[Congressional Record Volume 148, Number 130 (Monday, October 7, 2002)]
[Senate]
[Pages S10031-S10033]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF MIGUEL ESTRADA
Mr. SPECTER. Mr. President, I now will comment on the pending
nomination of a very distinguished lawyer to the Court of Appeals for
the District of Columbia Circuit, Miguel A. Estrada, who has been
nominated by President Bush for the Court of Appeals for the District
of Columbia Circuit.
Mr. Estrada has an extraordinary background. He received his law
degree from Harvard, magna cum laude, in 1986. He received his
bachelor's degree, magna cum laude, from Columbia College.
Mr. President, I ask unanimous consent to have printed in the Record
his employment record, which shows the very outstanding work he has
done.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Miguel Estrada, Nominee to the Court of Appeals for the District of
columbia--Biography/Experience
Miguel A. Estrada is currently a partner in the Washington,
D.C. office of Gibson, Dunn & Crutcher LLP, where he is a
member of the firm's Appellate and Constitutional Law
Practice Group and the Business Crimes and Investigations
Practice Group.
Mr. Estrada has broad appellate experience--he is widely
regarded as one of the country's best appellate lawyers, and
has argued 15 cases before the U.S. Supreme Court.
The American Bar Association--the Democrats' ``gold
standard'' for judicial nominees--unanimously rated Estrada
``well qualified.''
If confirmed, Estrada would be the first Hispanic-American
ever to sit on the Court of Appeals for the D.C. Circuit.
From 1992 until 1997, he served as Assistant to the
Solicitor General of the United States. From 1990 to 1992, he
served as Assistant U.S. Attorney and Deputy Chief of the
Appellate Section, U.S. Attorney's Office, Southern District
of New York.
Mr. Estrada served as a law clerk to the Honorable Anthony
M. Kennedy of the U.S. Supreme Court from 1988-1989, and to
the Honorable Amalya L. Kearse of the U.S. Court of Appeals
for the Second Circuit from 1986-1987.
He received a J.D. degree magna cum laude in 1986 from
Harvard Law School, where he was editor of the Harvard Law
Review. Mr. Estrada graduated with a bachelor's degree magna
cum laude and Phi Beta Kappa in 1983 from Columbia College,
New York. He is fluent in Spanish.
Mr. SPECTER. Mr. President, during the course of the hearings on Mr.
Estrada, the issue was raised about obtaining memoranda which Mr.
Estrada had worked on in the Solicitor General's office from 1992 to
1997, internal memoranda which would be very troublesome for disclosure
because of the need for candid expressions by lawyers who work in the
Solicitor General's office.
A letter, dated, June 24, 2002, was submitted by a former Solicitor
General, Seth P. Waxman, on behalf of all seven living ex-Solicitors
General, objecting to the request by the Judiciary Committee for these
internal memoranda, signed by Mr. Waxman, on behalf of Walter
Dellinger; Drew S. Days, III; Kenneth W. Starr; Charles Fried; Robert
H. Bork; and Archibald Cox. It is apparent, on the face of those
signatories, that you have people from a broad spectrum, from very
liberal to very conservative.
But of more importance than the range of Solicitors General on the
political spectrum are the reasons set forth in the letter. And the
essence is contained in a couple of paragraphs:
As former heads of the Office of the Solicitor General--
under Presidents of both parties--we can attest to the vital
importance of candor and confidentiality in the Solicitor
General's decision-making process.
Then, in a later paragraph, it continues:
It goes without saying that, when we made these and other
critical decisions, we relied on frank, honest, and thorough
advice from our staff attorneys, like Mr. Estrada. Our
decision-making process required the unbridled, open exchange
of ideas--an exchange that simply cannot take place if
attorneys have reason to fear that their private
recommendations are not private at all, but vulnerable to
public disclosure. Attorneys inevitably will hesitate before
giving their honest, independent analysis if their opinions
are not safeguarded from future disclosure. High-level
decision-making requires
[[Page S10032]]
candor, and candor in turn requires confidentiality.
Mr. President, I ask unanimous consent that the full text of this
letter be printed at the conclusion of my statement. That will
abbreviate the time of the statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. SPECTER. Mr. Estrada was questioned about an article which
appeared in The Nation, which referred to anonymous sources on the
subject that Mr. Estrada was questioning prospective clerks for Justice
Kennedy and was applying a litmus test. This is what is set forth in
the article in The Nation in the October 7, 2002, issue:
Perhaps the most damaging evidence against Estrada comes
from two lawyers he interviewed for Supreme Court clerkships.
Both were unwilling to be identified by name for fear of
reprisals. The first told me: ``Since I knew Miguel, I went
to him to help me get a Supreme Court clerkship. I knew he
was screening candidates for Justice Kennedy. Miguel told me,
`No way. You're way too liberal.' I felt he was definitely
submitting me to an ideological litmus test, and I am a
moderate Democrat. . . .''
A second unnamed person in the article said:
``I was a clerk for an appeals court judge,'' the professor
told me, ``and my judge called Justice Kennedy recommending
me for a clerkship with him. Justice Kennedy then called me
and said I had made the first cut and would soon be called
for an interview. I was then interviewed by Miguel Estrada
and another lawyer. Estrada asked most of the questions.
He asked me a lot of unfair, ideological questions, a lot
about the death penalty, which I told him I thought was
immoral. I felt I was being subjected to an ideological
litmus test. . . .''
And it goes on, but that is the pertinent part.
During the course of the Judiciary Committee hearings, Mr. Estrada
was questioned about these two unidentified sources. He said he had not
asked such questions, and then later responded to further questions
saying that he couldn't remember if it had ever happened, that it might
have been possible but he had no recollection.
His answer was:
Now, that you have drawn that to my attention, it is
possible that interviewing a candidate--I can't think of any
now, but it is possible that I may have come to the
conclusion that the person's ideology was so strongly engaged
in what he thought as a lawyer that he would not be able to
follow the instructions in the chambers as set forth by
Justice Kennedy.
Then, when the questions are pursued, Mr. Estrada says candidly he
can't remember ever having said that but would not rule out the
possibility.
It seems to me that when someone is being questioned, and being
questioned from sources which refuse to reveal their identify, that it
is impossible for a witness, a nominee for a judgeship, to give a
responsive answer.
One of the very basic principles of American jurisprudence is that an
individual is entitled to confront his accuser. That is a basic
constitutional requirement, of course, in a different context in the
fifth amendment of right to confrontation. But as a matter of basic
fairness anywhere, if a person is to have an opportunity to focus on a
question, to focus on the event, he or she should be told who it was
who made the statement, so there can be an appropriate focus of
attention.
And a prospective nominee ought not to be ruled out, ought not to be
criticized, or ought not have it held against him if people are
challenging him who will not be disclosed.
And the article in The Nation magazine says specifically it came from
two lawyers, both unwilling to be identified by name for fear of
reprisals. It is a little hard to see what the reprisals would be.
If somebody has something to say about a judicial nominee, let him
come forward. If they are not going to be identified, how can you
expect a responsive answer to be given by an individual, which is
apparent on its face, as Mr. Estrada tries to respond to these
questions without knowing precisely what they are?
Other issues were raised as to Mr. Estrada because of clients he
represented and causes he undertook. I regrettably could not be present
for all of the Estrada hearings because we were debating homeland
security on the day his hearing was up, and I was there for part of it
but not there for all of it.
It was reported to me that Mr. Estrada was questioned about comments
which he had made in representing a client, trying to have the case of
Miranda v. Arizona overruled, a 1966 decision where the Supreme Court
laid down certain requirements for warnings and waivers.
The Omnibus Crime Control Act of 1968, passed by the Congress, sought
to change the Miranda rule by providing that the confession be judged
on the totality of the circumstances. An act of Congress is
presumptively constitutional, and it was a matter for argument. The
Supreme Court considered the issue and decided that Miranda would not
be overruled, considered it, many years later.
Shortly after the Omnibus Crime Control Act was passed in 1968, I was
asked by the National District Attorneys Association to argue a case
captioned Frasier v. Cupp where there was a confession at issue under
Escobedo. I appeared in the Supreme Court and argued that the
confession which was given, the statements which were given should be
judged under the 1968 Omnibus Crime Control Act which said
voluntariness should be decided on the basis of the totality of
circumstances.
In a State prosecution, the due process clause picks up the right to
counsel of the sixth amendment and the privilege against self-
incrimination of the fifth amendment. The argument which I made was
there ought not to be a higher standard imposed on the States under the
due process clause than on the Federal Government.
Under the 1968 statute gauging the admissibility on the totality of
the circumstance, the act was presumptively constitutional. The Supreme
Court did not reach the issue in deciding the case of Cupp v. Oregon
where the confession was upheld. But I had appeared before a
congressional committee, the McClellen committee, in 1966 and said I
agreed with Miranda and that I thought as a matter of public policy
Miranda was the correct decision. I said that not withstanding the fact
that I was a district attorney at that time and had to deal with the
limiting effects. It seemed to me it placed the suspect on an equal par
with the interrogators for them to be required to say you have a right
to counsel, you have a right to remain silent.
But notwithstanding my own personal view that Miranda was the correct
decision, I felt entirely free to argue to the Supreme Court the
position that the 1968 act ought to govern, and the totality of the
circumstances ought to prevail.
This is just one of what I understood to be a number of concerns
expressed by some members of the Judiciary Committee. I think there
ought to be a sharp distinction between what an individual believes as
a matter of judicial philosophy or ideology and what an individual does
by way of presenting a case for argument.
Under our adversarial system, all sides are to be presented, both
sides are to be presented, and the court is to make the decision. An
attorney has the liberty of making arguments which he thinks are good-
faith arguments for resolution by the court.
It is my hope that the Judiciary Committee will report out Mr.
Estrada. Frankly, it looks as if they are not going to do so. The
reason, really, the excuse will be given that the Solicitor General's
opinions will not be forthcoming. But they realistically cannot be
forthcoming for reasons set forth by the Solicitor General's letter
that if they are to be able to have honest and frank discussions, they
have to have the honest opinions of their lawyers.
And if you are going to make public disclosure in the context of a
judicial confirmation proceeding, the lawyers are always going to be
worried about that and are not going to give their frank opinions.
Ultimately, I hope we are able to adopt a protocol. Perhaps the year
2004 would be a good time. We have a Republican President now and a
Senate controlled by Democrats and nominations were being held up. I am
candid to say and have said, when we had a President who was a Democrat
and the Judiciary Committee was controlled by Republicans, that
nominations were held up.
I crossed party lines and voted for President Clinton's nominees when
I thought they were qualified. In the spirit of reciprocity, I have
been able to get Pennsylvania judges confirmed. But perhaps in the year
2004, when no
[[Page S10033]]
one knows exactly what 2005 will bring, we can end this politicization
of the Judiciary Committee process and adopt a protocol which I have
submitted but which would say that after so many days after a
nomination, the committee would consider it with a hearing; so many
days after the hearing, the committee would vote; and so many days
later, it would come to the floor. We could get rid once and for all of
this politicization of the nomination process.
I ask unanimous consent that the text of my resolution of protocol be
printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 2.)
Mr. SPECTER. I yield the floor.
Exhibit 1
Wilmer, Cutler & Pickering,
Washington, DC, June 24, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Dirksen
Senate Office Building, Washington, DC.
Dear Chairman Leahy: We write to express our concern about
your recent request that the Department of Justice turn over
``appeal recommendations, certiorari recommendations, and
amicus recommendations'' that Miguel Estrada worked on while
in the Office of the Solicitor General.
As former heads of the Office of the Solicitor General--
under Presidents of both parties--we can attest to the vital
importance of candor and confidentiality in the Solicitor
General's decisionmaking process. The Solicitor General is
charged with the weighty responsibility of deciding whether
to appeal adverse decisions in cases where the United States
is a party, whether to seek Supreme Court review and adverse
appellate decisions, and whether to participate as amicus
curiae in other high-profile cases that implicate an
important federal interest. The Solicitor General has the
responsibility of representing the interests not just of the
Justice Department, nor just of the Executive Branch, but of
the entire federal government, including Congress.
It goes without saying that, when we made these other
critical decisions, we relied on frank, honest, and thorough
advice from our staff attorneys, like Mr. Estrada. Our
decisionmaking process required the unbridled, open exchange
of ideas--an exchange that simply cannot take place if
attorneys have reasons to fear that their private
recommendations are not private at all, but vulnerable to
public disclosure. Attorneys inevitably will hesitate before
giving their honest, independent analysis if their opinions
are not safeguarded from future disclosure. High-level
decisionmaking requires candor, and candor in turn requires
confidentiality.
Any attempt to intrude into the Office's highly privileged
deliberations would come at the cost of the Solicitor
General's ability to defend vigorously the United States'
litigation interests--a cost that also would be borne by
Congress itself.
Although we profoundly respect the Senate's duty to
evaluate Mr. Estrada's fitness for the federal judiciary, we
do not think that the confidentiality and integrity of
internal deliberations should be sacrificed in the process.
Sincerely,
Seth P. Waxman.
Walter Dellinger.
Drew S. Days, III.
Kenneth W. Starr.
Charles Fried.
Robert H. Bork.
Archibald Cox.
Exhibit 2
S. Res. ____
Whereas there has been a continuing controversy with the
political party of the President protesting the process on
confirmation of Federal judges by the Senate when the Senate
is controlled by the opposite political party; and
Whereas there is a concern about a lack of public
confidence in the Senate's judicial confirmation process when
different parties control the White House and the Senate:
Now, therefore, be it
Resolved,
SECTION 1. PROTOCOL FOR NONPARTISAN CONFIRMATION OF JUDICIAL
NOMINEES.
(a) Timetables.--
(1) Committee timetables.--The Chairman of the Committee on
the Judiciary, in collaboration with the Ranking Member,
shall--
(A) establish a timetable for hearings for nominees to the
United States district courts, courts of appeal, and Supreme
Court, to occur within 30 days after the names of such
nominees have been submitted to the Senate by the President;
and
(B) establish a timetable for action by the full Committee
to occur within 30 days after the hearings, and for reporting
out nominees to the full Senate.
(2) Senate timetables.--The Majority Leader shall establish
a timetable for action by the full Senate to occur within 30
days after the Committee on the Judiciary has reported out
the nominations.
(b) Extension of Timetables.--
(1) Committee extensions.--The Chairman of the Committee on
the Judiciary, with notice to the Ranking Member, may extend
by a period not to exceed 30 days, the time for action by the
Committee for cause, such as the need for more investigation
or additional hearings.
(2) Senate extensions.--
(A) In general.--The Majority Leader, with notice to the
Minority Leader, may extend by a period not to exceed 30
days, the time for floor action for cause, such as the need
for more investigation or additional hearings.
(B) Recess period.--Any day of a recess period of the
Senate shall not be included in the extension period
described under subparagraph (A).
(c) Report of Nomination to Senate.--
(1) Nomination to supreme court.--Regardless of the vote of
the Committee on the Judiciary, a nomination for the Supreme
Court of the United States shall be reported by the Committee
for action by the full Senate.
(2) Nomination to district court or court of appeals.--If a
nomination for the United States district court or court of
appeals is rejected by the Committee on the Judiciary on a
party line vote, the nomination shall be reported by the
Committee for action by the full Senate.
____________________