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Public Statements

Hearing of the Senate Judiciary Committee - Nominations

By:
Date:
Location: Washington, DC

CHAIRED BY: SENATOR BENJAMIN CARDIN (D-MD)

WITNESSES: ANDRE M. DAVIS, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FOURTH CIRCUIT; THOMAS E. PEREZ, TO BE ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE; DAVID F. HAMILTON, TO BE UNITED STATES CIRCUIT JUDGE FOR THE SEVENTH CIRCUIT

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SEN. BENJAMIN CARDIN (D-MD): The Senate Judiciary Committee will come to order. Let me welcome everyone here today. I particularly want to welcome our three nominees and their families, and thank each of them for their public service, and their continued desire to serve the public, and thank their families for the sacrifices that they make in order that their spouses can serve in public life. I want to thank Chairman Leahy for allowing me to chair the hearing.

It's my understanding that Senator Coburn will act as the ranking member at today's hearing, and that he is on his way to the committee, and has told me through staff, that we should get started. So in order to keep the schedule, I'm not too clear as to when the next votes will be on the floor of the Senate; we will start today's hearing.

I just want to first to Judge Hamilton, I hope you'll allow me to just with a little Maryland pride, talk about today's hearing. We're very proud of the connection that our two nominees have to the state of Maryland. Judge Andre Davis is well known in Maryland. He's a graduate of the University of Maryland School of Law that you'll hear frequently mentioned today. He's a former professor at University of Maryland School of Law.

Tom Perez was a former professor at the University of Maryland School of Law. I'm a graduate of the University of Maryland School of Law, Senator Mikulski is a graduate of the University of Maryland at Baltimore School Social Work, and Senator Sarbanes has a career in the United States Senate strong proponent of the University of Maryland School of Law.

So, it's with pride that we have this hearing today for three nominees, two for positions on the Circuit of Appeals, and one to head up the Assistant Attorney General of the Civil Rights division, all three extremely important positions. So I welcome David Hamilton, Judge Hamilton, I welcome Judge Andre Davis, and Tom Perez, and look forward to this hearing today, and look forward to your service in the positions that you have been nominated by President Obama.

Judge Andre Davis, if I were not sharing today's hearing, I'd be sitting next to my senior Senator, Senator Mikulski in introducing and supporting Judge Davis' nomination for the Court of Appeals. I think he is imminently qualified; his experience, and let me just comment briefly about his experience for this position. He is a former Assistant U.S. Attorney; he has the experience in the judiciary, which is unique. He started on the District Court of Maryland, which is our judicial level that you have the most contact with the people.

And did an outstanding job on the District Court in our state serving there for three years before moving on to the Circuit Court Judge in Baltimore city, and again and that's our trial court level. Served with great distinction and then was appointed to the United States District Court, where he has been a judge since 1995. He's praised by lawyers as being smart, even handed, fair, and open-minded in the manner in which he conducts his court. He's been rated by the ABA rating as well qualified.

He has been a professor, as I pointed out before and a mentor -- mentor too many young attorneys, one in particular I'd like to mention who's my council to the Judiciary Committee, Bill Van Horn, clerked for Judge Davis. His roots are deep in Maryland, which is something that we find a great advantage. This seat is a Maryland seat. Judge Davis was born in Baltimore, raised in Baltimore, and lives in Baltimore.

He's active in Maryland life, and his community his entire life, and the history of this vacancy is Judge Francis Murnaghan died in August of 2000. The seat has been open. I think this is the most appropriate replacement, Judge Davis clerked for Judge Murnaghan.

Judge David Hamilton from Indiana -- this is his second appearance before our committee. He enjoyed himself so much the last time, he decided he wanted to come back. I regret that you had to come back for a second hearing. At the first hearing there were no Republican members to ask questions, and no Republican members proposed written questions. And at the request of Republicans we have scheduled a second day of hearings for Judge David Hamilton.

His record has already been placed in our record -- his experience and his resume. But let me just point out very briefly that it includes 14 years on the Federal District Court, an ABA rating of well qualified. He's supported by both of the Indiana Senators -- Senators Bayh and Lugar. And quoting very quickly from what's in the record from Judge Lugar, from Senator Lugar when he said, I do not view our federal courts is the forum for resolving political disputes.

That is why I believe our confirmation's decision should not be based on partisan considerations, much less on how we hope or predict the given judicial nominee will vote on a particular issue, a public moment, or controversy. I have instead tried to evaluate judicial candidates on whether they have the requisite intelligence, experience, character, and temperament that America deserves from their judges. And also on whether they indeed appreciate the yet vitally limited role, the federal judiciary, faithful to interpret and apply our laws, rather than to seeking to impose their own policy views.

I support Judge Hamilton's nomination, and do so enthusiastically because he is superbly qualified under both sets of criteria. I think that's quite a tribute by Senator Lugar, I think it expresses the desires that we would like to see in all of the nominees that we consider for the court.

And at lastly we will hear from Tom Perez, to be Assistant Attorney General for the Civil Rights Division. He's extremely well qualified, he currently serves as the Secretary to Maryland Department of Labor Licensing and Regulations. He has broad experience within the Department of Justice, having served 10 there for years -- beginning in the Civil Rights Division as a trial attorney, in the criminal section, and became the Assistant Attorney General for the Civil Rights Division.

He was detailed during his career to Senator Kennedy's office, where he was his principle advisor on Civil Rights and Criminal Justice. In the Civil Rights Division he took on white supremacist, police brutality cases, corruption cases, and many additional Civil Rights violations. He received the Attorney General's Distinguished Award.

He also served in the United States Department of Health and Human Services as the Director of the Office for Civil Rights, and pursued medical privacy issues at that time.

He's also well known because he has ventured into elected office -- serving on the Montgomery County council. Those of us who are familiar with Maryland politics know that that is a real test of someone's ability to serve in Montgomery County on the county council. He's a professor at the University of Maryland School of Law -- I particularly mention that a second time, because he was a professor in the Clinical Law Program, the program that I helped start as a result of a survey that was done about 20 years ago in Maryland showing a real void in training lawyers sensitive to public law, and Tom was one of the real leaders in that program.

Training a generation of attorneys in our state who understand their commitment to public service. Graduated from Brown University and Harvard Law School, cum laude. One last point about the Civil Rights Division, Eli Wiesel said indifference, after all, was more dangerous than anger and hatred. In the Civil Rights Division it is not only our nations not only moral conscience, it is also charged with protecting all citizens against all forms of discrimination -- whether it's employment, education, housing, voting rights, personal liberties, or to be protected against hate crimes.

During President Bush's years, we saw an inactive Civil Rights Division that did not take on the cases of importance. There was very little enforcement authority used during those years. The voting rights cases were not brought. The hate groups were not targeted. And worse than that, the department acted in a very partisan manner on personnel decisions. The Inspector General's report of January 13 of this year, confirmed that by saying that there was a considerable political and ideological affiliations in personnel decisions contrary to federal law.

But we looked to the Assistant Attorney General for the Civil Rights Division as someone who will restore that division to its historical role as the premiere agency in our government to protect the rights of all of our citizens. And I have the greatest confidence that Tom Perez will do that, I'm sure during this hearing we'll have a chance to ask some questions in that regard.

At this point, I'm going to turn first to the senior Senator, Maryland's Senator, Senator Mikulski, and that is always a pleasure to have back Senator Paul Sarbanes. I'm honored to be labeled holding the Paul Sarbane's seat in the United States Senate. Senator Mikulski

SEN. BARBARA MIKULSKI (D-MD): Thank you very much Mr. Chairman. This is indeed an exciting day for Maryland. We will be able to introduce a distinguished from Maryland being called to serve our country, Judge Andre Davis, from our home town of Baltimore, who's been nominated to the fourth circuit court of appeals. And Secretary Tom Perez, who is playing the role of the kind of leadership role now in the O'Malley Administration, and we hope he'll be playing the leadership role in the Obama Administration to head up the Department of Justice's Civil Rights Division.

I really want to thank Senator Leahy for being so prompt in scheduling these hearings, and also to allowing us to testify today. And it's great seeing you in the chair. You look like you belong there. Mr. Chairman I also am sorry that Judge Hamilton has had to come back for a second hearing, and I note that there are no other people from the other party who are present at this hearing. I hope we will not face that same situation, where people don't come, and then don't submit letters.

So, we would hope today this hearing would be able to be completed today. Mr. Chairman, I take nominating judges very seriously and I have four basic criteria. One, they have to be people of absolute integrity. They have to have judicial competence, judicial temperament, a commitment to court constitutional principles, and a history of civic engagement in Maryland.

This is who we believe the Judge Andre Davis will be an outstanding nominee. I'm honored to introduce him today, and he has with him, with his family who I'm sure he'll introduce to the committee. But he brings great integrity, a keen intellect, sound judicial experience, and temperament. He was also nominated by -- for this position, by President Clinton.

At the time of his nomination, nearly a decade ago, he received the highest of the ABA ratings. And today as he comes before you, know that he has been an outstanding judge, and he brings in a compelling personal story. He comes from a family of modest means, his father was a teacher, his step-father is a steel worker, his mother worked in food service, he grew up in our neighborhood of East Baltimore, in a community that valued hard work, and a community that valued service.

He earned a scholarship to Phillip Andover Academy, and was one of four African Americans in a school of 800 students. And even as a young man, he knew that opportunity -- with opportunity comes responsibility. During those days at Andover, he volunteered at a juvenile detention facility, and mentored juveniles on Saturdays. He went on to earn his BA at the University of Pennsylvania, and graduated from University of Maryland law school where he won the Best Advocate Award in the Moot Court Competition.

The law faculty awarded him the prestigious Roger Howell Award at graduation. He then went on to work as a lawyer in public housing, and to also work in a variety of other positions. Judge Davis is known for having outstanding competence. As I said, when President Clinton nominated him, the ABA gave him the highest rating.

I know for the Chairman, that I have your letter from the Maryland Bar Association, highly recommending Judge Davis. And I ask unanimous consent that the Maryland Bar Association letter be included as part of the record.

SEN. CARDIN: Without objection, it will be included in the record.

SEN. MIKULSKI: He's been known as a judge, It is time to, as a judge, to handle difficult situations. He brings thoughtful temperament, well respected among his colleagues, and has served as a distinguished judge, and also served as a prosecutor. He worked in the U.S. Attorney's office, and the Civil Rights Division. He also brings a history of integrity, a strong work ethic, and a commitment to public service.

He's an independent thinker, and dedicated to the rule of law. Well respected by his colleagues, he received the Benjamin J. Cardin Award of Public Service, as you noted, named in your honor, that was meant to be someone who would have an unassailable record in the community as a lawyer and a judge.

In addition to all of the things that would make him a great judge, intellect, integrity, competence, there is that sense that a judge has to be wise. And we believe that people are wise, and they are also civically engaged. Judge Davis has repeatedly, in his career, been an outstanding participant in the community -- whether he's tutored juveniles, whether he's been on the board of the Urban League, whether he has worked as president of the Big Brothers and Little Sisters of Central Maryland serving on that board.

Also working with other organizations, on prison reentry, prison education reform, and also community entrepreneurship, he brings, I believe, every characteristic that a smart judge, but a wise judge, and an honest judge would do. And I would hope that the committee would expeditiously approve him, and move him to the Senate for deliberation.

Mr. Chairman, I'd also like to take this opportunity to comment on another nominee before you -- Secretary Tom Perez. I also want to bring him to the committee's attention. He is President Obama's nominee to head up the Civil Rights Division at the Justice Department. I am the appropriator for the Justice Department, working with my colleague, Senator Shelby of Alabama.

Working with Eric Holder we hope to restore and reinvigorate the Justice Department by not only having the right financial resources for them to do the job, but the right people in the right place to make the right decisions, to restore the vitality of the Justice Department; Secretary Perez has those characteristics -- we believe that he will be able to do that. As you know the Civil Rights Division was created in 1957, and has been a source of great pride in our country.

And we want to be able to have someone who brings, again, integrity, competence, and a commitment to the mission of the agency. For Tom Perez, his entire career has been in public service.

He's been a teacher, he's been a prosecutor, he's helped run agencies, he's been a cabinet member in the O'Malley Administration, he's brought skill, he's brought integrity, he's brought experience in turning an agency around, and he's had those qualities where he can deal with crisis management. When he took over the Secretary of Labor job for Governor O'Malley, there were many unexpected things that came his way which he could handle.

And then working with the Maryland General Assembly, he has shown that he could work across party lines. I sure hope we confirm Tom Perez to be that Assistant Secretary. He's a graduate of Harvard Law School -- cum laude, he's a graduate -- he brought extensive experience in Civil Rights. He actually was the chief at the division, and worked also in the Civil Rights office at HHS.

As a Civil Rights attorney for himself, working at the Justice Department, he worked for combating racial profiling, and also being able to deal with racially motivated hate crimes like the despicable incident that occurred in Lou Bock, Texas. Defendants went on killing sprees directed at African Americans, they were brought to justice, and part of that was because of the work of Tom Perez.

Integrity -- he comes from a very hard working immigrant family, and he's also worked to prosecute public officials for corruption. I believe that Tom Perez will bring energy, intellect, to the office of Civil Rights, and I too urge the Judiciary Committee to move this nomination, so President Obama and Eric Holder have the team they need at the Justice Department to enforce the laws that we have on the books, and who have this sense of justice and fairness in our society.

Mr. Chairman, I'd be happy to answer those questions, but in the thumbnail I think we're really proud of our nominees today, and we would hope they would be given quick and expeditious approval.

SEN. CARDIN: I thank Senator Mikulski. Senator Sarbanes.

SEN. PAUL SARBANES: Well, Mr. Chairman, Mr. Coburn thank you very much for the courtesy of -- giving me the courtesy of appearing before the committee today. I came primarily to talk about Judge Davis, and I'll outline why in just a moment. But I do want to take a moment -- first, to note with respect to Judge Hamilton, that his uncle, his father's brother was one of the most distinguished members of the Congress of our generation, Congressman Lee Hamilton, who rendered such extraordinary service here in the Congress, and continues to render extraordinary services as the head of the Woodrow Wilson Center.

So there's a great Hamilton tradition in American public service, and I'd be remiss not to note it at the outset.

I also want to concur and underscore the words of Senator Mikulski with respect to Tom Perez, who's been a dynamic force in our state for a decent and fair society. He's done a magnificent job as a Secretary of the Department of Labor Licensing and Regulation. He's had extensive experience in the Department of Justice over the course of his outstanding legal career. And Mr. Chairman as you've pointed out, he handled being a county councilman in Montgomery County -- no easy task I might add as you noted.

With respect to Judge Davis, let me tell you how pleased I am to come on his behalf here today. Senator Mikulski and I had the privilege of recommending his nomination some years ago to this Fourth Circuit seat. He was nominated, but the nomination came late in the day of that administration, and it wasn't acted upon. And we're pleased that he's back before the committee here today.

He reflects something that's important, as Senator Mikulski outlined it in the standards she set out. Maryland has had a great tradition since the early, even before the early days of the Republic in colonial times of having a very distinguished Bar. Maryland lawyers and judges have really ranked the very top of the workings of our political system, and we're proud of that in our state, and I think deservedly so.

Andre Davis is a Maryland product, simply put. He was born in Baltimore, raised in Baltimore, went to the University of Pennsylvania, came back to the University of Maryland Law School, where he had a very distinguished academic career. He clerked for Judge Frank Kaufman in the United States District Court in Maryland, and the following year he clerked for Judge Francis Murnaghan on the Court of Appeals for the Fourth Circuit, the very position for which he's seeking confirmation here today.

He then worked for the Civil Rights Division of the U.S. Department of Justice, he joined the U.S. Attorney's Office in Baltimore, he taught at the University of Maryland Law School, and in 1987 was appointed to the District Court in Baltimore, 1990 he was moved up to the Circuit Court, the trial court of General Jurisdiction, and served there until 1995 when he was appointed to the Federal District Court. He's been on the Federal bench now, it will be 14 years this coming August.

So, this is a distinguished jurist, and he has a prior record that people can evaluate, I think an outstanding record at the state trial level, and then at the federal trial level. He's been very active in our community, something I think which is of importance. Judges, I think, in addition to the outstanding performance we expect from them on the bench, I hope would be people of stature in the community who would serve the broader community in a leadership role.

And Judge Davis has been director of the Baltimore Urban League, he's been President of the Legal Aid Bureau, trustee of Goucher College, he's been a driving force in the Big Brother's and Big Sister's of Maryland. He's been president and vice president of the executive committee of the Maryland Judicial Conference. He's been a member of the board, president of the University of Maryland School of Law Alumni Association, and highly, highly, respected in his performance on the bench.

The committee, I understand, has before it a letter that has come from many, many of the former Murnaghan clerks. Those men and women who had the honor to clerk for Judge Murnaghan. I'm sensitive to that, because Judge Murnaghan was a mentor of mine in private practice many, many, years ago, and a person of just extraordinary commitment and distinction.

In that letter the Murnaghan clerks say, and I quote them, he said, "Judge Murnaghan showed us how important it is for a wide range of cases to be addressed by a person of powerful intellect, deep learning, intuitive sympathy for all, and a (steely ?) commitment. The judges should unflinchingly see that fairness prevails. Andre Davis will be unflinching in that duty", and they go on their conclusion as say, "Judge Davis' life and career fully express the ideals and sense and duty that Judge Murnaghan so magnificently embodied.

I couldn't agree with an evaluation more than I agree with this one, but all of these former Murnaghan clerks. Judge Davis will be a superb addition to the federal bench. I clerked in that court my first year out of law school, for Judge Morris Soper and I have always been sensitive since to the necessity of having excellence on the federal bench, and Judge Davis reflects excellence, and I very much hope the committee will act positively and expeditiously on his nomination. Thank you very much.

SEN. CARDIN: Well, Senator Sarbanes I want to thank you for being here and speaking in regards to these nominees. I know it's very helpful to our committee, your observations, and we thank you for returning. And Senator Mikulski it's always nice to have you in our presence on the judiciary committee -- any time you want to. Senator Coburn.

SEN. COBURN: First of all, Senator Sarbanes it's great to see you again, thank you.

SEN. SARBANES: Thank you.

SEN. COBURN: Thank you Senator Mikulski, thank you both for your input. I understand that you've taken both a ranking and the chairmanship in my absence, and I apologize for being late. I also would apologize for other members of our caucus, in I think that I had three hearings scheduled at two o'clock as well. So, I would announce ahead of time I have another one at three, so I will be leaving, and we will be submitting a large number of questions for the record.

I appreciate your recommendations, they mean a lot. I think one of the things we do want to do, is we want to make sure President Obama gets qualified judges in the ones he selects, that's his right. But I also think we ought to have due diligence and the time to explore the areas that we might want to know. So, we will be expeditious, but also thorough, and we will try to work with the majority to make sure that happens. Thank you for your testimony.

SEN. SARBANES: Thank you Senator Coburn.

SEN. CARDIN (?): Thank you. Now I invite the three nominees to come forward. And if Judge Davis, and Judge Hamilton, and Secretary Perez will remain standing for one moment, thank you.

(Witnesses sworn.)

SEN. CARDIN: Thank you, please have a seat. We will start with Judge Davis, and it is the tradition of our committee, we want to make sure that you maintain a good relationship at home, so if you would introduce your families that would be helpful -- I think to us and to you.

JUDGE DAVIS: Thank you very much, Senator. Let me say, if I might, how honored I am to have Senator Sarbanes here to speak on my behalf, and I thank him for that. And of course I thank you and Senator Mikulski so deeply for your support, and for your long service -- each of you, on behalf of the people of Maryland. We are all grateful for that.

I am joined today by a contingent of family and friends, and acquaintances, my wife Jessica Straus (sp.), my son Ahmed (sp.) Davis, my daughter Alonie Harris (sp.), my mom, my dad, brothers, sister, brothers-in-law, sisters-in-law, and my larger family my wonderful family of clerks who have served me so diligently, and faithfully for so many years, and I appreciate the presence of all of them. Thank you, Mr. Chairman.

SEN. CARDIN: Thank you. Judge Hamilton.

MR. HAMILTON: Thank you, Mr. Chairman. It's a pleasure to be here again to answer any questions the committee may have, not exactly the same group of people are here as those who were here on April 1st, but my wife Ingervander --Crisa (ph), and my father Dick Hamilton are here. I feel I should also introduce next the two members of the contingent who have Baltimore connections, under the circumstance.

SEN. CARDIN: That might be helpful to you.

(Laughter.)

MR. HAMILTON: My cousin Doug Schmidt (sp) and my longtime friend Judge Jim Bredar, who is a magistrate judge in the district of Maryland. Also, Bill Schmidt (sp), my uncle, his wife Cassianna Schmidt (sp), Sarah Schmidt (sp), cousin Tracy Souza (sp), my longtime staff members, Jenny McGinnis (sp) and Chuck Bruce, law clerks Allison Chestovich (sp), Allison Brown (sp), Jordana Rubell (sp), Jim Rubell (sp), Jim Trilling (sp), and Kathleen Delaney (sp), and a longtime friend, Bill Morrow (sp). We're all here today.

SEN. CARDIN: Thank you. Secretary Perez, also, would you like to introduce your family? Would you like to make an opening statement?

MR. THOMAS PEREZ: Thank you, Senator. First of all I want to thank you, Senator Mikulski, Senator Sarbanes, for all of your wonderful leadership. We have the Cardin requirement. That's what it's called at the University of Maryland School of Law. It's a public service requirement. I can't think of a better person after whom to name that requirement. So thank you very much, Senator.

I did want to introduce my family. My wife Anne Marie (sp) is sitting with my six-year old son, Raphael (sp), and he has a Blackberry so that he can play Brickbreaker (sp), in the event that we need some distraction. Next to her is my ten-year old daughter in the freckles. That would be Susanna (sp), and next to her is my oldest daughter, Amalia (sp). The last time she was here was in my going- away party with Senator Kennedy, when she was about a year-and-a-half old. And we have a wonderful photo of her and her teddy bear, and Senator Kennedy. So she was with two teddy bears in that particular context -- (laughter) -- so, thank you.

Would you like me to deliver it now, or --

SEN. COBURN: That would be fine.

JUDGE PEREZ: Okay either way. Great. Again, I'm really grateful to this committee. It's wonderful to be back home. I remember vividly sitting in this committee and having the privilege of doing so. And I really want to thank the president and the attorney general for giving me this opportunity, if confirmed, to serve as the Assistant Attorney General for Civil Rights.

I know my parents who inspired me to a career in public service are also here in spirit. My family story is the story of millions of immigrants who have come to America seeking a better life. My mother arrived in America in the 1930s from the Dominican Republic because my maternal grandfather was the ambassador to the United States. A few years later, he was declared non-grata after speaking out against the despicable regime that had been responsible for the murder of thousands of Haitians.

My father also had to flee the country, and he came to America seeking a better life as well. He developed an immediate sense of gratitude for the freedom that America had and gave, and while a legal immigrant, he served with distinction in the U.S. Army as a physician.

Four of my uncles on my mother's side volunteered for the U.S. Army in World War Two because they were so appreciative to this country for what this country gave them. My father established a very strong bond with veterans, and when he retired he moved from Atlanta, Georgia, where he was stationed, to Buffalo, New York, and served the rest of his career as a physician at the VA hospital.

My parents taught their five kids -- I'm the youngest of five, the caboose -- to work hard, aim high, give back and ensure that the ladder is always down for the less fortunate. They valued education. All of my siblings became doctors, and I was the black sheep in the family. I became the lawyer. And they spent much time working with the under-served.

Regrettably, my father worked so hard that he worked himself to an early grave. He died when I was 12. And following his death, times certainly became tougher. Finances became tighter. But my mother was a rock, and we had a wonderful village in Buffalo that was helping to raise me. And thanks to Pell grants, work study jobs and other scholarships, I was able to follow that path to higher education that my parents set out for me.

My goal was always to become a civil rights lawyer. Because I truly do believe that civil rights is the unfinished business of America. And my particular goal was to become a civil rights lawyer at the U.S. Department of Justice because I always believed, and still believe, that it is the most important civil rights law enforcement agency in the United States.

I had the opportunity to serve the department in a number of capacities. I started as a law clerk in '86 under Attorney General Ed Meese. I entered the department in 1989 and served under Attorneys General Thornburg and Barr, and later under Attorney General Reno. I had the privilege of serving on the Hiring committee in 1992, '93 and '94, Republican and Democratic administrations, and it was truly an honor. I had the privilege of serving as a first line supervisor in the criminal section.

I traveled the country. My first travel was to Mobile, Alabama, where we were treated with great dignity by then U.S. attorney and now senator, Jeff Sessions, the first trial that I participated in. And he was a wonderfully welcoming person, a wonderfully welcoming U.S. attorney, and I'm very grateful for that work.

I have profound respect for this department, and I have profound respect for this division. I take the mission statement very seriously to ensure the fair and impartial administration of justice. And it is that love I have for the division which was why I read with great concern the report from the inspector general. Because quite frankly the civil rights division that was depicted in that report bore little resemblance to the civil rights division where I served with distinction under Republican and Democratic administrations.

I very much applaud Attorney General Mukasey's efforts to address the situation. And he made considerable progress. And I have a deep abiding optimism that we can restore the civil rights division to its historic position. And if confirmed one of my primary goals will be to ensure the decision-making is depoliticized.

I will work hard to restore trust between career attorneys and the political leadership.

I have been both, and I respect the need to ensure that effective communication between both. I will ensure that hiring is guided plainly and simply by a search for the most qualified candidates. Areas where we have made progress, where the division has made progress, if confirmed, I will work to ensure that that progress continues. Areas like human trafficking. Areas like ensuring that people are protected in religious freedom, enforcing those critical laws.

But we must enforce all the laws within the jurisdiction of the division. The division must play an active role, and can play an active role in stemming the foreclosure crisis, ensuring that the sacred right to vote is protected, and aggressively prosecuting hate crimes.

Attorney General Holder told you during his confirmation hearing that he intends to make restoration of the civil rights division and its mission a top priority. And, if confirmed, I am prepared to lead that charge and to restore the reputation and effectiveness of a division that I still believe will be the nation's preeminent civil rights law enforcement agency.

Thank you for your courtesy, and I look forward to your questions.

SEN. CARDIN: Let me again thank all three of you for being here. We're going to use ten-minute rounds because of the importance of the positions that we are considering today. I promise that I will be briefer than ten minutes in my first round so that Senator Coburn will have the full time available for the other commitment that he has.

So, Mr. Perez, let me start with you. This is an appropriate day for this hearing. Earlier today I joined some of our colleagues over before the Supreme Court on oral argument on the Voting Rights Act and its constitutional challenge. There was a really interesting exchange between the attorneys and the justices as to the relevance of the Voting Rights Act today in those covered states.

And then earlier today the Judiciary Committee subcommittee on crime held a hearing on the crack cocaine issue, which there is, as I am sure you are aware, a hundred times more serious penalty for using crack rather than powder cocaine. And the racial composition of those that are convicted on crack is much higher among minorities, and they are serving much longer time. And there is no evidence that we know of a difference between the substances.

I mention that because I think America is looking to the Justice Department to root out those types of invidious discrimination that still remains in our societies. Some of it was not intentional when it was developed, but it has caused results that diminish the credibility of our government in the eyes of too many of our people.

I just would like to get a little further explanation from you as to how you see things like the discrepancies between crack and powder cocaine, or when you look at statistics on the number of minorities that are prosecuted in certain areas, and how you would intend dealing with those types of issues.

JUDGE PEREZ: Thank you Senator for that question, and thank you for your leadership on these issues. I know these have been issues that you've thought about for a long time. Assistant Attorney General Bruer was in front of the committee this morning talking about the crack and powder discrepancy, and that's a critical --

SEN. CARDIN: Our chairman just came in from that committee, Senator Durbin, so --

JUDGE PEREZ: Good afternoon, Senator.

And that is a critically important issue. And as a prosecutor I always felt that it was critical to be smart on crime and to strive for justice, and to strive for justice in a way that commands respect of the community. And on a bipartisan fashion, I've observed that there is a recognition that we need to have a serious conversation about the crack/powder discrepancy. And if confirmed I looked forward to working with this committee, working with Assistant Attorney General Breuer, and Attorney General Holder to address that issue. Because, again, we should strive not only to do justice but ensure that the work that is done is respected in the communities. And that's what the discrepancy is really calling to task.

SEN. CARDIN: Well, voting rights, of course, are fundamental, and when the court was considering whether they'll, how they'll rule on the Voting Rights Act, I want to review with you some disturbing trends in recent elections here in the United States, including the 2006 election in Maryland that I am vividly familiar with.

I'm not sure we need new laws. I think the laws might be adequate. I joined then Senator Obama in introducing a bill that was passed by this committee, didn't get beyond our committee, did pass the House of Representatives, to strengthen the laws against fraudulent type of efforts to diminish minority voting.

We've seen efforts to get the wrong election day information to people in an effort to reduce minority participation. We have seen efforts made to intimidate voters not to show up at the polls. And we look to the federal government, the Justice Department, as providing the strength to fight those issues. Local governments are not able or capable, in many cases, to deal with it.

Can you just share with this committee your priority in looking at these matters, seeing whether you have adequate tools, working with this committee and Congress if you need additional tools or resources so that we protect the most valuable part of our democracy, and that every person has the right and ability to participate fully in electing their government.

JUDGE PEREZ: Senator, I completely agree with you that voting is our most fundamental right. And when you look at the re-authorization of the Voting Rights Act to this Congress, that's one of the first findings that's made in that area.

If confirmed, I would spend a considerable amount of time ensuring that we are adequately, that the division is adequately enforcing laws that are on the books. I confirmed, I would work hard in the Section Two context. Section Two of the Voting Rights Act is the bread and butter of the Voting Rights Act. It prohibits discrimination in the voting process, and it is a very powerful tool that can be used to ensure that people have access to the ballot, free from discrimination.

Section Five, as you (alluded earlier ?) this morning, is an equally important tool, and it is critical as the next census approaches, to ensure that there is both the human capital infrastructure, the IT infrastructure, and a plan in place when the next census is in place. Similarly, there are other laws on books. Section Seven of the Voting Rights Act, which provides opportunities and requires that states register people in the motor voter context and in other, in social service agencies, another critically important tool to enhance access to voting.

And so there are, as you correctly point out, a lot of laws on the books that can be used to ensure the right to vote, and I look forward, if confirmed, to enforcing those laws and also to continuing the dialog with you on the issue of whether those laws are enough.

SEN. CARDIN: I heard your statements on the politicization of the department, the inspector general's report, and you said what I would have hoped you would have said about how you would operate the division if you're confirmed. But I want to just emphasize the point.

What is your attitude about philosophy or partisan politics as it relates to the hiring, promotion of career attorneys or interns, or in any other way other than the political appointments in the office. Obviously there is a political consideration. But beyond the political appointments in the office, what role will partisan politics play if you are confirmed to head up the civil rights division?

JUDGE PEREZ: None, Senator. The search for career hires will be governed by a search for the most qualified candidates, plain and simple.

SEN. CARDIN: Thank you. I do have other questions, but I'm going to wait for the second round and I'll call on Senator Coburn.

SEN. TOM COBURN (R-OK): Thank you. Judge Hamilton, thank you for coming back. I'm sorry we haven't been able to meet or discuss in person. I hope to get that accomplished. I'm going to jump around a little bit, and then I have a series of about 20 questions for each of you that I'll be submitting for the record.

Mr. Perez, you've written a lot about health care, and you've connected it to a civil right. Is there a statute that you can call on or, in your role in the civil rights division, how will that play, and how will you use that, what you've said in the past and also statutes that will guide you in terms of health care and a civil right?

JUDGE PEREZ: Senator, I come from a medical family, and so I have great respect for doctors. The law that is currently on the books that implicates the medical profession is Title VI of the Civil Rights Act of 1964, which says that anyone receiving federal financial assistance cannot discriminate on the basis of race, color or national origin. And so in the context of the civil rights division, that is the principal statutory tool that would be used. Most hospitals are receiving federal financial assistance, so they have the anti- discrimination obligation.

SEN. COBURN: Do you have background or statistics that would say we have a significant problem? Our big problem is access, it's not denial of access, it's the economic access that has helped. Can you bring to light areas where you think we've seen discrimination in health care?

JUDGE PEREZ: Well, when I had the privilege, Senator, of serving as the director of the Office for Civil Rights at the Department of Health and Human Services, we had a number of cases involving discrimination. We had a, there was a hospital that was segregating their maternity ward by race. There was another case involving providers who were along the Mexican border with the United States, that had their security personnel dressing up in uniforms that closely resembled the border patrol so that they would discourage immigrants from using the facilities.

And so, while I think we've made a lot of progress in combating discrimination we had all too many case examples that demonstrated that there are pockets where discrimination persists.

SEN. COBURN: Judge Davis, you know, I tend to agree with President Obama's statement about empathy being required at the court, but I also know there's a second goal, and that is both stare decisis as well as the law. What role do you believe empathy should play in a judge's consideration of a case?

JUDGE DAVIS: Senator, I believe that empathy is one of those qualities that a life fully lived in the law and out of the law will come to be a part of a good and wise judge. I think it's a quality that permits a judge not to decide a case on the basis of the identity of the party before him or her; that wouldn't be appropriate. But an empathetic judge, I think, Senator, is one who appreciates the burdens, the challenges, that the litigants before him or her has met, and to appreciate the importance of a fair hearing and a fair and impartial judgment in every case.

SEN. COBURN: Okay. All right. You had by your record several reversals by the Fourth Circuit on evidentiary matters in criminal cases. Taken together, what's your response to that? What have you learned?

JUDGE DAVIS: Senator, in my 14-year, nearly 14-year career as a federal child judge, on a few occasions I have, applying the law as announced by the Supreme Court and the Fourth Circuit, ruled in a way that suppressed evidence, at the request of a criminal defendant. In the vast majority of those instances where I have granted a motion to suppress, the government did not appeal. However, as you point out, there have been a few instances in which the government did appeal and in which the Fourth Circuit reversed my judgment.

I have, in every instance, taken the law as it exists, done my best to apply the law to the facts that I found before me, and render a decision that in my judgment was fair and impartial. The Fourth Circuit has reversed those decisions on occasion and has done so in several instances in published opinions, which would indicate, as I believe to be the case, that a number of those cases presented novel or issues of first impression, and the Fourth Circuit published the opinion so as to give guidance to judges, trial judges, going forward.

But my judgment, Senator, is that my thinking on criminal law issues of procedure and substantive law very much are in the mainstream of thinking among federal judges.

SEN. COBURN: Did they get it wrong, any of them, in your opinion?

JUDGE DAVIS: Well there was one case, not in the criminal context, in which the Fourth Circuit reversed me and the Supreme Court reversed the Fourth Circuit. Whether --

(Laughter.)

SEN. COBURN: That's pretty good evidence, isn't it?

(Laughter.)

JUDGE DAVIS: Well, as the great justice said, you know, the Supreme Court's not final because they're infallible. They're infallible because they are final.

(Laughter.)

SEN. COBURN: Right.

JUDGE DAVIS: Reasonable judges can disagree about some of these issues, as you well know, Senator. Just last week, indeed, the Supreme Court, in a five to four decision in the fourth amendment context, greatly narrowed, if it did not overrule, a longstanding 1981 precedent relating to automobile searches. So these issues continue to evolve.

SEN. COBURN: Right. They evolve. In your opinion, is there any role for international law in the interpretation and judging of the U.S. Constitution in our statutes?

JUDGE DAVIS: I have not seen any evidence at the circuit court level, Senator, that any court has seen fit or found it desirable to do so. Of course, the Supreme Court justices themselves have some disagreement about the proper role. It seems to me in those few cases in which the Supreme Court has alluded to international decisions, it has been done in a very restrained way that simply pointed out that others around the world do or do not disagree with their interpretation of our constitution. But I see no evidence that any judge in this country has ever believed or does believe that referring to international principles is the way to decide constitutional decisions in our system.

SEN. COBURN: So you would have no trouble committing to this committee that you will not use international law as you interpret our constitution and our statutes?

JUDGE DAVIS: Well, certainly, Senator, to the extent that I am bound by the Supreme Court's pronouncements, and I would be if I'm lucky enough to be confirmed by this committee and by this Senate. To the extent the Supreme Court has indicated in a particular context that international principles played a role in their decision of an issue, then it seems to me a circuit court judge could take that into account in applying that principle.

SEN. COBURN: Yeah, in terms of utilization of stare decisis.

JUDGE DAVIS: Yes, exactly.

SEN. COBURN: All right. Judge Hamilton, do you have any comments on that, in terms of the utilization of international law?

MR. HAMILTON: -- (Off mike.) --

SEN. COBURN: You need to turn your mike on, if you would. It's okay. I forget it all the time.

MR. HAMILTON: Forgot again. In my courtroom it's always on, so, um --

SEN. COBURN: Well that can be dangerous at times.

(Laughter.)

We find that very dangerous.

MR. HAMILTON: Well I won't tell those stories, if I can -- (laughs) -- avoid doing that.

I think first of all it's clear to all American judges that I know that when we are applying the American constitution and interpreting it, it is the United States constitution that we are interpreting. I don't have any misunderstanding about that myself. I don't believe anyone else does.

There are situations that we've seen in which the Supreme Court or other courts, in struggling with a difficult question, will look to guidance from wise commentators from many places, professors from law schools, experts in a particular field who have written about it. And in recent years the Supreme Court has started to look to some courts from other countries where some members of the court may believe that there is some wisdom to be gained.

As long as it's confined to something similar to citing law professors' articles, I don't have a problem with that, but I think that all of us remember that the constitution, after all, is the product of a rebellion against a foreign power, and it is an American document that we are interpreting and applying.

SEN. COBURN: Okay. So outside of scholarly pursuit, the guidance will be the constitution and the statutes.

MR. HAMILTON: That's my view, yes.

SEN. COBURN: Thank you. In a speech in 2003, you were quoted, another judge who once said that part of a judge's job is to write a series of footnotes to the constitution. You added to that, that they do that every year in cases large and small. Would you kind of explain that to me, your meaning behind the statement?

MR. HAMILTON: Certainly. The speech you are referring to was in honor of my late colleague, S.U. Dillon (sp), whose seat I was nominated to take, back in 1994. And to give you an idea, I attended schools as a boy that Judge Dillon had desegregated, and he drew great criticism for doing that back in the 1960s. The way he described our work is the daily or weekly application of the provisions and principles of our constitution to new cases and new situations as they arise.

And, at least to me, the concept of the footnote implies what we're trying to do is not something new, but work out the details of how those principles apply to new situations.

SEN. COBURN: Okay. Thank you very much. I would say, Lee Hamilton is one of my heroes. I have great admiration and respect for him. I served with him for six years in the House, and he's a stellar individual.

I will submit questions to all three nominees, and I'd ask for certain that the record be left open because the other members of our caucus would like to do that, as well.

SEN. CARDIN: And it will be. Records will be left open for questions. And we would urge the nominees to try to answer those questions as promptly as possible so that the committee can consider the nominations in a timely way. So the record will remain open.

I have letters of support for Mr. Perez, nominations from many elected officials including Senator Kennedy, Governor O'Malley, Majority Leader Steny Hoyer, many members of the state assembly including the Republican leader, and local government officials. Without objection I would ask that these letters be made part of our record.

Hearing no objection, so ordered.

Senator Kaufman.

SEN. EDWARD E. KAUFMAN (D-DE): Yes. Judge Davis, how do you view your role different on the Circuit Court of Appeals and on the District Court?

JUDGE DAVIS: I'm sorry, Senator, I didn't catch that.

SEN. KAUFMAN: How do you see your role as different on the Circuit Court of Appeals as opposed to the District court?

JUDGE DAVIS: I see. As you can guess, Senator, I am sure, I greatly enjoyed my time as a trial judge, being in touch with lawyers, litigants, and particularly working with juries. And if I am lucky enough to be confirmed I surely will miss that aspect of the work.

But the role of the Circuit Judge, of course, is to select and apply the correct standard of review, be it de novo, abusive discretion, or clearly erroneous, and examine the record of proceedings below to ensure that the litigants received a fair and impartial judgment that is correct according to law and within the bounds of the factual record that was presented to the trial judge. And to do so, collaboratively and collegially with the two panel members on which, as you know, Circuit Court judges sit, as panels of three.

SEN. KAUFMAN: Judge Hamilton?

MR. HAMILTON: Thank you, Senator Kaufman. Like Judge Davis, I will miss trial work if I am confirmed for this position, and will miss the opportunity to work on a daily basis with juries and with lawyers in trials and conferences. I look forward to the possibility though of engaging in some of the legal issues in more detail, perhaps with a little more time to engage in them on those matters that are left less to the discretion of the individual trial court and more to broader rules of law that will be applicable to the whole circuit.

SEN. KAUFMAN: Secretary Perez, what in your background prepares you to be head of the civil rights division?

JUDGE PEREZ: Well, I've spent my entire career in civil rights, Senator, and I worked almost ten years in the civil rights division, starting as a summer clerk and working my way up to the deputy assistant attorney general for civil rights. I worked as a career person, and I've worked as a political appointee, and I recognize the critical importance of having that interaction between career staff and political staff.

The job is really, it requires legal acumen, it requires leadership, it requires management. And I've had the privilege of working with two organizations, leading those organizations, both of whom had critical missions, and both of whom had critical challenges. They were under performing, to be quite blunt.

And you learn a lot from those experiences about how to take an organization that isn't firing on all cylinders, and leading it. And I learned to listen. I learned to be inclusive. I learned that so many people on the front lines are going to have great ideas. I often say to people, I haven't had an original idea in years, but I pride myself on being a good listener. And I suspect that as we move back to the division, that I recall with great fondness, I hope that I can apply those experiences, and including, but not limited to, my DOJ experiences, to put to bear.

SEN. KAUFMAN: And what will your priorities be when you arrive in the new -- if confirmed.

JUDGE PEREZ: Well, number one, as I've mentioned, would be de- politicizing the decision-making process, and that includes, again, the hiring process and substantive decision making. So that, on Section Five submissions, for instance, from various jurisdictions, I want to make sure that we have the opinions of the career staff. I may not agree with the career recommendations all the time, but I guarantee you I will listen to them.

I also, in terms of priorities, would work hard to find out what's working. I think the work that has been done protecting religious freedom is a critical, a good example of work that's been done well. The human trafficking work is work that's been done well and should be continued.

But I would also make sure that we are enforcing all the laws that are in the arsenal of enforcement of the division: voting rights, as I have discussed; having the division play a role in foreclosure prevention, as I've done in the state of Maryland; and the aggressive and even-handed enforcement of hate crimes laws.

SEN. KAUFMAN: I feel a little bit like Groundhog Day. This morning I did the nomination for Mr. deBaca to be nominee for the Director of Office to Monitor and Combat Trafficking, and I asked him how he was going to coordinate with you. I guess it's only fair to ask you how you're going to coordinate with him.

JUDGE PEREZ: Well, in the realm of "it's a small world," when I served on the hiring committee in the early mid-nineties, Lu deBaca was one of the people that we hired.

SEN. KAUFMAN: That's what he said.

JUDGE PEREZ: And so I know Mr. deBaca very well and look forward to coordinating not only with him but with other agencies on critical issues, whether it's HUD or Treasury on foreclosure, Department of Homeland Security, Department of State on the trafficking issues, Department of Education on education issues. So many of the most vexing challenges are challenges that require that cross-agency coordination.

SEN. KAUFMAN: I just want to thank all three of you for agreeing to come and help us deal with the problems in the federal government, and I think it's really a tribute to the country that you're willing to do this and I just want to thank you for it. Thank you, Mr. Chairman.

SEN. CARDIN: Thank you, Senator. Thank you, sir. Senator Feingold is here, so before I start my second round I'll give Senator Feingold an opportunity.

SEN. FEINGOLD: Thank you very much, Mr. Chairman. Welcome to all the witnesses and congratulations on your nominations. Judge Davis, I'd like to start with you and, as I think you know, I have a longstanding concern about federal judges accepting expense paid judicial education trips from groups funded by wealthy contributors that actually freely admit their purpose to influence judicial decision making.

And you went on a number of these trips, as I understand it, but also in the spring of 2004, you decided to accept an offer to join the board of directors of one of the groups that provides these trips, the so-called Foundation for Research and Economics and the Environment, known as FREE. FREE promotes what it calls quote, "free market environmentalism," unquote. It's well known for its opposition to many of the major laws of our country and, not surprisingly, it's financial support comes from major corporations and conservative foundations.

As I understand it, an ethics complaint was filed against you for serving on FREE's board and that led you to request an opinion from the Committee on Codes of Conduct. The Codes of Conduct Committee gave you its opinion on March 30 of 2005, and you decided then to resign from the board. I want to thank you for providing that opinion and your letter requesting it to the committee.

Let me ask you first about your letter to the Codes of Conduct Committee requesting its opinion. You assert in the letter that you don't see any difference between the ethical propriety of serving on FREE's board and taking a trip funded by FREE. It seems pretty clear to me that joining the board of an organization like FREE is actually a much more significant indication of your involvement with the organization and poses in my mind very different ethical questions. Do you really not see the difference then, or do you see the difference now?

JUDGE DAVIS: I absolutely see the difference now, Senator. I did not see it back in the spring of 2004 when I was invited and agreed to join the board.

SEN. FEINGOLD: What is it that you understand to be the difference now?

JUDGE DAVIS: Well, I had the advisory committee's opinion, the committee's opinion, spelling out, as they point out, while the issue was difficult for them, they debated it for over a month. Ultimately, they came down on the side, having examined, among other things, the FREE website, that there was an appearance of impropriety in a judge's service on that board and I immediately, as you point out, took action to terminate my relationship as a board member.

SEN. FEINGOLD: Thank you, Judge. You didn't say much at the time about your reasons for resigning, but in a June 2007 statement, in a court proceeding, you asserted the committee had found a tension between your service on FREE's boards in one or more of the canons of the Code of Conduct for the United States Judges, but as I read the opinion, the committee very clearly said that your service on the board violated the two specific canons. It said, quote, "Your service on the FREE board of trustees violates Canon 5(b) because there is no practical way for you to disassociate yourself from the policies advanced by FREE and your affiliation would reasonably be seen as a personal advocacy of FREE's policy positions," unquote, and it said that your service on FREE's board, quote, "Runs afoul of Canon 2(a) of the Code because it could create in reasonable and informed minds a perception that your impartiality may be impaired and it lends prestige to FREE and allows FREE to exploit the prestige of the office," unquote.

There really was no wiggle room there at all, was there?

JUDGE DAVIS: I'm not sure I understand the question, Senator.

SEN. FEINGOLD: These are explicit statements of violating these canons, so there really was—this opinion really left no wiggle room around that, is that correct?

JUDGE DAVIS: Oh, and that's exactly why I resigned, Senator. The comment, I think, that you're quoting from on the record came up in the context of a case in which an attorney sought my recusal from that case, which was a long running case over which I presided for many years, and he attempted to use, both before me and before the Fourth Circuit upon appeal and a -- (inaudible) -- action my -- the mere fact of my presence on the FREE board as a reason for my recusal from that case.

And in denying the recusal motion, I simply alluded to, without having the opinion in front of me, trying to give him as much of an explanation for the circumstances which led to my resignation from the FREE board, I alluded—used the language that you just quoted, but I did not mean by that allusion on the record to capture the full flavor or weight of the Codes of Conduct Committee advisory opinion.

SEN. FEINGOLD: Okay.

JUDGE DAVIS: I agree with your characterization of it, and they specifically mentioned Canons 2 and 5 and --

SEN. FEINGOLD: All right. Obviously then, Judge, you agree that the Committee was saying unequivocally that it is improper for federal judges to serve on FREE's board.

JUDGE DAVIS: I believe that's exactly what they said, Senator, although they did say that merely reading the canons themselves did not provide an answer to the question.

SEN. FEINGOLD: Fair enough.

JUDGE DAVIS: They say that in the advisory opinion.

SEN. FEINGOLD: Okay. After reading the committee's opinion, I know you resigned from FREE's board, but did you discuss it with or give a copy of it to FREE or any FREE board member?

JUDGE DAVIS: I did not.

SEN. FEINGOLD: Who did you share it with?

JUDGE DAVIS: Then Chief Judge Wilkins of the Fourth Circuit, and you'll recall, I think, the way this came up was the complaint was filed with the Fourth Circuit Judicial Council as a complaint of judicial misconduct, and in consultation with then Chief Judge Wilkins he and I agreed that the appropriate way to approach the matter was not to treat it as a complaint of judicial misconduct. No one ever believed or alleged that I was guilty of misconduct.

Rather, the question that was posed was the question of interpretation of the canons and the Code of Judicial Conduct, and Judge Wilkins and I then agreed that I would request of the Codes of Conduct Committee an advisory opinion, and that's exactly what I did.

And, of course, the Advisory Committee on its part pointed out very carefully that it does not have jurisdiction over claims of judicial misconduct, but they accepted my request for an advisory opinion in respect to the application of the canons as it relates, or as they relate, to service on the board, so it was something of a disconnect --

SEN. FEINGOLD: I take it at this point you were aware that other federal judges were similarly violating the Codes of Conduct here.

JUDGE DAVIS: Well, when I made the request, Senator, I did not believe I was violating the Codes of Conduct.

SEN. FEINGOLD: No, but once you got that letter, you were aware that other judges were in the same status, right?

JUDGE DAVIS: I was aware that other judges were on the FREE board.

SEN. FEINGOLD: Okay. Could you just explain why you took no further action when you knew that there were continuing violations of the Codes of Conduct by other federal judges and are still taking place today?

JUDGE DAVIS: The understanding that I had, which has frankly recently been enhanced, is that an advisory opinion issued by the Codes of Conduct Committee goes to that judge at his or her request and that there is an institutional -- was my understanding -- interest on the part of the Codes of Conduct Committee not to have released advisory opinions requested by individual judges. As you, I'm sure, know, Senator, each federal judge has an independent obligation and Justice, I might say, has an independent obligation to attend to ethical norms and to take appropriate steps to ensure that his or her behavior and activities comport with those norms at all times, and that's what I did. And when I got the advisory opinion back from the Codes of Conduct Committee I took immediate action to take care of my issue, and I thought that was the extent to which I had an obligation to proceed.

SEN. FEINGOLD: Judge, this is not a favorite part of being a senator, asking you these kinds of questions, but I think you made a genuine attempt to answer. I am very concerned about this practice, as I know you understand, of taking these trips and being involved in these kind of boards, and I appreciate your answering the questions.

Mr. Perez, congratulations on your nomination.

SEN. CARDIN (?): Would the senator yield? I'm not going to take it off your time. If I could just put into the record that paragraph that Judge Davis referred to from the opinion, which reads—and I'll put the whole letter in the record. "We note that your inquiry is a difficult one. It was debated at length by the committee. We understand that the advice we gave you today would not be obvious from reviewing the canons and our previous advisory opinions.

In the past the committee often has assumed that the inquiring judge has the best position to evaluate the activities of a board on which he or she serves and has deferred to the inquiring judge's determination about the propriety of service. However, in light of the wealth of information about FREE that is now available to us and the public, we believe that we are in a position to provide you with advice as you have requested. Thus, while we never before have advised judges about this issue and acknowledge that you reasonably could have arrived at a different conclusion after diligently reviewing the most relevant Code of Conduct material available to you, we advise you now that your continued service on the FREE board in the future is inconsistent with Canons 2 and 5 of the Code of Conduct." I thank the Senator for yielding.

SEN. FEINGOLD: And I ask that the entire letter be placed in the record.

SEN. CARDIN: Yes.

SEN. FEINGOLD: Thank you. In the remaining time -- again, thanks, Judge. Mr. Perez, congratulations on your nomination. I've heard so much about you. You seem extremely well qualified for this position. It's very important that the Civil Rights Division regain its previous stature, and I wish you well in that.

I want to ask you just briefly about the issue of racial profiling. I first introduced legislation to ban racial profiling in 2001, and President Bush actually promised in his first address to Congress to quote, "end racial profiling in America," unquote. Do you agree that this is still a problem in this country and will you work with me on legislation to finally end it?

JUDGE PEREZ: I do agree, Senator, that it is a problem. I spent a good portion of my time as a criminal section lawyer down in Florida investigating racial profiling cases. I talked to many victims, and I look forward to working with you and others who—you've been a long- time leader in this issue, and I remember talking about this with Michael O'Leary back in the mid-nineties, so your doggedness is much appreciated and I look forward to working with you.

SEN. FEINGOLD: Including on legislation?

JUDGE PEREZ: Including on legislation. If you have questions, I would certainly be more than willing to be available to lend our insights.

SEN. FEINGOLD: Thank you, and thank you, Mr. Chairman.

SEN. CARDIN: Thank you, Senator Feingold. If I might, to both Judge Davis and Judge Hamilton, Judge Perez's, Secretary Perez's work in pro bono is well known. His role at the University of Maryland Law School is well known, and I'm more than happy to have Secretary Perez also respond to this. I know from each of your records that you've been involved in pro bono, so I know that. My question to you is that, as an individual, as an attorney, as a judge and, if confirmed, as an appellate court judge, how do you see your role in advancing equal opportunity before our courts, particularly those who don't have the resources to have the opportunities that others have in getting access to our judicial system? Judge Davis.

JUDGE DAVIS: Senator, I have throughout my professional career had a deep belief in and commitment to the ideal of pro bono. I think it is something that every lawyer and every judge who is privileged to be a member of this great profession of ours has such a responsibility, and I have worked diligently throughout my career to both increase opportunities for judges and lawyers to participate in pro bono activities and, more specifically, to ensure that the underserved and our young people and community members at large learn about the legal system, know their rights, and I've done so on both an individual basis and as a part of institutions.

For example, just very quickly, our court, like I'm sure most federal courts, make available to pro se litigants form documents which permit pro se litigants, when they can't find a lawyer, say, in an employment case or other kind of case, to come to the courthouse, pick up this form, which contains a series of check boxes and some place for writing in facts. We make it as easy as possible for these persons who have to represent themselves to come to the court and seek justice.

Just last week, for another example, our court under the extraordinary leadership of Magistrate Judge Garvey, for not the first time, put on what we call in the federal system the Open Doors Program, where high school students from around the Baltimore region spent the morning, including lunch, at our courthouse, put on a mock trial. I was privileged to preside over such a mock trial put on by students who served as a jury from Morgenthaler High School right there in Baltimore, and so these are just some of the activities that I, both in my institutional capacity and in my individual capacity, reach out to the community young people and pro se litigants to ensure that they know about our criminal justice system, they know about our civil justice system and know that we are there for them even when they can't get a lawyer and that we value increasing their knowledge about the justice system.

MR. HAMILTON (?): Senator, when I talk with new lawyers or law students I try to encourage, in every instance, them to commit a substantial amount of their time to pro bono work. That was something that was critical for me in my development as a new lawyer.

I try to suggest it's not only the right thing to do for the profession and for the clients they serve, but there's also a self- interest in doing so. It's a way for a new lawyer to invest in his or her career in developing skills, having opportunities to serve clients in ways that they might not be able to with their paying work that brings them along. I know that was critical for me in my development as a lawyer.

Like the District of Maryland, we also have programs in place to assist pro se litigants. I have to say also, at the same time, some of the pro se litigation obviously is frivolous. It winds up taking a good deal of time from the court, but it's also an important part of our work to deal with all of those claims fairly and as expeditiously as we can.

We provide, for example, panels of lawyers who are available to be contacted by pro se litigants who would like help with their cases. We have to do that under Seventh Circuit case law which governs how we go about the business of recruiting counsel when we must, when we should recruit counsel for pro se litigants, so consistent with the Seventh Circuit law on the subject, we do what we can along those lines.

I also would just say briefly that I think that in my work, both as a judge and as chief judge with some administrative responsibilities, I've certainly tried to make sure that in our administrative roles, in hiring new personnel and so on, that we are as much an equal opportunity employer, supervisor and dispute resolver as we can be.

JUDGE PEREZ: Thank you. Senator, my wife of 20 years is a Legal Aid lawyer of 20 years in Maryland and now she works at a place called the Washington Legal Clinic for the homeless. The only way they can handle cases is by partnering with law firms to handle cases on a pro bono manner. When I first started at the Department of Justice, DOJ attorneys were forbidden from taking pro bono cases. That rule has since changed and so some of her volunteer lawyers are currently lawyers who are coming from government service and, if confirmed, I would certainly work hard to ensure that we maximize opportunities for government attorneys to continue to participate in these critical projects.

SEN. CARDIN: Well, as you know, one of the recommendations of our committee in Maryland was not only to establish clinical programs in our law schools but that every lawyer—every lawyer—should do some pro bono, and that does not exclude government service attorneys, we think. Everyone has an obligation, particularly lawyers. We're charged with the legal system, we're charged with making sure that people have access to our system, and we can do a lot to help in that regard as individual practitioners. And I just encourage you, as leaders in the legal community, to use whatever opportunities you have to get that message across and I thank you, Secretary Perez for your longstanding leadership in this area.

I want to ask a question that chairman Leahy always asks those who are seeking to become judges and that is, can you share with us a moment during your career where you stood up for something that was not popular, stood up for people who were disadvantaged, whether it was against government or big companies, that indicated your willingness to step forward in order to protect the rights of individuals? Judge Davis.

JUDGE DAVIS: Senator --

SEN. CARDIN: You seem anxious to go. (Laughter.)

JUDGE DAVIS: Well, Senator, I'd like to think that I've brought that kind of approach to my work as a judge. Frankly, one case that might fit the mold of the question you've just asked is the case involving attempts by disabled individuals to require the Circuit Court for Baltimore city to bring the court facilities up to minimum standards for those who are disabled and I, through our random assignment system, got that case. My good friend, Judge Robert Bell, Chief Judge of Maryland, was named as a defendant in his official capacity, as were other judges on the court, and the claim was one of federal law and it was to be sure, somewhat awkward to be sitting in such a case. (Laughter.)

But, Senator, I do not hesitate, and the defendants in that case were ably represented by members of the Attorney General's office of the state of Maryland and I, on the basis of the record that was before the court, did not hesitate to enter a summary judgment in favor of the plaintiffs, the disabled individuals who wished to force the city of Baltimore and the court system in Maryland to take appropriate action long overdue to bring admittedly older structures, but structures that housed important governmental offices such as courts, into compliance with federal law, so I entered that judgment. It was a very collaborative process between the plaintiffs and defendants in that case.

And so that's certainly one of my instances where I stood up to judges and the local and state authorities to say, "Federal law requires this. These individuals have every bit of right to have full access to these facilities and these programs, as required by the Congress of the United States, and you've got to do it," and I'm happy to say that compliance, though it took a little while, compliance was achieved and the building was brought up to standards, and I'm very proud of that.

SEN. CARDIN: And how's your relationship with Judge Bell these days? (Laughter.)

JUDGE DAVIS: I got very warm wishes from him just recently, Senator.

SEN. CARDIN: I was looking—

JUDGE DAVIS: And he wished me well.

SEN. CARDIN: I don't know if I saw a letter from him or not for you. (Laughter.) Judge Hamilton.

MR. HAMILTON: Well, I, as some members of the committee may be aware, a few of my cases have generated a fair amount of criticism and they have not been popular. When I worked in private practice, I would say a lot of the pro bono work that I did fits that description.

I can think of, for example, a couple of cases back in the mid- 1980s as America was dealing with the first waves of the AIDS epidemic and there was a lot of fear, there was a lot of discrimination against people who tested positive. I assisted a man, for example, a father, who had been stripped of his rights as a parent because he had tested positive for the HIV virus. A state court had terminated his right as a parent of his son. I assisted in the appeal that led to the restoration of those rights.

I assisted a young boy named Ryan White, who became well known when he was told he could not attend school after he had gained the HIV virus through transfusion. He was a hemophiliac. Later passed away, but he was a courageous story and an inspiration to everybody who dealt with him.

Just about every other pro bono case that I handled dealt with, in essence, the less powerful or less moneyed against more powerful and wealthier interests, whether it was archeological interests against coal mining interests or opposing the state government in trying to destroy a historic building, and as I said, I think in my work as a district judge.

I try not to go out of my way to be unpopular. That's just not the way we decide cases. Sometimes the right result turns out to be the popular result; sometimes the right result is unpopular. You just go with the right result.

SEN. CARDIN: I thank you. That's a very meaningful response and we all do know about those causes, so you made a huge difference and we—all of you have made huge differences in that regard, and we thank you for that.

The record of the committee will remain open. Let me get my formal notices here. The hearing record will remain open for one week for additional statements and questions from senators. Again, we ask the witnesses to respond promptly to the questions that are asked by the members of the committee. Without objection, Senator Leahy, Chairman Leahy's statement will be made a part of the record.

I want to once again thank our nominees not only for being here and their responses to the questions that were asked but their continued service in the public. All three of you have made incredible contributions and are going to continue to do that and it's a pleasure to have you before our committee. Thank you very much.

END.


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