[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.

                          ____________________