Statement of Senator Patrick Leahy,
Ranking Member, Senate Judiciary Committee,
Judicial Nominations Hearing
February 5, 2003 

Today the Judiciary Committee meets to consider four nominees for lifetime appointments to the federal bench – one to the Ninth Circuit Court of Appeals and three to district courts in North Dakota, Maryland and Ohio.  This arrangement, in keeping with years of precedent, is far more reasonable and sensible than what we faced last week when we were asked to consider a virtually unprecedented three circuit court nominees at one time.  By having only one circuit court nominee per hearing, we are able to give each of the people who has traveled here with their families and friends the attention they, and the position to which they are nominated, deserve. 

Last week’s assembly line hearing proved to be a disaster.  It was simply more work than can be done in a day by people of good will with difficult schedules.  And that has always been the reason such numbers of controversial nominees are not scheduled together. 

I do not urge a return to the days when the Committee did not hold a single hearing on a judicial nominee until mid-June, as in 1999.  I think if we worked together on a fair schedule, more like the steady pace we had set in the previous 17 months, there would be better hearings and better results from those hearings.

Today the circuit court nominee before us is Jay Bybee, currently serving in the Justice Department as Assistant Attorney General for the Office of Legal Counsel, or OLC.  The head of OLC serves as the Attorney General’s lawyer, advising him on legal issues underlying Administration and Department policies.  In the wake of September 11, Mr. Bybee’s responsibilities included rendering opinions on many controversial policies that have emerged from the Justice Department.  These include its ability to try terrorist suspects in military tribunals; its ability to use state and local police to make arrests for civil violations of immigration laws; its use of gun purchase databases to track terrorist suspects; its decision that, contrary to Secretary of State Colin Powell's opinion, they did not need to declare the al Qaeda and Taliban detainees prisoners of war under the Geneva Convention, and who knows how many other controversial policies.

I am interested in Mr. Bybee’s views on these questions of law, and I am also concerned with any role he has played in perpetuating the culture of secrecy that has enveloped the Justice Department over the last two years.  The office which he heads has long been a leader in sharing its work with the American public, and in recent years that office even began publishing its legal opinions on a yearly basis.  Many of these opinions are available in legal databases and provide a valuable insight into the legal underpinnings of our government’s policies.  But of the 1,187 OLC opinions that have been published on the Lexis legal database since 1996, only 3 are from the period during which Mr. Bybee has headed the office.  Up until now, there has also been a history of OLC releasing numbers of opinions on the DOJ website, as well as being made public in litigation and in response to requests by the Judiciary Committee.  This practice, too, has ended under Mr. Bybee’s leadership at OLC.  This non-disclosure fits a consistent pattern of an expansive view of executive privilege that has marked his time in government, and I look forward to hearing from him on that issue.

The district court nominations on today’s hearing agenda come from North Dakota, Ohio and Maryland, and appear to be more moderate and bipartisan than the President’s circuit court nominations.  Today we will hear from Judge Erickson, currently a Judge on the East Central District Court of North Dakota, who is supported by his two Democratic home-state Senators and is well-respected in his community as being a hard-working, thoughtful, fair, and even-tempered judge.  Among other accomplishments, Judge Erickson has been involved in developing a new Fargo initiative to assist juveniles involved in drug crimes.  I recall that when I was Chair of the Committee, we confirmed President Bush’s other nominee to the District Court for the District of North Dakota, Judge Hovland.

Today, we will also hear from Judge Quarles, nominated to the U.S. District Court for the District of Maryland.  Judge Quarles served as an attorney in private practice and an assistant U.S. Attorney in Baltimore before becoming a circuit judge on the Circuit Court for the City of Baltimore in 1996.  He is another consensus nominee who is supported by both of his home-state Senators.

Finally, Judge Frost, nominated to the U.S. District Court for the Southern District of Ohio, has been on the bench for the past 12 years.  In addition to serving as a judge, he is a current or former member of numerous charitable and civic organizations, and, I would like to note, Judge Frost has been principled in ensuring that the organizations of which he is a member do not discriminate.

I welcome the nominees and their families to this hearing.

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