Senator Herb Kohl: In your responses to the committee's questionnaire, your answers to a question about judicial activism interested us. You said, "Certainly, once a judge concludes that the legislature has acted within its constitutional powers, the court's role is to uphold the law. However," you said, "in determining whether or not the legislative or the executive branch has acted within its constitutional powers, the court should be activist in its consideration of constitutional definitions, granting of powers, and guarantees of liberties in determining the meaning of the text."

Judge Clement, could you explain what you meant when you said a court should be activist?

Judge Clement: Well, I certainly didn't mean it in a negative sense. Judicial activism has been criticized as when a jurist oversteps the bounds of the Constitution or recognized constitutional statutes and attempts to inflict the will of the jurist on either the legislative or the executive branch or the people.

What I believe is that when legislation is proposed and passed and becomes statutory that there is a presumption of constitutionality. And to the extent, the statute should be upheld and the Constitution should be enforced.

Senator Kohl: Okay, a follow-up. When the Congress decides that an issue is a matter of national concern and that it significantly affects interstate commerce, do you then think that the courts should defer to Congress' findings?

Judge Clement: Well, of course, if the law is passed, there is a presumption, as I said, of constitutionality. So I would like to have the opportunity, of course, to review the statute, review the language of the statute, make a factual determination as to what was attempted to be accomplished by the passage of the statute, and then evaluate whether it is within the confines of the Commerce Clause, if it is permissible.

Senator Kohl: All right. Judge Clement, would you describe what you think are the key elements of the Federal right to privacy, if, in fact, you believe there is such a right?

Judge Clement: Well, the Constitution guarantees the right of privacy and the due process protection must be enforced. A statute should be considered constitutional, but, of course, if it does not guarantee due process, then it should be studied very seriously.

Senator Kohl: I would like to turn briefly to the topic of privately-funded judicial seminars, or what some have called junkets for judges. Your financial disclosure forms indicate that you have attended a significant number of these seminars in recent years, including a seminar on environmental law hosted by the Foundation for Research on Economics and the Environment.

As you are probably aware, such seminars have come under intense scrutiny based on evidence that the seminars are one-sided and that they are being funded by corporations and special interest groups that have an interest in Federal court litigation. Senator Kerry and Senator Feingold have introduced legislation that would ban these kinds of trips.

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  • Do you think that those Senators are correct to be concerned about these trips, and might you support their kind of legislation?

    Judge Clement: Well, as you know, judicial officers are frequently invited to participate as speakers or participants in programs dealing with judicial education, as well as continuing legal education for lawyers, as well as participate in lectures to law students.

    My experience has shown that the panels and the speakers are from a widely diverse group, that there is a representation from private industry as well as from government and public officials, as well as from the law schools, including the deans of the law schools and the faculty members.

    So to that extent, my participation in programs, either as a speaker or as a participant, has reflected that there is a wide variety of opinions expressed. I think it is a very broad-based presentation of issues dealing with constitutional law, as well as antitrust and economics, as well as environmental issues. So to that extent, I don't see a problem with the educational opportunities afforded to the judiciary.

    Senator Kohl: Do you plan to continue these types of seminars in terms of your attendance in the event that you are confirmed to the Fifth Circuit?

    Judge Clement: Well, some of the seminars are basic economics which, of course, I have completed. And then there is an advanced economics, which I have completed. Some of the seminars are focused on the Constitution, some are focused on environmental issues.

    So to the extent that I haven't already been exposed to that information and to the extent that I am impressed with the faculty that is being presented, I would evaluate the opportunity at that time when presented with the invitation.

    Senator Patrick Leahy: There is a lot of work being done by this committee right now on the question of balancing civil liberties and national security interests. What is the constitutional test of whether the government can deprive an individual of his or her constitutional rights on a plea of military necessity?

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