(3) professional. I was impressed with the entire process. Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as asking or seeking a commitment as to how you would rule on such case, issue, or question? If so, please explain fully. No. [The Committee stood in recess from 11:05 a.m. to 11:58 a.m.] Chairman HATCH. Well, if I can have everybody's attention, Senator Kennedy is not coming, I have been informed. Senator Schumer is not going to come, as well. Senator Feingold was the last one we thought would come. So with that, I think the three district court nominations and you, Mr. Bybee, have had a pretty nice day. We will allow enough time for our colleagues to write written questions to you, and I am sure a number of these colleagues will do that. I have to say that I had to be gone for a while and I caught just the last end of Secretary of State Powell's remarks before the UN and I am telling you they were devastating. I have already chatted with a few people who heard the whole speech and they said he really laid it out, as I expected him to do. Let me just say this, Mr. Bybee. I have seen a lot of people around here and a lot of judges. Virtually everybody in the Federal judicial system has come through here during my 27 years of service and we have had a lot of really wonderful, outstanding people who are now serving on the Federal bench. I don't know of anybody who has any more qualifications or any greater ability in the law than you have, and that is counting some pretty exceptional people. And I think that is one reason why this particular hearing has not been as much an ordeal as some of the ones others have had. I think there is a tremendous amount of respect for you, as there should be. We will try to put your nomination on next Thursday's, after tomorrow, markup. It has almost become a general rule that the Democrats or somebody on the Committee will put over the nominations for at least one week. And generally, if the questions haven't been answered, that will probably occur. There is a belief by some that there is a real effort to slow down this process. Now, I would be the last who would think that that has real merit. Come to think of it, there has been some of that, but I am hopeful that in your case and in the case of many, many others that we can get you through, get you on the bench and get you doing your life's work, which is really what that will be, in the best interests of our country. And I have absolutely no doubt that your efforts will be in the best interests of our country. The other three district court nominees, we are very proud of them as well. So with that, we will close the hearing and thank you all for being here. [Whereupon, at 12:01 p.m., the Committee was adjourned.] QUESTIONS AND ANSWERS Senator Joseph R. Biden, Jr. Questions for Jay Bybee Question One As you know, the Justice Department recently announced its intention to maintain the Violence Against Women Office within the Office of Justice Programs, requiring its Director to report to the Assistant Attorney General, rather than creating a separate and distinct office within the Department, with its Director reporting directly to the Attorney General, as required by the 21" Century Department of Justice Appropriations Authorization Act, Pub. L. 107-273, 116 Stat. 1758 (Nov. 2, 2002) (“DOJ Authorization Act"). The Department has represented to me that its decision rested solely on a legal interpretation supplied by the Office of Legal Counsel (“OLC”). That legal opinion was contained, in part or in whole, in a February 7, 2003 letter to me from Acting Assistant Attorney General Jamie E. Brown. Question (a). Did you author the OLC legal opinion contained, in part or in whole, in the Answer: As head of the Department's Office of Legal Counsel, I am obligated to keep confidential the legal advice that my Office provides to others in the executive branch. I therefore cannot comment on whether or not my Office provided any of the legal analysis reflected in Acting Assistant Attorney General Brown's letter or on what role, if any, I may have played in such analysis. I understand that the Department has explained to your staff the policy reasons underlying the decision to keep the Violence Against Women Office within the Office of Justice Programs (“OJP"). Indeed, upon review, I do not think that Acting Assistant Attorney General Brown's February 7th letter offers any legal argument as to where the Violence Against Women Office should be located within the Department. Question (b). If you did not directly author the legal opinion, did you approve it in your capacity as Assistant Attorney General? Answer: See my response to Question 1(a). Question Two The February 7 letter states that “[t]he sparse legislative history [of the DOJ Authorization Act] is consistent with our conclusions." It then cites to a floor statement from a House subcommittee chairman. Significantly, the letter contains no citations to the Conference Report or the floor statements of other Members of Congress. I assume that OLC attorneys thoroughly reviewed the legislative history before making the previous statement. A review of the legislative history includes a number of other statements, beyond the sole statement cited by the Department's letter. For example, the letter fails to cite to the Conference Report for the DOJ Authorization Act issued by House Judiciary Committee Chairman James Sensenbrenner and signed by all the Conferees. The Sensenbrenner Conference Report states: Section 2002 creates a separate and independent Violence Against Conf. Rep. 107-685 (Sept. 25, 2002), at 180 (emphasis added). In addition, the February 7 letter fails to cite to a number of other statements by House members made the same day as the sole statement included in the Department's letter. For example, Representative Henry Hyde -- the former Chairman of the House Judiciary Committee and a member of the Conference Committee on H.R. 2215 -- stated that “[t]he Office will be headed by a Director who reports directly to the Attorney General...." H6748 (Sept. 26, 2002) (emphasis added). See also Statement of Representative Conyers (“important compromises were reached between the House and Senate... to establish an independent Violence Against Women Office within the Department of Justice. This provision raises the profile of the Office by having its Director report directly to the Attorney General instead of through other subordinates.") H6750 (Sept. 26, 2002); Statement of Representative Slaughter ("The conference report creates an independent Violence Against Women Office within the Department of Justice, rather than making the office simply a subsidiary part of the office of the Office of Justice Programs.”) H6746 (Sept. 26, 2002); Statement of Representative Nadler (The legislation “enhance[s] the Violence Against Women Office") H6748 (Sept. 26, 2002). The Department's letter also fails to include any mention of legislative history in the Senate. Significantly, while citing to a statement from the House Crime subcommittee chairman, the letter omits my floor statement, made in my capacity as Chairman of the Senate subcommittee with jurisdiction over the Violence Against Women Office. I explained that the DOJ Authorization Act created [a] permanent and independent Violence Against Women Office, a $9701 (Oct. 1, 2002). My remarks were echoed in a colloquy I entered into with Senator Patrick Leahy, then Chairman of the Senate Judiciary Committee with jurisdiction over the DOJ Reauthorization Act: [T]he pending Justice reauthorization conference report establishes Id Question (a). Did the OLC opinion on this issue consider the discussion of the Violence Against Women Office contained in the Sensenbrenner Conference Report or any of statements contained above? Answer: As the head of the Department's Office of Legal Counsel, I am obligated to keep confidential the legal advice that my Office provides to others in the executive branch. I cannot comment on whether or not I have provided any advice on this matter and, if so, the substance of that advice. I can say, however, that ideally all OLC advice would be based on a review of all relevant legal resources, including pertinent legislative history. In addition, I agree with you that insofar as legislative history is concerned, the statements that you cite would merit full consideration along with the statement included in Acting Assistant Attorney General Brown's letter. Question (b). Why did the Department's February 7th letter omit any mention of the Answer: As the head of the Department's Office of Legal Counsel, I am obligated to |