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 party, there is a concern up here, a concern shared by both sides of the aisle, that many of the delays are arbitrary, unnecessary, and totally inexplicable. You say you follow the procedures of the previous administration. I do not recall these kinds of delays with the previous administration. Now, when you were before this committee in June and, as you know, when you are here I make it a point to be here, so we can have a chance to ask questions. You and I discussed your relationships with agency heads within the department, including the Director of the FBI, Judge Sessions. The CHAIRMAN. Before the Senator goes to that point, I will give him more time. We are not going to vote for 15 minutes. Senator LEAHY. I am sorry, I was told we were going to vote at 11:30, but maybe that has changed. The CHAIRMAN. I know, but because you wanted to ask more questions, I had to delay the vote. Senator LEAHY. I certainly appreciate that. The CHAIRMAN. Let me ask for a point of clarification, if I may, in responding to your last question. The contentious environment you are referring to, you were not referring to the committee, were you? Attorney General THORNBURGH. I am referring to the fact that there is a lot more scrutiny, generally, on judicial nominees and that prompts us to be more careful in advising the President as to the individuals that he chooses. Let me just—— The CHAIRMAN. I understand. Attorney General THORNBURGH. You and I have discussed one of these The CHAIRMAN. I just wanted to make sure Attorney General THORNBURGH. No, no. What I am saying is that we have a number of issues about which there is considerable controversy and I think, in our responsibilities to the President to advise him with regard to particular nominees, we must apprise him of what is likely to be troublesome about a particular nominee. I do not want to belabor the point, but I think we have discussed some of those. The CHAIRMAN. And a last interruption, you were not suggesting that these nominees are being held up this long, and you were up to 70-some nominees backlog, because of the Senators who were being asked to recommend them, were you? It is not that they are not sending them to you, is it? Attorney General THORNBURGH. In some cases, it is. The CHAIRMAN. Is that right? What percentage of those cases would you suggest it was Attorney General THORNBURGH. Oh, I can think of maybe a dozen cases where we simply-and in fairness to the Senators, these are recent vacancies that they are in the process of carrying out the same kind of careful scrutiny that we can build upon. So I don't mean to point fingers. When you talk about 62 vacancies, they have not all been reaching back to 1987. Many of them are recent. The CHAIRMAN. Senator Leahy, we are adding 2 more minutes on your time, but I can't turn the clock back until that light goes off. Senator LEAHY. I understand, just as long as everyone knows that I am now on the chairman's time. The CHAIRMAN. Keep right on going. Senator LEAHY. Mr. Attorney General, we talked about, as I said, your relationships with the department heads, including the Director of the FBI, Judge Sessions, and you said that you felt they should check with you before testifying before Congress. Now, my concern is we are at the point where not only must they check, but may be afraid to say what is really on their minds if it deviates too much from the line. I think of somebody like Jack Lawn, well respected, former Administrator of the Drug Enforcement Agency. When he retires, he says that he favors more drug education and prevention programs to stem the demand for drugs, but he never testified that way. Was that because he would have been a textual deviant if he had done that? I mean, is this having to check and clear these statements reaching a point where some of these people might not be able to exercise adequate independence to give us the best information we might need? Attorney General THORNBURGH. Well, let me correct your characterization, I believe, of our discussions, or, if not, to clarify it. I, as the accountable head of the Department of Justice, ask that I be notified by department heads who work for me and who are accountable to me when they are appearing before the Congress. They don't have to check with me. They don't need permission, but I think as a manager and as one who is accountable to the President and to the people by dint of my office, I ought to know when these occurrences are taking place, and that has imposed no onerous burden on anybody within the department, to my knowledge. Nobody has ever raised it with me. And Administrator Lawn's observations are precisely my own. In fact, I repeated them this morning in my opening statement, that law enforcement alone simply can't do the job of dealing with the drug problem. And I think secretary-I keep wanting to elevate him-Administrator Lawn and I are of a mind with regard to the need for much more to be done other than simply more fire power in the law enforcement area. Persons within the Department of Justice, I would hope and expect, are available for candid discussion of their responsibilities with you at any time, and if that is not the case, I would invite you to raise it with me. Senator LEAHY. At our next hearing? Attorney General THORNBURGH. Well, give me a call. Senator LEAHY. If I thought I might get through or if a letter might actually get to you, I would do that. In the last year, the FBI has reportedly settled three different discrimination suits under terms that prohibit the parties from disclosing details of the agreement. Now, I assume that tax dollars are in there at some point, and tax dollars are going to be expended in that. If there is going to be accountability, can you really have accountability if the public doesn't have access to the information as to what kind of settlements were made? Attorney General THORNBURGH. I am not familiar with that case, but I will be glad to look into it. Senator LEAHY. I will give some specific questions on that. Senator LEAHY. I thought of that because at the same time I read about the Justice Department going into secret negotiations to settle the Exxon Valdez oilspill case-and I commend the Department and the administration for being concerned about that case. But following it, at least in the press, it was very difficult to see. It appeared, on one hand, your department was pressuring Alaska to enter into some kind of a secret agreement. Then you had a very well-attended press conference when the plea bargaining didn't work out announcing indictments, or your intention to seek them. And then, within a day or so, the informed sources in the Justice Department were saying this whole thing could fall apart because of the intransigence of the Alaskan authorities. And my only concern is, I understand negotiations go on leading up to a trial or leading up to charges and often are not made public, for good reason. But are we going to be in a position where we can't find out what happens in the final analysis? Are we going to be able to find out at some time just what was the Government's position, secret or public, in the Exxon Valdez case, because certainly nothing has galvanized the environmental scene with so much attention as that in recent years? Attorney General THORNBURGH. The Justice Department sought, and the grand jury voted, an indictment on five counts of Exxon, and we are prepared to try that case in court. It is really inappropriate to talk about anything in connection with that case until we appear in court, but these are serious charges. We are going to seek the maximum penalties if we are successful in obtaining a conviction, and I think any speculation, which we are constrained in addressing, about what the evidence is or what is involved in the case will have to await, unfortunately, the determination of the criminal proceedings. Senator LEAHY. I have no problem with that. I was just concerned about almost the day after seeking the indictments, the articles in the press were suggesting that the Justice Department was saying privately to the press we would have a much better case if it wasn't for the fact that the Alaskan authorities wouldn't plea bargain. Attorney General THORNBURGH. I don't think anybody said that, Senator. Senator LEAHY. OK. Attorney General THORNBURGH. I would be surprised if that were the case. Senator LEAHY. I will accept your statement, but that is the way it came out in the press. Attorney General THORNBURGH. What we said was this is a tough case. We are using laws that have never been applied, seeking penalties that are new to the judicial process. But we feel we have a good case and we are going to prosecute it as aggressively as we can. And I think the notion that somehow got abroad that this was some kind of secret sweetheart deal proposed by us to Exxon is to |