<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:94083.wais]
S. Hrg. 108-492
CONFIRMATION HEARING ON THE NOMINATION OF CLAUDE A. ALLEN, OF VIRGINIA,
TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; AND MARK R. FILIP, OF
ILLINOIS, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 28, 2003
__________
Serial No. J-108-48
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 67
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, prepared statement and attachment.................... 143
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 156
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 166
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 62
PRESENTERS
Allen, Hon. George, a U.S. Senator from the State of Virginia
presenting Claude A. Allen, Nominee to be Circuit Judge for the
Fourth Circuit................................................. 12
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois presenting Mark R. Filip, Nominee to be District Judge
for the Northern District of Illinois.......................... 15
Fitzgerald, Hon. Peter, a U.S. Senator from the State of Illinois
presenting Mark R. Filip, Nominee to be District Judge for the
Northern District of Illinois.................................. 14
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting Claude A. Allen, Nominee to be Circuit Judge for the
Fourth Circuit................................................. 10
WITNESSES
Mikulski, Hon. Barbara, a U.S. Senator from the State of Maryland 8
Sarbanes, Hon. Paul S., a U.S. Senator from the State of Maryland 5
STATEMENTS OF THE NOMINEES
Allen, Claude A., Nominee to be Circuit Judge for the Fourth
Circuit........................................................ 52
Questionnaire................................................ 70
Filip, Mark R., Nominee to be District Judge for the Northern
District of Illinois........................................... 17
Questionnaire................................................ 18
QUESTIONS AND ANSWERS
Responses of Claude A. Allen to questions submitted by Senators
Durbin, Kennedy, and Leahy..................................... 99
SUBMISSIONS FOR THE RECORD
Allen, Hon. George, a U.S. Senator from the State of Virginia,
prepared statement............................................. 131
Baltimore Sun, October 28, 2003, article......................... 136
Beales, Randolph A., Former Attorney General of Virginia,
Christian Barton, LLP, Attorneys at Law, Richmond, Virginia,
letter......................................................... 137
Black Women's Bar Association of Suburban Maryland, Dolores
Dorsainvil, Esq., President, Silver Spring, Maryland, letter... 139
Cullen, Richard, McGuire Woods LLP, Richmond, Virginia, letter... 140
Doliver, Marenann, Gilbert, Arizona, letter...................... 142
Finn, Michele P., Fisherville, Kentucky, letter and attachment... 149
Gillis, Paul C., former State President, Virginia State
Conference NAACP, Hampton, VA, letter.......................... 155
Kemp, John D., Esq., Washington, D.C., letter.................... 157
Lawyers and professors of law in States within the jurisdiction
of the Fourth Circuit, joint letter............................ 159
Leadership Conference on Civil Rights, Wade J. Henderson,
Executive Director, and Nancy Zirkin Deputy Director,
Washington, D.C., letter....................................... 163
McCallie, Thomas H., III, Maclellan Foundation, Inc.,
Chattanooga, Tennessee, letter................................. 171
Mikulski, Hon. Barbara A., a U.S. Senator from the State of
Maryland, letter and news release.............................. 172
Mikulski, Hon. Barbara A., and Hon. Paul S. Sarbanes, U.S.
Senators from the State of Maryland, joint letter and
attachments.................................................... 176
National Association for the Advancement of Colored People,
Washington, D.C., resolution................................... 182
National Bar Association, Clyde E. Bailey, Sr., President,
Rochester, New York, letter.................................... 185
National Council of Jewish Women, Marsha Atkind, National
President, Washington, D.C., letter............................ 187
North Carolina National Association for the Advancement of
Colored People, Melvin Skip Alston, President, Greensboro,
North Carolina, letter......................................... 189
Organizations concerned with public health and welfare, joint
letter......................................................... 192
People for the American Way, Ralph G. Neas, President,
Washington, D.C., letter....................................... 196
Tetreault, Mary Ann, Newport Vermont, letter..................... 199
Women's, civil, and human rights groups, joint letter............ 200
CONFIRMATION HEARING ON THE NOMINATION OF CLAUDE A. ALLEN, OF VIRGINIA,
TO BE CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; AND MARK R. FILIP, OF
ILLINOIS, TO BE DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ILLINOIS
----------
TUESDAY, OCTOBER 28, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:43 a.m., in
room SR-325, Russell Senate Office Building, Hon. Orrin G.
Hatch, Chairman of the Committee, presiding.
Present: Senators Hatch, Sessions, Craig, Cornyn, Leahy,
Kennedy, Feingold, and Durbin.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. This hearing of the Senate Judiciary
Committee will now come to order. Senator Hatch, the Chairman
of the Committee, will be here shortly, but has asked me to
convene the hearing until he is able to arrive here. And, of
course, I will make a short statement and then turn the floor
over to Senator Leahy, the ranking member, before we then go to
our two distinguished colleagues from the State of Maryland.
Today the Committee has the privilege of considering the
nominations of two outstanding lawyers for the Federal bench.
Claude Allen is the nominee for the U.S. Circuit Judge for the
Fourth Circuit, and Mark R. Filip is nominee for the Northern
District of Illinois. I commend President Bush for nominating
each of these nominees and look forward to hearing their
testimony.
Now, just so everyone is aware, the Senate is scheduled to
take a vote at 10:30. Accordingly, we will have to take a short
break in the hearing at that time, and we will resume
immediately following that vote.
The first nominee from whom we will hear is Claude Allen,
who currently serves as Deputy Secretary at the U.S. Department
of Health and Human Services. As you know, the Fourth Circuit
covers the States of Virginia, North Carolina, South Carolina,
Maryland, and West Virginia. Virginia's two distinguished
Senators, Senator Warner and Senator Allen, will be here with
us shortly to introduce Secretary Allen, a fellow Virginian.
Also here before us today are the two distinguished Senators
from Maryland, Senator Sarbanes and Senator Mikulski.
Let me explain briefly why I believe we are here in this
posture and why we are proceeding in this manner with this
hearing.
On April 23, 2003, White House Counsel Alberto Gonzales
wrote to the Senators from Virginia, North Carolina, and
Maryland about the status of the then four vacancies on the
Fourth Circuit. He noted that while geographic balance is not
established in the law or binding on the President or Senate, a
State's percentage of overall population in a circuit or the
percentage of a circuit's caseload arising from a State within
a circuit is generally a rough baseline for assessing the
geographic allocation of seats within a circuit.
Based on these rough baseline criteria, Judge Gonzales
explained that, as of the date of his letter, of the 15
authorized seats on the Fourth Circuit, the rough baseline
criteria would allocate North Carolina four or five judges,
when it, in fact, had zero judges; Virginia had three judges
when it ought to have had four or five; and Maryland had two
judges, roughly in line with its allocation of two or three.
Judge Gonzales' letter went on to say that President Bush
intended to nominate two judges to the Fourth Circuit, one each
from the two States that remain underrepresented--North
Carolina and Virginia. I am happy to report that the Senate
confirmed one of these nominees, Judge Allyson Duncan from
North Carolina, so that North Carolina's Fourth Circuit now
stands at three, not four.
President Bush nominated Secretary Allen to this Fourth
Circuit judgeship on April 28, 2003, and Secretary Allen, when
confirmed, will properly increase Virginia's representation to
four on the Fourth Circuit, in line with its percentage of
population and caseload within the circuit.
So while the concerns of my colleagues from Maryland are
honest and no doubt will be clearly articulated here today, the
President did not act, in my opinion, improperly in nominating
Secretary Allen. I think it would be inappropriate to hold up
Secretary Allen's nomination any further, especially given that
he has the full support of his home State Senators, our
colleagues from Virginia.
I expect we will hear more about Secretary Allen's
qualifications from his two home State Senators, so I will not
go into any more detail at this time about his experience in
both State and Federal Government and his excellent academic
credentials.
At this time I would like to turn the floor over to the
ranking member, Senator Leahy, for any statement he would care
to make.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Well, thank you, Mr. Chairman.
I am not used to having hearings in this room. I do
appreciate the convenience insofar as my office is just a few
feet from here.
For over 200 years, advice and consent has helped to temper
partisan politics in the judicial nomination process. It has
protected the courts and the American people from single-party
domination, and it has helped ensure that those who become
Federal judges are fair judges who reflect mainstream legal
thought. The result has been a Federal bench that has served us
extraordinarily well over the course of our Republic.
I am concerned that the history of the 108th Congress is a
history of changed practices and broken rules. During the past
9 months, we have seen the systemic and systematic dismantling
of the rules that have been followed by both Democratic and
Republican majorities to protect us all. I am afraid my friends
on the other side of the aisle are rushing to confirm
ideological nominees that do not reflect the mainstream values
of the American people. To do this, they have had to discard
many of the protections that have historically helped to ensure
a fair judiciary.
The Chairman has changed, for example, the blue slip policy
so that even a negative blue slip from home State Senators is
not enough to stop a nominee. The rule used to be, of course,
that no judge would move out of this Committee if the Chair
knew that the nomination was opposed by both home State
Senators. And when this rule was used to block President
Clinton's nominees, it was followed very stringently by the
Republicans. It was always, always respected if the home State
Senators said they did not want one of President Clinton's
nominees.
Indeed, it was extended even so that if a single Republican
Senator from a circuit, not even from the State of the Senator,
objected, it was sufficient to make sure there was no hearing
and no vote.
Now, this was the tradition followed for 6 years by my
friends on the other side of the aisle during the Clinton
administration. In fact, it was used so that they blocked 60 of
President Clinton's nominees, blocked them if even one
Republican Senator objected. Now, of course, that was dropped
immediately when President Bush took office. So I worry that
the rules have been changed, and I am concerned that we are not
following the practice which has served this country very well.
Today, we are dismantling another critical part of the
judicial nomination process, and that is having a hearing on
Claude Allen of Virginia. Virginia is currently represented by
two Republican Senators, both of whom support this nominee. I
should say at the beginning both of whom are close friends of
mine, and both are Senators I respect greatly. I refer to them
as my Senators away from home during those few days of the week
that I live in Northern Virginia when we are in session. I
respect their views. When I was Chairman of this Committee, I
worked with them to expedite and actually move their
recommended nominees quickly, sometimes ahead of others. Roger
Gregory was confirmed to the U.S. Court of Appeals for the
Fourth Circuit, Henry Hudson was confirmed to the U.S. District
Court for the Eastern District of Virginia, and Timothy
Stanceau to the Court of International Trade, all supported by
Senator Warner and Senator Allen. And this year we cooperated
in filling a second vacancy in the district courts of Virginia
with the confirmation of Glen Conrad to the Western District.
So we have worked very hard to make sure there are no current
vacancies at all on the Federal courts in Virginia--none--even
though when there had been nominees of President Clinton's held
up for some of those vacancies.
We worked well to fill vacancies all over the Fourth
Circuit, not just in Virginia. Of the five circuit court
nominees President Bush has sent to the Senate, three have been
confirmed to date: Roger Gregory, Dennis Shedd from South
Carolina, and Allyson Duncan from North Carolina. Now, I
mention those three because when President Clinton nominated
three African-Americans for that same circuit, because one
Republican Senator objected they were never given a hearing.
Two, Judge James Beaty and Judge James Wynn, were never even
given a hearing. The third, Judge Andre Davis, a Marylander,
was given the same treatment. And I was proud that we did a lot
better for the Fourth Circuit when I was Chairman.
Now, working with this administration has not been so
simple for the Maryland Senators. Senator Sarbanes and Senator
Mikulski are two of the most respected members of the Senate.
They are known nationally for their hard work and the enormous
respect not only the people of Maryland have for them but
around the country. The seat for which Mr. Allen has been
nominated is a Maryland seat. All the history shows that. It
was last held by Judge Francis Murnaghan of Baltimore. He was a
brilliant and compassionate jurist, and I will leave it to my
colleagues from Maryland to say more about them.
Now, in the year 2000, President Clinton nominated another
Marylander, Andre Davis, an African-American district court
judge from Baltimore, to fill Judge Murnaghan's seat. The
Republicans, because apparently one Republican somewhere, not
even from Maryland, objected, they did not act on the
nomination. Actually, they claimed the Fourth Circuit did not
need any more judges, even though there were five vacancies on
the 15-judge circuit. Of course, as soon as President Bush was
elected, they suddenly decided they needed those five judges.
Now, the White House did originally recognize that Judge
Murnaghan's seat was rightfully a Maryland seat. After the name
of a non-Marylander was floated and rejected by the Maryland
Senators, they then decided, well, let's switch it and do it--I
believe they nominated somebody that wasn't even a member of
the bar in Mary, and they switched it to a Virginia seat. So
now we have a Virginian who works in D.C., who used to be a
member of the staff of a Republican Senator from North
Carolina, being nominated to fill a circuit seat from Maryland.
I think he could not be more different than the
predecessor. Claude Allen is a conservative political operative
with little litigation experience. He has practiced law for a
total of six and one-half years. That is a lot less than the 12
years recommended as an absolute minimum by the American Bar
Association. In fact, he is among the more than two dozen
judicial nominees from this administration with ``not
qualified'' or partially ``not qualified'' ratings.
I have more I will say about him later which I will put in
the record, but when you look at the record of people nominated
by both Republican and Democratic Presidents for this seat,
they have been among the most outstanding people. But to have
somebody who has had virtually no litigation experience,
virtually not experience practicing law, to a court one step
below the U.S. Supreme Court to fill a Maryland seat and
somebody who has absolutely no connection with Maryland I think
is a bridge too far.
I will put my whole statement in the record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Leahy.
Just perhaps because my statement really did not anticipate
necessarily some of the remarks that you made, let me just
point out for context and completeness: In a letter of July 17,
2003, by Judge Gonzales, the White House Counsel, to Senators
Sarbanes and Mikulski, the most recent Census Bureau
information as of July 2002 put Maryland's population at 20
percent of the Fourth Circuit, whereas Virginia's population
was 27 percent. Moreover, September 2002 data from the
Administrative Office of the U.S. Courts indicated that
Maryland's caseload made up 16.7 percent of the circuit's
cases, whereas Virginia's caseload was 34.8 percent of the
circuit's cases.
So according to the White House perspective, it is entirely
appropriate for four or five seats to be allocated to Virginia
and two or three seats to be allocated to Maryland.
When President Clinton nominated, then recess-appointed
Judge Gregory of Virginia to fill a North Carolina vacancy, he
did not attempt to justify either action on the basis of
objective criteria. He simply did what he believed he had the
political muscle to do, and he did it. And the record from that
time lacks any statements by our colleagues on the other side
of the aisle of concern or outrage over what was obviously a
shifting of a seat from a severely underrepresented State,
North Carolina, to a slightly better represented State. Maybe
even more important, despite all of these procedural concerns,
President Bush renominated Judge Gregory. He was not
filibustered, and he today sits on the Fourth Circuit Court of
Appeals.
We are holding this hearing today to get views with respect
to this nomination. That is the purpose of the hearing. We know
what the White House's view is. The concerns of my colleagues
from Maryland, both of whom I respect, we all respect, no doubt
will be clearly expressed here today as well. On the other
hand, Secretary Allen has the full support of his home State
Senators, our colleagues from Virginia.
At this time we will turn to the senior Senator from
Maryland for any comments he would care to make. Thank you,
Senator Sarbanes, for being here with us.
STATEMENT OF HON. PAUL S. SARBANES, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator Sarbanes. I appreciate this opportunity to appear
before the Committee. At the outset I want to say that the year
I finished law school, I clerked in the Fourth Circuit for
Judge Morris Soper. That experience has had a lasting impact
upon me, and I regard it as one of my most serious
responsibilities to provide the best advice I can with respect
to nominees to sit on the Federal bench.
Judge Soper was nominated by President Harding to be a
Federal district judge and then nominated by President Hoover
to go on the Fourth Circuit. He served for 40 years on the
Federal bench. I went to be his law clerk near the end of his
service to the Nation. He was one of the most distinguished and
respected judges in the Federal court system, and he had a
profound effect upon me. His portrait, in fact, sits on a table
in my office and has been there ever since I was his law clerk.
Judge Soper was a fierce believer in ``Equal Rights Under
Law,'' the motto chiseled above the Supreme Court, and was a
leader in the Fourth Circuit in seeking to implement that
principle. The library at Morgan State University, a historic
black college and university, is named after Judge Soper, who
for many years was Vice Chairman of its Board of Trustees. So I
want the Committee to understand, I come today with very deeply
felt feelings about the importance of the Federal bench and
about our responsibilities as Members of the United States
Senate, with an advise and consent constitutional obligation,
to carry out that responsibility in a way that will sustain and
enhance the excellence and integrity of our Federal bench.
Now, Mr. Chairman, I have distributed a memorandum of the
Maryland judges who have served on the U.S. Court of Appeals
for the Fourth Circuit ever since the nine judicial circuits
were established in 1891. It is a very distinguished list, and
I want to mention a couple of these judges just to underscore
the quality of the people that Maryland has sent to the Fourth
Circuit to sit on this bench. Consider, for example, Judge
Simon Sobeloff, nominated by President Eisenhower. Judge
Sobeloff had been the City Solicitor of Baltimore, the U.S.
Attorney for the District of Maryland. He had been Chief Judge
of the Maryland Court of Appeals. He had been Solicitor General
of the United States and was nominated to go on the Fourth
Circuit.
I have already mentioned Judge Soper. Judge Murnaghan, the
empty seat for which this nomination has been made, was a
leading practitioner at the bar for many years, President of
the Baltimore City School System, Chairman of the Charter
Revision Commission for the City of Baltimore, and a Chairman
of numerous civic and cultural organizations, the Walters Art
Museum, the Baltimore Museum of Art, the Johns Hopkins
University, on and on.
In fact, when Judge Murnaghan was nominated, the Baltimore
Sun in an editorial about him said, and I quote, ``Frank
Murnaghan is acknowledged by judges and fellow lawyers alike as
the foremost of this generation at the bar and is among the
finest two or three lawyers Maryland has lately produced.''
Upon his death, the Sun noted, ``Judge Murnaghan was one of
the most admired figures in the legal establishment for his
urbane scholarship, legal knowledge, and public spirit.'' And I
could go through the rest of the list of these fine Maryland
Judges.
Again and again, Maryland has sent to the Fourth Circuit
people of outstanding merit and outstanding quality. We have
done well by the Fourth Circuit, and we are proud of those who
have served on that court from our State.
Now, we come before you today because the administration is
seeking to shift a seat that should be a Maryland seat to
another State. Plain and simple. Maryland has 20 percent of the
population of this circuit. There are 15 authorized judges.
Twenty percent of 15 is three. Right on the mark.
Furthermore, the seat that came vacant, for which this
nominee has been placed before you, was held by a Marylander. A
Marylander had those three seats. And, obviously, we feel very
keenly that Maryland should continue to have three seats on the
Fourth Circuit. We have a great legal tradition in our State.
Some of the outstanding lawyers going back to colonial America
were Marylanders. And that tradition has been sustained down
through the years.
The Maryland State Bar wrote to President Bush after this
nomination was made in opposition to it on the grounds that a
Maryland lawyer should be nominated to fill this judicial
vacancy.
Now, we have had a back-and-forth with White House Counsel
Gonzales, and I think it probably serves a purpose if I take
just a moment or two to enlighten the Committee about that,
because I think it bears on the situation we find ourselves in
here this morning.
When this nomination was made, we wrote to Counsel
Gonzales, and we also sent a copy to Chairman Hatch and Senator
Leahy. And we noted that in making this nomination, the
administration was shifting a seat that has been traditionally
allocated to Maryland to Virginia, that this ran directly
counter to the principles for the allocation of seats that
Counsel Gonzales had enunciated in a recent memorandum. In
fact, the administration claimed that it would seek
geographical balance so that the State has a number of judges
sitting in that State corresponding to the State's percentage
of the overall population of the circuit, and they pointed out
that in the Fourth Circuit we were significantly out of
balance. And he indicated that President Bush intended to
nominate individuals to Fourth Circuit vacancies in a manner
that will bring the circuit closer to geographic balance.
Traditionally, the standard has been population. Now they
are trying to introduce the standard of the number of appeals
that come up from the State. I don't understand that standard.
It, in effect, says if there is more reason to think there are
mistakes on the part of the Federal district bench so more
appeals are taken, or if you have a more litigious bar--
something I know this Committee has some concern about--that,
therefore, you ought to get more judges on the appeals court.
If one starts thinking about it, I think there are serious
flaws in that criteria.
In any event, the traditional criteria has been population.
On that criteria, Maryland would have three seats. The vacancy
that exists here was held by a Marylander. The appointment of a
Marylander would keep us at three.
Now, one final point which underscores the seriousness of
this. We have tried to work with the administration on their
nominees to the Federal bench. We have had some success.
Senator Mikulski and I have appeared before you to speak in
favor and endorse all three of the nominees that President Bush
has made to the Federal district court in Maryland: William
Quarles, Richard Bennett, and Roger Titus. This Committee
reported all three out unanimously. Two were confirmed by the
Senate and are now sitting, and the third is pending on the
Senate calendar, and we expect his confirmation in the near
future. So we have shown, I think, an ability to work with the
administration to try to move the process forward and place
people on the Federal bench.
We encountered a difficulty on the Fourth Circuit. The
administration at one point approached us and wanted to
nominate ``for the Maryland seat'' someone who was not even a
member of the Maryland Bar--38 years old, very bright, but not
the sort of stature, both professionally and in the community,
that I think is a prerequisite to go on the Federal bench. And
these names we have put before you, if you look through them
and what they have done, clearly demonstrate that we have
succeeded time after time in drawing to the Federal bench men
and women of stature, men and women of seasoned experience, men
and women who have handled important, responsible positions in
public life.
We want to maintain that standard and that tradition, and
we do not think that the White House Counsel, when they
encounter resistance to someone they want to place on the bench
who falls short of that standard, should then take the seat and
move it to some other State. And we intend, I certainly intend,
to oppose this effort with all the strength that I can muster.
And I urge the Committee not to allow this gross departure from
practice to take effect.
Thank you very much.
Senator Cornyn. Thank you, Senator Sarbanes.
Senator Mikulski, we will be pleased to hear from you next.
STATEMENT OF HON. BARBARA MIKULSKI, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator Mikulski. Good morning, Mr. Chairman and members of
the Committee. I want to thank the Committee for the
opportunity to testify today on the nomination of Mr. Claude
Allen. I will not repeat the arguments made by Senator
Sarbanes, but to really though affirm the need to advocate very
strongly that this seat should be a Maryland seat.
We feel that an injustice has been done to the State of
Maryland in selecting a Virginian to occupy a Maryland seat on
the Fourth Circuit Court of Appeals. So I am here today to
oppose the nomination of Mr. Claude Allen. This is a Maryland
seat, and a Maryland lawyer should be nominated for it. I have
very serious concerns about Mr. Claude Allen's qualifications
to represent Maryland. Mr. Allen does not and cannot adequately
represent Marylanders.
This injustice hurt Maryland's representation on the Court
of Appeals. Thousands of cases are going to be decided by this
court, cases that affect the very lives of every Marylander.
They impact Maryland business, Maryland education, workers'
rights, our Bay, our environment. Our Federal Court of Appeals
are so often the court of last resort. If Maryland loses this
seat, they lose a voice.
Mr. Allen's nomination penalizes by taking one of its three
seats away. There is no justification for taking this seat,
especially when balance dictates that the State with 20 percent
of the population should have 20 percent of the seats. That is
common sense. That is fairness. That means three of the 15
judges.
This particular Maryland seat is no ordinary seat. It was
occupied Judge Francis Murnaghan since its creation in 1979.
Our Senate tradition is for a vacancy to be filled by a person
of the same State. The Murnaghan seat brings with it an
incredible legacy of distinguished scholarship and legal
experience to that seat. The Clinton White House recognized it
as a Maryland seat when they nominated Judge Andre Davis, a
distinguished lawyer who clerked for Judge Murnaghan. The Bush
administration recognized it as a Maryland seat when they sent
us two previous candidates, but they had little or no
connection to Maryland. One was not even a member of the
Maryland Bar. In both cases Senator Sarbanes and I had to
object to such an important position going to someone with
little or no ties to Maryland including not even being a member
of the Maryland Bar.
Now we feel that the administration is playing bait and
switch, trying to switch the seat to Virginia because Senator
Sarbanes and I have raised concerns about the people that
President Bush has tried to nominate for this seat. The
administration claims that it needs to move the seat to
geographically balance the Court of Appeals. That is unfounded.
It is not Maryland's representation that needs adjustment. If
the administration truly wants geographical balance they would
look for opportunities to ensure that Maryland, which is
possibly the only State in balance on the Fourth Circuit, stays
in balance. They should nominate a Maryland lawyer because we
are entitled to fair and balanced representation. If Mr. Allen
were confirmed, then Virginia could have five seats, dwarfing
the representation of Maryland, which has the third largest
population in the Fourth Circuit, and push us down to two
seats.
I would like to bring to the Committee's attention that the
Maryland Bar opposes the Allen nomination on the grounds that I
have stated. There are 30,000 practicing lawyers in our home
State of Maryland. It is unacceptable that this administration
could not find one well-qualified lawyer to appoint to this
prestigious court. They found three well-qualified lawyers for
the District Court, Judge Quarles, Judge Bennett, and hopefully
soon, Judge Titus, all exceptional nominees who represent the
type of nominees the administration could have chosen to fill
the Murnaghan seat. Any one of those nominees has more legal
experience than the current nominee before you. Why did the
administration not look to one of those?
We understand that the administration has consulted,
because of the significant Democratic representation in
Congress, we understand the administration has consulted with
Governor Ehrlich on the three District Court nominations. We
have no objection to that, and in fact, Governor Ehrlich and
his adviser, Mr. Jervis Finney, an outstanding lawyer, a rock-
rib Republican, a former U.S. Attorney, is the advisor to
Governor Ehrlich on these matters. That is how we got Quarles,
Bennett and Titus. We have the people. Why not give us the
opportunity? Because we believe that we could support this.
Our opposition here is not based on party. It is based on
representing our State and seeing that our State is represented
on the Court of Appeals. I repeat, this is not about party. We
have voted for Republican nominations at the District Court, at
the Fourth Circuit. I voted for Judge Niemyer, an outstanding
member of the Fourth Circuit. When I voted for Judge Diana
Mott, I was not even sure what her political party affiliation
was. We go for the best, but when we go for the best, we go for
a Marylander, and this is why we are so adamant today.
When I review the nominees for Federal courts, I consider
legal competency, the highest integrity, a dedication to
protecting core constitutional values, and in this case being
from my own State.
What causes me concern about this nomination is other
qualifications about this nominee. I will not go into my
flashing yellow lights about other qualifications to this
nominee. Suffice to say that these are raised in the Sun paper
editorial today, and I ask unanimous consent that this be
placed into the record.
Senator Cornyn. Without objection.
Senator Mikulski. But dear Committee members, I really urge
you to request that the administration withdraw the nomination
of Mr. Allen. He is here today with his family. They seem like
a wonderful family. I believe there are other places in this
administration that Mr. Allen could serve his President and
serve the Nation. I ask the withdrawal of this nomination
before the Committee, or then to oppose it.
Senator Cornyn. I would like to thank both of our
colleagues from Maryland for forcefully stating their views on
this difficult subject. We are also honored to have the two
Senators from the Commonwealth of Virginia here, who perhaps
have a different perspective on this.
I would like to at this time recognize the senior Senator,
Senator Warner.
PRESENTATION OF CLAUDE A. ALLEN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, BY HON. JOHN WARNER, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Warner. Members of the Committee, first may I say
to my two distinguished colleagues that we have served here a
long time together, and you fully recognize that there are
really two boxing rings. The Executive Branch is where this
decision was made with respect to the nomination, and I would
hope that you would take the same vigor and ardor that both of
you have expressed here and box it out there. Do not bring it
to the boxing ring in the Senate where the match is over purely
this man's qualifications, not the allocation between the
several States for the seats on a Circuit, whether it is the
Fourth Circuit or wherever it may be. It seems to me that this
great Nation was set up with three coequal branches of the
Government. The Executive Branch made this decision to send
this nominee here, not the Senate. Now it is up to us to
examine him purely on the basis of his qualification and give
him a fair chance to be judged by the full Senate. So I say
that most respectfully.
Senator Mikulski. Would the Senator yield for a minute?
Senator Warner. Certainly.
Senator Mikulski. Senator, we understand that there are
several boxing weights or boxing areas. We have tried to work
with the administration. We have stated this case forcibly to
them. We have asked them to consult with the Maryland Bar. We
have asked them to follow the same process that gave us Judges
Bennett and Quarles and hopefully Titus.
Senator Warner. I do not question that you fought a strong
battle there, but my point is you lost, and now we are in
another arena, and this gentleman should be judge purely on the
basis of his potential and the suitability to take on a
judicial position.
Senator Sarbanes. We do not intend to lose in this arena.
Senator Warner. I do not doubt that you can place
obstacles. Is it a sense of fairness to an individual person
though? That is my concern.
Senator Sarbanes. We have a deep concern about a sense of
fairness to the State of Maryland and to the legal profession
in our State, and in holding White House counsel to his own
criteria. His own criteria was that he was going to try to seek
greater geographical balance in the Fourth Circuit, and he is
violating that in the most flagrant way. The administration has
not only reduced Maryland's representation, but of course,
Virginia has now gotten a fifth nominee to the Fourth Circuit,
so significantly raising Virginia's seats. I like Virginia and
I have had a wonderful working relationship with the Senator
from Virginia, and I want to underscore that. Over the years
there is no question about that, and we seek to have mutual
respect, but we think that the White House has very badly
treated our State.
Senator Warner. Do what you can with respect to the White
House but not to this innocent individual who comes up here
with a distinguished record to offer himself for further public
service. The whole procedure about the judicial nominations, I
think all of us are of the opinion that somehow we have got to
improve it, because we have to think about the human dignity of
the people who are willing to come forward, whether it is a
Republican nominee from a Republican President or a future
nominee from another President.
You fight this out in the Executive Branch, the allocation
among the several circuits of the seats. I will not take
further time. I will try and deliver my statement here, and ask
that the entire statement be put into the record.
Senator Cornyn. Without objection.
Senator Warner. This is a fine individual. I have known him
for some time. The interesting thing is he has served all three
branches, speaking of branches, of the Federal Government, and
held key positions in Virginia State Government as well,
eminently qualified. His first experience with the Federal
Government came with the Legislative Branch. After he graduated
with a B.A. in political science from the University of North
Carolina, he worked on the United States Foreign Relations
Committee right here in the U.S. Senate, as deputy director of
the Minority Staff and as Press Secretary. After leaving the
Senate he went on to earn a law degree from Duke University.
Upon graduation he was a law clerk for Hon. David Sentelle of
the United States Circuit Court of Appeals for the District of
Columbia. I might add that this humble Senator likewise was a
law clerk on that Court before this gentleman was born, but I
know the Court very well.
Subsequent to completing his Federal clerkship, Mr. Allen
practiced law for 4 years with the firm of Baker and Botts, an
internationally known firm. In 1995 he departed and went into
the Attorney General's Office in the Commonwealth of Virginia
and was promoted to the Deputy Attorney General. I say that,
Mr. Sessions, you are familiar with that office, and to rise to
the post of deputy you have to have some sound credentials.
Then in 1998 he was selected by our Governor to serve as the
Secretary of Health and Human Resouces in the Commonwealth of
Virginia.
Secretary Allen served as Virginia's Secretary of Health
and Human Resources until 2001 when he was nominated by
President Bush to serve as Deputy Secretary of Health in the
U.S. Department of Health and Human Services. The Senate
confirmed, I repeat, confirmed this eminent American for
Secretary by voice vote on May 26, 2001.
It is important to note that this was not the first time
Secretary Allen had received Senate confirmation. Earlier he
was nominated by President Clinton and confirmed by the Senate
for a position on the African Development Foundation. Twice the
Senate has rendered advice and consent favorably.
So I suggest, most respectfully to my colleagues, to my
good friends of Maryland, let us judge him on his merits and go
into the arena of the Executive Branch if we wish to slug out
the number of seats on the various circuits.
I thank my colleagues.
[The prepared statement of Senator Warner appears as a
submission for the record.]
Senator Cornyn. Thank you, Senator Warner.
Senator Allen, we would be pleased to hear from you.
PRESENTATION OF CLAUDE A. ALLEN, NOMINEE TO BE CIRCUIT JUDGE
FOR THE FOURTH CIRCUIT, BY HON. GEORGE ALLEN, A U.S. SENATOR
FROM THE STATE OF VIRGINIA
Senator Allen. Thank you, Mr. Chairman. I am very pleased
to join with my colleague, Senator Warner, in support of Claude
Allen to this position on the Fourth Circuit Court of Appeals.
Since I am going second with my introduction Senator Warner
has already covered some of the remarks I wished to make. I
will not tread on them again, and will ask that my full
statement be made part of the record.
Senator Cornyn. Without objection.
Senator Allen. Let me share with you all on the Committee
my views. I will not get into a running debate other than to
say I was listening to my colleagues from Maryland, and in
issues like the Chesapeake Bay and the laws of the Fourth
Circuit, federal laws apply in Virginia as well as Maryland.
Virginia cares a great deal about the Chesapeake Bay, and it is
actually one of the great partnerships with Virginia and
Maryland in trying to upgrade the aquatic quality of the
Chesapeake Bay.
But on the criteria of competence integrity, and the proper
judicial philosophy, I find that Claude Allen, from my
experiences working with him, is eminently qualified to serve
in this position on the Fourth Circuit Court of Appeals. As
Senator Warner said, he has served in every branch of
Government, including various Executive Branch positions.
Let me share with you my views when I was serving as
Governor of the Commonwealth of Virginia. As you know, Mr.
Chairman, being Attorney General, and Senator Sessions, having
served in a similar position, states are constantly getting
challenged on a variety of areas from people who do not like
the changes you are making. I was very honored and fortunate as
Governor to have Claude Allen serving most capably in a
position of leadership as Deputy Attorney General. In that
position, he was specifically working with members of my
Cabinet, namely the Secretary of Health and Human Resources. In
this position, he was vitally instrumental in warding off a lot
of lawsuits and challenges in the implementation of Virginia's
very ambitious and comprehensive welfare reform law. We passed
it in 1995, well over a year and a half before the Federal law
was passed, and there were challenges in a variety of Federal
Courts. Fortunately we had Claude Allen, not just as a leader
in the Attorney General's office, but as a leader making sure
that our laws, which have been very successful over the years,
were kept in place. Obviously these laws reflect the will of
the people of Virginia. This gets also to my philosophy that
judges ought to be interpreting and administering the law, not
inventing or writing the law.
After that great work and leadership as Deputy Attorney
General, then Governor Gilmore, my successor, came in and
appointed him to be in his Cabinet as Secretary of Health and
Human Resources. In this position, he continued the
implementation of welfare reform as well as many other aspects
of Virginia Government. The Secretary of Health and Human
Resources in Virginia has very diverse responsibilities and is
in charge of 13 agencies and 15,000 employees. Claude Allen
showed great management in this position, and therefore,
President Bush ultimately, when he came into office, wanted to
bring him to the Federal level.
Another matter arose toward the end of my term as Governor
of Virginia. There was a despicable and deplorable rash of
church burnings focused on African-American churches. These
were truly deplorable actions. During this time, Claude Allen
worked with former Virginia Governor, Doug Wilder, to bring
about a dialogue in our Commonwealth of Virginia to combat
these hateful acts.
As Senator Warner mentioned, Claude Allen has been
confirmed twice by the Senate, one nomination under President
Clinton when served on the Board of Directors for the African
Development Foundation. In that role he worked on various
issues including the development of micro businesses for women
in Africa, the care for orphans affected by HIV/AIDS, and
adding an economic focus on the HIV crisis in Africa. He was,
as Senator Warner mentioned, alos confirmed in May 2001 as
Deputy Secretary for Health and Human Services, a position he
currently holds.
Claude Allen has worked on issues dealing with health
disparities in minority communities as well as the issues of
bioterrorism, homelessness and HIV/AIDS, both in our Nation and
abroad. He has, in my view, an outstanding record of commitment
to positive youth development in our Commonwealth of Virginia,
as well as across the Nation. He has been active in Virginia's
Right Choices for Youth Program, which promotes healthy
behaviors among young people in an effort to have them live up
to their fullest potential.
He does have with him family members, and I would like for
you all to recognize his family members who are here with him
today. His wife, Jan; his son Alexander, who is 11-years-old;
Mildred, Secretary Allen's sister; Tom, his brother-in-law who
is Mildred's husband; Karla Ballard, his niece; and Carolyn
Ballard, his sister-in-law. Also here is a good friend and a
supporter of Claude Allen, a man who has his own independent
way of looking at matters, and that is Paul Gillis, who is a
former State President of the Virginia State Conference of the
NAACP.
Mr. Chairman, members of the Committee, Secretary Allen is
an outstanding nominee. I am confident that he will honorably
and fairly adjudicate cases on appeal to the Fourth Circuit.
Members of this Committee, it is my sincere pleasure to present
and to support this well-qualified nominee and outstanding
person. He is a true Virginian. We are proud of that as well. I
respectfully request you all to move as expeditiously as
possible in bringing his nomination to the floor for a vote.
I thank you, Mr. Chairman, and all the members of the
Committee.
[The prepared statement of Senator Allen appears as a
submission for the record.]
Senator Cornyn. Thank you very much, Senator Allen. I would
like to express our appreciation on behalf of the Committee to
all our colleagues from Maryland Virginia for your
introduction.
To remind the Committee, we have a vote posted at 10:30 on
the confirmation of Governor Leavitt to be Administrator of the
EPA, and my hope is that we can go ahead and ask Senator Durbin
and Senator Fitzgerald to make any introductory comments they
would care to make on the third panel member, Mark R. Filip, to
be the U.S. District Judge for the Northern District of
Illinois, so that when we come back we can proceed first with
Mr. Allen and then with Mr. Filip.
Senator Durbin.
Senator Durbin. Mr. Chairman, if you would not mind, I
would like to ask my colleague, Senator Fitzgerald to go first
since he nominated Mr. Filip, a nomination I totally support,
but I would like him to introduce him.
Senator Cornyn. Very well. Senator Fitzgerald, we would be
delighted to hear from you.
PRESENTATION OF MARK R. FILIP, TO BE DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF ILLINOIS, BY HON. PETER FITZGERALD, A U.S.
SENATOR FROM THE STATE OF ILLINOIS
Senator Fitzgerald. Thank you, Mr. Chairman, and members of
the Committee. I appreciate the opportunity to be here today
and introduce to the Committee a very fine, young, but already
very experienced and sharp lawyer from Chicago named Mark R.
Filip.
Mark is current a partner at Skadden Arps, specializing in
complex commercial litigation in Chicago. He also does some
criminal defense work. He is a graduate of the Harvard Law
School, magna cum laude, and he also served on the Harvard Law
Review. Before going to Harvard he had a scholarship, a
Marshall Scholarship to study law at Oxford University. He has
had two judicial clerkships. He clerked for Stephen F. Williams
of the D.C. Circuit, and then clerked for Supreme Court Justice
Antonin Scalia.
Before going to Skadden Arps he was an Assistant U.S.
Attorney in the Northern District of Illinois, and while he was
an Assistant U.S. Attorney he won the Justice Department's
award for superior performance as an Assistant U.S. Attorney.
He is currently involved teaching at the University of
Chicago Law School. He is currently lecturing there, and
previously he was an adjunct professor at Northwestern School
of Law. The American Bar Association has rated Mark Filip
``well qualified.''
I have to say that I appreciate Senator Durbin's support
for the nominee. I know that Senator Durbin interviewed Mr.
Filip for a long time and had a good meeting with him.
We are pleased to have Mark Filip here today, and Mark just
nodded his head. He is sitting between his parents who have
made it all the way from Park Ridge, Illinois, Rose and Robert
Filip. If you want to stand up and just be recognized. Thank
you.
I understand that Mark's wife, Beth, along with her parents
are on their way from Chicago, and they will be in town a
little bit later today. They have four boys, Matthew, Charlie,
Tommy and Joseph, and I guess they are growing up like my son
is, and the way I grew up and the way Mark grew up, very
disappointed Chicago Cubs fans.
[Laughter.]
Senator Fitzgerald. They had a great disappointment the
other day when the Cubs failed to make it into the World
Series.
Mr. Chairman, I appreciate their being here. I appreciate
your attention. Mark is a superior lawyer who has already made
a significant mark in the legal community in Chicago and really
around the Nation, and I expect that he will provide
distinguished service to the Northern District of Illinois.
Again, I would like to thank my colleague, Senator Durbin.
With your consent, Mr. Chairman, I would like to be able to
introduce a full statement of my remarks into the record.
Senator Cornyn. Certainly, without objection.
Senator Fitzgerald. Thank you.
[The prepared statement of Senator Fitzgerald appears as a
submission for the record.]
Senator Cornyn. Thank you very much, Senator Fitzgerald.
Senator Durbin, would you care to make any remarks at this
time?
Senator Durbin. Very briefly.
PRESENTATION OF MARK R. FILIP, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS, BY HON. RICHARD J. DURBIN, A
U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Chairman Cornyn, and I want to
thank my colleague, Senator Fitzgerald.
I think what we have been able to achieve in Illinois
despite our obvious political differences may be a benchmark or
guide for some other States. We really have come up with
bipartisan nominees. We have a process where the Senator from
the President's party appoints three, and then the other
Senator appoints the fourth, and we have not run into any
difficulties with this all the way through, and we have I think
come up with some outstanding nominees who have not had any
problem once they have arrived in the Senate. Circuit level,
District Court Level. It can be done, ladies and gentlemen,
despite all of the things that you hear to the contrary. And
Mark Filip is a good illustration of how it can be done. I
commend Senator Fitzgerald for nominating him.
I had a chance to meet with Mark in my office in Chicago.
We sat down and talked about his background. I was nervous
about some of his background and wondered is this person going
to be moderate, centrist and the like, and I came away with a
very positive impression.
Mr. Chairman, I think one of the most important things that
I read was from an attorney who had been a defense counsel when
Mark was a prosecutor, and we asked him what he thought about
Mark Filip as a judge. He said as follows: ``One of the
fairest, most even-keeled, thoughtful prosecutors I've gone up
against. Would make a wonderful judge because he understands
the human condition and the principle that everyone deserves
their day in court. Could you ask for more?''
I think that is the kind of fitting testimony from the
other side in a case from a counsel who really understands that
you can be fair and balanced, and Mark Filip has been.
I only found one question mark in his entire background,
and it was a Law Review article that he had written back in law
school in his callow youth relative to legislative history and
how it was to be used, and we talked about it at length and
Mark Filip sent me a letter explaining his thoughts on that
issue. I would like to ask unanimous consent, Mr. Chairman, if
that letter that Mr. Filip sent me might be made part of this
permanent record.
Senator Cornyn. Certainly, without objection.
Senator Durbin. I stand in full support of his nomination,
and he is going to be a great District Court Judge. Thank you.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Senator Cornyn. Thank you very much, Senator Durbin, and I
would like to congratulate you and Senator Fitzgerald for
working together, and hopefully we can see more of that happen
in the future, but we know that these nominations are sometimes
contentious, but we can always hope.
We have a vote posted on the confirmation of Governor
Leavitt for Administrator of the Environmental Protection
Agency, so we are going to recess briefly so we can go vote,
and we will come immediately back here. Senator Hatch, Chairman
of the Committee, will then take the helm at that time.
Senator Leahy. Mr. Chairman?
Senator Cornyn. Senator Leahy.
Senator Leahy. Mr. Chairman, before we leave I should note,
so there is no confusion, the Roger Gregory seat, that was one
of the unallocated seats and it did go to Virginia. It was
after President Clinton had tried for years to nominate people
from North Carolina, and one Senator objected so they did not
get hearings. He then nominated Roger Gregory for the
unallocated seat, and he was strongly supported by both Senator
Allen and Senator Warner.
Senator Cornyn. Thank you, Senator Leahy.
We will stand in recess temporarily until after the vote,
and Senator Hatch will then bring us back into session.
[Recess 10:40 a.m. to 11:17 a.m.]
Chairman Hatch. As I understand it, we may be able to
resolve the Filip matter in a short period of time, so why do
we not do that?
Do either of you have any questions for Mr. Filip? Mr.
Filip, why do you not take the chair and let us--anybody have
any questions?
Senator Durbin. Mr. Chairman, I know that you were detained
with other Committee hearings, but Senator Fitzgerald and I
have both expressed our strong support of this nominee. He has
an extraordinary background. One of the things we were hoping,
that his wife and father-in-law would be able to join the rest
of his family here at this moment for the hearing. I thank you,
Mr. Chairman, for allowing him to be considered at this moment.
I do not know if he would like to introduce his family and
perhaps make a short statement, but that would be appropriate I
think at this moment.
STATEMENT OF MARK R. FILIP, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS
Mr. Filip. Thank you very much, Senator, and thank you, Mr.
Chairman. It is my great honor and pleasure to appear before
you this morning, and I want to thank Senator Fitzgerald for
initially recommending me, and the President for nominating me,
and in particular thank both Senator Fitzgerald and Senator
Durbin for the courtesy and thorough job that they did in
evaluating my background, and the great sense of fairness that
they showed toward me, and I am very grateful.
I would like to also introduce if I might, please, my
family. First my wife Beth.
Chairman Hatch. Happy to have you here.
Mr. Filip. Who I had the good fortune to meet when we were
both back in college age, and it has definitely been the best
thing that has ever happened to me, and has been a great
partner in--for my in my life, and has done a wonderful job
with our four sons.
I would like to also, please, introduce my mother and
father, Rose Filip and Bob Filip.
Chairman Hatch. We are delighted to have you here. You have
to be very proud of your son.
Mr. Filip. And also my father-in-law, Terry Moritz.
Chairman Hatch. We are glad to have you here as well.
Mr. Filip. We are very blessed all four grandparents living
right in the area where we live, and our kids spend an awful
lot of time with each of them, and it is really a great fortune
for them and for everyone.
So thank you all very much. I'm happy to answer any
questions if there are any, and if not, I am very, very
grateful for all the kindness and courtesy everyone has shown
all of us.
[The biographical information of Mr. Filip follows:]
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Chairman Hatch. I know quite a bit about you, Mr. Filip,
and I have no questions.
Does anybody have any questions?
Senator Durbin. Mr. Chairman, I was fortunate enough to
have a lengthy conversation with Mr. Filip in my office. We had
gone through a number of questions, and I am totally satisfied
he is going to be an excellent Federal judge, and I support his
nomination.
Chairman Hatch. Well, that is an excellent tribute to you,
Mr. Filip. So with that, we will excuse you and your family,
and we will put you on the next markup we can get you on, and
hopefully we will put you out and get you confirmed before the
end of this year. I am sure with the help of both of your
Senators we will have a good opportunity to do that.
Mr. Filip. Thank you, sir, very much.
Chairman Hatch. Thank you all for being here. Glad to meet
all of you.
Mr. Allen, we will put you in the chair. I apologize for
not being able to be here right at the beginning because I had
my Governor Leavitt up for the EPA Administrator on the floor,
and I had to make a set of remarks and also watch the final
remarks of others today. So I apologize to you.
I have known you for a long time, think a great deal of
you.
We will turn to Senator Feingold.
Senator Feingold. Thank you. Congratulations on your
appointment.
Mr. Allen. Thank you, Senator.
Senator Feingold. Mr. Allen, you have been quite involved
in setting our Government--
Chairman Hatch. Excuse me, Senator. We need to swear Mr.
Allen in.
Do you solemnly swear to tell the truth, the whole truth
and nothing but the truth, so help you God?
STATEMENT OF CLAUDE A. ALLEN, NOMINEE TO BE CIRCUIT JUDGE FOR
THE FOURTH CIRCUIT
Mr. Allen. I do.
Chairman Hatch. Go ahead.
Senator Feingold. Mr. Allen, you have been quite involved
in setting our Government's HIV/AIDS policy, as I understand
it. Is that right?
Mr. Allen. That is correct, Senator.
Senator Feingold. In January of this year you were quoted
in a story on National Public Radio saying the following about
Uganda, a country in sub-Saharan Africa that has been, as we
all know, hit very hard by this terrible disease. You said,
quote, ``It's the only country in Africa that has had a
positive increase in its life expectancy, and that's because
they focused on young people remaining abstinent until they
were married. And that in itself translated into a reduce
infection rate that allowed that country to have its HIV rate
drop dramatically over the course of 5 or 6 years.'' End of
quote.
I certainly agree that there is a lot to be learned from
the Ugandan example, but I also want to quote you something
that Sophia Mukasa Monico, a leading Ugandan AIDS activist,
formerly of TASO, the ground-breaking AIDS support
organization, what she told me at a Foreign Relations Committee
hearing in May. She said, quote, ``As a Ugandan I am deeply
concerned when I hear people taking a single element of our
successful national program like abstinence out of context and
ascribe all achievements to that one element. All three
elements must be implemented together for prevention to work,''
unquote.
By all three we obviously know she was talking about the
ABCs of AIDS prevention: abstinence, being faithful to one
partner, and using a condom. In fact, she went on to talk about
elements of Ugandan effort even beyond the ABCs, such as
empowering girls and women in Ugandan society as additional
important elements of a program to prevent the spread of HIV/
AIDS.
So let me ask you this: why did you suggest that only one
intervention, abstinence until marriage programs for youth, was
responsible for Uganda's prevention success? And do you agree
that if the government's focus is solely on abstinence it would
be less effective in preventing HIV/AIDS than if it implements
a more comprehensive prevention strategy that includes but is
not limited to abstinence?
Mr. Allen. Senator, thank you for your interest in the area
of HIV/AIDS. It is something that I have spent much of my
career focusing on, and specifically the efforts in Uganda.
Sir, I believe that the NPR interview you're referring to,
I have always mentioned in my discussions of Uganda their
complete model, which includes A, B and C, the A clearly
focusing on abstinence for young people, which has actually
reduced their HIV infection rate among young women by more than
50 percent. I focus on the B, which means being faithful to
one's companions, one's relationships, and that also has
produced in Uganda a very unique situation, in fact showing the
HIV infection rate reduced among men because it reduced their
partners. And also the importance of the C, sir, and the C
being the use of condoms for the prevention of HIV/AIDS,
recognizing that they're highly effective in preventing the
transmission of HIV, but must less effective in terms of
preventing the transmission of other sexually-transmitted
diseases.
I sort of stick with what President Museveni and First Lady
Museveni have always talked about in terms of the Ugandan
experience, and it is one that is comprehensive. It is one that
recognizes the importance of using traditional and important
cultural aspects of society to address the growing need, and
try to stem the tide of HIV in Africa and elsewhere.
Senator Feingold. I appreciate your recognition of all
these elements, and so let me just continue. One of the
concerns about this issue is whether there would be an attempt
by some to manipulate or politicize the issue, and I think we
would all agree, given how awful this epidemic is, the stakes
are too high to let that happen. So I am concerned about your
comments on this subject that could appear to misrepresent the
facts, and I want to ask you about another quote.
You testified at a House hearing in March on the
administration's AIDS' policy in Africa as follows. Quote: ``I
know you'll be hearing later this morning about Uganda and
their successful use of the ABC program of prevention. The A is
for abstinence for young people. The B is for being faithful in
mutually monogamous relationships, and the C is for condom use
in high-risk populations with the knowledge that condoms are
highly effective in preventing HIV infection and gonorrhea in
men, but not as effective with all sexually-transmitted
diseases, which is related to what you just said.'' End of
quote.
I know you have traveled to Uganda and you have significant
experience in this area, so I assume you did choose these words
carefully. Is it your view that the C in Uganda's ABC program
refers to condom use by high-risk populations but not by the
general population of sexually active adults and teens?
Mr. Allen. Senator, I believe the statement you're
referring to in which--certainly I have focused on the ABCs in
the Uganda model. The Uganda model is much more comprehensive.
It focuses on condom use across a broad spectrum, but their
focus has been on high-risk populations, namely populations in
which you have transients along the borders where there are
wars that are taking place. You find that soldiers will come
back. In areas where there is poverty and drought, you find
that oftentimes women, in seeking to provide for themselves and
their families, will resort to commercial sex work. And so the
C, it focuses not just on the high-risk population, but that is
where the concentration has been. It focuses across the board
for those who engage in sexual activity with not having a
partner that they have been faithful to, and without knowing
the status of the other individual.
Senator Feingold. Fair enough. But with regard to Uganda
and then in general, you would not limit the use of condom use
in AIDS prevention just to the high-risk population?
Mr. Allen. Senator, that's correct. I would not limit the
use to high-risk populations, but I would also add the
information to understand the effectiveness of condoms in those
populations.
Senator Feingold. Fair enough, and I do think the quote
that I read could lead to the misleading impression that it was
more narrow, and I appreciate the fact that you have clarified
that and conceded the greater significance of the C part of the
ABC, that it is not just limited to one population.
Mr. Allen. Thank you, Senator.
Senator Feingold. Let me move to another question related
to HIV/AIDS. When HHS Secretary Tommy Thompson spoke at the
Global AIDS Conference in Barcelona in 2002, he was met with
protest over the U.S. policy on AIDS from both U.S. and foreign
groups. Reportedly, as a result of those protests, Indiana
Congressman Mark Souder demanded an audit of several well-
respected federally funded AIDS service organizations,
including AIDS Project Los Angeles, New York Gay Men's Health
Crisis on the grounds that some of their members had
participated in the demonstration.
When you were asked about the audit, it was reported that
you stated that the audits were routine, but you also said that
protestors should, quote, ``think twice before preventing a
cabinet-level official from bringing a message of hope to an
international forum,'' unquote.
Sir, did you have any role at all in ordering these audits,
and were the audits actually routine, or were they initiated as
a result of the protests and Representative Souder's request?
Mr. Allen. Senator, let me thank you for the question again
about what happened in Barcelona at the International AIDS
Conference. It was a conference that brought the world together
to talk about trying to find solutions to a disease that is
devastating the world. And I was there. I was present at that
time. And, sir, I think the context in which you're referring
to--there have been several aspects of audits. There have been
several aspects of department review of programs. What I was
referring to specifically there are several things, and I want
to kind of unpack your question because it covers a number of
issues.
First, the Department, as a routine basis, reviews the
funds from various programs. We have conducted a review of
funds in terms of bioterrorism. We do that across the board in
terms of the Ryan White program, HIV programs, as a part of our
responsibility. Those audits were ongoing. They were activities
the Inspector General had been undertaking in their annual plan
for reviewing programs and how they use funds. That is one
aspect of it.
In terms specifically of audits that were requested, we
received a letter indeed at the Department, the Inspector
General received a letter requesting that specific audits be
done. That letter requested that--the Inspector General
undertook those reviews consistent with her obligations and
responding to Congressional inquiries.
And lastly, in terms of my statement at the Barcelona
conference, what I was referring to there was very specific.
When you have a high-ranking U.S. official at an international
conference, it is very inappropriate to prevent the individual
from bringing what we believe is a true message of hope. This
administration has provided millions of dollars, in fact the
largest contributor of any nation, to try to address and
redress HIV and its impact around the world, and to prevent
Secretary Thompson, a man of great compassion and great passion
about this issue from speaking at an international conference,
certainly brought the wrong attention to this country and our
efforts. My thoughts, however, and my comments were not means
as a threat. I did not order anything in terms of an audit and
did not participate in any audit activities.
Senator Feingold. So you did not order the audit as
requested by Representative Souder; is that right?
Mr. Allen. No, sir. That was a request that was made
directly to, I believe, the Secretary and the Inspector
General.
Senator Feingold. I certainly agree with your
characterization of Secretary Thompson. We are very proud of
him in the State of Wisconsin. But let me just ask you
generally, do you think it is appropriate for a Government
official to threaten Government action against critics who are
exercising their right to free speech?
Mr. Allen. Not at all. I think threats of any kind--I think
a Government official should deal with all individuals,
organizations, with the utmost respect, allowing them to
express their views. And in fact, in that very situation,
Senator, not only even after these groups prevented the
Secretary from speaking at an international forum, we met with
them. We pulled them into a room together to discuss ways that
we could work together, both internationally, and most
importantly domestically, because HIV/AIDS is devastating our
country as well. There are women, children and men throughout
this country who are dying of this disease, particularly in the
African-American community. We know that black women, Latino
women, are 82 percent of the cases of HIV/AIDS in this country.
72 percent of the cases of children with HIV/AIDS are African-
American and Latinos. And so when we speak, we must speak
together.
But we will have differences, and we need to resolve those
differences in an amicable way. So I in no way believe that
Government officials should threaten, but rather we should use
the power of our office to persuade and to win over friends,
and that's what I've tried to do throughout my career, and
that's what I would try to do should this Committee and the
Senate afford me the opportunity to be a judge on the Fourth
Circuit, United States Court of Appeals.
Senator Feingold. Thank you, Mr. Allen.
Thank you, Mr. Chairman, for the extra time.
Chairman Hatch. Thank you, Senator. We appreciate it. We
had set that clock at 7 minutes so I gave you until 10 minutes.
We will give the same amount of time to Senator Durbin.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman.
Mr. Allen, thank you for joining us today.
Mr. Chairman, I would like at this point, with your
permission, to insert into the record letters that have been
received in relation to the nomination of Mr. Allen to the
Fourth Circuit Court of Appeals.
Chairman Hatch. Without objection, they will be put in the
record.
Senator Durbin. Thank you, Mr. Chairman.
I would like to ask Mr. Allen about one in particular. I
believe that Mrs. Michele Finn is in the audience today, is
she? Yes.
Mr. Allen, we all read the headlines today in Florida about
the Schiavo case, and it brings to mind the terrible situation
which faces families when it comes to the last--the end of
life, the last moments of life. We try to construct ways to
deal with this humanely and sensibly, and it is my
understanding that in Mrs. Finn's case that in 1996, if I am
not mistaken, her husband was involved in a very serious
automobile accident, and as a result was left in a permanent
vegetative state. He had left express instructions with Mrs.
Finn that his life was not to be continued by extraordinary
means. It is my understanding that beyond the treating
physician, Mrs. Finn found two other doctors who gave her the
sad news that there was no hope that her husband would recover.
Under Virginia law she was given the authority, as the legal
guardian of her husband, to make this sad and painful decision
about withdrawing artificial means of life support. It is true
that there were some members of her family who did not agree
with that decision, but she felt that she was abiding by her
husband's wishes, complying with the law, and making this
painful decision that had to be made.
Her letter tells a very troubling story about your role in
this emotional family decision. It tells of your resistance to
her making this decision. It tells of actions taken by you in
your capacity with the State of Virginia to send investigators
to the nursing home where her husband was being cared for in an
effort to try to discredit some of the things that she had said
publicly about his treatment and his prospects of recovery.
This dragged on, if I am not mistaken, for almost a full month,
when it had reached a point where everyone had agreed there was
no place to turn.
Mr. Allen, I read this, and I am curious as to what was
motivating you to inject yourself personally into this painful
family decision. Ultimately the Virginia Supreme Court stopped
your efforts and said, no, she has the right under the law to
make this family decisions. Some have suggested it was part of
some political agenda, and I hope that was not the case. But
Mrs. Finn has come forward with the letter today and really
questions whether, based on her experience with you under that
most painful situation, that you have what it takes to take on
this critical Federal Circuit judgeship.
Why did you not follow Virginia law, allow Mrs. Finn to
make this family decision, stand by the doctors who were
treating her poor husband? Why did you feel obligated to drag
this out with your own investigations and your own personal
involvement?
Mr. Allen. Senator, I thank you for the question. I believe
that end-of-life decisions are often very difficult to make for
families, are very painful to make. My role in Virginia as
Secretary of Health and Human Resources, my obligation under
the laws of Virginia and under the U.S. laws in terms of our
dealings with the Centers for Medicare and Medicaid Services as
it dealt with patients who were in nursing home facilities was
simply ministerial. My role in this situation was very minimal.
In fact, I received a phone call, as I would normally do in my
Department, that said that there was a patient who was in a
nursing home, considered in a persistent vegetative state, and
there was a concern that this patient's rights were being
denied. I took the steps that were required by me to instruct
the agency that oversees our nursing homes to handle it in a
routine manner.
That was about the extent of my involvement until I got a
call 1 day from Mrs. Finn, Michele Finn, who requested that I
instruct the Governor and requested of the Governor that he not
get involved in the case. My role in the Hugh Finn situation in
Virginia was very minimal. In fact, sir, I do not know the
basis upon which Mrs. Finn forms her opinions of me, but I will
assure you that in this situation my role was very minimal, in
simply passing information to the Governor for his
consideration. At that point my role ended. I was not involved
in the litigation. I was not involved in any of the proceedings
that took place in this matter.
And with regards to the Supreme Court, Senator, I want to
draw your attention to--it was a unanimous decision of the
Supreme Court that held that Mrs. Finn had the right under the
Health Care Decisions Act to make the decision that she did.
That Supreme Court also noted, however, that it was important
and it was right for the Governor to seek redress in the courts
because the Health Care Decisions Act of Virginia as unclear in
the matter.
Senator Durbin. Let me ask you--
Mr. Allen. If I may continue?
Senator Durbin. Sure.
Mr. Allen. As a result of that, the Supreme Court of
Virginia said that the Governor took the right steps that he
felt his obligation was to the citizens of the Commonwealth, to
protect them regardless of their circumstances, and that's what
the Governor did.
So not withstanding that the Court concluded that indeed
the Health Care Decisions Act allowed Mrs. Finn to take the
action she did, it noted that the Governor acted rightfully in
executing his responsibilities as the Chief Executive Officer
of the State.
Senator Durbin. If I might ask you this. You have described
your role as ministerial. My understanding of that word is that
it suggests relatively little involvement on your part, merely
following the administrative procedures as set down. So you
were saying that you had no personal role in the decision by
the Commonwealth of Virginia to intervene in this case to block
Michele Finn from deciding to take her husband off life
support?
Mr. Allen. Yes, Senator, That is correct.
Senator Durbin. You had no role in that. Did you have any
role in sending nurses to investigate false claims about her
late husband's treatment at the nursing home?
Mr. Allen. I did not, sir. That would be the role of the
Director for the Medical Assistance Services Department of the
Commonwealth of Virginia, which was an agency that reported to
me, but their activities were routine in sending out--when a
patient in Virginia, whether it be in a nursing home, an adult
care facility, a facility under which the Centers for Medicare
and Medicaid Services expends funds, we have an obligation to
investigate, and that agency did that.
Senator Durbin. And you never personally contacted any
family members of the Finn family to persuade them to keep
their appeal open on this case?
Mr. Allen. No, sir. My contact with family members came as
a result of family members contacting my office, the Governor's
office, could not reach the Governor's office--
Senator Durbin. You never tried to persuade them to keep
their appeal open when Michele Finn had made her decision?
Mr. Allen. Senator, I did not, no.
Senator Durbin. Let me ask you a couple other questions if
I might. You worked for Senator Helms and were involved in a
controversial campaign of his in 1984. You made some statements
during the course of that campaign that I would like for you to
explain to me if you might. One of them related to homosexuals.
Less than a month before the election you were quoted by the
Greensboro News Record that Senator Helms' opponent, Governor
Hunt, was vulnerable because of his links, quote, ``with the
queers,'' close quote. You went on to say, quote, ``We could
expound''--referring to the Hunt campaign--quote, ``We could
expound on and undertake a campaign against Jim Hunt's
connections with the homosexuals, the labor union connection,
the radical feminist connection, the socialist connection.''
And then you went on to say, ``We could go back and do the same
thing with the queers.''
Could you explain to me what you meant by that remark?
Mr. Allen. Senator, I do. I remember that very distinctly,
that situation, because I believe if you read in that same
article, you will read further, my response to that when the
reporter stated that I used that term, used the word
``queers.'' Again, 20 years ago, when I was the press secretary
in the Helms campaign, that reported called and was asking
questions about, and actually was making statements about what
was being said about Senator Helms and his supporters
throughout the campaign. I think there were words used like
``fanatic,'' ``radical,'' any kind of pejorative words that
could be used. My statement at that time was, ``This is
ridiculous. We should not be engaging in any ad hominem
attacks.''
And because I had a relationship with this reporter
throughout that time, I shared with him that this is silly. I
said, I have been on the campaign for 2 years and I have seen a
lot of very strange, abnormal, out-of-the-ordinary individuals
and groups working across the campaign, sir. And in fact I did
use the word ``queer.'' I used the word ``queer'' in my mind, I
think at the time in the dictionary it was described as odd,
out-of-the-ordinary, unusual. I did not use the word as a
pejorative. I did not use the word to denigrate any individual
or any group. Again, 20 years ago that was a statement that I
made.
Senator Durbin. Let me ask you this question. In a follow-
up interview with the Dome, you stated that the remark was
quote, ``an indiscretion,'' close quote. Now, that seems
inconsistent with what you have just said, that you just were
referring to odd people. So what is it?
Mr. Allen. Senator, if you go back again and look at the
exact article that you're referring to that you have before
you, in that article you will find that when the reporter
called me back to say, ``Did you know that you used the word
`queer'?'' I was shocked by it and in fact--
Senator Durbin. Why were--
Mr. Allen. Sir, if I may--
Senator Durbin. Why were you shocked if it just meant an
odd person?
Mr. Allen. Because he interpreted it a different way, and
when he came back to me he said, ``Did you know you used this
word?'' And in fact, in the article that sits before you that
you're reading from, you will see in that exact article, before
it even went to press, I extended an apology if anybody was
offended by the word that I used.
Senator Durbin. Do you think Federal Judges today should
use the word ``queer'' in normal conversation in relation to a
group of people in America?
Mr. Allen. Senator, again, I did not use the word ``queer''
in relation to a group of American--and America.
Senator Durbin. Do you think Federal Judges should use the
word ``queers'' just--
Mr. Allen. Senator, I don't believe that we should use
words that are pejorative in nature, that denigrate any
individual.
Senator Durbin. Do you think that is pejorative and
denigrates a person, the word ``queer?''
Mr. Allen. In the terms that you're--the connotation that
you're giving to it, Senator, I believe that is a pejorative,
and it's a word that should not be used. It's a word that I do
not use. It's a word that as a judge I think would be
inappropriate to use to characterize an individual or group.
Senator Durbin. Mr. Allen, what should we teach our
children about those who are homosexual and lesbian, people of
different sexual orientation?
Mr. Allen. Senator, I don't know how to answer that
question, but I can tell you what I teach my children.
Senator Durbin. That is all I am asking.
Mr. Allen. And my son is sitting here with me today. I
brought him here for the very reason that I believe that we
should be teaching our children that they should be part of a
society that has treated me with great kindness, that has
afforded me tremendous opportunities to sit here before you
today to be considered to be a judge. I think I teach my
children, my wife and I, to have respect and treat people with
the very same dignity that they want to be treated with.
You see, my son knows his heritage. He knows that his
great-grandfather was one of 25 children, lived to be 114 years
old, the first child in his family not to be born a slave. My
son knows his heritage, and that is what we teach our children,
is how to respect and afford every person the equal dignity
that they deserve.
Senator Durbin. Do you understand how some people in
America might take your use of this word ``queers'' as being
negative to denigrate them and not respectful?
Mr. Allen. Senator, absolutely, and that is the exact
reason why the time that I used the word, I sought to correct
the record so that it would not be understood to denigrate any
individual or any group.
Senator Durbin. So then let's talk about another, if I
might, Mr. Chairman, if I might ask you about the Martin Luther
King holiday. Senator Helms, whom you worked for at the time,
initiated a filibuster to stop the Martin Luther King holiday.
What was your opinion of that filibuster and Dr. Martin Luther
King's contribution to America?
Mr. Allen. Senator, I appreciate your question regarding
Dr. Martin Luther King. He has been a hero for me and my
family, my generation. In fact, I believe that, again, if you
look back at the record, you will see during the time that that
holiday was being decided and voted on, it was the most
difficult day for me in my life, because here was someone that
I had grown up respecting, deeply respecting for his
contribution to American society, for fighting for the civil
rights not just of black people in this country but of all
people in this country, and, in fact, it was such a difficult
time that I left. I left the campaign that day because I was
deeply impacted by what was going on here in Washington.
And so, sir, my view of that day, my view of what was going
on was one that was deeply conflicting for me because at the
time that I was working there, I had a great respect for Dr.
Martin Luther King and continue to have an abiding respect for
him and his work and look forward to always have the
opportunity to teach my children about what he has taught
America and the world about peace, about resolving conflict
peacefully, and about the importance of the dignity of
individuals.
Senator Durbin. May I call your attention to the News and
Observer, Raleigh, North Carolina, December 25th--it is hard to
read, but it appears to be 1983. And here is what the reporter
said. The reporter's name, Rob Christiansen. This is an article
about your relationship with Senator Helms and his agenda.
``Allen said he shared those reservations about the King
holiday and believes Helms was unfairly criticized. Allen said
there is ample documentation that key King advisers were
members of the American Communist Party. Allen said there are
other prominent blacks more deserving of a national holiday,
such as track star Jesse Owens, educator George Washington
Carver, and abolitionist Frederick Douglass.''
Did you say those things?
Mr. Allen. Senator, I do not see--I don't have the article
before me that you're referring to, but I'd note that
particularly in the article that you're referring, I don't
think it's quoting me as saying anything to that effect. But
let me make sure that I clarify for the record what my view was
and is about the Martin Luther King holiday and about the other
individuals that you mention there.
I believe that Dr. King deserved a holiday. I believe that
Dr. King has worked tirelessly in his lifetime for this
country. I believe that the Martin Luther King, Jr., Center for
Creative Non-Violence continues that work today. That's why
I've worked with them in many areas.
In terms of Jesse Owens and others, I assume--I believe
that my comment would be that there are many African Americans,
including Jesse Owens, including others, who have contributed
not just to African-American culture, sir, but to American
culture, and that those individuals would be deserving of
attention as well. So, sir, I do not have the ability because I
don't have the context before me--
Senator Durbin. If I could ask one last question, Mr.
Chairman, this will be the last in this round.
Do you still believe that key advisers to Dr. Martin Luther
King were members of the American Communist Party?
Mr. Allen. Senator, I believe that the factual record
indicates that there were associates of Dr. Martin Luther King
who were members of the American Communist Party. However,
notwithstanding that, that says nothing about the contribution
that Dr. King has made to our society. We know that during that
time there were people on all sides and many people in this
country who were members of the American Communist Party. But
that does not necessarily mean that Dr. King was.
Chairman Hatch. Thank you, Mr. Allen. Just one question,
and I want to turn to Senator Sessions because he has to
preside over the floor and would like to say a few things or
ask a few questions.
With regard to the use of that term, if I interpreted you
correctly, you are saying by today's standards that is a bad
term under all circumstances.
Mr. Allen. I would say that, yes, sir.
Chairman Hatch. Twenty years ago, you did not mean it that
way.
Mr. Allen. That's correct, Senator. I did not.
Chairman Hatch. You clarified that in the article--
Mr. Allen. I clarified that.
Chairman Hatch. --or the interview whether it was--whether
he put all of your remarks in the article or not, you clarified
it?
Mr. Allen. That's correct, Senator.
Chairman Hatch. That is what I got out of all that, and I
agree, today it would be a very pejorative term. And to many
back then it would be. But that is not the way you meant it.
Mr. Allen. That's correct, Senator.
Chairman Hatch. Let me turn to Senator Sessions, and then I
would like to ask some questions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. I got to know
Secretary Allen when we had a problem in Alabama with health
care in the rural areas of the State, African-American majority
in many of the counties, and the health care system that was
working there was not working. And there was concern over the
quality of health care and financial management and some
decisions had to be made. And we were concerned as to whether
or not in making some changes we would have periods of time in
which there would be no health care in the region, that people
who were depending on those clinics wouldn't get health care.
Now, I asked you to help. You said you would. You said you
would come to Alabama. You came and spent 2 days, and we
traveled through towns of 100 and 250 and small towns, and we
visited clinics and we talked to people. And you made a
commitment that we would not see a degradation of health care,
and I want to thank you for that personal commitment to poor
people in Alabama who had no, I guess, power to claim or demand
anything, but you responded. Thank you for that.
Mr. Allen. Thank you, Senator. It was a privilege to travel
with you during that time.
Senator Sessions. And we fixed the problem, I think.
Mr. Allen. Indeed we did, and that's part of what I've
tried to make my career in the executive branch, sir, doing, is
trying to solve problems, ensure that people of all
backgrounds, regardless of race, regardless of ability to pay,
receive quality health care. And, Senator, your leadership in
that and partnership with the executive branch to accomplish
that was a tremendous opportunity and I thank you for it.
Senator Sessions. Well, thank you. I don't usually have the
Principal Deputy Secretary, Tommy Thompson's right-hand man,
saying, ``I will leave Washington and come down and travel with
you and see firsthand this problem,'' and that was something I
really appreciated and will not forget.
I just want to say, with regard to your background, I think
it is extraordinary. You have State, local, and Federal
experience. You have served on the Foreign Relations Committee
staff here, as a press secretary in one of the most
contentious, toughest campaigns America has seen, and you were
young and a press secretary then. That was before you went to
law school, was it not?
Mr. Allen. That is indeed correct, Senator.
Senator Sessions. I guess they teach you to be more careful
with your language when you go to law school. As a matter of
fact, I had a little meeting with my staff yesterday about--I
said getting speeches and remarks past me is difficult because
I have been to law school and they teach you to be so
persnickety about what you say.
But I am looking at your background. Here you went to the
University of North Carolina, one of the great universities in
America, and got your B.A. there. You went on in 1990, later,
after working in Washington, and got your law degree at Duke,
one of the great law schools in America, got your LL.M. in
international and comparative law at Duke University. And I
think that is a tremendous academic background. You clerked on
a court of appeals, which is--would you explain to us, please,
Mr. Allen, how when you clerk on a court of appeals, what kind
of experience that gives you and insight that gives you to be a
court of appeals judge?
Mr. Allen. Thank you, Senator, for the opportunity to do
so. The D.C. Circuit Court of Appeals is the U.S. Federal court
of appeals that sits under the Supreme Court that handles the
D.C. Circuit. The cases that come before that court are some of
the most complex in the country, in large part because it is
largely the administrative docket. It handles the Federal
Energy Regulatory Commission, all the agency appeals that would
come there, and so it has a heavy administrative docket that I
had worked on for Hon. David B. Sentelle.
We also would handle your civil cases, your criminal cases,
and so it was a broad exposure to the many opportunities
addressing complex litigation questions that came before the
court.
Senator Sessions. And that judge you worked for was a court
of appeals judge, the same position you are being nominated
for.
Mr. Allen. That is correct.
Senator Sessions. And you sat basically at his right hand,
heard the arguments, helped prepare briefs, do research, and
were familiar with the entire panoply of issues that would come
before you as a circuit judge.
Mr. Allen. That is correct, Senator.
Senator Sessions. And also let me point out for the
record--and I think most lawyers know--being selected as a
clerk for a court of appeals judge is a great honor. It is hard
enough to be a clerk for a Federal district judge, but to be
selected as a clerk for a court of appeals judge says a great
deal about your legal ability, your law school record, your
integrity and work ethic, or you wouldn't have been selected.
Maybe you don't want to comment on that, but very, very few
lawyers are selected to be clerks for the courts of appeals in
the United States and even fewer for the Supreme Court. And not
many get selected as clerks for Federal district judges because
all of those are premier legal appointments for top graduates
of top law schools.
Then you went on with Baker and Botts, an attorney for
them, which is one of the great law firms, I guess, in the
world. You were counsel to the Office of Attorney General in
Virginia, a Deputy Attorney General. When I was Attorney
General of Alabama, my deputies were the key people that I
depended on. They did the legal work in the office. They
briefed me, and I didn't put somebody in as a deputy that I
didn't trust.
What kind of matters did you have under your portfolio
there, Mr. Allen?
Mr. Allen. Thank you, Senator. In the Attorney General's
Office, as the deputy I headed the civil litigation division,
which meant that I had a staff of 75 attorneys and staff who
handled all the civil matters for the Commonwealth of Virginia.
We handled real estate cases, employment cases. We handled the
energy utility cases, consumer protection issues, and other
civil litigation issues. And so it was the largest division of
the Office of the Attorney General that I was charged with
overseeing and working in those cases.
We also handled a lot of elections law issues and
reapportionment cases, cases that would impact the rights and
obligations of the Commonwealth of Virginia.
Senator Sessions. Well, I think that is an important
position. There is no doubt about it. The civil litigation
involved millions and millions of dollars, and the experience
you get as an Attorney General is important for a court of
appeals judge, in my view, because so many of the issues that
bubble up to the courts of appeal that have such impact involve
the States and governmental agencies. So that is a good
background. In addition to your private practice, you were
Secretary of Health and Human Resources in the Office of
Governor of Virginia, in his Cabinet, and Deputy Secretary,
really the principal senior deputy, for the U.S. Department of
Health and Human Services serving at the right hand of former
Governor and now Secretary Tommy Thompson.
I would just say one thing about--and I have got to run and
preside in the Senate. I wish I could be with you longer
because I really respect you and I appreciate your leadership.
When Mr. Gregory was appointed by President Clinton to the
Fourth Circuit, Senator Helms was not happy about that. He
thought it was a North Carolina seat. They had gone to zero
judges from North Carolina, as I recall. It is zero now, maybe,
unless they count you. You could claim two States, perhaps. So
we went all through that. But everybody knew that the President
had no legal requirement to appoint anybody from a State, and
judges on circuit courts of appeals do not represent States.
They represent the United States of America, is who they
represent. They speak for the Constitution and the Federal
laws, and, in fact, we have created Federal courts, as the
Constitution did, to try to make sure that you do not have home
cooking, that they represent a fair group of referees that are
not part of the local milieu that wouldn't give people from
different States an unfair ruling--to give a fair ruling.
So it is not as if you are there to represent a State, but
as part of history and tradition, usually judges come from each
State on a proportional basis, and that is how that goes. The
fact is we are out of sync in the Fourth Circuit. Virginia is
underrepresented in the court, and so is North Carolina. And I
think this is not an extreme thing by the President. He
discussed that. He wrote letters about it explaining what he
was doing, Mr. Gonzales did, and I hope that our Senators from
Maryland will understand that this is not an affront to
Maryland, but it is a situation in which the President has some
leeway to appoint from what States he wants, and he tries to
respect the interest of various States, but ultimately his
appointment, other than that one has to be from each State--
that is by law. I just think that we need to work our way
through this. I respect their concerns, but I really do believe
Maryland is not going to get shortchanged in it. They were
certainly supportive, as I recall, of Mr. Gregory when
President Clinton nominated him in what was perceived to be a
North Carolina seat and supported him when President Bush
nominated him.
Thank you, Mr. Chairman. I hate to run back to the floor,
but I am due to preside.
Chairman Hatch. Well, thank you, Senator. We appreciate it.
Before I turn to Senator Craig, let me just ask you a
couple of questions. The Hugh Finn situation was raised, and I
think we ought to set that record as clear as we can. You
received a complaint from the State representatives and from
some of Hugh Finn's family members about the care he was
receiving at the nursing home at which he was hospitalized, and
you referred those complaints to the Governor, as I understand
it. Is that right?
Mr. Allen. I referred to the Department of Medical
Assistance Service, which was the agency that was required to
undertake any investigation, but also forwarded it to the
Governor because of the significance of the case.
Chairman Hatch. Did you draft any of the Governor's briefs
in the case?
Mr. Allen. No, Mr. Chairman.
Chairman Hatch. Were you named as a defendant in Michele
Finn's motion for sanctions against the Governor's office for
its role in the case?
Mr. Allen. No, Mr. Chairman.
Chairman Hatch. Did the Virginia Supreme Court decide that
sanctions were warranted against the Governor's office for
conduct in the case?
Mr. Allen. It did not, Mr. Chairman.
Chairman Hatch. Okay. In fact, didn't the Virginia Supreme
Court specifically say that the Governor's interpretation of
the Virginia Health Care Decisions Act, which was the
controlling statute in this case, was reasonable at the time
because the court itself had not authoritatively construed the
relevant provisions of the statute?
Mr. Allen. Yes, Mr. Chairman.
Chairman Hatch. Entirely apart from the legal issue in this
case, let me just note that the material this Committee has
received indicate to me that there were serious disputes
amongst Hugh Finn's family members about how terminal his
condition was and whether his feeding tube should be removed. I
understand that the State introduced evidence that 43 percent
of patients diagnosed as being in a persistent vegetative state
are diagnosed wrongly. Is that right?
Mr. Allen. I understand that is correct, Senator.
Chairman Hatch. Is it also true that it was a serious
dispute among various family members?
Mr. Allen. That was very clear, yes, sir.
Chairman Hatch. And, further, didn't Michele Finn's sister
and mother in addition to Hugh Finn's brothers, mother, and
father plead with the Governor to get involved in this case to
save Hugh's life even after they had agreed to drop their
personal legal actions against Michele?
Mr. Allen. Yes, Mr. Chairman.
Chairman Hatch. Ed Finn, one of Hugh's brothers, wrote a
letter to the editor of the Washington Post after that
newspaper had editorialized in favor of his wife's decision to
remove Hugh's feeding tubes. Let me quote briefly from that
letter, which I think is very powerful: ``The Post said that
reason as well as the law prevailed when the courts turned away
Virginia Governor James Gilmore's attempts to block removal of
my brother's feeding tube. I often wish I had the omniscience
of the press so I could pass such judgments and know all
things. I don't. But I, nonetheless, applauded the actions of
Governor Gilmore because I believe he acted out of human
compassion. The part of my family that capitulated to the will
of Hugh's legal guardian, his wife, Michele, still does not
agree with her. We feel that she unnecessarily took a life and
took it by a method that was far from merciful.''
Finally, Governor Gilmore received the following
handwritten letter from Hugh's mother after Hugh's death by
starvation, which took 10 days, as I understand. ``I am writing
to thank you for coming forward and trying to save my son's
life. I realize it took courage on your part, and you were
always subject to ridicule. We know you did not do this for
political purposes, but only to help save a life and to help
our family. We are very grateful to you and are sorry for any
problems that this has caused you.''
Were you aware of that?
Mr. Allen. Yes, I was, sir.
Chairman Hatch. Okay. Well, I don't think it is fair to try
and find some fault on your part with regard to this very, very
sensitive and difficult set of problems.
Now, Secretary Allen, you have served in all three branches
of the Federal Government, as well as the executive branch of
the State Government. You now manage a budget of over $400
billion as Deputy Secretary of HHS. Your academic credentials
include a law degree as well as a Master of Law degree from a
very good law school, Duke University, one of the finest law
schools in the Nation.
Now, let me ask you, what would your grandfather--Grandpa
Ray you referred to--who I understand died when he was 114
years of age and was the first in his family who was not born a
slave. What would he tell us about you if he were here today
and we asked him whether you were prepared to be a Federal
appellate judge?
Mr. Allen. Mr. Chairman, I want to thank you for that
comment and thank you for acknowledging my family and its
heritage. My grandfather had a significant impact on my life.
Because of the hardships that he grew up in--he was a
sharecropper, he raised 13 children, and he didn't harbor a
hateful bone in his life, in his body. He cared about people.
He reached out to people. And my grandfather would say, ``A job
well done, my grandson.'' He would say to continue serving our
Nation and serving and giving back to those who I've received
from. And so I am very honored to be nominated by the
President, to lay my credentials for this Committee and this
body, and to have an opportunity to bring some pride to my
family, for them to be pleased to know that a young man who
grew up in this city in a two-bedroom apartment could 1 day sit
before the people of this country and serve them in a public
office and be entrusted with the opportunity to do justice for
others, I think my Granddad would be very honored and very
proud.
Chairman Hatch. I think he is, between you and me.
Now, Secretary Allen, among the many important issues you
have dealt with directly during your tenure at HHS is Project
Bio-Shield, which I understand you are working to implement.
Can you explain what that program is and the progress you and
HHS are making towards it completion?
Mr. Allen. Thank you, Mr. Chairman. Project Bio-Shield is a
result of the events of post-9/11/2001, a date that we'll all
remember in this country. As we surveyed the role of the public
health community, we surveyed and understood the preparation
that this Nation has, we realized there were some significant
gaps--significant gaps in preparing us to respond to not only
bioterrorist events but other events that impact our society
that can have a public health impact. And so Project Bio-Shield
is a multimillion-dollar initiative sponsored by the President
and supported by the Congress that is calling for the
Department to advance the research necessary to produce
antidotes, to produce vaccines, for example, to produce a next-
generation smallpox vaccine, to produce a vaccine to fight
anthrax, botulinum toxin, many agents that we don't know, or to
produce a vaccine to combat the plague, a 14th century disease
that we often think is not one that anybody would relish
contracting, but can be weaponized and used against this
country.
And, indeed, as a part of the Department, it is a privilege
to uphold the oath that I took as the Deputy Secretary, and
that was to defend the Constitution of the United States
against enemies, foreign and domestic, and that's what we
believe Project Bio-Shield would give us an opportunity to do.
And so we are grateful for the support of the Congress, the
appropriations to do that, and the National Institutes of
Health, the Food and Drug Administration, the Centers for
Disease Control, the Defense Department, and many other
partners are working on this together to try to make America a
safer place.
Chairman Hatch. Well, thank you. I will reserve and submit
questions in writing, further questions.
Senator Craig from Idaho.
STATEMENT OF HON. LARRY E. CRAIG, A U.S. SENATOR FROM THE STATE
OF IDAHO
Senator Craig. Thank you very much, Mr. Chairman.
Secretary Allen, it is enjoyable for me to sit here and get
to know you better simply by listening, because while I knew of
you, I had not had an opportunity to review your background and
your experience, your education, your training. It is broad,
extensive; for your age it is phenomenal. And I congratulate
you on your successes.
Senator Sessions a few moments ago talked about circuit
courts and why they were established. He used a unique phrase,
basically to disallow ``home cooking.'' In other words, the
guardians of the Constitution, to make sure that State courts,
in essence, or even district courts did not necessarily
misinterpret or misuse the Constitution or interpret it in a
way that it was not intended to be. So your job is an important
one. It is a critical one to our country, and I congratulate
you on your nomination.
Let me for just a few moments probe your thought processes,
your thinking, and how you might function as judge. What do you
think the most important attributes of a judge are, and in this
case, a circuit judge?
Mr. Allen. Senator Craig, thank you for the question. I
believe that it is very clear that a candidate for whether it
be the circuit court or the district court needs to be an
individual, man or woman, who has the academic preparation, has
the professional preparation to undertake a seat on the court
to which he or she was nominated, but also, must also possess
the integrity, possess the ability to listen carefully and
intently, to empathize with those who come before him or her in
the court on which they sit, but also should have a commitment
to upholding the Constitution of the United States and the laws
interpreting that Constitution by the Supreme Court or a
superior court in that case for the district court. And so
those would be some of the characteristics that I believe that
a judge for any court should possess before taking that office.
Senator Craig. Do you possess them?
Mr. Allen. Senator, I would lay my credentials before you
and allow you to be the judge of that. But I do believe that I
have prepared for such an opportunity to serve and would be
honored to do so.
Senator Craig. Probably all of us in our growing up, if you
will, look at others, use them as examples of people we would
like to be like, or certainly those within our profession that
we would like to achieve to equally. Is there a member of the
bench, living or dead, whom you admire?
Mr. Allen. Senator, I would do great injustice if I didn't
mention the judge for whom I clerked. The Honorable David B.
Sentelle, who sits on the D.C. Circuit, would be one.
I have great respect for all of the Justices of the Supreme
Court and members who serve in the judiciary.
Senator Craig. All of them?
Mr. Allen. All of them, because each--
Senator Craig. All right.
Mr. Allen. Because each individual there--
Senator Craig. I don't necessarily agree with all of them.
I might respect them, but I have got a lot of trouble with some
of them.
Mr. Allen. Exactly. I believe that while you can disagree
with them, I think we should all have a respect, a healthy
respect for the authorities over us. And those would includes
our Justices and judges who serve in this land because each of
them have had to work to come to a place where this body has
deemed them ready to serve and give back in public service. And
so, yes, I have many that I would say that I look to, but I
respect all of them for the work that they've undertaken to
achieve where they are.
Senator Craig. Say there is no clear precedent in a case
that you are reviewing and listening. To what source, then, do
you turn for guidance in rendering a decision that you may
ultimately have to make?
Mr. Allen. Senator, you would turn to the Constitution
first and foremost. That is the oath that we would take, is to
uphold and defend the Constitution. But we would also look to
the precedents of the United States Supreme Court, and in this
case would also, as I would be considered for the Fourth
Circuit Court of Appeals, I would like to circuit precedents in
that regard as well.
Senator Craig. If the Supreme Court reached a decision that
you believed was fundamentally erroneous, would you follow that
precedent or apply your own judgment to the issues of law
placed before you?
Mr. Allen. As a judge who would be serving on an
intermediary court, it would be my obligation to follow the
precedents set by the United States Supreme Court.
Senator Craig. You view that as your compass?
Mr. Allen. Absolutely.
Senator Craig. Well, we hope that the bit of a squabble
that is going on at this moment between the States of Virginia
and Maryland can be resolved. I understand how important
positions like that which you have been nominated to are to all
of us. And we are constantly reminded--I am in my State--of the
importance of the circuit and the decisions made. I am
disadvantaged, though. I reside in the Ninth Circuit, the most
dysfunctional circuit in the Nation. So our Supreme Court
Justices speak to that, and we feel very handicapped there and
are trying to resolve that and reshape it a bit. I think you
will be serving in a different circuit, but you would serve us
well in the Ninth with your background and experience.
Mr. Chairman, let me return to the questioning to you. And
I look forward to supporting you.
Chairman Hatch. Thank you so much, Senator.
Mr. Allen, I have known you for a long time. I have a lot
of respect for you and I am very proud of you and your family
and your friends who are here. I hope we can resolve these
problems. I am certainly trying, because I would like to see
you serve in this position. You are doing a great job down
there at HHS, and I respect and appreciate that you job you are
doing. I thought you did a good job in the State as well, in
the State of Virginia. So you qualify for this position, and I
will do everything I can to see that you get into this
position.
But right now, it is bollixed up because of the problems
that have been raised, but I will be working hard to try and
resolve it. How is that?
Mr. Allen. Thank you, Mr. Chairman.
Chairman Hatch. Well, since nobody else is here and
everybody has had an opportunity who wanted to ask questions,
we will recess until further notice. Thank you for being here,
and I will do my very best to get you through.
Mr. Allen. Thank you, Mr. Chairman.
Chairman Hatch. Thanks so much.
[Whereupon, at 12:17 p.m., the Committee was adjourned.]
[The biographical information of Mr. Allen follows:]
[Questions and answers and submissions for the record
follow.]
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