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U.S. District Court nominee Paul Cassell clung tightly to the political center in defending his views on criminal law at a lively March 19 Senate Judiciary Committee confirmation hearing. Cassell, 42, a University of Utah College of Law professor who was selected for the federal trial bench in his home state, is well-known for his efforts to get the U.S. Supreme Court’s Miranda ruling overturned and for his outspoken support for the death penalty. Little formal opposition has emerged to Cassell’s confirmation, but liberal Democrats on the committee seized the opportunity to grill the soft-spoken conservative on those two issues. Cassell’s responses gave the opposition little new fodder, if any. The nominee pointed out that in addition to his tough-on-crime views, he has sometimes criticized the courts for not giving enough protection to the rights of criminal defendants. And he mentioned Justice Ruth Bader Ginsburg and the late Justice Thurgood Marshall as among those who embody his ideals. When Sen. Richard Durbin, D-Ill., asked Cassell why he had “led a crusade against Miranda rights,” the nominee replied that he had nothing against the familiar police warnings. He simply was “concerned that an act of Congress is going unenforced,” referring to a 1968 federal law that was designed to overrule the landmark 1966 Miranda case and require federal courts to admit confessions into evidence as long as they are shown to be voluntary. In Dickerson v. United States, the Supreme Court voted 7-2 in 2000 to turn aside Cassell’s challenge to Miranda, finding the 1968 law unconstitutional. Committee Chairman Patrick Leahy, D-Vt., asked Cassell why, in a law review article, he referred to Chief Justice William Rehnquist’s opinion in Dickerson as an example of “the imperial judiciary.” Cassell replied in a self-deprecating vein, “I exercised the one prerogative of anyone losing a Supreme Court case, which is to write a law review article disagreeing with the decision.” Leahy asked Cassell whether he would be able to regard Dickerson as a valid precedent if he had to face the issue as a sitting judge. “There’s a difference between being an advocate and a judge,” Cassell replied. “Some of the justices I most admire, such as Ruth Bader Ginsburg and Thurgood Marshall, successfully made the transition from the role of open-minded advocate to that of a fair judge.” No date has been set for a vote on Cassell. The hearing, the first on judicial nominations since the contentious defeat of appeals court nominee Charles Pickering Sr., was generally cordial and low-key. Three other nominees were considered briefly and without controversy: Terrence O’Brien for the 10th U.S. Circuit Court of Appeals, Legrome Davis for the Eastern District of Pennsylvania, and Lance Africk for the Eastern District of Louisiana. Votes on those nominees have not been scheduled.

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