been a history of OLC releasing numbers of opinions on the Department of Justice website, where all Americans, from students to retirees, can, with the click of a mouse, pick them up. They have also responded, of course, to requests by the Judiciary Committee, under either Republican or Democratic leadership, but that practice, too, has ended under Mr. Bybee's leadership at OLC.

A Government works best when it is open and answers questions, and I am worried that we see a change from both Republican and Democratic administrations of openness, and if we go to this nondisclosure, then I think it follows this pattern of an expansive view of executive privilege that has marked the time that Mr. Bybee has been in Government, and I want to hear from him on that issue. This is something, this lack of openness, concerns have been expressed by me, by Senator Specter, by Senator Grassley, by Senator Hatch, by Senator Schumer and by a number of other son this committee.

Now, the District Court nominees from North Dakota, Ohio, Maryland appear to be more moderate and bipartisan than the President's Circuit Court nominations.

Judge Erickson is currently a judge in the East Central District Court of North Dakota. He is supported by both of the Democratic home State Senators, well-respected in his community as being a hardworking, thoughtful, fair, even-tempered judge. Incidentally, I was pleased to see, Mr. Chairman, that Judge Erickson has been involved in developing an initiative in Fargo to assist juveniles involved in drug crimes, and he will be joining the other judge from North Dakota that we approved when I was chairman, Judge Hovland.

We will hear from Judge Quarles, who is nominated in the U.S. District Court for the District of Maryland. He has served as an attorney in private practice, assistant U.S. attorney in Baltimore before becoming a Circuit Judge of the Circuit Court for the City of Baltimore. He is supported by both the Democratic Senators from his home State.

And Judge Frost, nominated to the U.S. District Court for the Southern District of Ohio, has been on the bench for 12 years. He is either currently or formerly a member of numerous charitable and civic organizations. I would like to note that he has been very principled in ensuring the organizations of which he is a member do not discriminate, including, if he thought that they did, to leave. I would also note that he is supported by both the Senators from his home State, both Senator DeWine, a valued member of this committee, and our friend, Senator Voinovich, a highly respected member of the Senate.

So thank you, Mr. Chairman.

Chairman HATCH. Thank you, Senator Leahy.

We will now turn, last, but not least, and very importantly, to our colleague on the committee, Senator DeWine, to speak about our judge from Ohio.

PRESENTATION OF GREGORY L. FROST, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF OHIO BY HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO

Senator DEWINE. Thank you, Mr. Chairman, very much. It is certainly my pleasure to introduce to the Members of the Committee Judge Gregory Frost. My friend and colleague from Ohio, Senator Voinovich, certainly wanted to be here with us today, but unfortunately will not be able to attend, but he did ask me, Mr. Chairman, to submit his statement to the record, and I would ask, with unanimous consent, it be made part of the record.

Chairman HATCH. Without objection.

[The prepared statement of Senator Voinovich appears as a submission for the record.]

Senator DEWINE. Judge Frost, as has been pointed out, has been nominated by the President of the United States to serve as a United States District Judge for the Southern District of Ohio. He currently serves as judge on the Licking County Common Pleas Court of Newark, Ohio. So I would like to welcome to the Committee several people who are here to support Judge Frost:

First, his wife Kristina Dix Frost and his son Wes. We welcome both of them to the committee. Kris and Wes, thank you very much for being here with us today.

I would also like to welcome Judge Frost's mother Mildred; his mother-in-law Helen Dix; his sister Beth Thomas and her husband Kim; as well as Doug McMarlin, a good friend of the Frost family; Sarah Barrickman, Judge Frost's law clerk; and Shawn Judge, a friend of Judge Frost.

Also here to show their support are Mike Nicks, an attorney from Newark, as well as Nancy Dillon and a man named Leonard, both friends of the Frost family.

Judge Frost is a 1971 graduate of Wittenberg University. Judge Frost received his law degree in 1974 from Ohio Northern University. Judge Frost's long career in both public service and private practice makes him well-qualified for the District Court.

He has been a Licking County judge for the past 19 years, serving as Municipal Court judge from 1983 to 1990, and then, Mr. Chairman, as Common Pleas judge from 1990 until the present.

While serving on the bench, Judge Frost was selected to take the lead in writing the jury instructions for the entire State of Ohio. Mr. Chairman, of course, we all know the importance of jury instructions. These jury instructions, of course, provide the framework in which all jury cases in the State of Ohio are deliberated. Prior to his service on the bench, Judge Frost was a partner in the law firm of Schaller, Frost, Hostetter and Campbell in Newark. While with that firm, he also served as an assistant Licking County prosecutor from 1974 until 1978.

Judge Frost is an excellent jurist whose dedication and graciousness have earned him the respect of those inside and outside of the

courtroom.

Now, Mr. Chairman, I was particularly struck by a letter Gary Walters, the Clerk of Courts in Licking County, wrote to the Newark Advocate newspaper. This is what he said regarding Judge Frost, and I quote:

"He arrives to work well before daybreak and before anyone else in the courthouse. He works hard all day, and routinely is the last one to leave in the evenings." Similar to you, Mr. Chairman. I note that from having an office right next to yours.

Chairman HATCH. That is a very habit.

Senator DEWINE. I know. I do not think he plays music as loud as you do, though, Mr. Chairman. He probably does not write music either, I do not think.

[Laughter.]

Senator DEWINE. "His work ethic is second to none. As Clerk of Courts, I am in the courtroom with Judge Frost. He recognizes that jury service is difficult and sometimes unpleasant. With his sense of humor and his willingness to explain every step of the process, he puts the jurors at ease and makes the experience an educational one. Many jurors have made a point to tell me that their jury experience was extraordinarily valuable because of the attention Judge Frost devoted to preparing them for their duties."

Mr. Chairman, this statement provides, I believe, an excellent illustration of both Judge Frost's temperament in the courtroom and his dedication to his position.

In addition to that, Judge Frost has committed a great deal of time and energy to his Licking County community. He has served on the board of directors of the Licking County Alcoholism Prevention Program, and the Maryhaven Alcohol and Drug Addiction Treatment Center in Columbus.

He is also an Executive Committee member of the Central Ohio Council of the Boy Scouts of America. Indeed, as a lifelong resident of Licking County, Judge Frost has made significant contributions to his community. Without question, Judge Frost will be a fine addition to the District Court. He has the experience, Mr. Chairman, the temperament and the dedication to be an excellent Federal judge.

I might add, Mr. Chairman, on a personal note, that I have known Judge Frost for many, many years, and I believe that he is the type person that we need to serve on the Federal District Court. I strongly support his nomination, and I thank the chair for the time.

Chairman HATCH. Thank you, Senator.

Before we begin, let me just say that I want everybody here on the Committee and all staff to listen very good to what I have to say. I was outraged today to read all over the paper today, including in Al Kamen's column in the Washington Post, information that was contained in the "confidential" section of the committee's file on Mr. Bybee. This is wrong. It is outrageous, and it is dirty politics, and it is violative of Committee rules that are very, very important rules that have been abided by. This is the worst I have seen since the Clarence Thomas hearings.

Now, Senator Leahy, when he was chairman, changed the Committee questionnaire to move some of the nominees' information, normally in the FBI files, into the "confidential" section. Now, Í want everybody to know that we are going to go back to what the Committee has always done before. The FBI files are to be held in confidence, and nobody is to breach that confidence, and I think this is a perfect illustration why we need to do that.

So, just so everybody is put on record, we are just not going to put up with that type of stuff, and I am going to investigate it and see if we can get to the bottom of it. No nominee should be treated any differently than we treated the nominees during the Clinton administration. They are to be treated exactly the same, whether they are President Bush's nominees or anybody else's.

Having said that, Mr. Bybee, if you could get ready to stand and raise your right arm to be sworn.

Do you swear that the testimony you are about to give before the Committee will be the truth, the whole truth and nothing but the truth so help you God?

Mr. BYBEE. I do.

Chairman HATCH. Thank you.

Senator KENNEDY. Mr. Chairman, I wanted to have the opportunity to inquire of Mr. Bybee. We are, as you know, there is an important conference on Haitian refugee policy, which is a matter of very important consequence to our Refugee Committee here, which I was at earlier today, and now I understand that the Secretary of State is going to be addressing the Security Council on one of the most important probably moments, in terms of American history, which will be very significant on the issues of war and peace.

So I am not going to be able to be here for the time of Mr. Powell's speech to the Security Council. I think I have a responsibility to do that, but I do have questions, so I will try and work this out with the chair. I do not have enormous numbers, but I do have questions that I would like to ask the nominee at some time.

Chairman HATCH. Well, we will accommodate the distinguished Senator and former Chairman of the committee, of course.

We would like to finish the hearings as soon as we can, but if you could come right back

Senator KENNEDY. I would be glad to come over right after Mr. Powell's address when it is finished.

Chairman HATCH. If you will, that would be great. We will reserve that time for you.

Senator KENNEDY. Thank you.

Chairman HATCH. What we may do is ask some questions of Mr. Bybee and then bring up the other judges until you come back. Senator KENNEDY. That is fine. Thank you. I thank you, Mr. Chairman.

Chairman HATCH. Thank you, Senator Kennedy.

Well, let us begin then, and we will reserve that time. I would like to see that myself, but I think we better move ahead here. Mr. BYBEE. Thank you, Mr. Chairman.

Chairman HATCH. I will be able to see it on C-SPAN, I am sure. But I do not blame any Senator for wanting to see that. This is an historic moment, and I personally just want to express my regard for Colin Powell and the terrific job he is doing as Secretary of State and for his resolute strength in this administration. I have tremendous respect for him, always have, and it has grown in my eyes even more since he has been acting as Secretary of State. So this is an important, historic time, and I cannot blame any Senators for wanting to see that. I would like to myself.

But we are going to move ahead here so that we do not inconvenience our judges, and then what we will have to do, Mr. Bybee, if we finish with our questions, we will move ahead with the other judges and put you in abeyance until Senator Kennedy and any other Democrat or Republican who wants to question will come back.

But let me just ask a few basic questions of you so that we uncover some of the things that I think are critical.

The Founding Fathers believed that the separation of the powers in the Government was critical to protecting the liberty of the people. Thus, they separated the legislative, the executive and the judicial powers into three different branches of Government, so-called co-equal powers: The legislative power being the power to balance moral, economic and political considerations and make law; the judicial power being the power only to interpret laws made by Congress and by other people, which sometimes involve the President, through Executive Order and otherwise; the judicial power being the power to interpret laws, something that we have really been concerned about on this Committee because of the actions of some of the judges and the various Circuit Courts of Appeals and, in particular, the Ninth Circuit Court of Appeals.

In your view, is it the proper role of a Federal judge, when interpreting a statute or a Constitution, to accept the balance struck by the Congress of the people or to rebalance the competing moral, economic and political considerations?

Mr. BYBEE. Thank you for that thoughtful question, Mr. Chair

man.

The separation of powers was fundamental to our constitutional design, and fundamental to that design was the idea that neither of the branches, none of the branches, should exercise any of the power of the other branches. When the Federal Courts seek to balance important moral or political decisions, they usurp the power of this body, the Congress of the United States, and that is not the appropriate role of the courts of the United States.

They have been given substantial powers under our Constitution, but it is the power of interpretation, not the power of decision in the first instance, Mr. Chairman.

Chairman HATCH. Thank you. You know, I have been very rude here because I have not given you a chance to even make an opening statement and, above all, I would like you to introduce your family and your friends who are here. I apologize to you. I am so anxious to get you through that—

[Laughter.]

Chairman HATCH. I think sometimes I place that above everything else. So please forgive me, but I would like you to make any statement you care to make, and of course introduce your family and friends who are here.

STATEMENT OF JAY S. BYBEE, OF NEVADA, NOMINEE TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT

Mr. BYBEE. Thank you, Mr. Chairman. I have many members of my family here that I would like to introduce, and I have many friends and colleagues who have attended as well. I will forebear