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Judge Revercomb ruled that the Labor Department position was correct and that the Attorney General's opinion stated only the Government's litigation position, and then the matter went forward.

Without reviewing all of it, there was a later opinion by another judge, Judge Gasch on the district court here in Washington, which dismissed a suit brought by Building Trades on the ground that there was lack of standing. This case raises a number of issues, the foremost of which is the resolution of an important legal principle, so that people will know what the conclusion is and the undesirability of really having it decided on standing grounds and also of the position of the Department of Justice in maintaining a binding opinion, in the face of a substantive court ruling to the contrary.

I appreciate your responsibility in the opinions, but I raise a question about whether there is a substantive judgment by a court, and perhaps that has to be determined when all of the appeals have been followed. I only found out about this on Friday and have not had a chance to write to you about it. It may be something which you would want to consider, unless you have some familiarity with the issue.

Attorney General THORNBURGH. I do not, Senator. I would be glad to consider it, if you would give us the details.

Senator SPECTER. All right. I will send the papers over to you, because it is really

Attorney General THORNBURGH. What is the name of the case?

Senator SPECTER. Well, there are a number of cases. One case is Outpatient Clinic, one case is Building Trades v. Turnage, another case is Crown Point Outpatient Clinic—there are a whole series of cases. I will submit them to you, but I would appreciate it if you would take a look at that, because there are some really important issues.

The next matter that I would like to raise with you, Mr. Attorney General, involves the question of oversight, which is always a troublesome issue, because we are all so busy that the Judiciary Committee has very little time to devote to the subject of oversight.

But we have come upon the question in some of the more protracted impeachment hearings which we have had. I wrote to you last November about the Hastings case, the Judge Hastings impeachment proceeding, where I was on the panel, and we had occasion to go very deeply into the situation there and got a response from Mr. Navarro which really did not reach the point. I understand the press of his business and he and I had a chance to talk about it, because I bumped into him at a hearing on the House side on the death penalty a couple of weeks ago. His response took up Hastings and Claiborne and Nixon, none of which I had referred to. I understand the press of business, but I would like to deal with the substantive issues here.

When we got into the Hastings case, we found that when the FBI served a subpoena duces tecum on Judge Hastings for records in a specific case which was under investigation, that they then took all of his records in his office, so that they did not treat it as a subpoena duces tecum, which, as we all know, requires the production of the records for the grand jury, and they did not limit their seizure of materials just to the case in question, but took all of his records.

Of course, he was presiding on many cases in which the United States was a party, so that defendants in other cases might have been prejudiced.

We did not get into that, because it was obviously very collateral to what we were pursuing, but I found that kind of a situation extremely troubling. There was a second matter that was referred to in the materials that I forwarded to you last November. In the second investigation of Judge Hastings, he had been investigated on the possibility of a bribe, but then on the leak of grand jury information.

In the second matter, there had been a representation by an FBI agent to Judge Hastings as to whether Judge Hastings was under investigation, and the Judge asked that question directly and the FBI agent responded in an untruthful way. Those two factors seem to me and to a number of my colleagues on the Hastings panel to be really serious issues.

I am concerned about your response to the specifics, but I am more concerned about how we really function in an oversight capacity. You have a vast department, it is just not possible for every action in every line to be scrutinized with the kind of care which we all would like, and we are very, very busy here. I would like to get your response as to procedurally how we really deal with these issues and then I would like to have your comments on the specifics, to the extent you would care to comment.

Attorney General THORNBURGH. Procedurally, how the Department of Justice deals with those issues is through our Office of Inspector General and the Office of Professional Responsibility, each of which are charged with specific tasks that have to do with allegations made of wrongdoing by any employee of the department.

In addition, if there is criminal conduct involved, then the U.S. Attorneys Office or the Criminal Division would look at those improprieties, as well.

There have been reports, I believe, from both of those entities regularly furnished to the Congress and they summarize the actions that are taken with regard to the type of allegations that you refer to, and I would suggest that scrutiny of those reports might indicate areas where congressional oversight might find us to have come up short in a particular area.

I must say, because these are agencies that are designed to carry out these types of investigations, that I am not familiar with either of the cases that you raise, but I am confident that the mechanisms that are in place address the concerns that you have.

If there are shortcomings in those mechanisms, of course, then it is up to the Congress to point those out. There has never been much reluctance on the part of the Congress to point out shortcomings of activities in the Department of Justice and we try to respond to them as best we can, but I would invite that scrutiny in these instances to those agencies as well.

Senator SPECTER. Well, there is some reluctance, at least this Senator feels it, knowing the kinds of burdens you have. But if you take this particular case, I am at a loss, really, as to how to attract attention until we get one of these annual hearings. Here you have the matter of a subpoena duces tecum and I sent it over and get back a letter from Mr. Navarro which refers to two others matters as well as Hastings. It is really a very generalized letter, speaking about the procedures. Then I talked to Mr. Navarro about it.

How do we make the-

Attorney General THORNBURGH. I do know if these examples, Senator, were referred to the Inspector General's Office or the Office of Professional Responsibility. I am at a loss to really assess how well our mechanisms designed to insure that misconduct on the part of any employee is dealt with. How they operated in this case, I do not know the details, whether they were assessed and found wanting for some reason. I just do not know.

Senator SPECTER. My time is up and I will wait until my next round. It may take me until next year, but I will await until my next round.

The CHAIRMAN. Will the General follow up on the specifics and

Senator SPECTER. I was going to say that. I do not know what happened in the department, either. Of course, I followed the practice of writing to you and then I talked to Mr. Navarro about it. I would like an answer as to the specifics, if you could provide it to us, on both the subpoena duces tecum

Attorney General THORNBURGH. Well, to the extent that we can, matters that are looked into by the Inspector General's Office and the Office of Professional Responsibility often involve grand jury proceedings or other kinds of criminal investigatory files which, as you know, are often beyond our ability to legally furnish to the Congress.

Senator SPECTER. Well, they may or they may not. I do not think they do in this case. Here you have a matter of a subpoena duces tecum which was served in the matter, so I do not

Attorney General THORNBURGH. Well, I do not know what was done, Senator, within the Department of Justice and, without knowing that, I cannot really-I am at a loss to respond. I will look into it, but I want to caution that it is not always possible for us to report back to you in a particular case if it insoles a grand jury investigation or a criminal investigation that we are not authorized to share.

You and I have had this discussion about the MOVE case and I realize the sensitivity of that, but until the rules are changed, we have to follow the rules, for the very reasons I mentioned in my discussion with Senator Biden.

Senator SPECTER. I totally agree with you about following the rules and we are going to reexamine rule 6(e) when we next have the crime package. But I do not believe that the matters that I have raised here would involve any of those limiting factors.

If I might just ask--
Senator LEAHY. I will go vote and I will be back.
The CHAIRMAN. No-
Senator LEAHY. I will be back.
Senator SPECTER. I will wait until the second round.
The CHAIRMAN. The Senator from Vermont.

Senator LEAHY. Mr. Chairman, we are going to have a vote right now, supposedly, if that is the case.

The CHAIRMAN. I understand.

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Senator LEAHY. I do not want to cut into Senator Specter's extra time, I would be happy to—

The CHAIRMAN. I have gotten the Senator's point.

Senator LEAHY. I did note, and I absolutely agree with the Senator from Pennsylvania that it is sometimes difficult to get material. I will submit a statement for the record. I would urge that the Attorney General read it, but I doubt if he will.

Attorney General THORNBURGH. I will, Senator. You have brought it to my attention specifically, I guarantee you. [The prepared statement of Senator Leahy follows:

PREPARED STATEMENT OF SENATOR PATRICK LEAHY Mr. Chairman, let me begin by commending you for holding this hearing. The Attorney General is a busy man, and I appreciate his appearance today, as well.

Mr. Attorney General, over the last year, I have noticed some disturbing trends at the Justice Department. Of greatest concern to me is your lack of responsiveness to Congress.

As the chief law enforcement officer in the United States, you face a number of grave and difficult challenges. But you do not face them alone. Crime and drugs are problems that affect every level of our society. They affect us as we strive to deal with them legislatively and they affect our constituents who confront these crushing problems in their daily lives. It is essential that we work together to solve this country's crises quickly and forcefully.

During your confirmation hearing, we discussed the problems facing you as you assumed control of the Department. I said then that the American people need to be assured that the Justice Department is enforcing the law and that someone is truly minding the store.

It is important that the American public have confidence and faith in what we are doing. My subcommittee has jurisdiction over the Freedom of Information Act, and in my time in the Senate, I have found that faith in government and knowledge of what the government is doing go hand-in-hand.

Congress, the press, and the public have a right to know what the administration-including the Justice Department—is doing. Failing to respond to inquiries from Senators and their staffs, clamping down on your Department heads, and limiting the access of the press all contribute to the perception that the Department is hiding something. Some say that is not true and I hope today's hearing is a first step in a new, more open direction.

Senator LEAHY. Well, Mr. Attorney General, I have written to you, you ignore my letters. I have mentioned it in hearings, I have mentioned it to your staff, they get ignored.

I mean these are serious letters, written as a member of this committee with oversight jurisdiction. You ignore those, so I just assume that you really do not care. You know, you have your annual trek up here and I think that is why some of the questions get a little bit lengthy and I really do not want to cut off any other Senator and I would want us to have the time to go back for a round again, because many of us feel that you really do not care.

Now, that may not be justified or not, but many of us have the assumption that, as far as the oversight committees are concerned, you do your annual trek, but you do no more than that.

My questions, to begin with, are in the areas of vacancies before the Federal courts. You mentioned the need for more judges. How many vacancies on the Federal district and circuit courts is the Senate waiting for nominations, not those pending, but just waiting for nominations? How many vacancies are there, approximately?

Attorney General THORNBURGH. There are currently 62 vacancies, 18 circuit court vacancies, 43 district court vacancies, 1 trades court vacancy. Out of those, 16 are in process at the Department of Justice. In about 21 cases, we are awaiting a recommendation from the Senators in question, so that they can be begun to be processed.

Senator LEAHY. What is the longest unfilled vacancy or the oldest vacancy for which the administration is yet to send up a nomination?

Attorney General THORNBURGH. I am not sure. Colorado used to be the NCAA champions.

Senator LEAHY. What is the date on that? How long has that been vacant?

Attorney General THORNBURGH. That was 1985 and we were unable to--this is before I got here, but it is—

Senator LEAHY. As of today, what is the oldest standing vacancy for which a nomination has not been sent up?

Attorney General THORNBURGH. I am not sure that I can answer that question, but I will supply you the answer.

Senator LEAHY. Would it surprise you if I were to say it was back in 1987?

Attorney General THORNBURGH. No.

Senator LEAHY. We have 23 nominations currently pending in the Judiciary Committee, and I understand from the chairman's staff that more than half are going to be considered by the end of the month. I am concerned about that, because it is very easy for us to say that we want good, fast-moving courts and we want strong law enforcement and, as a former prosecutor, nobody wants good, strong, fast, effective justice more than I do.

But I would point out, Mr. Attorney General, that there are more vacancies and more of a backlog in the nominations coming up from the administration than I can remember in my 16 years here in the Senate. Now, maybe some statisticians can find times when it was worse, but I cannot think of any.

I mention this because if we are going to move forward, many people are going to start asking why all these vacancies. I would hope it is not because we are going back to the old litmus test days or, rather, that you are just out there trying to find the best men or women for the job. I am trying to give you an easy way out on this issue.

Attorney General THORNBURGH. Well, the process, as you know, Senator, is designed, so far as the Justice Department is concerned, to create a pool of qualified men and women from whom the President can make his appointments. In order to ensure that pool is made up of qualified men and women, the procedures that are followed, as were followed in the previous administration, involve careful negotiation with the Senators who are, more often than not, the recommending individuals for judicial appointments and the assessment of the suitability of those persons recommended through a process of interview by senior Justice Department management on matters relating to their attitude toward the role of the judge.

FBI checks have grown longer and personnel have not kept pace with demands within the FBI, and the entire process has been stretched out, I fear, by a bit more contentious environment with regards to these appointments.

Senator LEAHY. As you also know, Mr. Attorney General, as you have been told by members of this committee, from the President's

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