S. HRG.

107415

CONFIRMATION HEARING ON THE NOMINATIONS

OF RALPH F. BOYD, JR. AND ROBERT D.
McCALLUM, JR. TO BE ASSISTANT ATTORNEYS
GENERAL

HEARING
BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION

MAY 23, 2001

Serial No. J10722A

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 COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, JR., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DEWINE, Ohio DIANNE FEINSTEIN, California
JEFF SESSIONS, Alabama RUSSELL D. FEINGOLD, Wisconsin
SAM BROWNBACK, Kansas CHARLES E. SCHUMER, New York
MITCH MCCONNELL, Kentucky RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
SHARON PROST, Chief Counsel
MAKAN DELRAHIM, Staff Director
BRUCE COHEN, Minority Chief Counsel and Staff Director

(II)
 CONTENTS

STATEMENTS OF COMMITTEE MEMBERS

Page
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 133

PRESENTERS
Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts
presenting Ralph F. Boyd, Jr., Nominee to be Assistant Attorney General
for the Civil Rights Division ................................................................................ 2
Tierney, Hon. John F., a Representative in Congress from the State of Massa-
chusetts presenting Ralph F. Boyd, Jr., Nominee to be Assistant Attorney
General for the Civil Rights Division ................................................................. 4

STATEMENTS OF THE NOMINEES

Boyd, Ralph F., Jr., of Massachusetts, Nominee to be Assistant Attorney
General for the Civil Rights Division ................................................................. 6
Questionnaire .................................................................................................... 10
McCallum, Robert D., Jr., of Georgia, Nominee to be Assistant Attorney
General for the Civil Division ............................................................................. 80
Questionnaire .................................................................................................... 83

QUESTIONS AND ANSWERS

Responses of Ralph F. Boyd, Jr. to questions submitted by Senators Leahy,
Kennedy, Biden, Feingold, Schumer and Durbin .............................................. 137

SUBMISSION FOR THE RECORD

Cleland, Hon. Max and Miller, Hon. Zell, U.S. Senators from the State of
Georgia, joint statement in support of Robert D. McCallum, Jr., Nominee
to be Assistant Attorney General for the Civil Division ................................... 3

(III)
CONFIRMATION HEARING ON THE NOMINA-
TIONS OF RALPH F. BOYD, JR. AND ROBERT
D. McCALLUM, JR. TO BE ASSISTANT AT-
TORNEYS GENERAL

WEDNESDAY, MAY 23, 2001

U.S. SENATE,
COMMITTEE JUDICIARY,
ON THE
Washington, DC.
The Committee met, pursuant to notice, at 10:17 a.m., in room
SD226, Dirksen Senate Office Building, Hon. Orrin G. Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch, Leahy, and Kennedy.

OPENING STATMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH
Chairman HATCH. We are happy to welcome everybody out this
morning, and today the Committee will consider the nominations
of Ralph Boyd to be Assistant Attorney General for the Civil Rights
Division, and Robert McCallum to be Assistant Attorney General
for the Civil Division.
Now, before we begin, I have to note that during our last con-
firmation hearing, Senator Specter observed that both nominees
were Harvard graduates, and bemoaned the lack of Yale represen-
tation, even went so far as to suggest a Harvard conspiracy at work
here. So I am sure he will be very disappointed to see Mr. Boyd,
another Harvard Law graduate, before the Committee, but I hope
he can take some solace from the fact that Mr. McCallum attended
Yale, both as an undergraduate and as a law student.
There is a lot I have to say about these positions that are impor-
tant. I will put the rest of my remarks in the record. These are im-
portant positions. We are happy to have both of these really fine
gentlemen here before us. Mr. Boyd is no stranger to legal complex-
ity, and we are very pleased to have him here, and the same with
Mr. McCallum. He has had extensive experience. He will be a per-
fect person for, I think, the Civil Division, and Mr. Boyd for the
Civil Rights Division.
I am honored to have Senator Kennedy here to introduce Mr.
Boyd. I apologize to him personally for the mixup in getting over
here a little late, and so I will turn the time to him so he can make
that introduction.
[The prepared statement of Senator Hatch follows:]
(1)
 2
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH
Good morning. Today, the Committee will consider the nominations of Robert
Boyd to be Assistant Attorney General for the Civil Rights Division, and Robert
McCallum to be Assistant Attorney General for the Civil Division.
Before we begin, I must note that during our last confirmation hearing, Senator
Spector observed that both nominees were Harvard graduates, and bemoaned the
lack of Yale representation. He even went so far as to suggest a Harvard conspiracy
at work here. So I am sure he will be very disappointed to see Mr. Boyd, another
Harvard Law graduate, before the Committee. But I hope he can take some solace
in the fact that Mr. McCallum attended Yale both as an undergraduate and as a
law student.
The position of Assistant Attorney General for Civil Rights is one of the most im-
portant law enforcement positions in the Federal Government. Perhaps no position
more profoundly shapes and implements our Nations goal of equality under law.
The Civil Rights Division was established in 1957 to enforce President Eisenhowers
Civil Rights Act of 1957, the first civil firm, Goodwin Proctor LLP, Mr. Boyd has
maintained a broadbased litigation practice. Mr. Boyds extracurricular commit-
ments are also significant. He has spent a considerable amount of time speaking to
at risk youth and to community and religious groups about reducing violence. He
has also addressed various lawyers groups on topics including racial diversity and
the importance of mentoring. I commend you, Mr. Boyd, for your impressive record,
and I commend President Bush for exercising excellent judgment in selecting you
for this important position.
Turning to Mr. McCallums nomination, the person who fills the position of Assist-
ant Attorney General for the Civil Division leads the largest litigating division at
the Department of Justice. Its attorneys represent not only the United States, its
departments, and agencies, but also federal employees, including cabinet officers
and even members of Congress - a fact that we all may want to keep in mind during
the course of this hearing. Civil Division attorneys enforce and defend such diverse
matters as national security issues; contract disputes and other commercial claims;
customs and international trade; federal benefits programs; patents and other intel-
lectual property rights; civil fraud actions; tort claims; and violations of the immi-
gration and consumer protection laws. The outcome of such litigation often has sig-
nificant consequences for the taxpayers, since it involves billions of dollars in claims
and recoveries annually. The position of Assistant Attorney General for the Civil Di-
vision must therefore be filled by a person who has demonstrated the capacity to
expertly handle the most complex legal matters when the stakes are the highest.
Mr. McCallum fits this description perfectly. His matriculation at Yale was the
first step in what has proved to be an exemplary legal career. In the course of his
nearly thirty years in private practice, he has expertly litigated a wide range of com-
plex matters, including commercial cases, class actions, RICO claims, health care
fraud cases, and appeals. For almost ten years, he served as Special Assistant Attor-
ney General for the State of Georgia, handling eminent domain matters. His vast
and well-rounded experience, coupled with his keen intellect, meet the rigorous re-
quirements for the job of Assistant Attorney General for the Civil Division. I have
no doubt that he will be able to execute his duties skillfully and professionally.
Again, I commend President Bush on his wise selection of Mr. McCallum for this
position.
It is a great pleasure to welcome both of you to this Committee.

PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE AS-

SISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVI-
SION BY HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM
THE STATE OF MASSACHUSETTS
Senator KENNEDY. Thank you very much, Mr. Chairman, and we
all understand the Senate schedule makes it A complicated day.
And I see my good friends, Congressman Tierney and Congress-
man Neal, who are here as well.
I first of all want to thank you for having the hearings, and I
am very hopeful that we can move this process forward very expe-
ditiously, because I think it is important, particularly in the area
of the Civil Rights Division, that we have someone in there of
Ralph Boyds competency and leadership.
 3

It is a very important position. I congratulate Attorney General

Ashcroft for this selection. I congratulate Ralph Boyd for his will-
ingness to take on this responsibility. He brings to this position a
superb education at Haverford and Harvard Law School, where he
was an outstanding student. He has demonstrated his commitment
to public service by having clerked for a District Court Judge, and
did it with great distinction. And he later served in the US Attor-
neys Office, and was known there as a tough prosecutor, but fair,
and he had an outstanding record there. Now he is a very success-
ful member of Goodwin, Procter & Hoar, one of the very fine law
firms in Boston, where he is highly regarded and respected.
I see members of his family that are here today. I know that his
wife, Angela Dawn Johnson, and their five children, Caitlin, Jes-
sica, Magdelene, Jamie and Jeremy are not here. I think we can
guess where they are, in school today, but we want them to know
that they are very much in our minds. And I know he will intro-
duce his father and mother and two cousins who are here. We wel-
come them to the Committee.
Just finally, Mr. Chairman, I am enormously impressed by Ralph
Boyds commitment to young people in a very special way. He
serves at-risk youth in Boston. He works as well with a stay-in-
school program there to try and help young people. He is very ac-
tive in the mentoring of young people as well, and he has worked
with young people that have been involved in the judicial court sys-
tem. So he has, I think, reflected in his own life a strong commit-
ment to equal justice under the law, to fairness, and to making
sure that his life, both by example and commitment, is one that un-
derstood the importance of opportunity for all of our citizens and
for the respect of all of our citizens. He is truly an extraordinary
individual, and I think the Justice Department will be fortunate to
have him. And I commend, as I said, the Attorney General and the
President for the nomination, and I hope he will be approved very
quickly.
[The prepared statement of Senators Cleland and Miller follows:]
JOINT STATEMENT OF HON. MAX CLELAND AND HON. ZELL MILLER, U.S. SENATORS
FROM THE STATE OF GEORGIA

Mr. Chairman, we are here to present Mr. Robert D. McCallum, Jr. to the Senate
Judiciary Committee as the Presidents nominee to be Assistant Attorney General
for the Civil Division. Mr McCallum comes highly recommended from several of his
colleagues for whom we both have a great deal of respect. It is our pleasure to
present him today as a fellow Georgian with impressive credentials and support
from many in our state.
Mr. McCallum received his undergraduate degree, cum laude, in History from
Yale University in 1968. He also attended Oxford University as a Rhodes Scholar
and graduated from Yale Law School in 1973. Immediately following law school, Mr.
McCallum joined the law firm of Alston, Miller & Gaines, the predecessor firm to
Alston & Bird, as an associate in 1973. He is currently a partner in the law firm
of Alston & Bird where his specialty is civil litigation with emphasis on appellate
practice, commercial real estate litigation, insurance class action litigation and ad-
ministrative proceedings, and medical malpractice defense. He has written several
journal articles in the Mercer Law Review and he wrote a chapter in Gynecological
Surgery. Mr. McCallum has also lectured regarding eminent domain law and evi-
dence at Georgia seminars and at the 1992 American
Mr. McCallum is a member of the State Bar of Georgia, the Atlanta Bar Associa-
tion and the American Bar Association. He is also a member of the Yale Club of
Georgia, the Yale Alumni Fund, the Brookwood Hills Civic Association, Butler
Street YMCA, and the Rhodes Scholarship Trust. Mr. McCallum is also a member
of several civic and cultural organizations such as the High Museum of Art, the Wil-
 4
derness Society, the Atlanta History Center, and Atlanta Preservation Center. He
is also the Georgia Representative to the Yale Law School Alumni Association
Board.
Mr. McCallum is an excellent attorney and will be a great addition to the Justice
Department as an Assistant Attorney General. Therefore, we recommend Mr. Robert
McCallum to the Committee and the United States Senate and urge that he be
promptly confirmed. Thank you.
Chairman HATCH. Well, thank you, Senator Kennedy. And that
is about as high a recommendation as I have heard around here
in a long time, and I feel exactly the same. And coming from Sen-
ator Kennedy, former Chairman of this Committee in the good old
days
Senator KENNEDY. Soon to return.
[Laughter.]
Senator KENNEDY. It just slipped out, Mr. Chairman.
Chairman HATCH. You mean you are going to come back as
chairman?
[Laughter.]
Chairman HATCH. But that is very, very high praise for you, Mr.
Boyd.
Congressman Tierney is here. We are really happy to have you
here, coming over to back Mr. Boyd. We appreciate you. Would you
care to make any statement? We would be very happy to take your
statement at this time.
PRESENTATION OF RALPH F. BOYD, JR., NOMINEE TO BE AS-
SISTANT ATTORNEY GENERAL FOR THE CIVIL RIGHTS DIVI-
SION BY HON. JOHN F. TIERNEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Representative TIERNEY. Thank you, Senator. I really do not
have a long statement to make. I think Senator Kennedy said it
all very well, and I would not even want to try to compete with
that, except to say that I have had the opportunity to meet and
know Ralph Boyd now, and that we are sure that he is going to
make a good representative of our community and of the country,
and that all of the things that Senator Kennedy said about him
being concerned about individuals and having respect for individ-
uals is absolutely true. We are very supportive of Ralphs nomina-
tion, and we do hope that the Senate gives him a speedy confirma-
tion. And we thank you for your hearing here today.
Chairman HATCH. Well, thank you so much, and thanks for tak-
ing the time, and I am sure Mr. Boyd appreciates it as well as I
do.
I have to say it is fortunate for the Committee that Mr. Boyd is
no stranger to legal complexity. He has an informed perspective
about civil rights in America today. He is an excellent candidate to
lead the Civil Rights Division.
He graduated from Harvard Law School where he was editor of
the Harvard Civil Rights Civil Liberties Law Review. As an Assist-
ant US Attorney in Boston, he investigated and prosecuted bank
fraud, firearms, homicide, narcotics trafficking, bombing and bank
robbery cases, as well as a couple of high-profile gang violence
cases. It sounds like they have a pretty rough time up there in Bos-
ton.
[Laughter.]
 5

Chairman HATCH. We do in all the other cities in the country too,

I am afraid.
He tried 15 to 20 jury trials, conducted 50 to 75 evidentiary hear-
ings and argued approximately 10 appeals in the First Circuit
Court of Appeals. And now as a partner at the prestigious law firm,
Goodwin, Procter LLP, Mr. Boyd has maintained a broad-based liti-
gation practice.
Mr. Boyds extracurricular commitments are also significant, as
Senator Kennedy, I think, carefully pointed out. He has spent a
considerable amount of time speaking to at-risk youth, and to com-
munity and religious groups about reducing violence. He has also
addressed various lawyers groups on topics including racial diver-
sity and the importance of mentoring.
So I commend you, Mr. Boyd, for your reputation, for your im-
pressive record, and I commend President Bush for exercising ex-
cellent judgment in selecting you for this important position. And
I hope that you will work with us, and look at this new Prevention,
Education and Treatment Bill that we have filed here in the Com-
mittee. I think that could do a lot of good. We are looking for alter-
natives to prison for some of our young people, and also, naturally,
we would like you to look at a wide variety of other things that we
are trying to do on the Committee that I think are worthwhile.
Let me just say that Mr. McCallum is to fill the position of As-
sistant Attorney General for the Civil Division, which would lead
the largest litigating division at the Department of Justice.
The Civil Divisions attorneys represent not only the United
States and its departments and agencies, but also Federal employ-
ees, including cabinet officers and even Members of Congress, a
fact that we may all want to keep in mind during the course of this
hearing.
Civil Division attorneys enforce and defend such diverse matters
as national security issues, contract disputes and other commercial
claims, customs and international trade, Federal benefits pro-
grams, patents and other intellectual property rights, civil fraud
actions, tort claims and violations of immigration and consumer
protection laws. The outcome of such litigation often has significant
consequences for our country and to our taxpayers since this type
of litigation involves billions of dollars in claims and recoveries an-
nually.
The position of Assistant Attorney General for the Civil Division
must therefore be filled by a person who had demonstrated the ca-
pacity to expertly handle the most complex legal matters when the
stakes are the highest.
Now, Mr. McCallum fits this description perfectly, as far as I am
concerned. His matriculation at Yale was the first step in what
proved to be an exemplary legal career. In the course of his nearly
30 years in private practice, he has expertly litigated a wide range
of complex matters, including commercial cases, class actions,
RICO claims, health care fraud cases, and appeals. For almost 10
years he served as Special Assistant Attorney General for the State
of Georgia, handling eminent domain matters.
His vast and well-rounded experience, coupled with his keen in-
tellect, meet the rigorous requirements for the job of Assistant At-
 6

torney General for the Civil Division, and I have no doubt that he
will be able to execute his duties skillfully and professionally.
So, again, I commend President Bush for his good choice here,
and commend you for being chosen and for the great record that
you have. So it is a great pleasure to welcome both of you to the
Committee.
I wonder if we can get you both to take your chairs, or if you will
both stand, rather, and raise your right hands.
Do you solemnly swear to tell the truth, the whole truth and
nothing but the truth, so help you God?
Mr. Boyd. I do.
Mr. McCallum. I do.
Chairman HATCH. Thank you. Now we have a complication here.
This morning they are trying to finish up the tax bill, and there
may be four, five or six votes, and it is apparent that other mem-
bers of the Committee are stuck over on the floor where I was. So
what I am going to do is start this off with both of you, and hope-
fully some of them will come. We may have to recess till these
votes are over. I hate to tell you that, but hopefully, we can get this
hearing completed today. I would like to give our colleagues on the
other side at least an opportunity to ask questions to both of you.
Lets turn to you, Mr. Boyd. Do you have a statement you care
to make?
And then we will turn to you, Mr. McCallum.
STATEMENT OF RALPH F. BOYD, JR., OF MASSACHUSETTS,
NOMINEE TO BE ASSISTANT ATTORNEY GENERAL FOR THE
CIVIL RIGHTS DIVISION
Mr. BOYD. I do, Mr. Chairman, and thank you. I wondered if I
might introduce my family members to you, as well as the family
members who are not present today.
Chairman HATCH. We would love to have you do that.
Mr. BOYD. And if I could start, Mr. Chairman, by talking about
those who are not able to be here today, starting with my wife of
almost 13 years, Angela, who wanted to be here today, but has just
returned to the East Coast from the Olympia area in Washington
State, attending to her family after the death of her father 2 weeks
ago.
Chairman HATCH. Sorry about that.
Mr. BOYD. And she would be here otherwise.
In addition, my five children, whomy wife, I should say, is the
architect of our family in many meaningful respects, and she is the
mother of our five children, who Senator Kennedy noted also are
not here. And if I could just introduce them by name. My oldest
child is Caitlin Elizabeth. She is 12-years-old, and she along with
my second daughter, Jessica, who is 10, are back at the Ipswich
Public Schools taking their MCAS examinations today, which is a
State examination in Massachusetts, controversial to some, but the
theory is that it measures the command that students have of ma-
terial and certain subject matters, and so they are both facing an
examination probably as important to them today as I am. So they
are back in Boston with their mother and in school.
In addition, my remaining three children, Maggie, who is 5-
years-old, Jamie who is also 5-years-old, and Jeremy, who is 5-
 7

years-old, just turned 5-years-old, they also are back in Ipswich,

Massachusetts, our home, and I just wanted to introduce them to
you because they are a very, very important part of my universe,
and I would love to have them here and show them off to the Com-
mittee, but I cannot.
Chairman HATCH. We would love to have them here, but we un-
derstand, and we know that you love your family, and we have had
some very nice chats in my office about that. We appreciate the
love you have for your family and the good example you set.
Mr. BOYD. Thank you, Senator. If I can introduce to you the
members of my family who are here, and the two people who got
the ball rolling 44 years ago, for better or for worse, hopefully for
better, if Senator Kennedy and you, Chairman Hatch are to be be-
lieved, I think for the better. First is my father, Ralph, Sr.
Chairman HATCH. Please stand if you will. We are honored to
have you here.
Mr. BOYD. And then is my mother, Catherine.
Chairman HATCH. Mom, we are glad to have you here as well.
Mr. BOYD. My cousin, Edward Pitts.
Chairman HATCH. Edward.
Mr. BOYD. And my other cousin, Melvin Jefferson.
Chairman HATCH. Melvin, good to have you, good to have you all
here.
Mr. BOYD. If I can proceed, I would like to make my statement
to the Committee.
I want to start out by thanking you, Chairman Hatch, and Sen-
ator Kennedy for that gracious introduction, and I also want to
thank each and every member of this Committee. I am deeply hon-
ored to be here, and I am grateful for the careful attention that you
have given my nomination, and also for having the opportunity to
answer questions you may have of me as President Bushs nominee
to be Assistant Attorney General for Civil Rights.
As a former Assistant United States Attorney with proud memo-
ries of my work in that office, as a counselor and advocate on be-
half of people who are struggling to realize the American dream for
themselves and their families, and also as a child and a beneficiary
of the civil rights movement, I can think of no greater honor, no
greater responsibility, and no greater privilege than to be nomi-
nated by the President of the United States to serve my family, my
neighbors, my community, my country and all of its people as the
head of the Civil Rights Division of the Department of Justice, that
is to be, in effect, the countrys lawyer on matters of civil rights.
The Civil Rights Division was created in 1957, which coinciden-
tally was the year that I was born. That was a time of meaningful
shifts in how America viewed and addressed the rights of its citi-
zens. Since that time no single office has played a more central role
in advancing the core values we Americans share, that people
should not be singled out or denied opportunities because of the
color of their skin, where they worship if they choose to worship
at all, where they or their parents came from, what gender they
are, how old they are, or whether they are challenged by some dis-
ability, and also that no one should fear or fall victim to violence
for any reason, but certainly not because of some bias or prejudice
harbored against them simply because of who they are.
 8

Our Congress has given us laws designed to protect these core

values. These laws advance the prospect of our achieving, by work-
ing together, a truly inclusive democracy where no person, and as
President Bush has said, especially no child, is left out or left be-
hind. But without the Civil Rights Divisions vigorous implementa-
tion and enforcement of these anti-discrimination laws, the high
ideals of equality and inclusion that we strive for would be chron-
ically deferred and never fully realized. Our laws would, in effect,
amount to empty promises.
If confirmed, I would strive to make the ideals of fairness and
equality of opportunity a reality for all of Americas people today,
not in some vague distant tomorrow. We have been given the tools.
It falls to us to use them. And with the able assistance of the dedi-
cated and committed career lawyers of the Civil Rights Division, I
would seek to enforce our Civil Rights laws like we mean it, in an
unassailably fair, consistent and evenhanded way.
Mr. Chairman, my nomination for this position has caused me to
consider my lifes work and reflect on where I came from and how
I came to be here, and that isnt just because of the lengthy ques-
tionnaire I had to fill out for this Committee.
As part of my work in the community, I often have the oppor-
tunity to teach and mentor young people, as Senator Kennedy
pointed out, from middle schoolers, to law students, to young law-
yers. Some are start in the making. Others are at risk for violence
or face other serious obstacles to achieving success. Regardless, as
they mature and learn to tackle issues and deal with matters of in-
creasing importance, I remind each of them that they must always
remember who they are, where they came from, and the people and
the events that have helped shape them. This advice applies equal-
ly to me. I can assure you, Mr. Chairman, that I know where I
come from and how I have come to be in this place at this time,
prepared to do the heavy lifting required of the person who would
serve in the position for which the President has nominated me.
As a child, I grew up in NAACP meetings with my parents. I
knew then and I know now the reasons and the need for those
meetings and the work that flows from them. I also know that I
am, in significant part, the product of the work and commitment
of others, including courageous people I have never met, but whose
sacrifices I have benefited from. I also know that I am the product
of a loving family and of many generous friends, teachers and men-
tors. No one gets to the place where I am today without the im-
print of others. I know this, and I am grateful for it.
Some of these people are here today, and I introduced them to
you, my parents, Ralph, Sr. and Catherine. By their presence, they
continue the work they started 44 years ago, teaching, nurturing
and instilling values. There also have been others who have opened
doors for me and added to my learning, from my youth to the time
I spent at Haverford College, which in many important respects
was a life-changing experience for me. Their efforts on my behalf
continue today. These people, almost to a person, have been reluc-
tant to accept any thanks for their role in my accomplishments.
They simply ask that I take the time and make the effort to do the
same for others. I have tried to honor these requests, Mr. Chair-
man, in both my professional and personal life. In fact, being here
 9

today is part of that effort. It is an opportunity to serve others by

protecting and vindicating the rights of those who struggle with
prejudice, unjustified rejection, and in some cases, even hatred in
their daily lives.
There are many challenges before us. Our great country affords
my five children many more opportunities than it did my father
and uncle when they returned from World War II, more than half
a century ago. These men and other men who fought and literally
bled for America, returned to a country that did not welcome them
or embrace them, in many instances simply because of the color of
their skin, but they still persevered and worked doggedly to change
America. They succeeded, and so I am here today.
But there is still work to be done, Mr. Chairman. Our law has
shifted decisively to the side of individual civil rights, but attitudes
and hearts can change more slowly. Government and law can lay
the groundwork for healthy inclusive communities, but the chal-
lenge of transforming legal promises into social and economic re-
ality depends largely on what each of us does as an individual,
both in and out of Government. As much progress as we have made
in America, we still have more work to do before we can say that
color, gender or other immutable traits, or impertinent aspects of
a persons life, no longer affect that persons access to opportunities
or their ability to partake fully of the American experience without
fear of discrimination or violence.
The job of the Assistant Attorney General for Civil Rights is to
lead this effort through enforcement and by example. Sometimes
we are challenged, Mr. Chairman, in this effort by our differing
views and beliefs about what constitutes unlawful discrimination
and how we should go about fixing it. These differences are real,
but I submit that we agree about much more than we disagree.
And the common ground that we share has given us laws that have
indeed made our country a better and a more inclusive place.
So I say to you, Mr. Chairman, and members of the Committee,
that I cannot promise that we will always agree about what the
law is or what is should be, or how best to prioritize the Divisions
enforcement objectives, and I do not purport to have all the an-
swers. What I can promise, however, is my deep commitment to lis-
tening well, to being intellectually honest, and to enforcing vigor-
ously this Nations laws in an unbiased and unwavering manner.
I am honored to be here, and I am honored by the trust the
President and the Attorney General have reposed in me. I hope to
justify that trust through my words and deeds. Thank you.
[The biographical information of Mr. Boyd follows:]
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Chairman HATCH. Well, thank you for your fine statement. We

are very happy to have members of your family here. You must be
very proud, and you should be, as he is a fine man, and he is going
to do a fine job at the Justice Department. And I am going to try
and back him every way I can, and I am sure other members of
the Committee will as well.
I would like to put a statement by Senators Max Cleland and
Zell Miller into the record immediately following Senator Ken-
nedys statement, on behalf of Robert D. McCallum, Jr., to be As-
sistant Attorney General for the Civil Division. And it is a very
nice statement about how much they support you, and we are
grateful that they took the time to do that. They would be here per-
sonally, except, as you can see, we are having a very difficult time
on the floor on this tax bill, and everybody is tied up, so I am just
glad I could be here at this time.
So, we will turn to you, Mr. McCallum. We are proud of you and
proud that you have this opportunity, and we will take your state-
ment at this time.

STATEMENT OF ROBERT D. McCALLUM, JR., OF GEORGIA, TO

BE ASSISTANT ATTORNEY GENERAL FOR THE CIVIL DIVISION
Mr. MCCALLUM. Thank you, Mr. Chairman. I am honored to ap-
pear before you for consideration for confirmation of the Assistant
Attorney General for the Civil Division. I am very grateful for the
confidence which President Bush and Attorney General Ashcroft
have shown by nominating me, and I will look forward, not just at
this hearing, but also afterwards, to providing you, as Chairman,
and any members of the Committee with whatever information will
be helpful to the Committee and to the Senate in discharging its
constitutional responsibilities to advise the President on its nomi-
nees.
Like Mr. Boyd, I would like to take this opportunity to introduce
to you my family that is present. My wife, Mimi, who has been en-
couraging in supporting me for 32 years, is here.
Chairman HATCH. If you could stand, so we can all see. Glad to
have you here, Mimi.
Mr. MCCALLUM. Senator, I started, as we southerners say, court-
ing her when I was 15-years-old, and finally, through my eloquent
persuasive powers, convinced her to marry me when I was 22, and
she has been behind me all the way ever since.
Chairman HATCH. I can see that you had to really examine him
pretty carefully.
[Laughter.]
Mr. MCCALLUM. My son, my elder sonI have two boysmy
elder son, Davis, is also present, and he has just moved to Brooklyn
to try and become a constituent of Senator Schumer, who is not
here, but
Chairman HATCH. David, happy to have you here.
Mr. MCCALLUM. I intend to mention his presence in his Senator
district to him. My younger son, Bailey, is a senior at Williams Col-
lege, and is finishing his exams and celebrating his liberation from
burdens and responsibility, so he has not been able to get with us
today.
 81

My parents are also not able to be present. My father, in another

couple of weeks, will have his 90th birthday, and my mother is 83,
and it was difficult and really hard for them to travel to Washing-
ton from Memphis, where I was born and raised, but I send you
their regards, and they wish that they could be here.
Id also like to take this opportunity to thank Senator Zell Miller
and Max Cleland for encouraging and supporting me in this nomi-
nation.
And one other person that I feel duty bound to recognize and ex-
press my thanks to is your former colleague, Senator Paul Cover-
dell. I think of Paul Coverdell as Senator Coverdell, but most of
you think of him as a U.S. Senator, whereas I think of Paul as a
Georgia State Senator, an institution that he served for years. He
was the senator from my district, and it was Paul who first encour-
aged me to participate in local government activities, which in At-
lanta, Georgia, like many other places, revolves around neighbor-
hood civic associations and county and municipal races. The thing
that impressed me as a young lawyer, a young citizen in Atlanta,
and impressed members of this Senate, was that Paul Coverdell
was always willing to do the hard work that didnt gain necessarily
a lot of public attention, but it was hard work that was in fact ab-
solutely necessary to help his constituents, to assist his fellow leg-
islators, of whatever political persuasion, and to debate and con-
sider the views of all sides so that the job of legislation could get
accomplished. He always gave thoughtful consideration to the posi-
tions that he took before he took them, and if confirmed, I would
hope to follow in his example in my own public service. I would like
to think that Paul Coverdell would have been pleased and proud
of my nomination by the President.
I also would like to thank and publicly acknowledge two other in-
dividuals who have had a tremendous influence on me as a trial
lawyer, because the position for which I have been nominated is to
be a trial lawyer, and to lead what I consider to be the largest trial
firm in the United States with the most complex trial issues.
The first is Judge Sidney O. Smith, a former Chief Judge of the
United States District Court for the Northern District of Georgia.
Judge Smith was my law partner, and Sidney is now retired from
the practice of law. He set a remarkable example of what a lawyer
should be, and he was always available with both wit and wisdom,
to advise younger lawyers like me as we came along. He inspired
many to seek public service, me probably the least of them. For in-
stance, two of his law clerks now sit on the Eleventh Circuit Court
of Appeals, Judge Stan Birch and Judge Larry Edmondson.
The second is G. Conley Ingram, a former justice of the Georgia
Supreme Court, appointed to that position by then Governor
Jimmy Carter. Conley is also one of my law partners, and no one,
absolutely no one, has had a greater influence on me, in my devel-
opment as a trial lawyer. I was privileged to try cases with him,
to argue appeals with him, and perhaps best of all, to laugh with
him when the burdens and responsibilities of a law practice might
have seemed overwhelming and oppressive. Conley Ingram has
now returned to judging. He sits as a senior judge of the Superior
Court of Cobb County, Georgia, a bench on which his daughter,
Lark Ingram, also serves with distinction. So when you call us the
 82

Superior Court of Cobb County and ask for Judge Ingram, you
have to specify which judge you are talking about.
I very much appreciate this Committee affording me this oppor-
tunity to discuss issues that are of interest to the Committee in
evaluating my qualifications for this position, and I will look for-
ward to providing whatever information might be helpful. Thank
you, Mr. Chairman.
[The biographical information of Mr. McCallum follows:]
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 134

Chairman HATCH. Thank you, Mr. McCallum. You have excellent

qualifications, and we look forward to your confirmation.
I would be happy to turn to the ranking member, the Democrat
leader on the Committee, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR
FROM THE STATE OF VERMONT
Senator LEAHY. Thank you, Mr. Chairman. I keep anticipating
votes over there.
Chairman HATCH. Yes, I do too.
Senator LEAHY. They have had a pile of them, but they have all
been voice votes, and so I apologize for not being here earlier. I
know Senator Kennedy has already been here, and of course the
Chairman has.
I know that this is the fifth hearing this year on the Presidents
nominations of leadership positions at the Department of Justice.
We have probably been moving faster than certainly this Commit-
tee has moved for a number of years, and I think that is right. We
have usually had the Assistant Attorney General heading the Civil
Rights Division considered on his own, but I am glad to see that
moving forward.
I do not think anybody is going to do to Mr. Boyd what happened
to his predecessor. You will get, I think, confirmed, and not have
to wait the three and one-half years Mr. Lann Lee did.
Mr. McCallum, your predecessor was pending for over a year in
Committee and 18 months in the Senate, and I know the Chairman
does not intend that to be the situation with you, nor would any-
body on this side expect to do that. I am not the one in charge, but
I can assure you that the Democrats in the Senate want to move
forward quickly.
I will put the rest of my statement in the record, and thank you
for having this hearing, Mr. Chairman.
[The prepared statement of Senator Leahy follows:]
STATEMENT OF SENATOR PATRICK LEAHY, A U.S. SENATOR FROM THE STATE OF
VERMONT
This is the fifth hearing this year on the Presidents nominations to leadership
positions at the Department of Justice. Again this morning we proceed on two im-
portant Executive Branch nominations.
Given the interest in the protection of the civil rights of all Americans and the
importance of the Assistant Attorney General to head the Civil Rights Division, we
have traditionally considered that nomination on its own. At times, nominations to
head the Civil Rights Division have faced controversy, delay and opposition. Indeed,
the nomination of Bill Lann Lee, which was initially received by the Senate in 1997
was never accorded a vote by the United States Senate and was kept pending before
this Committee for almost three and one-half years.
I know of no one who intends to treat the nomination of Mr. Boyd in that fashion.
Senator Kennedys introduction of the nominee and the commitments that the nomi-
nee is able to give to the Committee regarding the vigorous enforcement of our civil
rights laws should go a long way toward clearing the way for Committee consider-
ation and consideration by the Senate as soon as all Senators have had a reasonable
opportunity to ask questions and receive responses.
The Chairman has again decided to combine a hearing on a nomination that tra-
ditionally takes place on its own with another important Executive Branch nomina-
tion. This time he has chosen to include the nominee to be the Assistant Attorney
General to head the Civil Division, as well. The Civil Division has its own very im-
portant responsibilities with respect to Government litigation.
The confirmation process for Mr. McCallums predecessor was pending for over a
year in Committee and 18 months the Senate. None of us anticipates such an ex-
 135
tended process in connection with Mr. McCallums nomination. I was always puzzled
why those extended delays kept David Ogden from being confirmed promptly, espe-
cially since his eventual confirmation by the Senate was by unanimous consent. If
all goes well today, it is my hope to see the Senate consider Mr. McCallums nomi-
nation before the June 30 date on which the Senate confirmed Frank Hunger to be
President Clintons Assistant Attorney General for the Civil Division back in 1993
and long before the Senate confirmed Stuart Gerson to be the first President Bushs
head of the Civil Division back in October 1989.
1 want to thank the Chairman for reconsidering his decision of the last few days
and ultimately deciding not to add judicial nominations to this hearing at the last
minute. I stand ready to consult with him on a realistic hearing schedule for those
nominees.
Chairman HATCH. Well, thank you, Senator. We will turn to you
for any questions you have of these two witnesses, and begin with
you.
Senator LEAHY. Mr. Boyd, as you know, many of the civil rights
organizations represent the interests of African-Americans and
Hispanics that criticized the conduct of last years Presidential elec-
tion, particularly in Florida. You will be the head of the Civil
Rights Division in an administration led by one who has said, and
can justly say, that his election as President hinged on what was
seen as the results of Florida. With that in mind, the President of
the United States has every reason to want to feel that there are
no problems in Florida, but also is charged with upholding all the
laws of the country, as is the Attorney General. Will you assure us
that you will look into and fully and honestly investigate the com-
plaints of African-Americans and Hispanics who said that they
were shut out, in one way or another, of the Presidential race in
Florida last year?
Mr. BOYD. Senator, thank you for that question, and giving me
an opportunity to talk about an issue that is of genuine importance
to all Americans, as it should be.
The simple answer to your question, Senator, is I will go wher-
ever the evidence and the law lead without flinching, and I think,
if I may, Senator, that that is one respect in which my experience
particularly well suits me to do. As the Senator may know, I spent
6 years as an Assistant United States Attorney, doing exactly that.
I understand that this is taking place now in a crucible where the
scrutiny is greater, the lights are brighter, and the stakes perhaps
higher, and I understand that people have concerns about the fair-
ness and the impartiality and the vigor with which the investiga-
tions regarding allegations of voting impropriety, voter intimida-
tion, limitations on access to voting, especially on the part of people
of color, is of real concern.
And I can assure you, Senator, that I would investigate any alle-
gations, any allegations supported by any credible evidence of any
kind of voter fraud, impropriety, limitations on access to voting.
That would be a top priority. And, frankly, Senator, I think that
the President and the Attorney General have indicated their com-
mitment to that mission by announcing that the voting section of
the Civil Rights Division will be enhanced by an additional eight
full-time lawyers, and Im happy to be able to have additional re-
sources to make sure that no American is excluded from being able
to exercise the most important franchise.
So the simple answer to your question, Senator, is yes.
 136

Senator LEAHY. Mr. Boyd, frankly when asking the question, I

did not expect any different answer from you. I fully expect to be
supporting your nomination on the floor. If that one chance out of
100,000 you had answered differently, I can assure you, I would
not be supporting. But if you had answered differently, to be fair
to both President Bush and Attorney General Ashcroft, I suspect
that they would want to withdraw your nomination. I am not try-
ing to redo last years election. The Supreme Court has ruled on
that, and that is the end of it. I support whomever is President,
whoever has been inaugurated. In a great and powerful Nation like
ours, we can do no differently.
But I asked you the question also to give you some protection
should there by anybody who would suggest you do not believe in
looking for any question, whether it is Florida or Vermont or Utah
or anywhere else, on voting irregularities. Note, this Committee
will back you. I think Senator Hatch and I would be the first to
back you on something like that. Democracy only works if every-
body can feel that it is a fair election. One side or the other is al-
ways going to feel they wished their person had won, but we are
not going to get people to turn out and vote unless they know that
their votes are going to be counted and they are going to have a
chance to vote.
It is deplorable, when I go around the rest of the world and see
people literally die, literally die to have a chance to vote, who are
willing to put their life on the line, put their familys lives on the
line, sometimes their communities on the line to vote, and we do
not all go out and vote. And you will be the one who can assure
people know they can vote. One side always wins, one side always
loses. That does not bother me. What bothers me is that they can-
not vote.
Mr. Chairman, we have a roll call on. I would suggest that
maybe we submit questions for the record. I know Mr. McCallum,
I have questions about the Department of Justice lawsuit against
the tobacco industry. Senator Durbin and I have written to Attor-
ney General Ashcroft about that, and I have questions for you.
Chairman HATCH. Would it be acceptable to you if we do submit
questions?
Senator LEAHY. Certainly, Mr. Chairman, because I have a feel-
ing we are probably now back to the floor.
Chairman HATCH. I have a feeling we are not going to get back.
That is satisfactory to you then?
Senator LEAHY. Of course.
Chairman HATCH. Well, then you two have had a better shorter
hearing than I thought you would have.
Senator LEAHY. Well, but I am going on the assumption that the
questions are fully answered.
Chairman HATCH. That you will answer questions.
Senator LEAHY. The questions are fully answered, not on the one
hand this, on the other hand thatI mean, seriously answered like
Mr. Boyd just did now, further questions to him or to Mr.
McCallum, because if they were not, of course, I would expect that
somebody would request on one side or the other to have further
hearings. But I think they will answer them.
 137

Chairman HATCH. Well, we will keep the record open till 5

oclock today for questions from any or all members of the Commit-
tee, and then I would recommend that you answer them as quickly
as you can, because when we get those back, we will be able to per-
haps set a
Senator LEAHY. I
Chairman HATCH. You need more time?
Senator LEAHY. I think we need a little bit more time.
Chairman HATCH. How much time would you like?
Senator LEAHY. You know, we have got this on the floor.
Chairman HATCH. 6 oclock tomorrow?
Senator LEAHY. That would be fine.
Mr. BOYD. Senators, Mr. McCallum and I are both trial lawyers,
and we respond well to deadlines, so I can assure you
Senator LEAHY. You will have even more incentive than worrying
about your client in this case.
[Laughter.]
Chairman HATCH. Well, we are glad to hear that, and what we
will do is keep the record open until 6 oclock tomorrow evening,
and if you can answer these questions as quickly as possible, it will
be very helpful to the Committee.
With that then, we will end the hearing, and recess until further
notice. Thanks so much.
[Whereupon, at 10:58 a.m., the Committee was adjourned.]
[Questions and Answers follow:]
QUESTIONS AND ANSWERS
RESPONSES OF RALPH F. BOYD, JR., TO QUESTIONS SUBMITTED BY SENATORS LEAHY,
KENNEDY, BIDEN, FEINGOLD, SCHUMER AND DURBIN
Question 1. What are the main goals you hope to accomp:ish as head of the Civil
Rights Division?
Answer. With respect to priorities, out of respect for the Senates role in giving
advice and consent on my nomination, I have not consulted with the career staff
of the Civil Rights Division to formulate enforcement priorities. I regard such con-
sultations to be a prerequisite to informed decision making. However, I share the
Attorney Generals commitment to the vigorous enforcement of voting rights laws,
to eradicating racial profiling and worker trafficking, and to swift implementation
of the President s New Freedom Initiative. If confirmed as Assistant Attorney Gen-
eral foi Civil Rights, I would expect the Civil Rights Division to tackle, and effec-
tively deal with, the high priorities of this Administration.
Question 2. The Supreme Court has held that race-conscious relief or sex-con-
scious relief is sometimes the only effective form of relief for past discrimination,
or to prevent ongoing discrimination. (A) As Assistant Attorney General, will you
continue the policy of the Justice Department to seek such relief in appropriate
cases? (B) If not, what type of relief will you seek instead? (C) What will you in-
struct the Civil Rights Division to do, if there is no other form of relief that would
be effective?
Answer. It is my view that race and gender-conscious remedies are appropriate
under some circumstances. I would therefore anticipate that, if confirmed, depend-
ing on the facts and circumstances of each particular case, race and gender-con-
scious remedies could be pursued by the Civil Rights Division in the future.
Question 3. As [Assistant] Attorney General, do you intend to re-open any existing
court orders to seek changes in race-conscious relief or sex-conscious relief? If so,
which cases, and what types of changes?
Answer. I do not at present have my plans to reopen. or revisit any existing court
order. Whether any particular order should continue in force is a question that can
only be answered after a thorough review of the facts and circumstances of that par-
ticular case and the applicable law. As I have not undertaken any such review of
pending Civil Rights Division cases, I am reluctant to comment on any particular
 138
case. To address the question more generally, however, the factual and legal land-
scape that exists when a given order is entered will often change over time, anti
it is possible that some orders could be modified in the future to reflect any changes
applicable to that particular case.
Question 4. Many private attorneys are ready and able to file discrimination cases
involving only one or two individuals, but few of them can handle cases involving
large-scale patterns and practices of discrimination. The Justice Department has
sometimes handled the large cases that few outside the government can bring, and
has sometimes spent its resources handling individual cases that many private
sttorreys ;.an bring. As Assistant Attorney General, what will your instructions
to the Civil Rights Division be, with respect to the kinds of cases they are to bring?
Answer. I agree that, as the primary federal law enforcement agency, the Depart-
ment of Justice is often uniquely well suited to litigate large, complex: civil rights
cases. Out of respect for th-Senates role in giving advice and consent in connection
with my nomination, however, I have not been involved in the operations of the
Civil Rights Division, and thus have not reviewed, nor had the benefit of, a careful
review of the demands on the Civil Rights Divisions resources, or the Divisions en-
forcement priorities in light of those demands. I have not, therefore, formulated in-
structions regarding what kinds of cases the Civil Rights Division should bring.
Question 5
Answer. This June, the Justice Department will file a brief with the Supreme
Court in the Adarand case, in which the Department of Transportations disadvan-
taged business enterprise program is being challenged as unconstitutional. The At-
torney General had originally pronused to defend the program, telling NBC, Obvi-
ously, I will defend the Department of Transportations regulations. Subsequently,
however, the Attorney General said that the Administration might abandon, or re-
formulate, the program rather than defend it. I am concerned that this Congres-
sionally-supported and properly implemented programwhich the Tenth Circuit
found to be constitutionalwill not receive a vigorous defense before the Supreme
Court. Can you promise this Committee that you will urge the Justice Departmentto
defend this regulation to the best of its ability?
Answer. It is my view that the Department of Justice has an obligation to defend
Acts of Congress from constitutional challenge whenever a reasonable argument can
be made in support of a statute. My presumption is that the Department of Justice
will apply this principle to the Adarand case and, if confirmed, I will urge itto do
so. Of course, particular decisions related to the position of the United States before
the Supreme Court would rest with the Office of the Solicitor General.
Question 6. Do you agree that affirmative action programs in government pro-
grams like the Transportation Departments Disadvantaged Business Enterprise
Program are constitutional and -hoidd continue?
Answer. The Supreme Court has stated that governmental race-based classifica-
tions are subject to strict scrutinythat is, race-based classifications are permissible
only where a compelling governmental interest is served and where programs using
race-based classifications are narrowly-tailored. A determination of whether a com-
pelling governmental interest is served and whether a program is narrowly tailored
is necessarily an individualized one. It is therefore difficult for me to agree or dis-
agree with the broad statement that affirmative action programs like the Transpor-
tation Departments Disadvantaged Business Program are constitutional. It is likely
that, when subjected to a strict scrutiny analysis, some governmental affirmative ac-
tion programs will be found to satisfy the strict scrutiny standard while some will
require modification. Indeed, in the Adarand case itself, the Tenth Circuit reached
different conclusions regarding the constitutionality of different versions of the De-
partment, of Transportation regulations at issue. See Adarand v. Slater, 228 F.3d
1147, 1187 (10th Cir. 2000)([W]e conclude that the 1996 SCC [Subcontractor Com-
pensation Clause] was insufficiently narrowly tailored as applied in this case and
is thus unconstitutional under Adarand Ills strict standard of scrutiny. Nonetheless
. . . we conclude that the 1996 defects have been remedied, and the relevant pro-
grams now meet the requirements of narrow tailoring.).
Question 7. Would you defend these programs internally by, for example, urging
the Solicitor General to take a position that such programs are constitutional?
Answer. I will vigorously urge the Solicitor General to defend any government af-
firmative action program that serves a compelling governmental interest and is nar-
rowly tailored. Again, however, given tae individualized inquiry required by the
strict scrutiny standard, it is difficult to generalize about affirmative action pro-
grams.
Question 8. As you may know, the Civil Rights Division has an important role in
government programs because it provides guidance to federal agencies on imple-
 139
menting affirmative action in these programs. Can you assure the American people
that under your leadership, the Civil Rights Division will continue to provide guid-
ance to federal agencies to facilitate affirmative action in government programs?
Answer. Should I be confirmed, the Civil Rights Division will continue to provide
guidance to federal agencies with respect to affirmative actions programs.
Question 9. Many public school districts have adopted diversity policies which re-
sult in racial desegregation at the K through 12 level. These policies have been at-
tacked in the courts as impermissible race-consciousness, and the Civil-Rights Divi-
sion has supported these policies in a number of lawsuits, for example in Montgom-
ery County, Maryland and in Rochester, New York. Will you continue to support
these policies?
Answer. As I have said previously, I believe that diversity is very important to
our nations schools. This includes not only universities, but also K through 12. It
is certainly of the utmost importance as a tool to overcoming vestiges of segregation.
Indeed, I have benefitted personally from efforts to promote diversity, and from hav-
ing had the opportunity to learn and work in increasingly diverse environments. I
will continue to support efforts to overcome vestiges of segregation and achieve uni-
tary status in public school districts. With respect to the lawsuits to which the Sen-
ator refers, I am unfamiliar with the details of the policies in those cases.
Question 10. In past decisions, the Supreme Court said that school districts should
not be declared unitary unless they have taken all feasible action to eliminate all
vestiges of discrimination including educational deficits and housing segregation
caused by school segregation. (A) Will you look closely at requests for unitary status
in which Department of Justice is involved to assure that these vestiges are ade-
quately addressed? (B) Will you ensure that all such vestiges are eliminated before
agreeing to any motions for unitary status?
Answer. (A) Yes.
(B) I share the Attorney Generals view that segregation is inconsistent with the
14th Amendments guarantee of equal protection for all of its citizens. If confirmed
as Assistant Attorney General for Civil Rights, I would work to ensure that school
districts that have not achieved unitary status take all feasible action to eliminate
all vestiges of discrimination. However, it would not be appropriate for me to com-
mit to a particular course of action regarding future cases, except to say that I
would follow the goveraing law, and apply that law in an intellectually honest man-
ner.
Question 11. As head of the Civil Rights division, would you support the right of
public universities to consider race in deciding whether to admit students? (A) For
what purposes, if any, do you believe that public universities may consider race? (B)
Do you believe that fostering diversity within a student body is a constitutionally
sufficient rationale to support the use of affirmative action? (C) What is your view
of the constitutionality in recruitment efforts that are specifically designed to broad-
en the pool of minorities and women? Do you believe that Justice Powells decision
in the Bakke case is the law of the land?
Answer. Like all government race-based classifications, the use of racial classifica-
tions by public universities in admissions is permissible where the racial classifica-
tions are narrowly tailored to serve a compelling governmental interest. Thus, I
would support public universities consideration of race where the program in ques-
tion met these requirements. I believe that diversity is important to our nations
universities, particularly its public universities. This diversity advances important
educational (and, for that matter, workplace) objectives, and promotes fairness and
equality of opportunity for all people. Indeed, I have benefitted personally from ef-
forts to promote diversity; and from having had the opportunity to learn and work
in increasingly diverse environments.
(A) and (B) For me therefore, the importance of diversity in our universities (and
in other institutions throughout our society) in virtually inarguable. However,
whether, as a legal matter, the goal of fostering diversity is a constitutionally suffi-
cient rationale to support the use of non-remedial racial classifications is a harder
question.
The contours of the boundary between the constitutional and unconstitutional 1ise
of race in public university admissions are unclear and in need of clarification by
the Supreme Court. As many commentators have noted, with the exception of the
one paragraph of Justice Powells opinion holding that the California Supreme
Courts decision should be reversed as to its holding that the use of race in Davis
admissions program was never permissible, none of the six Bakke opinions issued
by the Supreme Court in that case were supported by a majority of the Court. Thus,
while five Justices agreed that the University of California at Davis was not prohib-
ited from ever considering race in its admissions process, there was disagreement
 140
as to what rationale or rationales justified consideration of race. In particular, no
other Justice joined that portion of Powells opinion discussing diversity as a con-
stitutionally permissible basis for consideration of race in admissions. Accordingly,
subsequent lower Court decisions have stpzggled to discern which rationales foi con-
sideration of race are permissible in the admissions context. In particular; while the
law seems well-settled that it is permissible to consider race as a remedial response
to well documented past discrimination by the institution implementing the racially
conscious program, the lower courts have split on the question of whether Justice
Powells diversity rationale articulates a compelling governmental interest. While
the Supreme Courts affirmative action decisions in Croson and Adarand raise the
question of whether nonremedial racial classifications will ever survive strict scru-
tiny analysis, the Court has notlearly overruled Bakke.
Therefore, I view the question as an open one, and would have to review each pro-
gram on a cases by case basis to determine if a diversity-based race-conscious ad-
missions program was narrowly tailored to further a compelling state interest.
(C) I would have to review any specific recruitment program before reaching a
firm conclusion, but I generally support efforts to broaden the pool of applicants to
educational institutions and increase the number of qualified applicants of all races,
genders, and backgrounds.
My views on Bakke are expressed above, and the Bakke decision is the law of the
land only with respect to its actual holdings. Because the six Bakke opinions each
failed to gather five votes (with the exception of the one paragraph of Justice Pow-
ells opinion discussed above), considering any of the six opinions as expressing the
reasoning of the Court is problematic.
Question 12. Many observers have suggested that the current litigation involving
the use of affirmative action by the University of Michigan in both undergraduate
and law school admissions will ultimately be resolved by the Supreme Court. As you
know, there are currently conflicting decisions in that litigation, as one District
Court judge has upheld the universitys use of affirmative action for undergradu-
ates, and another has struck down the use of affirmative action by the law school.
(a) Are you familiar with the District Court opinions in the Michigan cases?
Answer. Yes.
(b) Do you find the District Courts opinion striking down Michigan Law Schools
affirmative action program persuasive:
Because the Civil Rights Division may be called upon to take a position in one
or both of the Michigan cases, I hesitate to engage in a specific evaluation of these
cases, especially without the benefit and insight that I would hope to gain by dis-
cussing this with the career attorneys at the Division. The different outcomes in
these two cases clearly illustrate just how fact intensive these cases can be and how
correspondingly great our obligations are as government attorneys to examine care-
fully the specific facts of each case. In my experience, powerful facts typically drive
or substantially influence litigation outcomes.
(c) From what you know of this case, do you believe it would provide an appro-
priate vehicle for the Supreme Court to rule on the use of affirmative action by col-
leges and universities?
While I do think the Supreme Court should directly address the question of when
racial classification by public universities is permissible, I hold no opinion as to
whether the Michigan Law School case, as opposed to any other pending admissions
affirmative action case, would present the most appropriate vehicle for it to do
so.
Question 13. In the University of Michigan cases, a range of evidence was put in
the record showing that there were compelling educational justifications for pursu-
ing racial and ethnic diversity. This evidence included the expert testimony of Wil-
liam Bowen and Derek Bok, former president of Princeton and Harvard respectively,
who, relying on evidence from their study, The Shape of the River, showed the bene-
fits of a racially and ethnically diverse student body in producing leaders from
under-represented minority groups and in promoting racial understanding, and Pa-
tricia Gurin, a psychology professor at Michigan, who testified on the cognitive bene-
fits of racial and ethnic diversity in the classroom, as well as the long-term benefits
gained through increased ability to deal with others from different racial back-
grounds. Quite apart from the question of whether Bakke is good law, do you think
that a University may ever have a compelling interest in pursuing racial and ethnic
diversity, because of the cognitive and democracy benefits gained by diversity? What
kind of evidence would you require to show this?
Answer. I believe that racial and ethnic diversity is vitally important to our na-
tions universities, particularly its public universities. This diversity advances im-
portant educational (and, for that matter, workplace) objectives, and promotes fair-
 141
ness and equality of opportunity for all people. Indeed, I have benefitted personally
from efforts to promote diversity, and from having had the opportunity to learn and
work in increasingly diverse environments.
For these reasons, I have spent most of my adult life furthering this cause. I have
worked especially hard to include and involve young people of color in educational
and legal institutions with which I have had the good fortune to be affiliated. I have
worked with young people of color in the NAACPs ACTSO (academic Olympics) pro-
gram, and in the Boston Bar Associations summer jobs program, which places
urban high school students in summer jobs at Boston law firms. I worked vigorously
on outreach and the recruitment of minority students when I served as the Assist-
ant Director of Admissions at Haverford College, my alma mater. I was extensively
involved in recruiting lawyers of color at the United States Attorneys Office, and
more recently at Goodwin Procter LLP, my law firm, where I serve on the hiring
committee. I also have worked diligently to recruit (and retain): young lawyers of
color to Boston law firms and public law offices through my work with the Boston
Lawyers Group; lawyers of color for judicial positions in Massachusetts through my
work on the Judicial Nominating Council; and professionals of color to jobs in Mas-
sachusetts state government through my work on the Governors Diversity Advisory
Group.
The importance of diversity in our universities is thus for me quite clear. How-
ever, whether, as a legal matter, such diversity constitutes a compelling govern-
mental interest is a harder question. The Supreme Court and Congress have repeat-
edly insisted that mere racial balancing or quota systems are not appropriate, and
thus diversity cann,)t justify a policy of racial proportionality. Moreover, the
.Supreme Court has made clear that all governmental racial classifications are in-
herently suspect and therefore must satisfy strict scrutiny to be permissible. It is
a close question about which I do not enjoy the comfort or certainty of having a well-
settled view, and for this reason I continue to have an open mind on the matter.
As a matter of conscience, I believe deeply that government should first help peo-
ple in needall people. Government must therefore, act cautiously and carefully
when it classifies people by race, even to achieve an important objective such as di-
versity. Although I am not inalterably opposed to it for the reasons I stated earlier,
grouping people by race does give me some pause.
Question 14. What is your view of the Supreme Courts decisions in Shaw v. Reno
and its progeny, and in particular its decision earlier this year in Hunt v.
Cromartie? In light of those decisions, how would you advise those States covered
under the Voting Rights Act to treat race in the redistricting process?
Answer. Under Section 5 of the Voting Rights Act, covered jurisdictions may not
implement any redistricting plan that has the purpose of effect of denying or abridg-
ing the right to vote on the basis of race. Thus, in some instances, the Act requires
covered jurisdictions to consider race in their redistricting deliberations. Shaw v.
Reno and progeny essentially impose a ceiling on the use of race in redistricting by
holding that covered jurisdictions violate the Fourteenth Amendment if race is a
predominant factor in redistricting efforts. Though I am not yet fully familiar with
the Supreme Courts jurisprudence in this area, my reading of Hunt v. Cromartie
is that the Courts decision rested more on a re-review of the factual record, not on
any alteration in the Courts predominant factor standard. The Court held that a
three judge panel in the Eastern District of North Carolina was clearly erroneous
in finding that North Carolinas Twelfth Congressional District, as then configured,
was drawn predominantly for racial reasons. Based on the foregoing, it appears that
any covered jurisdiction seeking preclearance under Section 5 must submit a redis-
tricting plan that is not motivated predominantly by race, but also does not cause
a retrogression in minont;, voting strength.
Question 15. In 2007, Congress will consider the extension of Section 5 of the Vot-
ing Rights Act, 42 U.S.C. 1973c. (A) what is your position regarding the continued
need for this civil rights
provision? (B) Would you advocate for its extension when it comes up for renewal
in 2007?
Answer. Section 5 continues to be the primary means of ensuring that covered ju-
risdictions preserve and promote minority voting strength. The decision to revisit
Section 5 is a legislative prerogative. I can assure the Senator, however, that, if I
am confirmed, the Civil Rights Division will take seriously its preclearance obliga-
tions under Section 5 for as long as Section 5 is existing law.
Question 16. Federal observers have been sent to monitor elections in a variety
of circumstances, including when local jurisdictions request them, and when the De-
partments pre-election investigation indicates there may be intimidation, harass-
ment, or other interference with minority voters at the polls on election day. Are
 142
you willing to maintain this program at its current levels or will you cut back on
the number of observers sent by the Department to monitor elections?
Answer. I share the Attorney Generals view that the use of election observers in
covered jurisdictions and election monitors in non-covered jurisdictions should be in-
creased in order to better discourage voter fraud and help ensure voting rights.
Question 17. What priority will you give as Assistant Attorney General to enforc-
ing the provisions of Section 2 of the Voting Rights Act, which prohibits electoral
practices that dilute minority voting strength by denying minority voters an equal
opportunity to elect candidates of their choice to office?
Answer. I share the Attorney Generals view that enforcement of the Voting
Rights Act should be a priority. I believe that Section 2 is one of the most important
federal laws ensuring equal access for minority voters. If confirmed and presented
with credible evidence that a jurisdiction has imposed a practice or procedure that
dilutes minority voting strength in violation of Section 2, I would expect to direct
the Voting Section to investigate the matter and enforce Section 2 as appropriate.
Question 18. Supreme Court decisions have re:iad upon the 14th Amendment to
strike down majorityblack and Hispanic congressional and legislative.districts en-
acted by state legislatures. Isnt that an example of judicial activism, in which the
Court is substituting its view of a proper redistricting plan for the view of the state
legislatures?
Answer. My understanding of the Courts decisions in Shaw v. Reno, Miller v.
Johnson and other similar cases is that the Court is not imposing on the states its
view of a proper redistricting plan, but is instead preventing covered jurisdictions
from violating the Fourteenth Amendmei.t by relying too heavily on racial classifica-
tions.
Question 19. As Assistant Attorney General, will you continue to enforce the dis-
criminatory effects standard under the Voting Rights Act?
Answer. I understand the Senator to be referring to the discriminatory effects
prong of Section 5 of the Voting Rights Act, and to the Civil Rights Divisions re-
sponsibilities to preclear redistricting plans under that section. If confirmed, I would
continue to enforce Section 5 to prevent implementation of redistricting plans hav-
ing an improperly retrogressive effect on minority voting strength.
Question 20. Are you willing to vigorously enforce Section 203 of the Voting Rights
Act which requires the ballots and other election-related materials be translated in
certain areas of the country where a number of citizens are limited English pro-
ficient?
Answer. Yes.
Question 21. Do you agree that certain states, with a history of using discrimina-
tory methods to intentionally keep black voters from being able to register to vote,
such as literacy tests, should still be required to submit changes in election laws
or procedures to the Justice Department or the District Court for the District of Co-
lumbia for review before those laws or procedures are allowed to take effect?
Answer. Section 5 continues to be the primary means of ensuring that jurisdic-
tions with a history of minority voter disenfranchisement preserve and promote mi-
nority voting strength. If I am confirmed the Civil Rights Division will continue to
enforce Section 5 of the Voting Rights Act, as it will all existing federal statutes fall-
ing within its jurisdiction, including careful review of all redistricting plans submit-
ted to the Voting Section by covered jurisdictions.
Question 22. Will you ensure that the Justice Department carefully reviews all
new redistricting plans drawn after the 2000 census that are submitted to it to
guarantee that such plans do not have the purpose or effect of discriminating
against minority voters?
Answer. If confirmed, I would ensure that the Voting Section carefully reviews all
redistricting plans submitted to it by covered jurisdictions under Section 5 of the
Voting Rights Act.
Question 23. Will you allow the Civil Rights Division to continue bringing meri-
torious claims under Section 2 of the Voting Rights Act where it appears that the
voting strength of minority voters is being diluted by unfair redistricting plans?
Answer. Yes.
Question 24. As Assistant Attorney General, will you allow Department of Justice
(DOJ) personnel who have gained expertise in the area of clinic access to continue
to work in this area if they so desire?
Answer. Having served for several years as a career Assistant United States At-
torney, and having been a litigator for almost 17 years, I believe as a general matter
that experience and expertise are important factors in decisions regarding personnel
assignments.
 143
Out of respect for the Senates role in giving advice and consent, I have not re-
viewed, nor had the benefit of, a careful review of the Department of Justice person-
nel who have gained expertise in the area of clinic access. I am unaware of any pro-
posals to reassign such personnel and have no such plans of my own. It would not
be appropriate for me to make any additional statements, however, concerning the
future employment status of Department personnel whom I have not met, and with
respect to whose performance I have no knowledge.
Question 25. In Alexander v. Sandoval, the Supreme Court recently held that pri-
vate plaintiffs cannot sue in federal court to enforce the regulations under Title VI
of the Civil Rights Act of 1964 that prohibit recipients of federal funds from using
practices that have a discriminatory effect. Because the Court did not invalidate
these regulations, organizations that receive federal funds might be violating federal
regulations due to discriminatory practices, but the individuals affected by those
practices now cannot sue to enforce the regulations. This makes it even more impor-
tant for the federal government to vigorously enforce the Title VI disparate impact
regulations, through both lawsuit and administrative investigations. What plans do-
you have to ensure the continued vitality of these regulations.
Answer. I agree with the Senator that, because private litigants may no longer
bring suit under Title VI to enforce disparate impact regulations passed under Sec-
tion 602 of that law, added responsibility falls on the federal government to monitor
Title VI compliance Out of respect for the Senates advice and consent function I
have not yet consulted with the Attorney General regarding this issue, nor have I
formulated any specific plans regarding Title VI regulations. I do note, however,
that private litigants, depending on the circumstances, may have other means of en-
forcing regulations promulgated under Title VI, e.g., private actions under 42 U.S.C.
1983. One recent decision has so held. See South Camden Citizens in Action v.
New Jersey Department of Environmental Protection, Civil No. 01702 (D.N.J., May
10, 2001).
Question 26. One way to promote trust between the police and communities is to
ensure that we are recruiting and hiring a diverse police force that has the requisite
skills to engage in community oriented policing. For many years, the Civil Rights
Division has brought lawsuits against police departments using hiring tests that
have an adverse impact on minority applicants, where the tests have not been
shown to predict successful job performance. Police tests that focus only on cognitive
skills are said to do a worse job at predicting success as a police officer than tests
that add elements to evaluate other skills and personality traits, such as problem
solving and teamwork. Will you continue bringing lawsuits against departments
using tests that have a disparate impact, where alternative selection devices with
less adverse impact are available?
Answer. 1, too, believe that hiring tests that impose an adverse impact on minor-
ity applicants, where those tests have not been shown to adequately predict success-
ful job performance, are unlawful. I hesitate to comment, however, regarding the job
relatedness of specific groups tests without having the opportunity to review care-
fully the specific tests and the facts of each case, and without the benefit of opinions
of the career attorneys at the Civil Rights Division. I commit, however, to continu-
ing to enforce the disparate impact provisions of Title VII.
Question 27. Last year, President Clinton issued Executive Order 13166, which
is aimed at providing persons who have limited English proficiency (LEP), often as
a result of their national origin, with meaningful access to federally conducted and
federally assisted programs and activities; for example, federally funded hospitals
taking reasonable steps to provide translation services to LEP patients, so they can
understand the medical advice and trezt:.zcnt they are receiving. Will you commit
to supporting and carrying out the existing Executive Order, and oppose efforts to
eliminate it?
Answer. If confinned, I would steadfastly implement and enforce Executive Order
13166. As a personal matter, I believe that people with limited English skills should
rot be left behind, especially in the circumstances discussed in your question. People
simply cannot have meaningful access to health care if they are not able to under-
stand the medical advice and treatment they are receiving.
Although the factors set forth in the guidance documents under Executive Order
13166 appear to reflect a reasoned approach to deciding when programs receiving
federal assistance must provide limited English proficiency services, it would not be
appropriate for me to commit to a course of action regarding the Order without the
benefit of careful study, and without considering the views of affected components
of the Department of Justice and other agencies within the Administration. If con-
firmed, I would welcome your views on this important matter.
 144
Question 28. The Justice Departments power to initiate inquiries to determine
whether there is a pattern or practice of abuse and poor accountability in particu-
lar police departments has become an essential tool in combating unchecked police
nusconduct. Investigations in Pittsburgh, Los Angeles, and New Jersey, for example,
have not only lead to improvements in those particular department, but also send
a strong signal to all police departments about the best practices the Justice De-
partment supports. (A) Can you assure us there will be no retreat from these inves-
tigations? (B) Are you committed to the continuing the Divisions commitment to
employing consent decrees to remedy the patterns and practices in the subject juris-
dictions?
Answer. Congress enacted U.S.C. 14141 to promote police integrity, combat po-
lice misconduct, and ensure the protection of civil rights for all Americans. I agree
with those goals and I share the Attorney Generals stated commitment to enforce
this statute.
In this area, the Civil Rights Divisions job is to identify problems and help solve
them, preferably cooperatively, but through the adversarial litigation process if nec-
essary. At least as air initial matter, cooperative efforts to work with local law en-
forcement agencies, victims groups, and civil rights organizations may in some in-
stances be more productive and efficient. The Division can provide consulting, train-
ing, and other technical assistance to police departments that are engaged in serious
efforts to correct problems and put in place processes and practices designed to min-
imize, if not eliminate entirely pattern or practice problems. Where they are not,
if confirmed, I would expect to instruct the Special Litigation Section to pursue ad-
versarial litigation, utilizing a range of remedial tools, including consent decrees.
Question 29. How would you, as [Assistant] Attorney General, encourage enforce-
ment of fair housing laws under a disparate impact theory?
Answer. The Civil Rights Division uses a vanety of tools to prevent discrimination
in housing and related activities, e.g., the Fair Housing Act and Title II of the Civil
Rights Act, and I am aware that many courts hold, in certain circumstances, that
the Fair Housing Act may be violated on a showing of disparate impact, absent evi-
dence of discriminatory intent. Pursuant to 42 U.S.C. 3614, the Attorney General
may initiate a civil enforcement action where he has reasonable cause to believe
that any person or group of persons is engaged in a pattern or practice that violates
the Fair Housing Act. If confirmed, I will enforce these laws fairly and
evenhandedly. Equally important to this fair and evenhanded commitment is my
commitment to review every suit recommendation presented to me to ensure that
where discrimination exists, it is ended and remedied.
Question 30. In recent years as a Congress we have gone to great length to in-
crease homeownership generally and specifically in minority communities. A major
component to owning a home is the acquisition of property insurance. Over the last
five years we have seen significant evidence demonstrating that some major na-
tional insurance carriers intentionally discriminate in low income, predominantly
minority neighborhoods. In light of this, what is your view on discrimination in the
homeowners insurance market? And in your opinion is such discrimination covered
under the Fair Housing Act?
Answer. Home ownership, especially in minority communities, is a basic part of
the American dream. I agree with the Senators view that acquisition of property
insurance is a necessary prerequisite to home ownership and that intentional dis-
crimination in the insurance market is unacceptable. When discrimination is at
work in illegally denying persons home ownership, I will work to enforce all applica-
ble laws, including the Fair Housing Act, to end that discriminatory conduct.
Question 31. The disabled community continues to face, a number of frustrations,
one of which is finding accessible housing. A number of people feel that one of the
biggest impediments to overcoming this hurdle is the implementation of the Fair
Housing Acts new construction requirements. As Assistant Attorney General you
will be asked to uphold this requirement will you strongly enforce this provision of
law. Do you believe that the accessibility for the disabled is a matter suitable for
federal intervention?
Answer. Yes.
Question 32. The Department of Justice, Civil Rights Division, operates a well co-
ordinated and effective testing program to detect discriminatory housing practices.
Will you continue to use testing to establish pattern and practice evidence of civil
rights abuses and discrimination in housing.
Answer. Yes.
Question 33. The Civil Rights Division has been very active in prosecuting lending
discrimination cases. (A) Will you continue to prosecute lending discrimination
 145
cases? (B) What is your position on the use of an effects test to prove lending dis-
crimination?
Answer. The right to own a home and to access credit are basic to the American
dream. These rights should be avaiiahle to every person. When discrimination plays
a role in either denying persons these rights or exploiting their vulnerabilities, I will
work to end that discriminatory conduct and make the victims whole. My under-
standing of the proof in such cases is that it can be exceedingly ccmplex, covering
a wide range of practices and offices, and involve the conduct of many employees
of the lender. My judgment and experience tell me that it would be the rare and
unusual case that relied only on a simple effects test as proof of discrimination. It
is much more likely that when Division attorneys recommend that a suit be brought
in this area, I will be presented with fact patterns that require a review of a broad
range of evidence.
Out of respect for the Senates advice and consent function, I have not yet had
the opportunity to confer with the career staff on this issue. I believe it is important
to speak with them regarding the Divisions history in these cases and the specific
evidence presented before making specific determinations in the fair lending area.

QUESTION SUBMITTED BY SENATOR LEAHY AND SENATOR KENNEDY

Question 1. Many Senators on this Committee have been strong supporters of the
Americans with Disabilities Act. In recent years, there has been an increase in liti-
gation between the Department of Justice and private industry concern-ing the reg-
ulations issued in furtherance of this Act. Will you encourage the Civil Rights Divi-
sion to engage in serious and substantial negotiations with responsible industries
that seek in good faith to clarify the requirements of the ADA?
Answer. Yes.

QUESTION SUBMITTED BY SENATOR BIDEN

Historically; the most important tool the Civil Rights Division has wielded in en-
forcing the law is the so-called pattern-or-practice suit. As the name implies, this
tool allows the Division to go after patterns of discrimination, rather than the mis-
deeds of individuals. For instance, the Civil Rights Division has used pattern-or-
practice litigation to reach consent decrees with several lawenforcement agencies.
The problem there was rooted not so much in discriminatory conduct by individual
officers, but in policies and patterns those agencies adopted years ago that no longer
reflect our law.
Question. Can we have your full commitment to the use of pattern-or-practice
litigatiorin enforcing our civil rights laws?
Answer. Yes. If confirmed, and in consultation with the Attorney General, I would
use 42 U.S.C. 14141 where appropriate to redress patterns of discrimination, espe-
cially in situations where efforts to put an end to persistent, unlawful conduct are
not successful through other means.

QUESTIONS SUBMITTED BY SENATOR TED KENNEDY

Question 1. A federal district court judge in the University of Michigan under-
graduate case recently ruled in favor of the University on summary judgment, find-
ing that: a racially and ethnically diverse student body produces significant edu-
cational benefits such that diversity, in the context of higher education, constitutes
z compelling governmental interest under strict scrutiny. Do you agree with the
courts view that diversity can be a compelling governmental interest in the higher
education context?
Answer. I believe that diversity is very important to our nations universities, par-
ticularly its public universities. This diversity advances important educational (and,
for that matter, workplace) objectives, and promotes fairness and equality of oppor-
tunity for all people. Indeed, I have benefitted personally from efforts to promote
diversity, and from having had the opportunity to learn and work in increasingly
diverse environments.For these reasons, I have spent most of my adult life further-
ing this cause. I have worked especially hard to include and involve young people
of color in educational and legal institutions with which I have had the good fortune
to be affiliated. I have worked with young people of color in the NAACPs ACTSO
(academic Olympics) program, and in the Boston Bar Associations summer jobs pro-
gram, which places urban high school students in summer jobs at Boston law firms.
I worked vigorously on outreach and the recruitment of minority students when I
served as the Assistant Director of Admissions at Haverford College, my alma
mater. I was extensively involved in recruiting lawyers of color at the United States
 146
Attorneys Office, and more recently at Goodwin Procter LLP, my law firm, where
I serve on the hiring committee. I also have worked diligently to recruit (and re-
tain): young lawyers of color to Boston law firms and public law offices through my
work with the Boston Lawyers Group; lawyers of color for judicial positions in Mas-
sachusetts through my work on the Judicial Nominating Council; and professionals
of color to jobs in Massachusetts state government through rrmy work on the Gov-
ernors Diversity Advisory Group.
For me therefore, the importance of diversiry in our universities (and in other in-
stitutions throughout our society) in virtually inarguable. However, whether, as a
legal matter, such diversity constitutes a compelling governmental interest such
that government is permitted to classify people by race for the purpose of assigning
opportunities isfor mea harder question. The Supreme Court and Congress have
repeatedly insisted that mere racial balancing or quota systems are not appropriate,
and thus diversity cannot justify a policy of racial proportionality. Moreover, the Su-
preme Court has made clear that all governmental racial classifications are inher-
ently suspect and therefore must satisfy strict scrutiny to be permissible. It is a
close question about which I do not enjoy the comfort or certainty of having a well-
settled view, and for this reason I continue to have an open mind on the matter.
Similarly, I also do not have a settled view regarding the nature and scope of the
proof necessary to establish diversity as a compelling governmental interest.
As a matter of conscience, I believe deeply that government should first help peo-
ple in needall people. Government must therefore act cautiously and carefully
when it classifies people by race, even to achieve an objective as important as diver-
sity.
Question 2. Although America experienced a significant drop in violent crime dur-
ing the 1990s, the number of hate crimes has continued to grow. In fact, according
to FBI statistics, in 1999 there were 7,876 reported hate crimes committed in the
United States. Thats over 20 hate crime per day, every day.
During the last Administration, the Assistant Attorney General for Civil Rights
was a strong and vocal supporter of needed federal hate crimes legislation. In an
Op/Ed that appeared in the L.A. Times, he stated that: (j]ust as our laws punish
crimes more severely when guns are involved, or when there is deliberate planning
and premeditation, so should they when there is bias motivation. Do you support
passage of a federal hate crimes law?
Answer. If confirmed, I would work vigorously to fulfill the Attorney Generals
pledge to take all reasonable and appropriate steps to combat hate crimes at the
federal level. I would welcome the opportunity to have a dialogue with you and
other Senators about this important issue. At this time, however, it would not be
proper for me to state a policy position on such a measure without the benefit of
careful study and without the views of others in the Department of Justice and the
Administration.
Question 3. In light of the Supreme Courts recent federalism decisions, what is
your understanding of the nature and scope of Congresss powers under the Com-
merce Clause and 14 Amendment to protect basic rights?
Answer. Following the Supreme Courts decisions in United States v. Lopez and
United States v. Morrison, congressional power remains broad. These decisions seem
to suggest that Congress may act to regulate and protect: (i) the use of channels
of interstate commerce; (ii) instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat may come only from intra-
state activities; and (iii) activities substantially affecting interstate commerce. It
would seem however, that these cases suggest that the Commerce Clause, without
more, does not allow Congress to regulate purely intrastate criminal activity.
As for Congress powers under the Fourteenth Amendment, Section 5 of that
Amendment allows Congress to pass laws abrogating states Eleventh Amendment
immunity if needed to enforce the requirements of the Fourteenth Amendment. As
the Supreme Court has observed, while congressional enactments pursuant to Sec-
tion 5 need not exactly track judicial developments concerning what is prohibited
by the Fourteenth Amendment, such enactments must exhibit congruence and pro-
portionality between the injury to be prevented and the means adopted to prevent
it. See, e.g., Board of Trustees v. Garrett, 531 U.S. (Feb. 21, 2001).
Question 4. If federally funded programs or activities are shown to have a dis-
criminatory effect on minorities or women, should private plaintiffs be allowed to
bring suits challenging those programs or activities?
Answer. The Supreme Courts recent decision in Alexander v. Sandoval holds that
private parties may not sue to enforce the Title VI disparate impact regulations.
However, even after Sandoval, these Title VI disparate impact regulations remain
on the books. Moreover, private parties can still sue in situations where evidence
 147
of discriminatory effect, standing alone or with other evidence, can be said to reflect
discriminatory intent on the part of those administering a federally funded program
or activity.
In addition, a federal court recently held that a private party may sue a state
actor based on the fact that its federally supported program had a discriminatory
effect (or disparate impact) on racial minorities, pursuant to 42 U.S.C. 1983. See
South Camden Citizens in Action v. New Jersey Department of Environmental Pro-
tection, No. 01702 (D.N.J., May 10, 2001). Title VII also remains a viable statutory
ground for private party actions alleging disparate impacts on minorities and
women.
If confirmed, I would welcome the opportunity to work with the Senator, and oth-
ers, on issues relating to Sandoval and its effects on the fair administration of feder-
ally funded programs and activities.
Question 5. If it is appropriate for the federal government to play an active role
in prosecuting gunrelated crimes, why is it not appropriate for the federal govern-
ment to also play a role in prosecuting hate-motivated crimes?
The Civil Rights Division plays an active role in prosecuting certain bias-moti-
vated crimes, e.g., 18 U.S.C. 245 (bias-motivated violence directed at school at-
tendance, seeking public employment, and using public facilities or accommoda-
tions), 247 (bias-motivated conduct obstructing religious freedom), and 42 U.S.C.
3631 (bias-motivated violence directed at enjoyment of housing). I believe that this
is an appropriate, important role for the Civil Rights Division.
If confirmed, I would work hard to fulfill the Attorney Generals pledge to take
all reasonable and appropriate steps to combat crimes, whether they be motived by
bias, hate or otherwise. This would include a careful study of how best to combat
such crimes, and what the federal governments role should be in achieving this im-
portant objective. Whatever the federal governments ultimate role in addressing
this sonous problem, either through federal legislation, litigation, or subsidization
of state law enforcement efforts, that role should reflectand send a clear and un-
equivocal message aboutthe extent of our unwillingness to tolerate this criminal
activity.
Question 6. Do you believe a public institution of higher educationwithout a his-
tory of past discriminationcan ever use race or gender as one factor among many
in creating a diverse student body without violating the constitutional strict scru-
tiny standard?
Answer. I believe that diversity is important to our nations universities, particu-
larly its public universities. This diversity advances important educational (and, for
that matter, workplace) objectives, and promotes fairness and equality of oppor-
tunity for all people. Indeed, I have benefitted personally from efforts to promote
diversity, and from having had the opportunity to learn and work in increasingly
diverse environments.
For these reasons, as I previously detailed, I have spent most of my adult life fur-
thering this cause. I have worked especially hard to include and involve young peo-
ple of color in educational and legal institutions with which I have had the good
fortune to be affiliated. I have worked with young people of color in the NAACPs
ACTSO (academic Olympics) program, and in the Boston Bar Associations summer
jobs program, which places urban high school students in summer jobs at Boston
law firms. I worked vigorously on outreach and the recruitment of minority students
when I served as the Assistant Director of Admissions at Haverford College, my
alma mater. I was extensively involved in recruiting lawyers of color at the United
States Attorneys Office, and more recently at Goodwin Procter LLP, my law firm,
where I serve on the hiring committee. I also have worked diligently to recruit (and
retain): young lawyers of color to Boston law firms and public law offices through
my work with the Boston Lawyers Group; lawyers of color for judicial positions in
Massachusetts through my work on the Judicial Nominating Council; and profes-
sionals of color to jobs in Massachusetts state government through my work on the
Governors Diversity Advisory Group.
For me therefore, the importance of diversity in our universities (and in other in-
stitutions throughout our society) is virtually inarguable. However, whether us a
legal matter such diversity, absent a history of past discrimination, satisfies strict
scrutiny, is a harder question. While the Supreme Courts affirmative action deci-
sions in Croson and Adarand raise the question of whether non-remedial racial clas-
sifications will ever survive strict scrutiny analysis, the Court has not clearly over-
ruled Bakke.
Question 7. Do you believe that charter schools should have to comply with federal
civil rights laws?
Answer. Yes.
 148
Question 8. Will your office review current congressional redistricting plans to en-
sure that they do not have the purpose or effect of discriminating against minority
voters?
Answer. Yes, if confirmed I will ensure that the Voting Section carefully reviews
redistricting plans to ensure that they do not violate the Voting Rights Act.
Question 9. Since January, we have heard nothing from the Department of Justice
regarding its investigation into voting irregularities in the 2000 Presidential elec-
tion. Is the investigation a top priority for you, and what steps will you take to en-
sure that it is completed as soon as possible?
Answer. If confirmed, I would make voting rights investigations and voting reform
a top priority. I would investigate any alleged voting rights violation supported by
credible evidence, whether in the context of the November 2000 election, or with re-
gard to any other voting matter. In connection with any such investigation, I would
go, as I stated in my response to a similar question from Senator Leahy during my
confirmation hearing, wherever the evidence and law lead without flinching.
With respect to the November 2000 presidential election investigation, I am not
yet privy to, and in any event should not comment on, the details of an ongoing in-
vestigation. However, if confirmed, I would look forward to bringing my skills, judg-
ment, and experience as a federal prosecutor to bear on that, and any other civil
rights, investigation.
Question 10. As you know, the Department of Transportation has a Disadvan-
taged Business Enterprise Program designed to overcome past and present racial
discrimination in federally funded highway programs. Do you believe it is the Jus-
tice Departments responsibility to defend the constitutionality of this program when
the Supreme Court reviews it later this year in the Adarand case?
Answer. It is my view that the Department of Justice has an obligation to defend
Acts of Congress from constitutional challenge whenever a reasonable argument can
be made in support of a statute. My presumption is that the Department of Justice
will apply this principle to the Adarand case and, if confirmed,. will urge it to do
so. Of course, particular decisions related to the position of the United States before
the Supreme Court would rest with the Office of the Solicitor General.
Question 11. Attorney General Ashcroft has stated that he, believes that the prac-
tice of racial profiling by police should be eliminated. What litigation efforts should
the Civil Rights Division take in pursuit of this goal? Will you support legislation
establishing a federal cause of action allowing individuals to challenge racial
profiling by local, state, and federal law enforcement agencies?
Answer. Where a pattern or practice of profiling exits and local law enforcement
is neither cooperative nor taking meaningful steps to eliminate those practices, an
enforcement action pursuant to 42 U.S.C. 14141 must remain an option. I do not
believe, however, this should be the only step taken by the Civil Rights Division to
address the issue of racial profiling.
First, we need more hard data on racial profiling. We need careful study to deter-
mine definitively the scope, magnitude, permutations and manifestations of the
problem. The Attorney General has asked Congress to enact legislation authorizing
the Department of Justice to collect data for this purpose. The Civil Rights Division
should be involved in this effort. Second, the Civil Rights Division should make cer-
tain that specific procedures are in place under which individual complaints of ra-
cial profiling are given expedited review by Division attorneys. Third, the Division
should be ready to work cooperatively with local law enforcement by providing tech-
nical assistance regarding data collection, data interpretation and analysis, training,
policy development, and community outreach.
With respect to legislative proposals, I would welcome the opportunity to study
any legislation that the Senator may propose to eradicate unlawful racial profiling
and to work with him and other Senators on this issue. At this time, however, it
would be improper for me to take a position with respect to legislation without the
benefit of careful study and the views of others in the Department of Justice and
the Administration.
Question 12. During his 2000 campaign, President Bush expressed his general dis-
approval of Department of Justice investigations into patterns and practices of
wrongdoing by police departments, stating that the federal government should not
instruct state and local authorities on how police department operations are con-
ducted, becoming a separate internal affairs division. Do you agree with this state-
ment? If so, how do you intend to carry out the Departments pattern and practice
jurisdiction under The Violent Crime Control and Law Enforcement Act of 1994?
Answer. I share the Presidents belief that the Civil Rights Division should not
micro-manage the internal affairs of local law enforcement. Deference to local au-
thority, however, does not excuse a police department from complying with the law.
 149
I believe that the Civil Rights Division has a responsibility to investigate alleged
patterns or practices of unlawful wrongdoing by law enforcement. Where such inves-
tigations uncover reliable evidence of such unlawful practices, the Civil Rights Divi-
sion should take effective measures to eradicate such practices, either with the vol-
untary cooperation of the subject police department, or through adversarial litiga-
tion pursuant to 42 U.S.C. 14141, if necessary. Moreover, criminal prosecutions
may be warranted where the government has a reasonable prospect of proving be-
yond a reasonable doubt that law enforcement officers acted with specific intent to
deprive a person of her federally protected rights while actin under the color of law.
See 18 U.S.C. 242.
Question 13. Legal Services attorneys are prohibited by law from representing in-
mates. Arent their services essential to protect basic rights. Doesnt the lack of ef-
fective representation encourage abuses. What role you believe the Civil Rights
nivisinn should have in ensuring safe and humane conditions of confinement in jails
and prisons?
Answer. Lack of access to legal services hinders the cause of protecting basic civil
rights. This is in part why in 1988 my then-colleague A. Clayton Spencer and I rep-
resented pro bong the entire class of inmates in the custody of the Massachusetts
Department of Corrections in a class action suit against the Department. The suit
alleged violations of the inmates due process rights under the United States Con-
stitution and the Massachusetts Declaration of Rights in connection with the De-
partments drug surveillance and testing program, a program against which we ob-
tained injunctive relief, until the injunction eventually was vacated by the Supreme
Judicial Court of Massachusetts. See Gonzalez v. Fair, 407 Mass. 448 (1990).
The Civil Rights Division (through its Special Litigation section) has statutory au-
thority to investigate institutional conditions of confinement and file lawsuits to
rPmcdy a pattern cr practice of unlawful conditions of confinement in state-operated
facilities under the Civil Rights of Institutionalized Persons Act of 1980. Further-
more, the Division has similar responsibilities to seek judicial redress in situations
where juvenile offenders are subjected to a pattern or practice of uunlawful behavior
that violates their federally protected rights under the Violent Crime Control and
Law Enforcement Act of 1994. If confirmed, I would enforce these important stat-
utes.

QUESTIONS SUBMITTED BY SENATOR FEINGOLD

CIVIL RIGHTS EXPERIENCE & GOALS/PRIORITIES

Question 1. The Civil Rights Division is responsible for enforcing the civil rights
laws of our nation in areas such as education, employment, housing, voting rights,
and disability rights. You have spent most of your legal career in criminal matters,
as an Assistant U.S. Attorney, and in commercial litigation practice, as an associate
and later a partner with various Boston law firms. It appears that you have no sub-
stantial experience enforcing civil rights laws. Can you tell this Committee how your
experience has prepared you to undertake the responsibilities of the Assistant Attor-
ney General for Civil Rights?
Answer. I have been involved in civil rights, and dealt with civil rights-related
issues, all my life. As a child, I grew up attending civil rights and community action
program meetings with both of my parents, whoalong with other committed peo-
plewere co-founders of the Schenectady, N.Y. branch of the NAACP. While in
Schenectady, I served as co-chair of the Schenectady, N.Y. NAACP branchs Afro-
Academic, Cultural, Technological, and Scientific Olympics Program (ACTSO),
which provides opportunities for high school students of color to demonstrate their
academic talents and achievements in local, state and national competitions. During
the year that I organized and raised money for this effort, the Schenectady NAACP
branch sent five local high school students to the national competition in Denver,
Colorado.
While at Harvard Law School, I served as an editor of the Civil Rights Civil Lib-
erties Law Review, and as President of the Harvard Defenders, a student public de-
fender organization. During my second and third years of law school, I represented
numerous indigent criminal defendants in the Roxbury (Boston), Dorchester (Bos-
ton), and East Boston district courts.
Following law school, I clerked for the Honorable Joseph H. Young, United States
District Judge, District of Maryland. During my clerkship, I assisted Judge Young
in the preparation of two published civil rights decisions. See McAdoo v. Toll, 615
F. Supp. 1309 (D. Md. 1985) (Title VII case discussed in response to Question No.
15(a)(1), Judiciary Committee Questionnaire), and Smith v. Montgomery County,
 150
MD., 607 F. Supp. 1303 (D. Md. 1985) (strip search case discussed in response to
Question 15(a)(1), Judiciary Committee Questionnaire).
As a practitioner, I have handled pro bono approximately five civil rights or civil
rightsrelated cases as lead counsel. In fact, I have been lead counsel in two federal
civil rights cases against police officers, who were alleged to have violated the con-
stitutional rights of criminal defendants. In a third case, I was co-counsel in a state
court civil rights class action brought against the Massachusetts Department of Cor-
rections, a case that I argued from the lower court through to the Supreme Judicial
Court of Massachusetts. See Responses to Question 15(b) and (c).
As a federal prosecutor, I spent six years investigating, managing, and prosecut-
ing a variety of federal (and state) criminai cases, including firearms and narcotics
trafficking, homicide, bombing, and bank fraud cases. I also led an urban anti-vio-
lent crime initiative, which involved coordinating investigations and cases among
numerous federal and state law enforcement agencies, including the Boston Police,
Massachusetts State Police, Bureau of Alcohol, Tobacco and Firearms, Drug En-
forcement Administration, United States Marshal Service, Suffolk County District
Attorney Ralph Martins Office, Massacl:usetts.Attorney General Scott
Harshbargers Office, and Massachusetts Attorney General Tom Reillys Office.
All of these experiences have enhanced my knowledge and understanding with re-
spect to: (i) the fundamental importance of the rule of law; (ii) making informed and
sensible judgments about the principled and fair application of the law to a given
set of facts; (iii) how to prosecute complex cases successfully; (iv) setting investiga-
tive and prosecutorial priorities; (v) working with people, both in and out of law en-
forcement; (vi) deciding when to use litigation as a necessary enforcement tool, and
when more cooperation-based alternatives may be appropriate to achieve important
governmental and societal objectives; and (vii) the need for vigorous, fair and sen-
sible enforcement of our laws.
Question 2. What do you believe are the greatest civil rights challenges facing our
nation today? What steps would you expect to take to address these challenges?
Answer. I believe that there are many civil rights challenges facing our nation
today. They include, among other things: (i) ending unlawful racial profiling; (ii) en-
suring faith and confidence in the fairness of law enforcement; (iii) opening up op-
portunities for all people, especially those who historically have been excluded; (iv)
protecting the voting rights of all Americans; (v) protecting people from violence or
threatened violence, especially where an immutable characteristic, an irrelevant as-
pect of an individuals personal life, or a persons exercise of a fundamental constitu-
tional right serves as the impetus for violence or threatened violence against them;
and (vi), lowering the temperature, and raising the level of ear national discourse
about race.
If confirmed, I would work with the Attorney General and the career staff of the
Civil Rights Division to enforce existing federal law and implement civil rights ini-
tiatives (e.g., the Attorney Generals racial profiling and voting rights initiatives).
Question 3. What are your priorities for the Civil Rights Division? In what areas
do you think the Division has been lacking or is in need of improvement?
Answer. Out of respect for the Senates role in giving advice and consent on my
nomination, I have not consulted with the career staff of the Civil Rights Division
to determine areas of improvement or to formulate enforcement priorities beyond
those already outlined in these answers. I regard such consultations a prerequisite
to informed decision making in this area. However, I share the Attorney Generals
commitment to the vigorous enforcement of voting rights laws, to eradicating racial
profiling and worker trafficking, and to swift implementation of the Presidents New
Freedom Initiative. If confirmed as Assistant Attorney General for Civil Rights, I
would expect the Civil Rights Division to tackle, and effectiveiy deall with, the high
priorities of this Administration.
Question 4. Are there areas where you expect to lead the Civil Rights Division
to take a different approach or set a different course than it has had for the last
eight years under the previous Administration?
Answer. Out of respect for the Senates role in giving advice and consent on my
nomination, I have not consulted with the career staff of the Civil Rights Division.
I think that consultation with them is a prerequisite to informed decision making
about approaches the Civil Rights Division should take with respect to particular
issues. I note that the Attorney General has made clear that racial profiling, voting
rights, worker trafficking and implementation of the New Freedom Initiative will
be priorities for this Administration.
Question 5. As you know, there is significant concern in the civil rights community
and among minority populations generally that this Administration will not be as
 151
vigorous as the previous Administration in enforcing the civil rights laws. What as-
surances can you give this Committee that that will not be the case?
Answer. Time and again the President and Attorney General have expressed their
intentions to make civil rights enforcement a priority of this Administration. I would
not be before this Committee as the Presidents nominee to head the Civil Rights
Division if I did not think the President and Attorney General were sincere about
their commitments in this area. I can assure the Committee that, if confirmed, I
would, to the best of my ability, work strenuously to ensure that our nations civil
rights laws are enforced to protect the civil rights of all Americansrich or poor,
black, white or otherwise, religious or non-religious, gay or straight, able bodied or
disabled, native or foreign born.
RACIAL PROFILING & POLICE MISCONDUCT

Question 1. I believe one of the greatesi civil rights challenges facing our nation
today is racial profiling by law enforcement agents. This practice has seriously erod-
ed the important trust between the police and the communities they are charged
to protect and serve. I was pleased when President Bush pledged earlier this year
to end racial profiling in America. Attorney General Ashcroft has said he believes
racial profiling is unconstitutional and has pledged to work to end this practice. I
am working with Rep. John Conyers on legislation to eliminate this practice once
and for all. Youve spent a good part of your career as a prosecutor working with
law enforcement officials to fight crime, particularly urban and youth violence.
(a) Do you agree with the President and Attorney General that racial profiling is
wrong and should be banned?
Answer. Yes.
Question (b). Do you agree that racial profiling is unconstitutional?
Answer. Yes. The ;use of racial stereotypes as the basis for law enforcement action
is wrong and unconstitutional.
Question (c). Do you agree that the federal government has a responsibility to en-
sure that discriminatory police practices like racial profiling are eliminated, not only
at the federal level, but at the state and local levels?
Answer. Yes.
Question 2. The Special Litigation Section of the Civil Rights Division has played
an important role in helping to combat racial profiling and other police misconduct
by state and local law enforcement agencies. Under the Violent Crime Control and
Law Enforcement Act of 1994, or 42 U.S.C. 14141, the Justice Department can
take legal action against a law enforcement agency that has engaged in a pattern
or practice of conduct that deprives persons of their constitutional rights. In addi-
tion, under the Safe Streets Act of 1968, the Justice Department is authorized to
intervene to eliminate a pattern or practice of discrimination based an race, color,
religion, national origin or sex in connection with any law enforcement agency that
receives financial assistance from the Department of Justice.(a) Have you had any
experience with these statutes as an Assistant U.S. Attorney?
Answer. These are civil statutes. I was assigned to the Criminal Division of the
U.S. Attorneys Office and thus have not previously enforced these provisions.
Question (b) Do you agree that Justice Department action pursuant to these stat-
utes is an effective and necessary tool to combat discriminatory policing practices
like racial profiling and other police misconduct?
Answer. I agree that Justice Department enforcement of these statutes has proven
to be an important and effective tool in combating police misconduct.
Question 3. In addition to authority given to the Justice Department to investigate
and prosecute civil rights violations by state and local law enforcement, certain of
our civil rights laws also provide for private rights of action. For example, with
thousands of law enforcement agencies across the country, the Special Litigation
Section does not have the resources to investigate and pursue ali allegations of ra-
cial profiling. I understand that in private practice you represented some inmates
in a federal civil rights class action challenging a state prisons drug testing pro-
gram. You were acting in that case as a private attorney general. Do you agree
that, in addition to the authority of the Justice Department to intervene, an effec-
tive protection and enforcement of our nations civil rights laws has been the ability
of individuals to pursue legal action against law enforcement officials, state actors
or other wrongdoers?
Answer. Yes. The case in which I represented the class of inmates in the custody
of the Massachusetts Department of Corrections (DOC) was a state court class ac-
tion. The case involved allegations that the DOC violated inmates due process
 152
rights guaranteed by the United States Consutution and the Massachusetts Dec-
laration of Rights.
VOTING RIGHTS

Question 1. The Voting Rights Act is one of the most comprehensive civil rights
statutes ever enacted, eliminating literacy tests and poll taxes, outlawing intimida-
tion during the electoral process, and creating various methods for enforcing minor-
ity voting rights. Section 2 of the Voting Rights Act, 42 U.S.C. 1973, has been in-
terpreted by the United States Supreme Court as prohibiting the dilution of minor-
ity voting strength and requiring that electoral district plans provide minority vot-
ers an equal opportunity to elect their candidates of choice. Thornburg v. Gingles,
478 U.S. 30 (1986). As a result of the Voting Rights Act and, especially Section 2,
racial and ethnic minorities have enjoyed unparalleled opportunities to participate
in the electoral process, cast meaningful votes, and elect their candidates of choice.
(a) What is your position regarding whether compliance with Section 2 of the Vot-
ing Rights Act can serve as a compelling justification supporting the need to avoid
diluting minority voting strength during redistricting?
Answer. Section 2 of the Voting Rights Act is a fundamental provision for protect-
ing minority voting rights. Section 2 prohibits vote diiut:of, in redistricting and
other contexts, just as Section 5 prevents covered jurisdictions from implementing
redistricting plans that dilute minority voting strength in a manner that has a ret-
rogressive effect on minority voting strength. E.g., Reno v. Bossier Parish Schl. Bd.,
528 U.S. 320, 33536 (2000). As to whether Section 2 compliance is a compelling
interest, my understanding is that the Supreme Court has been willing to assume,
without directly deciding, that Voting Rights Act compliance can be a compelling
state interest. See, e.g., Bush v. Vera, 517 U.S. 952, 976979 (1996). The use of race
is also governed by the Courts decisions in Shaw v. Reno, Miller v. Johnson, and
similar cases.
If confirmed, I would ensure that federal voting laws, including Sections 2 and
5, are consistently and vigorously enforced according to the parameters set forth by
the Supreme Court and the Voting Rights Act itself.
Question (b) What is your position regarding the Department of Justices respon-
sibility and authority to enforce Section 2 of the Voting Rights Act?
Answer. The Department of Justice, as a federal law enforcement agency with
considerable resources, plays an important role in enforcing Section 2. If any juris-
diction imposes a practice or procedure to dilute minority voting strength, and the
necessary preconditions exist for a viable dilution claim, see Thornburg v. Gingles,
478 U.S. 30, 5051 (1986), that jurisdiction could be subject to suit under Section
2 and to an appropriate remedy, by injunction or otherwise. If confirmed as Assist-
ant Attorney General, I will work to ensure that the Voting Rights Section of the
Civil Rights, Division receives the necessary resources to vigorously enforce Section
2.
Question 2. Confronted with unremitting and ingenious defiance of the Constitu-
tion, South Carolina v. Katzenbach, 383 U.S. 3015 309 (1986), Congress enacted
the Voting Rights Act of 1965 to banish the blight of racial discrimination in vot-
ing. Id. at 308. Congress concluded that the unsuccessful remedies which it had
prescribed in the past would have to be replaced by sterner and more elaborate
measures in order to satisfy the clear commands of the Fifteenth Amendment. Id.
at 309. The Voting Rights Act, in particular Section 5 of the Act, represent the cul-
mination of Congress efforts to establish these new remedies designed to rid the
country of racial discrimination in voting. Id. at 315.
(a) In 2007, Congress will consider the extension of Section 5 of the Voting Rights
Act, 42 U.S.C. 1973c. What is your position regarding the continued need for this
civil rights provision?
Answer. Section 5 continues to be the primary means of ensuring that covered ju-
risdictions preserve and promote minority voting strength. The decision to revisit
Section 5 is a legislative prerogative. I can assure the Senator, however, that, if I
am confirmed, the Civil Rights Division will take seriously its preclearance obliga-
tions under Section 5 for so long as Section 5 is existing law.
Question (b) What is your position regarding the Department of Justices
respensibility and authority to enforce Section 5 of the Voting Rights Act?
Answer. The Voting Rights Act assigns to the Department of Justice the primary
responsibility for enforcing Section 5. The Voting Rights Sectiun of the Civil Rights
Division has authority to review redistrictingplans submitted for preclearance by
covered jurisdictions. If I am confirmed, I will work to ensure that the Voting Rights
Section receives the resources necessary to vigorously enforce Section 5.
 153
Question 3. Congress passed the National Voter Registration Act of 1993 (the
NVRA) to dismantle obstacles to voter registration such as discriminatory voter
purges and complicated, arbitrary voter registration procedures. The NVRA opened
the electoral process by making voter registration more convenient and by simplify-
ing the registration process, requiring states to provide voter registration at, for ex-
ample, motor vehicle and many social service offices. After many years of declining
voter registration, the NVRA established procedures designed to encourage voter
participation throughout the country. It is clear these procedures have significantly
increased voter registration.
Indeed, the Federal Election Commission, the agency charged with reporting the
impact of the NVRA on the administration of elections, reports that in 1996, over
27 million people were registered to vote pursuant to the statute. See Federal Elec-
tion Commissions Report to the Congress on the Impact of the National Voter Reg-
istration Act of 1993 on the Administration of Federal Elections, June 1997, at 27.
Specifically, the Federal Election Commission noted that [t]he mail registration
provisions of the NVRA [under which voters are permitted to register to vote by
mail] caused very few problems for the States and accounted for nearly one third
of all voter registration applications from 1995 through 1996. Id. at 1: Despite the
success and the relative ease in implementing the statute, there have been legisla-
tive attempts over the years to amend the NVRA to remove many of the features
which have made it most successful or to repeal the statute altogether.
(a) What is your position regarding these legislative efforts?
Answer. I am not specifically familiar with the findings of the Federal Election
Commission or the legislative efforts to amend the NVRA. I do agree that increased
voter participation is vital to the continuing health and vibrancy of our democracy.
Question (b) What is your position regarding the Department of Justices respon-
sibility and authority to enforce the NVRA? What priority will you give this respon-
sibility?
Answer. The Department of Justice has authority to pursue declaratory and in-
junctive relief under the NVRA, and to prosecute those found in violation of its pro-
visions. If confirmed as the Assistant Attorney General for Civil Rights, I would
take seriously my obligation to see that the requirements of NVRA are enforced. I
would make this, along with the enforcement of the Voting Rights Act, a priority.
Question 4. The Department of Justice will have substantial responsibilities to en-
force Section 5 of the Veting Rights Act, 42 U.S.C. 1973c, as well as other voting
rights provisions simultaneously. What are your priorities as Assistant Attorney
General for Civil Rights among the various voting rights enforcement activities?
Answer. Because of the redistricting efforts now ongoing in light of the 2000 cen-
sus, reviewing redistricting plans submitted for preclearance under Section 5 will
be an important and ongoing activity for the Voting Section. The recent allocation
of additional lawyers to that Section will help greatly with this and other voting-
related enforcement efforts. As to the proper order of priority among these efforts,
out of respect for the advice and consent function of the Senate I have not been in-
volved in the daily operation of the Voting Section (or the Civil Rights Division gen-
erally), and thus I am not yet sufficiently familiar with the Voting Sections current
activities to say how best to allocate its resources.
Question 5. Over four million Americans are prohibited from voting in this coun-
try because they are ex-felons. Approximately 1.4 million are African Americans
thats 13% of the adult male African American population. In Alabama and Florida,
about 30 percent of African American males are prohibited from voting under their
state laws.
(a) Do you agree that the impact of felony disenfranchisement on minority popu-
lations is a civil rights issue?
Answer. Any condition or event that adversely affects a protected class of Ameri-
cans could be a civil rights issue. This is especially true when the adverse effect im-
plicates rights as fundamental as the right to vote. So, yes, I believe this is a civil
rights issue.
Question (b) Will you agree to study this issue and consider undertaking appro-
priate civil rights enforcement action or proposing legislative remedies?
Answer. Yes, I believe that this issue is worthy of study. If I am confirmed by
the Senate for the position of Assistant Attorney General for Civil Rights, I would
study the issue and would consider taking appropriate action. If confirmed, I also
would enforce existing civil rights law without hesitation; proposing legislation,
however, is not my prerogative as a law enforcement official.
 154
QUESTIONS SUBMITTED BY SENATOR SCHUMER
Question 1. If confirmed as Assistant Attorney General for the Civil Rights Divi-
sion, will you give the enforcement of the laws against clinic violence and obstruc-
tion the same priority that it has been given in the last six years?
Can you commit to enforce FACE, both civilly and criminally, as vigor-
ously as your predecessors? That is, can you commit not to weaken the
standards of prosecution or to exclude categorically types of cases that have
previously been successful in the courts?
Answer. I cannot speak authoritatively as to how vigorously the prior Administra-
tion enforced FACE. However, if confirmed as Assistant Attorney General for Civil
Rights, it would be my job to enforce the nations laws, of which the FACE statute
is an important one. No woman seeking constitutionally protected services should
fear being threatened or coerced. Accordingly, if the conduct of anyone violates the
law regarding the access of women to reproductive health services, I would enforce
the law vigorously.
As Assistant Attorney General, will you allow Department of Justice
(DOJ) personnel whe have gained expertise in the area of clinic access to
continrle to work in this area if they so desire?.
Answer. Having served for several years as an Assistant United States Attorney,
and having been a litigator for almost 17 years, I believe as a general matter that
experience and expertise are important factors in decisions regarding personnel as-
signments.
Out of respect for the Senates advice and consent function, I have not reviewed,
nor have had the benefit of, a careful review of the Department of Justice personnel
who have gained expertise in the area of clinic access. I am unaware of any propos-
als to reassign such personnel and have no such plans of my own. It would not be
appropriate for me to make any additional statements, howevef, concerning the fu-
ture employment status of Department personnel whom I have not met, and with
respect to whose performance I have no knowledge.
Question 2. The National Task Force on Violence Against Health Care Providers.
In response to violence against reproductive health care providers generally and the
murder of Dr. Barnett Slepian specifically, Attorney General Janet Reno formed the
National Task Force on Violence Against Health Care Providers in November 1998.
Will you work to maintain the Department of Justices Task Force on Violence
Against Health Care Providers and work to ensure that it has the resources it reeds
to cont;nue to be effective? Do you anticipate reducing the Task Forces resources
in any way? How and why? (National Task Force on Violence Against Health Care
Providers, Report on Federal Efforts to Prevent and Prosecute Clinic Violence 1998
2000,1]
Will you commit to maintaining or increasing the size of the Task Force?
Answer. I believe that inter-agency coordination is an important part of effective
law enforcement efforts. The National Task Force on Violence Against Health Care
Providers has effectively coordinated law enforcement efforts related to FACE. If
confirmed, I would seek to ensure that it has the resources necessary to continue
its work.
One of the Task Forces main objectives is to coordinate national inves-
tigation and prosecution of incidents of abortion violence, focusing on con-
nections that may exist between perpetrators of anti-abortion crimes. Will
you continue to support such efforts? [National Task Force on Violence
Against Health Care Providers, Report on Federal Efforts to Prevent and
Prosecute Clinic Violence 19982000,5]
Answer. Out of respect for the Senates role in giving advice and consent, I have
not reviewed or assessed the details of the work of the Task Force. I do believe that
it is important to coordinate enforcement of FACE on a national level and that the
Task Force is an important vehicle for accomplishing this goal. I would continue
those efforts.
Question 3. Crack/Powder: Can you give me your views on the disparity in sen-
tencing between crack and powder cocaine offenses?
Answer. In United States v. Louis Andrade, I argued that the cocaine base sen-
tencing guideline is constitutional, and prevailed in that argument in both the dis-
trict court (Gertner, J.) and the United States Court of Appeals for the First Circuit.
See 94 F.3d 10 (1st Cir. 1996) (Lynch, J.). I agree with those decisions.
I am concerned about the conditions that contribute to the number of young men
of color who are convicted of selling crack cocaine, and sentenced under the cocaine
base sentencing guideline. I am even more concerned about the fact thatas re-
 155
flected in the congressional testimony in connection with the promulgation of the
cocaine base sentencing guidelinedisadvantaged, urban communities of color are
disproportionately (indeed almost exclusively) devastated by the crack cocaine trade
and violence associated with that trade. See United States v. Singleton, 29 F.3d 733,
74041 (lst Cir.), cert. denied 1:5 S.Ct. 647 (1994).

OUESTIONS SUBMITTED BY SENATOR DURBIN

Your bio states that as a member of the Boston U.S. Attorneys office, you were
the offices Firearms Prosecution Coordinator, and you administered Operation
Triggerlock, which is a national firearms prosecution initiative of the Justice De-
partment. Yet, according to press accounts, since leaving the U.S. Attorneys office,
you have represented the gun industry in your private practice.
An article in the February 13, 1999, edition of the Boston Globe, discussed a court
case in Brooklyn, New York, brought by families of shooting victims against gun
manufacturers. While that was occurring, the City of Boston was planning to file
a similar lawsuit against manufacturers. The article states that industry advocates
say Bostons proposed suit is purely political. It then quotes you as saying, Weve
got a lower violent crime rate than weve had in 40 years, said Ralph Boyd, former
assistant US attorney and an adviser to the American Sports Shooting Council, an
industry group. It didnt occur to anybody to sue firearms manufacturers then. This
is preposterous.
Question 1. Please explain how you came to represent the American [Shooting
Sports] Council and describe the extent of your activities with this client.
Answer. I did not represent the American Shooting Sports Council in any litiga-
tion. At the request of one of the members of the Council, I did make a presentation
to members of the Council regarding threatened litigation against firearms manu-
facturers by the City of New Orleans, Louisiana and other cities.
The Boston Globe article also quotes you as saying that the plan by the City of
Boston to sue gun manufacturers is taxation and regulation by litigation. The city
has an agenda they cant accomplish in the legislative forum, so theyre going the
judicial route to tax a product some people dont like.
Question 2. In the area of civil rights, history has demonstrated that one of the
most effective ways to enforce civil rights laws is to regulate behavior by litigation.
There are countless examples where the federal government has initiated suits
against state and local governments as well as private entities to get them to
change their discriminatory policies. Do you believe that it is appropriate for the
government to regulate by litigation? If no, why? If yes, explain in what situations
do you believe it is appropriate?
Answer. I believe that it is appropriate for the government to bring lawsuits to
redress violations of law, especially where such litigation is expressly authorized by
statute or settled common law principles. More specifically, it is appropriate for the
government to bring lawsuits to induce local governments or private entities to
eliminate illegal and discriminatory policies. For example, it is appropriate, and in-
deed the affirmative duty of the Civil Rights Division to bring actions to enforce a
variety of laws, for example, the various titles of the Civil Rights Act of 1964 and
the Educational Amendments of 1972, and the Voting Rights Act of 1965.
Question 3. According to press accounts, you have apparently represented the to-
bacco industry in your law practice. Please explain who these clients were, and de-
scribe the extent of your activities with these clients.
Answer. Goodwin Procter LLP has a long standing relationship with Philip Morris
Incorporated. As a partner at Goodwin Procter, I worked with many other lawyers
representing the company in litigation brought against it and other tobacco compa-
nies by the Attorney General of Massachusetts. In connection with that litigation
I deposed state officials and assisted with general trial preparation. This case was
settled pursuant to a Master Settlement Agreement between the tobacco companies
and the attorneys general of the various litigating states.
Question 4. If you are confirmed to this position, and cases involving the tobacco
industry were to come before you, would you recuse yourself from those cases?
Answer. Yes, I will follow the Department of Justice Guidelines for professional
ethics and-conflicts of interest strictly and without hesitation. I understand that
these will require my recusal from all matters involving Philip Morris Incorporated,
and from all other matters concerning the effects of tobacco smoking on health.
Though the vast majority of police carry out their duties responsibiy and profes-
sionally, the insidious practice of racial profiling continues to undermine public con-
fidence in law enforcement and damages the credibility of police forces around the
 156
country. Most importantly, racial profiling creates an atmosphere of distrust and
alienation that isolates broad segments of the American population.
As you know, this issue affects federal, as well as state and local law enforcement
activities. In fact, a GAO study of profiling practices of airline passengers concluded
that the U.S. Customs Service was intrusively searching African American. women
and other minorities for contraband at much higher rates than they searched other
segments of the population.
Specifically, GAO found that African American women were nearly three times as
likely as African-American men to be strip-searched, even though they were only
half as likely to be found carrying contraband. Furthermore, African American men
and women were nearly nine times as likely, and Hispanic American men and
women were nearly four times as likely, as White American men and women to be
x-rayed, even though they were not more likely to be carrying contraband. Iron-
ically, the women being targeted were statistically less likely than other passengers
to be found carrying contraband.
I have introduced legislation to specifically address the concerns raised in the
GAO study and help the U.S. Customs Service make more effective use of its re-
sources, and avoid unwarranted searches.
Question 5. Do you agree that the racial profiling practices of the U.S. Customs
Service should be eliminated?
Answer. No law enforcement agency should improperly target private citizens
based on race, color, or ethnicity. This includes the U.S. Customs Service. To the
extent such practices occur, they should be aggressively eliminated. While I am not
familiar with the GAO study the Senator is referring to, I would look forward to
discussing this issue with the career attorneys at the Civil Rights Division and tak-
ing appropriate action.
Question 6. Will you support my legislation and urge a favorable statement of the
Administrations position on this proposal?
Answer. If confirmed, I would work to fulfill the Presidents and the Attorney Gen-
erals commitment to take all reasonable and appropriate steps to end racial
profiling. I would welcome the opportunity to work with you and other Senators in
support of this important effort. At this time, however, it would not be proper for
me to take a policy position on proposed legislation without the benefit of careful
study and consideration of the views of others in the Department of Justice and the
Administration.
Question 7. Do you believe that invidious discrimination, in the form of racial
profiling, occurring at any and all stages of the criminal justice process (i.e., stops,
investigations, arrests, charging offenses, prosecutions, and sentencings including
penalties and incarceration terms) should be given zero tolerance? What suggestions
or solutions would you recommend to eradicate this pervasive problem?
Answer. Racial profiling can occur at all stages of the criminal justice system. At-
torney General Ashcroftat the Presidents directionhas made this a top Justice
Department priority. I share that view.
In consultation with the Attorney General, I would suggest that racial profiling
be addressed on several levels. First, we need more hard data on this issue. We
need careful study to determine definitively the scope, magnitude, permutations and
manifestations of the problem. The Attorney General has asked Congress to enact
legislation authorizing the Department of Justice to collect data for this purpose,
and the Civil Rights Division should be involved in this effort. Second, the Civil
Rights Division should make certain that specific procedures are in place under
which individual complaints of racial profiling are given expedited review by Divi-
sion attorneys. Third, the Division should be ready to work cooperatively with local
law enforcement by providing technical assistance regarding data collection, data in-
terpretation and analysis, training, policy development, and community outreach.
Where a pattern or practice of profiling exists and local law enforcement is neither
cooperative nor taking meaningful steps to eliminate illegal practices, an enforce-
ment action pursuant to 42 U.S.C. 14141 must remain an option.
Question 8. What are your views on affirmative action, and how do you define af-
firmative action?
Answer. Although I have not developed a specific personal definition, generally
speaking I believe deeply in proactive efforts to break down barriers to opportunity,
and also to provide opportunitiesfirst and foremostfor disadvantaged and needy
people, regardless of race, religion, ethnicity or gender. In my view, assisting peopie
in need and people who are disadvantaged is one of the first obligations of citizen-
ship, and of government.
 157
Question 9. Do you believe your views on affirmative action are consistent with
those of President Bush and Attorney General Ashcroft? If not, how do yeu plan to
reconcile such conflicting views as the head of the Civil Rights Division?
Answer. I agree with the Presidents and Attorney Generals commitments to
break down racial barriers, ensure effective access to opportunity for all people, and
to open up opportunities so that no person is left behind.
To the extent that differences may emerge and manifest themselves in competing
views about legal positions the Department of Justice should take in a particular
case, or with respect to specific legislation, I would do as I always do; I would mar-
shal every resource reasonably available to me, and make as well reasoned, sincere,
and respectful argument as I am able in a determined effort to persuade.
Question 10. Do you believe hate crimes are a problem today? Are the current fed-
eral and state laws against hate crimes sufficient to prosecute all the hate crimes
committed in our country?
Answer. Yes, hate crimes are a problem today, and if confirmed I would work hard
to fulfill the Attorney Generals pledge to take all reasonable and appropriate steps
to combat them. at the federal level and where appropriate to assist state and local
law enforcement agencies to combat them at the local level. This would include a
careful study of how best to combat these crimes, and what the federal governments
role should be in achieving this important objective.
Whatever the federal governments ultimate role in addressing this serious prob-
lem, either through further federal legislation, subsidization of state law enforce-
ment efforts, or both, that role should reflectand send a clear and unequivocal
message aboutthe extent of our unwillingness to tolerate this pernicious form of
criminal activity.
I have not undertaken a multi state review of all of the evolving state laws
against biasmotivated crimes. I am however, familiar with 18 U.S.C. 245 (bias-
motivated violence directed at school attendance, seeking public employment, and
using public facilities or accommodations), and 247 (bias-motivated conduct ob-
structing religious freedom), and 42 U.S.C. 3631 (bias-motivated violence directed
at enjoyment of housing). If confirmed, I would consult with the career prosecutors
at the Civil Rights Divisions Criminal Section to identify, to the extent possible, the
circumstances in which hate crimes are not adequately prosecuted under these and
other existing federal and state laws.
Question 11. Would you favor expanding federal hate crimes legislation to include
victms who Pre targeted based on their sexual orientation, gender, or disability?
Please explain in detail.
Answer. All Americans should be protected by our laws, including those targeted
out of hate. If copfirmed, I would welcome the opportunity to work with you and
other Senators on these issues. At this time, however, it would not be proper for
me to state a policy positiopon such a measure without the benefit of careful study
and the views of others in the Department of Justice and the Administration.
Question 12. A ban on so-called partial birth abortions has been a very hot topic
in Congress for a number of years. Many of us believe that this ban should include
an exception for the health of the woman, as well as her life. The Supreme Court
in Stenberg v. Carhardt struck down a Nebraska law that purported to ban these
abortions, but which did not provide an exception for the health of the mother. What
are your views generally on partial birth abortions?
Answer. The Supreme Court addressed the constitutional limitations on laws ban-
ning so-called partial birth abortions in Stenberg v. Carhardt. If confirmed, I
would follow the law, i.e., the Supreme Courts instruction on this and any other
matter that came before me as Assistant Attorney General for Civil Rights.
Question 13. If confirmed, will you give the enforcement of laws against reproduc-
tive healthcare clinic violence and obstruction the same high level of priority that
it was given under the previous administration?
Answer. I cannot speak authoritatively about the leve, of priority given to such
enforcement under the previous administration. However, if confirmed as Assistant
Attorney General for Civil Rights, it would be my job to enforce the Liations laws,
of which the FACE statute is an important one. No woman seeking constitutionally
protected services should fear being threatened or coerced. Accordingly, if the con-
duct of anyone violates the law regarding the access of women to reproductive
health services, I would enforce the law vigorously.