. 05/25/94 05/25/94 0 D-4588 Groves v. Gabriel 04/20/94 04/20/94 0 D-4597 Classen v. Irving Healthcare Sys. 04/27/95 04/27/95 0 00-0040 Diversified Fin. Sys., Inc. v. Hill, Heard, O'Neal, Gilstrap & Goetz 09/20/01 09/20/01 0 00-0137 Brown v. Fullenweider 03/29/01 03/29/01 0 00-0140 In re Doe 1 03/02/00 03/02/00 0 00-0191 In re Doe 2 03/09/00 03/09/00 0 00-0193 In re Doe 3 03/13/00 03/13/00 0 00-0213 In re Doe 4 03/22/00 03/22/00 0 00-0224 In re Doe 1(II) 06/22/00 06/22/00 0 00-0233 Madison v. Gordon 02/01/01 02/01/01 0 00-0278 Brents v. Haynes & Boone 04/26/01 04/26/01 0 00-0285 Valley Baptist Med. Ctr. v. Gonzalez 10/26/00 10/26/00 0 00-0299 Dow Chem. Co. v. Francis 04/26/01 04/26/01 0 00-0317 In re Doe 4(II) 04/13/00 04/13/00 0 00-0324 John v. Marshall Health Servs., Inc. 09/20/01 09/20/01 0 00-0413 Texas Dept. of Pub. Safety v. Callender 06/21/01 06/21/01 0 00-0457 Rose City Sand Corp. v. Watson 01/18/01 01/18/01 0 00-0458 Estrada v. Dillon 04/12/01 04/12/01 0 00-0465 Compania Financiara Libano, S.A. v. Najarro 06/21/01 06/21/01 0 00-0474 In re University Interscholastic League 05/25/00 05/25/00 0 00-0485 Eiland v. Turpin, Smith, Dyer, Saxe & McDonald 04/26/01 04/26/01 0 00-0517 Kagan-Edelman Enterprises v. Bond 05/25/00 05/25/00 0 00-0554 In re J.W. 04/05/01 04/05/01 0 00-0763 Henry v. Dillard's Dept. Stores, Inc. 02/14/02 02/14/02 0 00-0774 Bobbitt v. Stran 04/26/01 04/26/01 0 00-0827 DSI Staff Connxions Southwest, Inc. v. Farias 01/18/01 01/18/01 0 00-0847 Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan 06/21/01 06/21/01 0 00-0859 Gainsco County Mut. Ins. Co. v. Martinez 10/12/00 10/12/00 0 00-0907 In re K.R. 11/08/01 11/08/01 0 00-0908 Parks v. Texas Dept. of Pub. Safety 06/21/01 06/21/01 0 00-0911 Nash v. Harris County 11/08/01 11/08/01 0 00-0967 E. I. DuPont de Nemours & Co. v. Bee Agricultural Co. 12/06/01 12/06/01 0 00-0974 Parsons v. Turley 04/26/01 04/26/01 0 00-1014 Parking Co. v. Wilson 09/20/01 09/20/01 0 00-1103 Jacobs v. Satterwhite 12/13/01 12/13/01 0 00-1185 In re Van Waters & Rogers, Inc. 11/08/01 11/08/01 0 00-1234 Guajardo v. Conwell 04/26/01 04/26/01 0 00-1249 Gulf States Utils. Co. v. Low 05/30/02 05/30/02 0 Page 32 EXT-18-2091-D-000064 007104-001940 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 00-1297 Sungard Data Sys., Inc. v. Southwest Securities, Inc. 05/17/01 05/17/01 0 00-1321 In re Texas Senate 12/28/00 12/28/00 0 01-0142 Limestone Prods. Distrib., Inc. v. McNamara 02/14/02 02/14/02 0 01-0260 SCI Mgmt. Corp. v. Galvan 04/12/01 04/12/01 0 01-0405 Ohio Cas. Ins. Co. v. Mansfield 07/26/01 07/26/01 0 01-0432 Texas Dept. of Trasp. v. Ramirez 04/25/02 04/25/02 0 01-0456 Hayden v. Skelley 08/23/01 08/23/01 0 01-0523 Mid-Century Ins. Co. v. Boyte 05/23/02 05/23/02 0 01-0719 Castle v. The Cadle Co. 11/29/01 11/29/01 0 01-0814 Bowie Memorial Hosp. v. Wright 06/13/02 06/13/02 0 01-0822 In re M.A.C. 02/28/02 02/28/02 0 01-0884 Samedan Oil Corp. v. Freeman 05/30/02 05/30/02 0 01-0948 Tuesday Morning, Inc. v. Melendrez 04/11/02 04/11/02 0 01-1019 Samedan Oil Corp. v. Intrastate Gas Gathering, Inc. 06/13/02 06/13/02 0 02-0013 Ritzell v. Espeche 06/20/02 06/20/02 0 02-0034 In re Bell 01/22/02 01/22/02 0 02-0055 Rendon v. Avance 05/09/02 05/09/02 0 02-0097 Richardson v. American Fracmaster, Ltd. 05/30/02 05/30/02 0 02-0305 In re Pasadena Indep. Sch. Dist. 04/09/02 04/09/02 0 02-0317 In re Sanchez 04/18/02 04/18/02 0 02-0376 In re Jane Doe 10 04/29/02 04/29/02 0 02-0450 In re Texas Nat. Resource Conservation Comm'n 06/13/02 06/13/02 0 94-0016 Office of Public Utility Counsel v. Public Utility Comm'n 06/22/94 06/22/94 0 94-0060 TransAmerican Natural Gas Corp. v. Flores 02/02/94 02/02/94 0 94-0066 Benefit Trust Life Ins. Co. v. Littles 04/20/94 04/20/94 0 94-0097 Lewis v. Blake 05/11/94 05/11/94 0 94-0119 Walles v. McDonald 02/23/94 02/23/94 0 94-0122 Porter v. Vick 06/02/94 06/02/94 0 94-0154 Ex parte Roosth 06/02/94 06/02/94 0 94-0156 Cantu v. Longoria 06/08/94 06/08/94 0 94-0160 Maxfield v. Terry 06/22/94 06/22/94 0 94-0198 State v. Walker 03/30/94 03/30/94 0 94-0200 Vaughan v. Walther 04/28/94 04/28/94 0 94-0222 Weck v. Sharp 09/15/94 09/15/94 0 94-0234 Texas Division-Tranter, Inc. v. Carrozza 05/11/94 05/11/94 0 94-0244 Bradley Motors, Inc. v. Mackey 06/15/94 06/15/94 0 94-0246 J.P. v. First Court of Appeals 11/10/94 11/10/94 0 94-0302 Omega OB/GYN Assoc. v. First Court of Appeals 11/10/94 11/10/94 0 94-0327 Estate of Howley v. Haberman 06/15/94 06/15/94 0 94-0349 Blankenship v. Robins 06/15/94 06/15/94 0 94-0364 Linwood v. NCNB Texas 10/13/94 10/13/94 0 94-0379 Uptmore v. Fourth Court of Appeals 06/22/94 06/22/94 0 94-0442 Enis v. Smith 06/15/94 06/15/94 0 94-0443 Metropolitan Life Ins. Co. v. Syntek Finance Corp. 06/22/94 06/22/94 0 94-0456 In re Ament 12/22/94 12/22/94 0 94-0466 Geary v. Peavy 06/22/94 06/22/94 0 94-0473 Mackie v. McKenzie 11/03/94 11/03/94 0 94-0525 Lone Star Gas Co. v. Lemond 04/13/95 04/13/95 0 94-0527 McDonald v. Tenth Court of Appeals 11/10/94 11/10/94 0 94-0558 State Farm Fire & Cas. Co. v. Mower 12/22/95 12/22/95 0 94-0581 Grant v. Thirteenth Court of Appeals 10/06/94 10/06/94 0 94-0587 Herald-Post Publishing Co. v. Hill 12/22/94 12/22/94 0 94-0595 Public Util. Comm'n v. Texas-New Mexico Elec. Co. 11/17/94 11/17/94 0 Page 33 EXT-18-2091-D-000065 007104-001941 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 94-0618 Texaco, Inc. v. Sanderson 05/25/95 05/25/95 0 94-0657 Bel-Ton Electric Serv., Inc. v. Pickle 01/18/96 01/18/96 0 94-0696 Texaco, Inc. v. Sanderson 05/25/95 05/25/95 0 94-0712 Helena Laboratories Corp. v. Snyder 11/03/94 11/03/94 0 94-0723 Primate Construction, Inc. v. Silver 09/15/94 09/15/94 0 94-0745 Texaco, Inc. v. Garcia 01/12/95 01/12/95 0 94-0762 Smith v. Babcock & Wilcox Constr. Co. 12/22/95 12/22/95 0 94-0820 Hyundai Motor Co. v. Alvarado 02/16/95 02/16/95 0 94-0830 Gunn Chevrolet, Inc. v. Hinerman 05/25/95 05/25/95 0 94-0844 S&A Restaurant Corp. v. Leal 02/16/95 02/16/95 0 94-0886 Sanchez v. Hastings 04/27/95 04/27/95 0 94-0896 Humphreys v. Caldwell 11/03/94 11/03/94 0 94-0954 Gormley v. Stover 03/16/95 03/16/95 0 94-0960 Board of Disciplinary Appeals v. McFall 12/01/94 12/01/94 0 94-0993 Lofton v. Allstate Ins. Co. 03/30/95 03/30/95 0 94-1037 Sage Street Assocs. v. Northdale Constr. Co. 06/28/96 06/28/96 0 94-1052 George Grubbs Enterprises, Inc. v. Bien 06/15/95 06/15/95 0 94-1057 Maritime Overseas Corp. v. Ellis 07/09/97 07/09/97 0 94-1058 Williams Distributing Co. v. Franklin 05/25/95 05/25/95 0 94-1071 Public Utility Comm'n v. Texas Utilities Elec. Co. 02/09/96 02/09/96 0 94-1125 Davis v. Shanks 04/13/95 04/13/95 0 94-1136 Silk v. Terrill 04/27/95 04/27/95 0 94-1139 City of McAllen v. De la Garza 05/25/95 05/25/95 0 94-1149 Mauriceville Nat'l Bank v. Zernial 02/16/95 02/16/95 0 94-1184 Leonard & Harral Packing Co. v. Ward 04/12/96 04/12/96 0 94-1186 Firemen & Policemen's Pension Fund Bd. v. City of San Antonio 08/01/95 08/01/95 0 94-1199 Smith v. McCorkle 03/30/95 03/30/95 0 94-1204 National Union Fire Ins. Co. v. Reyna 05/11/95 05/11/95 0 94-1210 D.F.W. Christian Television, Inc. v. D'Andrea 05/10/96 05/10/96 0 94-1248 Wilson v. Burford 05/25/95 05/25/95 0 94-1249 Wilson v. Hodges 05/25/95 05/25/95 0 94-1250 Wilson v. Jones 05/25/95 05/25/95 0 94-1251 Wilson v. Parker 05/25/95 05/25/95 0 94-1294 Ex parte Hudson 02/09/96 02/09/96 0 94-1302 Farris v. Ray 03/02/95 03/02/95 0 94-1310 Quest Chem. Corp. v. Elam 05/25/95 05/25/95 0 94-1324 State Farm Mut. Auto. Ins. Co. v. Azima 03/30/95 03/30/95 0 94-1338 Smith v. Clary Corp. 07/07/95 07/07/95 0 95-0014 City of Beverly Hills v. Guevara 06/22/95 06/22/95 0 95-0015 Lesikar v. Rappeport 05/11/95 05/11/95 0 95-0036 Farmer v. Ben E. Keith Co. 06/15/95 06/15/95 0 95-0039 Anderson v. Gilbert 05/11/95 05/11/95 0 95-0043 Ex parte Lesikar 05/11/95 05/11/95 0 95-0056 Texas Builders v. Keller 08/16/96 08/16/96 0 95-0057 Grigsby v. Coker 05/11/95 05/11/95 0 95-0088 General Motors Corp. v. Tanner 02/16/95 02/16/95 0 95-0115 Judice v. Mewbourne Oil Co. 04/25/96 04/25/96 0 95-0150 Tarrant County Hosp. Dist. v. Curry 03/16/95 03/16/95 0 95-0155 Gomez v. Texas Dept. of Criminal Justice 03/30/95 03/30/95 0 95-0166 Jordan v. Jordan 06/08/95 06/08/95 0 95-0170 Butcher v. Scott 08/01/95 08/01/95 0 95-0184 Murray v. Crest Construction, Inc. 06/22/95 06/22/95 0 95-0186 Liberty Mut. Ins. Co. v. Soignet 08/01/96 08/01/96 0 Page 34 EXT-18-2091-D-000066 007104-001942 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 95-0224 Frank A. Smith Sales, Inc. v. Flores 06/08/95 06/08/95 0 95-0267 American Gen. Fire & Cas. Co. v. Vandewater 06/15/95 06/15/95 0 95-0293 Ex parte Carney 07/07/95 07/07/95 0 95-0306 Ex parte Alloju 06/08/95 06/08/95 0 95-0320 Blount v. Bordens, Inc. 11/02/95 11/02/95 0 95-0321 State v. Owens 06/08/95 06/08/95 0 95-0335 Thompson v. Community Health Investment Corp. 04/12/96 04/12/96 0 95-0339 Ex parte Anderson 06/15/95 06/15/95 0 95-0353 American Maintenance & Rentals, Inc. v. Estrada 06/08/95 06/08/95 0 95-0370 Rosser v. Squier 06/29/95 06/29/95 0 95-0377 GSC Realty Corp. v. Brown 07/21/95 07/21/95 0 95-0398 Cathey v. Wood County Central Hosp. 06/22/95 06/22/95 0 95-0399 Thompson v. Davis 06/29/95 06/29/95 0 95-0405 Stokes v. Aberdeen Ins. Co. 03/07/96 03/07/96 0 95-0419 Kuhl v. City of Garland 11/02/95 11/02/95 0 95-0420 Lone Star Energy Storage, Inc. v. Texacadian Fuels, Inc. 05/10/96 05/10/96 0 95-0423 Mathiessen v. Schaefer 12/22/95 12/22/95 0 95-0442 Bi-Ed, Ltd. v. Ramsey 12/13/96 12/13/96 0 95-0462 Ex parte Keene 11/02/95 11/02/95 0 95-0481 Regency Advantage Limited Partnership v. Bingo Idea-Watauga, Inc. 07/12/96 07/12/96 0 95-0507 Hall v. Lawlis 06/15/95 06/15/95 0 95-0514 Volkswagen, A.G. v. Valdez 11/16/95 11/16/95 0 95-0519 In re B.I.V. 04/12/96 04/12/96 0 95-0548 Dillard Dept. Stores, Inc. v. Hall 07/07/95 07/07/95 0 95-0555 Jones v. City of McKinney 11/02/95 11/02/95 0 95-0597 Flores v. Haberman 08/01/95 08/01/95 0 95-0605 NationsBank, N.A. v. Dilling 05/10/96 05/10/96 0 95-0694 El Periodico, Inc. v. Parks Oil Co. 02/09/96 02/09/96 0 95-0697 Withem v. Underwood 05/31/96 05/31/96 0 95-0698 Prudential Securities Inc. v. Marshall 11/16/95 11/16/95 0 95-0703 IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp. 01/31/97 01/31/97 0 95-0746 Ex parte Keene 11/02/95 11/02/95 0 95-0783 Hamill v. Level 02/09/96 02/09/96 0 95-0789 Burns v. Miller Hiersche Martens & Hayward 11/02/95 11/02/95 0 95-0793 Nueces Canyon Consol. Indep. Sch. Dist. v. Central Education Agency 02/09/96 02/09/96 0 95-0796 Mendoza v. Eighth Court of Appeals 03/07/96 03/07/96 0 95-0802 Innovative Office Systems, Inc. v. Johnson 11/22/95 11/22/95 0 95-0819 Cantella & Co. v. Goodwin 06/28/96 06/28/96 0 95-0834 Sosa v. Central Power & Light 11/16/95 11/16/95 0 95-0859 Ellis County State Bank v. Keever 11/16/95 11/16/95 0 95-0861 Baptist Memorial Hosp. Sys. v. Arredondo 02/09/96 02/09/96 0 95-0871 In re M.C. 03/07/96 03/07/96 0 95-0892 City of San Antonio v. Rodriguez 10/18/96 10/18/96 0 95-0921 Fetchin v. Meno 02/09/96 02/09/96 0 95-0941 In re Waugh 06/14/96 06/14/96 0 95-0996 Maryland Ins. Co. v. Head Indus. Coatings & Servs., Inc. 10/18/96 10/18/96 0 95-0999 Harris County Precinct Four Constable Dept. v. Grabowski 05/10/96 05/10/96 0 95-1007 Ysleta Indep. Sch. Dist. v. Meno 02/09/96 02/09/96 0 95-1037 Brownwood Regional Hosp. v. Eleventh Court of Appeals 07/12/96 07/12/96 0 95-1057 Montalvo v. Fourth Court of Appeals 11/16/95 11/16/95 0 95-1067 Dallas County v. Harper 12/22/95 12/22/95 0 95-1070 Brownwood Regional Hosp. v. Eleventh Court of Appeals 07/12/96 07/12/96 0 95-1104 Phillips v. Beavers 01/31/97 01/31/97 0 Page 35 EXT-18-2091-D-000067 007104-001943 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 95-1123 Peterson v. Reyna 04/12/96 04/12/96 0 95-1135 Specialty Retailers, Inc. v. Demoranville 05/10/96 05/10/96 0 95-1148 Golden Rule Ins. Co. v. Harper 07/08/96 07/08/96 0 95-1149 Calvillo v. Gonzalez 05/10/96 05/10/96 0 95-1151 Franks v. Sematech, Inc. 01/10/97 01/10/97 0 95-1152 Ortiz v. Jones 02/09/96 02/09/96 0 95-1199 Crawford v. Ace Sign, Inc. 02/09/96 02/09/96 0 95-1218 H.E. Butt Grocery Co. v. Jefferson County Appraisal Dist. 05/10/96 05/10/96 0 95-1227 Plexchem Int'l, Inc. v. Harris County Appraisal Dist. 05/10/96 05/10/96 0 95-1239 Bosler v. Travelers Ins. Co. 01/10/97 01/10/97 0 95-1242 Scott & White Mem. Hosp. v. Schexnider 08/16/96 08/16/96 0 95-1272 Simmons v. Texas State Bd. of Dental Examiners 07/08/96 07/08/96 0 95-1311 Walnut Equipment Leasing Co. v. Wu 04/12/96 04/12/96 0 95-1319 Mattix-Hill v. Reck 05/31/96 05/31/96 0 95-1339 L.M. Healthcare, Inc. v. Childs 04/12/96 04/12/96 0 96-0010 K Mart Corp. v. Sanderson 10/18/96 10/18/96 0 96-0042 Bluebonnet Sav. Bank v. Jones Country, Inc. 04/12/96 04/12/96 0 96-0073 Motor Express, Inc. v. Rodriguez 07/08/96 07/08/96 0 96-0096 Inglish v. Union State Bank 01/10/97 01/10/97 0 96-0124 Temple-Inland Forest Prods. Corp. v. Henderson Family Partnership 07/09/97 07/09/97 0 96-0125 Ryland Group, Inc. v. Hood 05/31/96 05/31/96 0 96-0148 St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tak Co. 02/13/98 02/13/98 0 96-0150 Friendswood Dev. Co. v. McDade + Co. 06/28/96 06/28/96 0 96-0153 Tate v. E.I. duPont de Nemours & Co. 11/15/96 11/15/96 0 96-0156 Purcell v. Bellinger 01/31/97 01/31/97 0 96-0198 Mantas v. Fifth Court of Appeals 07/12/96 07/12/96 0 96-0199 Currie v. Travis County 12/13/96 12/13/96 0 96-0202 Larchmont Farms, Inc. v. Parra 02/21/97 02/21/97 0 96-0216 Tenery v. Tenery 06/28/96 06/28/96 0 96-0237 United States Fire Ins. Co. v. Williams 07/09/97 07/09/97 0 96-0274 Stelly v. Papania 06/28/96 06/28/96 0 96-0275 Motel 6 G.P., Inc. v. Lopez 06/28/96 06/28/96 0 96-0292 State v. Thirteenth Court of Appeals 06/06/96 06/06/96 0 96-0330 Isern v. Ninth Court of Appeals 06/14/96 06/14/96 0 96-0371 Harris County Appraisal Dist. v. Herrin 06/14/96 06/14/96 0 96-0374 Newman v. Obersteller 04/18/97 04/18/97 0 96-0389 Ex parte Rojo 07/12/96 07/12/96 0 96-0391 EZ Pawn Corp. v. Mancias 11/15/96 11/15/96 0 96-0428 De Los Santos v. Occidental Chemical Corp. 10/18/96 10/18/96 0 96-0453 Dorchester Hugoton, Ltd. v. Dorchester Master Ltd. Partnership 09/12/96 09/12/96 0 96-0478 Southland Corp. v. Lewis 02/28/97 02/28/97 0 96-0521 Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals 09/19/96 09/19/96 0 96-0555 Republican Party of Texas v. Dietz 06/19/96 06/19/96 0 96-0590 Bandera Electric Cooperative, Inc. v. Gilchrist 03/21/97 03/21/97 0 96-0595 Awde v. Dabeit 01/31/97 01/31/97 0 96-0598 In re Bennett 12/04/97 12/04/97 0 96-0617 D'Unger v. De Pena 09/19/96 09/19/96 0 96-0627 Elliott v. Rich 01/31/97 01/31/97 0 96-0633 National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc. 02/21/97 02/21/97 0 96-0706 General Motors Corp. v. Carter-Wood Motor Co. 01/22/98 01/22/98 0 96-0736 Bright & Co. v. Hamman 02/13/97 02/13/97 0 96-0739 Littlefield v. Schaefer 10/30/97 10/30/97 0 96-0742 Downing v. Brown 12/13/96 12/13/96 0 Page 36 EXT-18-2091-D-000068 007104-001944 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 96-0743 Angus Chem. Co. v. IMC Fertilizer, Inc. 01/10/97 01/10/97 0 96-0757 Kunstoplast of America, Inc. v. Formosa Plastics Corp. 12/13/96 12/13/96 0 96-0789 Lewis v. Lewis 02/21/97 02/21/97 0 96-0802 Moore v. State Bar of Texas 02/13/97 02/13/97 0 96-0853 Beneficial Personnel Servs. of Texas, Inc. v. Rey 01/23/97 01/23/97 0 96-0854 Beneficial Personnel Servs. of Texas, Inc. v. Porras 01/10/97 01/10/97 0 96-0861 Velsicol Chem Corp. v. Winograd 07/09/97 07/09/97 0 96-0863 United Mobile Networks v. Deaton 02/21/97 02/21/97 0 96-0872 Davis v. Taylor 09/25/96 09/25/96 0 96-0898 Farmers Texas County Mut. Ins. Co. v. Griffin 02/21/97 02/21/97 0 96-0910 Bird v. Rothstein 10/02/96 10/02/96 0 96-0916 Flores v. Banner 10/24/96 10/24/96 0 96-0917 Dunn v. Street 01/31/97 01/31/97 0 96-0932 Ex parte Acker 07/09/97 07/09/97 0 96-0953 Ex Parte DeLeon 05/08/98 05/08/98 0 96-0969 Texas Health Enterprises, Inc. v. Texas Dept. of Human Servs. 07/09/97 07/09/97 0 96-0988 Page v. Geller 03/21/97 03/21/97 0 96-1041 CU Lloyd's v. Feldman 08/27/98 08/27/98 0 96-1047 Wilde v. Murchie 07/09/97 07/09/97 0 96-1110 Ex parte Guetersloh 12/13/96 12/13/96 0 96-1121 Geochem Tech Corp. v. Verseckes 02/13/98 02/13/98 0 96-1137 Wal-Mart Stores, Inc. v. Deggs 04/14/98 04/14/98 0 96-1193 Bonds v. Texas Dept. of Criminal Justice 10/02/97 10/02/97 0 96-1213 Ex parte Evans 02/21/97 02/21/97 0 96-1240 Dallas Mkt. Ctr. Dev. Co. v. Liedeker 12/04/97 12/04/97 0 96-1241 Bocquet v. Herring 04/14/98 04/14/98 0 96-1262 Memorial Medical Ctr. v. Keszler 04/18/97 04/18/97 0 96-1275 Ex parte Shaklee 02/21/97 02/21/97 0 96-1285 Klein v. Dooley 07/09/97 07/09/97 0 96-1297 Sauder Custom Fabrication, Inc. v. Boyd 02/13/98 02/13/98 0 96-1298 Stuart v. Bayless 03/13/98 03/13/98 0 96-1316 University of Texas v. Ntreh 06/20/97 06/20/97 0 97-0026 Robinson v. Wils 02/06/97 02/06/97 0 97-0066 Banda v. Garcia 10/30/97 10/30/97 0 97-0081 Great Amer. Ins. Co. v. North Austin Mun. Util. Dist. No. 1 07/31/97 07/31/97 0 97-0092 Waite Hill Servs., Inc. v. World Class Metal Works, Inc. 01/16/98 01/16/98 0 97-0144 White Rose Distributing Co. v. Goldman 06/12/97 06/12/97 0 97-0148 Southwestern Resolution Corp. v. Watson 10/30/97 10/30/97 0 97-0176 Trico Tech. Corp. v. Montiel 07/09/97 07/09/97 0 97-0181 Stangel v. Parker 03/21/97 03/21/97 0 97-0276 State Bar of Texas v. Jefferson 04/02/97 04/02/97 0 97-0288 Texas Workers' Compensation Ins. Fund v. Serrano 02/13/98 02/13/98 0 97-0343 Harlan v. Howe State Bank 12/04/97 12/04/97 0 97-0346 Gallagher v. Fire Ins. Exch. 07/09/97 07/09/97 0 97-0347 In re State Bar of Texas 10/30/97 10/30/97 0 97-0373 In re Long 07/03/98 07/03/98 0 97-0380 Geary v. Texas Commerce Bank 04/14/98 04/14/98 0 97-0390 Newco Drilling Co. v. Weyand 01/16/98 01/16/98 0 97-0400 Reeves v. Texas Dept. of Criminal Justice 03/19/98 03/19/98 0 97-0465 In re Dallas Area Rapid Transit 02/13/98 02/13/98 0 97-0478 Holmes v. Home State County Mut. Ins. Co. 12/04/97 12/04/97 0 97-0480 In re M.A.F. 02/13/98 02/13/98 0 97-0501 In re Jones 04/14/98 04/14/98 0 Page 37 EXT-18-2091-D-000069 007104-001945 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 97-0515 Boyd v. American Indem. Group 12/04/97 12/04/97 0 97-0536 State Farm & Cas. Co. v. Morua 11/12/98 11/12/98 0 97-0558 Wal-Mart Stores, Inc. v. Resendez 02/13/98 02/13/98 0 97-0594 Quinney Elec., Inc. v. Kondos Entertainment, Inc. 03/11/99 03/11/99 0 97-0601 Harris County v. Hermann Hosp. 03/13/98 03/13/98 0 97-0631 D.S.A., Inc. c. Hillsboro Indep. Sch. Dist. 05/08/98 05/08/98 0 97-0638 MacGregor Med. Ass'n v. Campbell 10/29/98 10/29/98 0 97-0651 Norman Communications v. Texas Eastman Co. 10/30/97 10/30/97 0 97-0710 Lowrance v. Horton 01/16/98 01/16/98 0 97-0721 Louisiana-Pacific Corp. v. Knighten 08/25/98 08/25/98 0 97-0795 Martin v. Martin, Martin & Richards, Inc. 10/08/98 10/08/98 0 97-0802 Stary v. Debord 02/13/98 02/13/98 0 97-0819 In re R.J.J. 01/16/98 01/16/98 0 97-0853 In re Gabbai 05/08/98 05/08/98 0 97-0860 Hoechst-Celanese Corp. v. Mendez 02/13/98 02/13/98 0 97-0871 United Servs. Auto. Ass'n v. Keith 06/05/98 06/05/98 0 97-0872 In re American Optical Corp. 07/03/98 07/03/98 0 97-0883 State Farm Fire & Casualty Co. v. Vaughan 05/08/98 05/08/98 0 97-0910 Husain v. Khatib 03/13/98 03/13/98 0 97-0941 State v. Roland 05/08/98 05/08/98 0 97-0945 Jones v. Fowler 05/08/98 05/08/98 0 97-0973 Conoco, Inc. v. Amarillo Nat'l Bank 06/10/99 06/10/99 0 97-0989 Southwestern Bell Mobile Sys., Inc. v. Franco 06/05/98 06/05/98 0 97-0998 State Farm Mut. Auto. Ins. Co. v. Whitehead 03/11/99 03/11/99 0 97-1007 In re D.A.S. 07/03/98 07/03/98 0 97-1008 In re R.A.H. 07/03/98 07/03/98 0 97-1009 Jones v. City of Houston 08/25/98 08/25/98 0 97-1011 Garcia v. Martinez 10/08/98 10/08/98 0 97-1030 Wal-Mart Stores, Inc. v. Gonzalez 05/08/98 05/08/98 0 97-1122 H.E. Butt Grocery Co. v. Resendez 03/11/99 03/11/99 0 97-1127 Bourg Chem. Distrib v. Mosier 02/26/98 02/26/98 0 97-1170 City of Palestine v. Davis 09/24/98 09/24/98 0 97-1195 Meeks v. Rosa 03/11/99 03/11/99 0 97-1215 Pat Baker Co. v. Wilson 06/23/98 06/23/98 0 98-0017 In re Louisiana Pacific Corp. 06/23/98 06/23/98 0 98-0030 In re Bruce Terminix Co. 06/05/98 06/05/98 0 98-0035 Galveston County Mun. Util. Dist. v. City of League City 06/05/98 06/05/98 0 98-0039 In re Colonial Pipeline Co. 05/08/98 05/08/98 0 98-0047 Yanes v. Sowards 04/22/99 04/22/99 0 98-0055 Essenburg v. Dallas County 09/24/98 09/24/98 0 98-0090 In re Barber 11/12/98 11/12/98 0 98-0140 In re Dickason 10/15/98 10/15/98 0 98-0175 Coastal Banc v. Helle 03/11/99 03/11/99 0 98-0210 GFTA Trendanalysen B.G.A. Herrdum GMBH & Co. v. Varme 04/22/99 04/22/99 0 98-0265 State v. Rodriguez 01/07/99 01/07/99 0 98-0266 Davis & Davis v. Gregory 05/28/98 05/28/98 0 98-0287 Coastal Marine Serv. of Texas, Inc. v. Lawrence 02/04/99 02/04/99 0 98-0314 Benavidez v. Travelers Indem. Co. 02/04/99 02/04/99 0 98-0340 Jones v. Youngblood 11/05/98 11/05/98 0 98-0366 In re Houston Lighting & Power Co. 08/25/98 08/25/98 0 98-0388 Powell Indus., Inc. v. Allen 12/31/98 12/31/98 0 98-0445 Union Pac. Resources Co. v. Hutchison 02/04/99 02/04/99 0 98-0455 Hochheim Prairie Farm Mut. Ins. Ass'n v. Tweedell 07/01/99 07/01/99 0 Page 38 EXT-18-2091-D-000070 007104-001946 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 98-0484 Toranto v. Blue Cross & Blue Shield of Texas, Inc. 04/29/99 04/29/99 0 98-0509 Texas Workers' Compensation Ins. Fund v. Mandlbauer 04/01/99 04/01/99 0 98-0514 Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass'n, Inc. 08/26/99 08/26/99 0 98-0559 City of El Paso v. Bernal 02/04/99 02/04/99 0 98-0568 H & R Block, Inc. v. Haese 02/04/99 02/04/99 0 98-0662 In re Oakwood Mobile Homes, Inc. 02/11/99 02/11/99 0 98-0744 Texas Commerce Bank N.A. v. New 09/09/99 09/09/99 0 98-0773 Bradley's Elec., Inc. v. CIGNA Lloyds Ins. Co. 06/10/99 06/10/99 0 98-0788 Ritchey v. Vasquez 02/04/99 02/04/99 0 98-0835 Quaestor Inv., Inc. v. State of Chiapas 07/01/99 07/01/99 0 98-0844 Associated Brokers v. McFarland 11/12/98 11/12/98 0 98-0875 Texas Dept. of Pub. Safety v. Levinson 04/22/99 04/22/99 0 98-0916 In re L&L Kempwood 12/02/99 12/02/99 0 98-0934 In re Perritt 03/11/99 03/11/99 0 98-0945 Albertson's, Inc. v. Sinclair 02/04/99 02/04/99 0 98-0992 Texas Dept. of Protective & Regulatory Servs. v. Vargas 01/14/99 01/14/99 0 98-0993 State v. Miguel 08/26/99 08/26/99 0 98-1070 Wal-Mart Stores, Inc. v. McKenzie 07/01/99 07/01/99 0 98-1091 In re K.L.C. 04/01/99 04/01/99 0 98-1156 Gross v. Kahanek 09/16/99 09/16/99 0 98-1161 Wembley Investment Co. v. Herrera 12/02/99 12/02/99 0 98-1167 Borneman v. Steak & Ale, Inc. 04/06/00 04/06/00 0 99-0057 Walls Regional Hosp. v. Bomar 12/16/99 12/16/99 0 99-0085 Texas Dept. of Public Safety v. Davis 12/09/99 12/09/99 0 99-0110 Velsicol Chem. Corp. v. O'Nan 07/22/99 07/22/99 0 99-0126 Texas Dept. of Transp. v. Jones 12/02/99 12/02/99 0 99-0132 Texas Dept. of Public Safety v. Welch 12/09/99 12/09/99 0 99-0224 In re Doe 1(II) 03/10/00 03/10/00 0 99-0228 Koch Refining Co. v. Chapa 12/16/99 12/16/99 0 99-0230 McNally v. Guevara 06/28/01 06/28/01 0 99-0263 Hyundai Motor Co. v. Alvarado 11/04/99 11/04/99 0 99-0268 Texas Dept. of Public Safety v. McClendon 09/14/00 09/14/00 0 99-0306 Qwest Communications Corp. v. AT&T Corp. 04/06/00 04/06/00 0 99-0416 Fireman's Fund County Mut. Ins. Co. v. Hidi 02/10/00 02/10/00 0 99-0443 University of Texas Southwestern Med. Ctr. v. Margulis 01/06/00 01/06/00 0 99-0446 Johnstone v. State 03/09/00 03/09/00 0 99-0450 In re Univ. of Texas Health Ctr. 10/26/00 10/26/00 0 99-0463 Johnstone v. State 03/09/00 03/09/00 0 99-0466 Cris Equipt. Co. v. D. Wilson Constr. Co. 04/20/00 04/20/00 0 99-0500 In re Daisy Mfg. Co. 04/13/00 04/13/00 0 99-0501 State & County Mut. Fire Ins. Co. v. Miller 01/18/01 01/18/01 0 99-0612 Mireles v. Texas Dept. of Public Safety 12/09/99 12/09/99 0 99-0621 Kinnear v. Texas Comm'n on Human Rights 04/20/00 04/20/00 0 99-0634 Bishop v. Texas A&M Univ. 06/29/00 06/29/00 0 99-0671 Texas Dept. of Pub. Safety v. Story 06/21/01 06/21/01 0 99-0672 Texas Dept. of Pub. Safety v. Whitefield 06/21/01 06/21/01 0 99-0679 Texas Workforce Comm'n v. Texas AFL-CIO 06/22/00 06/22/00 0 99-0704 In re Union Pacific Resources Co. 12/02/99 12/02/99 0 99-0769 City of Sherman v. Hudman 02/03/00 02/03/00 0 99-0772 In re Living Centers of America, Inc. 04/13/00 04/13/00 0 99-0916 Levy v. City of Plano 03/09/00 03/09/00 0 99-0950 In re G.C. 07/06/00 07/06/00 0 99-0986 In re K.C.A. 06/22/00 06/22/00 0 Page 39 EXT-18-2091-D-000071 007104-001947 Document ID: 0.7.19343.8124-000001 677ef933299a478c85ccf194acf33b52 99-0995 Lenert v. State Farm Lloyds Ins. Co. 10/21/99 10/21/99 0 99-1018 Morgan v. Anthony 08/24/00 08/24/00 0 99-1027 Atchison, T. & S.F. Ry. v. Guerrero 12/21/00 12/21/00 0 99-1037 M. D. Anderson Hosp. & Tumor Inst. v. Willrich 08/24/00 08/24/00 0 99-1075 Nunez v. Caldarola 04/26/01 04/26/01 0 99-1112 K-Mart Corp. v. Honeycutt 06/29/00 06/29/00 0 99-1131 Clark v. Pimienta 04/26/01 04/26/01 0 99-1204 Texas Workers' Compensation Ins. Fund v. Mandlbauer 08/24/00 08/24/00 0 99-1212 In re Southwestern Bell Tel. Co. 06/29/00 06/29/00 0 99-9082 In re Petition of Nolo Press, Inc. 04/15/99 04/15/99 0 Page 40 EXT-18-2091-D-000072 007104-001948 Document ID: 0.7.19343.8124-000001 Benczkowski, Brian A From: Benczkowski, Brian A Sent : Monday , July 29, 2002 8:30 PM To: Dinh., Viet; 'brett_m._kavanaugh@who.eop.gov Subject : FW: NRNRaggi ' FYI.NRA alert sent out on Reena Raggi on Friday- see below. Monica Goodling is beginn ing to get press calls, although press is telling her that no one at NRA will go on record. Sounds like - BAB - Original Message- -From: Barbara Ledeen To: Willett , Don ; manue l_ miranda@jud iciary.senate.gov Sent: Mon Jul 29 18:08:03 2002 Subject: NRA/Raggi have you got this already? Barbara Ledeen Director of Coalitions Senate Republ ican Conference _________ Forward Header _________ Subject: IMPORTANT INFORMATIONABOUT A CERTAINJUDICIALNOMINATION Author: "Charles H. Cunningham " Date: 7/26/2002 6:31 PM U.S. District Judge Reena Ragg i, who is nominated for the U.S. Court of Appeals for the Second Circuit, uphe ld in its entirety New York City' s "assault weapons " ban in Richmond Boro Gun Club, Inc. v. City of New York, 896 F. Supp. 276 (E.D. N.Y. 1995), aff 'd 97 F.3d 681 {2nd Cir. 1996). Signed into law by then -Mayor Dinkins, the ban defined "assault weapon " extremely broadly, to include even the 8-shot Ml Garand carried by Gls in World War 11 , so ld to citizens ever sin ce through the federa l government ' s Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government -supported matches. The law had no grandfather clause, and police used the City 's rifle/ shotgun reg istrat ion system to contact and threaten gun owners. Judge Raggi' s opinion accepted arguments made by the city and by the Center to Prevent Handgun violence ; parts of the opinion read like anti -gun propaganda , as when she stated , "The rat ional link !.,.~~--~~~ ~ o ,1.,.1: ~ EXT-18-2091-D-000073 007 104-001949 Documen t ID: 0.7.19343 .8159 Ut::I.Wt::t:: I I !JUUlll. safety and a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion." (In fact , the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
U.S. District Judge Reena Raggi, who is nominated for the U.S. Court of Appeals for the Second Circuit, upheld in its entirety New York City's "assault weapons" ban in Richmond Baro Gun Club, Inc. v. City of New
York, 896 F. Supp. 276 (E.O. N.Y. 1995), aff'd 97 F.3d 681 {2nd Cir. 1996).

Signed into law by then-Mayor Dinkins, the ban defined "assault weapon"
extremely broadly, to include even the 8-shot M1 Garand carried by Gls in World War II, sold to citizens ever since through the federal government's Civilian Marksmanship Program, and used by tens of thousands of competitive shooters in government-supported matches. The law had no grandfather clause, and police used the City 's rifle/shotgun reg istration system to contact and threaten gun owners.

Judge Raggi 's opinion accepted arguments made by the city and by the Center to Prevent Handgun violence; parts of the opinion read like anti -gun propaganda , as when she stated, lThe rational link between public
safety an d a law proscribing possession of semiautomatic rifles and shotguns is so obvious that it would seem to merit little serious discussion." (In fact , the plaintiffs had presented documentation that misuse of any kind of rifle or shotgun in the city was extraordinarily low.)
Received: from mails ims1.senate.gov {(156.33.203. 10)) by mailexch.senate.gov with SMTP (IMA Internet Exchange 3.13) id 0049CE30; Fri, 26 Jul 2002 18:33:49 -0400 Received: from visi.net (arsenal.visi.net) by ma ilsims 1.senate.gov (Sun Internet Mail Server sims.3.5.2000.03.23.18.03.p10 ) with SMTP id for Barbara _ Ledeen@s rc.senate .gov; Fri, 26 Jul 2002 18:33:51 -0400 {EDT) Received: from (2 16.2. 18.66) (HELO Cunningham) by visi.net (CommuniGate Pro SMTP 3.5.6) with ESMTP id 41301166 for ; Fri, 26 Jul 2002 18:31:53 -0400 Date: Fri, 26 Jul 2002 18:31:55 -0400 From: "Charles H. Cunningham " Subject: IMPORTANT INFORMATION ABOUT A CERTAINJUDICIALNOMINATION > Message-id: <01a101c234f4$3f6121b0 To: "Ledeen, Barbara (SRC)" $7 10012ac@Cunningham> MIM E-version: 1.0 X-Mailer. Microsoft Outlook Express 5.00.2919.6700 Content-type: MULTIPART/ALTERNATIVE;X-Virus -Scanner: McAfee Virus 'Engine X-MSMail-Priority: Normal X-MimeOLE: Produced By Microsoft MimeOLE VS.00.29 19.6700 X-Priority : 3 EXT-18-2091-D-000074 007 104-001950 Document ID: 0.7.19343 .8159 Willett , Don From : Willett, Don Sent : Thursday , September S, 2002 8:53 PM To: Heather Wingate (E-mail); Dinh, Viet; Brett Kavanaugh (E-mail) Subject : FW:(no subject) Kay's e-mail below. --Original Message- -From: Sent: Thursday , September 05, 2002 8:02 PM To: Willett , Don Cc: Tim Goeglein (E-mail) Subject: (no subject) Don, I hope you know that I do not in any way, shape or form have any kind of frustration with you whatsoever. You are truly awesome and it is just such a privilege to work with you. It just seems like we have spent every waking and sleeping hour on something so futile. I don 't mind losing a battle or two so long as I can take some of the bastards out as well. And I see them not only emerging unscathed but victorious, smug and even better financed than before. There is no downside for them. And frankly, there is no upside for all the blood we've shed. To that end? I think a couple of things need to happen , and I told Tim Goeglein this EXT-18-2091-D-000075 0071 04-00 1951 Document ID: 0.7.19343 .8250 Oh well. I hope that you are home with a large, ice cold beer. I'm going to go and do something rare -- spen d time with my child an d read to him before he goes to sleep. Talk to you later KRD EXT-18-2091-D-000076 007 104-001952 Documen t ID: 0.7.19343 .8250 Sales , Nathan From : Sales, Nathan Sent : Wednesday , September 11, 2002 10:59 AM To : Koebele, Steve; Benczkowski, Brian A; Charnes , Adam; Dinh, Viet; 'Brett M. Kavanaugh (E-mail)'; Willett , Don Subject : RE: Prep Session for Hearing -Original Message-From: Estra da, Migue l A. [mailto:MGBPstrada@gibsondunn.com] Sent: Wednesday, September 11, 2002 10:58 AM To: Sutton, Jason ; Koebele, Steve; Sales , Nathan ; Benczkowski, Brian A; Charnes, Adam; Dinh, Viet; 'Brett M. Kavanaugh (E-mail)' Cc: Willett , Don Subject: RE: Prep Session for Hearing --Original Message- From: Dinh, Viet [mailto:Viet.Dinh@usdoj.gov) Sent: Wednesday, September 11, 2002 10:46 AM To: Cham es , Adam; Benczkowsk i, Brian A; Sales , Nathan; Koebele , Steve; Sutton , Jason; Estrada , Miguel A.; ' Brett M. Kavanaugh (E-mail)' Cc: Willett , Don Subject: RE: Prep Session for Hearing EXT-18-2091-D-000077 0071 04- 0019 53 Document ID: 0.7.19343.5206 September 17, 2002 NOTICE OF SUBCOMMITTEE HEARING The Senate Committee on the Judiciary Subcommittee on Administrative Oversight and the Courts has scheduled a hearing for Tuesday, September 24, 2002 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building on "The DC Circuit: The Importance of Balance on the Nation's Second Highest Court." Senator Schumer will preside. By order of the Chairman EXT-18-2091-D-000078 007104-001954 Document ID: 0.7.19343.8403-000001 Sales, Nathan From: Sales, Nathan Sent : Wednesday, September 25, 2002 6:07 PM To : Brett Kavanaugh (E-mail) Subject : Miguel report Attachments : estradalatinocoalit ion2.doc Brett , And could you forward it to Mercy and Leonard (whose emails I can't seem to find)? Gracias! Nathan EXT-18-2091-D-000079 0071 04-00 1955 Document ID: 0.7.19343 .5234 1 Latinos Miguel Estrada and the Future of American The Mexican American Legal Defense and Education Fund's (MALDEF) newfound "concerns" about the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit reveal more about the group than they do about the nominee. The special-interest groups like MALDEF that purport to speak for American Latinos are showing how out of touch they are with the everyday concerns of our community. Miguel Estrada is a nominee of unmatched qualifications. When confirmed, he will become the first Hispanic ever to sit on the D.C. Circuit, which is widely regarded as the second-highest court in the land. This will be an historic achievement, one that was unthinkable only a generation ago, and one that represents a significant milestone in our long struggle to overcome racism, poverty, and cultural exclusion. We in the Latino community should be cheering Miguel Estrada, not just for his own sake, but because his accomplishments show what every one of us is capable of achieving if we put our minds to it. And yet some entrenched special-interest groups call them the Hispanic Establishment have chosen to place their narrow political agenda ahead of the broader interest in seeing a qualified Latino confirmed to one of the nation's highest courts. These groups advocate the defeat of one of their own simply because he may not subscribe to the political orthodoxy that they have presumed to establish. Estrada has committed the unpardonable sin for a Hispanic: independent thought. Some of our Latino leaders have decided to put partisan politics over our community's interests simply to satisfy the needs of their party bosses. Sacrificing Estrada's nomination to the demands of a partisan lynch mob is an act of betrayal to the millions of Latinos who live in this country, and the millions more who one day hope to. The Hispanic Establishment's reaction to the Miguel Estrada nomination makes clear that more is at stake than whether this superbly well-qualified attorney takes the federal bench. More is at stake than whether one more barrier to Hispanic achievement our historical exclusion from the D.C. Circuit bench falls today, tomorrow, or some time in the near future. What's at stake is the identity of the American Latino community, and our colorful diversity of voices. MALDEF and like-minded groups apparently believe that one cannot be an authentic Latino unless one agrees to toe their party line, and to refuse to think for oneself. If these groups have their way, no Hispanic will ever be promoted to high government office unless he or she holds the Establishment-approved set of political beliefs. We at The Latino Coalition know that the Hispanic community in America is far more diverse than MALDEF and others give us credit for being: we are a rich tapestry representing the full range of political perspectives, religious views, and socio-economic circumstances. As a federal judge on the D.C. Circuit, we are confident that Miguel Estrada will be a credit to Latinos everywhere, no matter what their background or beliefs. 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202 -546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000080 007104-001956 Document ID: 0.7.19343.5234-000001 2 Defending Anti-Gang Initiatives Perhaps the most preposterous and repetitive claim MALDEF makes is that Estrada's effort to defend the constitutionality of anti-gang laws in Chicago and Annapolis somehow is evidence of his indifference to the difficulties faced by racial minorities, including Latinos. Nothing could be further from the truth. The innovative anti-loitering initiatives in Chicago, Annapolis, and countless other American cities represent efforts by minority communities to take back their streets from the gang members and drug dealers who habitually terrorize innocent citizens, most of whom are minorities themselves. Estrada's efforts to defend these ordinances before the U.S. Supreme Court and before a federal trial court in Maryland demonstrate his commitment to using the law to better the lives of poor residents of the inner city, who regrettably tend to be members of minority groups. People from across the political spectrum, and members of all races, agree that gangrelated violence and drug trafficking have had a devastating impact on the lives of inner-city residents. Gang members routinely loiter on street corners, both to establish control over neighborhood residents and to "mark their turf" against rival gangs. As a result, people who live in gang-infested neighborhoods often are afraid to even leave their homes. Simply walking to the grocery store, or escorting one's children to the neighborhood park, exposes them to the risks of drive-by shootings and drug solicitations. No wonder a Justice Department report issued during the Clinton Administration concluded that gangs have "[v]irtually overtake[n] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." OJP Monograph, Urban Street Gang Enforcement (1997). That's why anti-gang laws like the ones in Chicago and Annapolis have the strong backing of minorities who live in our nation's crime-ridden neighborhoods. After 74-year-old Chicagoan Emmett Moore saw his house sprayed with bullets during a recent gang turf war, he explained: "The constitution is supposed to protect my rights too. What's a more basic right than feeling safe on my property or being able to walk on my street?" Patriot-Ledger (Quincy, Mass.), June 11, 1999. Bennie Meeks, head of the Southwest Austin Council on Chicago's west side, likewise wondered "if we don't use this law as a tool, how are we going to get these guys off the corner? What about the constitutional rights of my neighbors whose kids have to walk by that corner every day on their way to school?" New York Times, June 12, 1999. Chicago Mayor Richard Daley, a Democrat who the New York Times calls the "fiercest advocate" of Chicago's anti-gang law, New York Times, June 12, 1999, explains that his ordinance was designed to protect these vulnerable citizens from predatory gang members who seek to do them harm. In fact, Mayor Daley likens gang members to terrorists: "I tell you one thing, those drug dealers and gang-bangers are terrorists, too." Chicago Sun-Times, Nov. 23, 2001. Mayor Daley knows what inner-city minorities know, but what their self-appointed "representatives" in Washington-based interest groups apparently do not: that these laws were written to help the residents of poor, urban neighborhoods, who suffer disproportionately from the scourges of gang violence and drug trafficking. "I don't see too many gangbangers on Lake Shore Drive." Chicago Tribune, Oct. 1, 2000. Those who criticize such efforts to 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000081 007104-001957 Document ID: 0.7.19343.5234-000001 3 improve the lot of our nation's most vulnerable citizens rarely live in the conditions that prompted Chicago, Annapolis, and countless other cities to adopt these innovative measures. Estrada is hardly the only lawyer to submit briefs defending the constitutionality of anti- gang laws. In fact, the President Clinton's Solicitor General Seth Waxman filed a Supreme Court brief arguing in favor of Chicago's ordinance. So did Representative Luis V. Gutierrez (D-IL), a member of the Congressional Hispanic Caucus. And so did the Attorneys General from 31 states, including five states represented by Democrats on the Senate Judiciary Committee: California, Delaware, Illinois, New York, and North Carolina. MALDEF also faults Estrada for his service on the Board of Directors of the Center for the Community Interest. CCI is a mainstream organization dedicated to serving as a voice for the community on crime and quality-of-life issues. It would seem that inner-city residents can no longer count on establishment groups to advance their interests, and organizations like CCI have stepped in to fill the void. In particular, CCI has defended "Megan's Laws" and other measures to protect children from sexual predators, has assisted public-housing tenants in evicting drug dealers from their housing projects, and has fought for mandatory HIV testing of rapists. CCI is supported by individuals and organizations from across the political spectrum. According to the group's web site, one of its principal sources of funding is the New York-based Bernard and Anne Spitzer Foundation. In fact, their son, New York Attorney General Eliot Spitzer served on CCI's board before he was elected to public office. No one would mistake Spitzer for a right-wing activist; a Democrat, he is best known for spearheading a lawsuit brought by several states against the tobacco industry. CCI's advisory board also includes Ronald Truss, president of the Birmingham, Alabama chapter of the NAACP. Other prominent liberals and Democrats with ties to CCI include Milwaukee Mayor John Norquist; Fred Siegel, a scholar with the Democratic Leadership Council; Richard Girgenti, former New York State Director of Criminal Justice under Governor Mario Cuomo; Seymour Lachman, a member of the New York State Senate; and Stephen Kaufman and Nettie Mayersohn, members of the New York State Assembly. Remarkably, MALDEF and the rest of the Hispanic Establishment were nowhere to be seen several months ago, when the Senate confirmed Michael Baylson to be a U.S. District Judge for the Eastern District of Pennsylvania. Like Estrada, Judge Baylson has served on CCI's board of directors. And yet his affiliation with the group got a free pass. The g roups' latter-day concern about CCI illustrates that they are less concerned about improving the lot of underprivileged Latinos, than they are in ensuring that American Latinos dutifully subscribe to their established political orthodoxy. A Balanced Approach to Law Enforcement Although Estrada spent his early career as an Assistant U.S. Attorney in New York, and as a lawyer in the Solicitor General's office during the Clinton Administration, he also has gone out of his way to ensure that criminal defendants receive proper treatment from the criminal justice system. For instance, in Strickler v. Greene, 527 U.S. 263 (1999), Estrada represented a 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000082 007104-001958 Document ID: 0.7.19343.5234-000001 4 capital-murder convict in his death-row appeal before the Supreme Court. Tommy David Strickler, whom Estrada represented free of charge, was convicted of abducting a college student from a shopping center and murdering her. Estrada argued that the Commonwealth of Virginia had unlawfully withheld potentially exculpatory evidence. He thus showed his willingness to stand up for the rights of all people, even those convicted of brutal crimes, when the government abuses its law-enforcement powers. Estrada's commitment to the constitutional rights of criminal defendants, as well as his manifest skills as an appellate advocate, explain why Barbara Hartung, his co-counsel in the case, asked him to help represent Tommy Strickler. Hartung has written the Senate Judiciary Committee to emphasize that Estrada "values highly the just and proper application of the law. . . . Miguel's respect for the Constitution and the law may explain why he took on Mr. Strickler's case, which at the bottom concerned the fundamental fairness of a capital trial and death sentence. . . . I should note that Miguel and I have widely divergent political views and disagree strongly on important issues. However, I am confident that Miguel Estrada will be a distinguished, fair and honest member of the federal appellate bench." MALDEF wrongly assumes that Estrada was responsible for deciding what positions to take in the cases he argued on behalf of law enforcement when he was at the Solicitor General's office. In fact, Estrada was a career lawyer in a civil service position, and it was his role in the cases cited by MALDEF to advance the positions chosen by his supervisors in this case, representatives of the Clinton Administration not to make policy himself. To the extent that it is "troubled" by any of these positions, MALDEF's beef is with policymakers like President Clinton and Attorney General Reno, not with line attorneys like Miguel Estrada. Take, for example, the first case MALDEF cites as evidence of Estrada's alleged proprosecution bias: Richards v. Wisconsin, 520 U.S. 385 (1997), where the court considered whether to create an exception to the "knock and announce rule" when police officers execute a search warrant in a felony drug investigation. The first name listed on the Clinton Administration's amicus brief in that case was Walter Dellinger, then serving as President Clinton's Solicitor General. The same is true of the second cited case: Powell v. Nevada, 511 U.S. 79 (1994), where the Clinton Administration's amicus brief was authorized by Solicitor General Drew Days. MALDEF's treatment of Richards is additionally problematic because the group inaccurately describes the Clinton Administration's position in that case. Although the state of Wisconsin was arguing for a categorical, per se exception in felony drug cases, Estrada argued for a much narrower, case-by-case exception, as the following excerpt from the oral argument transcript reveals: Question: "You are suggesting a general standard, not a per se rule. Is that an appropriate characterization of your brief and of your argument?" Mr. Estrada: "That is right, Justice Kennedy. All we're saying is that the standard that is offered by [defense counsel] is so low that in the absence of any further information the officer's knowledge that the case involves drug-dealing will itself be 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000083 007104-001959 Document ID: 0.7.19343.5234-000001 5 a reasonable basis for a case-specific reasonable belief that there is danger to the officers." Question: "Well, you're not supporting the Wisconsin rule in any event, the Wisconsin supreme court per se rule." Mr. Estrada: "No, we're not." It should come as no surprise that the Supreme Court unanimously adopted the position Estrada articulated on behalf of the Clinton Administration. Defending Congressional Prerogatives MALDEF next objects to an amicus brief Estrada filed in Dickerson v. United States, 530 U.S. 428 (2000), where he urged the Supreme Court to defer to a congressional statute that limited the reach of Miranda v. Arizona, 384 U.S. 436 (1966). In fact, Estrada has appeared on both sides of Miranda-type cases. In Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989) Estrada's first case as a practicing lawyer, and a pro bono matter to boot Estrada argued that a police interrogation must cease immediately after a suspect unequivocally invokes his constitutional right to remain silent. Campaneria, who was stabbed, was believed by police to have shot his assailant. After the altercation, Campaneria was treated at a hospital, and police officers read him his Miranda warnings. The defendant who had little understanding of the English language, was being treated in an intensive care unit, and was on medication replied, "No, I don't want to talk to you now, maybe come back later." Although Campaneria had unequivocally invoked his right under Miranda to remain silent, the officer continued, "If you want to talk, now is the time to do it." Campaneria then agreed to talk, and during the subsequent interview made incriminating statements. Estrada, who was working with the Legal Aid Society and the Federal Defender Services Unit in New York City, argued both that his client's statements were not voluntarily made, and that they had been obtained in violation of Miranda. As the Campaneria case makes plain, the arguments Estrada advanced in Dickerson on behalf of his client do not reflect any latent hostility to the rights of criminal defendants. Instead, Estrada's client the Maricopa County Attorney's Office believed that the Supreme Court should defer to an act of Congress, 18 U.S.C. ? 3501, that sought to restore the traditional "voluntariness" test for the admissibility of confessions. Under that standard, coerced confessions are unconstitutional, but a voluntary confession need not be excluded simply because of a technical defect in warnings given to a suspect. Estrada's central argument in Dickerson was that a congressional enactment was entitled to judicial deference, and he urged the Supreme Court to respect Congress's independent power to interpret the Constitution. Estrada's argument thus was consistent with the Senate Judiciary Committee's report accompanying ? 3501, which concluded that "voluntary confessions have been admissible in evidence since the earliest days of the Republic." 1968 USCCAN at 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000084 007104-001960 Document ID: 0.7.19343.5234-000001 6 2137, 2124. The brief was consistent with the Senate's additional conclusion that "the rigid and inflexible requirements of the majority opinion in the Miranda case are unreasonable, unrealistic, and extremely harmful to law enforcement." 1968 USCCAN at 2132. Thus, to the extent that the Dickerson brief reveals anything at all about Estrada's personal views, it shows only that he has a healthy respect for the power of Congress to enact laws designed to address pressing social problems. More fundamentally, the arguments a lawyer makes on behalf of a client are not evidence of his or her personal views. Rule 1.2(b) of the ABA's Model Rules of Professional Conduct makes clear that "[a] lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social, or moral views or activities." On the contrary, lawyers have an ethical obligation to make all reasonable arguments that will advance their clients' interests. According to Rule 3.1 a lawyer may make any argument if "there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Lawyers would violate their ethical duties to their clients if they only made arguments with which they would agree if they were a judge. If confirmed, Estrada can be trusted to apply the Supreme C ourt's decision in Miranda, just as he would do with all other binding precedents. History is full of examples where a lawyer who loses a case faithfully applies that precedent after being elevated to the bench. In a companion case to Miranda, U.S. Solicitor General Thurgood Marshall argued that police officers should not be required to give warnings before questioning crime suspects. "An inflexible constitutional rule turning on . . . the recitation or omission of a warning may be easier to apply, but we believe that it will, more often than not, cast out the baby with the bath." Brief of the United States at 38. Yet as a Justice on the Supreme Court, Justice Marshall had no difficulty applying Miranda and its progeny. In Duckworth v. Eagan, 492 U.S. 195 (1989), Justice Marshall dissented from the majority's decision to narrow the scope of Miranda: "I refuse to acquiesce in the continuing debasement of this historic precedent." A Commitment to Eradicating Racial Discrimination As a lawyer who has himself overcome significant obstacles, Estrada has shown a keen awareness of the continuing problem of racial discrimination, and an equally keen commitment to eradicating it. For example, Mary Jo White, President Clinton's U.S. Attorney for the Southern District of New York, invited Estrada to join a working group that she tasked with finding ways to increase the number of Assistant U.S. Attorneys from minority groups. Estrada gladly accepted this invitation and has made important contributio ns to the group's efforts to enhance minority hiring in that office. As one of only four Hispanics ever hired to clerk for the Supreme Court, Estrada is profoundly aware of the lack of minorities in the upper echelons of the judiciary. He now seeks to become the first Hispanic ever to sit on the D.C. Circuit. Given the difficulty he himself has faced throughout his career, as a Circuit Judge, Estrada would go out of his way to give 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000085 007104-001961 Document ID: 0.7.19343.5234-000001 7 consideration to all qualified clerkship candidates, no matter what their race or economic circumstances. MALDEF's citation to a 1998 USA Today article about how Supreme Court Justices rarely hire minority clerks suggests nothing to the contrary. Estrada was quoted as stating that the statistical underrepresentation does not mean that the Justices are deliberately discriminating against minority applicants: "if there was some reason for underrepresentation, it would be something to look into, but I don't have any reason to think it's anything other than a reflection of trends in society." In other words, Supreme Court Justices hire their clerks from a narrow pool of applicants: those who have graduated at the top of their classes from the nation's top law schools, and who have gone on to clerk for well-regarded lower-court judges. For a variety of reasons, this pool does not include a large number of minorities. According to Estrada, these "trends in society," not invidious discrimination on the part of the Justices, explain why there are relatively few minority Supreme Court clerks. Fairness to All, Rich and Poor Alike Both in government service and private practice, Estrada has sought to ensure that all citizens regardless of their economic, social or ethnic background receive the law's fullest protections and benefits. Because of his commitment to upholding the law, he has garnered strong bipartisan support from those who are familiar with his record. These individuals are certain that Estrada would guarantee everyone who came before him a fair trial. The Chief of Staff to former Vice President Al Gore wrote to the Senate Judiciary Committee that: "Miguel will rule justly toward all, without showing favor to any group or individual. . . . The challenges he has overcome in his life have made him genuinely compassionate, genuinely concerned for others, and genuinely devoted to helping those in need. . . . Those without means or without advantage will get a fair hearing from Miguel Estrada." Although Estrada has represented corporations in some cases, this in no way implies that as a judge he would give them an unfair advantage in court any more than the fact that he represented a death row inmate means that he would give an advantage to convicted murderers. As discussed above, ethics rules make plain that an attorney's representation of a particular client does not mean that the attorney endorses the client's views or actions. As a well-respected appellate lawyer, it has been Estrada's professional duty to represent his clients to the best of his ability. It would be inaccurate and unfair to characterize any position he has taken on behalf of a client as indicative of how he would rule as a judge. The Senate and, more to the point, the Hispanic Establishment have followed this understanding when examining the records of recent nominees now serving on Circuit Courts. For example, Roger Gregory, originally nominated by President Clinton to the 4th Circuit, once represented General Motors against sex-discrimination and pay-disparity claims under Title VII. And Clinton appointee Sandra Lynch of the 1st Circuit represented General Electric in a racediscrimination claim by an African-American employee who alleged that he was passed over for promotions in favor of white employees. Both were confirmed with relatively little to-do, and MALDEF never saw fit to oppose their nominations. 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000086 007104-001962 Document ID: 0.7.19343.5234-000001 8 Confirm Estrada Now! Not much can be said about Miguel Estrada's superlative qualifications that hasn't already been discussed. The recipient of the American Bar Association's highest possible rating a unanimous "well qualified" Estrada is an American success story. But regrettably, some self-appointed "representatives" of the Hispanic community have chosen to overlook Estrada's stellar legal career and oppose him not because they believe he lacks the necessary skills, not because they doubt his fairness and integrity, but because he dares to think for himself. Now, when American Latinos are on the verge of another milestone in our long struggle for equality and prosperity one of our own on the second highest court in the land some in the Hispanic Establishment have sold out the aspirations of our people, trading it for a bit of momentary influence with the power brokers in Washington, DC. We have every confidence that the Senate will ignore this cynical ploy, and confirm Miguel Estrada to the D.C. Circuit speedily. 725 Massachusetts Avenue, N.E. 202-546-0008 Tel. ? 202-546-0807 Fax ? Washington, DC 20002 ? www.TheLatinoCoalition.com EXT-18-2091-D-000087 007104-001963 Document ID: 0.7.19343.5234-000001 Image not available for this document, ID: 0.7.19343.8668 000001 EXT-18-2091-D-000088 007104-001964 Document ID: 0.7.19343.8668-000001 Dinh, Viet From : Dinh, Viet Sent : Friday, November 15, 2002 1:34 PM To: 'Bre-tt_M._Kavanaugh@who.eop.gov' Cc: 'Bradford_A._Berenson@who.eop.gov Subject : RE: Shedd and McConnell ' Great. thanks - Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto :Brett_ M._ Kavanaugh@who.eop.gov] Sent: Friday, November 15, 2002 1:29 PM To: Dinh, Viet Cc: Bradford_A._Berenson@who.e-op.gov Subject: RE: Shedd and McConnell Heather is on this. (Embedded image moved "Dinh, Viet" to file: 11/15/2002 01:25:35 PM pic03884.pcx) Record Type: Recor d To: "Charnes, Adam" (Receipt Notification Requested) (1PMReturn Requested) , Bradford A. Berenson/WHO/EOP@EOP , Brett M. Kavanaugh/WHO/EOP@EOP cc: "Ayres, David " (Receipt Notification Requested) (1PMReturn Requested), "Bryant, Dan" (Receipt Notification Requested) (1PMReturn Requested) , "Ciongoli, Adam" (Receipt Notification Requested) (1PMReturn Requested) Subject: RE: Shedd and McConnell EXT-18-2091-D-000089 007 104-001965 Documen t ID: 0.7.19343 .8709 Brad and Brett, Can you raise for immediate senior staff consideration thanks --Or iginal Message--From: Charnes, Adam Sent: Friday, November 15, 2002 1:06 PM To: ' Bradford_ A._ Berenson@who.eop.gov '; Dinh, Viet Subject: RE:Shedd and McConnell We are on it. Thanks. -Original Message-From: Bradford_A._Berenson@who.eop.gov (mailto :Bradford_A._Berenson@who.eop .gov] Sent: Friday, November 15, 2002 12:38 PM To: Charnes , Adam; Dinh, Viet Subject: Re: Shedd and McConnell I think you guys need to know about this. - ------ Forwarded by Bradford A. Berenson/WHO/EOP on 11/15/2002 12:34 PM ----- Bradford A. Berenson 11/15/2002 12:31:07 PM Record Type: Record To: Heather Wingate/WHO/EOP@EOP cc: See the distribution list at the bottom of this message bee: Records Management@EOP Subject: Re: Shedd and McConnell (Document link: Bradford A. Berenson) Senator Hollings has just informe d cert a in individuals that the Democrats are planning to filibuster Dennis Shedd and that there will be a cloture vote - not a confirmation vote - on the Shedd EXT-18-2091-D-000090 007 104-001966 Documen t ID: 0.7.19343 .8709 Heather Wingate 11/ 15/2002 12:23:09 PM Record Type: Record To: See the distribution list at the bottom of this message cc: bee: Subject: Re: Shedd and McConnell (Document link: Bradford A. Berenson) Update: looks like McConnell/Shedd will not move until early next week now. My guess is Heather Wingate 11/15/2002 10:26:37 AM Record Type: Recor d To: Kyle Sampson/WHO/EOP@tOP, Bradford A. Berenson/WHO/EOP@EOP cc: brett m. kavanaugh/who/eop@eop, alberto r. gonzales/who/eop@eop, timothy e. flani gan/who/eop@eop, heathe r wingate /who/eop@eop Subject: Re: Shedd and McConnell -- Original Message From:Kyle Sampson/WHO/EOP To:Bradford A. Berenson/WHO/EOP@EOP Cc:brett m. kavanaugh/who/eop@eop, alberto r. gonzales/who/eop@eop, timothy e. flanig a n/who/ eop @eop, heather wingate/who/eop@eop EXT-18-2091-D-000091 007 104-001967 Document ID: 0.7.19343 .8709 Uate: 11/1'::J/ LUUL lU:1'::J:lb AM Subject: Re: Shedd and McConnell Bradford A. Berenson 11/15/2002 10:12:34 AM Record Type: Record To: See the distribution list at the bottom of this message cc: Subject: Shedd and McConnell Message Sent To:___________________________ Brett M. Kavanaugh/WHO/EOP@EOP KyleSampson/WHO/EOP@EOP Alberto R. Gonzales/WHO/EOP@EOP Timothy E. Flanigan/WHO/EOP@EOP Heather Wingate/WHO/EOP@EOP Message Sent To:__________________________ _ kyle sampson/who/eop@eop bradford a. berenson/who/eop@eop brett m. kavanaugh/who/eop@eop alberto r. gonzales/who/eop@eop timothy e. flanigan/who/eop@eop heather wingate/who/eop@eop EXT-18-2091-D-000092 007 104-001968 Document ID: 0.7.19343 .8709 Message Copied To:__________________________ _ kyle sampson/who/eop@eop bradford a. berenson/who/eop@eop brett m. kavanaugh/who/eop@eop alberto r. gonzales /who/eop@eop timothy e. flanigan/who/eop@eop heather wingate/who/eop@eop EXT-18-2091-D-000093 007 104-001969 Documen t ID: 0.7.19343 .8709 Dinh, Viet From : Dinh, Viet Sent : Tuesday , January 14, 2003 7:44 PM To: Ciongoli, Adam; 'Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam Subject : RE: Ronnie White , the Seque l - II I would also note -Original Message-From: Ciongoli, Adam Sent : Tuesday , January 14, 2003 7:32 PM To: ' Brett_ M._ Kavanaugh@who.eop.gov '; Dinh, Viet Cc: Charnes, Adam Subject: Re: Ronnie White , the Sequel These are qu ite good. --Original Message--From: Brett_M._Kavanaugh@who.eop.go v To: Dinh, Viet CC: Charnes, Adam ; Ciongoli, Adam Sent: Tue Jan 14 17:53:26 2003 Subject: Re: Ronnie White , the Sequel Background points we gave press office last week are as follows: EXT-18-2091-D-000094 007104-001970 Document ID: 0.7.19343.8879 007104-001971 Document ID: Dinh, Viet From : Dinh, Viet Sent : Friday, January 17, 2003 2:56 PM To: Benczkowski, Brian A; Charnes, Adam Cc: 'Kavanaugh, Brett '; 'David_G._leitch@who.eop.gov ' Subject : RE: Pryor I love it when a plan comes together. This is exactly how this game should be played. Congratulations, Brian, and please pass my thanks on to Ed Haden also . Brett, can you pass on to Ben with my congrats? thanks Viet -Original Message-From: Benczkowski, Brian A Sent: Friday, January 17, 2003 11:34 AM To: Dinh, Viet; Charnes, Adam Subject: FW: Pryor FYI BIRMINGHAM NEWS Pryer's reputation eyed Inquiries standard for judicial nominees 01/17/03 MARY ORNDORFF News Washington correspondent WASHINGTONThe U.S. Justice Department is polling Alabama lawyers about the legal reputation of Attorney General Bill Pryor, a sign his candidacy for a seat on a federal appeals court is gaining steam. The White House is considering nominating Pryor to the 11th U.S. Circuit Court of Appeals , and government inquiries into his qualifications and background are standard be-fore the nomination is submitte d to the U.S. Senate. "I told them that I think he is very qualified by intellect, temperament, character and his fairness," said Anthony Joseph, a Birmingham lawyer who has worked both for and against Pryor on past cases. He EXT-18-2091-D-000096 007 104-00 1972 Document ID: 0.7.19343 .8887 said a Justice Department employee called him this week. If confirmed by the Senate , Pryor would take a lifetime seat on the Atlanta-based appeals court that is one judicial level below the U.S. Supreme Court. U.S. Sen. Jeff Sessions , a member of the Senate- Judiciary Committee and Pryor's former boss, has said President Bush was considering nominating the 40-year-old state prosecutor. The president 's original nominee, federal magistrate William Steele of Mobile, languished for 15 months without a confirmation hearing. Black organizations had objected to Steele's ruling in a racial harassment case that eventually was overturned. For the 108t h Congre ss, which took office this month , Bush instead nominated Steele for a district court seat in Mobile. Race can be a majo r factor in ju dicial nominations and since Senate Majority Leader Trent Lott of Mississippi endorsed a segregationist for president and had to resign his post, Republicans are e.specially sensitive to the issue . Sessions himself was turned down for a federal judgeship by the committee on which he now sits because of allegations of racia l insensitivity. Joseph, who is black, said the Justice Department did not ask any race-related questions. "Based on my knowledge of him, I would be very surprised (if race became an issue in Pryor's confirmation) ," Joseph said. Cleo Thomas , an Anniston lawyer, said the Justice Department called him Tuesday about Pryor. "I told them he had an excellent reputation in the legal community," Thomas said. "He has a breadth of le gal experience and education and the rightjud icial temperament." Thomas, who is black, said race was never mentioned, but they did ask who he thought would oppose a Pryor nomination. "I told them I didn 't know of anybody who would oppose him," Thomas said. But Pryor, a partisan Republican , prolific writer and frequent public speaker , has made no secret of his positions on several major issues facing the federa l judiciary . He's against abort ion, and he believes in protecting the Second Amendment rights regarding gun ownership , states ' rights trumping the federal government 's, government displays of the Ten Commandments and student-led prayer in public schools. Democrats in the U.S. Senate have in the past opposed nominees they believe are too beholden to their political beliefs to be an objective jurist, but there has not been public criticis m of Pryor along those lines. EXT-18-2091-D-000097 007 104-001973 Documen t ID: 0.7.19343.8887 Sales , Nathan From : Sales, Nathan Sent : Friday, January 24, 2003 10:44 AM To : Charnes , Adam; Bencz.kowski, Brian A; Dinh, Viet; ' Brett_ M._ Kavanaugh@who.eop.gov ' Subject : RE: Hatch Adler just posted the follo wing on Nat ional Review ' s Corner: WHAT'S HATCHTHINKING? [Jonathan H. Adler] The good news is that Judiciary Comm ittee Chairman Orrin Hatch will expedite the confirmations of most of President Bush's judicia l nom inat ions. I say most be-cause Hatch is def initely putt ing the brakes on some others . At this morning ' s business meeting, Hatch announced he plans to hold more hearings on Justice Priscilla Owen and Judge Charles Pickering. As if giving Schume r & Co. another chance to take pot shots at the nominees w ill somehow make their confirmation easier. In more pos itive news, it looks like Miguel Estrada may finally get a committee vote next week. -Or iginal Message-From: Sales, Nathan Sent: Friday, January 24, 2003 9:56 AM To: Charnes , Adam ; Benczkowsk i, Brian A; Dinh, Viet; 'Brett_M._Kavanaugh@who .eop.gov ' ; Willett , Don; Bene-di, Lizette D; Koebele , Steve; Hall, William ; Remington , Kristi L; Chenoweth , Mark; Joy, Sheila Subject: Hatch Hatch just said , explicitly: "in due course , we're going to have hearings fo r Priscilla Owen and Judge Pickering." -- Original Message --From: Sales, Nathan To: Charnes , Adam ; Benczkowsk i, Brian A Sent: Fri Jan 24 09:41:14 2003 Subject: Miguel Hatch just announced that he ' s being he ld ove r. EXT-18-2091-D-000098 007 104-001974 Document ID: 0.7.19343.5474 Dinh, Viet From : Dinh, Viet Sent : Tuesday, January 28, 2003 9:37 AM To: 'Brett_M._Kavanaugh@who.eop.gov' Cc: 'David_G._ leitch@oa.eop.gov '; 'Alberto _R._Gonzales@oa.eop.gov' Subject : RE: ABAalert --Or iginal Message--From: Brett_ M._ Kavanaugh@who.eop.gov [mailto:Brett_M._Kavanaugh@who.eop.gov) Sent: Monday, January 27, 2003 9:23 PM To: Dinh, Viet Cc: David_ G._ leitch@oa.eop.gov; Alberto_ R._Gonzales@oa.eop.gov Subject: ABAalert The ABAweb site indicates that the ABAcommittee has "re-rated" all 14 of the circuit nominees except for Pickering. Any idea what is going on? EXT-18-2091-D-000099 007 104-001975 Documen t ID: 0.7.19343 .892 1 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Tuesday, January 28, 2003 3:26 PM To: Alberto_ R._Gonzales@oa.eop.gov; David_G._ leitch@oa.eop.gov; Kyle_ Sampson@who.eop.gov; Ashley_Snee@oa.eop.gov; Heathe r_ Wingate@oa .eop.gov Cc: Dinh, Viet Subje ct: Wash Post editorial page views on Sutton Post is likely to strongly oppose Sutton, as expected. (Wittes WILLawait the hearin g to hea r Sutton 's side of case.) The Post is very concerne d about the federalism line of cases and views Sutton as an extreme crusa der on that iss ue, particularly in two Federalist Society speeches of Sutton that Wittes has read. (As always, Wittes has done his home work and read everyt hing.} t the Post has supported Owen. Pickering, Estrada, and Roberts. EXT-18-2091-D-000100 007104-00 1976 Document ID: 0.7.19343 .8923 Dinh, Viet From: Sent: To: Subject: - Dinh, Viet Friday, January 31, 2003 10:49 AM Corallo, Mark; Goodling, Monica; 'Kavanaugh, Brett'; 'David_G._Leitch@who.eop.gov'; 'Ashley_Snee@who.eop.gov'; 'Jennifer_G._Newstead@who.eop.gov'; Charnes, Adam; Benczkowski, Brian A Neil Lewis and Pickering Need help; please advise. (b) (5) t . EXT-18-2091-D-000101 007104-001977 Document ID: 0.7.19343.9055 Dinh, Viet From : Dinh, Viet Sent : Monday, February 3, 2003 12:39 PM To: Benczkowski, Brian A; ' Brett_M._Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Brown, Jamie E {OLA);'Heather _ Wingate@who.eop .gov'; 'Wendy_J._ Grubbs@who.eop .gov' Subject : RE: Estrada Rapid Response distribution list -Original Message-From: Benczkowski, Brian A Sent: Monday, February 03, 2003 11:00 AM To: ' Brett_ M._ Kavanaugh@who.eop.gov' Cc: Charnes, Adam; Brown, Jamie E {OLA);Dinh, Viet; 'Heather _Wingate@who.eop.gov '; 'Wendy_J._ Grubbs@who.eop.gov ' Subject: RE: Estrada Rapid Response distribution list Message---Original From: Brett_ M._ Kavanaugh@who.eop.gov [ma ilto:Brett_M._Kavanaugh@who .eop.gov] Sent : Monday, February 03, 2003 10:53 AM To: Benczkowski, Brian A Cc: Charnes, Adam; Brown, Jamie E (OLA);Dinh, Viet; Heather _ Wingate@who.eop.gov; Wen dy_ J._ Grubbs@who.eop.gov Subject: RE: Estrada Rapid Response distribution list (Embedded image moved "Benczkowski, Brian A" to file: EXT-18-2091-D-000102 007104-001978 Documen t ID: 0.7.19343.9067 pic 19019.pcx) 02/03/2003 10:46:3 1 AM Record Type: Record To: See the distribution list at the bottom of this message cc: "Dinh, Viet" Subject: RE: Estrada Rapid Response distribution list This list looks good from the legislative and press sides of things. Finally, can we also set up a dedcate-d fax into the- Veeps office, an d get key fax numbers for Senate leadership offices? As you may be aware, when things are busy, e-mail often takes several hours to penetrate the Senate 's firewall. In the interest of keeping the Rapid Response truly rapid, we probably should have a back -up plan via fax. BAB - -Original Message-From: Brown, Jamie E (OLA) Sent : Monday, February 03, 2003 9:46 AM To: Benczkowski, Brian A Cc: Charnes , Adam; Heather Wingate (E-mail); Wendy Grubbs (E-mail) Subject: Estrada Rapid Response distribution list As per my conversation with Heather, below are the e-mails for an Estrada Rapid Response distribution group list. It includes the e-mails into the Veep's office, RPC, Senate R leadership , Hatch nominations team, and a counsel to each Republican member of the committee. Sara_nokes@vp.senate.gov heather _ wingate@who .eop.gov wendyj._gr ubbs@who.eop.gov jamie.e.brown@usdoj.gov nancy.scottfinan@us doj.gov rena_johnson_comisac@judiciary.senate.gov Alex_ Dahl@Judiciary.senate.gov EXT-18-2091-D-000103 007 104-001979 Document ID: 0.7.19343 .9067 brett_kavanaugh@who.eop.gov Alex_Vogel@frist.senate.gov Margar ita_ Tapia@Judiciary.senate.gov fran k_ brown@specter .senate.gov James_ Galyean@lgraham.senate.gov Chad _ Groover@Judiciary.senate.gov Makan_Delrahim@Judiciary.senate.gov Amy_Haywood@Judiciary.senate.gov Manuel _ Miranda@Judiciary.senate.gov Swen_Prior@Judiciary.senate.gov William_5mith@Judiciary.senate.gov monica .goodling@usdoj.gov asnee@who .eop.gov steven _ duffield@rpc.senate.gov Katie_ Gumerson@rpc.Senate.Gov Steve _ Taylor@Judiciary .senate.gov brooke_roberts@c raig.senate.gov Jim_lrwin@chambliss.senate.gov Message Sent To:___________________________ _ "Brown, Jamie E (OLA)" "Charnes, Adam" Heather Wingate/WHO/EOP@EOP Wendy J. Grubbs/WHO/EOP@EOP Brett M. Kavanaugh/WHO/ EOP@EOP EXT-18-2091-D-000104 007 104-001980 Document ID: 0.7.19343 .9067 Brett_M ._Kavanaugh@who.eop .gov From : Brett_ M._Kavanaugh@who.eop.gov Sent : Wednesday, March 5, 2003 4:20 PM To: Dinh, Viet Subject : Re: for nomination next Tuesday March 11 I am tige r woo ds. Original MessageFrom: To:Brett M. Kavanaugh/WHO/EOP@EOP Cc: Date: 03/05/2003 04:16:09 PM Subject: RE:for nomination next Tues day March 11 I am dinh --Or iginal Message-- From: Brett_ M._ Kavanaugh@who.eop.gov [ma ilto:Brett_M. _Kavanaug h@who.e-op.gov] Sent: Wednesday, March OS, 2003 4:14 PM To: Dinh, Viet Subject: Re: for nominat ion next Tuesday March 11 I am kuhl. Original Message -From: To: (Receipt Notification Re-quested} (1PMRet urn Requested), Brett M. Kavanaugh/WHO/EOP@EOP Cc: (Receipt Notification Requested) , (Receipt Notification Requested), Helgard C. Walker /WHO/EOP@EOP, Benjamin A. Powell/WHO/EOP@EOP Date: 03/05/2003 04:05:05 PM Subject: RE:for nomination next Tues day March 11 EXT-18-2091-D-000105 0071 04-001981 Documen t ID: 0.7.19343 .9274 '. I know that is optimistic, but you know me. Who is WH lead on Carolyn Kuhl? - Original Message- -From: Charnes , Adam Sent: Wed nesday, March 05 , 2003 3:59 PM To: ' Brett_M._Kavan augh@who.eop.gov ' Cc: Benczkowski , Brian A; Joy~ Sheila; 'Helgard _ C._ Walke r@who.eop.gov '; 'Benjamin _A._ Powell@who.eop.gov '; Dinh, Viet Subject: RE: for nomination next Tuesday March 11 We had a confe rence call this morn ing with OLP, Ben, Bill, Sen. Sessions ' staff , an d Ed Haden to discuss planning for th is nominat ion , and I think --Or iginal Message-From: Brett _ M._ Kavanaugh@who.eop .gov [ma ilto :Brett_M._Kavanaugh@who .eop.gov ) Sent: Wednesday, March 05 , 2003 3:41 PM To: Brett _ M._ Kavanaugh@who.eop .gov Cc: Charnes , Adam ; Benczkowsk i, Brian A; Joy, Sheila ; Helgard _ C._ Wa lker@who.eop .gov; Benjami n_A._ Powell@who.eop .gov Subject: Re: for nomination next Tues da y Mar ch 11 Brett M. Kavanaugh 03/05/2003 03 :27 :32 PM Recor d Type : Recor d To: "Joy, Sheila " , a dam.chames@usdoj.gov, brian.a.benczkowski@usdoj.gov cc : Hel gard C. Walker/WHO/EOP@EOP , Benjamin A. Powell/WHO / EOP@EOP bee : Recor ds Management@EOP Subject: for nomination next Tues day March 11 (Document link: Brett M. EXT-18-2091-D-000106 0071 04-001982 Document ID: 0.7.19343 .9274 Kavanaugh} Document Dinh, Viet From : Dinh, Viet Sent : Monday, March 17, 2003 5:54 PM To: Brown, JamieGBP (OLA);'Brett_M._Kavanaugh@who.e-op.gov '; 'Wendy Grubbs (Email)'; Benczkowski, Brian A Subject : RE: Estrada Reply Jam ie. - thanks -Original Message-From: Brown, Jamie- E (OLA) Sent: Monday, March 17, 2003 4:48 PM To: Dinh, Viet; ' Brett_ M._ Kavanaugh@who.eop.gov'; Wendy Grubbs (E-mail); Benczkowski, Brian A Subject: FW: Estrada Reply EXT-18-2091-D-000108 0071 04-001984 Documen t ID: 0.7.19343.9312 Dinh, Viet From : Dinh, Viet Sent : Monday, March 17, 2003 9:04 PM To: Benczkowsk i, Brian A; 'Brett_M._K avanaugh@who .eop.gov ' ; Brown, Jamie E (OLA) Cc: 'Wendy _J._ Grubbs@who.eop.gov' Subject : Re: Estrada Reply Me four. - Sent from my BlackBerry. -Original Message-From: Benczkowski, Brian A To: ' Brett_ M._ Kavanaugh@who.eop.gov' ; CC: Dinh, Viet ; 'Wendy_J._ Grubbs@who.eop.gov' Sent: Mon Mar 1718:46:26 2003 Subject: RE: FW: Estrada Reply Brown, Jamie E (OLA) --Ori ginal Message- -From: Brett_M._Kavanaugh@who.eop.gov [mailto :Brett _M._Kavanaugh@who.eop.gov] Sent: Monday, March 17, 2003 6:44 PM To: Brown, Jamie E (OLA) Cc: Benczkowski, Brian A; Dinh, Viet; Wendy _J._Grubbs@who .eop.gov Subject: Re: FW: Estrada Reply (Embedded image moved uBrown, Jamie E (OLA)" to file: 03/17/2003 04:48:26 PM pic08634.pcx) EXT-18-2091-D-000109 007 104-001985 Document ID: 0.7.19343 .9539 Record Type: Recor d To: "Dinh, Viet" (Receipt Notification Requested) {1PM Return Requested), Wendy J. Grubbs/WHO/EOP@EOP, "Benczkowski, Brian A" {Receipt Notification Requested) (1PM Return Requested), Brett M . Kavanaugh/WHO/EOP@EOP cc: Subject: FW: Estrada Reply As per the e-mail below, Tom Boyd {former MG/OLA) has offered to sen d the following letter. - -Original MessageFrom: Boyd, Tom (mailto:TBoyd@alston.com) Sent: Monday, March 17, 2003 1:52 PM To: Brown, Jamie E (OLA) Subject: FW: Estrada Reply Jamie, the attached is what I would propose to send to the Senate Judiciary Committee if the Department thinks it to be useful. Please let me know what the collective wisdom is at your earliest opportunity. And I would also need to have confirmation that what the text says is accurate; it is my understanding of past and present Departmental policy and it squares with John Bolton's recollection as well. He has also reviewed and approved this draft. > Dear Senator. > > On February 11, you int roduced into the Senate Record a copy of a May 10, 1988, letter which I wrote when I serve d as Assistant Attorney General in charge of the Department of Justice's Office of Legislative Affairs during the Reagan Administration. In my lette r, I noted that the Department had historically provided the Senate Judiciary Committee with documents generated by nominees to the Supreme Court during their earlier tenure as senior policy officials in the Department of Justice. In particula r, I outlined the policy of the Department that ha d been applied to the production of documents pursuant to the nomination of Robert Bork to be an Associate Justice on the Supreme Court. These included privileged documents relating to upurely internal deliberations" involving Judge Bork, as well as his "work product" while Solicitor General. You used my letter as proof of a Departmental precedent for the release of similar documents relating to the time spent in the Department by Manuel Estrada. whose > nomination to become a judge on the District of Columbia Court of Appeals is now EXT-18-2091-D-000110 007 104-001986 Document ID: 0.7.19343 .9539 pending before the full Senate. I am afraid that I must respectfully disagree, however, with your conclusion. > > Judge Bork, and Chief Justice William Rehnquist and Associate Justice Antonin Scalia before him, held senior policy positions in the Department before being nominated to positions on the Supreme Court. They had been placed in those positions, each one a senior political position with policy responsibilities, by virtue of a presidential nomination and subsequent confirmation by vote of the Unite d States Senate. Mr. Estrada, so far as I know, was never in such a position at the Department of Justice. He was, instead, a career line attorney in the Solicitor General's Office. As such, he was apolitical, a member of the career civil service, and without any public policy portfolio. Historically, the Department has treated line attorneys like Mr. Estrada very differently from more senior, policy officials such as Judge Bork. For example, it has generally declined to provide line attorneys as witnesses before Congress on matters of public policy, an d it has similarly declined, generally, to release their> internal deliberations for review without cause. > > Judge Bork held the position of Solicitor General of the United States, the Government's chief advocate before the United States Supreme Court. Chief Justice Rehnquist, like Associate Justice Scalia after him, had been Assistant Attorney General for the Department 's Office of Legal Counsel (OLC). Next to the Attorney General, the head of OLC is President's chief lawyer. All of these gentlemen were appointed by the President of the United States and all of them held their positions at his pleasure. Not so for Mr. Estra da. Except for his area of expertise, he was no different from the (number?} of career civil servants who populate the lawyer ranks within the Department and who serve regardless of political affiliation. In fact, Mr. Estrada served with distinction under both President George H.W. Bush and President Bill Clinton. He should be treated no differently than other career lawyers are or have been. Accordingly, unless some independent cause can be established which would provide a basis for> the Senate to review the work he produced in confidentiality during his service as a career line attorney, I believe it would be both unwise and unprecedented for the Department and President Bush to do so unilaterally. > > > Sincerely, NOTICE:This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (404-881-7000) or by electronic mail (postmaster@alston.com), and delete this message and all copies and backups thereof. Thank you. EXT-18-2091-D-000111 007 104-001987 Document ID: 0.7.19343 .9539 EXT-1 8-2091-D-0001 12 acument ID: {3.11 93433539 Sales , Nathan From : Sales, Nathan Sent : Thursday, April 10, 2003 2:41 PM To: ' Brett_M._Kavanaugh@who.eop.gov '; Charnes, Adam Subje ct : RE: Sutton Attachments : Sutton TPs-positive.doc; Sutton TPs-disability.doc; Sutton TPs-federalism.doc; Sutton letters--disability.pdf Here are the essential TPs: (1) the positive, general talkers; (2) disability talkers; and (3) federalism talkers. --Original Message-From: Brett_M._Kavanaugh@who.eop.gov [mailto:Brett_M ._ Kavanaugh@who.eop.gov] Sent: Thursday, April 10, 2003 2:36 PM To: Charnes, Adam Cc: Sales, Nathan Subject: Re: Sutton yes, but can you send me the best "allegations/responses" talkers. Also, if we (Embedded image moved "Adam.Charnes@us doj.gov" Subject: Sutton EXT-18-2091-D-000113 0071 04-001989 Documen t ID: 0.7.19343 .5705 14 007104-001990 Document ?.?.19343.5?05 11501 Mayfield Road Apt. 902 Cleveland, OH 44106 May 21, 2001 The Honorable Senator Mike DeWine Member of the Senate Judiciary Committee 140 Russell Senate Building Washington, DC 20510 Dear Senator DeWine A few weeks ago my sister called to tell me that President Bush nominated Jeff Sutton to serve on the Sixth Circuit Court of Appeals. I was thrilled to hear the news. While working as Solicitor General for the State of Ohio, Jeff represented me in a lawsuit the Ohio Civil Rights Commission brought against Case Western R~serve University on my behalf. I sought but was denied admission to the Case Westei:-n medical school. I alleged then, as I continue to believe now, that'.the school denied my application for one impermissible reason: I'm blind. The Ohio Civil Rights Commission agreed with me. After a thorough investigation, the Commission determined that I was otherwise qualified for admission and that the school could make reasonable accommodations to enable me to pursue training to become a psychiatrist. The case worked its way through the Ohio courts and ultimately landed in the Ohio Supreme Court. It was at this point that I first met Jeff Sutton. Working for the State, Jeff took my case on, firmly convinced I had been wronged. I recall with much pride just how committed Jeff was to my cause. He believed in my position. He cared and listened and wanted badly to win for me. I recall well sitting in the courtroom of the Ohio Supreme ~ourt listening to Jeff present my case. It was then that I realized just how fortunate I was to have a lawyer of Jefrs caliber so devoted to working for me and the countless of others with both similar disabilities and dreams. Although I ultimately fell short in the courts, Jeff Sutton stood firm by my side. My experience confirmed what President Bush understands: Our nation would be greatly served with Jeff Sutton on the federal bench. Sincerely yours, ~~ Cheryl A. Fischer EXT-18-2091-D-000115 007104-001991 Document ID: 0.7.19343.5705-000001 EqualJusticeFoundation Protecting the rights of Ohio's disadvantaged Kimbtrl)'M. Skaggs,Esq. E.ue11tivrDirutor Gary M. Smith, Esq. Sp< Subject: Pickering EXT-18-2091-D-000123 007 104-001999 Document ID: 0.7.19343 .970 1 Thanks. BAB Brian A. Benczkowski Staff Director and Senior Counsel Office of Legal Policy United States Department of Justice 950 Pennsylvania Ave., NW Room 4228 Washington, DC 20530 Telephone: (202) 616 -2004 Fax.:(202} 514-1685 E-mail: Brian.A.Benczkowski@usdoj.gov EXT-18-2091-D-000124 007 104-002000 Documen t ID: 0.7.19343 .970 1 Dinh, Viet From : Dinh, Viet Sent : Tuesday, May 6, 2003 6:57 PM To: 'Benjamin_A._Powell@who.eop.gov ' Cc: Charnes, Adam; Benczkowski, Brian A; ' Brett_M._Kavanaugh@who.eop.gov' Subject : Re: Pryor and ABA Agreed let ' s chat manana. -Original Message-From: Benjamin_A._Powell@who.eop.gov To: Dinh, Viet CC: Charnes, Adam ; Benczkowski, Brian A ; Brett_ M._ Kavanaugh@who .eop.gov Sent: Tue May 06 18:45:58 2003 Subject: Re: Pryor and ABA - true, and we should discuss if (Embedded image moved "Viet.Dinh@us doj.gov" , "Brian.A.Benczkowski@usdoj.gov" , Benjamin A. Powell/WHO/EOP@EOP cc: Brett M. Kavanaugh/WHO/EOP@EOP Subject : Re: Pryor and ABA No idea but suffice it to sa -Original Message--EXT-18-2091-D-000125 007 104-002001 Document ID: 0.7.19343 .9965 From: Benjamin_A._Powell@who.eop.gov To: Charnes, Adam ; Benczkowski, Brian A ; Dinh , Viet CC: Brett_M._Kavanaugh@who.eop.gov Sent: Tue May 06 16:56:18 2003 Subject: Pryor and ABA I understan d from Pryor that they switched the person doing his nominee from an attorney in GA to an attorney in NC. The new attorney is E. Osborne Ayscue Jr. of Helms, Mulliss & Wicker in Charlotte, NC. EXT-18-2091-D-000126 0071 04-002002 Documen t ID: 0.7.19343 .9965