Booker Confidential 7 - Kavanaugh Hearing

From: CN=David G.
Leitch/OU=WHO/0=E0P©Exchange [ WHO ]
To: Alberto R. Gonzales/VVHO/E0P©_,Exchange [ WHO ] <Alberto R. Gonzales>:Ashley Snee/WHO
/E0P©Exchange [ WHO ] <Ashley Snee>;Brett M. Kavanaugh/VVHO/E0P©EOP [ WHO ] <Brett
M . Kavanaugh>
Sent: 313/2003 10:36:56 AM
Subject: : RE: Wittes/Post editorial
###### Begin Original ARMS Header ######

RECORD TYPE: PRESIDENTIAL (NOTES MAIL)
CREATOR:David G. Leitch ( CN=David G. Leitch/OU=WHO/0=EOP@Exchange [ WHO ] )
CREATION DATE/TIME: 3-MAR-2003 15:36:56.00
SUBJECT:: RE: Wittes/Post editorial
TO:Alberto R. Gonzales ( CN=Alberto R. Gonzales/OU=WHO/0=EOP@Exchange [ WHO ] )
READ:UNKNOWN
TO:Ashley Snee ( CN=Ashley Snee/OU=WHO/0=EOP@Exchange [ WHO ] )
READ:UNKNOWN
TO:Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
###### End Original ARMS Header ######
The editorial today simply misstates the President's position on race,

rather than drawing the wrong conclusion from it. It is not correct to
say the the "White House . . . opposes the consideration of race and
ethnicity by the University of Michigan in its admissions process." It
opposes the way in which Michigan actually considered race and ethnicity,
but studiously reserved on whether it may ever consider race and
ethnicity.
Original Message
From: Kavanaugh, Brett M.
Sent: Monday, March 03, 2003 1:24 PM
To: Gonzales, Alberto R.; Snee, Ashley; Leitch, David G.
Subject: Wittes/Post editorial
I have explained to Wittes many times why there is no

contradiction between the President's position in the Michigan case --
diversity is a permissible goal but state must use race-neutral criteria
when available to achieve diversity -- and celebrating the fact that
Estrada would be the first Hispanic on this court. It seems to me, in
fact, that the two positions are entirely consistent. But Wittes is not
budging. He criticized the Judge in a September editorial for making a
similar comment and Post editorial today criticized White House on same
point. Wittes is just dug in on the idea that we should make no reference
-- ever -- to 's ethnicity.
The rest of the editorial was quite strong, of course.
Committee Confidential REV 00111001

From: CN=Brett M. Kavanaugh/OU=VVH0/0=EOP [ WHO ]
To: Brian.A.Benczkowski©usdoj.gov <Brian.A.Benczkowski©usdoj.gov>
Sent: 615/2003 2:37:27 PM
Subject: : RE: PDF

CREATOR:Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/0=EOP [ WHO ] )
CREATION DATE/TIME: 5-JUN-2003 18:37:27.00
SUBJECT:: RE: PDF
TO:"Brian.A.Benczkowski@usdoj.gov" <Brian.A.Benczkowski@usdoj.gov> (
"Brian.A.Benczkowski@usdoj.gov" <Brian.A.Benczkowski@usdoj.gov> [ UNKNOWN ]
READ:UNKNOWN
sure
"Brian.A.Benczkowski@usdoj.gov" <Brian.A.Benczkowski
06/05/2003 06:12:06 PM
Record Type: Record
To: Brett M. Kavanaugh/WHO/EOP@EOP

cc:
Subject: RE: PDF
16-20 pages okay? Pryor has a lot more problems than Carolyn.
Original Message
From: Brett_M._Kavanaugh@who.eop.gov
[mailto:Brett_M._Kavanaugh@who.eop.gov]
Sent: Thursday, June 05, 2003 5:44 PM
To: Benczkowski, Brian A
Subject: PDF
something like this for Pryor would be best

From: Miranda, Manuel 1(Frist1) <Manuel_Miranda@frist.senate.gov>
To: Brian.A.Benczkowski@usdoj.gov
<Brian.A.Benczkowski@usdoj.gov>;Kristi.L.Rernington@usdoj.gov
<Kristi.L.Rernington@usdoj.gov>;Viet.Dinh@usdoigov
<Viet.Dinh@usdoj.gov>;Monica.Goodling@usdoj.gov
<Monica.Goodling@usdoj.gov>;Monica.Goodling@usdoj.gov <Snee, Ashley>;Ho, James
VJudiciary\) <James_Ho@Judiciary.senate.gov>;Jacquot, Joe 1(HutchisoM)
<Joe_Jacquot@hutchison.senate.gov>;Ledeen, Barbara 1(Republican-ConA)
<Barbara_Ledeen©src.senate.gov>;Monica.Goodling@usdoj.gov <Kavanaugh, Brett
M.>;wgrubbs@who.eop.gov <wgrubbs@who.eop.gov>;wgrubbs@who.eop.gov <Goeglein,
Tim>;wgrubbs@who.eop.gov <Smith, Matthew E.>;Higgins, Stephen VJudiciary1)
<Stephen_Higgins@Judiciary.senate.gov>;Abegg, John 1(McConnell1)
<John_Abegg mcconnell.senate.gov>;SRushton
<SRushton ;joschal
<joschal ;VVichterman, Bill 1(Frist1) <Bill_VVichterman@frist.ge
Sent: 4/10/2003 9:57:56 AM
Subject: On Owen/ FYI only
Regarding Owen, this is the best info I have. To advance tomorrow's

meeting, let me know if there is anyone else who should be on the call
and anything we can do prior to it. Please do not distribute this.
Last week,Naral Pro-Choice America notified Democrat Senators that it

will score votes on Owen.
On Moirlay, Senator Feinstein convened Democrat women on Owen.

she has told GOP Senators that she is troubled and against a filibust
My info is that she attempted to see if they could be rallied. She
discovered she could but for Lincoln.
On Tuesday, the Democrat leadership, together with Cantwel Kennedy,

tried to rally their caucus but left without a decision. Kenne
asking Democrats to keep their powder dry until leade
decision.
Their hope is that pressure can be brought on the hesitant Democrats

over break We have seen that begin on websites:'
Democrat Senators have expressed concern about a filibuster against Owen

ofa judicial nominee based on substance. rather than process.
Wavering or opposed to extended debate on Owen were: Lincoln, Carper,
Graham, Nelson(F1), Nelson.(NE)„Baylk Landrieu, Breaux,Pry-or, Dorgan,
Conrad, Baucus, HollingsBry4and of course, Millet This may change
as they succeed in persugS

From: Lefkowitz, Jay P.
To: <Kavanaugh, Brett M.>
Sent: 1/17/2003 10:58:18 AM
Subject: RE: AP - Bush administration calls affirmative action plan "plainly unconstitutional"
Makes no difference to me. If you think it might make you take some heat in front of the folks you rally for support on
Judges, I am happy to go. If not, let's just see whose schedule it's easier for.
---Original Message--
Sent: Friday, January 17, 2003 10:52 AM
To: Lefkowitz, Jay P.
Subject: Re: AP - Bush administration calls affirmative action plan 'plainly unconstkutionar
Jay: I do all of these meetings and calls routinely on judges and can happily do these. Whoever does them
should just provide a very straightforward summary of the position and, in response to inevitable questions,
make clear that there was and is no need to take a position on whether diversity itself is a compelling interest
since race-neutral alternatives are available and, in other states, have ensured that minorities have access to
and are represented in institutions of higher education.
«...»
Brett M. Kavanaugh
01/17/2003 08:40:27 AM
Record Type: Record
To: Tim Goeglein/VVF10/EOP@EOP

cc:
bcc: Records Management@EOP
Subject: Re: AP - Bush administration calls affirmative action plan "plainly unconstitutional" « OLE
Object: StdOleLink »
I suggest Jay Lefkowitz as your first choice. If not, I will do them.
«...»
Tim Goeglein
01/17/2003 07:37:21 AM
Record Type: Record
To: Brett M. Kavanaugh/VVHO/EOP@EOP

cc:
Subject: AP - Bush administration calls affirmative action plan "plainly unconstitutional"

My friend B
A lot of interest in this in my world, as you might imagine.
Who from Counsel could speak to Norquist and Weyrich next week, as well as the conservative teleconference
on Monday?
tsg
Forwarded by Tim GoegleinA/VHO/EOP on 01/17/2003 07:40 AM
From: Brian Bravo/WHO/EOP@Exchange on 01/17/2003 06:43:42 AM

Record Type: Record
To:
cc:
Subject: AP - Bush administration calls affirmative action plan "plainly unconstitutional"
Bush administration calls affirmative action plan "plainly unconstitutional"
By ANNE GEARAN Associated Press Writer
WASHINGTON (AP) The Bush administration told the Supreme Court on

Thursday that university admissions programs that gave an edge to minority students are
unconstitutional and ignore race-neutral alternatives that could boost minority presence on
campuses.
The administration urged the high court to strike down admissions policies at the
University of Michigan and its law school.
The admissions policies amount to unconstitutional quota systems and unfairly

discriminate against white students, the administration argued in a friend-of-the-court brief
filed in the lawsuit challenging the Michigan school's practices.
Solicitor General Theodore Olson wrote: "The court should hold that the
university's race- and ethnic-based undergraduate admissions policies are unconstitutional
because proven race-neutral alternatives to achieving the laudable goals of educational
openness and diversity remain available."
Both admissions policies fail the constitutional test of equal protection for
everyone under the law and cannot be reconciled with previous Supreme Court rulings
that severely limit the use of race as a factor in government decisions, Olson wrote.
The filings do not go as far as some of President Bush's most conservative

supporters had hoped.
The administration did not stake a categorical position against any use of race in
university admissions, and did not ask the court to overturn an affirmative action ruling that
for 25 years has allowed some role for an applicant's race.
The case marks the court's first statement on racial preference programs in
academic admissions since the 1978 Bakke case, which affirmative action critics and
backers alike say has muddied the waters for a quarter century.
The 1978 case, the last college affirmative action case at the high court, involved

Allan Bakke, a white man rejected for admission to a California medical school while
minorities with lower test scores got in through a special program.
The court on a 5-4 vote outlawed racial quotas in university admissions, but left
room for race to be a "plus factor." Michigan and many other public universities have used
the ruling to design programs that can help minorities who might be rejected if only test
scores and grades are considered.
In practice, that has "become a wholesale invitation to ... mechanically admit

students who have questionable academic credentials and records merely because they
self-identify themselves as falling within a favored category," said Catholic University law
school dean Douglas Kmiec, who supports the Bush position.
The administration is not a party to the Michigan fight and did not have to take
any position. Affirmative action, however, is the most watched issue before the high court
this year and it would have been unusual for the White House to remain on the sidelines.
The issue is politically touchy because it is seemingly impossible to please both

Bush's conservative political base and the Hispanic and black voters the Republican party
hopes to attract during what is presumed to be Bush's re-election campaign next year.
The deadline for filing court papers in the Michigan case also came close on the
awkward, racially charged exit of Trent Lott, R-Miss., as the Senate's Republican leader.
Bush condemned remarks Lott made last month that seemed to long for the days of
segregation.
The high court, which will hear arguments on the case in March, could do what
the Bush friend-of-the-court brief apparently will not and conclude race can never be a
factor when a government-funded school decides whom to let in.
That position would eliminate the leeway from the Bakke case. Some think that
may be what the White House wants, even if Bush is not saying so.
"His public rhetoric of no quotas is obviously quite different than the position
they hope the Supreme Court will take," University of Southern California constitutional
law professor Erwin Chemerinsky said.
The court, which is expected to rule by summer, could redraw the rules for when
race may be considered.
Applicants for Michigan's undergraduate classes are scored by points, with

minorities or some poor applicants receiving a boost of 20 points on a scale of 150. At the
law school, admissions officers use a looser formula that tries to make sure that each class
has about 10 percent or 12 percent minority enrollment.
The administration says the point system is skewed toward minorities, noting that
a perfect SAT score is worth just 12 points, and an outstanding essay gets three points.
The cases are Grutter v. Bollinger, 02-241 and Gratz v. Bollinger, 02-516.

From: CN=Brett M. Kavanaugh/OU=VVH0/0=EOP[ WHO]
To: Charnes, Adam <Adam.Charnes@usdoj.gov>
Sent: 12/10/2002 1:37:16 PM
Subject: : Re: CA11

CREATION DATE/TIME:10-DEC-2002 18:37:16.00
SUBJECT:: Re: CAll
TO:"Charnes, Adam" <Adam.Charnes@usdoj.gov> ( "Charnes, Adam" <Adam.Charnes@usd$:.gov>
UNKNOWN ] )
READ: UNKNOWN
Can you make sure with Matt that Pryor would do it before we call him? If
so, we could try to get him into next week's book for President, and als,
do the switch of courts for Steele.

From: CN=Jay P. Lefkowitz/OU=OPD/O=EOP©Exchange [ OPD ]
To: Alberto R. Gonzales/VVHO/EOP@Exchange [ WHO ] <Alberto R. Gonzales>:David G.
Leitch/VVHO/E0P©Exchange [ WHO ] <David G. Leitch>;Brett M. Kavanaugh/WHO/EOP@EOP
[ WHO ] <Brett M. Kavanaugh>
Sent: 1/21/2003 11:27:50 AM
Subject: : RE: Affirmative Action ideas

CREATOR:Jay P. Lefkowitz ( CN=Jay P. Lefkowitz/OU=OPD/O=EOP@Exchange [ OPD ] )
CREATION DATE/TIME:21-JAN-2003 16:27:50.00
SUBJECT:: RE: Affirmative Action ideas
TO:Alberto R. Gonzales ( CN=Alberto R. Gonzales/OU=WHO/0=EOP@Exchange [ WHO ] )
READ:UNKNOWN
TO:David G. Leitch ( CN=David G. Leitch/OU=WHO/0=EOP@Exchange [ WHO ] )
READ:UNKNOWN
READ:UNKNOWN
I think MS and I are trending in that direction. Paige will be at UT on

Friday and as part of whatever pre-set remarks he was going to make, could
mention that the Department was going to issue something like that. Then
he would also highlight the UT success in this area.
Original Message
Sent: Tuesday, January 21, 2003 4:21 PM
To: Gonzales, Alberto R; Leitch, David G.; Lefkowitz, Jay P.
Subject: FW: Affirmative Action ideas
I think only idea #1 makes sense for now and there should NOT be some
grand announcement. The rest are appropriate steps after the Court
decision.
Forwarded by Brett M. Kavanaugh/WHO/EOP on

01/21/2003 04:27 PM
From: Margaret M. Spellings/OPD/EOP@Exchange on 01/21/2003 07:52:54

AM
Record Type: Record
To: Alberto R. Gonzales/WHO/EOP@Exchange, Jay P.

Lefkowitz/OPD/EOP@Exchange, Karl C. Rove/WHO/EOP@Exchange
cc: Diana L. Schacht/OPD/EOP@EOP, Brett M. Kavanaugh/WHO/EOP@EOP
Subject: FW: Affirmative Action ideas
fyi and comment

Original Message
From: Danielson, John [mailto:John.Danielson@ed.gov
<mailto:John.Danielson@ed.gov>]
Sent: Monday, January 20, 2003 9:18 AM
To: Spellings, Margaret M.
Subject: Affirmative Action ideas
Below is the text of Jerry Reynolds' document --reviewed by all in our

senior team --with ideas for announcement this week. They have also
recommended that RP come back from Texas tomorrow after the Perry
inaugural and be available for a possible event at the Press Club in DC on
Wednesday. Thoughts??? These are just ideas --nothing is confirmed at

all until we get your direction. Hope you had a great weekend, my friend,
and that Robert is on the mend!
MEMORANDUM
To: Secretary Paige

From: Gerald A. Reynolds
Subject: Outreach on Affirmative Action Issues
Date: January 17, 2003
We believe that the Department can support the President's

decision on affirmative action in a number of ways. The following are a
series of ideas you might consider:
1. Publish a report describing the innovative race-neutral

approaches that the President referred to in his speech.
As you know, we have been doing background research on this topic

for the past several months. We propose publishing a report on
race-neutral alternatives that would help guide educational institutions
across the country as they attempt to provide equal opportunity without
running afoul of the Constitution. We have prepared a detailed outline of
this report (attached). If you authorize us to continue with this work,
we expect that we could deliver a draft of the report by the end of next
week.
2. The Department could sponsor a national conference on

race-neutral approaches to educational diversity.
During the last Administration, OCR sponsored a national

conference on desegregation issues. We propose holding a similar national
conference on race-neutral approaches. The speakers could include:
U Top education officials in Florida, Texas and California,

who would describe all of the innovative new programs being experimented
with in their states.
U People who worked closely with the President in developing

the race-neutral alternatives implemented in Texas, such as Raul Romero of
the Board of Regents of the University of Texas.
U Noted scholars who have specialized their research in the

area of race-neutral alternatives, including Dr. George Lalloue of the
University of Maryland and Richard Kahlenberg of the New Century
Foundation (the national expert on socio-economic approaches).
3. Issue formal regulatory guidance on race-neutral

alternatives.
In the past, OCR has issued regulatory guidance on issues such as

using race as a factor in financial aid decisions. We could issue similar
legal guidance on this issue. This approach could be used to clarify our
Title VI regulations (specifically, 34 C.F.R. 100.3(b)(6)(ii) and
100.5(i)) to make clear that educational institutions have a legal
obligation under the Constitution to seek diversity first through
race-neutral measures, prior to resorting to racial preferences. Our
Title VI regulations and policy guidance would then be consistent with the
position laid out in the brief filed with the Supreme Court this week.
4. Train OCR staff on race-neutral alternatives, and ask them

to disseminate this information in their meetings around the country.
OCR has a series of authorized power-point presentations on

various topics, such as disability law. OCR staff use these power-point
presentations in dozens of meetings with school officials around the
country. We could prepare a power-point presentation on race-neutral
approaches, train OCR to fully understand the issues, and then ask them to

make the presentation at meetings across the country.
5. Establish a blue-ribbon advisory committee on race-neutral

approaches.
The Secretary could establish a blue-ribbon committee to provide him with

expert guidance on race-neutral approaches to diversity in education. The
advisory group could be composed of education officials from the
ground-breaking states (Texas, California and Florida), as well as leading
academics on this issue. The advisors would have credibility because of
their impeccable credentials and that they represent both political
parties. This blue-ribbon advisory committee could be assembled and
announced in relatively short order.
6. Explain the President's position to the higher-education

community.
We understand that on January 28 you will be meeting with several

of the most notable leaders of the higher education community. While we
expect that there are many topics that you need to discuss with these
leaders, we recommend that you also talk with them about the need to
develop race-neutral alternatives to current admissions practices.
7. Possible venue for any announcements.
We understand that you will be in Texas next week, and

specifically at the University of Texas. Since Texas is at the center of
the race-neutral innovations being implemented, this may present you with
an appropriate venue for an announcement.
RACE NEUTRAL ALTERNATIVES REPORT
Introduction
- Schools seeking to achieve student diversity have adopted

a number of innovative race-neutral programs in the wake of the Hopwood
case, Proposition 209, and other challenges to racial preferences. This
report catalogs the race-neutral alternatives that schools have been
implementing over the past several years.
- Why catalog race-neutral alternatives? (1) Because these programs

can expand equal opportunity. These programs have the potential to
promote a true diversity of viewpoint and experience without employing
racial preferences. That is, they have the potential to meet the goals of
those on both sides of the "affirmative action" debate. (2) Because many
of these programs are innovative approaches, and are consistent with the
principles and goals of NCLB (3) Because these programs help minimize
litigation risks, since most race-conscious programs are likely to produce
costly and probably unsuccessful litigation. Since the Supreme Court's
decisions in City of Richmond v. Croson (1989) and Adarand Constructors v.
Pena (1994), federal courts have heard challenges to race-conscious
government programs in many areas, including contracting and education.
There now appears to be an overwhelming judicial consensus that
governments must make a serious effort to use and evaluate race-neutral
efforts before relying on race-conscious means. (The courts differ,
however, about how intensive the required efforts must be and how the
success of those efforts is properly measured).
- This is primarily a secondary analysis - a literature

review. We hope in the future to expand the project to include a primary
analysis of these programs; to provide a sense of what the effects of
these programs are.
- This report covers post-secondary education, although we

do discuss certain examples from elementary and secondary school level
(particularly in the section on preferences based on socioeconomic

status). The longer range project would hopefully include K-12 as well.
- We do not assess these programs - this is not an effort to

develop a "best practices" guide. Much research is being done and needs
to be done before these programs can be assessed. We are merely
providing a catalog of the programs.
Systemic Approaches
This section catalogs programs that (1) build skills in students

who without intervention would not be competitive in the admissions
process; and (2) provide support throughout the post-secondary educational
experience for these students.
In other words, this section looks at plans that help to expand

the pool of competitive applicants, and then helps to ensure that those
students have long-term success.
- Skills development - prepare students from low performing

schools for higher education through a variety of approaches, including
supplemental teacher training, additional Advanced Placement coursework,
and establishing a relationship between public universities and these
schools. Specifically:
(1) University of Texas Advanced Placement Initiative

(2) Florida's "The A+ Plan," which focuses on promoting achievement
among the bottom 25% of every school in the state
(3) The University of California systems' partnerships with

low-performing high schools
(4) Florida's "Opportunity Alliances," which also pair up colleges
with low-performing schools
(5) Florida's commitment to provide the PSAT to all tenth graders in
the state
(6) Florida's partnership with the College Board
(7) Supplemental teacher training
(8) Additional college course work for those admitted under
alternative admission schemes
(9) Others
- Information initiatives - efforts to ensure that parents

and young teenagers get sufficient information so that they know they can
attend and succeed in college. Specifically:
(1) Advice to parents of young teens on how they can afford to

send a child to college
(2) Information to young teens to ensure that they catch a vision for
attending college (to ensure they are aware that they have options)
(3) Expanding career guidance programs

(4) Spreading the word widely about the availability of scholarships
(5) Ensuring students from low-performing schools that they would be
welcome in college
(6) All "recruitment and outreach" activities
Admissions Approaches
This section focuses on the straightforward question asked by

admissions officers: who do we admit? We will catalog various race-neutral
efforts that have been made to determine which students are admitted and
which are not. Note that the approaches described in this section are
often paired with systemic approaches as described above.
- Class rank approaches:
(1) Texas's "Ten Percent Plan"

(2) Florida's "Talented Twenty Plan"
(3) California's "Four Percent Plan."

- Preferences based on socioeconomic status - This approach,
sometimes called "needs-based affirmative action," promotes diversity by
conferring admissions preferences based on socioeconomic disadvantage.
(1) UCLA Law School approach

(2) La Crosse, Wisconsin school district
(3) Wake County, North Carolina school district
- Other programs - comprehensive review; lotteries; etc.
Conclusion
- Although the evidence is preliminary, it appears that

already there are positive developments from these race-neutral programs:
(1) Achieving goals such as increasing regional and

socioeconomic diversity and promoting opportunity for persons who have
overcome adversity.
(2) Achieving goals such as racial diversity. However,

caution that if an educational institution attempts to establish certain
racial targets through seemingly race-neutral measures 1) It presents
litigation risks as it is of questionable constitutionality; and (2) that
would undercut the philosophy of "race-neutral" programs.
- Other gains that are evident - for example, innovation is

now encouraged. Many new ideas are being implemented because the old
approaches have been disallowed by the courts or referendums.

From: Cl*Benjamin A. Powel1/01.*WHO/0=EOP[ WHO ]
To: Brett M. KavanaughNVHO/EOP@EOP[ WHO ]<Brett M. Kavanaugh>
Sent 12/23/2002 4:55:45 AM
Subject: : Re: question per mtg

CREATOR:Benjamin A. Powell ( CN=Benjamin A. Powell/OU=WHO/0=EOP [ WHO ] )
SUBJECT:: Re: question per mtg
READ:UNKNOWN
I'll bring it by.
Brett M. Kavanaugh
12/23/2002 09:51:26 AM
Record Type: Record
To: Benjamin A. Powell/WHO/EOP@EOP

cc:
bcc:
Subject: Re: question per mtg
I actually agree with you on point 2(B)(1), ut I çso think that

is counter-balanced by his support in the Afr erican community and
his pro-civil-rights stances. Also, he strongl7 Ipports Section 2 of
Voting Rights Act, but just opposes the clearance reqts of Section 5,
I gather. Do you have his testimony?
Benjamin A. Powell
12/23/2002 09:49:39 AM
Record Type: Record
To: Brett M. KavanaUgh/WHO/EOP@EOP

cc:
bcc:
Subject:
1. I al DOJ the question about what needs to be done on Steele

for chan Ct on Friday and received no answer.
2. On issue below:
A. Colloton: Extremely unlikely and doesn't meet your

"reasonably" likely test below. However, if someone wanted to make
spurious charges, they could take some sentences from his article, drop a
key word here or there, and twist them badly: For example, "[1]aws
against discrimination that explicilty apply to private college social
organizations may be unconstitutional due to the right of association
outlined above." (page 444). I don't put it past someone to do this in
the current environment despite the fact the article is actually an
endorsement of a liberal right of association.

B. Pryor: I know you probably disagree with me on this one, but
I think some group out there could add it to their list of issues with
him. Two issues:
1. His testimony that Sec 5 of the Voting Rights Act
should be repealed. Can be twisted into statements that he somehow is
against minority voting rights.
2. He represented and won the case for Alabama against
the Southern Christian Leadership Conference in a case where a judge
rewrote Alabama's state appellate, including imposing an explicit racial
quota on the members of a judicial nominating commission (3 of the 5
members were required to be African-American; I am not making this up).
Don't know if this will cause SCLC to make untrue charges against him.
Brett M. Kavanaugh
12/23/2002 09:09:45 AM
Record Type: Record
To: See the distribution list at the bottom of this message

cc:
Subject: question per mtg
Any of the below Presidentially approved candidates have i's„sue

that reasonably could receive increased D attention/scrutinyin Senate
because of Lott situation?

Message Sent
To:
Bradford A. Berenson/WHO/EOP@EOP
H. Christopher Bartolomucci/WHO/EOP@EOP
Jennifer G. Newstead/WHO/EOP@EOP
Kyle Sampson/WHO/EOP@EOP
Helgard C. Walker/WHO/EOP@EOP
Noel J. Francisco/WHO/EOP@EOP
Benjamin A. Powell/WHO/EOP@EOP

From: CN=Rachel R. Brand/OU=WHO/0=EOP [ WHO ]
To: Bradford A. Berenson/WHO/EOP@EOP [ WHO ] <Bradford A. Berenson>:Brett M.
Kavanaugh/WHO/E0P©EOP [ WHO ] <Brett M. Kavanaugh>:Noel J. Francisco/WHO
/EOP@EOP [ WHO ] <Noel J. Francisco>
Sent: 2/17/2001 8:03:53 AM
Subject: : unsolicited judge recommendations

CREATOR:Rachel R. Brand ( CN=Rachel R. Brand/OU=WHO/0=EOP [ WHO ] )
CREATION DATE/TIME:17-FEB-2001 13:03:53.00
SUBJECT:: unsolicited judge recommendations
TO:Bradford A. Berenson ( CN=Bradford A. Berenson/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
READ:UNKNOWN
TO:Noel J. Francisco ( CN=Noel J. Francisco/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
Unsolicited judge advice from an acquaintance, former Jerry SMSh
>Fifth Circuit
-SD Tex--fairly conservative, goes to mass ...ye :yday.

>pro-life; good friend of Smith and Jones. About 50-is1e':
-ND Tex.--was nominated by Bush q„-Jout Dems held him up.

>Good friend of Phil Gramm, and is good consepatiVe lUdge. Think it was a
>close roll call vote on his DCt confirmatio though"Young--in his 40s I
>think. (Also, Dallas desperately needs anot er cii uit judge, and Gramm
>will be SO happy w/W.)
>[?] -W.D. La.--You'll hav look closely at his record. He

>was pretty good on finally ending all sing, but some have said he's
>"like Judge Wiener"--and FYI Wiener isastrous Bush I pick (he's
more
>liberal than many of the demo tees).
›[Note: DeMoss will likely goseiiio,k at the end of 2001; Also, Jolly and
>Davis will soon be eligibletoo4 Parker will perhaps go in 2003--these
>latter 2 picks have a tremendous potential to swing the direction of the
>court.
Ninth Circuit
,f
> I. Good libertarian/conservative. Was our ATM
>judge. Smart, quick no-nonsense. He's a flower in the mud-swamp that is
>SF. Wou;od4bequi good on the Ninth Circuit. Might be a little too
>old--1 fte 50s /

From: Ben VVittes
To: Brett M. Kavanaugh/WHO/EOP@EOP[ VVHO ]<Brett M. Kavanaugh>
Sent: 4/9/2003 1:28:08 PM
Subject: : Pryor

RECORD TYPE: PRESIDENTIAL (NOTES MA.IL)
CREATOR:Ben Wittes ( Ben Wittes [ UNKNOWN ] )
CREATION DATE/TIME: 9-APR-2303 17:28:08.00
SUBJECT:: Pryor
TO:Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/0=EOP@EOP [ WHO
READ:UNKNOWN
I take it back. I will write something about the decision to nominate Pryor
promptly--having now read the amazing collection of speeches on his web
site. You should send over any exculpatory information you might have
quickly.
/ID
Benjamin Wittes
Editorial Writer
The Washington Post

From: Miranda, Manuel 1(Frist1) <Manuel_Miranda©frist.senate.gov>
To: <Kavanaugh, Brett M.>
CC: <Grubbs, Wendy J.>
Sent: 4/9/2003 1:18:32 PM
Subject: Owen
Brett, sorry for the slow reply to your message. Below is what I know
prior to the yesterday's Caucus. My understanding is that they are now
trying to keep powder dry while they strong arm those listed below, this
suggests that we should file early for cloture rather than letting
pressure build on them over Recess ...what do you think? On the other
hand, we have orchestrated nothing around Owen. Attention is pretty
fiat.
The Democrat caucus his not yet decided whether they intend to
filibuster Owens confirmation but will likely do so on Tuesday.
Today, Senator Kenredy is seeking a meeting with Democrat leadership to
convene a meting ofDemocrat leadership with Judiciary Democrats to
discuss a filibuster. Owen will be discussed by the Democrat Caucus
today. Senator Kennedy is expected to ask Democrats to keep their
powder dry until leadership mks a decision.
Yesterday, Senator Feinstein convened Democrat women on Owen. Last

week, Naral Pro-Choice America notified Democrat Senators that it pilk.
score votes on Owen.
According to Democrat sources, several Democrat Senators have e,

concern about any filibuster ofa judicial nominee that is based on
substance, as opposed to process. The Senators that may be4waVe 'ng or
opposed to an extended debate are: Lincoln„ Pryor, Carper, Or,alxt
Nelson(Fl), Nelson(NE),Bath.Landrieu, Breaux, Dotg . tn. Conracd,
Baucus, Hollings, Bryd and Millet 4

From: CN=Rachel L. Brand/OU=WHO/0=EOP [ WHO ]
To: Brett M. Kavanaugh/WHO/EOP@EOP [ WHO ] <Brett M. Kavanaugh>
Sent: 416/2001 2:06:53 PM
Subject: : Re: 0A6

CREATOR:Rachel L. Brand ( CN=Rachel L. Brand/OU=WHO/0=EOP [ WHO ] )
CREATION DATE/TIME: 6-APR-2001 18:06:53.00
SUBJECT:: Re: CA6
READ:UNKNOWN
hard to relax given the level of paranoia around here about the perception
of our influence on DOJ litigation
Brett M. Kavanaugh
04/06/2001 02:30:35 PM
Record Type: Record
To: Rachel L. Brand/WHO/EOP@EOP

cc:
bcc:
Subject: Re: CA6
just kidding; relax!!
Rachel L. Brand
04/06/2001 02:10:00 PM
Record Type: Record
To: Brett M. Kavanaugh

cc:
bcc:
Subject: Re: CA6
If you're-S4g st I found out from my husband, not true. Haven't

talked him al, t it at all. Two separate friends have (totally
unsolic ed) felt the need to tell me all about these cases and their
proceduAl_pootures. Both are involved in one of the cases in one way or
another. I'listened politely and that's it -- I didn't want to seem too
skittish about talking about it with them for fear of giving away that I
was working on it.
Brett M. Kavanaugh
04/06/2001 01:55:32 PM
Record Type: Record

To: Rachel L. Brand/WHO/EOP@EOP
cc:
bcc:
Subject: Re: CA6
hmm. wonder how you know that.
Rachel L. Brand
04/06/2001 12:23:10 PM
Record Type: Record
To: Bradford A. Berenson/WHO/EOP@EOP

cc: See the distribution list at the bottom of this message
bcc:
Subject: Re: CA6
A cert petition has been filed in the University of Washington case.

response is due late April.
Bradford A. Berenson
04/06/2001 11:17:19 AM
Record Type: Record
To: Helgard C. Walker/WHO/EOP@EOP

cc: See the distribution list at the bottom
bcc:
Subject: Re: CA6
There's also a case arising out of Washington '''St'.a& that holds out the
potential for a split.
Helgard C. Walker
04/06/2001 11:10:45 AM
Record Type: Record
To: Brett M. Kavanaugh/WHO

cc: See the distribution the bottom of this message
bcc:
Subject: Re: CA6
Would that creat rst Circuit split on this issue -- i.e., CA6 on
one side of Ba in Hopwood on the other?
Brett M. avanaugh
04/06/200 fig:27:23 AM
Record Type: Record
To: See the distribution list at the bottom of this message

cc:
Subject: CA6
CA6 has stayed pending appeal the Michigan district court ruling
striking down the Michigan Law School's race-based admissions program.
The panel on the stay order consisted of 2 Clinton appointees (Daughtrey
and Moore) and a Carter appointee, Boyce Martin. If this panel stays
intact for the appeal itself, that almost certainly will mean the law
school's race-based admissions program will be upheld by the CA6 panel,

although there is the possibility of en banc review, especially given that
there is another CA6 case pending on the college admissions program at
Michigan.
The panel in its stay order specifically stated that the

correctness of the district court's decision rests on the proper
interpretation of the Supreme Court's decision in Bakke.
Message Sent
To:
Alberto R. Gonzales/WHO/EOP@EOP
Bradford A. Berenson/WHO/EOP@EOP
Helgard C. Walker/WHO/EOP@EOP
Courtney S. Elwood/WHO/EOP@EOP
Stuart W. Bowen/WHO/EOP@EOP
H. Christopher Bartolomucci/WHO/EOP@EOP
Rachel L. Brand/WHO/EOP@EOP
Noel J. Francisco/WHO/EOP@EOP
Robert W. Cobb/WHO/EOP@EOP
Message Copied
To:
alberto r. gonzales/who/eop@eop
ra or a. nerensoniwnoieopieop
courtney s. elwood/who/eop@eop
stuart w. bowen/who/eop@eop
h. christopher bartolomucci/who/eop@eop
rachel 1. brand/who/eop@eop
noel j. francisco/who/eop@eop
robert w. cobb/who/eop@eop
Message Copied
To:
brett m. kavanaugh/who/eop@et
alberto r. gonzales/who/eop@eo
courtney s. elwood/who
stuart w. bowen/who/
h. christopher bar i/who/eop@eop
rachel 1. brand/ eop
noel j. franci pfeop@eop
robert w., ob op@eop
Message
To:
helgard c. walker/who/eop@eop
brett m. kavanaugh/who/eop@eop
alberto r. onzales/who/eo @eo
bradford a. berenson/who/eop@eop
courtney s. elwood/who/eop@eop
stuart w. bowen/who/eop@eop
h. christopher bartolomucci/who/eop@eop
rachel 1. brand/who/eop@eop
noel j. francisco/who/eop@eop
robert w. cobb/who/eop@eop

c

From: CN=Brett M. Kavanaugh/OU=VVH0/0=EOP[ WHO]
To: Ashley Snee/WHO/EOP@Exchange@EOP[ WHO ]<Ashley Snee>;Jeanie S. Mamo/VVHO
/EOP@EOP[ WHO ]<Jeanie S. Mamo>
CC: Wendy J. Grubbs/VVHO/EOP@EOP[ WHO]<Wendy J. Grubbs>
Sent: 2/14/2003 11:18:42 AM
Subject: : dead horse society

CREATOR:Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/0=EOP [ WHO
CREATION DATE/TIME:14-FEB-2003 16:18:42.00
SUBJECT:: dead horse society
TO:Ashley Snee ( CN=Ashley Snee/OU=WHO/0=EOP@Exchange@EOP [ WHO ] )
READ:UNKNOWN
TO:Jeanie S. Mamo ( CN=Jeanie S. Mamo/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
CC:Wendy J. Grubbs ( CN=Wendy J. Grubbs/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
444444 End Original ARMS Header 444444
an e-mail reminder: think an editorial in Arkansas Dem-GazettéVuPl I

very helpful in softening up Pryor and Lincoln as we try to clOse4
out. Can we offer Judge and/or me to talk to them. Thanks46

APR. 22. 2002 9:35AM NO. 6823
0:\MDM\MDM02.148 S.L.C.
107TH CONGRESS
21) SESSION
S.
IN THE SENATE OF THE UNITED STATES
Mr. JOHNSON (for himself and Mr. KERRY) introduced the following bill;
which was read twice and referred to the Committee on
A BILL
To establish the Office of Native American Affairs within
the Small Business Administration, to create the Native
American Small Business Development Program, and for
other purposes.
1 Be it enacted by the Senate and House of Representa-

2 tives ofthe United States ofAmerica in Congress assembled,
3 SECTION I. SHORT TITLE.
4 This Act may be cited as the "Native American Small

5 Business Development Act".
6 SEC. 2. NATIVE AMERICAN SMALL BUSINESS DEVELOP-
7 MENT PROGRAM.
8 The Small Business Act (15 U.S.C. 631 et seq.) is
9 amended—
Committee Confidential REV_00339906

APR. 22. 2002 9:35AM NO. 6823 P. 3
0: MDM\MDM02.148
2
1 (1) by redesig,nating section 36 as section 37;
2 and
3 (2) by inserting after section 35 the following:
4 "SEC. SC NATIVE AMERICAN SMALL BUSINESS DEVELOP-
S MENT PROGRAM.
6 "(a) DEFINITIONS.—In this section-
7 "(1) the term 'Alaska Native' has the
8 meaning as the term 'Native' in section 3(b,
t
9 Alaska Native Claims Settlement Act (43
10 1602(b));
11 "(2) the term 'Alaska Native corporation' has
A* .
12 the same meaning as the term ''Native Corporation'

13 in section 3(m) of the Alaska Native Claims Settle-
14 ment Act (43 U.S.C. 1602(m));
15 "(3) the term Assistant Administrator' means
16 the Assistant Administrator of the Office of Native
17 American Affairs established under subsection (b);
18 '-'(4) the terms 'center' and 'Native American
19 business center' mean a center established under
subsection (c);
1 "(5) the term 'joint project' means the corn-
22 bined resources and expertise of two or more distinct
23 entities at a physical location dedicated to assisting
24 the Native American community;

APR. 22. 2002 9:36AM NO. 6823 P. 4
0:\MDM MDM02.148 S.L.C.
3
1 "(6) the term 'Native American business devel-
2 opment center' means an entity providing business
3 development assistance to federally recognized tribes
4 and Native Americans under a grant from the Mi-
5 nority Business Development Agency of the Depart-
6 ment of Commerce;
7 "(7) the term 'Native American small business
8 concern' means a small business concern that is
'y
9 owned and controlled by-
10 "(A) a member of an Iidi trjbe or tribal
11 government;
12 "(B) an Alaska Native or Alaska Native
13 corporation; or
14 "(C) a NatiVe Hawaiian or Native Hawai-
15 ian organization;
16 "(8) the term 'Native Hawaiian' has the same
17 meaning as in section 625 of the Older Americans
18 Act of 1965 (42 U.S.C. 3057k);
19 "(9) the term 'Native Hawaiian organization'
20 has the same meaning as in section 8(a)(15) of this
Act;
22 "(10) the term 'tribal college' has the same
23 meaning as the term 'tribally controlled college or
24 university' has in section 2(a)(4) of the Tribally

APR. 22. 2002 9:36AM NO. 6823 P. 5
0:\MDM\MDM02.148 S.L.C.
4
Controlled Community College Assistance Act of
2 1978 (25 U.S.C. 1801(a)(4));
3 "(11) the term 'tribal government' has the
4 same meaning as the term 'Indian tribe' has in sec-
5 tion 7501(a)(9) of title 31, United States Code; and
6 "(12) the term 'tribal lands' means-
7 "(A) all lands within the exterior bound
‘
8 aries of any Indian reservation; and
9 "(B) all dependent Indian cornmiiiiities.
10 "(b) OFFICE OF NATIVE AMERICAN AFFAIRS.-
11 "(1) ESTABLISHMENT.—There is established
12 within the Administration the Office of Native
13 American Affairs, which, under the direction of the
14 Assistant Administrator, shall implement the Admin-
15 istration's programs for the development of business
16 enterprises by Native Americans.
17 "(2) PURPOSE.—The purpose of the Office of
18 *atiVe American Affairs is to assist Native .Amer-
19 , jean entrepreneurs to—
"(A) start, operate, and grow small busi-
ness concerns;
22 "(B) develop management and technical
23 skills;
24 "(C) seek Federal procurement opportuni-
25 ties;

APR. 22. 2002 9:36AM NO. 6823 P. 6
0:\MDM\MDM02.148 S.L.C.
s
.
5
1 "(D) increase employment opportunities
2 for Native Americans through the start and ex-
3 pansion of small business concerns; and
4 "(E) increase the access of Native Ameri-
5 cans to capital markets.
6 "(3) ASSISTANT ADMINISTRATOR.-
7 "(A) APPOINTMENT.—The Administrato
8 shall appoint a qualified individual to selke
9 Assistant Administrator of the Office of Native
10 American Affairs in accordance with this para-
11 graph.
12 "(B) QUALIFICATIONS.—The .Assistant
13 Administrator appointed under subparagraph
14 (A) shall have—
15 "(i) knowledge of the Native Amer-
16 can culture; and
17 "(ii) experience providing culturally-
18 tailored small business development assist-
19 ance to Native Americans.
"(C) EMPLOYMENT STATUS.—The Assist-
ant Administrator shall be a Senior Executive
22 Service position under section 3132(a)(2) of
23 title 5, United States Code, and shall serve as
24 a noncareer appointee, as defined in section
25 3132(a)(7) of title 5, United States Code.

APR. 22. 2002 9:36AM NO. 6823 P. 7
0:\MDM\MDM02.148 S.L.C.
6
1 "(D) RESPONSIBILITIES AND DUTIES.—
2 The Assistant Administrator shall—
3 "(i) administer and manage the Na-
4 tive American Small Business Development
5 program established under this section;
6 "(ii) recommend the annual adminis-
7 trative and program budgets for the Office
8 of Native American Affairs;
9 "(iii) establish appropriate funding
10 levels;
11 "(iv) review the annual budgets sub-
12 mitted by each applicant for the Native
13 American Small Business Development
14 program;
15 "(v) select applicants to participate in
16 It(the program under this section;
17 "(vi) implement this section; and
18 "(vii) maintain a clearinghouse to pro-
19 vide for the dissemination and exchange of
information between Native American busi-
ness centers.
22 "(E) CONSULTATION REQUIREMENTS.—In
23 carrying out the responsibilities and duties de-
24 scribed in this paragraph, the Assistant Admin-

APR. 22. 2002 9:36AM O. 6823 P. 8
0:\MDM\MDM02.148
7
1 istrator shall confer with and seek the advice
2 of-
3 "(i) Administration officials working
4 in areas served by Native American busi-
5 ness centers and Native American business
6 development centers;
7 "(ii) the Bureau of Indian Affair
8 the Department of the Interior;
9 "(iii) tribal governments-''
10 "(iv) tribal collegV'
11 "(v) Alaska Native Corporations; and
12 "(vi) Native Hawaiian Organizations.
13 "(c) NATIVE AMERICAN SRALL BUSINESS DEVELOP-
14 mENT PROGRAM.-
15 "(1) AUTHORIZATION.-
16 ,*:"(A) N GENERAL.—The Administration,
17 through the Office of Native American Affairs,
18 shall provide financial assistance to tribal gov-
19 ernments, tribal colleges, Native Hawaiian Or-
ganizations, and Alaska Native Corporations to
create Native American business centers in ac-
22 cordance with this section.
23 "(B) RESOURCE ASSISTANCE,—The Ad-
24 may also provide in-kind resource
25 assistance to Native American business centers

APR. 22. 2002 9:36AM NO. 6823 P. 9
0:\MDM MDM02.148 S.L.C.
8
1 located on tribal lands. Such assistance may
2 include-
3 "(i) personal computers;
4 "(ii) graphic workstations;
5 "(iii) CD-ROM technology and inter-
6 active videos;
7 "(iv) distance learning business-re-
8 lated training courses;
9 "(v) computer software; and
10 "(vi) reference materials.
11 "(C) USE OF FUNDS. The financial and
12 resource assistance provided under this sub-
13 section shall be used to overcome obstacles im-
14 peding the creation, development, and expan-
15 sion of siriall business concerns, in accordance
16 with this section, by-
17 "(i) reservation-based American Indi-
18 ariS;
"(ii) Alaska Natives; and

20, "(iii) Native Hawaiians.
21 "(2) 5-YEAR PROJECTS.—
22 "(A) IN GENERAL.—Eaeh Native Amer-
23 jean business center that receives assistance
24 under paragraph (1)(A) shall conduct 5-year

APR. 22. 2002 9:36AM NC. 6823 io
0:\MDM\MDM02.148 S.L.C.
9
1 projects that offer culturally-tailored business
2 development assistance in the form of—
3 "(i) financial education, including
4 training and counseling in—
5 "(I) applying for and securing
6 business credit and investment cap-
7 ital;
8 "(II) preparing and presenting fi-
A.
9 nancial statements; and N.
10 "(III) managing cash flow and
11 other financial operations of a busi-
12 ness concern;
13 "(ii) management education, including
14 training and counseling in planning, orga-
15 nizing, staffing, directing, and controlling
16 each major activity and function of a small
17 ,business concern; and
18 "(iii) marketing education, including
19 training and counseling in—
"(I) identifying and segmenting
domestic and international market op-
22 portunitics;
23 "(II) preparing and executing
24 marketing plans;

APR. 22. 2002 9:36AM NO. 6823 P. 1 1
0: MDM MDM02.148 S.L.C.
10
1 "(III) developing pricing strate-
2 gies;
3 "(IV) locating contract opportu-
4 nities;
5 "(V) negotiating contracts; and
6 "(VI) utilizing varying public re-
7 lations and advertising techniques.
8 "(B) BUSINESS DEVELOPMENT ASSIST-
9 ANCE RECIPIENTS.—The business development
10 assistance under subparagraph (A) shall be of-
11 fered to prospective and current owners of small
12 business concerns that are owned by—
13 "(1) American Indians or tribal goy-
,/
14 emments, and located on or near tribal
15 lands,
16 k "(ii) Alaska Natives or Alaska Native
17 ASeorporations; or
18 "(iii) Native Hawaiians or Native Ha-
19r'%. waiian organizations.

"(3) FORM OF FEDERAL FINANCIAL ASSIST-
1 ANCE.-
22 "(A) DOCUMENTATION.-
23 "(i) IN GENERAL.—The financial as-
24 sistance to Native American business cen-
25 ters authorized under this subsection may

APR. 22. 2002 9:36AM C. 6823 P. 12
0:\MDM\MDM02.148
1 be made by grant, contract, or cooperative

2 agreement.
3 "(ii) EXCEPTION.—Financial assist-
4 ance under this subsection to Alaska Na-
5 tivc corporations or Native Hawaiian orga-
6 nizations may only be made by grant. "
7 "(B) PAYMENTS.—
8 "(i) TIMING,—Payments made under
9 this subsection may be disburs
10 "(I) in a single lump sum or in
11 periodic installments. and
12 "(II) in advance or after costs
13 are incurred.
14 "(ii) ADVANCE.—The Administration
15 may disburse not more than 25 percent of
16 the annual amount of Federal financial as-
17 '''''sistance awarded to a Native American
18 J small business center after notice of the
award has been issued.
"(iii) No MATCHING REQUIREMENT.—
The Administration shall not require a
22 grant recipient to match grant funding re-
23 ceived under this subsection with non-Fed-
24 eral resources as a condition of receiving
25 the grant.

APR. 22. 2002 9:36AM O. 6823 P. 13
0:\MDM\MDM02.148 S.L.C.
12
1 "(4) CONTRACT AND COOPERATIvE AGREE-
2 MENT AUTHORITY.—A Native American business
3 center may enter into a contract or cooperative
4 agreement with a Federal department or agency to
5 provide specific assistance to Native American and
6 other under-served small business concerns located
7 on tribal lands, to the extent that such contract o
8 cooperative agreement is consistent with the terms
t
9 of any assistance received by the Native American
'to
10 business center from the Administraf
11 "(5) APPLICATION PROCESS.-4
12 "(A) SUBMISSION' OF A 5-YEAR PLAN.—
13 Each applicant for assistance under paragraph
14 (1) shal) submit a b-year plan to the Adminis-
15 tration on proposed assistance and training ac-
16 tivities.
17 `(B) CRITERIA.—
18 "(i) IN GENERAL.—The Administra-
tion shall evaluate and rank applicants in
accordance with predetermined selection
criteria that shall be stated in terms of rat-
22 ative importance.
23 "(ii) PUBLIC NOTICE.—The criteria
24 required by this paragraph and their rel-
25 ative importance shall be made publicly

APR. 22. 2002 9:37AM O. 6823 P. 14
0:\MDM MDM02.148
13
1 available, within a reasonable time, and
2 stated in each solicitation for applications
3 made by the Administration.
4 "(iii) CONSIDERATIONS.—The criteria
5 required by this paragraph shall include-
6 "(I) the experience of the appli-
7 cant in conducting programs or ong,o-
8 ing efforts designed to impart..or up-
(/
9 grade the business skills .of current or
10 potential owners of Native American
11 small business,concerns;
12 "(H) the ability of the applicant
13 to commence a project within a min-
14 imum amount of time;
!*.
15 "(III) the ability of the applicant
16 to provide training and services to a
17 representative number of Native
18 Americans;
"(IV) previous assistance from
the Small Business Administration to
1 provide services on tribal lands; and
22 "(V) the proposed location for
23 the Native American business center
24 site, with priority given based on the
25 proximity of the center to the popu-

APR. 22. 2002 9:37AM NO. 6823 P. 15
0:\MDM\MDM02.148 S.L.C.
14
1 lation being served and to achieve a
2 broad geographic dispersion of the
3 centers.
4 "(6) PROGRAM EXAMINATION.-
5 "(A) IN GENERAL.—Each Native Amer-
6 ican business center established pursuant to
7 this subsection shall annually provide the Ad- 48'
8 ministration with an itemized cost breakdown of
9 actual expenditures incurred during- the pre-
10 ceding year.
11 "(B) ADMINISTRATION ACTION.—Based on
cf'
r
12 information received Under subparagraph (A),
13 the Administration shall—
14 "(1) develop and implement an annual
15 programMatic and financial examination of
16 each Native American business center as-
17 sisted pursuant to this subsection; and
18 "(ii) analyze the results of each exam-
ination conducted under clause (i) to deter-
mine the programmatic and financial via-
21 bility of each Native American business
22 center.
23 "(C) CONDITIONS FOR CONTINUED FUND-
24 ING.—In determining whether to renew a grant,
25 contract, or cooperative agreement with a Na-

APR. 22. 2002 9:37AM NO. 6823 F. i3
0:\MDM\MDM02.148 S.L.C.
15
1 tive American business center, the
2 Administration-
3 "(i) shall consider the results of the
4 most recent examination of the center
5 under subparagraph (B), and, to a lesser
6 extent, previous examinations; and
7 "(ii) may withhold such renewal, if
8 the Administration determines that
9 "(I) the center has r failed iro pro-
10 vide any information required to be
11 provided under subparagraph (A), or
12 the information provided by the center
13 is inadequate;
14 "(II) the center has failed to pro-
15 vide any information required to be
16 provided by the center for purposes of
17 the report of the Administration
18 under subparagraph (E); or
19 "(III) the information required to
20.. be provided by the center is incom-
plete.
22 "(D) CONTINUING CONTRACT AND COOP-
23 ERATIVE AGREEMENT AUTHORITY.-
24 "(i) IN GENERAL—The authority of
25 the Administrator to enter into contracts

APR. 22. 2002 9:37AM NO. 6823 P. H
0:\MDM\MDM02.148 S.L.C.
16
1 or cooperative agreements in accordance
2 with this subsection shall be in effect for
3 each fiscal year only to the extent and in
4 the amounts as are provided in advance in
5 appropriations Acts.
6 "(ii) RENEWAL—After the Adminis-
7 trator has entered into a contract or coo
8 erative agreement with any Native er-
9 ican business center under this(
snosection,
10 it shall not suspend, terminate, or fail to
11 renew or extend any such contract or coop-
12 erative agreement unless the Administrator
13 provides the center with written notifica-
14 tion setting forth the reasons therefore and
15 affords the center an opportunity for a
16 Xi:tearing, appeal, or other administrative
17 ,proeeeding under chapter 5 of title 5,
18 United States Code.
19 "(E) MANAGEMENT REPORT.—
"(i) IN GENERAL.—The Administra-
tion shall prepare and submit to the Corn-
22 mittee on Small Business of the House of
23 Representatives and the Committee on
24 Small Business and Entrepreneurship of
25 the Senate an annual report on the effec-

APR. 22. 2002 9:37AM NO. 6823 P. 18
0:\MDM\MDM02.148 S.L.C.
17
1 tiveness of all projects conducted by Native
2 American business centers under this sub-
3 section and any pilot programs adminis-
4 tered by the Office of Native American Al-
5 fairs.
6 "(ii) CONTENTS.—Each report sub-
7 mitted under clause (i) shall include, with
8 respect to each Native American business
9 center receiving financial assistance Under
4 iv
10 this subsection—
11 "(I) the number of individuals re-
12 ceiving assistance from the Native
13 American business center;
14 "(II) the number of startup busi-
15 ness concerns formed;
16 "(III) the gross receipts of as-
17 sisted concerns;
18 "(IV) the employment increases
19 or decreases of Native American small
business concerns assisted by the cen-
21 ter since receiving funding under this
22 Act;
23 "(V) to the maximum extent
24 practicable, increases or decreases in
25 profits of Native American small busi-

APR. 22. 2002 9:37AM NO. 6823 P. 19
0:\MDM\MDM02.148 S.L.C.
18
1 ness concerns assisted by the center
2 since receiving funding under this Act;
3 and
4 "(VI) the most recent examina-
5 tion, as required under subparagraph
6 (B), and the subsequent determina-
7 tion made by the Administration
8 under that subparagraph.
9 "(7) ANNUAL REPORT.—Each entity receiving
10 financial assistance under this subsection shall annu-
11 ally report to Adnnnistratioi on the services pro-
*"
12 vided with such financial assistance, including-
13 "(A) the number of individuals assisted,
14 categorized by ethnicity;
15 "(B). the number of hours spent providing
16 counseling and training for those individuals;
17 `(C) the number of startup small business
18 concerns formed, maintained, and lost;
"(D) the gross receipts of assisted small
business concerns;
1 "(E) the number of jobs created, main-
22 tamed, or lost at assisted small business con-
23 cerns; and

AM 22. 2002 9:37AM NO. 6823 P. 20
0:\MDM\MDM02.148
19
1 "(F) the number of Native American jobs
2 created, maintained, or lost at assisted small
3 businets concerns,
4 "(8) RECORD RETENTION.-
5 "(A) APPLICATIONS.—The Administration
6 shall maintain a copy of each application sub-
7 mitted under this subsection for not less
8 10 yew's.
9 "(B) ANNUAL REPORTS.—The .Acumnistra-
10 ton shall maintain copies of the information
11 collected under paragraph (6)(A) indefinitely.
12 "(d) NATIVE AMERICAN )&ELOPMENT GRANT
13 PILOT PROGRAM.-
14 "(1) AuTHOMAT ON.—
15 "(A) IN GENERAL.—There is established a

16 4-year pilot program under which the Adminis-
17 trationis authorized to award Native American
18 development grants to provide culturally-taI-
19 bred business development training and related
services to Native Americans and Native Amer-
ican small business concerns.
22 "(B) ELIGIBLE ORGANIZATIONS.—The
23 grants authorized under subparagraph (A) may
24 be awarded to—

APR, 22. 2002 9:31AM NO. 6823 P. 21
0:\MDM MDM02.148 S.L.C.
20
1 "(i) any private nonprofit organization
2 that has tribal government members, or
3 their designees, comprising a majority of
4 its board of directors; or
5 "(ii) any small business development
6 center.
7 "(C) AMOUNTS.—The Administration sh
8 not award a grant under this subsection in an
9 amount which exceeds $100,000 for each year
10 of the project.
11 "(D) GRANT DURATION.-L'Each grant
12 under this subsection Th
s'‘allbe awarded for not
13 less than a 2-year period and not more than a
14 4-year period,,
15 "(2) CONDITIONS FOR PARTICIPATION.—Each
16 entity desiring a grant under this subsection shall
17 submit an application to the Administration that
18 contains—
"(A) a certification that the applicant—
"(i) is a private nonprofit organiza-
tion, a Native American business develop-
22 ment center, or small business development
23 center;

M . 22. 2002 9:37AM NO. 6823 P. 22
0:\MDM\MDM02.148 S.L.C.
21
1 "(ii) employs a full-time executive di-
2 rector or program manager to manage the
3 facility; and
4 "(iii) agrees-
5 "(I) to a site visit as part of the
6 final selection process;
7 "(II) to an annual programmatic
8 and financial examination; and 11"`
9 "(III) to the maximum octent
10 practicable, to remedy any problems
11 identified pursuant to that site visit or
12 examination;
13 "(B) information)demonstrating that the
14 applicant has the'ability and resources to meet
15 the needs, including cultural needs, of the Na-
16 tive Americans to be served by the grant;
17 A "(C) information relating to proposed as-
18 sistance that the grant will provide, including-
19 "(i) the number of individuals to be
2Q v assisted; and
21 "(ii) the number of hours of coun-
22 seling, training, and workshops to be pro-
23 vided;
24 "(D) information demonstrating the effee-
25 tive experience of the applicant in—

APR. 22. 20C2 9. 37AM NO. 6823 P. 23
0:\MDM\MDM02.148
22
1 "(i) conducting financial, manage-
2 ment, and marketing assistance programs
3 designed to impart or upgrade the business
4 skills of current or prospective Native
5 American business owners;
6 "(ii) providing training and services to
7 a representative number of Native Ameri-,
8 cans located on or off tribal lands;
9 "(iii) using resource partners of the
10 Administration and other entities; includ-
11 ing universities, tribal governments, or
12 tribal colleges; and,
r
13 "(iv) the pradent management of fi-
14 nances and staffing;
15 "(E) the location where the applicant will
16 provide training and services to Native Amen-
17 cans; and
18 (F) a multi-year plan, corresponding to
19 the length of the grant, that describes--
"(i) the number of Native Americans
17 and Native American small business con-
22 cerns to be served by the grant; and
23 "(ii) the training and services to be
24 provided to a representative number of Na-

APR. 22. 20O2 9:37AM NO. 6823 P. 24
OAMDM\MDM02.148 S.L.C.
23
1 tive Americans residing on or off tribal
2 lands.
3 "(3) REVIEW OF APPLICATIONS.—The Adminis-
4 tration shall-
5 "(A) evaluate and rank applicants under
6 paragraph (2) in accordance with predeter-
7 mined selection criteria that is stated in terms
8 of relative importance;
At,
9 "(B) include such criteria in each
10 tion under this subsection and make such infor-
11 mation available to the public; and
12 "(C) approve or disapprove each completed
13 application submitted under this subsection not
14 more than 60 days after submission.
15 "(4) ANNUAL REPORT.—Each recipient of a
16 Native American development grant under this sub-
17 section shall annually report to the Administration
18 on the impact of the grant funding, including--
19 t "(A) the number of individuals assisted,
20, categorized by ethnicity;
"(B) the number of hours spent providing
22 counseling and training for those individuals;
23 "(C) the number of startup small business
24 concerns formed, maintained, and lost;

APR. 22. 2002 9:38AM O. 6823 P. 25
O:\MDM\MDMO2.148
24
1 "(D) the gross receipts of assisted small
2 business concerns;
4 tained, or lost at assisted small business con-
5 cerns; and
7 created, maintained, or lost at assisted srnan
8 business concerns.
10 "(A) APPLICATIONS.— he „Administration
12 mitted under this subsection for not less than
13 10 years.
14 "(B) ANNUAL REPORTS.—The Administra-
15 tion shall maintain copies of the information
16 collected under paragraph (4) indefinitely.
17 "(e) AMERICAN INDIAN TRIBAL ASSISTANCE CEN-
18 TER GRANT PILOT PROGRAM.-
19 "(1) AuTHoRizzrioN,—
"(A) IN GENERAL.—There is established a
4-year pilot program, under which the Adminis-
22 tration shall award not less than 3 American
23 Indian Tribal Assistance Center grants to es-
24 tablish joint projects to provide culturally-tai-
25 bored business development assistance to pro-

APR. 22. 2002 9:38AM NO. 6823 P. 26
0: MDM\MDM02.148 S.L.C.
25
1 spective and current owners of small business
2 concerns located on or near tribal lands.
3 "(B) ELIGIBLE ORGANIZATIONS.-
4 "(i) CLASS 1.—Not fewer than 1
5 grant shall be awarded to a joint project
6 performed by a Native American business
7 center, a Native American business devel-
8 opment center, and a small busines,
9 opment center.
10 "(ii) CLASS 2.—Not fewer than 2
11 grants shall be awarded to joint projects
12 performed by a Native American business
13 center and a Native American business de-
14 velopment center.
15 "(C) AMOUNTS.—The Administration shall
16 not award a grant under this subsection in an
17 amount which exceeds $200,000 for each year
18 Of the project.
"(D) GRANT DURATION.—Eaeh grant
2%, under this subsection shall be awarded for a 3-
21 year period.
22 "(2) CONDITIONS FOR PARTICIPATION.—Each
23 entity desiring a grant under this subsection shall
24 submit to the Administration a joint application that
25 contains—

APR. 22. 2002 9:38AM NO. 6823 P. 27
0:\MDM\MDM02.148 S.L.C.
26
1 "(A) a certification that each participant
2 of the joint application—
"(i) is either a Native American Busi-
4 ness Center, a Native American Business
5 Development Center, or a Small Business
6 Development Center;
7 "(ii) employs a full-time executive di-,
8 rector or program manager to manage the
9 center; and
10 "(iii) as a condition of receiving the
11 American Indian Tribal Assistance Center
12 grant, agrees-
13 "(I) to an annual programmatic
14 and financial examination; and
15 "(II) to the maximum extent
16 practicable, to remedy any problems
17 identified pursuant to that examina-
18 tion;
19 "(B) information demonstrating a historic
commitment to providing assistance to Native
Americans-
22 "(i) residing on or near tribal lands;
23 or
24 "(ii) operating a small business con-
25 cern on or near tribal lands;

APR. 22. 2002 9:38AM NO. 6823 P. 28
0:\MDM\MDM02.148 S.L.C.
27
1 "(C) information demonstrating that each
2 participant of the joint application has the abil-
3 ity and resources to meet the needs, including
4 the cultural needs of the Native Americans to
5 be served by the grant;
6 "(D) information relating to proposed as-
,
7 sistance that the grant will provide, including-7
Itt,„
8 "(i) the number of individuals to be
9 assisted; and
10 "(ii) the number of hours of coun-
11 seling, training, and workshops to be pro-
12 vided;
13 "(E) information demonstrating the effec-
14 tive experience of'each participant of the joint
15 application in-
16 "(i) conducting financial, manage-
17 ment, and marketing assistance programs,
18 as described above, designed to impart or
19 upgrade the business skills of current or
prospective Native American business own-
ers; and
22 "(ii) the prudent management of fi-
23 nanccs and staffing; and
24 "(F) a plan for the length of the grant,
25 that describes-

APR. 22. 2002 9:38AM NO. 6823 P. 29
0:\MDM MDM02.148 S.L.C.
28
1 "(i) the number of Native Americans
2 and Native American small business con-
3 cerns to be served by the grant; and
4 "(ii) the training and services to be
5 provided.
6 "(3) REvrEw OF APPLICATIONS.—The Adminis-
7 tration shall-
8 "(A) evaluate and rank applicants under
(7
9 paragraph (2) in accordance with 'predeter-
10 mined selection criteria that is stated in terms
11 of relative importance;
12 "(B) include sucli-eriteria in each solicita-
13 tion under this subsection and make such infor-
14 mation available to the public; and
15 "(C) approve or disapprove each applica-
16 t4i submitted under this subsection not more
17 than 60 days after submission.
18 94) ANNUAL REPORT.—Each recipient of an
19 American Indian tribal assistance center grant
under this subsection shall annually report to the
Administration on. the impact of the grant funding
22 received during the reporting year, and the cumu-
23 lative impact of the grant funding received since the
24 initiation of the grant, including—

APR. 22. 2002 9:38AM Na 6823 P. 30
0:\MDM\MDM02.148 S.L.C.
29
1 "(A) the number of individuals assisted,
2 categorized by ethnicity;
3 "(B) the number of hours of counseling
4 and training provided and workshops con-
5 ducted;
6 "(C) the number of startup business con-
7 cerns formed, maintained, and lost;
8 "(D) the gross receipts of assisted small
9 business concerns;
11 tamed, or lost at assisted small business con-
12 cerns; and
14 created, maintained, or lost at assisted small
15 business concerns
17 (A) APPLICATIONS.—The Administration
19 , mitted under this subsection for not less than
10 years.
21 "(B) ANNUAL REPORTS.—The Administra-
22 tion shall maintain copies of the information
23 collected under paragraph (4) indefinitely.
24 "(f) AUTHORIZATION OF APPROPRIATIONS.-

APR. 22. NU 9:38AM NO. 6823 P. 31
0:\MDM\MDM02.148 S.L.C.
30
1 "(1) There are authorized to be appropriated
2 $5,000,000 for each of the fiscal years 2003 through
3 2007 to carry out subsection (c);
4 "(2) There are authorized to be appropriated
6 2006 to carry out subsection (d); and
7 "(3) There are authorized to be appropriate
9 2006 to carry out subsection (e).".

From: Cl*Brett M. Kavanaugh/OU=WHO/0=EOP[ WHO ]
To: Alberto R. Gonzales/WHO/EOP@EOP[ WHO ]<Alberto R. Gonzales>
Sent 12/10/2002 1:39:50 PM
Subject: : bio of Bill Pryor (age 40) possible nominee for CA11 Alabama

SUBJECT:: bio of Bill Pryor (age 40) possible nominee for CAll Alabama
TO:Alberto R. Gonzales ( CN=Alberto R. Gonzales/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
Bill Pryor took office as Attorney General of Alabama on January 2, 1997.

He was appointed by Governor Fob James to complete the term of Jeff
Sessions who was elected to the United States Senate. At the time, Pryor
was the youngest Attorney General in the United States. On November 3,
1998, Pryor was elected to a full four-year term. On November 5, 2002, he 10'
,
was reelected , with 59 percent of the vote, to a final term as Attorney
General.
A native of Mobile, Pryor graduated magna cum laude in 1987 from.JVane
University School of Law, where he was editor in chief of t.?r ,Tut.Iliftaw
Review.
He began his legal career as a law clerk for the late Judgftgoh inor
Wisdom of the U.S. Court of Appeals, Fifth Circuit. Afterward, Pryor
engaged in the private practice of law in Birmingham in tWof the state's
finest law firms, specializing in commercial and employmOtlitigation
from 1988 until 1995. Pryor also taught as an adjunct professor at the
Cumberland School of Law of Samford University,fit,m4989 to 1995.
During the tenure of Attorney General Jeff SeOions,.'Pryor served as
Deputy Attorney General in charge of special avil and constitutional
litigation.
An experienced courtroom lawyer, Attorney Gwieral Pryor has tried civil
and criminal cases in state and federal cOiOtp and has argued before the
Supreme Court of the United States, the limOle Court of Alabama, and the
U.S. Court of Appeals for the Eleventh Circuit.
Attorney General Pryor has a recordkOf secuting public corruption and
white-collar crime, streamlining deatkpenalty appeals, and as a leader of
reform of both the juvenile jutice system and criminal sentencing.
Pryor is a member of the State and Local Senior Advisory Committee for the
White House Office of Homeland Security. Pryor served as a member of the
Advisory Committee for the U.S. Department of Justice on the Bush-Cheney
Transition Team.
He has a national rept4"i.on as a conservative leader for the cause of
limited government, j,m4j_diAl restraint, and free enterprise. He has
received the Guardian dt,Religious Freedom Award from Justice Fellowship
and Prison FellowAAANinistries, the Civil Justice Achievement Award from
the AmericanTort ROOrm Association, the Friend of the Taxpayer Award
from the AlabilialWizens for a Sound Economy, and the Harlon B. Carter
Award from the National Rifle Association's Institute for Legislative
Action.
A frequent r Eurer on law and public policy, Attorney General Pryor has
given addresses at the Ronald Reagan Presidential Library, the U.S.
Chamber of Commerce, the Heritage Foundation, the American Enterprise
Institute, the Cato Institute, and the Federalist Society. He has written
op-ed articles in The Wall Street Journal, the New York Times, and USA
Today, and scholarly articles in several law reviews. He has testified
before the U.S. Senate Judiciary Committee and its subcommittee on the
Constitution, Federalism, and Property Rights, and the U.S. Senate
Environmental and Public Works Committee.
Pryor is a member of the American Law Institute, the Legal Policy Advisory
Board of the Washington Legal Foundation, and the Federalist Society. He
is the Chairman-Elect of the Federalism and Separation of Powers Practice
Group of the Federalist Society. In 2001, Pryor served as Chairman of the

Republican Attorneys General Association, and in 2000 Pryor served as
Alabama Co-Chairman of the Bush-Cheney presidential campaign.

Hearing on Capital Investment In Indian Country
Subcommittee on Financial Institutions Nd

U.S. Senate Banking, Housing, and Urban Affairs
Committee
Written Statement
Rodger J. Boyd
Special Assistant to the Director
DEPARTMENT OF THE TREASURY

Community Development Financial Institutions Fund
J une 6, 2002

Chairman Johnson, Senator Bennett and Members of the Subcommittee, I
am Rodger Boyd, Special Assistant to the Director of the Community
Development Financial Institutions (CDFI) Fund. I appreciate the opportunity to
appear before you today on behalf of the CDFI Fund. In addition to my current
duties as Special Assistant, I served as the lead staff member for the Native
American Lending Study conducted by the CDFI Fund. I have been asked
specifically address the findings of that study as they relate to the subject of this
hearing, "Capital Investment in Indian Country."
The Community Development Financial Institutionslfundjs a government
corporation within the U.S. Department of Treasury. The CDFI Fund's mission is
to expand the capacity of financial institutions to provide capital, credit, and
financial services in underserved markets.
When the Congress authorized the CDFI Fund under P.L. 103-325, the
enabling legislation required the 00F1 Fund to undertake a study on lending and
investment practices on Indian Reservations and other lands held in trust by the
United States. The result, known as the Native American Lending Study (the
09
"Study"), was undertaken for the purposes of meeting that Congressional
mandate and examining the barriers to accessing capital and providing financial
services on Indian Landsl and Hawaiian Home Lands2.
The Issue
"Indian Lands" are defined for purposes ofthe Study as lands owned by or under the control ofTribal
governments including reservations, Indian Lands,and Alaska Native Villages. For purposes of the Study,
Alaska Native Villages have the definition ascribed by 43 USC 1602, et seq.
2 "Hawaiian Home Lands" are defined for the purposes of the Study as trust lands held for the benefit of
Native Hawaiian people and are administered by the State of Hawaii's Department of Hawaiian Home
Lands.

In the Community Development Banking and Financial Institutions Act
1994, Congress found that "[m]any of the Nation's urban rural and Native
American communities face critical social and economic problems arising in part
from the lack of economic growth, people l iving in poverty, and the lack of
employment and other economic opportunities". Indeed, many communities
located in Indian Lands face economic and social challenges that place them
significantly behind the rest of the U.S. economy.
Study Approach
The Study was designed to produce a broad, if not ecessarily exhaustive,
q ualitative review of the state of lending and investment on Indian Lands and
Hawaiian Home Lands. This was accomplished largely through input from many
of the stakeholders involved in capital access issues on Indian Lands and
Hawaiian Home Lands. Simultaneously,lhe Study has attempted to supplement
this review with meaningful quantitative input and analysis. This was
accomplished through the CDFI Fund's Financial Survey, the Equity Investment
Research Report, and other CDFI Research Accordingly, the Study approach
was designed not only to provide a catalog of economic problems on Indian
lands and Hawaiian Home Lands by integrating the concerns and
recommendations of those who are attempting to lead their communities into the
nation's economic mainstream, but to provide a statistical reporting as well.
To assist in accomplishing this, the CDFI Fund convened 13 regional
workshops and two national roundtable meetings involving Tribal leaders and
economic development professionals, Native American and Native Hawaiian

business people, private investors and bankers federal regulatory officials and
federal agency government officials. The Workshops and national roundtable
meetings represented an extensive effort to bring together a broad array of
stakeholders who each have specific economic development and financing
expertise, with experience on Indian and Native Hawaiian lands, to discuss
issues related to barriers to capital access and identify possible remedies. The
Fund developed this Study approach to gain the knowledge and experience of
these participants that have worked with these issues on a day-to-day basis.
The Workshops were complemented by the followr1g 4search:
• The Financial Survey was administered to 851 Tribal government
housing and economic development directors and 735 private
financial service organizations(FS0s)located on or near Indian
Lands or located in Hawaiian Home Lands to identify the barriers to
lending and provide financial services and to help develop
recommendations to address those barriers.
• An Equity Investment*esearch Report on Indian Lands and Hawaiian
Home Lands was developed to provide the background and
recommendations for enhancing equity capital access. This
research included discussions with equity market participants,
review of the relevant findings from the Financial Survey, and
a nalysis of the findings from the Workshops. In addition, a
q uestionnaire was administered to participants in the Equity

Investment Roundtable that provided useful information about
equity investment on Indian Lands and Hawaiian Home Lands.
The CDFI Fund's research found that there exists a significant difference in the
a mount of capital investment when comparing the rest of the United States to
I ndian Lands and Hawaiian Home Lands.
The Financial Survey and Equity Investment Research Report found the
following evidence of this historic under investment on Indian Land d
Hawaiian Home Lands:

e°19 , 1
• 65 percent of Native American and Native Hawaiian respondents to the
Financial Survey report that conventional mortgages are "difficult" or
"impossible" to obtain. Home equity loans and construction and
property rehabilitation loans are also in sport supply on Indian Lands
and Hawaiian Home Lands.

7
• Business loans were rated as "impossible" to obtain by 24 percent of
Native Americaii,and Native Hawaiian respondents to the Financial
Survey and as "difficult" to obtain by 37 percent. Larger business
loans, those over $100,000, are even more difficult to obtain; 67
percent of said Financial Survey respondents rated them as "difficult"
to impossible to obtain.
1 66 percent of Native American and Native Hawaiian respondents to the
Financial Survey stated that private equity investments are "difficult" or
"impossible" to obtain for Native American and Native Hawaiian
b usiness owners.

• 33 percent of Native American respondents to the Financial Survey
i ndicated they had to drive over 30 miles to ATM and bank branches.
• The Equity Research Report estimates the buying power of Native
Americans is about S35 Billion and estimated Indian Country revenue
of $34 Bil lion for 2001.
• The Equity Research Report estimates that the investment gap
between Native American and Native Hawaiian economies and the
U nited States overall totals S44 billion.
Barriers to Capital Access 440.1
The Study identified 17 major barriers to capital access, relating to legal
i nfrastructure, government operations, economic, financial and physical
i nfrastructure, and education and cultural issues.
The Study identified one major barrier to capital access related to
legal infrastructure:
1 . Uncertain Tipa Commercial Laws and Regulations and the Absence

a
of an Independent Judiciary.
Three major capital access barriers were identified that are related to
government operations:
1 Cumbersome, Conflicting, or Ineffective Federal Programs and
Regulations.
2. Uncertainty Generated by Changes in Tribal Government Leadership.
3. Poor Understanding of Tribal Sovereignty and Sovereign Immunity.
Five major economic barriers to capital access were identified:

1. Limited Use of Trust Land as Collateral.
2. Inflexible Bank Lending Rules and Regulations.
3. Lack of Capital, Collateral, and/or Credit Histories of Native Americans
and Native Hawaiians on Indian Lands and Hawaiian Home Lands.
4. Negligible Economic Base on Indian Lands and Hawaiian Home Lands.
5. Lack of Networking of Native-owned Businesses With Equity Investors,
There are two major capital access barriers related to financial and
physical infrastructure:
1. Lack of Financial Institutions on or Near Indian Land.:e
2. Lack of Physical and Telecommunications Infrastructure on
Indian Lands or Hawaiian Home Law's.
Six major capital access barriers related to education and cultural

1
issues were identified:
1. Lack of Knowledge or Experience With the Financial World on the Part
of Native Americans and Native Hawaiians.

eit
2. Lack of Technical Assistance Resources.
3. Failure of Lenders and Investors to Understand Tribal Government or
Legal Systems.
4. ,pistorical Absence of Trust Between Tribes and Banks.
5. Differences Between Native American and Native Hawaiian Cultures
and Banking and Investor Cultures.
6. Discrimination Against and/or Stereotyping of Native American and
Native Hawaiian Communities.

Remedies and Recommendations
Study participants identified a number of potential remedies and
recommendations related to the major capital access barriers identified above.
Participants identified one recommendation related to the legal
i nfrastructure barrier cited above.
1. Enhance the Tribal Legal Infrastructure. Some Study participants
recommended a strategy of creating a more pro-business legal environment on
I ndian Lands, through such actions as:
• Establishment of a Tribal legal infrastructure for business
development, including Tribal commercial codes, foreclosure

.
S )
regulations, bankruptcy codes, permitting processes, and
i/
general regulatory frameworks,
• Development of zoning codes and land use plans, and
• Clarification of sovereignty and sovereign immunity,
particularly regarding business and housing development.
Study participants identified four recommendations related to the
e government operations barriers.
1. Improve Tribal Planning Processes and Structures. Some
Workshop participants felt that Tribal governments need to enhance their ability
to establish, articulate and manage a clear and concise vision, to formulate

policies and strategic plans for overall economic development and to cultivate
the professional government workforce necessary to implement such plans.
2. Separate the Goals and Management of Tribal Government From
Those of Tribal Business. Some Workshop participants recommended
separating the management of business and government, spinning off Tribally-
owned enterprises to a separate bodies for oversight and management,
delegating privately-owned enterprise oversight to nonpolitical bodies, and
clarifying the differences between Tribal government and corporate liability.
3. Strengthen Tribal Courts. Some actions recommended by Study
participants include:
• Further development of independent Tribal courts,
• Provision of training for court personnel on commercial and
financial law,
• Increasing the skills capacity of judges and judicial personnel
regarding lender and investor issues, and
• Establishment of enforcement procedures for foreclosure,
repossession, garnishment, and bankruptcy.

/144
,
4. Streamline and Improve the Efficiency and Effectiveness of
Certain Federal and State Programs Used By Native Americans and Native
Hawaiians. Many Workshop participants expressed the need to accelerate the
pace of decision-making, reducing excessive requirements and paperwork,
rationalizing conflicting requirements and revising programs with overly restrictive
entry guidelines, of certain state and federal programs.

There were four remedies identified that relate to economic barriers.
1. Create Alternative Collateral Options for Trust Land. Workshop
participants recommended recognizing and leveraging the value of trust assets;
facilitating development of trust land through alternative means of valuation and
collateralization, such as the creation of leaseholds and master leaseholds;
building equity pools from trust lands and other resources; and converting
traditional assets into collateral. Workshop participants also recommended that,
for Indian Lands and Native Hawaiian Home Lands, the U.S. Department of the
I nterior and the Hawaii Department of Hawaiian Home Lands, respectively,
examine the feasibility of further streamlining leasing procedures.
2. Develop New Local and Non-traditional Mechanisms to Deliver

t
Capital on Indian Lands and Hawaiian Home Lands. Workshop participants
suggested that Tribal governments should develop their capacity to orchestrate
and leverage all sources of capital, a* financial institutions should develop new
lending and financing products and revise underwriting criteria to meet the
.v4t,
unique needs of Native American and Native Hawaiian markets, including the
development of micro-lending programs for small businesses and securitization
of oi l and gas reserves and timber. Workshop participants proposed two options
for providing access to nontraditional sources of debt and equity capital:
1
, Develop Tribal or Inter-Tribal CDFIs, community banks, and other lending
and investment institutions; and
10

• Create Tribal or Inter-Tribal pools for loan guarantees, equity
i nvestments/venture capital, micro-lending and lending for housing and
small business.
3. Increase Equity Investment on Indian Lands and Hawaiian Home
Lands. Equity Investment Roundtable participants suggested the following
methods of increasing equity investment in Native American and Native Hawaiian

4440..e
communities:
• Create industry sector specific incubators that provide mane e ent and
technical assistance to start-up businesses and that focus on the specific
needs of Native American and Native Hawaiian business owners,
• Use existing "angel investor" networks (i.e. — networks of investors who
provide start-up capital for new business, sometimes accompanied by

.
V )
technical expertise and contacts networks),
• Build an "angel" network that specializes in investments in Native
American-owned or Native Hawaiian-owned businesses,
• Create community development venture capital (CDVC)funds,
• Use existing corporate venture capital programs,
• Use state and city venture capital programs, and
. Form a public/private intermediary to direct funds into Native American
and Native Hawaiian CDFIs, businesses, or projects.
4. Establish a Native American/Native Hawaiian Equity Fund. To
attract equity investments in Native American and Native Hawaiian communities,
Workshop participants suggested that the federal government sponsor an equity
11

fund to help encourage private sector investors and public/private partnerships to
i nvest on Indian Lands and Hawaiian Home Lands,
Four recommendations related to the two financial and physical
i nfrastructure barriers cited above, were identified:
1. Increase the Number of Financial Institutions on or Near India
Lands. To provide Native Americans and Native Hawaiians greater access t

4*.to
financial services, a number of policies need to be considered, includin
• Creating more financial institutions, including CDFIs, 9nlndian
Lands and
• Encouraging existing financial institutions that are not located on
I ndian Lands to open branches on Indian Lands.
2. Develop Regional Financial Institutions. The Workshop participants

)
believed that regional partnerships and alliances are essential to overcoming
%
barriers to capital and credit access, and possible strategies include:
• Building on partnerships established with the CDFI Fund's regional
I nter-Tribal cosponsors and holding follow-up forums similar to
those conducted in the Study,
Establishing information clearinghouses at the regional level on
model financing approaches, methods of accessing equity capital,
and sources of training and technical assistance,
• Providing channels of information to Native American and Native
Hawaiian communities so that they can adapt existing models to
their unique cultural and community needs and
19

• Establishing regional partnerships among banks, lending
i nstitutions, venture capitalists, federal agencies, and Tribes/Inter-
Tribal organizations.
3. Develop Financial Products and Services That Will Meet the
Needs of Native American and Native Hawaiian Depositors and Borrowers.
Workshop participants suggested that this could be accomplished by finaficial
i nstitutions through the development of new lending and financing products;
revised underwriting criteria more suited to the unique attributes of Native
American and Native Hawaiian communities the creation of micro lending
programs for small business and the creation of CDFIs.
4. Create Innovative Strategies to Develop Physical Infrastructure on
Indian Lands and Hawaiian Home Lands. Various initiatives were explored at
`
‘ ‘
the Workshops to facilitate development of a more adequate infrastructure
system on Indian Lands and Hawaiian Home Lands, including creation of
partnerships with private developers to plan for infrastructure development and
development of an infrastructure investment strategy that utilizes available
federal resources and encourages private partnerships to participate in the
funding and development process.
Study participants identified four recommendations related to the seven
educational and cultural barriers.
1. Expand Financial Literacy Education Opportunities for Native
Americans and Native Hawaiians. Workshop participants agreed that
providing financial literacy education and personal finance education for Native
13

Americans and Native Hawaiians can provide them with the means to participate
i n the contemporary economy and that culturally appropriate financial literacy
curriculum is available from various sources. Many existing CDFIs regularly
provide this type of training in their communities.
2. Develop Entrepreneurship Programs for Native Americans and
Native Hawaiians. Workshop participants recommended that these programs.,
i nclude:
• Development of core materials on small business finance and
entrepreneurship,
• Establishment of teaching partnerships with Tribal and non-Tribal
colleges, financial institutions, CDFIs, and nonprofits,
• Incorporation of web-based training in the curriculum, and
• Facilitation of funding and teacher recruitment through the private sector,

t
Tribes Inter-Tribal organizations and federal agencies.
3. Conduct Lenckr and Investor Education. Actions recommended by
the Workshop participant:I:include:
• Development of informational handbooks on issues such as Tribal
government structures, sovereignty and sovereign immunity, and land
status,
Creation of a directory of Tribal credit officers, economic development
officers, and department heads and a directory of attorneys qualified to
practice in Tribal courts,
14

• Development of a marketing campaign that i llustrates effective practices
and success stories, initiation of educational outreach seminars by Native
American and Native Hawaiian communities for potential lenders and
i nvestors, and
• Initiation of "road shows" focusing on investment opportunities on Indian
Lands and Hawaiian Home Lands.
4. Expand Technical Assistance and Training. From thforkshops,
several initiatives were identified for increasing technical assistanc thiid training
on Indian Lands and Hawaiian Home Lands:

44‘.'
• Provide Native Americans and Native Hawaiian business owners with
technical assistance related to developing business plans and proposals
and other business management needs,
• Help Tribal governments develop a comprehensive strategic plan to meet

/
development and financing needs,
• Assist lenders, investors, and potential business partners in developing an
u nderstanding of Tribal laws, Tribal enforcement capabilities, and lender
rights, and 1*,

t'ettk, 'At*ne
• Help lenders, investors, and potential business partners understand
federal programs, requirements, and application processes.
Examples of Initiatives and Programs
One of the important aspects of the Study was the identification by
participants of programs and initiatives that involve government, the private
sector and Tribes to address the major barriers identified above. Each initiative
15

identified below, designed to meet the needs of a particular community, may offer
insights to other communities that can be adapted to meet the unique needs of
other particular communities or regions.
For example, some Tribes have enacted legislation to promote business
development, Tribal commercial codes, land use and planning codes, zoning
codes and laws regulating corporate and business activity.
Workshop participants noted that lenders and investors are often reluctant
to accept the jurisdiction of Tribal courts to enforce financial contracts and to
address this problem, suggested increasing the capacity of Tribal courts to
resolve commercial and financial disputes and to enforce commercial codes.
Some initiatives are currently underway:
• The Federal Bureau of Justice Assistance, Department of
Justice, and Bureau of Indian Affairs are currently funding
technical assistance and training grants for Tribal Court
capacity building.
• The National American Indian Court Judges Association has
established the National Tribal Justice Resource Center to
assist Tribes in strengthening methods of self-government
and to provide technical assistance for enhancing Tribal
justice systems.
• The Tribal Court Clearinghouse has been created as a
resource for Tribal court development, training, court review,
code drafting, and training.
16

To provide Native Americans and Native Hawaiians greater access to
financial services, Study participants felt that a number of options need to be
considered, including creating more financial institutions on Indian Lands and
Hawaiian Home Lands, expanding and/or rebuilding existing financial institutions
on Indian Lands, purchasing existing banks, expanding Native-ownership of
financial institutions through purchase or de nova creation of new institutionp,
and creating more CDFIs. Workshop participants and CDFI Fund research'
identified the following examples of successful initiatives: TS/

• The Cheyenne River Sioux Tribe used an existing revolving
loan fund to create the non-profit Four Bands Community
Fund, which makes business loan".
• In 1990, the Navajo Nation had 'Nly three bank branches

*A, )
and one ATM serving a geographic area of 17 million acres.
To increase the availability of financial services on the
reservation, the Tribe entered into an agreement with

*1 *,
NorweSt Bank (now Wells Fargo) to build four new branch
banks with ATMs, hire and train Navajo personnel, and
target financing to business startups and housing
development.
I n al l, nine Tribally-owned commercial banks, seven credit
u nions, and 14 loan funds have been developed nationwide
to serve Native American communities.
17

• Hawaiian Community Assets, Inc. is developing a charter for
the first Native Hawaiian-owned bank.
• As of September 30, 2000, the CDFI Fund had made awards
totaling nearly S27 mil l ion to 33 CDFIs that provide some
level of service to Native American or Native Hawaiian
communities.
• In FY 2002, the CDFI Fund initiated its $5.0 million Nati
A merican Technical Assistance program to assist Native
A merican and Native Hawaiian communities in establishing
community based CDFIs.
Workshop participants identified regional partnerships and alliances as
essential components to overcoming barriers to Capital and credit access, and
examples of successful regional initiativ Iclude:
• The Native American Development Corporation is a CDFI
that provides Native American business communities in
Montana and Wyoming with funds to create jobs, develop
long-term economic self-sufficiency, and facilitate access to
capital. Its Capital Loan Fund was initially capitalized with
funding from banks, the federal government, First Nations
Development Institute, and private corporations.
• The Native American Lending Group. Inc. is a nonprofit
m ulti-Tribe CDFI in New Mexico that serves 19 Pueblo
18

communities. It was created to provide Tribes, businesses,
and individuals access to private investment capital.
• Coastal Enterprises, Inc. is a nonprofit CDFI that serves low-
income communities in Maine and provides financial and
technical assistance for development and expansion of
certain targeted industries, small businesses, housing, and
social services. CEI has established a partnership with the
Penobscot Indian Nation to develop a CDFI to fund housing

'44400'
and business development.
44‘.'
Tribal leaders and private investors participating in the Workshops
suggested strategies that relied on accessing capital sources that have not
traditionally been on the Native American investment "radar screen" and on

it,
expanding Native American awareness to include more equity and nontraditional
financing and thus increase the likelihood of securing funding.
One example of an existing strategy captured significant Workshop participant
attention: Center of'North America Capital Fund is an "angel" investor network
and investment fund in North Dakota that links two Tribes -- the Turtle Mountain
Band of Chippewa and the Spirit Lake Sioux -- with investors. The CONAC Fund
was mod9led after Minnesota's Regional Angel Investor Networks Fund, a series
of rural investment funds formed by the Minnesota Investment Network
Corporation.
19

The following are examples of public/private intermediaries cited by
Workshop participants that direct funds to Native American and Native
Hawaiian businesses:
• The Hopi Credit Association is a Tribal loan fund that
provides a bridge between banks and Tribal borrowers,

4
obtaining funds from banks handling all loan selection and
servicing with Tribal members. Participating banks thus gain
a point of entry to the Tribal community, via a Tribal loan
fund that understands banking needs, and Tribal members
are served directly by a credit union thatunderstands their
needs.
• Another example is the Southern Ute Growth Fund, which
uses a partnership approach and co-invests, using its growth
fund and capit I provided by outside investors in a variety of
growth opportunities.
Conclusion
M uch of the progress in expanding access to capital was not achieved by tribal
governments, financial institutions or federal agencies acting alone. Rather,
progress often depended on these stakeholders acting together. One of the
most important themes to emerge from the CDFI Fund's research, Workshops,
and Equity Research is the need to foster even greater coordinated activity
a mong stakeholders. For example, input of Tribal or Native Hawaiian
representatives to any review of the effectiveness of government programs or
20

policies would help to answer questions about community compatibility and
relevance. Neither technical assistance nor cultural education wil l have the
desired effect unless Tribes, Native Hawaiian communities, and FSOs commit to
such processes. Moreover, FS0s, government regulators, and Tribes would all
likely have to participate in attempts to create new loan products and equity
i nvestment opportunities for Native American or Native Hawaiian communitips40,
71

From: CN=Brett M. Kavanaugh/OU=WHO/0=EOP [ WHO ]
To: David G. Leitch/VVHO/EOP@EOP [ WHO ] <David G. Leftch>:Noel J. Francisco/WHO
/EOP@EOP [ WHO ] <Noel J. Francisco>;Alberto R. Gonzales/VVHO/EOP@EOP [ WHO ]
<Alberto R. Gonzales>
Sent: 1;14/2003 5:24:58 AM
Subject: : 2 excerpts

SUBJECT:: 2 excerpts
TO:David G. Leitch ( CN=David G. Leitch/OU=WHO/0=EOP@EOP [ WHO I )
READ:UNKNOWN
READ:UNKNOWN
TO:Alberto R. Gonzales ( CN=Alberto R. Gonzales/OU=WHO/0=EOP@EOP [ WH
READ:UNKNOWN
1. This is excerpt I referenced from Justice Scalia opiniorain

Croson that makes same central point as the O'Connor opi
can, of course, act 'to undo the effects of past discrimina.tio in many
permissible ways that do not involve classification by race In the
particular field of state contracting, for example, it may adopt a
preference for small businesses, or even for new businesses -- which would
make it easier for those previously excluded ykOiScrimination to enter
the field. Such programs may well have racia(ly disproportionate impact,
but they are not based on race."
2. This is excerpt I referenced from

Brennan/White/Marshall/Blackmun opinion in Bakke: "We also agree with
Justice Powell that a plan like the Harvaid4.;plan is constitutional under
our approach, at least so long as the 6s, of race to achieve an integrated
student body is necessitated by the lingering effects of past
discrimination." 0
3. My point, of course, is .that° kthese two very different opinions

strangely enough point u n tb# same direction in the context of
educational admissions in . We believe, the Court's case law
suggests, and experience no, shows that the use of race to achieve an
integrated studentAody not necessitated by the lingering effects of
past discriminatigdn beciuse race-neutral means to remedy past
discrimination will in fact achieve an integrated student body. And if
that ever r no true in a particular instance, the Court's case law
namely, explains the circumstances under which race can be a
conside "an extreme case."

To: David G. Leitch/VVHO/EOP@EOP [ WHO ] <David G. Leftch>:Noel J. Francisco/WHO
/EOP@EOP [ WHO ] <Noel J. Francisco>;Alberto R. Gonzales/VVHO/EOP@EOP [ WHO ]
<Alberto R. Gonzales>
Sent: 1;16/2003 4:32:58 AM
Subject:

SUBJECT::
TO:David G. Leitch ( CN=David G. Leitch/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
READ:UNKNOWN
TO:Alberto R. Gonzales ( CN=Alberto R. Gonzales/OU=WHO/0=EOP@EOP [ WH
READ:UNKNOWN
2 key words appear to be "consider" and "efficacy." Of course, i

is not enough to simply consider the alternatives and reject:th'em,weven
though the alternatives would be "efficacious" in achieving th
objective. Rather, the entity must consider the altern5tives rand employ
them if the alternatives would be efficacious in achieVin fie objective.
Croson has a sentence that is instructive: "The city hasa its disposal
a whole array of race-neutral devices to increase the %ccess1bil1ty of
city contracting opportunities to small entrfpreneurs- f all races ... .
[Such devices] would serve to increase the 4portunities available to
minority business without classifying on the ba4A'of race."
It perhaps also is instructive that the )Brennan 4-Justice opinion

in Bakke justified its conclusion thl.t,race-neutral alternatives would not
suffice by stating that there were "ho p5actical means by which [Davis]
could achieve its ends in the foreseeable future without the use of
race-conscious measures."

From: CI*Jay P. Lefkowitz/OU=OPD/O=EOP@Exchange[ OPD ]
To: Brett M. Kavanaugh/WHO/EOP@EOP[ W-I0]<Brett M. Kavanaugh>
Sent 1/17/2003 1:20:52 AM
Subject: : Re:

CREATOR:Jay P. Lefkowitz ( CN=Jay P. Lefkowitz/OU=OPD/O=EOP@Exchange
SUBJECT:: Re:
READ:UNKNOWN
Ok. Then it's really good we filed the brief we filed.
Sent From Exchange 2000 Blackberry Handheld
Original Message
From: Kavanaugh, Brett M. <bkavanau@WHO.eop.gov>
To: Gonzales, Alberto R. <agonzale@WHO.eop.gov>; Francisco, No
<nfrancis@WHO.eop.gov›; Leitch, David G. <David_G._Leitc
Lefkowitz, Jay P. <Jay_P._Lefkowitz@opd.eop.gov>
Sent: Thu Jan 16 23:51:27 2003
Subject:;
Clegg's ultimate aim is emerging:;
Roger Clegg, general counsel for the Center or Equal Opportunity, a

Virginia-based think tank that opposes race-conscious affirmative action,
said that while the percentage plans are better -than "racial preferences,"
they still amount to a thinly veiled sys of selecting students by race.
"I think these plans are very vulnerab1 0 legal challenge," he said.;;

To: David G. Leitch/VVHO/EOP@EOP [ WHO ] <David G. Leitch>:Noel J. Francisco/WHO
/EOP@EOP [ WHO ] <Noel J. Francisco>;AGonzale©who.eop.gov [ WHO]
<AGonzale@who.eop.gov>
Sent: 1117/2003 3:08:58 AM
Subject: : Fw:

CREATOR:Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/0=EOP WHO
SUBJECT:: Fw:
TO:David G. Leitch ( CN=David G. Leitch/OU=WHO/0=EOP@EOP [ WHO ] )
READ:UNKNOWN
TO:Noel J. Francisco ( CN=Noel J. Francisco/OU=WHO/0=EOP@EOP [ WHO )
READ:UNKNOWN
TO:AGonzale@who.eop.gov ( AGonzale@who.eop.gov [ WHO ] )
READ:UNKNOWN
Addendum.
Original Message
From:Brett M. Kavanaugh/WHO/EOP
To:Brett M. Kavanaugh/WHO/EOP@EOP,
Jay P. Lefkowitz/OPD/EOP@EOP
Cc:
Date: 01/17/2003 08:01:42 AM
Subject: Re:
I would add the word "suggested" before "that e could be a factor" in

my statement below.
Original Message
From:Brett M. Kavanaugh/WHO40
To:Jay P. Lefkowitz/OPD/EOP@
Brett M. Kavanaugh/WHO/EOP
Cc:
Date: 01/17/2003 07:55:
Subject: Re:
Bakke held that quotas were unconstitutional and that race could be a
factor if "necessary. /See n 1 of brennan combined with powell. (we really
need to use that.inerp of bakke.). We are saying that it is not
"necessap wh,vn race neutral alternatives are available as here and in
any eve't thes ,a,re quotas.
Original Message
From: Jay P. Lefkowitz/OPD/EOP@Exchange
To:Brett M. Kavanaugh/WHO/EOP@EOP
Cc:
Date: 01/17/2003 07:31:25 AM
Subject: Re:
Coverage this am suggests that our statement about Breaking no new ground
means we aupport Bakke.
Sent From Exchange 2000 Blackberry Handheld

Original Message
From: Kavanaugh, Brett M. <bkavanau@WHO.eop.gov>
To: Gonzales, Alberto R. <agonzale@WHO.eop.gov›; Francisco, Noel J.
<nfrancis@WHO.eop.gov›; Leitch, David G. <David G._Leitch@who.eop.gov›;
Lefkowitz, Jay P. <Jay_P._Lefkowitz@opd.eop.gov5
Sent: Thu Jan 16 23:51:27 2003
Subject:;
Clegg's ultimate aim is emerging:;
Roger Clegg, general counsel for the Center for Equal Opportunity, a
Virginia-based think tank that opposes race-conscious affirmative action,
said that while the percentage plans are better than "racial preferences,"
they still amount to a thinly veiled system of selecting students by race.
"I think these plans are very vulnerable to a legal challenge," he said • I op

Booker Confidential 7 - Kavanaugh Hearing

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Booker Confidential 7 - Kavanaugh Hearing

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From: CN=David G.

###### Begin Original ARMS Header ######

The editorial today simply misstates the President's position on race,

I have explained to Wittes many times why there is no

The rest of the editorial was quite strong, of course.

Committee Confidential REV 00111001

###### Begin Original ARMS Header ######

To: Brett M. Kavanaugh/WHO/EOP@EOP

something like this for Pryor would be best

Committee Confidential REV 00120876

Regarding Owen, this is the best info I have. To advance tomorrow's

Last week,Naral Pro-Choice America notified Democrat Senators that it

On Moirlay, Senator Feinstein convened Democrat women on Owen.

On Tuesday, the Democrat leadership, together with Cantwel Kennedy,

Their hope is that pressure can be brought on the hesitant Democrats

Democrat Senators have expressed concern about a filibuster against Owen

Committee Confidential REV 00233742

To: Tim Goeglein/VVF10/EOP@EOP

I suggest Jay Lefkowitz as your first choice. If not, I will do them.

To: Brett M. Kavanaugh/VVHO/EOP@EOP

Committee Confidential REV 00156338

A lot of interest in this in my world, as you might imagine.

Forwarded by Tim GoegleinA/VHO/EOP on 01/17/2003 07:40 AM

From: Brian Bravo/WHO/EOP@Exchange on 01/17/2003 06:43:42 AM

Bush administration calls affirmative action plan "plainly unconstitutional"

By ANNE GEARAN Associated Press Writer

WASHINGTON (AP) The Bush administration told the Supreme Court on

The admissions policies amount to unconstitutional quota systems and unfairly

The filings do not go as far as some of President Bush's most conservative

Committee Confidential REV 00156339

In practice, that has "become a wholesale invitation to ... mechanically admit

The issue is politically touchy because it is seemingly impossible to please both

Applicants for Michigan's undergraduate classes are scored by points, with

Committee Confidential REV 00156340

###### Begin Original ARMS Header ######

Committee Confidential REV 00223831

###### Begin Original ARMS Header ######

I think MS and I are trending in that direction. Paige will be at UT on

Forwarded by Brett M. Kavanaugh/WHO/EOP on

From: Margaret M. Spellings/OPD/EOP@Exchange on 01/21/2003 07:52:54

To: Alberto R. Gonzales/WHO/EOP@Exchange, Jay P.

fyi and comment

Below is the text of Jerry Reynolds' document --reviewed by all in our

Committee Confidential REV 00156442

To: Secretary Paige

We believe that the Department can support the President's

1. Publish a report describing the innovative race-neutral

As you know, we have been doing background research on this topic

2. The Department could sponsor a national conference on

During the last Administration, OCR sponsored a national

U Top education officials in Florida, Texas and California,

U People who worked closely with the President in developing

U Noted scholars who have specialized their research in the

3. Issue formal regulatory guidance on race-neutral

In the past, OCR has issued regulatory guidance on issues such as

4. Train OCR staff on race-neutral alternatives, and ask them

OCR has a series of authorized power-point presentations on

Committee Confidential REV 00156443

5. Establish a blue-ribbon advisory committee on race-neutral

The Secretary could establish a blue-ribbon committee to provide him with

6. Explain the President's position to the higher-education

We understand that on January 28 you will be meeting with several

7. Possible venue for any announcements.

We understand that you will be in Texas next week, and