<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:77278.wais]
. S. Hrg. 107-250
CONFIRMATION HEARING ON THE NOMINATIONS OF LARRY D. THOMPSON TO BE
DEPUTY ATTORNEY GENERAL AND THEODORE B. OLSON TO BE SOLICITOR GENERAL
OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
APRIL 5, 2001
__________
Serial No. J-107-13
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH McCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
Sharon Prost, Chief Counsel
Makan Delrahim, Staff Director
Bruce Cohen, Minority Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
PRESENTERS
Cleland, Hon. Max, a U.S. Senator from the State of Georgia
presenting Larry D. Thompson, Nominee to be Deputy Attorney
General........................................................ 11
Miller, Hon. Zell, a U.S. Senator from the State of Georgia
presenting Larry D. Thompson, Nominee to be Deputy Attorney
General........................................................ 12
Nickles, Hon. Don, a U.S. Senator from the State of Oklahoma
presenting Theodore B. Olson, Nominee to be Solicitor General
of the United States........................................... 10
Warner, Hon. John W., a U.S. Senator from the State of Virginia
presenting Theodore B. Olson, Nominee to be Solicitor General
of the United States........................................... 8
STATEMENTS OF THE NOMINEES
Olson, Theodore B., Nominee to be Solicitor General of the United
States......................................................... 60
Questionnaire.................................................. 62
Thompson, Larry D., Nominee to be Deputy Attorney General........ 15
Questionnaire.................................................. 19
QUESTIONS AND ANSWERS
Written questions for Theodore B. Olson submitted by Senator
Durbin......................................................... 174
Written questions for Larry D. Thompson submitted by Senator
Durbin......................................................... 176
Responses of Theodore B. Olson to questions submitted by Senator
Leahy.......................................................... 177
CONFIRMATION HEARING ON THE NOMINATIONS OF LARRY D. THOMPSON TO BE
DEPUTY ATTORNEY GENERAL AND THEODORE B. OLSON TO BE SOLICITOR GENERAL
OF THE UNITED STATES
----------
THURSDAY, APRIL 5, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:27 a.m., in
room SC-5, The Capitol, Hon. Orrin G. Hatch, Chairman of the
Committee, presiding.
Present: Senators Hatch, Specter, Kyl, DeWine, Sessions,
McConnell, Leahy, Kennedy, Feinstein, Feingold, Schumer,
Durbin, and Cantwell.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning. Welcome to the nomination
hearing before the Senate Judiciary Committee. Today we are
going to consider the nomination of Larry D. Thompson to be the
Deputy Attorney General and of Theodore B. Olson to be
Solicitor General of the United States.
Before we begin, I would like to congratulate both nominees
on being selected by President Bush for these important
positions. It is a pleasure to have two nominees before this
Committee who have distinguished themselves with hard work and
great intellect, and I am confident that they will do great
service to the Department of Justice and the citizens of this
country upon their confirmation.
Certainly, the position of Deputy Attorney General is vital
to the Department of Justice and to the country. The Deputy
Attorney General serves as the No. 2 person at the Justice
Department and acts as the Justice Department's chief operating
officer, handling much of its day-to-day administration. The
Deputy must be a person of unquestioned competence and
integrity who can exercise good judgment and provide objective
legal advice to the Attorney General.
Mr. Thompson meets all of these requirements. He has had an
impressive and varied career as a lawyer, including working as
in-house corporate counsel at Monsanto, as a partner at the
prestigious law firm of King and Spalding, as the United States
Attorney for the Northern District of Georgia, as an
independent counsel, and as an adjunct professor of law at both
Mercer University and the University of Georgia Law School.
The diverse nature of his employment is surpassed by the
even wider variety of legal issues that he has mastered. Most
recently, Mr. Thompson has specialized in white-collar criminal
defense, complex civil litigation, internal corporate
investigations, RICO litigation, and False Claims Act cases. He
has also handled a variety of civil matters and has both
prosecuted and defended people accused of criminal activity. He
has been involved in antitrust, civil rights, and intellectual
property issues. This experience, combined with an excellent
character, convinces me that Mr. Thompson, once confirmed, will
prove to be one of the most qualified Deputy Attorney Generals
to serve this country.
So it is a pleasure to welcome you, Mr. Thompson, to our
Committee this morning.
Our second nominee this morning is Ted Olson.
The Solicitor General is one of the most coveted positions
in the Federal Government. Numerous anecdotes of accomplished
lawyers attest to this fact. For instance, when appointed to
the Supreme Court, Justice Murphy asked whether any other
Justice had held as many governmental positions as he had. The
clerk responded, ``Well, there was Taft...He was Solicitor
General, he was Circuit Court Judge, he was president of the
Philippines Commission, he was Secretary of War, he was
President of the United States, and, of course, he was Chief
Justice.'' Dejected, Justice Murphy asked, ``He was Solicitor
General, too?''
[Laughter.]
Chairman Hatch. The Solicitor General represents the
interests of the United States in litigation before the Supreme
Court and the Federal appellate courts.
By statute, the Solicitor General takes his orders from the
Attorney General. The position was created in 1870 to assist
the Attorney General with the duties of litigating before the
Supreme Court.
One of his main tasks is to defend Federal statutes and
regulations from challenges in the Federal courts.
Before the Supreme Court, he serves more than just an
advocate's role. He is also a kind of trusted advisor and is
sometimes referred to as the ``tenth justice'' or as the
``thirty-fifth law clerk,'' because of his important
institutional role.
[Laughter.]
Chairman Hatch. I want to make sure you are always humble.
The Supreme Court relies on the Solicitor General to provide an
accurate explanation of the current state of the law.
Mr. Olson, who has been nominated for the position of
Solicitor General, should be no stranger to this role. He has
argued before the Supreme Court 15 times and is regarded by
both liberals and conservatives as one of the best appellate
lawyers in our country. The National Law Journal has twice
recognized him as one of America's 100 Most Influential Lawyers
and has called him a ``member of the inner circle of the
Supreme Court bar.''
Mr. Olson has an extremely distinguished record in private
practice and also as the head of the Office of Legal Counsel in
the Department of Justice. His knowledge and expertise extend
over the whole range of constitutional and statutory issues. He
has the intellect and experience to represent the United States
well on the wide variety of issues that will face the
administration.
Let me just say that I have the utmost confidence in Mr.
Olson's ability to maintain his balance.
With Attorney General John Ashcroft at the helm, Larry
Thompson as his Deputy, and Ted Olson as the Solicitor General,
I believe that we have the beginnings of one of the best and
most qualified Departments of Justice this country has seen.
So, Ted, we are delighted to welcome you and your family
here this morning.
Let me turn to the distinguished ranking Democratic member
for his opening remarks, and then we will turn to our witnesses
for theirs.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman.
The positions of Deputy Attorney General and Solicitor
General are extremely important, and they are very sensitive
leadership positions at the Department of Justice, as attested
to by the fact that we have four extraordinary Senators here
prepared to testify, one even more extraordinary than the
others.
[Laughter.]
Chairman Hatch. We know he is speaking of himself.
Senator Leahy. Coming from a Gaelic heritage, I appreciate
that. I applaud my Senator from when I am away from home. And
somebody reading this record 50 years from now, if anybody is
so bored as to do that, will wonder what the heck we were
talking about.
I hope the hearings of these nominations will clear the air
on a number of issues, especially because they are so
important.
The position of Deputy Attorney General is a crucial one.
The Deputy is No. 2 in command and plays a key role as a top
advisor to the Attorney General. Actually, the position was
firmly established back in the Eisenhower administration almost
50 years ago. It was just after the Attorney General and
President Eisenhower had established the arrangement by which
the American Bar Association began providing peer review to the
President of possible judicial nominees.
Now, while a number of our longstanding traditions are
being changed by the current administration, as they have a
right to, the position of the Deputy Attorney General appears
to be one that continues, and I am happy to see that. Former
Deputies include William Rogers and Byron White, Nicholas
Katzenbach and Warren Christopher, Harold Tyler, Jamie Gorelick
and Eric Holder. The Deputy has traditionally assumed
responsibility for the day-to-day operations of the Department.
The Deputy often has direct oversight of a number of divisions
and units within the Department, including the FBI and those
with criminal jurisdiction. And the Deputy position may assume
even greater significance in this administration since we have
not read of any designation of an Associate Attorney General
with whom the Deputy might share those leadership
responsibilities. Perhaps there will be.
This is a critical juncture for the Department and for our
Federal law enforcement efforts. I am concerned with reports
that the administration intends to cut Justice Department
funding significantly. The early reports were that those cuts
would amount to more than $1 billion annually, and I want to
explore what cuts the President and Attorney General Ashcroft
will make in law enforcement to absorb those.
I know that Mr. Thompson served previously as a United
States attorney, and I am sure that he appreciates, as those of
us who have had the opportunity to serve as prosecutors
understand, what it would mean to cut positions in our U.S.
Attorney's Offices and how unwise that would be.
I am concerned that the Senate is being called upon this
week to vote on the Federal budget without having seen a
detailed submission of where the Bush administration intends to
make its cuts in law enforcement. I for one would hate to see
large cuts in our Federal assistance to State and local law
enforcement. Those programs to help acquire bulletproof vests
or to reduce DNA backlogs or to encourage modern
communications, provide modern crime labs, and place cops on
the beat have helped bring down our crime.
In fact, under Attorney General Reno, and due in part to
her emphasis on a coordinated effort with State and local law
enforcement, with strong support from the Congress, crime rates
fell in each of the past 8 years. I don't know a time in my
adult life that the crime rates have fallen in this country for
8 years in a row. Violent crimes, including murder and rape,
have been reduced to the lowest levels in decades. So we should
continue--if we have something that is working, we ought to
continue with it.
Now, the President said he intends to cut Federal
assistance to State and local law enforcement by 30 percent. We
do want to look at that. With school shootings continuing to
occur across the country and the use of heroin,
methamphetamine, and other dangerous drugs not only in my State
but across the country, in rural and urban settings, with all
that it is not the time to redirect $1.5 billion away from
Federal assistance to State and local law enforcement.
Senator Hatch and I began this year by cosponsoring with
other Senators a bill to focus increased effort and resources
in the battle against illegal drug use. But our bill will
require substantial commitments to do it, not by cutting
billions out of our anti-drug effort but by adding money.
I was very impressed by Mr. Thompson when we met and spoke
informally earlier this week, not only for his own obvious
brilliance as an attorney and his background, but I know that
when things are working well, there is a lot of contact between
this Committee on both sides of the aisle and the Department.
So we need a candid and responsive relationship, and I look
forward to that.
In fact, usually the Deputy Attorney General has warranted
its own hearing. Indeed, the hearing on the nomination of
former President Bush's last Deputy Attorney General included a
number of public witnesses in addition to testimony from the
nominee. Now, the Chairman has said that we will have the
hearing of this and the Solicitor General together. That is his
prerogative.
The Solicitor General fills a unique position in our
Government. He is responsible for the integrity of our laws. He
is not another legal advocate out to advance the narrow
interests of a client or merely another advocate of the
President's policies. He is much more than that. The Solicitor
General must use his or her legal skills and judgments for
higher purposes, and sometimes even called the ``tenth
justice'' of the Supreme Court.
We have reviewed nominations to the position of Solicitor
General over the years, seeking the highest levels of
independence and integrity, as well as legal skills. Think of
the people we have had. The Chairman mentioned William Howard
Taft. We had Benjamin Bristow, Charles Evans Hughes, Robert
Jackson, Archibald Cox, Thurgood Marshall, and Erwin Griswold.
I mentioned last month when the President withdrew a number
of judicial nominations that had been pending before this
Committee over the last several years: Judge Helene White,
Judge James Wynn, Bonnie Campbell, and many others. I regret he
also withdrew the nomination of Kathleen McCree Lewis. Even
though she had been before this Committee without action for a
year and a half, I thought the name would be very familiar to
us because she is the daughter of one our most distinguished
Solicitors General and Federal Judges, Wade McCree, and is
herself a highly respected appellate lawyer at the Detroit firm
of Dykema Gossett, strongly supported by the Senators from her
State. And I think had we ever gotten around to having a
hearing on her and voting on her, she would have been
confirmed. She would have been the first African-American woman
ever to serve on the Sixth Circuit.
Now, I know Mr. Olson. I had a good talk with him earlier
this week, and I appreciate the amount of time and his courtesy
coming by and affording me whatever time I might want. I had
the opportunity, along with Senator Hatch to attend the oral
arguments before the U.S. Supreme Court last December and saw
how well he handled on behalf of his client, in this case now
President of the United States.
He has spoken in a number of other areas. He argued on
behalf of a number of other causes, such as ending affirmative
action, defending VMI's policy of excluding women, and we will
probably talk about that. But I always felt that he was there
to speak for a client on a particular case.
Now, what I am not going to do, as, unfortunately, some on
this Committee have done during the past 6 years, is hold up a
person because of his clients. I think every client has a right
to have the best attorney possible, and Mr. Olson is without
doubt one of the best.
Now, Mr. Olson was very critical of the last administration
for what he saw to be the exercise of political influence over
the Department of Justice. He was extremely critical of
Attorney General Reno for failing, in his view, to maintain the
standard of independence and non-partisanship. He will, of
course, be asked whether he will disregard partisanship,
especially a Solicitor General.
Now, I know the Chairman wants to expedite this hearing. He
noticed it last week before all the required reports had been
received on both nominees. I think it is a rather unprecedented
step to put them together, but that is his right. And no matter
what criticism there might be of it, I would point out that it
is his absolute right to speed this through in this way, even
if it is not our normal procedure.
With that, to help you speed it up, Mr. Chairman, I will
put the rest of my statement in the record.
Chairman Hatch. I am so pleased with that.
Senator Leahy. I am sure you are.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, A U.S. Senator from the State of
Vermont
The positions of Deputy Attorney General and Solicitor General are
extremely important and sensitive leadership positions at the
Department of Justice. I hope that today's hearing on the nominations
to fill these important posts will be both full and fair.
The position of Deputy Attorney General is a crucial one. The
Deputy is number two in command and plays a key role as a top advisor
to the Attorney General. The position was firmly established in the
Eisenhower Administration almost 50 years ago--just after the Attorney
General and President Eisenhower had established the arrangement by
which the American Bar Association began providing peer review to the
President of possible judicial nominees. While a number of our
longstanding traditions are being upset by the current Administration,
the position of the Deputy Attorney General appears to be one that
continues. Former Deputies include William Rogers and Byron White,
Nicholas Katzenbach and Warren Christopher, Harold Tyler, Jamie
Gorelick and Eric Holder. The Deputy has traditionally assumed
responsibility for the day-to-day operations of the Department. The
Deputy often has direct oversight of a number of divisions and units
within the Department, including the FBI and those with criminal
jurisdiction. The Deputy position may assume even greater significance
in this Administration since we have not read of any designation of an
Associate Attorney General with whom the Deputy might share those
leadership responsibilities.
This is a critical juncture for the Department and for our federal
law enforcement efforts. I remain concerned with reports that the Bush
Administration intends to cut Justice Department funding significantly.
The early reports were that those cuts would amount to more than
$1,000,000,000 annually. I want to explore where President Bush and
Attorney General Ashcroft intend to absorb such massive cuts.
I know that Mr. Thompson served previously as a United States
Attorney. I am sure that he appreciates, as those of us who served as
local prosecutors understand, what it would mean to cut positions in
our United States Attorneys offices and how unwise that would be.
I am concerned that the Senate is being called upon this week to
vote on the federal budget without having seen a detailed submission of
where the Bush Administration intends to make its cuts in law
enforcement. I, for one, would hate to see cuts in our federal
assistance to State and local law enforcement. Those programs to help
acquire bulletproof vests, reduce DNA backlogs, encourage modern
communications, provide modern crime labs, and place cops on the beat
have been so helpful to our crime control efforts.
Under Attorney General Reno, and due in part to her emphasis on a
coordinated effort with State and local law enforcement, crime rates
fell in each of the past 8 years. Violent crimes, including murder and
rape, have been reduced to the lowest levels in decades, since before
the Reagan and Bush Administrations. We need to redouble our efforts,
not cut them short or leave them short of funds. When the Bush budget
highlights in his ``Blueprint for New Beginnings'' says that the
President intends to cut federal assistance to State and local law
enforcement by 30%, by ``redirecting"over $1,500,000,000, that troubles
me. With school shootings continuing to occur across the country and
the use of heroin, methamphetamine and other dangerous drugs in Vermont
and across the country in rural and urban settings, now is not the time
to be redirecting $1,500,000,000 away from federal assistance to State
and local law enforcement. Now is not the time to be pulling back from
the strong national commitment we should be making to continue to
assist those on the front lines in the fight against crime and battle
over illegal drug use.
Senator Hatch and I began this year by cosponsoring with other
Senators a bill to focus increased effort and resources in the battle
against illegal drug use. Our bill, the Drug Abuse Education,
Prevention and Treatment Act of 2001, will require a significant
commitment of additional resources to this effort. If we are finally
ready to make the type of commitment to drug abuse education,
prevention and treatment that we need in order to make a difference,
that will require increasing federal funding of our anti-drug efforts
by over $1,000,000,000 during the next three years, not cutting law
enforcement funding by more than $1,000,000,000 each of the next four
years.
I was impressed by Larry Thompson when we met and spoke informally
earlier this week. When we are working together well, the contact
between this Committee and the Department is so frequent and important
that we will need a candid and responsive relationship with the Deputy.
I enjoyed our brief visit earlier this week and look forward to getting
to know Mr. Thompson better through the course of these proceedings.
A nomination to as significant a position as the Deputy Attorney
General has traditionally been treated by this Committee as worthy of
its own hearing. Indeed, the hearing on the nomination of former
President Bush's last Deputy Attorney General included a number of
public witnesses in addition to testimony from the nominee. Instead of
proceeding along that model, Senator Hatch has ordered this matter to
be interwoven with the nominee to be Solicitor General, without any
opportunity for witnesses other than the nominees to testify. I recall
that Chairman Thurmond heard witnesses in connection with the
nominations of both Rex Lee and Charles Fried to be Solicitor General
during the Reagan Administration. Having public testimony in connection
with nominations can be a helpful aspect to this process and useful to
the Senate as it performs its constitutional responsibilities in
considering whether to confirm presidential nominations.
The Solicitor General fills a unique position in our Government.
The Solicitor General is responsible for the integrity of our laws. The
Solicitor General is not merely another legal advocate whose mission is
to advance the narrow interests of a client, or merely another advocate
of his President's policies. Rather, the Solicitor General is much more
than that. The Solicitor General must use his or her legal skills and
judgment to higher purposes. For this reason the Solicitor General has
often been called the 10th Justice of the Supreme Court.
On this Committee, Republicans and Democrats have reviewed
nominations to the position of Solicitor General seeking the highest
levels of independence and integrity, as well as legal skills. He or
she must argue with intellectual honesty before the Supreme Court and
represent the interests of the Government and the American people for
the long term, and not just with an eye to short-term political gain.
It is our obligation here on this Committee to help the Senate
determine whether a nominee understands and is up to this extraordinary
role. From Benjamin Bristow in 1870, to William Howard Taft and Charles
Evans Hughes, Jr., from Robert Jackson to Archibald Cox, Thurgood
Marshall and Erwin Griswold, we have had some extraordinary people
serve this country as our Solicitors General.
Part of my deep regret last month when President Bush chose to
withdraw the nominations of the judicial nominations that had been
pending before this Committee over the last several years without
action was that, along with the nominations of Roger Gregory and Judge
Helene White and Judge James A. Wynn, Jr. and Bonnie Campbell and so
many others, President Bush chose to withdraw the nomination of
Kathleen McCree Lewis.
That name is familiar not only because her nomination was before
this Committee without action for more than one and a half years, from
September 16, 1999 until withdrawn by President Bush on March 19, 2001.
That name is also familiar because Ms. Lewis is the daughter of one of
our most distinguished Solicitors General and federal judges, Wade
McCree. Ms. Lewis is herself a highly-respected appellate lawyer at the
Detroit firm of Dykema Gossett. She had served as a member of the
Detroit Civil Service Commission and of the Detroit Civic Center
Commission. She was strongly supported by both Senator Levin and
Senator Stabenow for a seat on the United States Court of Appeals for
the Sixth Circuit. Had this Committee held a hearing on her nomination
and had the Senate considered her, I have no doubt that she would have
been confirmed. She would have been the first African American woman
ever to serve on the Sixth Circuit. Although a consensus candidate, she
was denied that opportunity to serve.
I had a brief opportunity to chat with Mr. Olson earlier this week.
I am familiar with his work as a part of the Reagan Justice Department.
In addition, I had the opportunity along with Senator Hatch, to attend
the oral arguments before the United States Supreme Court last December
and witnessed his aggressive representation of George W. Bush in that
historic presidential selection case.
His role in that case and on behalf of a number of other causes,
such as ending affirmative action and defending VMI's policy of
excluding women, are matters that I anticipate will be covered in the
course of these hearings. Unlike the litmus test that has been used by
anonymous Republicans over the last several years to disqualify the
choices of a Democratic President, I will not oppose this nomination
merely because of Mr. Olson's clients and his clients' activities. I
understand the role of an advocate in our legal system.
What adds controversy to this nomination are Mr. Olson's activities
and outspoken partisanship over the last several years. A key question
that this hearing will raise is whether Mr. Olson would put his
partisanship and activist politics aside in the formulation of the
Government's litigation positions. Mr. Olson was very critical of the
last Administration for what he saw to be the exercise of political
influence over the Department of Justice, and he was extremely critical
of Attorney General Reno for failing, in his view, to maintain a
standard of independence and nonpartisanship. Given his rhetoric over
the last several years, Mr. Olson is now confronted with the question
whether he will disregard partisanship and narrow political ideology in
carrying out the important responsibilities of the Solicitor General.
I know that Senator Hatch is expediting this hearing, going so far
as to notice it last week before all the required reports had even been
received on both nominees. He is taking the unprecedented step of
combining both of these critical nominations in a single panel in a
single hearing on a single day. Indeed, he has chosen to proceed today
knowing that for some time the Republican leadership has planned to
devote today to Senate consideration of this year's budget resolution.
So, in addition to our participation today in the work of the Senate as
it considers the budgetary framework for the Federal Government, we
have a doubly full hearing agenda as we begin the process of
considering these critical nominations.
Moreover, this has already been the Committee's busiest week of the
session having already held more hearings on Tuesday and Wednesday of
this week than the Committee held in all of February or all of March.
This will be our fifth hearing this week. Finally, I should note for
the record that we are not proceeding in our normal Judiciary Committee
hearing room or in one of the other larger hearing rooms that we
sometimes employ. Instead, we are proceeding for the first time in a
basement room of the Capitol with less accessibility and availability
to the public.
In spite of all these circumstances, we will do the best that we
can to fulfil our responsibilities. I want to commend the Members of
the Committee who are adjusting their schedules to participate in the
hearing today. I will do all that I can to accommodate them and all
Members of the Committee to ensure that they have had the opportunity
to review these nominations and question the nominees.
Chairman Hatch. We have four distinguished witnesses here
this morning before the two nominees, and because of his
problems that are many-fold right now, we are going to turn to
our Scottish warlord here.
[Laughter.]
Senator Leahy. Didn't they make a movie about him? He does
have that Mel Gibson appearance, except he looks younger and
more virile.
[Laughter.]
Senator Warner. We should have brought Sean Connery in. He
is right upstairs waiting, and he is going to escort us down.
Senator Leahy. Well, you have a lot more hair.
Chairman Hatch. Actually, John, you look better in a skirt
than Trent Lott.
[Laughter.]
Senator Leahy. I am going to leave that one alone.
Senator Warner. There is a cold draft in this room.
[Laughter.]
Senator Warner. Perhaps that could be expunged from the
record.
[Laughter.]
PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES, BY HON. JOHN W. WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. I think since you have brought up the fact
that I am here in my outfit today, probably the first time in
23 years I have been privileged to serve in the Senate I didn't
have a dark blue suit and a red tie on, but I do so because
April 6, 1320, the Scots declared their declaration of
independence. And it is interesting--I am reading from a Senate
resolution--that the American Declaration of Independence was
modeled on that inspirational document. Half of the signers of
the Declaration of Independence were of Scottish origin. The
Governors of nine of the 13 original States were of Scottish
ancestry, as have been many of our Presidents. So there is a
deep respect we have for our heritage.
Now, I have got to go upstairs--
Senator Leahy. Mr. Chairman, if the Senator would yield on
that point, I am glad you brought up April 6, 1320, because
there is only one member of this Committee who was around at
that time.
[Laughter.]
Senator Warner. He will be here momentarily.
Senator Leahy. He will be.
[Laughter.]
Senator Leahy. Casting the deciding vote.
Senator Warner. If I might proceed, thank you, gentlemen
and ladies. As you all know, the Solicitor General's office
supervises and conducts all Government litigation in the United
States Supreme Court, and I am honored to be here on behalf of
Theodore Olson today, a resident of my State. The Solicitor
General helps develop the Government's positions on cases and
personally argues many of the most significant cases before the
Supreme Court. Given these great responsibilities, it is no
surprise that the Solicitor General is the only officer of the
United States required by statute to be ``learned in the law.''
His background is impressive. He received his law degree in
1965 from the university of California at Berkeley where he was
a member of the California Law Review and graduated Order of
the Coif. Upon graduation, he joined the firm of Gibson, Dunn
and Crutcher in 1965, becoming a partner in 1972. During this
time, Mr. Olson had a general trial and appellate practice as
well as a constitutional law practice.
In 1981, he was appointed by President Reagan to serve as
Assistant Attorney General, Office of Legal Counsel of the
United States Department of Justice. During his 4 years in this
position, he provided counsel to the President, the Attorney
General, and heads of the executive branch departments.
After serving in the Reagan administration, Mr. Olson
returned to private practice. He has argued numerous cases
before the Supreme Court, including one that we are all
familiar with related to the past election and the Florida
results. His vast experience in litigating before the Supreme
Court will serve him well as Solicitor General.
Mr. Chairman, I say without reservation that this is a
well-experienced individual, and I am confident he will serve
in this position with honor, with integrity, and with
distinction.
I ask that the balance of my remarks be placed in the
record.
[The prepared statement of Senator Warner follows:]
Statement of Hon. John Warner, a U.S. Senator from the State of
Virginia
Chairman Hatch, and my other distinguished colleagues on the
Senate's Judiciary Committee, I am pleased to support the nomination of
a Virginian, Theodore B. Olson, to serve as the Solicitor General of
the United States.
As you all know, the Solicitor General's Office supervises and
conducts all government litigation in the United States Supreme Court.
The Solicitor General helps develop the government's positions on cases
and personally argues many of the most significant cases before the
Supreme Court. Given these great responsibilities, it is no surprise
that the Solicitor General is the only officer of the United States
required by statute to be ``learned in the law.''
Mr. Olson's background in the law is impressive. He received his
law degree in 1965 from the University of California at Berkeley where
he was a member of the California Law Review and graduated Order of the
Coif. Upon graduation, Mr. Olson joined the firm of Gibson, Dunn, &
Crutcher in 1965, becoming a partner in 1972. During this time, Mr.
Olson had a general trial and appellate practice as well as a
constitutional law practice.
In 1981, Mr. Olson was appointed by President Reagan to serve as
Assistant Attorney General, Office of Legal Counsel in the United
States Department of Justice. During his four years in this position,
Mr. Olson provided counsel to the President, Attorney General, and
heads of the Executive Branch Departments.
After serving in the Reagan administration, Mr. Olson returned to
private practice. He has argued numerous cases before the Supreme
Court, including one that we are all familiar with related to this past
election and the Florida election results. His vast experience in
litigating before the Supreme Court will serve him well as Solicitor
General.
Mr. Chairman, based on this extensive experience in the law, it
goes without saying that Mr. Olson is ``learned in the law.'' Mr. Olson
is obviously extremely well-qualified to serve as our next Solicitor
General, and I am confident that he will serve in this position with
honor, integrity, and distinction.
Again, I am pleased to indicate my support for Mr. Olson. I look
forward to the Committee reporting his nomination favorably and for a
confirmation vote before the full Senate.
Chairman Hatch. Thank you, Senator. We appreciate your
remarks.
Senator Warner. I thank the indulgence of all members. If
anyone cares to join us on the steps of the Capitol, where
about several hundreds Scots similarly dressed will be there,
you are welcome.
Chairman Hatch. Thank you, John. We appreciate it.
Senator Leahy. Thanks, John.
Chairman Hatch. We will follow seniority, so we turn to
Senator Nickles next, and then we will go to Senator Cleland
and then Senator Miller.
PRESENTATION OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES, BY HON. DON NICKLES, A U.S.
SENATOR FROM THE STATE OF OKLAHOMA
Senator Nickles. Mr. Chairman, Senator Leahy, and members
of the committee, thank you very much and I will be very brief.
One, I wish to compliment the President on his selection of
Larry Thompson as Deputy Attorney General and Ted Olson to be
Solicitor General. I think both are outstanding individuals.
Both will serve not only the Attorney General but our country
very well, and they will do an outstanding job.
I do regret to say that Mr. Olson is not of Scottish
descent. I find that to be his only lack of qualification.
Obviously, he is a preeminent attorney among a handful that is
eminently qualified to be Solicitor General. He is a lawyer
with the qualifications Senator Warner mentioned: his law
degree from the university of California, a partner in a very
prestigious law firm, Gibson, Dunn and Crutcher, for 30-some
years. He served as Assistant Attorney General of the United
States in 1981-84, offering advice to President Reagan and then
Attorney General William French Smith, in addition to other
executive branch departments.
He has held numerous legal positions both in the American
Bar Association, Federalist Society, and others. The National
Law Journal recognized him as one of America's top 100
attorneys. They have done that year after year, and deservedly
so.
He has argued cases before Federal level and State level.
He has been on several sides on legal issues. He recently, as
mentioned by both Senator Leahy and Senator Warner, argued in a
very famous case, Bush v. Gore. And regardless of whatever side
of that issue you are on, you had to be impressed with his
talent and the fact that he was able to put together that case,
argued a very complicated case under enormous pressure, both in
time and also on the importance of the issue.
He has argued cases on both sides of the courtroom. He has
defended the Government and he counseled the President and
Attorney General on the limits of Government power. He has also
defended private interests against the Government. So when he
is Solicitor General and arguing the Government's position in
court, he understands that there are both limits to Government
power against individuals and limits of executive branch
authority against the legislature and courts. I believe he will
be a real credit to this administration and to his profession,
and I believe our country is very fortunate to have him serve
in this capacity. I happen to agree with Senator Leahy. He is
one of our country's best attorneys, eminently qualified, and I
think he will be an outstanding Solicitor General for our
country.
So, Mr. Chairman and members, thank you very much for the
opportunity to introduce Ted Olson. I think he will do an
outstanding job.
Chairman Hatch. Well, thank you, our Assistant Majority
Leader. Your testimony means a lot to this committee. We
appreciate your being here, we know you are busy. We will let
you go.
Senator Cleland, we are very honored to have you and
Senator Miller here, and we look forward to hearing your
testimony.
PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, BY HON. MAX CLELAND, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Cleland. Thank you very much, Mr. Chairman. It is
an honor to be here with my colleague, Senator Zell Miller, and
we are honored today to speak and appear and recommend to the
Committee with our total support Attorney Larry Thompson from
Georgia.
I would like to acknowledge his lovely wife, Brenda, who is
here, and thank them both for their loyalty to each other and
loyalty to the law.
It is my pleasure to recommend him for the position of
Deputy Attorney General. He is an experienced litigator and
uniquely qualified to work on behalf of all Americans as Deputy
Attorney General. He graduated cum laude from Culver-Stockton
College in 1967. I admire anybody who graduates cum laude or
magna cum laude. I graduated ``lordie, how come?''
[Laughter.]
Senator Cleland. He serves as a member of the Board of
Trustees there at Culver-Stockton. He received his master's
degree from Michigan State in 1969 and his law degree from the
University of Michigan in 1974. He joined King and Spalding, a
law firm in Atlanta, in 1977 and practiced in the Antitrust and
Litigation departments until 1982. From 1982 until 1986, he
served as the U.S. Attorney for the Northern District of
Georgia and did an outstanding job. As U.S. attorney, he
directed the Southeastern Organized Crime Drug Enforcement Task
Force and served on the Attorney General's Economic Crime
Council.
After returning to King and Spalding in 1986 as a partner,
he resumed his practice in civil and criminal litigation. In
July 1995, Mr. Thompson was named Independent Counsel for the
Department of Housing and Urban Development investigation by
the Special Panel of the U.S. Circuit Court Judges appointed by
the Supreme Court. He is a member of the Committee on Lawyers'
Qualifications and Conduct of the Eleventh Circuit, U.S. Court
of Appeals. He is also an elected Fellow of the American Board
of Criminal Lawyers. In addition, Larry Thompson teaches a
weekly seminar on corporate crime at the University of Georgia
School of Law.
Paul Kurtz, the associate dean at the University of Georgia
School of Law stated that ``he is delighted that Larry has been
nominated.'' In addition, Mr. Kurtz said that Larry is
``incredibly bright, incredibly hard-working, and very
gifted.'' A wonderful description. Larry is well respected by
his peers and his students and cares very much about
representing all Americans as a member of the Justice
Department. He is an outstanding attorney and will be an
excellent Deputy Attorney General.
He is a wonderful person, as evidenced by his great
character and judgment; and, therefore, he has my full and
unconditional support. I hope he will be approved by the
Committee and confirmed by the full Senate as soon as possible.
Thank you very much, Mr. Chairman.
Chairman Hatch. Thank you so much, Senator Cleland.
Senator Miller?
PRESENTATION OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY
ATTORNEY GENERAL, BY HON. ZELL MILLER, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Miller. Mr. Chairman and members of this committee,
I am honored and pleased to be here today with my colleague,
Senator Cleland, to present Larry D. Thompson to this esteemed
committee. And I want to congratulate my longtime friend and
fellow Georgian on this nomination.
You have heard about his credentials. Let me tell you a
little bit about this man that I know so well.
Clearly--I cannot say this more clearly--President George
Bush simply could not have made a better choice in nominating
Larry Thompson as the next Deputy Attorney General for the
United States. This is a man of impeccable credentials who will
serve the Department of Justice and this Nation very, very
well.
I have had the pleasure to know Larry Thompson for many
years, as I say. He is the consummate professional: quiet yet
strong, a legal scholar who exercises enormous common sense, a
man who will put principle ahead of politics every time. He is
a man of great substance and little ego. He is not one to
grandstand or grab headlines.
Mr. Thompson would bring to the Department of Justice a
solid record of experience. You have heard about it already
from the Chairman and from Senator Cleland. I will add just a
little.
He was the kind of U.S. attorney who got in the trenches
and tried cases himself on occasion, working as hard or, as
they would tell you, harder than his assistant U.S. attorneys.
Those who worked under Larry Thompson were struck by the
enormous respect he always had for the rights of defendants. He
refused to publicize someone's misfortunes when they were
indicted. And he insisted on waiting until after a conviction
before he would claim victory.
From 1995 to 1999, Mr. Thompson served as independent
counsel in a corruption probe at the Department of Housing and
Urban Development. He earned praise from his peers for
approaching this highly political, highly volatile case with
the measured, unbiased, and apolitical approach for which he is
so well known.
Mr. Thompson, as the Chairman has mentioned, has practiced
law at the prestigious Atlanta law firm of King and Spalding
since 1977. He is a senior partner in the highly successful
Special Matters and Government Investigations practice formed
by Griffin Bell, who was appointed Federal judge by President
Kennedy and Attorney General by President Carter.
As I said at the beginning, President Bush simply could not
have made a better choice as Deputy Attorney General. Larry
Thompson brings a wealth of experience as a tough prosecutor,
an adept litigator, a respected scholar, and a skilled manager.
More important than that, Larry Thompson comes with no
agenda. He will base every decision on what is right, not what
is popular or politically expedient. He will bring to the
Justice Department the same wisdom, the same thoughtfulness,
and the same steady demeanor upon which he has built his
stellar career.
I am honored and I am very proud--in fact, this is the most
rewarding experience I have had so far as a United States
Senator--to present Larry Thompson and to recommend him
strongly for confirmation as the next Deputy Attorney General.
Thank you, Mr. Chairman.
[The prepared statement of Senator Miller follows:]
Statement of Hon. Zell Miller, a U.S. Senator from the State of Georgia
Mr. Chairman, Members of the Committee, Senator Cleland, I am
honored to be here today to present Larry D. Thompson to this Esteemed
Committee. And I want to congratulate my longtime fiend and fellow
Georgian on his nomination.
I cannot say it more clearly than this:
President Bush could not have made a better choice in nominating Larry
Thompson as the next Deputy Attorney General of the United
States.
This is a man of impeccable credentials who will serve the
Department of Justice and this nation very well.
I have had the pleasure to know Larry Thompson for several years.
He is the consummate professional: quiet yet strong, a legal scholar
who exercises enormous common sense, a man who will put principle ahead
of politics every time. He is a man of great substance and little ego.
He is not one to grandstand or grab headlines.
Mr. Thompson would bring to the Department of Justice a solid
record of experience that includes four years as the U.S. Attorney for
the Northern District of Georgia, from 1982 to 1986. In that job, Mr.
Thompson directed the Southeastern Organized Crime Drug enforcement
Task Force and served on the Attorney General's Economic Crime Council.
He was the kind of U.S. Attorney who got in the trenches and tried
cases himself on occasion, working as hard or even longer hours than
his assistant U.S. attorneys.
Those who worked under Larry Thompson were struck by the enormous
respect he paid to the rights of defendants. He refused to publicize
someone's misfortunes when they were indicted. He insisted on waiting
until after a conviction before he would claim victory.
From 1995 to 1999, Mr. Thompson served as independent counsel in a
corruption probe at the Department of Housing and Urban Development. He
earned praise from his peers for approaching this highly political,
highly volatile case with the measured, unbiased and apolitical
approach for which he is so well known.
As Governor of Georgia, I tried over and over again to persuade Mr.
Thompson to accept a position in state government. I knew he would be a
great asset to my administration.
In 1996, he finally accepted, taking a seat on the state Board of
Education. As many of you know, education is my passion, so I was
delighted to have someone of Larry Thompson's stature on the board that
oversees our public schools.
He took the job at one of the busiest times in his career--he was
practicing law and serving as the independent counsel in the HUD probe.
Still, he served with dedication and distinction on the Board of
Education, as I knew he would.Mr. Thompson has practiced law at the
prestigious Atlanta law firm of King & Spalding since 1977. He is a
senior partner in the highly successful ``Special Matters/Government
Investigation'' practice founded by Griffin Bell, the former Attorney
General under President Carter.
As I said at the outset, President Bush could not have chosen a
better nominee as Deputy Attorney General.
Larry Thompson brings a wealth of experience as a tough prosecutor,
and adept litigator, a respected scholar and a skilled manager.
More importantly than that, Larry Thompson comes with no agenda. He
will base every decision on what is right, not what is popular or
politically expedient. He will bring to the Justice Department that
same wisdom, the same thoughtfulness, and the same steady demeanor upon
which he has built his stellar career.
I am very honored and very proud--in fact, this is the most
rewarding experience I've had so far as a United States Senator--to
introduce Larry Thompson, and to recommend him for confirmation as the
next Deputy Attorney General.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you. I want to say that this is high
praise coming from the both of you, and your statements have
meant a lot to this Committee and mean a lot to me personally,
and I am sure they mean a great deal to Mr. Thompson and his
wife and family. So we appreciate you taking the time to be
with us.
Senator Miller. Thank you.
Chairman Hatch. Because I want to talk to members of the
Committee and see how we can expedite the procedures on this,
we are going to take a short recess, and I would like all
members of the Committee to go to SC-10A. So come out this
door, and we will just go around to the right, and then I will
have a chance to chat with you.
We will recess until we get back.
[Recess 10:57 a.m. to 11:30 a.m.]
Chairman Hatch. Just so everybody will know, we had someone
invoke the 2-hour rule, which is that the Committee cannot meet
after the first 2 hours of a regular session. We have been able
to resolve that, and so we are going to proceed. I am tickled
with that because I think--look, we have got to get these
positions filled at the Justice Department. It is in the best
interest of everybody in this country, Democrats, Republicans,
Independents, just good citizens. And so I would like to finish
this hearing today for both of these distinguished gentlemen
who deserve to have that kind of treatment.
I am going to forego my questions, and I will turn to the
ranking member.
Senator Leahy. I think they should be sworn and allowed to
make their statements.
Chairman Hatch. Well, now, that is a good idea.
[Laughter.]
Chairman Hatch. I get so tired of these procedural problems
that I--
Senator Leahy. Aren't you glad you have some of us minority
members here to help work them out?
Chairman Hatch. I am glad we have somebody here who knows
how to run the committee, is all I can say.
Would you two stand, please? Do you solemnly swear to tell
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Thompson. I do.
Mr. Olson. I do.
Chairman Hatch. Fine. Thank you.
Mr. Thompson, we will take your statement first. I hope
both your statements will be nice and short.
Take whatever time you need. I am just being humorous.
STATEMENT OF LARRY D. THOMPSON, NOMINEE TO BE DEPUTY ATTORNEY
GENERAL OF THE UNITED STATES
Mr. Thompson. Mr. Chair, Senator Leahy, and other members
of the committee, it is a great honor to be here today as the
nominee to become the Deputy Attorney General of the United
States. I would like to thank my home State Senators and
friends, Senator Cleland and Senator Miller, for their
introductions and support.
Senator, let me first introduce to the Committee my wife of
30 years, Brenda Thompson.
Chairman Hatch. Brenda, we are so happy to have you here.
We are proud of your husband and you.
[Applause.]
Mr. Thompson. Also here as a member of my family is General
Donald Scott and his wife, Betty Scott.
Chairman Hatch. General and Mrs. Scott, we are grateful to
have you here.
[Applause.]
Mr. Thompson. Donald was Deputy Librarian of Congress. My
father is deceased and my mother is 83 years old and somewhat
ill. She lives in Hannibal, Missouri. I have two sons. Larry is
26. He is a chemical engineer and a first-year law student at
New York University. Gary is 22 and is a senior at Kalamazoo
College in Kalamazoo, Michigan. And I certainly did not want to
do anything to encourage them not to finish school on time.
[Laughter.]
Chairman Hatch. You did right.
Mr. Thompson. Mr. Chair, it is a privilege to be considered
for this position, and I would like to thank the members of the
Committee and their staff for the courtesies extended to me
over the past several days and providing me an opportunity to
meet with many of you in the course of the confirmation
process. It has been very helpful to learn what issues are of
concern to you and to begin a cooperative and working dialog
that I pledge to continue if confirmed.
At the risk of introducing what might be considered some
sentimentality into these proceedings, I cannot help but think,
as I appear before you today, what a great Nation we live in
and how fortunate I am to have had the parents I did. I was
born and raised in Hannibal, Missouri. My father worked for the
railroad as a laborer. My mother was a part-time cook and
housekeeper. I attended a segregated school for 8 years where I
had dedicated and stern teachers. But I also had wonderful and
supportive teachers after integration. All of this is to say
that I simply could not have imagined 40 years ago, when my
father was living, that I would be sitting here before this
great body today as a participant in these proceedings.
I have been practicing law for almost 27 years; 19 of those
years have been primarily dedicated to the Federal criminal
justice system, either as a prosecutor or defense lawyer. I
have worked with and learned from a number of great lawyers.
Chief among them is my senior law partner, former Attorney
General, Griffin Bell.
As U.S. attorney under President Ronald Reagan, I managed
and led an office covering Atlanta and over 40 counties in
North Georgia, an area with a population of over 3 million
people. During my tenure as United States attorney, my office
conducted several successful investigations and prosecutions
relating to Government program fraud, prescription drug
diversion, public official corruption, illegal tax protests by
supremacist organizations, and terroristic acts by members of
the Ku Klux Klan that led to criminal civil rights convictions.
Also as U.S. attorney in Atlanta, I established and led the
Southeast Organized Crime Drug Enforcement Task Force. The task
force covered five States and involved 12 different U.S.
Attorney's Offices, including the office in Mobile, Alabama,
led by then U.S. Attorney Senator Jeff Sessions. The task force
also included the FBI, the DEA, ATF, IRS, and the U.S. Marshals
Service.
Our task force had many law enforcement successes, but none
I am more proud of than the convictions of leaders of a large
cocaine-smuggling and--trafficking organization that smuggled
over 5 tons of cocaine into the United States during a 15-month
period between 1982 and 1983. This investigation involved
coordinating with a number of law enforcement and intelligence
agencies, both at the domestic and international levels. At the
time this was the largest cocaine-smuggling organization ever
to have been destroyed and brought to justice.
As U.S. attorney, I learned to respect, admire, and, yes,
even love the many energetic, talented, and hard-working
prosecutors and agents with whom I worked. Many of these people
literally put their lives on the line every day in order to
make our communities safe places to live. Some of the things I
witnessed, for example, in dangerous undercover operations were
really literally heroic.
I obviously admire the Department of Justice as an
institution and, if confirmed, look forward to returning to it
and serving a leadership position in it.
Since serving as U.S. attorney, I have maintained an
interest in public service even while continuing to practice
law privately. I was honored to serve as a replacement
independent counsel for Judge Arlen Adams in the Samuel Pierce
Department of Housing and Urban Development investigation, and
most recently, I was honored and privileged to serve Congress
as Chair of the Judicial Review Commission on Foreign Asset
Control, which was a bipartisan commission you established to
study certain issues relating to the Foreign Narcotics Kingpin
Designation Act.
As a defense lawyer, I have represented individuals rich
and poor and entities large and small accused of wrongdoing. I
have handled cases throughout the country from Boston to Los
Angeles. Many of these cases involved complex and lengthy
investigations, and in many of them I have had to work hard to
work creatively with the Government in order to resolve my
clients' legal problems without resorting to trial. These
resolutions always had as their foundation the mutual respect
and trust between me as private counsel and the Government.
Also as a defense lawyer, and something that I discussed
with Senator Leahy when we met, I have represented citizens who
believe that governmental power was being misused or was even
unrestrained by law. Some of these clients, individuals and
entities, have doubted the fairness of our criminal justice
system. All of these experiences, I believe, have prepared me
for the challenges I will face as Deputy Attorney General.
I would like now briefly, Senator Hatch, to identify for
you what I hope to accomplish as Deputy Attorney General, if
confirmed, under Attorney General Ashcroft's leadership. I
would like to discuss three important objectives.
First, and most important, the Department of Justice must
continue to earn and maintain the trust and respect of all our
citizens. To do this, the Department must operate in a non-
partisan and impartial manner. We must be as open to the public
as legitimate concerns for privacy and investigative and grand
jury secrecy allow. And as we go about this important
objective, I take my guidance from a speech delivered by
Attorney General Robert Jackson at the Second Annual Conference
of U.S. Attorneys in 1940. General Jackson noted: ``The
prosecutor has more control over life, liberty, and reputation
than any other person in America. His discretion is
tremendous.''
Instructing the assembled prosecutors on how to conduct
their public business, General Jackson then went on to note
that, ``A good prosecutor displays a sensitivity to fair
play,'' and then he pointed out, ``A citizen's safety from the
abuse of power from a prosecutor lies in the prosecutor who
tempers zeal with human kindness, who seeks truth not victims,
who serves the law and not factional purposes, and who
approaches his or her task with humility.'' I have always
followed General Jackson's counsel.
I believe that because of my record of vigorously but
impartially enforcing the laws, I have been honored to receive
support for my nomination from both the Fraternal Order of
Police and the National Association of Criminal Defense
Lawyers.
Second, we must continue to make certain that the
traditional role of Federal law enforcement is carried out with
vigor and effectiveness. Federal law enforcement must attack
such critical crime problems as large multi-state and
international drug-trafficking organizations, complicated fraud
schemes, civil rights violations, serious environmental
violations, terrorism and espionage, and sometimes these areas
overlap.
For example, Senator, a leader of a large cocaine-smuggling
operation my U.S. Attorney's Office prosecuted in 1984, who was
an admitted Marxist, an associate of the M-19 guerrilla
movement in Colombia, wrote the following in a letter that was
intercepted by the DEA. He wrote, ``I hate all government so
much. I want to destroy them. I guess in my own way sending
drugs into the U.S. was one of my ways of fighting.'' We need
to continue to direct the tremendous Federal law enforcement
resources that we have at individuals like this who, if
unchecked, will wreak havoc on our Nation.
And, finally, the third objective is one that is not
necessarily associated with traditional Federal law enforcement
but does involve helping our citizens achieve a greater sense
of personal security and safety in their homes and
neighborhoods. This involves violent crime, which is especially
important to some of our minority and low-income citizens
against whom violent crime has a disproportionate impact. Of
all our important civil rights, the right to be safe and secure
in one's home and neighborhood is perhaps the most important.
We must work creatively, think outside of the box, as it is
sometimes referred to, to work with local law enforcement
agencies and perhaps even some private organizations to attack
the problem of violent crime.
I certainly today do not have all the answers now, but do
believe that we must continue to encourage and support local
law enforcement efforts that take violent and repeat offenders
out of circulation, especially those who use guns in committing
their crimes. Many of our citizens continue to be literally
terrorized by violent crime. The Federal Government should play
a leading role in attacking this problem. At stake is the well-
being of millions of citizens and even the lives of some of
them.
Now, in accomplishing these objectives, I will be guided by
what Attorney General Ashcroft has committed the Department of
Justice to do. We will listen to Congress and to others and try
to find common ground with people of widely diverse viewpoints.
Again, Mr. Chair, I am honored to be here. I thank the
President for his confidence in me, and I look forward to
working with all of you on this committee. Of course, I will be
pleased to answer any questions that you may have.
Chairman Hatch. Thank you, Mr. Thompson. That is an
excellent statement.
[Mr. Thompson's biographical information follows:]
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Mr. Olson, we will turn to you.
STATEMENT OF THEODORE B. OLSON, NOMINEE TO BE SOLICITOR GENERAL
OF THE UNITED STATES
Mr. Olson. Thank you, Mr. Chairman, Chairman Hatch, and
members of this committee, for holding this hearing, especially
at a time when so many other important matters are taking place
in the U.S. Senate. I am also grateful to the many members of
this Committee who took time out of their busy schedules during
the past few days to meet with me. I think that is a very, very
constructive process, and I enjoyed the opportunity to meet and
talk with so many members of this committee.
I would like to take a moment and introduce members of my
family. First of all, my wife and dearest friend, Barbara.
Chairman Hatch. Barbara, happy to have you here.
[Applause.]
Mr. Olson. And I have two children. My daughter, Christine,
lives in Arizona and could not be here, but my son and
daughter-in-law, Ken and Laura Olson, and my three
grandchildren about whom I could not be more proud--Haley and
Gillian and Kirsten--are here today.
[Applause.]
Chairman Hatch. We welcome you. Beautiful grandchildren, I
tell you.
Mr. Olson. I think so, too.
Chairman Hatch. I am amazed.
[Laughter.]
Mr. Olson. Part of that is attributable to my daughter-in-
law.
I am also most grateful to Senators Warner and Nickles for
introducing me today. And, of course, I am especially indebted
to President Bush and Attorney General Ashcroft for the honor
they have bestowed upon me in nominating me to serve as
Solicitor General of the United States.
I am deeply touched to be here. I am very, very pleased to
be here on the same panel with Larry Thompson. Larry and I
first met many, many years ago at the first part of the Reagan
administration where we both served in the Justice Department
under President Reagan and Attorney General--who was my former
partner--William French Smith. It was a wonderful experience,
and I am looking forward, if we are both confirmed, to working
together. This is a friendship and a professional relationship
that I am very proud of.
I am also very touched and humbled by the nomination to
serve my country as Solicitor General of the United States. I
have immense respect for the inspiration and prescience of the
Framers of our Constitution and for the miraculous Government
that they created, particularly its ingenious system of
separated powers. The creation of interrelated but separate
branches of Government, including an independent judiciary, has
made this country strong and kept its citizens free for over
200 years. The privilege of representing the United States in
its courts, especially before the United States Supreme Court,
is, in my judgment, one of the greatest and most gratifying and
challenging positions that a lawyer could possibly dream about.
The Solicitor General holds a unique position in our
Government in that he has important responsibilities to all
three branches of our Government. He represents the legislative
branch in the sense that he is the lawyer who defends laws
enacted by this Congress in the Supreme Court of the United
States. He is also the lawyer for the executive in that he
represents the President in the Supreme Court in the discharge
of the President's core responsibility, to take care that the
laws of the United States are faithfully executed. And he is
considered an officer of the Supreme Court in that he regularly
and with scrupulous honesty must present to the Court arguments
that are carefully considered and mindful of the Court's role,
duty, and limited resources.
As the most consistent advocate before the Supreme Court,
the Solicitor General and the lawyers in that office have a
special obligation to inform the Court honestly and openly. The
Solicitor General must be an advocate, but he must take special
care that the positions he advances before the Court are fairly
presented. As Professor Drew Days said to this Committee during
his confirmation hearing 8 years ago, the Solicitor General has
a duty toward the Supreme Court of ``absolute candor and fair
dealing.''
Finally, and perhaps most importantly of all, the Solicitor
General must always be mindful that he represents the people of
the United States and their Government and that their interests
must at all times be paramount and their Constitution protected
and defended.
I know what a great responsibility the President has asked
me to discharge. If I am confirmed, I will strive to live up to
the standards of the outstanding individuals--some of whom were
named by each of you, Mr. Chairman, Senator Leahy--who have
served in this wonderful position in the past and to the fine
men and women who work in the office of Solicitor General now
and who have served in that office in the past. And I will
endeavor at all times to keep in mind that those of us who
serve in the Department of Justice have as our ultimate master
the Constitution and the rule of law.
Thank you.
[Mr. Olson's biographical information follows:]
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Chairman Hatch. Thank you, Mr. Olson, for an excellent
statement.
I am going to reserve my right to question, and I will turn
to the ranking member, the Democratic leader on the committee,
Senator Leahy.
Senator Leahy. Thank you very much, Mr. Chairman, and I am
glad that we were able to work out the situation earlier.
Mr. Thompson, I will begin with you, if I might, sir. I
appreciate very much the amount of time you spent--I know how
busy you must be--in coming by to visit the other day. Mrs.
Thompson, you should know that your husband positively glowed
when he mentioned you and your work at school and elsewhere,
and I appreciate that very, very much. He and I discussed the
fact that my oldest son went to Emory Law School and how much
my wife and I enjoyed going down to Atlanta to visit him.
Mr. Thompson, one of the questions I have asked nominees
for 20 years has been on the areas of pro bono work--nominees
for judgeships or nominees for high positions in Government--of
lawyers because I feel that all of us as lawyers have had
somewhat of a privileged role in society. And in the question
on the Judiciary Committee's questionnaire about how you
fulfilled your responsibility under Canon 2 of the American Bar
Association's Code of Professional Responsibility to ``find
some time to participate in serving the disadvantaged,'' you
list your work with Morris Brown College, which is a
historically black college in Atlanta; your efforts as Chair of
the Atlanta Urban League in the early 1990's; the pro bono
appointments in criminal matters you accepted as a young
associate. I also see you are affiliated with Goodwill, the
Village of St. Joseph, the Federal Defenders Program, and the
King Tysdale--
Mr. Thompson. King Tysdale Cottage Foundation.
Senator Leahy. Cottage Foundation. Have I left out anything
there that would be responsive to your finding time to
participate in the service of the disadvantaged?
Mr. Thompson. Not that I can think of right now, Senator.
Senator Leahy. And you list the Washington Legal Foundation
Legal Foundation Advisory Board, the Southeastern Legal
Foundation Legal Advisory Board among organizations that you
have been connected with as an officer, director, partner, and
so on. That is in question six. You say you are a member of the
Federalist Society and you serve on its National Practitioners
Council.
Now, am I correct you have resigned from the board of the
Southeastern Legal Foundation?
Mr. Thompson. I did, Senator.
Senator Leahy. And is it true that if you are confirmed,
you intend to discontinue your affiliation with the Washington
Legal Foundation Legal Advisory Board and the Federalist
Society's National Practitioners Council?
Mr. Thompson. Senator, if confirmed, I plan to discontinue
my association with all organizations with one exception, which
I believe I have received permission to do from the Ethics
Office, and that is, I would like to continue teaching my class
at the University of Georgia. I really believe I have made a
commitment not only to the university but to those students in
my class.
Senator Leahy. From what I have heard about that, I think
the students would probably be very glad to have you.
Mr. Thompson. They may not.
[Laughter.]
Senator Leahy. No, I think they will. I think they are
going to be--you may find and the school may find that the
enrollment is going to go up considerably.
Chairman Hatch. I have heard you are pretty tough.
[Laughter.]
Mr. Thompson. They just had a final exam. I just gave them
a final exam.
Senator Leahy. Tougher than you, Mr. Chairman?
Chairman Hatch. Well, now, that is saying something.
Senator Leahy. You say the Washington Legal Foundation
organization lobbies before public bodies. What kind of matters
has it lobbied?
Mr. Thompson. I know that they submit amicus briefs to the
court. I am not generally aware of their legislative efforts.
But it is my general understanding that they have done some
kind of lobbying before Congress. But I do know that they do
prepare amicus briefs and that kind of thing.
Senator Leahy. One of the articles that you wrote and I
read was a 1990 article dealing with black-on-black crime, and
you argued that the death penalty has to be applied in a fair
and racially neutral manner, which I would hope we would all
agree with.
Mr. Thompson. Yes, sir.
Senator Leahy. And you called for ``the strict enforcement
of the imposition of the death penalty in order to eliminate
any disparity because of the race of the victim.'' And last
year, the Justice Department released a report that revealed
dramatic racial as well as geographical disparities in the
Federal death penalty system. The then Attorney General was
sufficiently disturbed by the report to initiate further
research into the causes of the disparities that had been
identified.
As Deputy Attorney General, you are going to be intimately
involved in this. What would you do to make sure that, if the
death penalty is applied, it is applied in both a geographic
and racial equal fashion? Or do it without disparity, I should
say.
Mr. Thompson. Well, Senator, first of all, I think it would
be appropriate in responding to your question to say that
obviously as Deputy Attorney General I am most concerned with
making certain that all of our laws are administered fairly and
with appropriate safeguards. And I think with respect to the
death penalty, it is very important, obviously, because of the
finality of the imposition of that punishment, that we consider
and be open at all times to the imposition of safeguards.
The Federal Government has a fairly exhaustive review
procedure, and that would be one thing that I would want to
make certain that we continue, a really exhaustive review
procedure in terms of how the sentence--how a prosecutor who
wants to seek the death penalty must get the certain approvals,
and obviously the things that you will look out for are the
strength of the evidence and any indication that there is any
hint of discrimination or any kind of other inappropriate
reason why that prosecutor may ask to seek the imposition of
the death penalty.
But the bottom line as it related to the article that you
cited, sir, is that we really need to finally, though, be
concerned with holding people who commit violations of law
accountable for their actions. And with respect to the death
penalty, there are certain crimes that are committed that are
so heinous or the aggravating circumstances, sir, are so
serious that I believe that the imposition of the death penalty
is warranted.
I cited in that article a quotation from Judge Carl
Moultrie, who is a highly respected judge in D.C. Superior
Court. You may recall Judge Moultrie. And he said with respect
to a young man who was before him, he said to this young man,
he said, ``You're mean''--and apparently this young man had
murdered several people in a very serious and aggravating way.
And he said to him, ``You're mean. You're damn mean, and if I
had the death penalty available to me, I would impose it upon
you.'' And we really--we need to be concerned about the
disparity, but we need to be concerned about the safety and
security of all the law-abiding citizens who--
Senator Leahy. And you understand, Mr. Thompson, I am not
debating the death penalty. The death penalty is on the books,
and the prosecutors have a right to seek it, a judge has a
right to impose it. I just want to make sure that it is done
even-handedly. If you or Mr. Olson or Senator Hatch or myself
or a member of our family were charged, you know, God forbid,
with a capital crime, we would have the best lawyers, they
would have the best lawyers, and it would be all--the defense
would be the best, but we see all these studies about assigned
counsel where they are paid so very little that they are going
to be bankrupt if they actually put in a full defense, or they
can't even do a rudimentary investigation. Some turned up they
had never defended a murder case, never been in any serious
criminal case. They haven't interviewed alibi witnesses. They
don't understand their client's history, whether it is mental
retardation or anything else. DNA evidence available, they
haven't bothered to get it. Some have actually slept through
the trial or been drunk in trial. Some have been disbarred, and
yet they are there.
These are the things--I would ask you to take a look at a
bill that Senator Gordon Smith of Oregon and I have introduced
to seek standards and ways to improve the standards in State
courts of those who are assigned, because if we continue--if we
don't do something to improve it, you are going to continue to
have these disparities. But at the same time, you are going to
have less and less confidence of the public in our criminal
justice system, and you are going to continue to see juries
come back with things that nobody can understand.
Mr. Thompson. Senator, I pledge to you that I will study
your bill, and as I said, I am obviously open to considering
all kinds of safeguards as we go about imposing the death
penalty.
Senator Leahy. Having shown the willingness to discuss
matters with members of this committee, I assure you, you will
probably be hearing from me more than enough. Mrs. Thompson
will probably want to take the phone off the hook when you go
home to Atlanta.
[Laughter.]
Senator Leahy. Now, Mr. Olson, as you know, the position of
Solicitor General, as you said, is quite different than any
other lawyer in the Government, even political lawyers or
appointees of the President, and Senator Warner I thought
emphasized that very well. You spoke of the fact that you have
got to show the highest integrity before the court. You are an
officer of the court. They expect you to come forward. They
expect to be able to know the strength of your case, but also
the weaknesses of the case. If there are things that the court
might not otherwise know of, you have a responsibility as the
Solicitor General to bring that forward.
But you also have the ability to determine whether you are
going to file a friend of the court brief in a case where the
Government is not a party. Now, there, before you even get to
the question about how even-handedly you handle that before the
court, you have to make that preliminary determination if you
are even going to go there at all.
What kind of criteria would you use?
Mr. Olson. Well, that is a very interesting and important
question. I have read a great deal of what prior Solicitor
Generals and academicians have had to say with respect to that.
There is a number of criteria. One thing that has to be taken
into consideration is that the United States Supreme Court is
only going to read so many briefs and is only going to listen
to so many occasions on which the United States decides either
to intervene or file a friend of the court brief. And if the
United States uses that authority frivolously or in cases where
the interest of the United States is not obvious and direct and
important, the Court will lose respect for the filings of the
Solicitor General's office.
So there are long answers to that question, but it is
exceedingly important that the core interests of the United
States--and that frequently involves conducting a study of
component agencies in the Department of Justice or component
agencies within the executive branch and other interests, other
interested citizens and so forth who may have something to say
with respect to what the interest of the United States is. Each
case will have to be looked at on its own, and every prior
Solicitor General that I have both spoken to and whose readings
I have read say that each case has to be determined on its own.
But ultimately it is the interest of the United States, in some
respects the President's policies, if they have become a part
of a case that might be before the court, those things have to
all be consulted.
Senator Leahy. Ultimately, is it fair to say that a
partisan interest of the President--it would be the same either
Democrat of Republican--is going to be a major factor in that
consideration?
Mr. Olson. A partisan interest from the standpoint of
partisan politics should not be considered. The policies that
have been advanced by the President can be and frequently are
in any administration. For example, a particular administration
may have an interest in enforcing the antitrust laws in a
certain way or the environmental laws in a certain way. Those
policy interests are among the things that the President is
entitled to consider with respect to the discharge of his
responsibility to faithfully execute the laws of the United
States.
Senator Leahy. But it is highly conceivable, is it not,
that given the exact same set of facts, depending upon who was
the President, would determine whether--the fact of who was the
President would determine whether the Solicitor General would
feel that the interests of the United States were such that a
friend of the court brief should be filed?
Mr. Olson. Well, that can be a factor, yes. But the word
that I was concerned about and I want to make it very clear,
that partisan interests, Republican, Democrat, those kind of
political considerations that have to do with partisanship,
should not be a part of the equation. But policy positions are
and have been in every Presidency that I have studied.
Senator Leahy. I will follow up with a similar question
that I asked Mr. Thompson so you won't feel left out. And,
incidentally, you should get higher points, if you will, from
Senator Hatch and myself because we are grandparents, so you
get high points just for having three beautiful granddaughters
and who are willing to sit through what has to be for them--
much as I am sure they love their grandfather, it has to be for
them one of the most boring days that they are going to spend.
[Laughter.]
Senator Leahy. But I think it is a reflection of the good
upbringing of both your son and daughter-in-law that they are
doing it so politely and so restrained.
Mr. Olson. Thank you, Senator. That is very gracious. I
took their father, my son, to an argument that I had in the
California Supreme Court many years ago when he was about 12
years old, and I thought it was a pretty exciting case. And
after the argument, I came out and I said, ``Well, what did you
think, Ken?'' And he said, ``Dad, that's pretty boring.''
[Laughter.]
Senator Leahy. That reminds me of when my children were
young. I had been in the Senate for a while and I was on some
national news, and my wife said, ``Dad's on television.''
``Yeah, we've seen him.''
[Laughter.]
Senator Leahy. But to go through what we did on the pro
bono, Canon 2, which is to participate in serving the
disadvantaged, in answer to that question you generally
referenced the work you have done for the Washington Legal
Foundation, the Federalist Society, and other foundations and
non-profits. Specifically in these, how did you serve the
disadvantaged and how did your involvement with that serve the
disadvantaged?
Mr. Olson. Well, I read the model rule which applies to
what lawyers ought to consider in terms of how they expend
their time. It talks in terms of various different ways in
which to serve the community. You mentioned two organizations,
but I have been very, very involved in the--and the model rule
with respect to this talks about a variety of things, including
representing individuals but also teaching, which I have done.
I have been very, very active in the American Bar Association.
I mentioned in response to that form that I served as an
advisory member of the U.S.-Ukraine Foundation. I don't know
whether it is mentioned there, but I served as an advisor to
the Women Judges Fund for Justice, which is a part of the
independent women's--
Senator Leahy. In answer to the question, specifically,
though, on your answer to the question about Canon 2,
participating in serving the disadvantaged, you referenced work
you have done for the Washington Legal Foundation, the
Federalist Society. Was that serving the disadvantaged in those
two cases?
Mr. Olson. I mentioned that. I think that in response to
the model rules there is a range of ways in which to serve
people. The American Bar Association is not disadvantaged, but
I do spend time doing that. U.S.-Ukraine Foundation is a non-
profit organization. I have represented various individuals in
the courts. I have discussed in response to that question the
individuals I have represented, individuals who felt that their
constitutional rights had been violated in connection with
admissions programs in universities. I represented an
individual in a case in the Supreme Court last year in a qui
tam case against the U.S. Government. I represented another
individual last year who could not afford to be represented in
the United States Supreme Court in connection with a voting
rights case. We were successful in that case.
I do believe that it is a lawyer's responsibility to be
involved in a variety of ways in the community as well as
practice of law for profit. Each individual we talk about in
our firm will have different ways of doing that and different
ways of fulfilling their responsibility. I have done it in a
variety of different ways, and I think it is very important for
all lawyers to be involved in different aspects of community
life.
Chairman Hatch. Senator, your time is up.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. Let me just make two
brief comments. I really don't have a question. I think both of
these nominees are superbly qualified for the positions to
which they have been nominated, and I know that some members of
the Democratic side have questions and, therefore, I would be
happy to defer to them.
First, I just want to say that not all of us will be able
to attend all of this hearing. I have a speech that I have got
to go give, and I had no idea that we would have this kind of a
conflict. So please excuse my absence, and I know that I speak
for my colleagues as well.
Let me also just say something, Mr. Chairman. I have had an
opportunity to talk to both of these nominees, and I just had a
wonderful visit with Mr. Thompson. But let me mention something
specifically about Ted Olson that I happened to mention to him
the other night. He didn't know this, but he and I have a very
dear friend in common, the late Rex Lee. Rex Lee was Solicitor
General in the Reagan administration. Rex Lee was one of my law
partners and by anyone's account was one of the finest
Solicitor Generals ever to serve. He also served as head of the
Civil Division of the Justice Department before that.
Rex Lee, when he came back to Washington, could never stop
talking about a young lawyer and friend of his back here that
he said was going to be destined for great things, a young
lawyer by the name of Ted Olson. I had no reason to remember
that name except that Rex repeated it so many times to me. And
he told me not only about this Ted Olson's legal qualifications
and how Rex enjoyed the camaraderie of serving with Ted, but
what a fine individual that he was.
The reason that that means a great deal to me is that
anyone in this room who knew Rex Lee would know that that is
about as high--that that compliment comes from about as fine an
individual as there ever was. And so it means a great deal to
me.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you. Rex Lee was a very close
friend of mine as well, and he was a great Solicitor General,
and I have no doubt you are going to be a great Solicitor
General.
Let's turn to Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Chairman Hatch. Just so everybody knows, the first round is
a 15-minute round. I have asked my side to not ask as many
questions so we can get through this today. But I know that
many on the Democrat side have a lot of questions. I want to
make sure they get a chance to do it. If you need more time, I
am not averse to granting it, but I would like to kind of run
it that way if I can.
Senator Feinstein. Thank you. I will try and be brief, but
I may need some more time.
First of all, Mr. Thompson, yours was one of the finest
opening statements I have heard since I have been on this
committee. I am really very pleased to cast my vote for you,
and I won't take up any time. If I were to ask you questions,
they would probably be pretty softball. But I would like to--
Chairman Hatch. Watch out, Mr. Thompson.
[Laughter.]
Chairman Hatch. She looks innocent as can be, but I've got
to tell you, she works the Chairman over with regularity.
Senator Feinstein. But I am going to take my questions on
Mr. Olson because we did have a chance to meet, and following
my meeting I was very prepared to vote for you. And then
sitting here today, I read some of the writings that you sent
in. Specifically, I want to talk to you about a couple of them.
You wrote an article, ``The Most Political Justice
Department Ever,'' a survey for the American Spectator. And it
is certainly not an even-handed analysis of the Justice
Department under Janet Reno. Your words are somewhat harsh and
biting, and in my view, your analysis is very one-sided. And I
want to ask you about it.
You say, ``The Department''--and I am quoting now--``and
its officials traditionally have been held to a standard of
independence and non-partisanship not expected at other Federal
agencies.'' And you go on in the article to say, ``Attorneys
General are judged in substantial part by the quality and
integrity of their subordinates and by their insistence that
they be selected on their merit and for their commitment to the
rule of law,'' with which I would agree.
But then you go on, and here you really slash and burn at
Janet Reno when you point out, ``There is ample evidence that
cannot be ignored that from the beginning Janet Reno allowed
her Department to be overwhelmed by partisan politics and that
she readily submitted to the personal and private interests of
President Clinton and his partner in running the Department. If
the Attorney General cannot stop the subversion of the Nation's
laws by the President under whom she holds office, she must
resign. The Attorney General did neither.''
And there is something else you submitted, entitled
``Criminal Laws Implicated by the Clinton Scandals, A Partial
List,'' and the byline is Solitary, Poor, Nasty, Brutish, and
Short. Did you write this article?
Mr. Olson. I was a co-author of that.
Senator Feinstein. And you go on and you list a whole
series of crimes that you believe the President committed and
the penalties for those crimes, and the crimes. You believe the
First Lady, now Senator Clinton, committed and the penalties
for those crimes. You do the same for Mr. Nusbaum, Mr. Hubbell,
and Mr. Wright. And in the course of these articles, both of
them together, I think you identify yourself very clearly as a
very strong political partisan, not as someone who is reserved,
temperate, even-handed. And I must say this concerns me,
particularly in view of the private conversation we had. I
hadn't read these articles before that conversation.
Now, you are going to be the Solicitor General, and as
such, you are going to have a big role in the policy of the
Department. And I would like to know what kind of Department is
it going to be. You set a tone in these couple articles that
is, I wouldn't say are vicious, but something pretty close to
it. Would you respond?
Mr. Olson. Thank you, Senator Feinstein. Yes, I think that
the two articles are hard-hitting. The second of the two
articles that you mentioned talked about potential, not crimes
that had been committed but the potential crimes that could
arguably have been implicated by conduct which had been
reported in the papers. And so that was an attempt to set forth
things that should be considered and evaluated with respect to
the conduct that was described there.
I did that as a private citizen, as someone who was
disturbed--who had served in the Justice Department for 4 years
before, and who was concerned about the image of the Department
and the actions of the Department of Justice and the importance
of the Department of Justice as perceived by citizens
generally. I did serve in the Department of Justice in the
early 1980's for 4 years as Assistant Attorney General for the
Office of Legal Counsel. I believed then and I believe now that
when you accept a position in the Department of Justice, you
put your partisan positions aside, your personal views aside,
and attempt to serve the Department and the people of the
American--the American people as even-handedly and as fairly
and as openly as possible.
I think that the individuals who served with me in the
Department of Justice, some of whom served in high positions in
the Clinton administration--Beth Nolan, who was a counsel to
President Clinton, was hired by me and worked for me in the
Office of Legal Counsel in the 1980's; Harold Coe, who was an
Assistant Secretary of State for Human Rights in the Clinton
Administration, was someone hired by me and worked for me in
the Office of Legal Counsel. People that served with me in the
Department at that time I think would tell you that I served
fairly, honestly, and put aside any partisan impulses at all
with respect to my service in the Department of Justice.
I think you are very right to ask that question, especially
because those articles are hard-hitting. They are things that I
did believe, especially with respect to the first article,
which was a critique of some things that I was disappointed in
with respect to how the Justice Department was operated. But I
believe also that those were statements as a private citizen,
and--
Senator Feinstein. Yes, if I might, what disturbs me about
the first article is the lack of even-handedness. Now, you are
somebody that is going to go into a major position in the
Department and will hopefully evaluate things in an even-handed
way. Why should I believe that you will do that when you don't
in your writing?
Mr. Olson. In the first place, as I said, I have served in
the Department of Justice, and I believe that everybody who
served with me of both political parties would tell you that I
served in that way at that time, and so I have a record of
demonstration at a high level in a position that is somewhat
comparable to the Solicitor General's position in the
Department of Justice.
Secondly, what I was attempting to do was point out in that
article the things that I felt had happened during that period
of time in the Department of Justice that would cause people to
be concerned. I mentioned in there the simultaneous firing of
every United States attorney at the very beginning of the
administration. I mentioned other specific incidents.
I believe at the end of the article I said that the
cumulative effect of these things taken together are cause for
concern, and I felt as a citizen, having served in the
Department of Justice, it was not inappropriate for me to draw
that picture that I thought and bothered me because I do
believe that the Justice Department is so important and for
people to be able to understand that the Justice Department and
its actions will be even-handed to serve all of the people.
Senator Feinstein. Let me ask you, if I may, some specific
questions. In 1986, you argued in the Supreme Court against a
California law requiring employers to give up to 4 months of
unpaid maternity leave. You contended that this California law
should be struck down as inconsistent with Federal anti-
discrimination law. You lost 6-3.
Today, almost 15 years later, there are even more women in
the workplace, and we are perhaps even more aware of the
dilemmas that working women face when they give birth.
If the same case was to come before you as the Solicitor
General today, what position would you recommend that the
United States take?
Mr. Olson. Well, I would have to recommend an opposite
position since, as you point out, we did lose that case 6-3.
The position that we were arguing on behalf of California
Thrift was that there was an inconsistency between what was
required by the Pregnancy Disability Act--which requires equal
treatment for pregnancy with other disabilities, and there was
an inconsistency with the requirement of equal treatment of
pregnancy as a disability with the California statute which
provided--required employers in California to provide
additional benefits for pregnancy which were greater than the
benefits received for other disabilities. For example, there
would be a greater period of time off for pregnancy disability
than for a heart condition or a broken limb or something to
that effect.
The employer in that case that we represented wanted to
know which law to follow. The dilemma that the employer had was
if it complied with the California statute which required it to
treat pregnancy more favorably than other disabilities, then it
might be in violation of the Pregnancy Disability Act. If it
complied with the Pregnancy Disability act and treated the two
disabilities equally, it would be violating the California law.
The employer--and I only represented the employer in the United
States Supreme Court--had taken that case all the way through a
decision in the Ninth Circuit and asked me to represent--
present the briefs and argument to the United States Supreme
Court.
Justice Stevens, who was one of the 6 votes in the majority
in that case, said that when the Pregnancy Disability Act was
first passed and the history of the Pregnancy Disability Act
was such that I believed then that the argument that was being
made on behalf of that thrift was the correct argument, but
that there have been other decisions since the enactment of
that statute that causes me to change my view.
It was a difficult case, and I can't quarrel with the
outcome of the Supreme Court, and I fully accept it. The Court
decided in an opinion, a quite intelligent opinion written by
Justice Stevens, that there should be a greater accommodation
to pregnancy under those circumstances than to other
disabilities, and I do accept that.
Senator Feinstein. Well, as you have pointed out, this case
has been decided. But, since then, California Federal Savings
and Loan v. Guerrera, the Family and Medical Leave Act has been
passed and become law. It is a Federal law. And this Federal
statute addresses the same problem as the California statute,
but it goes further. And the Department of Justice plays a
crucial role in ensuring that this law is enforced and defended
against challenge in the courts.
So if you were confirmed, will you defend this law against
similar challenges to the one you made in Guerrera?
Mr. Olson. Yes, I have no trouble saying that. It is a good
question. I think our responsibility is to defend all acts of
Congress when it is reasonable to do so unless it is clearly
unconstitutional. And I would have no problem giving you my
word on that.
Senator Feinstein. Thank you. I wanted to ask you a
question quickly about the Commerce Clause. Let me see if I can
quickly put this in motion.
Beginning in 1995, with U.S. v. Lopez, the Supreme Court
has repeatedly struck down Federal statutes, holding that
Congress lacked power under the Commerce Clause or Section 5 of
the 14th Amendment to pass those laws. Congress generally
relies on the Solicitor General to defend the constitutionality
of its statutes.
If the Solicitor General has an overly narrow view of the
Commerce Clause or other basis for Congressional power to pass
statutes, then he or she may not vigorously defend Federal
statutes and Congress' power will erode even further.
You suggested in an August 1995 speech that you have a very
narrow view of the Commerce Clause and that the Supreme Court
did not go far enough in U.S. v. Lopez. Specifically, you
stated, and I quote, ``Lopez is surprising, mostly because of
what we have come to expect from the Court's hand-off policy
toward Congressional regulation of every aspect of our life.
For anyone who cares that there be some limits on what Congress
can do, it was a refreshing suggestion that there might be some
meaning left in the original Constitution. But the narrowness
of the decision and the fact that the Court unanimously
approved a broad application of the Commerce Clause in a RICO
case 3 weeks after Lopez makes both the cheering by
conservatives and the lamentations of liberals a little
premature.''
Do you still agree with the statements you made in 1995
that Lopez was too narrow and that the Court needs to
aggressively police Congress' power to pass statutes pursuant
to the Commerce Clause?
Mr. Olson. Well, there was more, of course, that I said in
that particular speech about the Commerce Clause and the
context of the decisions. It was a surprise, the Lopez case was
a surprise, because it had been the first time in 50 years that
the United States Supreme Court had decided that the Commerce
Clause had been exceeded in connection with an action of
Congress.
A great deal more has been said about the United States
Supreme Court since the Lopez case, and I can't say that I
would agree or disagree necessarily with those particular
words. I would say this, that as I told you a moment ago,
Senator Feinstein, it is the responsibility of the Department
of Justice to defend acts of Congress, and unless they are
clearly unconstitutional, especially in the area of exercise of
its commerce power, which is a very broad power, in the scheme
of things the United States Supreme Court has upheld in a
number of cases a very broad exercise of both the commerce
power and the Necessary and Proper Clause. And I think it is
incumbent upon the Department of Justice to defend those
exercises of power. It is exceedingly unlikely in my judgment
that there would be a case in which a properly documented
exercise of the commerce power--which the Congress has
determined to do since the Lopez case, because one of the
problems with the Lopez case is the Court did not find
sufficient expression of Congressional intent with respect to
how the presence of a gun in the vicinity of a school related
to commerce. That may well have been. The Congress is doing a
great deal more--
Senator Feinstein. Because the gun came across State lines.
Mr. Olson. But that wasn't a part of the proof in the case
as a requirement with respect to that particular prosecution or
that particular individual, at least as I recall it. Now, I
could be wrong about that.
But to answer your fundamental question, I do think that it
is our responsibility in the Justice Department, whatever our
views as to what the Supreme Court should or shouldn't do under
the Commerce Clause as a private citizen, is to defend the
actions of this body.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. I believe my light is on. Thank you.
Chairman Hatch. We will turn to Senator Specter, and I am
hopeful that we can then turn to Senator Feingold. We are going
to have to break.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman. I join my
colleagues in welcoming you men to these confirmation hearings.
You both come with very strong academic and professional
credentials. In view of the limited time, I will not review
them.
Let me start with you, Mr. Thompson, and I thank you for
coming by and meeting with me, the customary courtesy call. I
would like to put on the record some of the concerns that I
raised with you at our private meeting about Congressional
oversight. The law is that Congressional oversight takes
precedence over criminal prosecutions because the interests of
having legislation or Congressional input dominates over a
prosecution in a specific case. That can raise some problems.
It did in Iran-contra when the Poindexter and North cases were
prejudiced by what had happened. But my own view is that the
Congressional oversight is sufficiently important that there
ought to be no doubt about its preeminence. And I would like
your views on that subject generally for the record.
Mr. Thompson. Yes, sir. And thank you for seeing me,
Senator Specter.
As I mentioned to you, and I made a statement in my
introductory remarks, in order for the public to have
confidence in the Department of Justice and all the confidence
that we want the public to have, we will need to be as open to
the public as we can, taking into consideration legitimate
investigatory concerns like grand jury secrecy or sensitive law
enforcement materials. And as I said to you when we met, I
think it is very important--an important function of
maintaining the confidence that the public has in the
Department of Justice is for Congress to have confidence in us.
And I certainly appreciate and respect the oversight function
that this body has for the Department of Justice, and I pledge
I will work with you, Senator, work with you vigorously to work
out any kind of problems that we will have so that you can
fulfill your important oversight function.
Senator Specter. We had some fairly divisive issues which
we confronted in the course of the past several years, and we
were compelled to subpoena a line attorney in one situation.
And I think that should not be undertaken lightly. I have had
some experience as a prosecutor myself, but there are some
occasions where the Congress needs access to the information.
And, again, at least as I read the law, it is clear that we can
subpoena line attorneys if we decide that it is a matter of
paramount interest.
Do you have any problem with that, Mr. Thompson?
Mr. Thompson. Well, if we get into a situation where you
feel that you need that kind of information, I think we would
need to approach that situation, look at it on a case-by-case
basis, work creatively to try to resolve any issues that we
both may have.
As I mentioned to you, I have a concern--and I know that
you appreciate it as a former prosecutor--with protecting the
deliberative process. As someone in a leadership role in the
Department, we will need to be able to make decisions and have
good and honest input from all different lawyers, all the
different lawyers on a case or an investigation, whatever kind
of position they may be. And we want to make certain that we
will have the freedom for lawyers to inform us of their
positions.
So when we get to a situation where you think that you need
that kind of information, I can't tell you how we will come out
until we look at the specifics on that as a case-by-case basis.
But we do need to work together, make sure that you have all
the information that you need to fulfill the oversight
function, and make certain that we can do everything that we
can to protect the important deliberative function that is
essential, I think, to having an effective investigation and
prosecutive efforts.
Senator Specter. I appreciate the need for your
deliberative process, and I hope you appreciate the need for
our deliberative process so we can figure out what the facts
are and decide what the public policy should be. And I think
there ought to be an accommodation wherever that is possible.
Very briefly, let me review for the record the concerns
that I had expressed and hope you will undertake in the new
administration, and I have talked informally to the Attorney
General about this on the espionage cases. Last year, I
undertook some of the oversight, chairing the subcommittee,
which got very deeply involved in the Wen Ho Lee case and urge
you to review closely the procedures for the applications for
warrants under the Foreign Intelligence Surveillance Act, and
take a close look at the monitoring of those cases as they
proceed.
In that particular situation, the matter was delegated--the
matter was sent personally by the FBI Director to the Attorney
General, who delegated the matter to an individual who had no
experience in the field, and there was no follow-up. The
warrant wasn't granted. And then the FBI sat on the case for
about 16 months without acting. And then there were polygraphs
administered by the Department of Energy which were
questionable as to conclusions, and then finally, there was a
warrant executed in April 1999. And, again, the Federal
authorities sat on the case until Dr. Wen Ho Lee was arrested
in December, and then suddenly he was Public Enemy No. 1 and
had to be shackled. I had expressed publicly my concern as to
whether the shackles were imposed to coerce a guilty plea,
where he was at liberty for months and then suddenly was taken
into custody. And those cases are of enormous importance.
Then in the Dr. Peter Lee case, there was a failure of
communications between Main Justice and the prosecutors to the
acceptance of a guilty plea, and I won't dwell on it at length.
But I would ask for your commitment to review the findings and
take a look at how we can sharpen up the Department of Justice
practices on these very important espionage matters.
Mr. Thompson. Senator, I can assure you that I will review
your concerns with seriousness.
Senator Specter. The issue of independent counsel is no
longer before us because we do not have a statute. But
legislation is pending, which a number of us have cosponsored,
to bring it back. My own view is that something will occur
which will require an independent counsel statute at some time
in the future. And I have a grave concern as to the finality of
the Attorney General's decision not to appoint independent
counsel.
Some district courts have ruled that there could be a
mandamus action to compel the Attorney General to act. In
general, the prosecuting attorney, whether it is a Philadelphia
DA or the Attorney General of the United States, has broad
discretion, but where the discretion is abused, there is
authority for the court to take a stand on a mandamus action.
And I didn't have a chance to discuss it with you in our
private meeting, but I would be interested in any observations
you have on that subject?
Mr. Thompson. Senator, I have not had an opportunity to
review your legislation. As you know, as I understand it, the
procedures now call for the appointment of a special counsel in
certain situations where the Attorney General deems it
appropriate to go that way as opposed to someone in the
Department of Justice.
I have been associated with the Department of Justice for
many years, either as a prosecutor or as a defense lawyer, and
there are many dedicated and hard-working people in the
Department. And I am confident, based upon my experience with
the Department, that the majority of the matters that will
appear before the Department of Justice can be handled by the
Department's career employees.
I have not had a chance to review your legislation, and I
certainly would look forward to doing so and talking to you
about it because I was an independent counsel at one point in
time, as you know, a replacement independent counsel for Judge
Adams from Philadelphia. And I know you know him, too.
Senator Specter. Thank you very much, Mr. Thompson.
Mr. Olson, I appreciated the opportunity to meet with you
privately, and I express my regret at leaving you in the
reception room for a long time when a vote was called
midstream. Your wife is smiling behind you. She apparently
heard about that. I couldn't leave the vote, and by the time I
had come back, you were AWOL. You had gone.
[Laughter.]
Senator Specter. And I understand--
Mr. Olson. I think she is smiling because I told her what a
good time I had standing there meeting all the people that came
by. It is a fascinating thing to stand outside the chamber
there where votes are taking place because, as you know but a
lot of the citizens don't know, it is such a fascinating flow
of activity, and it makes you feel a part of the excitement of
what is going on.
Senator Specter. Well, it is a tremendous place if you have
a few minutes. I am not sure whether it was Senator Dole or
Senator Danforth who called it ``Gucci Gulch'' at one point to
see all of the lobbyists there.
Mr. Olson, I would like to take up with you a question
which we did not have an opportunity to talk about, and that is
the question of affirmative action. And let me read you a
couple of my questions to Attorney General Nominee Meese in
1985, January 30th. I am beginning to think I have been around
here a little too long, perhaps, going back to this transcript.
I asked the Attorney General--what I am going to ask you
for is your comments and your views as to whether his views
would be your views or how you would respond to them. My
question was: ``What role, if any, do you think it appropriate
for affirmative action in the enforcement of civil rights laws,
Mr. Meese?''
``Senator, I think affirmative action in the enforcement of
the civil rights laws is a very important and proper remedy for
anyone who has been the victim of discrimination. I think in
addition to that, and quite apart from those who have been
victims of discrimination, I think affirmative action is highly
desirable public policy to extend recruitment efforts and
outreach to bring more minorities and women into the job force
and into contention for jobs that are available.''
And then a little farther down, I said, ``You affirm it as
a principle. Do you try to enforce it? Do you look for
situations where you can take action to bring a black or a
Hispanic or a woman into the process where there has been
steady discrimination in the past?''
Mr. Meese: ``Yes, sir.''
How would you--do you agree with Attorney General Meese?
Mr. Olson. Let me put it this way: The term ``affirmative
action'' means something different to almost everybody that
uses that term, and to some people, it embraces the concept of
recruitment, outreach, as Attorney General Meese apparently
said during that testimony. To other people it means giving an
advantage of one form or another to a person based upon the
color of their skin or other conditions of that sort.
Since 1985, when Mr. Meese made those statements, the
United States Supreme Court has made it clear in the Adarand
decision and the Croson decision that when Government takes
race into consideration in making its decisions, those policies
or those plans must be subject to strict scrutiny. This is a
very, very important subject because race and equal opportunity
is so important in this country, and the elimination of
disadvantages that people have suffered as a result of racial
discrimination is so important in this country.
What the Supreme Court is saying is that because the
decisions that can be made that might benefit one person could
conceivably result in the discrimination against another person
because of that person's race, the facts of that particular
circumstance have to be looked at very carefully. For remedial
purposes, which is something else that Mr. Meese mentioned in
that statement, for remedial purposes the Supreme Court may
regard that in one fashion. For other purposes, the Supreme
Court might regard it differently. What the Court is saying is
that we must look for a compelling governmental interest if
race is going to be taken into consideration in governmental
decisions and whether the governmental decision is narrowly
tailored to accomplish the compelling governmental
justification.
So it is an extremely important but also a very complicated
and very difficult subject.
Senator Specter. We have two decisions from the United
States District Courts in Michigan involving the University of
Michigan which have received a fair amount of comment. Gratz v.
Bolinger involved the university's use of race in its admission
process in the undergraduate school, and on December 13th, the
trial judge ruled without trial and granted summary judgment,
finding that the pursuit of educational benefits of diversity
is a compelling governmental interest and that the university's
current admissions policy is fully constitutional.
Would you agree with that decision, that diversity is a
compelling governmental interest which would justify the
university's admissions policy?
Mr. Olson. Senator, that case may well percolate up to the
Office of the Solicitor General.
Senator Specter. Well, it is very relevant.
Mr. Olson. Yes, it is, and there is another decision, the
other decision that you mentioned, the district court--a
separate district judge came out the opposite way with respect
to the law school admissions program.
Senator Specter. How could that happen in one State within
4 months? You don't have to answer that question, Mr. Olson. It
happens all the time. But--
Mr. Olson. Well, what I think is important about that is
that the facts of the particular case are exceedingly
important. The policy itself, the past history of the
institution applying the policy, the Supreme Court tells us is
exceedingly important, what other alternatives have been
considered, how far the program goes. In other words, there is
a wealth of factual considerations both with respect to the
implementation of the policy as being implemented plus the past
history, what remedial circumstances are being taken into
consideration either in the specific institution or in the
larger university community or in the State educational system
itself.
There is, as you know, another case in the Eleventh
Circuit, and there is another case in the Ninth Circuit. Those
are very important cases, and I couldn't begin and it wouldn't
be prudent to prejudge how the Department will review those or
even how I would feel about them, because I don't know enough
about the facts or the law with respect to as it was applied in
that particular district court decision.
Chairman Hatch. Senator, your time is up.
Senator Specter. May I ask one more question?
Chairman Hatch. Will this be your last one? Then we will do
that.
Senator Specter. One question. Do you agree with Justice
Powell in Bakke that race could be a ``plus'' factor in
university admissions?
Mr. Olson. Part of what Justice Powell said in the Bakke
decision that received four other votes and received the
support of the Court is that under some circumstances it may be
appropriate to take into consideration a person's race. That
teaching of Justice Powell and of the United States Supreme
Court in the Bakke case has been subject to further analysis
and refinement, and from the Adarand decision and the Croson
decision, and I wouldn't want to isolate out the statement of
one Justice in a particular case without spending a great deal
more time looking at how the law has been affected by
subsequent decisions and the application of the strict scrutiny
standard which wasn't being applied in that case.
Senator Specter. Before I came today, I knew you were a
good lawyer, Mr. Olson. After hearing your testimony, I know
you are a very good lawyer.
[Laughter.]
Mr. Olson. Thank you, Senator Specter.
Chairman Hatch. Well, coming from one good lawyer to
another, I think that is a good compliment.
Mr. Olson. Thank you, Senator.
Chairman Hatch. Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman. Let me
congratulate both the nominees.
As I said during the committee's consideration of the
Attorney General nominee, I believe there are some general
principles that should guide our consideration of cabinet and
sub-cabinet-level nominees. First, the Senate should consider
whether the person is qualified to do the job. Second, the
Senate has had a history of giving deference to the President's
cabinet and sub-cabinet choices. With rare exceptions, the
Senate has given the President broad leeway in choosing
subordinates.
I hasten to add, as I did during the Attorney General
confirmation process, that this level of deference does not
necessarily apply to lifetime Federal judicial appointments.
The Senate has for the most part avoided rejecting the
President's executive branch nominees because of their ideology
alone. But the Senate may certainly examine whether the
nominees' views might prevent them from carrying out the duties
of the offices to which they have been nominated.
Today we consider two nominees for two very different
important positions in our Federal Government. The Deputy
Attorney General is the second in command at the Justice
Department, if you will, the chief operating officer. The
Deputy Attorney General oversees the day-to-day administration
of the Justice Department. The Solicitor General is the
Nation's chief advocate, representing the views of the U.S.
Government before the Supreme Court.
Given the role these two nominees will play in shaping and
enforcing the law, I am particularly interested in whether the
nominees will be able to carry out the promises that Attorney
General Ashcroft made to this Committee and our country in a
variety of areas, including enforcing civil rights laws,
protecting women's reproductive rights, and continuing the
prior administration's commitment to a thorough review of the
Federal death penalty system. And I am pleased that that is an
area that has already been talked about.
Mr. Chairman, I also would like to echo the concerns of the
ranking member, Senator Leahy, in expressing my concern with
how this hearing was scheduled. These are enormously important
positions, yet both of these nominees were scheduled to appear
at the same time on the same day in one hearing. And this
hearing was scheduled on one of the busiest days of the
session, what was--what we had hoped would be the last day of
votes on the budget resolution. It may not be, but certainly
one of the last 2 days. And I understand that the Senate
Judiciary Committee has never before today held a joint
confirmation hearing for these two very important positions. I
am concerned about that. I am grateful that the Chairman has
allotted us a 15-minute period, but I did want to note my
concern.
Mr. Chairman, I was pleased with the bipartisan way in
which you and Senator Leahy organized and scheduled the
Attorney General confirmation hearing. I hope future
confirmation hearings are not held in such a rushed manner and
instead follow the model that you both ably created in January.
To my questions, let me just first ask a question of Mr.
Thompson. You wrote an article entitled ``Dealing with Black-
on-Black Crime.'' You emphasized that black Americans can
support tough anti-crime measures. You said that blacks do not
see strong law enforcement efforts as antithetical to notions
of individual civil liberties. Yet certain tough anti-crime
measures, in fact, have been antithetical to individual
freedom. Let's take, for example, racial profiling.
Racial profiling was encouraged as a tough anti-crime tool
by Federal and State law enforcement officials, and I am sure
many offenders have been stopped or thwarted. But law
enforcement has gone too far. Blacks, Latinos, Asians, and
other Americans of minority ethnic or racial backgrounds in
Wisconsin and across this country have been profiled one too
many times, and they are, I think with justification, fed up.
Untold numbers of law-abiding Americans have been violated.
Some of them are victims of racial profiling more than once. I
understand that racial profiling has been so pervasive in the
black and Latino communities that some have come to expect to
be victims of racial profiling and don't even understand it is
a violation of their rights. They just believe it is a fact of
life as a black or Latino in America. It is outrageous, it is
unacceptable, and it has to be eliminated.
So, with respect, Mr. Thompson, tough anti-crime measures
are well and good to protect the American people, but it is a
violation of fundamental American freedom and equality if the
police act in a racially biased manner. In his address before
Congress, President Bush pledged to end racial profiling in
America. Two days later, Attorney General Ashcroft sent
Congress a letter noting that he believes that racial profiling
is unconstitutional. He also said that he supports data
collection legislation sponsored by Representative Conyers and
myself last year and that he would begin to study outlining
that bill if Congress did not act within 6 months.
I, of course, welcome this interest from the President and
Attorney General. Representative Conyers and I are currently
preparing our legislation and expect to introduce it soon after
the April recess.
Mr. Thompson, don't you agree that tough anti-crime
measures should not be used in a racially biased manner? Do you
agree that racial profiling is unconstitutional and should be
eliminated?
Mr. Thompson. Not only do I believe, Senator, that racial
profiling is unconstitutional, it is just simply wrong. When I
am talking about tough anti-crime measures, I am talking about
measures that are going to be administered fairly and
impartially and without any hint of discrimination whatsoever.
As I said in my opening statement, it is very important for
the Department of Justice to maintain the trust and confidence
of all of its citizens, and certainly you can't ever go about
achieving that result if you are going to support crime
measures that are not administered fairly or impartially or
with some kind of discriminatory purpose. So I agree with you,
and I was really gratified that President Bush and Attorney
General Ashcroft indicated that racial profiling would be one
of the top objectives of the Department of Justice to eliminate
and to stamp out ,and I am pleased to be a part of that effort,
Senator.
Senator Feingold. And I take it you share the
characterization of racial profiling as unconstitutional?
Mr. Thompson. It is certainly wrong. I haven't had a chance
to discuss the constitutionality of it with my colleague to my
left and the other career people in the Department of Justice,
but I can tell you with every amount of fervor that I have that
it is certainly wrong. I have been the victim of that kind of
activity. It is insulting, it is degrading, and it is wrong.
Senator Feingold. I appreciate that answer. I would just
note that the word ``unconstitutional'' I am taking from the
Attorney General. That is--
Mr. Thompson. Well, I agree with anything the Attorney
General--
Senator Feingold. That is what I thought.
[Laughter.]
Senator Feingold. I want to get that clear.
Mr. Thompson. Thank you.
Senator Feingold. All right.
Senator Leahy. You notice how we make sure that we give you
the total opportunity for any redemption, not that you--
Mr. Thompson. And I appreciate that. I would hate to get
off to a bad start with my new, hopefully, boss.
Chairman Hatch. Well, let's keep that redemption all the
way through the hearing.
Senator Feingold. Let me just say I have certainly heard
very, very positive and wonderful things about you from a
number of people, so I look forward to working with you.
Mr. Thompson. Thank you, Senator.
Senator Feingold. Let me turn to Mr. Olson. This was really
initiated by Senator Feinstein, but I just want to follow up.
In 1982, when you were head of the Office of Legal Counsel in
the Reagan Justice Department, you wrote the following in the
Harvard Journal of Law and Public Policy: ``The laws that we
disagree with, the policies that we do not like, once they are
implemented into law must be enforced by the President and the
Justice Department, notwithstanding our antipathy toward them.
We in the Justice Department must also defend the
constitutionality of Congressional enactments, whether we like
them or not, in almost all cases. We are the Government's
lawyer. So even if we disagree with the policies of law and
even if we feel that it is of questionable constitutionality,
we must enforce it and we must defend it.''
Do you still hold that view today?
Mr. Olson. Yes, I do, and there are, of course,
circumstances--and they were mentioned by Attorney General
Ashcroft and they have been mentioned by other people in the
Department of Justice from time to time, for example,
situations where the executive power is involved or where
something is clearly unconstitutional or there is no reasonable
defense because--that can be mounted with respect to a statute
because we have an obligation to the courts, especially the
United States Supreme Court, to make arguments that we believe
are legitimate arguments. But I strongly believe as a matter of
separation of powers and the responsibility of the Department
that there is a heavy burden of presumption that the statute is
constitutional. We must be vigorous advocates for the Congress
when we go before the courts.
Senator Feingold. In that spirit, I assume you would agree
that if there is a good-faith argument that a particular
Congressional statute is constitutional, the Solicitor General
must defend that statute--
Mr. Olson. Yes, I do.
Senator Feingold.--even if he--let me just finish the
question, even if he personally might reach another conclusion
were he sitting on the Court himself?
Mr. Olson. Yes.
Senator Feingold. And I would like to follow with a more
specific example. I am sure you are aware that the Senate just
a few days ago passed what I regard as a significant piece of
legislation concerning campaign finance reform. I am sure you
are also aware that--
Senator Leahy. Which one was that, Senator?
[Laughter.]
Senator Feingold. I am sure you are also aware that there
are heated disagreements in the legal community and in the
Senate about the constitutionality of that particular statute,
and, of course, members of this Committee disagree on it.
When Attorney General Ashcroft appeared before the
Committee in January, I asked him about whether he would defend
the McCain-Feingold bill in court if it ended up being enacted.
This is what he said: ``While there are lots of things that I
disagree with, I believe it would be the responsibility of the
Attorney General to defend it vigorously in court. I disagreed
in policy on the bill, but it would be hard for me to imagine
that the bill does not survive the kind of scrutiny which would
provide an instruction to the Solicitor General to defend the
bill in every respect.''
Have you been involved in any discussions concerning the
constitutionality of the various campaign finance reform
proposals?
Mr. Olson. No, I have not, except one member of this
Committee asked me about it when I was visiting. I have not
studied the various provisions, and, of course, I don't know
what the bill will look like when it is finally enacted, which
I assume it will be. But I assume you have another question. I
won't rattle on.
Senator Feingold. Fine. Well, let me just--it sounds like I
know the answer to the next one, but let me just put it on the
record. Have you participated in any legal strategy discussions
concerning possible challenges to those proposals?
Mr. Olson. No, I have not.
Senator Feingold. Have you formed a personal opinion
regarding the constitutionality of the bill that we passed on
Monday night or any predecessor bill that the Congress
considered?
Mr. Olson. No, I have not. I have spoken from time to time
on the issue of campaign financing and the First Amendment
implications and the Buckley v. Valeo decision, but I have not
studied the provisions of your bill. And I don't have an
opinion with respect to the constitutionality of any portion of
it.
Senator Feingold. Do you have any doubt that as Solicitor
General you will vigorously defend a campaign finance reform
statute that Congress passes and the President signs?
Mr. Olson. I have to look at the statute that is passed,
Senator, but I will approach it with that same presumption that
I described to you, that there is a heavy presumption that it
is constitutional. If there is a good-faith defense that could
be mounted for it, it is the responsibility of the Justice
Department and the Solicitor General to put the very, very best
defense forward, irrespective of any personal views that any of
us might have. And I think that that is--I can't stress that
enough, that Congress depends upon the Justice Department to do
that, to be its most vigorous advocate with respect to the laws
that is passes.
Senator Feingold. Let me just take one other aspect of it.
Suppose Congress would have passed the McCain-Feingold bill as
it stands now and the President signs it, but says that he has
grave reservations about the constitutionality of certain
provisions. What in that situation is your view of the
responsibility of the Solicitor General when those provisions
are challenged?
Mr. Olson. I think my answer would be the same. I would
have to look at the provisions, but the fact that the President
might have expressed some doubts doesn't alleviate the Justice
Department from its responsibility to do everything it can
within reason to defend the constitutionality of the statute.
Senator Feingold. I appreciate that answer. On one other
quick matter, Mr. Olson, you have a distinguished record as a
Supreme Court advocate. Indeed, in recent times you made the
most Supreme Court appearances of anyone ever nominated to the
post of Solicitor General. You also have a long history of
commenting on legal issues in the press. Your wife, who I see
here and congratulate her as well, is also a well-known legal
commentator with strong views on many of the issues that may
end up before the Court.
I would like to know what standards you will apply in
determining whether you should recuse yourself from
representing the United States before the Court or from
participating in discussion of the Government's position in
particular cases?
Mr. Olson. Well, each--I have consulted with previous
Solicitors General and with the Department of Justice with
respect to that very question. Obviously if it is a case that I
have been involved in or it involves a client, recusal is a
relatively easy question. Other people--then the circle gets
wider, of course, with respect to issues. I will give you this
example that someone gave to me that we don't want the
Assistant Attorney General for Antitrust to be recused from
antitrust issues simply because they have handled cases and
they have ideas with respect to the antitrust laws.
What I have committed to do is with respect to any area
where a question arises in my mind or anybody--in the minds of
anyone in my office, I will consult with the ethics officials
in the Department of Justice and look at that very carefully.
On the one hand, you want to make sure that you are not
participating in a case that you should not participate in. On
the other hand, it is important not to evade the responsibility
that both the President and your Committee and the Senate have
placed in me, if I am confirmed, to do the job of the Solicitor
General.
Senator Feingold. Thank you, and I congratulate both of
you.
Thank you, Mr. Chairman.
Chairman Hatch. Well, thank you. I appreciate my
colleagues' concerns. Let just make this statement, because I
think I need to make a complete record, but I do believe that
my colleague, Senator Feingold, shares my view that we need to
move on these agency nominees as quickly as possible. This is
what he argued when we had a Democrat in the White House, and
that is what I did as Chairman during that time.
In fact, if we were to follow the model of Clinton nominees
for these two positions, we would be reporting them out of
Committee in less than a week from today or even by tomorrow
and through the entire Senate within a day or two thereafter.
I firmly believe that scheduling this hearing for today is
perfectly appropriate. Ted Olson's nomination was received by
this Committee on March 13th. Larry Thompson's was received on
March 22nd. Notably, we received the public notice or intent to
nominate on February 14th, 50 days ago. Now, given that Mr.
Olson's record is quite public, we can all agree, it seems to
me, that there has been more than sufficient time to review his
record.
Let me also add that the scheduling of this hearing is
hardly out of line with the way the Committee has proceeded in
the past. In fact, I recall that I tried my best to cooperate
with moving forward on many of President Clinton'S nominees at
an even quicker pace. For example, President Clinton's first
nominee for Deputy Attorney General had his nomination hearing
just over 1 week after he was nominated. He actually had his
hearing, was reported by the committee, and was confirmed by
the Senate within 3 weeks of his nomination.
And this record was broken by President Clinton's second
nominee for the position the following year, one of the great
people who served--not that the others are not, but Jamie
Gorelick was confirmed by the Senate two and a half weeks after
nomination.
With respect to the Solicitor General nominees, I think the
record for movement of nominees is quite similar. For example,
during my chairmanship President Clinton's last nominee for the
Solicitor Generalship was confirmed by the entire Senate
approximately 5 weeks after his nomination. Notably, he was
actually confirmed by the Senate within 48 hours after his
hearing. Drew Days was confirmed a week after his hearing.
Now, in this instance, I know my colleagues can appreciate
that we are coming up on a 2-week recess. Thus, having this
hearing before the recess, it seems to me, will accommodate
members' ability to submit questions and review the answers to
these questions in an orderly manner. In contrast, President
Clinton's two Solicitor General nominees were moved through the
Committee and the Senate right after their hearings.
Now, is putting the Deputy Attorney General and the
Solicitor General on the same panel, is that unprecedented? You
know, placing more than one significant nominee on the same
panel is hardly unprecedented.
I can recall a number of times during the Clinton
Administration, when in order to move judges, I have had panels
for six and more judges, including District and Circuit Court
Judges. I did not hear any complaints from the other side in
those instances. Having more than one significant nominee in a
hearing is also not uncommon. For example, Charles Fried shared
the hearing with a nominee for Assistant Attorney General for
the Office of Legal Policy. And in fact, Deputy Attorney
General nominees have even shared their hearing with District
and Circuit Court Judges in the past.
So, I just want to make the record clear that we are not
trying to do anything inordinate here. We are trying to get
this administration some people down at Justice so that the
American people will benefit from having people at Justice.
I think you have heard two excellent people here today so
far, who basically have indicated they are going to uphold the
law, they are going to enforce the law, and they are going to
do what is right. So I have been very impressed with the
hearing thus far.
It has been requested we break. I would like to break--we
are going to break for 1 hour. We will recommence here at two
o'clock sharp. And I hope that--I think we will start with
Senator Sessions when we get back. I hope we can get--I expect
to get through this hearing before the end of this day. So let
us hope that we can do that. With that, we will recess until
two o'clock.
[Luncheon recess at 1:02 p.m.]
AFTERNOON SESSION [2:01 p.m.]
Chairman Hatch. We will turn to Senator Schumer, and
Senator Sessions will be after Senator Schumer.
We want to move ahead here as rapidly as we can this
afternoon. I intend to finish this, and hopefully, we can
finish it before 5, 5:30.
Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. I want to thank
both of our witness for being here. And I guess I have a few
questions.
The first question I have is to Mr. Thompson. And I have
met you, Mr. Thompson, and I am impressed. But I am very, very
concerned with the Justice's Department role in selection of
judges, where I think we are headed toward a donnybrook if
things do not change. And from what I understand, there is not
going to be--in the past the vetting of judges and the working
of judges has been with an associate attorney general, but as I
understand it, the administration does not intend to fill that
position. So I am asking you, since you are the closest one to
the associate, one step higher.
What do you think the role is that senators should play in
the process? I think there is a feeling on our side right now
that there is very little consultation, real consultation, and
not even touching base. When there is touching base, we get
listened to, yessed, and then, at least in my situation, read
in the newspapers that none of my suggestions are being taken
into account at all, and I had tried to be very fair and very
moderate about them. I am not the only one who feels that way.
And our poor Chairman here, who is going to have to deal in a
9-9 Judiciary Committee, is going to have a lot of trouble in
getting the administration's nominations through if there is
not some kind of give and take and back and forth.
One other point I would make, which I have made to the
chairman, we are in new territory a lot of times. Seven of the
nine Democrats on Judiciary Committee come from states where
there are two Democratic Senators. And for us in New York, this
is the first time that has happened since Lyndon Johnson, where
there are two Democratic Senators and a Republican President,
or the converse. So there will be a choice. You will either
have to work with someone of the opposite party or not work
with the Senate at all in New York State and many other states.
And so I would simply like to know what is your view? Where
do you think we are headed in this direction? I have to tell
you, we have been off to an inauspicious start in this regard.
But I can tell you, speaking only for myself, I am not going to
be rolled over on this.
Mr. Thompson. Senator, I understand--
Senator Schumer. No disrespect to you, who has nothing to
do with it so far.
Mr. Thompson. Senator, I understand your concern. I have
not had an opportunity to discuss with Attorney General
Ashcroft exactly the precise role that the Department will play
in the judge selection vetting process. Obviously, the ultimate
decision is the President's. And I understand your concern. My
home state has two Democratic Senators as well. But, Senator, I
am a trial lawyer, and I recognize the importance in judge
selection, to have a judge, who not only may share the
political views of the President, but a person who is a good
legal scholar, who is fair, and is impartial. And I would
submit to the Senator that lawyers throughout the country, that
is the kind of input that they are going to be giving the
President, and I certainly pledge to you that whatever role
Attorney General Ashcroft decides that we will have in this
process, that I have worked with members of the opposite party
all of my life in a cooperative effort, and I pledge to do that
with you, Senator.
Senator Schumer. Well, just if you could elaborate. What is
your feeling as to the role of the Senate and Senators from the
states of the judges? What is the appropriate role there?
Mr. Thompson. Well, obviously, beyond the advise and
consent, I would defer to the President. It is the President's
decision, and whatever role that the President, and whatever
input that he chooses to use and take, I would have to defer--
it is his decision. I would have to defer to how he would want
to handle that process. But what I was pledging to you is:
whatever role we have--and there will be a role, I am certain,
of the Department of Justice--we will work with you in a
cooperative manner.
Senator Schumer. OK. Well, I appreciate that very, very
much.
My next few questions are for Mr. Olson on the issue of Roe
v. Wade and the issue of choice. Attorney General Ashcroft
stated during the course of confirmation hearings, that he,
quote, ``accepts Roe and Casey as the settled law of the
land'', and he will, quote, ``follow the law in this area.''
``A'', do you agree that Roe and Casey are the settled law
of the land, and will you similarly follow those decisions in
the abortions rights area?
Mr. Olson. I read the testimony of former Senator Attorney
General Ashcroft, and I have no quarrel with his testimony. The
Supreme Court has decided those cases. They made it very clear
last term, in another decision, that they regard those cases as
the law of the land, and only the Supreme Court can decide
whether something is settled or not, but that those decisions
are the law of the land. I accept them as that, as did Attorney
General Ashcroft.
Senator Schumer. Now, Attorney General Ashcroft further
stated during his confirmation hearings that--this was in
response to questions from me--that, quote, ``I don't think it
could be my agenda to seek an opportunity to overturn Roe.''
Mr. Olson, do you believe it could be your agenda to seek an
opportunity to overturn Roe?
Mr. Olson. It is not my agenda to seek an opportunity to
overturn Roe. And I will also say what the Attorney General
said, is that the Solicitor General has a very important
responsibility to consider all of the cases that the Solicitor
General is bringing to the United States Supreme Court. It does
not do the government any good to bring cases to the Supreme
Court that the Supreme Court has said, ``We have decided those
issues'', especially if they are issues as fraught with
controversy and emotion as the issues involved in those cases.
Senator Schumer. Right. And how about an agenda to cut back
on Roe, if not overturn it, to cut it back in one or another?
Mr. Olson. I do not have any agenda with respect to that
subject or any other substantive subject. My principal agenda
is to make sure that the office runs effectively and
efficiently and represents all of our citizens and the
Government properly.
Senator Schumer. OK, thank you. Let me ask you this one,
all along the same line. Recognizing the Supreme Court has
indicated it does not wish to reconsider Roe, the in his
confirmation hearings--this was in response to Senator
Feinstein's question--said, quote, ``I do not want to devalue
the currency of the Solicitor General of the United States by
taking matters to the Supreme Court on a basis which the
Supreme Court has already signaled we don't want to deal with
and we're unwilling to deal with.''
You agree it would--you may have answered this last time,
but that it would devalue the currency of the office to request
the Court to reconsider?
Mr. Olson. That was the point that I believe I was making,
and I had read that testimony.
Senator Schumer. OK. And then just on a related issue,
which is the issue of the FACE law. I wrote the FACE law in the
House, and I feel very strongly about it. Do you think it is
constitutional?
Mr. Olson. I have not read the statutes. I did read the
testimony. I have not studied the statutes. I have read the
statutes over. I agree that when people are exercising
constitutional rights, they have to be protected by the laws of
the United States, that those statutes are intended to do that,
and I agree with Attorney General Ashcroft, when he said that
people who are exercising their constitutional rights have to
be free from intimidation or coercion in connection with
exercise of those constitutional rights.
Senator Schumer. Will you seek an opportunity to argue to
the Supreme Court that FACE is unconstitutional or that its
scope should be limited?
Mr. Olson. I have nothing in my mind with respect to doing
so at all.
Senator Schumer. Thank you. The next question I have for--I
guess it is again for you, sir, Mr. Olson. And that is: this is
about Congressional power versus States' rights. There have
been a whole bunch of recent decisions of the Supreme Court
invoking States' rights to invalidate in whole or in part
numerous acts of Congress, each of which was passed with
bipartisan support. They include the Gun Free Schools Act, the
Religious Freedom Restoration Act, a portion of the Brady Bill,
the Age Discrimination Act, the Violence Against Women Act, and
the Americans with Disabilities Act, parts of the latter two.
Tell me your view about defending acts of Congress against
challenges based on States' rights, in your job as Solicitor
General?
Mr. Olson. I think it is exceedingly important for the
Department of Justice to defend acts of Congress whenever a
reasonable defense can be made with respect to the acts of
Congress, good-faith defenses can be offered. That area that
you discussed, those cases involve the Commerce Clause, the
Tenth Amendment and the 11th Amendment. The Supreme Court has
made a number of 5 to 4 decisions with respect to that. The
considerations by the Court in each of those cases are focused
in part on the legislative history, the nature of the area of
regulation, and with respect to the Commerce Clause cases, the
record established both by Congress and the factual record
presented by the litigants with respect to the amount of
commerce involved.
But to circle back to the point that you were explicitly
asking me about, defending acts of Congress, if we can find a
way to do that reasonably and in good faith, to present
arguments that we believe in to the Courts with respect to the
defense of Congress, we believe it is very--I believe it is
very important to Congress to have faith in us, that we will do
our very best.
Senator Schumer. But what does ``reasonably'' mean? Some
persons ``reasonably'' is another person's ``unreasonably.''
Mr. Olson. I am using the words that previous Attorneys
General, Assistant Attorneys General for the Office of Legal
Counsel, and Solicitor Generals have made, that if there is a
good faith, if we can in good faith find a defense, to provide
a defense, we would bend over backwards to do that because the
laws are passed here. It is not the responsibility of the
executive to decide whether something is unconstitutional or
not, unless there is--unless we cannot make a good-faith
defense of the statute, we should do that, and let the courts
decide.
Senator Schumer. Let me give you a specific example. Would
you vigorously defend the Endangered Species Act?
Mr. Olson. I can only answer that in the context generally
that would fit within the same framework of what I just said.
It would depend upon how that statute was being applied in a
particular case, and those facts are important to take into
consideration, but the standard from which we would operate, my
judgment, is the one that I articulated.
Senator Schumer. And does the Endangered Species Act,
again, an act that was passed with bipartisan support in the
Congress, meet that?
Mr. Olson. Well, on its face, the United States Supreme
Court has found that it is not an unconstitutional statute.
When it is being applied with respect to a particular subject
matter, then a fact-based consideration would have to be given
with respect to whether or not commerce is involved to support
the justification of the application of the--
Senator Schumer. That is arguing the breadth of the law as
opposed to whether the law should be defended or somehow
overturned on a States' rights basis or anything else.
Mr. Olson. I do not see--what I am saying is that the
person against whom the statute is being applied in a
particular case may say that there is not sufficient basis for
application of the statute I that case, and then we have to
look at that. On its face, I have not studied or made a
determination of the statute itself, but it is my understanding
of what the Supreme Court has decided, that it is not
unconstitutional, and I do not have any view that it is.
Senator Schumer. One more question in the area of the
Congress's power. In light of the Court's recent restriction of
even the Commerce Clause power, as well as decisions limiting
Section 5 of the 14th Amendment, these I think are--I mean I
think the Supreme Court, at least the majority, wants to go
back to the 1890's. I mean I find it absurd that in a world
where we are supposed to be one world, they want to have 50
states make laws on things that 30 and even 70 years ago were
determined within the purview of the Federal Government. And I
think that will be a losing proposition somehow or other, just
by the way the world is working, and becoming one world in
terms of technological change. But that is where they are.
And so the Spending Clause, given their recent constriction
of the Commerce Clause and Section 5 of the 14th Amendment, the
Spending Clause may become a highly significant source of
Congressional power. Can you just give me your general views on
the scope of the Spending Clause powers, as well as whether you
would argue before the Court for an expansive Spending Clause
power?
Mr. Olson. I think that, in the first place, the decisions
that the Court has rendered, with which I am familiar with
respect to the Spending Clause, have given Congress relatively
broad latitude.
Senator Schumer. Yes, they have.
Mr. Olson. To attach conditions to the receipt of Federal
funds by states of local agencies, provided that Congress has
made those conditions clear, so that the states can exercise a
clear choice. There have been instances where the United States
Supreme Court has said that to the extent that you are
attaching a condition to the exercise of a fundamental right
that could be taken away with respect to the Spending Clause,
that could be an area in which the Court would look at it
differently. But my understanding of it, to the extent that I
have studied it at all, Senator, is that it is a relatively
broad power, and it would be our responsibility to look in
every way for ways to defend the exercise of Congressional
power in that area.
Senator Schumer. Thank you. Well, that is good to hear.
I just want to go to one more question before my time
expires, to Mr. Thompson. I do not know if you are aware of
this, but my office conducted a study last year, which I
thought was--the people who did it on my staff were just
fabulous; it was ground-breaking--and we found that 1 percent
of the gun dealers in this country are the source of 45 percent
of the guns used in crime. In other words, there are some bad
apples, and the gun runners, who go down to states with loose
gun laws from my State of New York--these are criminals, and
they will go to a Georgia--no offense--or a South Carolina, and
they will buy 100 Saturday Night Specials, cheap handguns, and
then they will drive them up and sell them on a street corner
in New York City. And whatever we do in New York State does not
make a darn bit of difference because of the Commerce Clause.
We do not have a toll at the Hudson River to go check the trunk
of everyone's car. So as long as South Carolina persists in
having--just to pick an example--or Georgia, or any other
state, persists in having much wider open gun laws than would
be appropriate in my State, guns cascade into our State. But
what we found in this study is not simply that they came from
other states, but from a small, small percentage of bad
dealers. In other words, the gun runners almost knew that if
you go to this particular place, they are not going to check,
they are going to look the other way, they may not make you
wait the waiting period or use the insta-check or whatever. And
yet, there are laws on the books that we have supported in this
Congress, that have been pushed, frankly, by the NRA, that
prevent a real crackdown on this 1 percent, such as the number
of times an ATF agent can actually visit a dealer.
And I have proposed legislation that were for these bad gun
dealers, not for anybody else, but the ones who seem to send a
disproportionate amount of the crime guns into our stream of
society, that we change the law and allow the ATF more
vigilance and give more enforcement power.
I would ask you two question. What is your initial reaction
to a change in the law like that? But second, what is your
attitude about cracking down on some of these bad-apple
dealers?
Mr. Thompson. Well, my initial reaction, Senator, is that I
would be--I would urge your staff to share that study with me.
I would be very much interested in looking at it and examining
it myself. As I said in my opening statement, we have really
got to do everything that we can to crack down on the use of
guns, especially as it relates to violent crime. This
terrorizes not only all citizens, but especially the low-income
citizens and the minority citizens.
So my initial reaction is, that if that is a problem, we
have got to do everything that we can to correct it, by
legislation or by changing our enforcement priorities,
whatever. And as I understand from what Attorney General
Ashcroft has said, that tracing guns that are used in crimes is
a top priority, and I certainly would want to echo that
sentiment and do everything that we can to make certain that
this problem, especially as it relates to the Northeastern
States like New York, is alleviated.
Chairman Hatch. Senator, your time is up.
Senator Schumer. I thank you. Thank you, Mr. Chairman. I
thank both of our witnesses.
Mr. Thompson. And I would like to see the--
Senator Schumer. I will send you that study. I will vote
till after the vote probably, so you need to rest.
[Laughter.]
Chairman Hatch. We are going to keep the record open.
Written questions can be offered and hopefully can be answered
over the 2-week recess that we are going to have. I would hope
that we could have our questions in--I have not chatted with
the Democrat leader on the Committee, but I am hopeful that we
can get all our questions in by the middle of next week, by
Wednesday. Does that sound fair?
Senator Schumer. It sounds reasonable to me.
Chairman Hatch. Then I think what we will do is keep the
record open until Wednesday of next week. That will give about
a week and a half to answer the questions, and if you can
answer them before then, and give these folks time, that helps
us in getting you confirmed.
Senator Sessions, we will turn to you.
Senator Sessions. Thank you, Mr. Chairman, and it is a
pleasure to be a part of this panel and to welcome you two
nominees here today.
I think in both of these nominees we have men of
extraordinary experience at the prime of their professional
careers, who have had extraordinary background and involvement
in many of issues that are important to this country. You
understand the tension of being in the crucible of debate and
advocacy. Yet at the same time, both of you have won praises
from people of different political views. It is the kind of
professionalism that I think we need in the Department of
Justice. I believe both nominees possess the kind of maturity
that the Department of Justice needs at this time. Frankly, the
Department, in my view, is a bit shaky now, and it needs solid,
mature leadership to bring it back to the highest ideals and to
the greatest degree of professionalism possible. I hope and
expect, by accepting this appointment, both of you will
undertake that as one of your primary goals.
I have known Mr. Thompson for quite a long time. We were
United States Attorneys together in the early 1980's, and
during that time the President declared that we would have an
Organized Crime Drug Enforcement Task Force. OCDETF we called
it. They always wanted a better name, but never came up with a
better one. Larry Thompson was given the responsibility of
organizing 12 different districts in the southeast. He did so
with an extraordinary skill and ability that unified those 12
United States Attorneys. This was a difficult task because they
were being asked to subordinate decisionmaking on major cases
and give it to a brother United States Attorney in Atlanta.
There were a series of these core-city United States Attorneys.
Larry Thompson led our task force in an extraordinary way.
And, Mr. Thompson, you are going to get to display those
skills again, because the Office of Deputy Attorney General has
under its supervision, directly and indirectly, and through the
others, the Bureau of Prisons, the FBI, the Drug Enforcement
Administration, the Immigration Service, United States Marshals
Service, and 94 United States Attorneys, all thinking they have
been anointed by the Lord.
[Laughter.]
Mr. Thompson. I thought we had gotten those problems
resolved in the intervening years.
Senator Sessions. I do not think so. There are tremendous
turf battles you will be facing.
Chairman Hatch. Yes. If you think they think they are
anointed by the Lord, you ought to see this bunch up here.
[Laughter.]
Senator Sessions. Well, it is a challenge for leadership.
And I want to say that you had a positive leadership style. You
have a leadership style which I admire so much because it is
always based on the ultimate goal of achieving the most justice
for the most people, and really honoring the taxpayers' dollars
that have been given to the Department of Justice.
Let me ask you, do you look forward to trying to make this
vast conglomeration of agencies that the Department of Justice
is comprised of, work together well?
Mr. Thompson. Well, I do look forward to it. As I said,
Senator Sessions, I have a great deal of respect and admiration
for the men and women of the Department of Justice. There are
many talented, hard-working, dedicated people in the
Department, as you know, as a former United States Attorney.
And you are giving me too much credit. The success of our
task force was because each of the 12 United States Attorneys
believed that our ultimate goal was to try to crack these drug-
smuggling and trafficking organizations, and everybody pulled
together as a team, and we were able to do that.
And I know it will be a challenge, but I am convinced that
if we appeal to the good nature of these hard-working
professionals, we can do it, and I am certainly going to try to
do it.
Senator Sessions. Well, that regional task force led the
Nation, as I recall, in convictions and many other statistical
categories under your leadership. It was remarkable, and I
think those same skills will be needed here.
You were asked by Senator Leahy, who is very concerned, and
rightly so, about problems with the implementation of the death
penalty. I would just like to point out a fact, and ask you a
question about it. I would point out that the Attorney General
of the United States has set up a review process that requires
any United States Attorney in any of the districts of the
United States, before they can indict someone for a capital
crime, to have that reviewed by the Department of Justice with
the goal of achieving fairness and uniformity and eliminating
disparity of results. If not results, at least fairness in
disparity among cases, not results.
Do you believe that is a good procedure, and will you
maintain that?
Mr. Thompson. I have reviewed the procedure that is set
forth in the United States Attorneys' Manual. It is a very
exhaustive procedure. There are many different levels of
review, chief among which is that the local prosecutor is not
allowed to threaten the use of the death penalty in order to
secure some kind of plea or agreement with the putative
defendant. I think it is a good policy. If there are any
problems with it, Senator, I hope that you or the other members
of the Committee will let me know, but while I have indicated
that I certainly favor the racially neutral application of the
death penalty, we have got to do so with all care and due
consideration like the procedures set forth in the US
Attorneys' Manual, and I certainly will continue those. And if
there are any problems with them, try to remedy those problems
or improve them.
Senator Sessions. Well, I think that is correct. I think
that was a good decision to have a uniform review, because it
is important to try to have fairness in the application of the
law. I thought it was particularly strange and odd that the
Attorney General of the United States, Janet Reno, and the
President of the United States, who appoints the Attorney
General, President Clinton, stayed the implementation of death
penalties, claiming that the process was somehow flawed when it
was their process. They were running the show. He was the
President and she was the Attorney General, and no death
penalty was ever approved that the Attorney General did not
personally sign off on, is my understanding of it. So I thought
that was odd, but I do think it is a high duty to make sure
that the death penalty is fairly implemented.
You were asked about gun prosecutions and I hope you will
look at gun dealers. I have personally prosecuted gun dealers
as a Federal prosecutor. But I did notice after I came to the
Senate, that under the Clinton Administration, all gun
prosecutions had dropped 40 percent at one point. I asked
Attorney General Ashcroft if he would make it a priority to
raise up the profile of prosecutions of those who violate
existing Federal gun laws, and he said that he would. As chief
administrator in the Department, will you make that same
commitment?
Mr. Thompson. Oh, absolutely. And I agree wholeheartedly
with his decision to make that a priority.
Senator Sessions. I am willing to predict that under your
leadership, that we will see a significant improvement in the
number of cases prosecuted. It will not take a lot of new
personnel and a lot of new money. It is a question of
priorities and how the previous administration could have
allowed such a major drop in those prosecutions, it always
bothered me. They did get them back up in the last year or two
after a number of hearings that we held, but I still think
there is potential to increase those prosecutions.
Mr. Olson, as Solicitor General, you will have
opportunities to advise the President. In the most important
legal matter he ever had, he entrusted his faith to you, which
is a compliment. Are you prepared to tell the President ``no''
if he is in error on a legal question?
Mr. Olson. Yes, I am, Senator. I did have experience as
Assistant Attorney General, as you know, in the Office of Legal
Counsel. One of the responsibilities of the person holding that
position frequently is to say ``no'' to the White House or to
other parts of the executive branch. It is never pleasant to do
that, but--
Senator Sessions. Would you say it even to the Chairman of
the Judiciary Committee?
Chairman Hatch. Let us not get too far here.
[Laughter.]
Mr. Olson. I do not think I have jurisdiction.
[Laughter.]
Mr. Olson. I think that is one of the things that I learned
when I was serving in the Justice Department before, that it is
exceedingly important for the President, for other officials in
the Justice Department and in the executive branch to give some
people in the administration the responsibility and the burden
of calling them as closely as they can call them with respect
to what the law is and what the law can permit, and as best as
possible, to set aside policy considerations, and to be willing
to say no.
Now, people from the President to the Attorney General on
down have got to be willing to encourage the person holding
that position to do so, and then the person has to be willing
to do so. I do feel that I can do that. I feel very strongly
that President Bush believes in that, and Attorney General
Ashcroft believes in that.
Senator Sessions. I think that is important. You want to
promote the law in the ways that you feel are just. However, if
you believe and can establish to your own satisfaction that
something is improper or not legal, you should feel free to
speak out on that.
Mr. Chairman, I think both of these nominees are
extraordinary men of achievement, experience, and ability. I
believe they have the highest sense of integrity. They won the
accolades and respect of even those who have opposed them over
the years. I think they are the kind of leaders that can
revitalize the Department of Justice. It is a Department I
dearly love, having spent 15 years full time, practicing in the
Department of Justice. I think it is the greatest Department,
frankly, and I feel very comfortable having these gentlemen as
leaders in it.
Chairman Hatch. Thank you, Senator.
Let me just make one thing clear. Senator Schumer raised an
important issue with Mr. Thompson regarding the role of the
Senate and advise and consent duties with respect to judicial
nominations. I think I have been fair and had a fair policy,
which I had asked the Clinton Administration to follow. Now,
many times they did not. But to reassure my colleagues on this
important issue, I would like to just quote a couple
paragraphs, or this actual policy of this committee, and read
to them a letter I had written to the Clinton White House. And
I think it basically sets the policy, and I expect this
administration to follow it.
``Please find attached a February 3rd, 1995 letter from
myself to then White House counsel Abner Mikva, and a June 6,
1989 letter from Senator Joseph Biden to President Bush,
outlining the committee's blue slip policy.''
Now, Senator Biden's letter explained the return of a
negative blue slip ordinarily does not preclude consideration
of a judicial nominee, but is given substantial weight by the
Committee in its evaluation of the nominee. Senator Biden also
emphasized the importance of pre-nomination consultation by the
administration, with home state Senators, stressing his belief,
that, quote, ``The nominations process will function more
effectively if consultation is taken seriously'', unquote.
Thus, as Senator Biden also wrote, quote, ``If such good-faith
consultation has not taken place, the Judiciary Committee will
treat the return of a negative blue slip by a home state
Senator as dispositive and the nominee will not be
considered'', unquote.
``The Committee has continued to implement Senator Biden's
policy and practice. Toward that end the Senate expects genuine
good faith consultation by the administration with home state
Senators before a judicial nomination is made, and the
administration's failure to consult in genuine good faith with
both home state Senators itself is grounds for a Senator's
return of a negative blue slip.''
``Where the administration has failed to provide to provide
good-faith prenomination consultation, a negative blue ship is
treated as dispositive and precludes Committee consideration of
a judicial nominee.''
Now, that is important that we all understand that because
this is a new administration and they are really getting their
feet on the ground. There are going to be some mistakes made,
and I am hoping our colleagues will be considerate of that,
that they are way behind the curve. We are going to soon have
well over 100 vacancies in the Federal Judiciary, and I intend
to continue this policy and this process. I think it is a fair
one. I will urge the White House to do that as well. We also
asked the Clinton White House to do that. That type of
consultation is one thing, and in my view, the proper, quote,
``advise and consent'', unquote, rule of the Senate.
But if any of our colleagues here want to veto the
President's constitutional prerogative to make his appointments
with the advice and consent of the Senate, that is a different
matter, and one which I think diverges from the policy of this
Committee since as far back as I can remember, and that is 25
years, since Senator Kennedy was Chairman of this committee. So
I just want to get that on the record so everybody understands
that there are joint obligations. The White House needs to
consult and we need to consult. We need to work together on
these judicial nominations, and we are going to count on you,
Mr. Thompson, to help see that that process goes properly, and
I am going to speak further with our colleagues down at the
White House, you know, Counsel Gonzalez and others, so that we
make this process worthwhile.
Right now we have had kind of a rocky start, but hopefully,
it will all settle down and we will satisfy our colleagues on
the other side of the table, and hopefully as well, our
colleagues on this side. But I just thought I would put that in
the record to make it straight.
Let us go to Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman. And I
regret that neither Senator Leahy nor Senator Schumer are here
to respond with specific information about our experience.
Chairman Hatch. I will keep the record open so they can
respond to that, because I would be happy to have any response.
Senator Durbin. The practice that has been followed in the
4 years that I have been in the Senate is different than what
you have just described. In that time, one Senator could stop a
nominee from a state. And there have also been times when
members of the Senate Judiciary Committee, not even from the
same state as the nominee, could stop a nomination. And I think
that I go along with your premise--
Chairman Hatch. That has always been true, Senator. If
Senators have--I mean, we cannot control every individual
Senator, but we have tried to implement that policy, and in the
vast majority of cases that policy has held. And I intend to
implement it, although I do not--like I say, I am not God. I
cannot control everybody on this committee.
Senator Durbin. I will defer to Senator Leahy and Senator
Schumer on this issue, but I think we need to have an Executive
Session among the members to make certain there is an
understanding.
Chairman Hatch. We will.
Senator Durbin. I do sincerely regret that we have two
nominees today, because 15 minutes is not enough for posts of
this importance to be considered in tandem, and I hope--Mr.
Thompson, I thank both you and Mr. Olson for coming by my
office, and I hope to be able to ask you a few questions in the
allotted time, but I am limited and I want to address several
questions to Mr. Olson.
Mr. Olson--I wonder if this microphone could be changed a
little bit here. It is kind of talking back to me.
Chairman Hatch. Is there any way of getting that so it does
not have a--
Senator Durbin. I could perhaps change it.
Chairman Hatch. Why don't you change mikes?
Senator Durbin. Is this any better. I think it might be.
Thank you.
Mr. Olson, as I look at your background, it is clear that
you are an accomplished lawyer. For the President of the United
States to entrust his political fate to you, as he did before
the Supreme Court, really speaks to your talent and his
admiration for your skill. But I think you would also concede
that you have been a very active political lawyer in the course
of your practice.
As I survey the list of Solicitors General of the United
States, I cannot find any parallel in history of anyone who has
been so actively partisan in his legal practice, and then went
on to be the Solicitor General. The closest is Thurgood
Marshall, who was clearly quite opposite you in political
philosophy. But can you think of a former Solicitor General who
has been so actively involved in politics, in his writing, in
his practice, who then went on to have the position you are
seeking?
Mr. Olson. I have not made a comparison of previous
Solicitors General. It is a distinguished list. Thurgood
Marshall was very much involved in litigation along the lines
that were consistent with the responsibility that he had.
Solicitor General Drew Days had been Assistant Attorney General
in the Civil Rights Division, and had practiced with the NAACP
Legal Defense Fund for a number of years. In fact, that subject
was discussed at his confirmation process. Rex Lee, who was
mentioned this morning, had been involved in litigation of a
variety of sorts.
Senator Durbin. I mean of the political nature. I mean,
some of the things that you have done--
Mr. Olson. Well, I wanted to put that in context. I think
that--I went back and looked over what I had been doing over
the past 20 years or so. I would say probably 97 to 98 percent
of my practice is commercial litigation, commercial litigation
in the context of representing banks or insurance companies or
the automobile industry, or other matters such as that. There
are some--by the nature of things, if you represent a candidate
for President of the United States, and that case goes to the
Supreme Court, it draws a lot of attention. And I have
participated. I have been blessed to have the opportunity to
participate in some cases that have involved issues that have
gone to the United States Supreme Court, and they attract
attention. I do not know that I call many of those cases
political cases. They are cases that involve important policies
of our country, and I feel that it is important and helpful to
have had the experience with constitutional law in a variety of
different areas.
Senator Durbin. Let me be specific. When you visited me
yesterday in my office, I talked about the question of recusal,
and whether or not a Solicitor General should, on certain
occasions, recuse himself from considering a case because of an
obvious conflict of interest, impropriety, appearance of
impropriety or a bias in the case.
I want to go back to the question asked by Senator
Feinstein on some of your writings, which I have read since our
meeting. And I have to tell you that I agree with her that some
of the things that you have written make it very clear that you
have some very strong feelings politically, particularly as it
relates to Democrats in general and the Clinton family in
particular. This article of yours, ``The Most Political Justice
Department Ever'', from the American Spectator, you write, and
I quote, ``Bill Clinton's worst nightmare is a George W. Bush
appointed Attorney General, who will have the courage to pry
open the secrets that the Clinton Administration has kept
during its corrupt reign, and a Congress that will keep the
Justice Department shredding machines out of operation between
November and the Inauguration.'' End of quote.
I want to ask you for the record here what I asked you in
my office. Based on your involvement with the pseudonym used to
publish an article concerning alleged crimes against the
Clinton family and others in the administration, the
representations you have made during the course of all of the
impeachment hearings and the like, let me ask you: do you think
it would be appropriate for you, as Solicitor General, to
consider any case involving President Clinton, his family, or
members of his administration, whom you have named in your
articles?
Mr. Olson. I think as I told you when we visited together
in your office, that that raised a very important and
legitimate question. What I would do--I think that the answer
probably would be that it would be appropriate to recuse
myself. But before making any recusal decision along those
lines, I would consult with the ethics officials in the
Department of Justice, and consider their--and take their
advice into consideration. I do agree with you, that what I
think is the import--what I know is the import of your
question, that appearance with respect to fairness and even-
handedness in the Department of Justice is exceedingly
important.
And one of the things that I was complaining about--let me
put it that way--in this article that you just referred to, is
that I felt that there was--for the reasons I expressed in that
article, that the appearance of partisanship had crept into the
implementation of some decisions in the Department of Justice.
And as a prior Justice Department official, I was concerned
about that. I was concerned enough about it to write an article
setting forth what my views were, so that people could read
them and disagree with them or judge them as they saw fit.
By the same token, I think I have to be judged by the same
standards, and to the extent that I felt that my personal
involvement in a particular issue would make it inappropriate
for me to handle a case, I would recuse myself, but as I said
before, I would also feel that it would be important not to
take that step exclusively by myself, but to consult with these
people that have been created in the Department of Justice, who
are there from administration to administration--they are not
political people--who are experts on that.
Senator Durbin. Many of those same people have been
criticized by members of this Committee during the course of
the Reno administration, even though they were career
employees. So I hope that you will follow that standard. I
think it is appropriate, and I think your answer is
appropriate.
Let me ask you a few specifics. Last year you invited the
Supreme Court to overturn the Miranda case. When the Attorney
General spoke to us in the nomination process, he talked about
settled law. Do you view the Miranda decision as settled law?
Mr. Olson. What I did--yes. The Supreme Court made it clear
in the Dickerson decision last year that it regarded it as
settled law. I think it was a 7-2 decision. I believe it was
written by the Chief Justice of the United States. What I did
in that case was file--the Supreme Court had already decided to
take that case. We were asked by the Maricopa County law
authorities in Arizona, where the Miranda case had originally
come from, to file a friend of the court brief on behalf of
that county, expressing their views with respect to the Federal
Statute which had been enacted by Congress. And this goes back
to the issue of defending acts of Congress. So that was an
issue in that case. But I agree--
Chairman Hatch. And I might add, that was a case where the
current Solicitor General refused to uphold the Congressional
enactment, taking the opposite position.
Mr. Olson. The Solicitor General determined not to defend
the act of Congress, and the result of that was that the
Supreme Court then appointed a law professor to defend the
Congressional prerogatives in that case.
But I do agree with the import of your question. The
Supreme Court did consider that case. It made it very clear
that Miranda is not only a part of the legal culture, but a
part of the culture itself of this country, and it was a fairly
clear pronouncement. I would have no reason to quarrel with
that. The Supreme Court, as Chief Justice Marshall said, has
the responsibility to declare what the law is, and it has done
so.
Senator Durbin. Along the same line, the partial birth
abortion ban has been a very hot topic on Capitol Hill for a
number of years. Many of us believe that this ban should
include an exception for the health of the woman, as well as
her life. The Supreme Court, in Stenberg v. Carhardt, struck
down a Nebraska law that purported to ban the so-called partial
birth abortion, but did not provide an exception for the health
of the mother.
If legislation purporting to ban so-called partial birth
abortion, without an exception for the health of the woman is
introduced, and your advice is sought regarding its
constitutionality or whether appeals should be taken, do you
consider the Stenberg decision settled law, that unless it
includes an exception for the health of the mother, you would
not pursue it?
Mr. Olson. I do not think the Court went that far in that
case. One of the bases for the Supreme Court's decision, as I
read the various different opinions by the Justices in that
case, is the vagueness of the--I think it was a Nebraska
statute in that case. It is a very complicated and a very
important issue, and all I could say with respect to that, it
would require--to the extent it was an act of Congress--looking
at it very, very carefully in terms of what Congress had
decided to do, and also consider very carefully what the
Supreme Court decided in that case. I hesitate to answer that
question in the abstract without knowing the specifics of the
statute, but I cannot stress enough how important I understand
the issue is to so many people in this country, and how
important it is in connection with something like that, to
listen to other people other than the people in the Office of
Solicitor General, to people who have views on the subject, who
want to talk about it, who want to write arguments that would
be submitted to the Solicitor General, and in that case, take
extremely careful consideration of both--of a Supreme Court
decision that has just come down, and an act of Congress.
Senator Durbin. I just want to make one thing clear for the
record. I believe the Stenberg Supreme Court decision says it
is the settled law of the land, that any such prohibition
against abortion procedures that does not include the health of
the woman, violates Roe v. Wade. If you can answer yes or no
whether you agree with my conclusion, I would appreciate it.
Mr. Olson. I cannot answer yes or no with respect to that,
because I think one of the problems with the Nebraska statute
was the definition of ``health'' and under what circumstance
that would be considered, and I just do not know enough. I
would hesitate to do that.
Senator Durbin. Let me ask you as well, there have been
questions raised in staff inquiries about your role in a pardon
for Armand Hammer. As I understand it, you represented Mr.
Hammer; is that correct?
Mr. Olson. I did, but not at the time he received the
pardon. I did represent him in connection--may I explain?
Senator Durbin. Sure, of course.
Mr. Olson. I did represent Dr. Hammer, along with a
prominent law firm in Philadelphia in connection with the
preparation of his application for a pardon. We prepared a
pardon application and submitted it to the pardon attorney in
the Department of Justice according to the regulations that
existed. It was staffed up by the Department of Justice. It
went through the Deputy Attorney General and the other agencies
in the Department that were involved. I do not know what the
recommendation of the Department was to the President. It got
to the White House, and we were then told that the President
was not going to grant the pardon. That was during President
Reagan's Administration. He declined to issue a pardon. My
representation ended at that point. Dr. Hammer was given a
pardon by President Bush, but I was no longer his attorney at
that time.
Senator Durbin. Thank you. That clarifies that. May I ask
you a question on Bush v. Gore?
Mr. Olson. Yes.
Senator Durbin. You remember that case, do you not?
Mr. Olson. It happened so fast, I am not sure.
Senator Durbin. You argued successfully before the Supreme
Court, and you asserted that the use of different procedures
for conducting a statewide recount violated the Equal
Protection Clause. As you know, however, the procedures
established by localities for elections themselves, often vary
widely from county to county. If different procedures for a
statewide recount are unconstitutional, would it follow that
different procedures in carrying out an election on a statewide
basis are similarly unconstitutional?
Mr. Olson. No. The Supreme Court--not necessarily. The
Supreme Court made it very clear in that decision that it was a
particular set of circumstances which included changes by the
Florida Supreme Court in the timetables and the procedures that
had been adopted prior to the election after the election. And
another factor was that the standards by which the ballots were
being evaluated were varying from not only county to county,
but canvassing--different portions of the Canvassing Board's
responsibility from one group to the next group, and that they
were changing from day to day. We raised the question in the
second of those two cases, that where votes are being--or
ballots are being evaluated by different standards within a
state, under rules that are changing after the election, it can
raise equal protection concerns with respect to the evaluation
of ballots differently in different portions of a state. Seven
Justices of the Supreme Court agreed that there were concerns
under the Equal Protection Clause under those circumstances,
but the Court was also working very rapidly because of
constraints imposed by the Constitution and by Federal statute,
and the Court therefore made it very clear to say, ``The
decision that we render in this case applies to the facts of
these cases'', and I think the Justices would say, ``We would
have to look at the next case and the circumstances of that
case.''
Senator Durbin. Well, we obviously disagree on some of
these, but it just strikes me that if I live in a state that
has paper ballots, punch cards, optical scanning, God knows
what else, depending on the county, the jurisdiction, their
decision, we have, going into an election, different
circumstances facing different voters who are casting votes in
the same election. If the election judges in one precinct
decide if you spoil your ballot, you get a new one, and in
other precincts, you do not get a new one, then we have some
diversity as to whether or not the elections themselves are
being managed in the same uniform way across the state for
equal protection.
So I think it begs the question to say it makes sense for
recounts, but it does not make sense for elections.
Mr. Olson. I am not saying that, and I understand your
question. I also understand the point that you are making. It
is a valid point. I just do not know what the answer would be.
Florida itself had three or four different ways of initially
counting the ballots in different parts of the State of
Florida. That was not an area that the Supreme Court focused on
in Bush v. Gore. But I think you make a very valid point. It
raises an interesting question. Under what circumstances can
different methods be used to count ballots? It also may make a
difference whether we are talking about elections for President
under the authority set forth in Article II, Section 1 of the
Constitution or other types of elections. It is a complicated
area, and many people have raised questions like the ones that
you quite properly raised. I just do not know what the answer
would be, and depending upon what the circumstances are.
Senator Durbin. Thank you, Mr. Olson.
Mr. Thompson, you appear to have escaped the savage ritual
as far as I am concerned, but thank you for joining us today.
Mr. Thompson. I would like to say I am sorry, but I have to
be truthful.
[Laughter.]
Chairman Hatch. Well, your time is up, Senator. Let us go
to Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Thompson, being the Attorney General or Deputy Attorney
General is about setting priorities. That is what, obviously,
governing is. But, I think, particularly as Attorney General,
you have so much discretion, and such limited time and
resources, that the cases you decide to emphasize really set
policy. You set policy every single day. I am glad to see in
the previous questioning and in your prepared remarks, you
talked about gun prosecution, the prosecution of people who use
a gun in the commission of a felony, people who are convicted
felons, who use guns in violation of the law, and I am
delighted to see that is going to be one of the top priorities
of your administration.
I would like to mention a couple of other things. What you
will find is--and I am sure both of you have already seen, and
knew before you came in here today--these hearings are not just
about you answering questions. They are also about giving
Senators the opportunity to talk about what we think are our
priorities, so we are not really bashful about that. But I am
glad to see your comment about gun prosecution. It has been an
area that I have been very vocal about. I think it is the right
priority for the Department of Justice. It makes sense. It will
save lives. It will get the right people off the streets.
I would like to mention a couple of areas I think it should
be part of your priority. One is in the development of crime
technology. I sponsored a bill several years ago, and we passed
actually in 1998, the Crime Identification Technology Act. This
act supplies money for DNA technology, automated fingerprints
technology, and ballistic comparisons, as well as the
refinement and continued development of the criminal record
system throughout the country. Now, those are four areas where
I think the Federal Government can continue to play a major
role, not just in developing the national system, but
understanding it is not just important for the FBI or other
Federal agencies to have this system online. It is also
important for the local law enforcement to have this. Over 95
percent of our prosecution, as you know, is done at the local
level. That is where the investigation is, so the ability of
the local community to plug in to the national system is very,
very important.
I hope that the Attorney General's Office and Department of
Justice would support adequate funding, not just for my bill,
but for these four areas of crime technology. It matters a
great deal. It is important for the local jurisdictions. It is
important that we have developed this Nationwide system. And
again, it is a question of priorities, where we, as a country,
put our money, when--our ability to solve a crime in Xenia,
Ohio, depends on whether or not Chicago inputs a criminal's
record before that criminal ends up in Xenia. We are all tied
together, and what happens in one jurisdiction affects the
ability of another jurisdiction to solve a crime. I will ask
you to comment about that in a moment.
Also, you commented about another area that I am very
concerned about, and that is international parental kidnapping.
We have a huge problem in this country today. A typical case
involves a couple who gets married, one is a foreign national,
one is a US citizen. They settle down in the United States and
begin having a family. One day the person who was born in this
country looks up and the person that he or she has married is
gone with a child or gone with two children, and they are in
France or they are in Germany, or they are Lord knows where,
and that child is gone. And what I have seen, frankly, from the
Justice Department in the last few years is a lack of interest
in these cases, a lack of--I do not know any other way of
saying it, just a lack of interest. And it goes right down to
the US Attorneys around the country. I hope that would be a
priority within the Justice Department, understanding there is
a limit to what we can do, understanding we have a State
Department to deal with, and understanding we have foreign
governments to deal with. But I think that if it is emphasized,
we can make some progress in this area.
The fourth area I would like to mention to you is
antitrust. I am the Chairman of the Antitrust Subcommittee. I
did not ask Attorney General Ashcroft to comment about any
particular cases and I will not ask you to do that, but I will
ask you to comment in general about antitrust. I happen to
think that it is a good thing we have antitrust laws. Antitrust
laws work when there is the threat that they will be used. They
do not have to be used every day, but there has to be a
credible threat that the Justice Department will use the
antitrust laws when there is an appropriate case.
And so I will ask you to comment on those four issues,
beginning with gun prosecution, crime technology, international
parental kidnapping and antitrust.
Mr. Thompson. Well, with respect to gun prosecution,
Senator, as you know, that is a top priority of Attorney
General Ashcroft. I wholeheartedly support it for a number of
reasons, but a reason I do not believe I have mentioned to the
members of the committee, is that with respect to the safety of
our law enforcement officials. The use of illegal guns is the
single highest cause of death of law enforcement officials, the
people who are laying their lives on the line to make our
streets safe. So it not only redounds to civilians, it is going
to help law enforcement officials if we can get our arms around
that.
With respect to technology, I agree with you again. We
really need to stay ahead of the learning curve in terms of law
enforcement. I understand that funding for the legislation is a
priority of the administration, and as I understand, Senator,
you were a former prosecutor. Not only is 95 percent of the
prosecutions in this country handled at the state and local
level, perhaps a larger percentage of successful prosecutions
derive from leads that are developed with state and local law
enforcement agencies. So we really need to make certain that
this kind of technology gets in the hands of state and local
law enforcement, so not only they can do their jobs better,
that will help the Federal Government too.
International parental kidnapping, as I have tried to wind
down my law practice, I have not--I really have not studied
that issue, and I look forward to working with you and your
staff and getting up to speed as some of the law enforcement
problems with respect to that issue, but I simply do not know
that much about it.
I am not an antitrust legal expert or scholar--I am sure
you are going to be asking my colleague, Charles James, a lot
of questions in that area--but I will tell you, as a criminal
defense lawyer, I have handled a number of price-fixing cases,
routine price-fixing cases, which are handled by the Antitrust
Division. And we have some very good people in that area and
who are doing a good job across the country in investigating
criminal price-fixing.
I can offer an observation, perhaps it is an opinion, but
that is probably one of the most prevalent white-collar crime
offenses that is out there. It has a great effect, harmful
effect on our economy, unfair competition. And I certainly
would, as the deputy attorney general, make certain that not
only do we pursue other kinds of structural antitrust issues, I
want to make certain that we dedicate our efforts to criminal
price-fixing, criminal antitrust issues, and bringing people
who commit those kinds of serious crimes, and I consider that a
very serious crime, bringing those people to justice.
Senator DeWine. Mr. Thompson, thank you very much.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Leahy. I do not know whether we
have any other questions from our side, but I would like to
continue the 15-minute round so Senator Leahy and others have
enough time to ask their questions.
Senator Leahy. Thank you, Mr. Chairman. Because this is
unusual, and this is the only time, as far as I can tell, in
the history of this committee, that we have had the nominees
for deputy attorney general and solicitor general here
together, Mr. Chairman.
Chairman Hatch. Excuse me, go ahead.
Senator Leahy. I was just going to say, insofar as--
Senator Kyl. He was just complimenting you for breaking
precedent.
[Laughter.]
Senator Leahy. I am saying, contrary to the impression that
the Chairman gave earlier, this is the only time in history we
have had the deputy attorney general and the solicitor here
today. So, in fairness to having started with Mr. Thompson in
the first round, I will start with Mr. Olson on the second.
Mr. Olson. Thank you.
Senator Leahy. Do not be too quick.
[Laughter.]
Chairman Hatch. However, the point was it has been done,
maybe not exactly these two--
Senator Leahy. But never--
Chairman Hatch. Not these two offices, but it has certainly
been done.
Senator Leahy. I will never get the last word.
Chairman Hatch. No, that is not true.
[Laughter.]
Senator Leahy. Are you finished?
Chairman Hatch. Not yet.
Senator Leahy. Is this a new round for you?
Chairman Hatch. I have never taken even a shot at it yet,
and I have made a couple statements here.
Senator Leahy. We would be happy to--
Chairman Hatch. No, I am happy to turn the time over to
you.
Senator Leahy. It is possible we could finish this today,
but I doubt it.
Chairman Hatch. I intend to finish--
Senator Leahy. In the materials filed with the committee,
Mr. Olson, you listed affiliations with a number of groups and
organizations that are overtly and actively political, some of
which have taken legal positions to advance certain public
policy. I want to balance these a little bit so I understand.
You worked with the American Spectator Education
Foundation, the Lawyers Division of the D.C. Chapter of the
Federalist Society and so on. You have resigned, as I
understand, from the board of the American Spectator
Educational Foundation; is that correct?
Mr. Olson. In 1999.
Senator Leahy. Thank you. And what is your intention with
respect to continuing membership and participation in each of
the other groups with which you have been affiliated?
Mr. Olson. I have resigned from any position on the
advisory boards of the organizations that are listed there. I
have already resigned from there. The--
Senator Leahy. Does your involvement with the American
Spectator Educational Foundation, the Federalist Society, the
Independent Women's Forum, the Washington Legal Foundation in
any way diminish your ability to act independently as solicitor
general?
Mr. Olson. You did not mention the American Bar
Association.
I do not think that my involvement--I have resigned from
the advisory boards of all of those other organizations. I
remain a member of the American Bar Association, I remain a
member of the Federalist Society. I do not intend to hold any
positions with respect to any of those organizations.
I do not believe that my past--
Senator Leahy. I am not a member of the American Bar
Association. I resigned when I became a Senator because I did
not want it, in any way, to interfere with the way I vote.
Do you think that your past position would give a
perception of nonimpartiality?
Mr. Olson. I do not think so. I think that--
Senator Leahy. Let me go to a couple of the things.
Let me take some of your writings in the American
Spectator, The Washington Times, and elsewhere, and some of the
tone and rhetoric you have employed to criticize the former
President, and the former First Lady, Attorney General Reno,
and others, and members of this committee. I know you have had
occasion to review your speeches and writings, as you assembled
them, both to submit to the White House and to this committee.
Is there anything, as you sit here today, is there anything
in that body of speeches and writings, and you have reviewed
them, as distinguished from your legal writings--I am not
talking about legal writings when you are an advocate for a
client, but your speeches and writings--is there anything that
you would like to take back, rephrase or clarify?
Mr. Olson. I am sure that there would be things if I had
gone through everything that I have said, with the wisdom of
hindsight and experience. I am sure that there are things I
would both say differently or might not say at all. I did not
go through them with the purpose of singling out anything in
that regard, but I have no doubt that there are things that I
wish I had said differently.
Senator Leahy. Let me go to a couple of specifics, and I
suspect, though, that you did glance through a number of them.
Mr. Olson. I did glance through as many as I--
Senator Leahy. You did write them.
Mr. Olson. I did write them, yes.
Senator Leahy. You wrote, last year, an article for the
American Spectator, very critical of the Department of Justice,
under Janet Reno, and Senator Feinstein has referred to this. I
disagree with your opinion of Janet Reno. I was, as I said to
you earlier, I was impressed by the fact that during the past 8
years, for the first time, we have seen, every single year, the
crime rate go down, something that we have not seen,
notwithstanding the rhetoric of both Republican and Democratic
administrations previously. But notwithstanding our difference
of opinion about Ms. Reno, and you stated your opinion very
strongly, I would like to ask you about a couple things in
there.
You say, ``The Department of Justice and its officials
traditionally have been held to a standard of independence and
nonpartisanship not expected of other Federal agencies.'' I
think we would all agree with that. You said, ``The President
must never inject his personal or partisan political impulses
into individual DOJ decisions,'' and that is your position
today, is it not?
Mr. Olson. Yes, I feel that way.
Senator Leahy. I beg your pardon?
Mr. Olson. Yes.
Senator Leahy. You criticized Janet Reno for asking United
States attorneys from the previous administration to resign.
You explained that, ``In order to maintain continuity in
thousands of pending prosecutions, as a statement to the
public, that elections do not influence routine law
enforcement. The Nation's top prosecutors are traditionally
replaced only after their successors have been located,
appointed, and confirmed by the Senate.''
But yet, today, all over the country, U.S. attorneys are
being asked by President George W. Bush to vacate their
offices. We have not received one single nominee for U.S.
attorney from anywhere in the country sent to the Senate. So do
you think that President Bush and Attorney General Ashcroft
have made a mistake in requesting these U.S. attorneys to
resign or was it only Attorney General Reno who made a mistake
in asking them to resign?
Mr. Olson. What I meant by that is that the decision to
fire or remove all of the United States attorneys on very, very
short notice at one time, without having given any
consideration to the individual situations in any of the
districts in which there were pending cases, created that
appearance, in the context of the other things that I mentioned
in that article.
I think that I said in that article or I tried to say in
that article, and this is one where it is probably, I would
probably say that I could have written it better, but the
cumulative effect of the decisions and actions that I describe
in that article, I did believe created the impression of
partisan involvement in the Department of Justice, which I
thought was not good for the administration.
Senator Leahy. Because they were changing administrations
or a Democratic administration coming when there had been a
Republican administration, is that part of the reason?
Mr. Olson. No, I believe that the specific decisions, and
specific instances, and specific actions that I mentioned in
the article, taken cumulatively, which included the decision to
remove all at once, all of the United States attorneys,
irrespective of the prosecutions that were pending in that
case, which had never, as I understood it, been done before, I
thought that was a--created the beginning of a process which
played itself out in ways which I think were unfortunate for
the Department.
Senator Leahy. But now that nearly all of the U.S.
attorneys are being asked by this administration to do the same
thing, it does not create that kind of an impression?
Mr. Olson. I do not believe that all of the United States
attorneys have been asked to leave, and I think that--
Senator Leahy. I did not say all of them, I said virtually
all of them.
Mr. Olson. Well, I am not familiar with the numbers, and I
think that the circumstances are different, but I don't know
all of the details.
Senator Leahy. Let me ask you this: You criticized
President Clinton's appointment of, among others, the assistant
attorney general for the Office of Policy Development, the
assistant attorney general for Legislative Affairs, the
assistant attorney general for the Civil Division, and the
assistant attorney general for the Antitrust Division because
one had known the First Lady in college, one had a brother who
worked in the White House, another was related to the Vice
President, another was the wife of a Democratic Senator.
Now you made no specific mention about what kind of work
they did in office or the reputations and qualifications they
had, which I recall were sterling, but you said they were too
partisan. Now I do agree with you that evenhandedness and
nonpartisanship should apply to the executive branch. But if it
was wrong in that case, even though these people were all
extremely well-qualified and did a good job in office, do you
think it is wrong of President Bush to appoint Secretary Evans,
a long-time fund-raiser, to the Department of Commerce, and I
voted for him; Secretary Chao, the wife of a Republican
Senator, to the Department of Labor; or Secretary O'Neill, an
old and close friend of Vice President Cheney, to the
Department of Treasury; or Secretary Martinez, a close
political ally of the President's brother to the Department of
Housing and Urban Development--and, as I said, let me just
finish, I voted for all of those--or Alberto Gonzalez, an
appointee of then-Governor Bush, to the Texas Courts?
Is it not partisan or is not a question of their
independence, with their connections to the Bush
administration, when you had somewhat similar connections to
the Clinton administration, and it was wrong to appoint them in
the Clinton administration?
Mr. Olson. What I meant was that, as I said in the
beginning of the article, I was focusing only on the Department
of Justice, and not the other agencies of Government, although
one could say, I suppose, similar things with respect to the
Department of Defense or the Department of State.
So I was just focusing on the Department of Justice, and I
was not referring with respect to any one of the individual
appointments there, but the cumulative effect of that
collection of appointments and relationships, when taken
together with the other issues and decisions that I referred to
in that article; again, including the removal, wholesale,
across-the-board, of the United States attorneys, and those
particular appointments, and those other actions. I think taken
individually, each one of those individual actions might be
explained or justified. I was concerned about the impression
created by the cumulative effect.
And I understand that people can disagree with those
conclusions, and I respect people that do disagree with those--
Senator Leahy. That is not the question. Do you think that
perhaps some of us--and I am just a lawyer from a small town in
Vermont. I do not have your experience or your background--so,
accepting my lesser experience, it seems possible that somebody
like myself might think that there is at least a hint of a
double standard in your criticism of Democratic administration,
but your acceptance of a Republican administration in
appointing close friends, and brothers, and spouses, and so on.
Mr. Olson. I can understand how you could come to that
conclusion, and I am not quarreling with either your experience
or the basis of your coming to that conclusion, but those were
my opinions over with respect to a 7-year period. I came to
those conclusions because I care very much about the Department
of Justice. I believe that it matters a great deal to the
American people. I believe in the standards of the Department
of Justice, and I had that opinion, and I put it in writing,
and I allowed it to be published.
I do understand that people could come to different
conclusions. I do understand, taken individually, someone might
say, well, you are applying a different standard to the
previous Justice Department than you are to officeholders in
your own party. I can understand someone making that argument.
I do, also, would like to say that I have said those things
against the background of having spent 4 years in the
Department of Justice, when--
Senator Leahy. Let us go to that experience. Would you feel
that it showed any kind of a political influence if, for
example, let us take the Department of Justice, let us say a
key position in the Department of Justice, oh, I do not know,
say, U.S. attorney, if a young son of a key Senator, say
somebody in their twenties, was appointed U.S. attorney, and
that Senator happened to be in line, for example, to the
presidency under our Constitution, and was a close ally of the
current President, would that give--aside from any questions of
experience because I think all of these people you criticized
were well-experienced--would that give any possibility, even a
hint, that there might be anything political or partisanship in
that kind of a selection?
Mr. Olson. I can understand people raising those questions,
in the same way that people raised those questions when
President Kennedy appointed his brother to be Attorney
General--
Senator Leahy. But I am asking the specific--
Mr. Olson. I understand, but I do not know the facts of
that particular case, and I am saying that, taken cumulatively,
those questions can be raised and asked, and I think it is
quite legitimate to ask those questions, and that is why I am
pleased to answer them. But I do think that what--
Senator Leahy. Given those facts, just as I presented them,
without going into any particular case or anything else, would
that, on the face of it, raise any kind of questions that would
bother you, as one who has been in the Department of Justice
before and who has expressed very strong standards for avoiding
the appearances of partisanship or cronyism or anything else,
would that raise, just as I outlined the facts, without going
into any particular person, would that raise any questions in
your mind?
Mr. Olson. Standing alone, not necessarily. What I think is
important is to look at the cumulative effect and the
cumulative number of appointments. There may be an individual
that is related to another individual who is extremely well-
qualified. And the people that you mentioned in my article,
individually, may have been very well-qualified. I am not
suggesting that individually they weren't nor that they
individually did not do good jobs, but that--
Senator Leahy. That did not come out in the article,
unfortunately.
Mr. Olson. I tried to say in the article that I was
talking--that I set forth, at the beginning of the article,
five or six different criteria by which I thought attorneys
general in the past had been evaluated by the country, by
political figures, and by newspaper editors. And so I took the
various categories of standards by which a Justice Department
could be evaluated, and then I took each one of those
categories, and I tried to explain why I thought, in those
categories, individually, there were issues that came up that
cumulatively then, when applying all of those standards,
created the impression or created the conclusion, in my mind,
that I was trying to express.
Senator Leahy. Now let us take a case that you would know
as well as anyone, the Bush v. Gore, what is the significance
of that case to the doctrine of equal protection of the law, in
your mind?
Mr. Olson. As I was explaining, in response to Senator
Durbin's question, the--
Senator Leahy. I had to miss because, as you know, the
chairman, as is his right, called this hearing on probably the
busiest day of the spring, so a number of Senators have had to
miss the opportunity to be here with you today, and I know they
regret that, and I am sure you do, but go ahead.
Mr. Olson. The Supreme Court attempted to explain that it
was concerned about the fact that there were different
standards changing on a daily basis, sometimes on an hourly
basis, in the recount process, that there were different
standards from one county to the next county, that the rules
that have been in place and that had existed prior to the
election had been changed. And the Supreme Court, seven of the
Justices felt that there were equal protection concerns with
respect to that method of counting under those circumstances,
but the Court tried to make it clear that it was deciding just
that case.
Now I do believe, as some people have suggested, and
Senator Durbin was suggesting, that that case may have a
broader application, where there are different standards used
in different precincts, different methods of voting machines,
different types of ballots and that sort of thing. I do not
know how far that case will go. I do think--
Senator Leahy. Let me follow on that just a little bit. Let
me follow on your much vaster experience in these areas than
most of the rest of us have, certainly more than I have in the
Supreme Court, and I do not mean that facetiously.
But let me ask you this: You are solicitor general. What
kind, think ahead a little bit, what kind of equal protection
propositions would you cite Bush v. Gore as authority? What
type of equal protection would you use that for or would you?
Can you think of a hypothetical?
Mr. Olson. This was a very novel set of circumstances. The
Supreme Court indicated that it was deciding a case that was
peculiar to the facts of this particular case. I would have to
look at the facts of another case. But as I say, among the
factors that the Court was concerned about, is that the rules
had changed, not once, but general rules, and time tables, and
standards had been changed twice after the election. Palm Beach
County, for example--and, in addition to that, in individual
counties and canvassing--
Senator Leahy. No, maybe I was not clear in my question. It
is not so much on the facts. I mean, we can assume you are not
going to have a case on all fours like this, and let us pray we
do not for the sake of the country, and I mean that very
seriously, and I think that is something everybody, Republicans
and the Democrats should agree with, we hope we would not have
another such case, but then most cases, virtually all cases,
the Supreme Court, they are probably not going to be heard if
they are on all fours with a previous Supreme Court case.
But I am just thinking of the doctrine itself, the equal
protection proposition, can you see other types of cases where
that could be brought in?
Mr. Olson. There was a case in the Eleventh Circuit, where
the standards, with respect to an affidavit, the kind of
affidavit that could be used to count an absentee ballot was
changed after the election. The Eleventh Circuit, in a case
called Roe, R-o-e, had decided, and this was a few years ago,
had decided that that violated the Equal Protection Clause and
the Due Process Clause because the rules had been changed after
the election, and there were different standards being applied
to absentee ballots that had been cast by in one set of
circumstances and in another set of circumstances. That would
be one example.
There was a United States Supreme Court decision in which
prisoners were allowed to cast an absentee ballot if they were
in prison in a county other than their residence, but if they
were living, if they were imprisoned in the same county as
their residence, then they could not cast an absentee ballot.
The Supreme Court of the United States found unanimously, as I
recall, that that violated the Equal Protection Clause.
Senator Leahy. But do you see this being applied in cases,
other than election cases?
Mr. Olson. I have not thought about its application in
other than election cases.
Senator Leahy. I was toying with that idea earlier. I was
having a hard time thinking of some other case, but I--
Mr. Olson. I am sure the lawyers will come up with them,
but I have not thought of them.
Senator Leahy. Mr. Chairman, I went over my time, and I
apologize.
Chairman Hatch. We will turn to Senator Feinstein.
Senator Feinstein. Thanks very much.
Incidently, Mr. Olson, I just reread that part of the
article. You do not say that these people were otherwise
qualified anywhere that I could find. They were just kind of
hung out there and condemned because they might have been
someone's relative or friend or something else. And you know,
as they say around here, what is sauce for the goose, is sauce
for the gander.
Mr. Olson. I understand, and I recognize that I did not
describe their qualifications. What I was saying, and I should
have been more careful, I think I should have been more
careful, but what I was--
Senator Feinstein. That is an admission. We appreciate
that.
Mr. Olson. What I was saying is that the cumulative effect
of selecting a substantial number of officials that have
specific relationships in that pattern, plus these other
factors, created an impression that I thought was unfortunate
for the Department of Justice. Standing alone, I would say this
now, and I probably should have said it much more clearly,
standing alone, the appointment of someone who is well-known
and someone who might--
Senator Feinstein. You do not really need to explain. I
mean, I understand what that piece was meant to do. I
understand what it did. The thing we have to evaluate is your
ability, in view of these feelings, to be objective and open-
minded, and of course that is our job to do. But let me give
you a little break.
Mr. Thompson, I said I was not going to ask you any
questions, but let me just take a woman's prerogative and
change my mind and ask you if you would look at something. A
while back, in the, oh, mid-nineties, about six California
sheriffs met with me to talk about young people that were
getting materials off the Internet of how to make bombs, and
were bringing these bombs to school, were blowing themselves
up, et cetera.
And I sat down, and I looked at the bombings in this
country and saw that they were going up. And then we downloaded
from the Internet something called the Terrorist Handbook,
which begins by saying, in effect ``If you want to build a bomb
that is bigger than this which devastated Oklahoma City or want
to blow up the White House, this is for you.'' And it tells you
how to break into a chemistry lab, what to steal, and then it
has got diagrams of how to put together pipe bombs, letter
bombs. Every use in that is illegal. There is not a single
legal use in any of it.
Well, over three sessions, I think, I tried to pass a law
making it a Federal violation, essentially, to publish bomb-
making material, if you have the knowledge or intent that it is
going to be used for a criminal act. And I worked with the
Justice Department to draft this law, and I believe it will
survive a court test.
My point is this: There have been no Federal prosecutions,
under this law and in the meantime there have been at least 15
incidents reported that could have possibly been federally
prosecuted. I would like to ask you to take a look at this and
see if there are not cases worthy of prosecution under this
law. This is becoming a huge problem in this country. It is so
easy for young people and others to get this information. You
know, just a few clicks, and you pull up the diagram telling
you exactly how to do it, et cetera. So, if you would enforce
this law, I would be very grateful.
Mr. Thompson. What you describe sounds horrible, and I will
take a look at it.
Senator Feinstein. Thank you. Thanks very much.
Mr. Olson, could I go back to a case that you represented,
I know you will remember, the Virginia Military Institute, and
it is a case in which you represented the school, and the
school did not want to admit women, and the Court ruled 7 to 1
against you. I will not read some of the testimony that the
school entered into evidence, like, ``Women basically do not
have the same threshold on emotion as men do. They break down
emotionally. There are fields in which women so often
flounder,'' et cetera, et cetera, et cetera.
But after the Supreme Court decided the case 7 to 1, you
said that Justice Scalia's lone dissent in the case was, and I
quote, ``one of the most elegant and moving opinions I have
ever read,'' and you stated that, ``I would have to agree with
Justice Scalia that the majority's opinion seems to be
incorporating society's current preferences into the
Constitution, and that is a very perilous course.''
Do you consider equal rights for women merely one of
society's current preferences?
Mr. Olson. No, I do not. I think that I said that in the
context of the--we were representing, on appeal, in the Supreme
Court, the Commonwealth of Virginia with respect to that
program. Virginia had determined that single-sex education was
advantageous for some young people and had this program that
had, in the past, been very successful for young men. It had
determined, as a result of a previous appellate court decision,
that that program could only be sustained constitutionally
under the Equal Protection Clause if it also afforded an
opportunity for young women to have a comparable type
adversative education in the Virginia system.
Virginia felt that, while most of its higher educational
budget, something like 97 or 98 percent, went into co-
educational opportunities, that single-sex education, since it
had had some benefits for some young people, should be
available in Virginia to both sexes and that it should not just
be available in the private sector, that the public sector, for
people who could not afford to go to private school, ought to
be given those opportunities, and that was the basis on which
we presented the issues to the United States Supreme Court.
Senator Feinstein. I am not sure I understand. Are you
making the case that if Virginia had a female Virginia Military
Institute that an all-male Virginia Military Institute would
not have been a problem? I am not following what you are trying
to say.
Mr. Olson. The Fourth Circuit had said, the first time the
case had proceeded through the appellate system, that Virginia
could have a single-sex male institution, provided that
Virginia also provided a single-sex educational opportunity for
young women that was modeled on a comparable standard. That is
what the United States Court of Appeals for the Fourth Circuit
had said.
Thereafter, and I was not involved in the case on behalf of
the State of Virginia at that time, thereafter, Virginia set
that system up. The Fourth Circuit approved that system, and
that is the system, the system where there were comparable
educational opportunities on a single-sex basis in Virginia,
along with its broad co-educational program, that is the issue
that went to the Supreme Court on that basis. Now that was
rejected, as you say, 7 to 1 by the United States Supreme
Court.
Senator Feinstein. Attorney General Ashcroft stated during
his confirmation hearing that Casey and Roe were the settled
law of the land and that he would follow the law in this area.
He also said, and I quote, ``I do not think it could be my
agenda to seek an opportunity to overturn Roe.'' Do you agree
with that, and will you similarly follow those decisions in the
abortion rights area?
Mr. Olson. Yes.
Senator Feinstein. Now, I want to ask you about another
court case that you took, and that was the case in Washington
on strict liability for makers of assault weapons. I am trying
to find it here.
You answered Senator Sessions, I thought, very directly. I
think you said that if you are confirmed as solicitor general,
you would defend Federal gun laws, such as the ban on assault
weapons, the Brady law, et cetera; is that correct?
Mr. Olson. I do not think that Senator Sessions asked me
those questions, but I do believe that the laws passed by the
United States are entitled to a defense by the United States
Department of Justice, and unless they are clearly
unconstitutional or in some way invade the prerogatives of the
executive branch, the Justice Department has a responsibility
to defend those statutes in court, and I do agree that it would
be the Justice Department's responsibility to do that.
Senator Feinstein. So you would.
Mr. Olson. Yes.
Senator Feinstein. Let me ask you about this case where you
represented several Republican Congressmen who challenged a law
imposing strict liability for damages in the District on makers
of assault weapons and other high-firepower guns. I gather what
happened was the Federal District Court stated that the issue
that you raised had been resolved unfavorably to you by the
D.C. Court of Appeals, it actually called your argument
disingenuous, and the D.C. Circuit affirmed that. As I
understand it, under D.C.'s Assault Manufacturing Strict
Liability Act of 1990, makers of assault weapons and other
high-firepower guns are held strictly liable for damages when
those guns are used to injure or kill innocent people in the
district.
And you brought a case, on behalf of several Republican
Congressmen, rather than challenging that law in Congress. You
represented a small group of people trying to strike down that
street liability law. I am curious about why you took that
course. It was obviously not a successful course.
Mr. Olson. I have very, very limited memory of that case.
It was handled by lawyers in my office. My name was on it, and
I am not disclaiming responsibility for it, but I did not do
the bulk of the work. It was a number of years ago. We were
approached by Congressman Bliley, with respect to the interplay
of the authority of the District of Columbia legislature and
Congressional authority, with respect to review of actions by
the District of Columbia.
Congressman Bliley felt that there was a Congressional
prerogative, with respect to the statutes that existed at the
time, with respect to the responsibility of the District of
Columbia in circumstances that were involved in that case. It
was a legal issue. And as I recall, you are correct, that we
were not successful in that case, but we did represent
Congressman Bliley, and I guess a couple other Members of
Congress, but I cannot, and I do not remember enough of the
specifics to be any more helpful with respect to the precise
legal arguments. We would not have made those legal arguments
unless we felt that they were legitimate legal arguments that
had a good-faith basis for having brought them, but I do not
recall any more of the details.
Senator Feinstein. Thank you.
Thanks, Mr. Chairman. Thank you very much, gentlemen.
Chairman Hatch. Thank you, Senator Feinstein.
We are going to turn now to Senator Kennedy.
Senator Kennedy. Thank you.
Thank you, and I apologize to the witnesses for not being
here during the course of your testimony. As you have figured,
we all have a number of different responsibilities at this
time.
I want to congratulate both of you on your nominations. I
wish you well. I'd like to get back to Mr. Olson, and Senator
Feinstein's question about the VMI decision. I understand that
during the presentation on your side, the Virginia experts used
the words, as Senator Feinstein has pointed out, ``Women
basically do not have the same threshold on emotion as men do.
They break down emotionally. And there are fields in which
women so often flounder; spatial things, geometric things, math
and physics, and leadership itself.''
What was your reaction when you saw that kind of language?
Mr. Olson. Oh, I was not very happy with it.
Senator Kennedy. Did you ever say anything about it?
Mr. Olson. Well, I was brought in to handle the case in the
Supreme Court. That was the trial court record, and I think
that, without dissecting the whole record, I think--
Senator Kennedy. I am not asking about the whole record, I
am asking about these sections here.
Mr. Olson. There were things that, as an appellate lawyer,
I did not agree with, and I did not--I wish they had not been
in the record, but they were in the record. They were the
experts that were used in connection with the trial of that
case.
Senator Kennedy. But did you find those offensive? Did you
ever register any of that? Did you ever say, ``Look, I am glad
to take on this question about whether there can be single-sex
classes, and whether they are constitutional, but I am not
going to be a part of a case that has that kind of stereotyping
of women''?
Mr. Olson. I thought that there were issues in the case
involving single-sex education that the Commonwealth of
Virginia had some legal issues that they were entitled to
present to the United States Supreme Court, and I felt
comfortable handling that case. As I said, we did lose the case
in the United States Supreme Court, and the Supreme Court
really was not very closely divided on the case. But I do feel
that, from a legal standpoint, we presented a legitimate
argument.
Senator Kennedy. As I understand, there is a different
constitutional standard when you have excluded a group, such as
women, as VMI did, in meeting constitutional muster versus
establishing classes to meet the constitutional standards which
are established for single-sex.
Mr. Olson. Courts had, in the past, and it is still a
little bit confusing with respect to the differential between
strict scrutiny and what the Court called an intermediate
scrutiny. This was a case involving two separate institutions
in Virginia, one which excluded women, and one which excluded
men, to provide citizens in Virginia with an option of single-
sex education.
Senator Kennedy. Well, yes, I understand that, but as I
understand the Supreme Court's ruling on excluding women as a
gender and as a class, there are past Supreme Court holdings on
this that are pretty clear. I want to sort of move on from
this, but that is my understanding.
On the questions about the recent Supreme Court decisions,
Framers of the Constitution struggled, obviously, with the
competing Federalist/anti-Federalist philosophies, as a result
of the great debate on our democracy and Constitution which, in
changing ways over the years, balanced the relationship of the
Federal Government and the States.
Now, the debate is before us again today. In recent years,
the Supreme Court, in a series of 5-4 decisions, has struck
down all or parts of Federal statutes on federalism grounds.
Many constitutional scholars believe the Court's recent
decisions are a dramatic departure from the settled precedent
and an accurate reading of the 11th and 14th Amendments.
As a legislator, I am concerned about the effects that the
Court's recent decision will have on Congress' ability to pass
laws that eradicate discrimination and bias. For example, an
extensive record was compiled in support for the Americans With
Disabilities Act. The record included 13 hearings, 63 public
forums across the country attended by over 30,000 people, and
thousands of letters documenting discrimination. And when the
Garrett case was argued before the Court, 14 States filed a
brief supporting the ADA. The States supported the ADA action
in terms of the coverage of State employees.
A similar record was compiled in support for the Violence
Against Women Act. Over 30 States supported it when the
Morrison case was argued before the Supreme Court. Yet the
Court found portions of both statutes unconstitutional.
And let me just add to that, in the ADA, there had been six
Circuit Court decisions supporting coverage of the ADA to State
employees and employers, and the States were also supportive,
as was the President of the United States, former President
Bush.
We have another, and I am just wondering about your
reaction to this. We have seen on the questions of Violence
Against Women, we have seen in certain issues on pay, overtime,
we have seen on the Older Americans Act, we have seen on the
Disability Act--I know I heard you talk about Family Medical
Leave in an earlier response, and that you support our
position. You have other kinds of employment statutes on this.
We spent a lot of time, and many of us were on the
committees of jurisdiction, spending a lot of time working out
a legislative process to address these particular needs. And
what we are seeing now is this Court, in 5-4 decisions,
routinely knocking down these laws. I just want to get your
reaction to those precedents and I'd like to know whether we
are going to have a friend in your office or not.
Mr. Olson. The only direct experience I have had with the
11th Amendment was a case I argued last year on behalf of a
citizen from Vermont, who brought a qui tam case. It was called
Stevens, was the name of the individual, brought a qui tam case
against the State of Vermont, and I was arguing that the
Federal qui tam statute did apply under those circumstances.
The Supreme Court did not reach the 11th Amendment issue in
that case.
I believe, as I said before, that if there is any
reasonable way that a good-faith defense can be made with
respect to a statute that is enacted by this Congress, under
the Commerce Clause or Section 5 of the 14th Amendment--
Senator Kennedy. Well, the Spending Clause is the one big
clause.
Mr. Olson. The Spending Clause, yes.
Senator Kennedy. I would like to submit some questions on
that specifically, because we are trying to look at that. The
Federal Government can sue. But, as a practical matter, given
the range of different responsibilities and priorities, that is
not an effective remedy. The EEOC is so far behind. You can get
an injunction, but without monetary damages out there, how
effective is this?
The Supreme Court does not appear to be leaving us remedies
in this area, and this is a whole new departure. We had an
interesting hearing in our Human Resource Committee yesterday
on the subject. John Marshall said very clearly, understanding
the 11th Amendment that, he saw no impediment, in terms of the
application of these statutes to the States and State
employees. And we have seen a significant change in the
interpretation of it.
I do not know whether you have looked through any of those
cases or thought at all about that particular kind of issue
because it relates very importantly to the division of powers
between the Congress and the courts and is very important, I
think, certainly to us.
Mr. Olson. I agree with you. I think the 11th Amendment
line of cases is--I would not have anticipated it. I would not
have anticipated the way it played out particularly in the
Alden v. Maine case, where it applied to cases brought not just
in the Federal District Courts.
I do think that there is undoubtedly more latitude that
will be given to Congress under the Spending Clause, and I do
agree with, I think the import of your question that the
solicitor general and the Department of Justice, not just the
solicitor general, but the Department of Justice has to be
Congress's partner in trying to find solutions to what you
decide laws should cover that are constitutional and will be
upheld in court.
And I think we have a very, very grave responsibility to
find ways to defend laws that this Congress passes.
Senator Kennedy. Thank you for your response.
Let me move on to the issue of diversity. What I would like
to know is, if it is appropriate for the President to consider
race and gender in putting together his Cabinet, why is it not
appropriate for other employers and public universities to do
the same?
President Bush's director of Presidential Personnel
recently admitted that the White House considers race,
ethnicity, and gender in making Cabinet and executive branch
appointments. He also stated, ``The President is very committed
to diversity of thought, professional background, of geography,
ethnicity, and gender. If everyone comes from the same
background, same part of the country, looks the same, acts the
same, it is not going to be as strong a Cabinet as if you have
diversity of background, however you define that of geography,
ethnicity and gender.''
What is your reaction to the director's statement, which,
as I would understand it, must be the President's position as
well?
Mr. Olson. I assume so, too.
With respect to the legal question implicit in that, the
courts have held that when Presidents are making appointments
to assist the President in connection with the discharge of his
responsibilities, I think that the courts have not applied the
Due Process Clause or the Equal Protection Clause, but I
understand what you are saying.
Senator Kennedy. Well, I know you understand what I am
saying.
Chairman Hatch. He may be the only one.
Senator Kennedy. You understand, Orrin.
[Laughter.]
Senator Kennedy. We have seen different lower court
decisions on these issues, on affirmative action, and I am
trying to understand which cases you would take. We see
different measures bubbling up in various circuits at the
present time and I am trying to get some sense about your own
views of this in terms of your activity in this area before the
Supreme Court.
Mr. Olson. I can't tell you, of course, which cases would
be the best cases to take, and that will, of course, depend
upon whether there are Federal statutes involved or whether it
involves a State statute and the question of whether the United
States should file an amicus brief.
The Supreme Court has said with respect to the decisions
that are predicated on race as a factor in Government programs
that strict scrutiny applies, and any case that the Government
takes to the Supreme Court with respect to that--I assume the
person who makes that decision is going to want to win that
case, and therefore to find the cases that have the best
factual bases that will supply the Supreme Court with the
factual predicate to decide that the strict scrutiny,
compelling governmental interest, narrowly tailored remedy will
be successfully applied.
Senator Kennedy. Is diversity an appropriate goal for a
university?
Mr. Olson. Well, the Supreme Court has said that strict
scrutiny, compelling governmental interest, and so on, standard
applies. What the Court said, or what Justice Powell said in
the Bakke case has to be taken into consideration, along with
the Adarand case and the Croson case which have come along
secondarily.
I agree that it is an extremely important question that in
colleges and universities and workplaces and everywhere else,
all of our citizens have access to those opportunities and
every opportunity to participate in them. And we as a culture
need to do everything we possibly can under the Constitution to
make sure that all of those opportunities are available to all
people.
Senator Kennedy. Mr. Olson, I know there was one earlier
question--maybe there were others--that was communicated to me
on reproductive rights, and I would like to ask you a question.
There are those who believe that Roe was a sound
constitutional decision and others who believe it should be
overturned at the first opportunity. For example, during the
Reagan Administration, the Acting Solicitor General, Charles
Fried, argued that ``The textual, historical, and doctrinal
basis of Roe v. Wade is so far flawed that this Court should
overrule it and return the law to the condition in which it was
before it was decided.''
During the Bush administration, William Bryson argued that
``The United States continues to believe that Roe v. Wade
unduly restricts the proper sphere of legislative authority in
this area and should be overruled by this Court.'' Similarly,
during the Bush Administration, Solicitor General Ken Starr
argued, ``The United States continues to believe that Roe was
wrongly decided and should be overruled.''
So if you are confirmed, will you urge the Supreme Court to
overturn Roe v. Wade?
Mr. Olson. No. I accept what now Attorney General Ashcroft
said. And those arguments were made at a time quite some time
ago before the Supreme Court made it abundantly clear that Roe
v. Wade, whatever one might think about the legal analysis that
is in it, is the law of the land. It reconfirmed that in the
Planned Parenthood v. Casey case and last term in the Stenberg
case.
And Attorney General Ashcroft said that he accepted those
as settled law. He thought it would be counterproductive,
whatever one might have thought about them, to bring that back
to the Supreme Court. The Supreme Court is not interested in
changing those decisions.
Senator Kennedy. Even if the composition of the Court
changes?
Mr. Olson. The Supreme Court is the one that can decide
whether something is settled, and there may be other
circumstances out there in the future that I can't begin to
contemplate.
The other thing that the Supreme Court did last year in a
case involving the Miranda decision, in a decision by Chief
Rehnquist, said that stare decisis is extremely important to
the Supreme Court, especially absent special circumstances in
constitutional cases. And I think that even if there are
changes in the composition of the Court, whatever changes there
are in the composition of the Court, are going to respect the
doctrine of stare decisis.
Senator Kennedy. Mr. Chairman, I have maybe two final
questions, quick questions.
Chairman Hatch. Why don't we give you that time, but could
I interrupt for a second?
Senator Kennedy. OK.
Chairman Hatch. Does anybody on this side have any further
questions of Mr. Thompson?
Senator Kennedy. Well, I have one.
Chairman Hatch. Well, other than your one, how about your
side?
Senator Leahy. Most of it I can submit for the record, but
I do have a couple questions, one involving the Hatch bill
which I strongly support and I wanted to make sure that--
Chairman Hatch. At last, a common agreement, is all I can
say. That is great.
What we will do, then, is let Senator Kennedy finish his
questions, then Senator Leahy can ask whatever he wants of you,
Mr. Thompson, and we will let you go. And then I presume
Senator Leahy will be the last to ask further questions of Mr.
Olson.
Senator Kyl. Excuse me, Mr. Chairman. I don't think I will
have another question. I have one request to make, but I have
no objection to going ahead and--
Chairman Hatch. Is this procedure all right with my
colleagues?
Senator Kyl. Yes, and as of right now I don't have another
question, just a quick comment.
Chairman Hatch. All right, that will be fine. I think we
can get this wrapped up and then have time to issue written
questions.
Senator Leahy. We will have to check on this side to see.
We are checking right now.
Chairman Hatch. All right. If you will do that, I would
appreciate it, but I would like to let Mr. Thompson go.
Senator Leahy. Mr. Thompson can, sure.
Senator Kennedy. Just finally, Mr. Olson, in 1991, in your
piece in the Journal of Legal Commentary on the Thomas
hearings, you had a series of suggestions. One suggestion was
that ``the ABA and all the other self-serving interest groups
should be deleted from the process.'' Approximately 2 weeks
ago, President Bush implemented this change.
What I would like to know is whether anyone in the Bush
administration consulted you in a formal or informal way before
they decided to remove the ABA.
Mr. Olson. No.
Senator Kennedy. You obviously don't consider the
Federalist Society to be a self-serving interest group.
Mr. Olson. I don't. The Federalist Society does not lobby;
it does not pass resolutions, it does not file litigation, it
does not file amicus briefs. What it does is sponsor programs
which--yes, members of the Federalist Society have points of
view, but opposing points of view are also expressed.
All four of President Clinton's counsels have been
participants in Federalist Society programs. People for the
American Way have been represented in those programs. The ACLU
has been represented in those programs. One of the things the
Federalist Society does is try to bring people together that
have strong views and put them out for public evaluation.
Senator Kennedy. Mr. Thompson, I thank you and congratulate
you.
Mr. Thompson. Thank you.
Senator Kennedy. In an article you wrote dealing with
black-on-black crime, you argued that ``Conservatives have led
the way in implementing tough new Federal law enforcement
measures. Under the Federal system of Government, the primary
task of fighting crime falls upon State and local governments.
Nevertheless, it is important that the Federal Government do
its share and take a leading role in the fight against crime.''
As you know, there have been significant bipartisan
majorities of both Houses of Congress supporting passage of
comprehensive Federal hate crimes legislation. Last week, we
introduced legislation in the Senate with 51 cosponsors. Last
year, we passed it with a very substantial vote.
Consistent with your view that it is important that the
Federal Government do its share and take a leading role in the
fight against crime, will you commit to working with us to pass
this important legislation this year?
Mr. Thompson. I will commit to working with you, Senator.
Senator Kennedy. That is as far as we can get?
Mr. Thompson. No, but I do want to just give you something
about my background.
Senator Kennedy. Please.
Mr. Thompson. As United States Attorney, we brought the
first criminal prosecution for members of the Ku Klux Klan who
were terrorizing some of our citizens for simply who they were
associating with. Obviously, we find that kind of violent
crime, especially violent crime that is motivated by racism, by
sexism, or any other kind of bias, abhorrent and we want to do
whatever we can against it. And I am certainly willing to work
with you to see what is the proper role for the Federal
Government to assist the States in prosecuting these kinds of
crimes.
Senator Kennedy. Well, I appreciate that response and that
is very constructive. I wouldn't have expected otherwise, but
it is very reassuring. We have seen an overall gradual
reduction in terms of crimes of violence, but not in the area
of hate crimes. They have been going up, particularly with
certain groups. We have tried to work out a rather limited role
actually for the Federal Government and their involvement.
We have refined and narrowed it considerably over the
period of the last years, and responded to some of the
questions about special rights. But we are very serious about
carrying this legislation forward. We would like to do it with
the support of the President. He will rely, I would imagine, on
the Justice Department for advice, and your judgment will be
very important, so we will look forward to working with you.
Also, I would like to mention the area of immigration. We,
as you know, recently had visitors from Mexico. The President
has talked about looking for new opportunities to work on
issues involving Mexico, on which there are a lot of differing
views.
As members of the Immigration Subcommittee, Senator
Brownback and I met with the Mexican foreign minister yesterday
and the Minister of Interior. And I understand that Attorney
General Ashcroft and Secretary Powell met with them for two-
and-a-half hours yesterday. So it is a matter of importance,
and getting your involvement in that will be something we will
look forward to as well.
Mr. Chairman, I want to congratulate both of the nominees.
I look forward to voting in support of both of them.
Chairman Hatch. Well, thank you very much, Senator.
Senator Kennedy. I thank the Committee for its kindness in
working out the questioning period.
Chairman Hatch. Well, thank you for your kindness. It is
such a wonderful thing to me and I appreciate it very, very
much.
I guess Senator Leahy, unless we hear from some other
Senator, will be our last questioner.
Senator Leahy. Mr. Thompson, I am sorry again that we have
kept you here so long with this unique and unprecedented way of
having the Deputy Attorney General and the Solicitor at the
same time. This has made it a little bit longer.
There is an excellent piece of legislation, and I would ask
you to look at it, the Drug Abuse Education, Prevention, and
Treatment Act, otherwise known as the Hatch-Leahy Act, or in
Vermont the Leahy-Hatch Act.
Chairman Hatch. I am willing to call it the Leahy-Hatch
Act.
Senator Leahy. No, no, it is Hatch-Leahy.
We discuss both treatment and prevention programs and law
enforcement in it. It will be a difficult time to fully carry
out this bill if some of the cuts that the administration is
looking at, some of the cuts in crime-fighting money that they
are looking at go through. We will have a difficult time doing
this whole Act.
I am not going to ask you to go into those parts where the
administration is cutting money for law enforcement, but I
would ask you to take a look at the bill and let both Senator
Hatch and I know if you support the bill.
The other thing I would as you to look at--
Chairman Hatch. Well, let me just interrupt.
We expect you to support the bill.
[Laughter.]
Mr. Thompson. I understand.
Chairman Hatch. I haven't asked any questions, so I haven't
asked for very much, but that is one thing we are going to ask.
Senator Leahy. You see, Mr. Chairman, I am so shy and
retiring, I couldn't come right out and say that. I leave it to
you brash Westerners.
Chairman Hatch. That is right.
Senator Leahy. We New England understating types--
Chairman Hatch. Well, you are more sophisticated than we
are.
Senator Leahy. We are just quiet.
Chairman Hatch. But we also would like the money pushed for
it, too, because it is a revolutionary bill that could make a
real difference.
Senator Leahy. The message in that, Mr. Thompson, is you
have got something where both Senator Hatch and I are holding
hands. Either one of us doesn't understand it or it is a darn
good bill.
Mr. Thompson. I understand.
Senator Leahy. In this case, we both understand it very
well, so it is a darn good bill.
Now, in this bill--and here is something that you are going
to have to look at very closely and I think there will be a
debate on this--it does not include any mandatory minimum
sentences for drug crimes. Now, that is a feature that is quite
unusual for a drug bill, and I suspect we are going to be
having hearings. We may be having hearings jointly, or I will
be holding them or Senator Hatch will be holding them.
And this is not a Democrat or Republican thing. There are a
lot of Senators who go across the political spectrum--
conservatives, liberals, moderates--who are increasingly
criticizing mandatory minimum sentencing schemes. They all look
great to begin with and I suspect I voted for some. And I am a
former prosecutor, but speaking just for myself I have some
real problems with some of these. I know judges have some real
problems.
We all get frustrated when we see the occasional time when
a judge is too lenient on a crime that calls for it, but the
arbitrariness of this, among other things, has led to a country
where we have more people behind bars than any other country in
the world. We have an extremely high percentage of young
African-American males behind bars. We have the disparity
between crack and powder cocaine.
All of these things are frightening me. They are
frightening me as a parent, as a grandparent, to see what kind
of a country it is bringing up. It is not that there is anybody
up here who is not against crime. I mean, we can all accept
that we are all against crime, but I think sometimes to prove
it we have gone overboard.
We see prison overcrowding, with all the problems that come
out of that, I mean all the problems, and they are enormous
ones. We see low-level drug offenders serving sometimes what
seem to be draconian sentences. So I would ask you to look at
mandatory minimums. I am not going to ask the question now. If
you want to say anything about it, it would be useful and
appropriate, but I would also like you to think about that.
You are going to be confirmed. There is no question about
that, but I would hope that you would--you don't have to answer
that part, but I would hope you would look at this issue of
mandatory minimums. I think there should be a debate on this. I
have talked to Senator Ashcroft about it. I have not talked to
the President, but I will. We should all look at that.
Mr. Thompson. We will look at that, Senator. I will make a
comment on whatever we can do and whatever this body can do
to--and I wrote an article about this after I left the U.S.
Attorney's office--whatever we can do to not only attack the
drug problem on the supply side, and we shouldn't reduce our
efforts on that--
Chairman Hatch. That is right.
Mr. Thompson.--but we have got to do something to attack it
on the demand side if we are ever going to try to get this
problem resolved in this country.
When I became U.S. Attorney in Atlanta at the same time
Senator Sessions was U.S. Attorney in Mobile, we had two
prosecutors that were dedicated to drug prosecutions. We have
many more now in the Northern District of Georgia, but we still
have the same kind of serious problem with respect to drug
smuggling, drug trafficking, drug use, and we have got to get a
hold of this problem.
We have been able to successfully attack other kinds of
problems, for example, with drunk driving. We have been able to
do that and make it socially taboo, and we have really got to
try to do that with respect to the drug problem, work on the
demand side. I don't have all the answers, but I promise you
that--
Senator Leahy. No one does, but understand my concern. Are
these mandatory minimums creating just the opposite of what we
wanted to create? Are we putting people in jail for a long,
long time and then sending them back out into society where
they are not going to be good members of society?
Mr. Thompson. No. I understand what you are saying.
Senator Leahy. You understand. We discussed this earlier,
too.
Chairman Hatch. Would my friend yield for just a comment or
two?
Senator Leahy. Sure.
Chairman Hatch. I am really appreciative that Senator Leahy
has brought this up. This is a bill that is near and dear to
both of our hearts and it is long overdue. We are looking for
alternatives to imprisonment especially for those first-time
offenders and those who are young people who have made
tremendously bad choices in their lives. We want to keep the
supply side, law enforcement end up, but we do want the
education, prevention, and treatment side beefed up.
Frankly, this is a chance for us to work together on
something that will be a joint initiative and would really make
a difference in our society. So Senator Leahy and I are going
to really push hard on this, and we have got to have the money
there as well.
In addition, if I could, Senator--I don't mean to keep
interrupting you, but I would like to get this across since he
has brought that up. The President said in his address to the
joint session of Congress that he wants to help children of
prisoners. Well, I do too, because we find a high percentage of
those kids turning to crime themselves because they don't know
what to do; nobody is there to help them.
I have a number of programs that I think--I want you to
look for ways of finding money for programs that will help
children of prisoners. We will make a difference and bring down
crime even more if we can give those kids a chance, especially
in this digital age. I intend to do that. As a matter of fact,
we are hosting a dinner on May 8th and I expect both of you and
your wives to be there, OK?
Mr. Thompson. OK.
Chairman Hatch. OK, that will be great.
Senator Leahy. Call the scheduler and tell them where I am.
Chairman Hatch. I expect you to be there, too.
Do you have any more questions?
Senator Leahy. Well, the McDade law is another one. You
know, that was slipped into the omnibus appropriations bill
back in the 105th Congress. You have written an article about
it. You say the McDade law should not be amended to permit the
Department of Justice to unilaterally trump State bar rules. I
happen to agree with that.
I also feel, though, that the McDade law went further than
anybody ever intended. You mention in your article the
situation in Oregon where Federal prosecutors can no longer use
federally authorized investigative techniques like wiretaps or
consensual monitoring because of a recent attorney ethics rule
of the Oregon State Supreme Court.
We have cases where now U.S. Attorneys cannot do the kind
of oversight in certain States, or are afraid to do the
oversight of the FBI agents that they are supposed to be
overseeing, or DEA or anything else, because they are afraid
especially if they are doing a multi-state investigation that
somehow they may be in violation of a particular State ethics
law.
Now, I introduced a bill last year which would do a clear
choice of law rule under which Federal prosecutors would be
subject to the ethics rules of the Federal courts in which they
practice. I see it as sort of a compromise between the
situation we now have under the McDade law and what I think
many intended to do with it.
Will you look at that, please, and see if there is advice
you can give Senator Hatch, myself, and others, because I think
that we have a lot of districts where cases are not being
properly investigated or prosecuted. Take a look at the Alaska
Air case, without going through the facts of that here, but ask
somebody to tell you about that and just ask whether, without
this, we might have saved some lives.
Mr. Thompson. I have heard about that incident, Senator. I
don't want to be flippant, but I have heard about my article on
McDade from a number of my friends in the Department of
Justice, and wouldn't it be great if I had had the foresight to
think about whether I would have been here today when I started
writing that.
But as you recall from my article, I did say that I did not
oppose any kind of provision that would resolve perhaps the
conflict that would prevent Federal prosecutors and agents from
doing their important work. I did reserve that in the article,
and I am going to work with the career people in the Department
and they are going to inform me of some of the clear examples
that they have had where they believe McDade has impeded their
efforts.
I will say this as someone who will be hopefully advising
the Department's representatives with respect to McDade.
Whatever we do with respect to that legislation, we need to be
able to send a good and clear message to the public and to the
judges that somehow all lawyers are going to be treated fairly.
I think that is in the interests of the Department as it
proceeds with litigation.
Senator Leahy. I agree, and I think lawyers must be held to
high ethical standards. I am not suggesting that a Justice
Department lawyer could come into a State and just run rough-
shod, but I think we can have very specific Federal rules for
the Federal attorneys.
I just don't want a situation where the U.S. Attorney
decides, well, the only way I can cover myself on this is not
to do any of the oversight of what is going on. Senator
Sessions was a U.S. Attorney, and I think anybody who has been
a prosecutor at the State or Federal level knows that you are
not out there taking the fingerprints and all, but you sure as
heck want to know what the investigators are doing. If they are
going to be doing searches or they are going to be doing
wiretaps or something like that, you want to have some
involvement in it because sooner or later you are going to have
to try that darn case.
Mr. Thompson. Let me make it clear. I don't want to have
any law on the books that is going to prevent Federal
prosecutors from aggressively enforcing the law.
Senator Leahy. Thank you. I have no further questions of
Mr. Thompson.
Chairman Hatch. Mr. Thompson, I think we can excuse you,
unless you would like to stay.
[Laughter.]
Mr. Thompson. Thank you.
Senator Leahy. Your cousin has already left; I noticed he
was here earlier. I must admit you should mention to him, you
know, all of us here in the Congress think what a superb job he
does at the Library of Congress. If there is one piece of our
Government--there are many, perhaps, but if there is one that
really stands out as a national, international, world treasure,
it is the Library of Congress, and your cousin is one of the
reasons for that.
Mr. Thompson. I am glad at least one member of the family
came out well.
Chairman Hatch. Let me just say before you leave that we
will keep the record open. Assuming that we can get the
transcript by tomorrow or Saturday, we will keep the record
open until next Wednesday for written questions to both of you.
Hopefully, when you get those questions, you will get the
answers right back in so that over this recess period we will
be able to go through them all and hopefully resolve any
questions that people have. In fact, I expect to resolve them.
If you will jump right on that, we would be very
appreciative.
Mr. Thompson. Yes, sir.
Chairman Hatch. We want to thank you and your family. You
have got a great family and your wife is a great human being.
We are grateful to have you here and we will release you at
this time so you can get about your other duties, OK?
Mr. Thompson. Thank you.
Chairman Hatch. Well, then Senator Leahy will be our last
questioner.
Senator Leahy. I think Senator Kyl--
Senator Kyl. Since I anticipated we might be done by now,
let me just make a request for the record. At 4:15 I will have
to leave, if that is all right. What I would like to ask is
leave to introduce into the record a correction of the record
or clarification with respect to the requests from the last two
administrations to U.S. Attorneys to vacate their positions.
I believe that at the beginning of the Clinton
administration, there was a general request that all U.S.
Attorneys submit their resignations.
Chairman Hatch. Within 10 days.
Senator Kyl. Yes, and I don't believe that was done in this
administration. I know in the case of the U.S. Attorney in
Arizona, for example, there was no such request. There have
been some, but I think there was an implication that the two
situations were similar and I would simply like to submit for
the record the exact facts so that people can judge that for
themselves.
Senator Sessions. I would just follow up that I believe
Vice President Cheney made it clear that they were not going to
do that because they did not like the implication that a mass
firing with no notice gave to the rule of law. So they have
adopted a different policy that is quite preferable. When I was
U.S. Attorney, I was technically fired by President Clinton
within 10 days of his taking office. As I recall, however, he
let me stay around a little longer.
Senator Leahy. I was going to say you didn't leave in 10
days by any means.
Senator Sessions. It all worked out, but I think there has
been more sensitivity to that by this administration, which I
think is good and is consistent with my suggestion to them.
Senator Leahy. Why don't we let CRS just give us a
definitive response on that?
Senator Kyl. Mr. Chairman, might I just before I leave
again say that I think both of these nominees are
extraordinarily well qualified. These are the two most
important positions in the Department of Justice, other than
the Attorney General. They both represent all of the people of
the country, and I just have no doubt that both candidates will
acquit themselves very, very well. And I look forward to their
speedy confirmation. We need their help.
Chairman Hatch. Right. I want to thank my colleagues for
spending all day with us here today. This has been a lengthy
hearing and I want to thank you for being with us.
Senator, we will turn to you for final questions.
Senator Leahy. I want to let the grandchildren know that
they are going to get their grandfather back in just a few
minutes. Seeing the three of you there has made me miss my
grandson more every minute looking at you.
Chairman Hatch. You three have been just wonderful, I will
tell you. Your parents have not been as good as you have.
[Laughter.]
Senator Leahy. Mr. Olson, you represented David Hale. This
is no surprise to you; these are some questions I asked you
when we met. He was the sole witness to make specific
allegations against President Clinton in the investigation of
the Whitewater matter.
How did you come about representing him and were you paid
for that?
Mr. Olson. Two of his then lawyers contacted me and asked--
at the time, Mr. Hale was a citizen of Arkansas and he was a
witness down in the proceedings, in the Whitewater proceedings
that were being conducted by the independent counsel in
Arkansas.
At the same time, Senator D'Amato's Committee was
conducting an investigation of Whitewater. I can't recall the
exact name that that investigation took, but it was Whitewater
investigations here in Washington, D.C. That Committee gave an
indication that it intended to subpoena Mr. Hale to testify
before that Committee here in Washington, D.C.
One of his lawyers contacted me--I can't recall the man's
name--and asked whether I would be available to represent Mr.
Hale in connection with that subpoena here in Washington, D.C.
They felt that they needed Washington counsel with some
experience dealing with a Congressional investigation. I did
agree to do that. Mr. Hale and I met together. He agreed to pay
our fees. I knew that there was some possibility that he
wouldn't be able to pay.
Senator Leahy. Now, who agreed to pay the fees? Mr. Hale
did?
Mr. Olson. Mr. Hale did. I knew there was some possibility
that he might not be able to pay the fees, but I did agree to
represent him. He was subpoenaed by that committee. He and I
spent considerable time together going over the facts as he
knew them. He determined that it was not in his best interest
and to claim his rights under the Constitution not to testify
before Senator D'Amato's committee.
There was a great deal of pressure on him and his counsel
to have him testify. It was not in his interest to do so. He
claimed his constitutional right not to testify and he did not
testify. That ended my relationship with him. As it turned out,
he was not able to pay his legal fees. I was never paid for
that representation by anybody. I would love to be paid by
anybody who would like to volunteer to do that, but--
Senator Leahy. The reason I asked the question--as you
know, I asked you this question once before because there has
been so much going around and this is the same answer you gave
me earlier and I wanted you to have a chance to--
Mr. Olson. Senator Leahy, I very much appreciate your
asking me the question so I could explain that.
Senator Leahy. Now, there were accusations later on that
Richard Mellon Scaife funneled money through the American
Spectator and its Arkansas Project to pay Mr. Hale, actually to
pay him to offer false testimony against President Clinton.
There were, I am told, eyewitnesses who testified at the grand
jury who said Mr. Hale received payments from a Mr. Dozier, who
in return received money from a lawyer connected to the
Spectator.
I would not ask you to in any way violate the attorney-
client relationship, but are you aware of any of that?
Mr. Olson. I was aware of those accusations. I am not aware
of any payment to Mr. Hale for any purpose, and I will say that
the independent counsel engaged, with the approval, I think, of
the Department of Justice, an individual by the name of
Shaheen, who had been the head of the Office of Professional
Responsibility in the Department of Justice, to investigate
those allegations. An investigation was conducted. I was a
witness in that investigation.
There was a report filed. I think it is still under seal. I
have never seen the report, but that is all I know about it. I
am not aware of any money that came from Mr. Scaife or anyone
else to Mr. Hale.
Senator Leahy. Were you involved in the so-called Arkansas
Project at any time?
Mr. Olson. As a member of the board of directors of the
American Spectator, I became aware of that. It has been alleged
that I was somehow involved in that so-called project. I was
not involved in the project in its origin or its management.
As I understand it, what that was was a contribution by a
foundation to the Spectator to conduct investigative
journalism. I was on the board of the American Spectator later
on when the allegations about the project were simply that it
did exist. The publisher at that time, under the supervision of
the board of directors, hired a major independent accounting
firm to conduct an audit to report to the publisher, and
therefore to the board of directors, with respect to how that
money was funded. I was on the board at that time.
As a result of that investigation, the magazine, while it
felt it had the right to conduct those kind of investigations,
decided that it was not in the best interest of the magazine to
do so. It ended the project. It established rules to restrict
that kind of activity in the future and put it--
Senator Leahy. Did a great deal of that money come from
Richard Mellon Scaife?
Mr. Olson. Yes.
Senator Leahy. Two million dollars?
Mr. Olson. I don't know the exact amount.
Senator Leahy. Would $2 million--
Mr. Olson. It wouldn't surprise me. That is in the ball
park, and there was an audit that was made public, as I
understand it, and I don't know the exact number.
Senator Leahy. Did you have any contact with Kenneth Starr
or part of his prosecution team in regard to the Arkansas
Project?
Mr. Olson. No, none whatsoever with respect to the Arkansas
Project. Now, Mr. Hale was a witness for Mr. Starr.
Senator Leahy. I understand.
Mr. Olson. I didn't talk to him at all about it, but I
talked to his prosecutors down in Arkansas when it was a
possibility that he would testify in Washington. They were
concerned about that as well and I did speak to them.
Senator Leahy. ``Nasty,'' ``Brutish'' and ``Short'' were
pseudonyms used in the American Spectator Foundation. Did you
publish articles under one of those pseudonyms, ``Nasty'',
``Brutish'', or ``Short?''
Mr. Olson. Yes, but the full name is ``Solitary, Poor,
Nasty, Brutish and Short,'' which is Thomas Hobbs'
characterization of the life of man.
Senator Leahy. Did you identify with one of those?
Mr. Olson. No. That was the--
Senator Leahy. Not ``short.''
Mr. Olson. That was the solitary--I don't know. There were
two or three articles published under that pseudonym which is
listed in the masthead of the magazine as a fictitional law
firm and--
Senator Leahy. But you helped write some of them?
Mr. Olson. I helped write--I think there were two or three,
and we supplied copies of those to the committee.
Senator Leahy. If you were Solicitor General of the United
States, would it be safe to say that you would not be writing
articles with at least the tone of these articles that some
would call nasty and uncivil?
Mr. Olson. I would not be writing articles under pseudonyms
and I would not be writing articles that were of that nature.
Chairman Hatch. We could use some tougher briefs in the
Supreme Court, however, so don't be afraid.
Senator Leahy. I have a feeling even this Supreme Court
might not like those--well, I don't know.
Chairman Hatch. I think they might.
Senator Leahy. Maybe this Supreme Court, but most would
not.
There were no meetings of the Arkansas project in your
office or anything?
Mr. Olson. No, there were none.
Senator Leahy. Privacy, consumer privacy. Consumer
information is collected on Web sites and how it is used and
resold is becoming more and more of a concern to everybody. It
is a concern to me.
Some of this is good if you are guy like me or say you are
a fly fisherman or something like that and you want to get the
latest information on fly fishing and you send the information
about yourself thinking you are going to get everything there
might be, and that might be wonderful. On the other hand, there
are a whole lot of other things there that you don't want.
If you look at the Fourth Amendment, there is an awful lot
the Government can find out about you and can know about you. I
worry when I read things about Carnivore and the ability to
track your cell phone locations and information on computer
networks where the Government would do it. I don't care who is
in power in Washington or who is in the Congress. The thought I
find rather frightening. I would hope that we could do a better
job here.
I worked in 1994 very hard with then Congressman Don
Edwards on the CALEA legislation, the Communications Assistance
for Law Enforcement Act, which you know. I thought we drafted a
very balanced law. We allowed wiretaps in the days when the
sheriffs were able to hook the alligator clips to the wire.
Basically, this is the same; you have still got to the courts
and everything else. In the digital age, you need different
equipment.
But I think the FBI and the DOJ overreached in their
interpretation of that statute and went way beyond what I
intended and what I think a number of my more conservative
colleagues intended in co-sponsoring it. You had a role in the
court challenge involving CALEA and the FCC.
This will be my last question, Mr. Chairman.
Do you feel that the Government went beyond what they
should have in the use of CALEA?
Mr. Olson. I felt that the regulations that we were
challenging then--I represented the cellular telephone
communication industry and the Citizens for Democracy and
Technology, which is a group that is very interested in privacy
in communications. In the United States Court of Appeals, we
argued that the regulations that the FCC had adopted had gone
beyond that statute. The United States Court of Appeals for the
District of Columbia Circuit agreed.
I must say that I studied that statute intensely in
connection with that representation. I agree with you that it
was a very, very careful, delicate balance. I thought the
legislative history was very interesting and very helpful.
There had been a good balance done there between privacy
concerns and legitimate law enforcement interests.
And we argued to the court that after the law was passed,
and despite some very strong testimony by FBI Director Freeh
with respect to reassuring you and other Members of Congress as
to how far that legislation was going, that then the Government
went a little bit too far, and the court agreed. I share your
concerns about that field because that is--and that is a
concern of a lot of Americans because our privacy is important
to us in this world.
Senator Leahy. I intend to follow up also with General
Ashcroft on this. I worry about it. Senator Hatch has had to
hear this story before, but coming from Vermont where you value
your privacy, in all the years I have been in public office I
think I have saved maybe two or three items ever written about
me and actually framed up. One was a side bar to a profile in
the New York Times.
And to put this in perspective, I live on a dirt road in
Vermont, several hundred acres of an old tree farm where the
adjoining farm through successive generations of families have
watched over the place. They have cleared the roads and fields,
and also they have known me since I was in high school.
The whole article goes something like this. The New York
Times reporter pulls up, an out-of-state plate on his car. The
old farmer is sitting on the porch. He says, ``Does Senator
Leahy live up this road?'' The farmers says, ``Are you a
relative of his?'' He says, ``No, I am not.'' He says, ``Are
you a friend of his?'' ``Well, not really.'' ``Is he expecting
you?'' ``No, he is not.'' ``Never heard of him.''
We like our privacy, and in a digital age I think all
Americans should. Law enforcement has legitimate things under
legitimate court orders, following probable cause and all the
checks and balances. But I think we have to be careful.
Mr. Olson, you have to be careful, Mr. Thompson does, and
everybody else, and the Congress does, that a digital age does
not mean an age of no privacy.
Thank you. Thank you, Mr. Chairman, and I thank you for
your consideration here. We did this actually in less than two-
and-a-half hours a nominee, for very, very important things.
But I also appreciate your courtesy in making sure all of us
were heard. We will submit our further questions quickly.
Chairman Hatch. Well, thank you, and I want to express my
appreciation to the minority for their willingness to have this
hearing today. This did appear as though it would be a very
complex, difficult day for us, and it has turned out to be
tough, but not any worse than other tough days in the Senate.
Fortunately, because they have stacked the votes probably until
about 6:30.
Mr. Olson. I just want to thank you both and other members
of the Committee on behalf of myself and Mr. Thompson and the
Department. I think these have been very good questions, and I
think I speak for both of us that we very much appreciate the
opportunity not just today, but the other visits that we have
had with the members of the committee.
Chairman Hatch. Well, thank you.
Let me just say in closing that this has been a good
hearing. I hope all of them won't be this extensive, but it has
been a good hearing. I think both of you have acquitted
yourselves very, very well. You are both tremendous people. I
have known Larry Thompson for about 10 years and I have known
you for about 25. Frankly, I don't know of two better people
for these jobs than the two of you.
I have a feeling that you will do a great job for
everybody, not just for people of a certain ideology or
feeling. You, being the great lawyer you are, have represented
people across the spectrum. And as you know, as Solicitor
General, you are going to have to do the same at the Justice
Department.
I want to thank my colleague, Senator Leahy. This hasn't
been easy for him, it hasn't been easy for me.
Here is what we intend to do. We will meet on the Tuesday
when we get back and see if we can iron out some of these
ragged edges of the blue slip policy, which I think we can. I
hope we can. In the interim, we will have any written questions
that members of this Committee want to submit. We hope they
will be in by Wednesday at noon; that will be the due date,
next Wednesday. And we hope you will answer them immediately
and get them back so that everybody will have a decent chance
of reviewing them.
And then that being the case, we will schedule within the
next day or so the mark-up on you and Mr. Thompson for the
Thursday when we get back. So we will have the meeting on
Tuesday. We may have a hearing on Wednesday on another
unrelated item and then we will have the mark-up on Thursday.
Hopefully, we can get you down there so that the Justice
Department will have at least three of the top leaders there,
and we can get moving here because we are now Justice
Department-leaderless for 3 months and we have just got to
change that.
So we will do our very best to move this ahead. I just want
to thank both of you for being here, for the excellent way you
have acquitted yourselves, for the, I think, excellent answers
that you have given to all of us and for the friendship that
you have shown to the Committee through the years.
So with that, we will adjourn until further notice.
[Whereupon, at 4:32 p.m., the Committee was adjourned.]
[Questions and answers follow:]
QUESTIONS AND ANSWERS
Written questions for Theodore B. Olson submitted by Senator Durbin
Question 1: In the aftermath of the recent Presidential election,
the Justice Department is conducting a preliminary probe of allegations
of minority disenfranchisement in Florida. The Department of Justice
will determine whether a Federal investigation is warranted. In
addition, the U.S. Civil Rights Commission recently released
preliminary findings about irregularities in Florida. These findings
include: Haitian, Puerto Rico and other Hispanic voters were not
provided with language assistance; old and defective election equipment
was found in poor precincts; many blacks did not vote because their
polling places could not confirm their eligibility; and some polling
places closed early or were moved without notice.
1. What are your views on these types of investigations and the
preliminary findings?
2. Will you prosecute violations of the Voting Rights Act to the
fullest extent of the law?
3. To what extent and under what circumstances would recuse yourself
frominvolvement in these cases given your involvement in Bush
v. Gore?
Question 2: When I asked about your high profile law practice and
your history of participation in extremely political activities and
cases you stated ``I do not know that I call many of those cases
political cases. They are cases that involve important policies of our
country.''
1. Please explain the difference between political cases and cases
involving important policies of our country.
2. Please explain what criteria you use to determine whether a case is
political.
3. Please explain whether the following cases are political United
States v. Virginia, Bush v. Gore, and Rice v. Cayetano.
4. Please explain how your writings for The American Spectator,
including ``The Most Political Justice Department Ever'' and
``Criminal Laws Implicated by the Clinton Scandals: A Partial
List'', are not political, especially given the fact that the
writings were clearly one sided.
5. In The American Spectator, you ``catalogued'' alleged criminal
misconduct by identified members of the Clinton Administration.
Specifically, you named Bill Clinton, Hillary Rodham Clinton,
Bernard Nussbaum, Webster Hubbell, and Betsey Wright. What
assurances can you give that you will recuse yourself from any
involvement or participation, directly or indirectly, in any
investigations or other legal actions concerning these
individuals and/or other members of the Clinton Administration?
Question 4: Previously you had stated that the role of Solicitor
General is the government's lawyer ``so even if we disagree with the
policies of the law and even if we feel that it is of questionable
constitutionality, we must enforce it and we must defend it.'' At the
hearing you stated you still hold that view and that ``we must be
vigorous advocates for the Congress when we go before the courts.''
Given that you also stated that the Solicitor General should take into
consideration the President's policies, what is the proper role for the
Solicitor General when the President's position differs from the law
being reviewed by the court?
Question 5: Under what circumstances would it be appropriate for
the Solicitor General to change the position taken by the previous
Administration on a case pending before a federal court or the Supreme
Court?
Question 6: You have written about the necessity for the Department
of Justice to maintain a non-partisan stature. In fact, recently you
have stated, ``The department and its officials traditionally have been
held to a standard of independence and non-partisanship not expected at
other federal agencies.'' (Theodore B. Olson, ``The Most Political
Justice Department Ever: A Survey'', The American Spectator, September
2000)
Given the Solicitor General's unique role, often referred to as the
``tenth Justice of the Supreme Court'', and the standard you uphold for
the department, it would be even more important to maintain a non-
partisan and even-handed approach.
Yet in your career you have taken an acerbic tone in your writings
and clearly promoted and advocated extreme partisan positions. Given
your extensive track record of being a highly partisan figure, how can
you guarantee this Committee and Congress that you will uphold the
independence and non-partisanship the position demands?
Question 7: The Partial Birth Abortion Ban Act of 2000 would have
banned so-called ``partial-birth abortion'' without any exception for
the health of the woman. The Supreme Court in Stenberg v. Carhart
recently struck down a Nebraska law that also purported to ban so-
called ``partial-birth abortion'' and did not provide an exception for
the health of the mother. [Partial Birth Abortion Ban Act of 2000;
Stenberg v. Carhart] The Justice Department declared that the
legislation ``violates constitutional standards recently reaffirmed by
the Supreme Court.'' [Nov. 7, 1995 Office of Legislative Affairs
memorandum]
1. When I asked you about this case, you indicated in your testimony
that the Court's decision in Stenberg was fractured on the
question of whether a health exception was mandatory and it
turned on the scope of Nebraska's health exception. Upon review
of Stenberg v. Carhart, could you respond again to the question
of what advice you will render regarding legislation purporting
to ban so-called ``partial-birth abortion'' without an
exception for the health of the woman?
2. Do you believe that any ban on an abortion procedure without a
health exception can pass constitutional review under Stenberg?
<F-dash>
Written questions for Larry D. Thompson submitted by Senator Durbin
Question 1: President Bush and Attorney General Ashcroft have given
priority to the issue of racial profiling. I commend them for giving
this issue high priority and look forward to working with them on my
ongoing efforts to address this issue in the U.S. Customs Service.
The insidious practice of racial profiling undermines public
confidence in law enforcement and damages the credibility of police
forces around the country, even though the vast majority of police are
carrying out their duties responsibly and professionally. Most
importantly, racial profiling creates an atmosphere of distrust and
alienation that isolates broad segments of the American population.
As you know, this issue affects federal, as well as state and local
law enforcement activities. In fact, a GAO study of profiling practices
of airline passengers concluded that the U.S. Customs Service was
intrusively searching African-American women and other minorities for
contraband at much higher rates than they searched other segments of
the population. Ironically, the women being targeted were statistically
less likely than other passengers to be found carrying contraband.
Specifically, GAO found that African-American women were nearly
three times as likely as African-American men to be strip-searched,
even though they were only half as likely to be found carrying
contraband. Furthermore, African-American men and women were nearly
nine times as likely, and Hispanic-American men and women were nearly
four times as likely, as White-American men and women to be x-rayed,
even though they were not more likely to be carrying contraband.
I have introduced legislation to specifically address the concerns
raised in the GAO study and help the Customs Service make more
effective use of its resources, and avoid unwarranted searches.
1. Do you agree that the racial profiling practices of the Customs
Service should be eliminated?
2. Will you support my legislation and urge a favorable statement
of theAdministration's position on this proposal?
Question 2: Do you believe that invidious discrimination, in the
form of racial profiling, occurring at any and all stages of the
criminal justice process (i.e., stops, investigations, arrests,
charging offenses, prosecutions, and sentencings including penalties
and incarceration terms) should be given zero tolerance? What
suggestions/solutions would you recommend to eradicate this pervasive
problem?
Question 3: I am concerned that African Americans represent 12% of
the U.S. population (some sources reflect 13%) and 13% of its drug
users. Yet African Americans comprise 35% of all those arrested for
drug possession and 55% of those convicted of drug possession. Five
times as many whites use drugs as African Americans, but African
Americans comprise the greatest majority of drug offenders sent to
prison. Race appears to be a clear factor. How should we go about
addressing the racial disparities in our prison system?
Question 4: President Clinton's drug czar Barry McCaffrey pushed
for a 32% increase in Federal drug treatment funding-to $3.8 billion a
year. Would you support increased drug treatment funding?
Question 5: What are your views regarding repealing mandatory
minimum sentences for drug offenders?
Question 6: In the aftermath of the recent Presidential election,
the Justice Department is conducting a probe of allegations of minority
disenfranchisement in Florida. The Department of Justice will determine
whether a Federal investigation is warranted. In addition, the US Civil
Rights Commission recently released preliminary findings about
irregularities in Florida. These findings include: Haitian, Puerto Rico
and other Hispanic voters were not provided with language assistance;
old and defective election equipment was found in poor precincts; many
blacks did not vote because their polling places could not confirm
their eligibility; and some polling places closed early or were moved
without notice.
1. What are your views on these types of investigations and the
preliminary findings?
2. Will you prosecute violations of the Voting Rights Act to the
fullest extent of the law?
<F-dash>
Responses of Theodore B. Olson to questions submitted from Senator
Leahy
Question 1: At your confirmation hearing I asked you whether you
``were involved in the so called Arkansas Project at any time'' and you
answered that as a member of the board of directors of the American
Spectator, you became aware of it and that you were ``not involved in
the project in its origin or its management.'' I asked whether there
had been any meetings of the Arkansas Project in your office and you
replied that there had not been.
(a) In The Hunting of the President, Joe Conason and Gene Lyons
write that you attended a meeting in the Washington law offices of
Gibson, Dunn & Crutcher in late 1993 or early 1994 attended by Steven
Boynton, David Henderson, John Mintz, Ronald Burr and Michael Horowitz
at which the topic was using Scaife funds and the American Spectator to
``mount a series of probes into the Clintons and their alleged crimes
in Arkansas.'' Did you attend such a meeting? Please produce all notes,
time records and other documents relating to such a meeting.
Answer: I do not recall the meeting described. I certainly was not
involved in any such meeting at which a topic was using Scaife funds
and the American Spectator to ``mount a series of probes into the
Clintons and their alleged crimes in Arkansas.'' And I have no notes,
time records and other documents relative to any such meeting. As
reflected in my answer to question no. 4, I was retained in early 1994
by the American Spectator to perform certain legal services, including
legal research regarding various matters. But that relationship was not
for the purpose of conducting or assisting in the conduct of
investigations of the Clintons. I learned some years later, of course,
that the American Spectator magazine was investigating the conduct of
the Clintons in Arkansas, as were quite a number of other magazines,
newspapers and broadcast journalists, but I was not a party to these
investigations.
(b) In The Hunting of the President, Joe Conason and Gene Lyons
write that in early October 1997 you attended a special meeting of the
American Spectator Education Foundation board at the home of R. Emmett
Tyrrell in which you were named the Secretary-Treasurer of the
organization. Did you attend a meeting of the board in early October
1997 at the home of Mr. Tyrrell? Were you named an officer of the
organization? If yes, why did you not indicate on the Judiciary
Committee questionnaire that you had served as an officer of that
organization?
Answer: As a member of the American Spectator Board, I attended a
Board of Directors meeting at the home of Board Chairman R. Emmett
Tyrrell. That meeting was, as I recall, in October, or perhaps November
of 1997. I believe that I was asked to draft minutes of the meeting for
the Board, but I do not recall being named as Secretary-Treasurer, and
do not recall ever serving the Board in that capacity. I have a vague
recollection that I served as a temporary secretary for the purpose of
that meeting, and perhaps a subsequent one, something that I did not
recall at the time I answered the initial written questions. I never
served as Treasurer and do not recall doing anything else in the nature
of the duties of a corporate secretary.
(c) In The Hunting of the President, Joe Conason and Gene Lyons
write that you met with other members of the board of the American
Spectator Educational Foundation at the offices of Gibson, Dunn &
Crutcher in July 1997 to discuss allegations that money for the
Arkansas Project had been misallocated. Did you attend such a meeting?
Answer: I do recall meetings, which I now realize must have been in
the summer of 1997 in my office regarding allegations regarding what
became known as the ``Arkansas Project,'' and questions concerning
whether expenditures involved in that project had been properly
documented. The only concern regarding ``misallocation,'' that I
recall, was whether the money spent had been accompanied by the proper
documentation and whether the funds had been drawn from the correct
internal corporate account. These concerns led to the internal
independent audit to which I have previously referred which was
conducted under the supervision of the publisher and with the
assistance of an independent auditing firm.
Question 2: In response to question 32(e) of my first set of
written questions, you say that you, ``became aware of allegations
regarding what came to be labeled the `Arkansas Project' during my
tenure on the Foundation's Board of Directors, in 1998, I believe.''
Without reference to when you became aware of any allegations
surrounding the project, please tell me when you became aware of the
existence of the project and/or the existence of ``investigative''
journalism being conducted by the Spectator, or anyone affiliated with
it, in Arkansas with a focus on the past activities of Bill Clinton,
and how you became aware.
Answer: I was certainly aware that the magazine was publishing
articles regarding the Clintons' conduct in Arkansas, as were other
publishers and other journalists. For example, I recall that David
Brock's first article about President Clinton's activities as Governor
appeared around January, 1994. Those articles were obviously the
product of what has come to be known as investigative journalism. I was
not involved in organizing, supervising or managing the conduct of
those efforts. I was not aware of the ``Arkansas Project'' until, as I
have indicated, in 1997. I now realize that the allegations concerning
the Arkansas Project came to my knowledge in 1997, not 1998, as
reflected in my responses to the foregoing question.
Question 3: You testified at your hearing that you were not
involved in the origins or management of the Arkansas Project. Were you
involved in advising anyone who was involved in the origins or
management of the project? If so, what advice did you provide? Were you
at meetings or social events with anyone involved in the project as an
originator, manager, reporter, or source for the project? If so, what
role did you play at these meetings or social events?
Answer: I did not realize that a Project of any sort was underway
except to the extent that I have indicated. I was in contact at social
events with reporters for the magazine and members of the editorial
staff, individuals whom I regard as personal friends. I have been at
countless social events at which one or more of such persons may have
been present. I have not kept records of such meetings, or the nature
of conversations that may have occurred at such meeting that might have
involved President Clinton or his contemporaneous or past conduct. I
was not playing any particular role at those social events, except that
I was probably a host of events at which persons who wrote for or
performed editorial services for the American Spectator may have been
present. To the extent that it is relevant to your inquiry, I was the
best man at the wedding of the editor-in-chief of the American
Spectator. I recall that he was also present at my wedding. He is a
personal friend and we have had numerous social meetings. He has
written at least two books about former President Clinton. I do not
interpret your inquiry as asking for the substance of conversations at
social events. And I do not recall giving any advice concerning the
conduct of the
Question 4: Were you retained as an attorney by the American
Spectator Educational Foundation? If so, what was the scope of that
representation and for what period of time did you represent it? Please
produce all billing records in connection with this representation.
Answer: I represented the American Spectator in the performance of
legal services from time to time beginning in 1994. The nature and
scope of those services and billing records with respect thereto are
subject to the attorney client privilege. As set forth above in my
response to question No. 1, those legal services were not for the
purpose of conducting or assisting in the conduct of investigations of
the Clintons.
Question 5: In response to question 1.(b) of my first set of
written questions, you describe your role with the Independent Women's
Forum as advisory, and say that you had no formal position within the
organization. However, you describe no specific activities in which you
were engaged in connection to the IWF. Please describe in detail what
IWF meeting or events you attended, and specifically what work you did
for the IWF, including any amicus briefs which you wrote, signed or
about which you were consulted by the IWF.
Answer: I recall attending one advisory board meeting at which the
activities of this organization were discussed. I recall two or three
dinners hosted by officers of the organization. I recall filing one
amicus brief in the VMI case before being retained to represent a party
at a later stage of the litigation, one in the Taxman litigation and
one in California's Prop. 209 case. In that regard, I was acting as
counsel to the organization and not as an officer.
Question 6: In response to question L(d) of my first set of written
questions, you describe your role with the Washington Legal Foundation
as advisory, and say that you had no formal position within the
organization. However, you describe no specific activities in which you
were engaged in connection with the WLF. Please describe in detail what
WLF meeting or events you attended, specifically which activities and
programs you provided comments about and describe in detail what
comments you provided.
Answer: I recall attending several advisory board meetings at which
the activities of the W FL were discussed, various social events over
the years, and several programs in which I participated as a panelist
discussing developments in the United States Supreme Court at which
journalists and other members of the public were invited.
Question 7: In response to question 6 of my first set of written
questions, you say you cannot recall the specifics of the members of
Congress and their staffs you advise. Please search your records for
any specifics of which members of Congress and which staff members you
advised.
Answer: I recall a luncheon program hosted last year by Senator
Sessions at which a panel, including me, Walter Dellinger, Alabama
Attorney General Bill Pryor and others discussed the Supreme Court's
federalism jurisprudence. I recall being contacted by Members and staff
of one of the Committees of the House to talk about legal issues
arising out of the conduct of the census and the Supreme Court decision
involving the manner in which it was to be conducted. On occasion, I
receive calls from individual Members and staff of both Houses of
Congress regarding legal issues on which I may be perceived to have
some expertise. Some time ago, for example, I was asked by
Representative Dickey to look over and comment on proposed legislation
involving changes to the Independent Counsel laws. Members of the
Congress have asked me from time to time to comment on current legal
issues. I do not keep notes on such inquiries, and have no records that
would itemize such contacts.
My law firm represented former Senator Robb in connection with his
investigation by the Department of Justice, and I assisted in that
engagement. My firm was also involved in defending then-Representative
Torricelli in his investigation by the House Ethics Committee and I
assisted in that engagement. And my firm handled a pro bono legal case
for Representative Bliley in which I assisted. The firm also
represented former Representative Jay Kim in connection with a Justice
Department matter involving Representative Kim, and I assisted in that
engagement.
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