[Congressional Record Volume 149, Number 21 (Wednesday, February 5, 2003)]
[Senate]
[Pages S1928-S1958]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and proceed to the consideration of Executive 
Calendar No. 21, which the clerk will report.
  The assistant legislative clerk read the nomination of Miguel A. 
Estrada, of Virginia, to be United States Circuit Judge for the 
District of Columbia Circuit.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I am pleased that we have finally gotten 
to consider the nomination of Miguel Estrada to preside on the United 
States Court of Appeals for the District of Columbia Circuit, which has 
been pending before the Senate since May 9, 2001. I strongly support 
this nomination, and I hope we can vote on it soon. Also, I should say 
that I truly hope that news reports are inaccurate about efforts by my 
colleagues on the other side of the aisle to engage in a filibuster of 
this nominee in an effort to deny him a vote by the full Senate. To 
defeat this nominee in this manner would be unprecedented and a real 
shame for this body.
  As many of us who are familiar with Mr. Estrada know, he represents a 
true American success story. His story can make us all proud to be 
members of this country, make us proud of our country. Born in 
Tegucigalpa, Honduras, his parents divorced when he was only 4 years 
old. Mr. Estrada remained in Honduras with his father while his sister 
emigrated to the United States with his mother. Years later, as a 
teenager, Mr. Estrada joined his mother in the United States. Although 
he had taken English classes during school in Honduras, he actually 
spoke very little English when he immigrated. He nevertheless taught 
himself the language well enough to earn a B- in his first college 
English course. In a matter of years, he not only perfected his English 
skills, but he exceeded the achievements of many persons for whom 
English is their native tongue. He graduated magna cum laude and Phi 
Beta Kappa in 1983 from Columbia College, then magna cum laude in 1986 
from Harvard Law School, where he was editor of the Harvard Law Review. 
Those are really difficult achievements.
  Mr. Estrada's professional career has been marked by one success 
after another. He clerked for Second Circuit Judge Amalya Kearse a 
Carter appointee--then Supreme Court Justice Anthony Kennedy. He worked 
as an associate at the law firm of Wachtell Lipton in New York City, 
one of the great law firms of this country. He then worked as a Federal 
prosecutor in Manhattan, rising to become deputy chief of the appellate 
division. In recognition of his appellate skills, in spite of the fact 
that he has a speech handicap, he was hired by the Solicitor General's 
Office during the first Bush administration. He stayed with the 
Solicitor General's Office for most of the Clinton administration. When 
he left that Office, he joined the Washington, DC, office of Gibson, 
Dunn & Crutcher, where he has continued to excel as a partner. And 
everybody knows that the law firm of Gibson, Dunn & Crutcher is one of 
the great law firms of this country.
  Most lawyers are held in high esteem if they have argued even one 
case before the Supreme Court. Mr. Estrada has argued 15 cases before 
the States Supreme Court. This is an impressive accomplishment by any 
standard, but it is particularly remarkable when you take two 
additional factors into consideration. First, as I have noted, English 
is not Mr. Estrada's native language. He has nevertheless mastered it 
to such a degree that he is considered to be one of the foremost 
appellate lawyers in our country. Second, his oral argument skills are 
even more extraordinary because, as I have mentioned, he has worked to 
overcome a speech impediment.
  Despite this disability, Mr. Estrada has risen to the top of the 
ranks of oral advocates nationwide. People all over this country have 
admiration for him.
  The legal bar's wide regard for Mr. Estrada is reflected in his 
evaluation

[[Page S1929]]

by the American Bar Association. The American Bar Association evaluates 
judicial nominees based on their professional qualifications, their 
integrity, their professional competence, and their judicial 
temperament. They do not have an official role in the confirmation 
process, but Senate Democrats did identify the group's evaluations last 
year as the ``gold standard.''
  They ask judges who have heard a nominee argue cases, lawyers on the 
other side of cases, and hundreds of lawyers with whom the nominee has 
worked. They also ask neighbors and friends and other critics, people 
who have axes to grind. They really go into a lot of things, but mainly 
with people in the profession.
  Based on its exhaustive assessment of these factors, the ABA has 
bestowed upon Mr. Estrada its highest rating of unanimously well 
qualified. That is high praise indeed.
  I have to say, as one who has been critical of the American Bar 
Association and their evaluation process in the past, in recent years I 
think they have been doing an excellent job. We are gaining by the work 
they are doing.
  In the past I have seen them as a partisan organization that was not 
fair to Republican nominees, at least to some Republican nominees. But 
I don't find that bias any longer. I want to praise the American Bar 
Association for it.
  I take the time to offer up this brief recitation of Mr. Estrada's 
personal and professional history because I think it illustrates that 
he is in fact far from some rightwing idealogue that some of the usual 
opposition groups have portrayed him to be. He clerked for Judge 
Kearse, a Carter appointee; then Justice Kennedy, a moderate by any 
standard. He joined the Solicitor General's office and stayed on 
through much of the Clinton administration. His supporters include a 
host of well-respected Clinton administration lawyers, including Ron 
Klain, former Vice President Gore's chief of staff and a former staffer 
on the Senate Judiciary Committee, a man we all respect; Robert Litt, 
head of the criminal division in the Reno Justice Department or the 
Clinton Justice Department; Randolph Moss, former assistant Attorney 
General; and Seth Waxman, former Solicitor General in the Clinton 
administration. All of these people are people we respect, we admire, 
all of them are Democrats, and all of them have been Democrat leaders, 
and all of them have had an awful lot of influence with the Senate 
Judiciary Committee and the Senate itself through the years.
  Mr. Klain's letter to the committee in support of Mr. Estrada is 
particularly insightful. He wrote:

       Mr. Estrada will bring an independent streak to his 
     judging, that may serve to surprise those who nominated him--
     and I think will give every litigant, from any point of view, 
     a fair chance to persuade Mr. Estrada of the rightness of his 
     or her case.

  Another letter from more than a dozen of Mr. Estrada's former 
colleagues at the Solicitor General's office states that:

       . . . he is a person whose conduct is characterized by the 
     utmost integrity and scrupulous fairness, as befits a nominee 
     to the federal bench.

  I ask unanimous consent to print a copy of these letters in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        O'Melveny & Myers LLP,

                                 Washington, DC, January 16, 2002.
     Hon. Patrick Leahy,
     Chairman, U.S. Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Leahy: When we talked recently, I told you 
     that I was supporting the nomination of Miguel Estrada to be 
     a Judge of the U.S. Court of Appeals for the District of 
     Columbia Circuit. Given that I did not have, at that time, a 
     chance to explain the basis for my position in depth, I 
     thought I might put my views in writing for your 
     consideration.
       At the outset, let me be clear that I write this letter 
     with mixed emotions. Not mixed emotions about Miguel: if 
     President Bush is to fill this seat on the D.C. Circuit, I 
     believe Miguel is an outstanding candidate who merits 
     confirmation. Rather, I think it is unfortunate that this 
     vacancy exists at all due to the Senate's failure to confirm 
     two outstanding, and well-qualified candidates for this court 
     nominated by President Clinton. In this case, that unfairness 
     is particularly ironic, as I met both Elena Kagan--President 
     Clinton's nominee for this position--and Miguel Estrada--
     President Bush's nominee--when we were all law students. The 
     federal judiciary would be better off if the Senate had 
     confirmed Professor Kagan last year--and then, with a 
     subsequent vacancy arising during the Bush administration, 
     Mr. Estrada were nominated and confirmed. But unfortunately, 
     that is not the way that things worked out.
       That said, I would hope that Miguel Estrada would gain your 
     support for confirmation this year. I believe that Miguel is 
     a person of outstanding character, tremendous intellect, and 
     with a deep commitment to the faithful application of 
     precedent. I have known Miguel for 15 years, and have seen 
     him in a variety of contexts and circumstances. Though Miguel 
     is politically conservative, I support his confirmation for 
     three reasons that go beyond those factors that are obvious 
     on their face; i.e., three reasons that go beyond his 
     outstanding credentials, his intellect, and his incredible 
     record of achievement as a lawyer.
       First, Miguel is a serious lawyer who takes the law very 
     seriously. Yes, Miguel has passionate views about legal 
     policy and can be a strong advocate in a debate. But I have 
     no doubt that, on the bench, Miguel will faithfully apply the 
     precedents of his court, and the Supreme Court, without 
     regard to his personal views or his political perspectives. 
     His belief in the rule of law, in a limited judiciary, and in 
     the separation of powers is too strong for him to act 
     otherwise. He will not be one of those ``conservatives'' who 
     gives speeches about judicial restraint, but then becomes an 
     unabashed judicial activist on the bench. He will do his job 
     as the law, the Constitution, and his duty requires. I do not 
     think we can ask more of a judge on an intermediate appellate 
     court.
       Second, Miguel will rule justly toward all, without showing 
     favor to any group or individual. When I worked on the 
     Judiciary Committee staff, one of your colleagues once said 
     to me, ``Adversity in youth can affect potential judges one 
     of two ways: it can make them compassionate towards those in 
     need--feeling empathy for their plight--or it can make them 
     cold-hearted--feeling as if `I made it without help, so you 
     can, too.' '' Miguel is one of those individuals who falls 
     firmly in the first category: the challenges that he has 
     overcome in his life have made him genuinely compassionate, 
     genuinely concerned for others, and genuinely devoted to 
     helping those in need. In the political arena, Miguel favors 
     very different policies than you and I do to achieve these 
     ends. But his commitment to them is without question--and the 
     fact that he would bring this commitment with him to the 
     bench, in the dispensation of justice to all, is also without 
     question. Those without means or without advantage will get a 
     fair hearing from Miguel Estrada.
       Third, Miguel will bring an independent streak to this 
     judging, that may serve to surprise those who have nominated 
     him--and I think will give every litigant, from any point of 
     view, a fair chance to persuade Miguel of the rightness of 
     his or her case. Make no mistake about it, Miguel is 
     conservative, and in cases where those sorts of labels 
     matter, is more likely to rule ``that way'' than the judges 
     nominated to the D.C. Circuit by President Clinton. Miguel 
     Estrada will not be ``the David Souter'' of the D.C. Circuit. 
     But I do think that Miguel will be more independent, more 
     open-minded, more likely to ``break ranks'' than other 
     potential nominees of this conservative President. Miguel is 
     a rigorous skeptic--and I have seen him be as skeptical about 
     conservative shibboleths as liberal ones. He will ask tough 
     questions of both sides, and give both sides a chance to win 
     him over. This powerful intellectual quality is not unhinged 
     from a compassion for people--rather, it is harnessed by 
     Miguel in service of that compassion. It is a quality that 
     will make Miguel a very fair judge.
       In closing, I appreciate your consideration of this letter 
     and the views expressed here. I wish you the best in trying 
     to untangle the difficult mess that the confirmation process 
     has become. And I hope you will see fit to support Miguel 
     Estrada's confirmation when the Committee acts on that 
     nomination.
       With best wishes,
           Sincerely,
                                                  Ronald A. Klain,
     O'Melveny & Myers LLP.
                                  ____

                                               September 19, 2002.
     Re nomination of Miguel A. Estrada.

     Hon. Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Building, U.S. Senate, Washington, DC.
     Hon. Orrin G. Hatch,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, U.S. Senate, Washington, DC.
       Dear Chairman Leahy and Senator Hatch: We are writing to 
     express our support for the nomination of Miguel A. Estrada 
     to be a Judge of the United States Court of Appeals for the 
     District of Columbia Circuit. We served with Mr. Estrada in 
     the Office of the Solicitor General, and we know him to be a 
     person of exceptional intellect, integrity, and 
     professionalism who would make a superb Circuit Judge.
       Miguel is a brilliant lawyer, with an extraordinary 
     capacity for articulate and incisive legal analysis and a 
     commanding knowledge of and appreciation for the law. 
     Moreover, he is a person whose conduct is characterized by 
     the utmost integrity and scrupulous fairness, as befits a 
     nominee to the federal bench. In addition, Miguel has a deep 
     and abiding love for his adopted country and

[[Page S1930]]

     the principles for which it stands, and in particular for the 
     rule of law. We hold varying ideological views and 
     affiliations that range across the political spectrum, but we 
     are unanimous in our conviction that Miguel would be a fair 
     and honest judge who would decide cases in accordance with 
     the applicable legal principles and precedents, not on the 
     basis of personal preferences or political viewpoints.
       We also know Miguel to be a delightful and charming 
     colleague, someone who can engage in open, honest, and 
     respectful discussion of legal issues with others, regardless 
     of their ideological perspectives. Based on our experience as 
     his colleagues in the Solicitor General's office, we are 
     confident that he possesses the temperament, character, and 
     qualities of fairness and respect necessary to be an 
     exemplary judge. In combination, Miguel's exceptional legal 
     ability and talent, his character and integrity, and his deep 
     and varied experiences as a public servant and in private 
     practice make him an excellent candidate for service on the 
     federal bench.
       We hope this information will be of assistance to the 
     Committee in its consideration of Mr. Estrada's nomination. 
     He is superbly qualified to be a Circuit Judge for the 
     District of Columbia Circuit, and we urge your favorable 
     consideration of his nomination.
           Very truly yours,
         Thomas G. Hungar, Gibson, Dunn & Crutcher LLP; Richard P. 
           Bress, Latham & Watkins; Edward C. DuMont, Wilmer, 
           Cutler & Pickering; Paul A. Engelmayer, Esq., Wilmer, 
           Cutler & Pickering; David C. Frederick, Kellogg, Huber, 
           Hansen, Todd & Evans, P.L.L.C.; William K. Kelley, 
           Notre Dame Law School; Paul J. Larkin, Jr., 1314 
           Cleveland Street; Maureen E. Mahoney, Latham & Watkins; 
           Ronald J. Mann, Roy F. & Jean Humphrey Proffitt 
           Research Professor of Law, University of Michigan Law 
           School; John F. Manning, Columbia Law School; Jonathan 
           E. Nuechterlein, Wilmer, Cutler & Pickering; Richard H. 
           Seamon, Associate Professor, University of South 
           Carolina; Amy L. Wax, Professor of Law, University of 
           Pennsylvania Law School; Christopher J. Wright, Harris, 
           Wiltshire & Grannis LLP.

  Mr. HATCH. Mr. Estrada's supporters are not limited to prominent and 
well-connected Democrats and Republicans. We heard during his 
confirmation proceedings or hearings about Mr. Estrada's pro bono 
efforts before the Supreme Court to overturn the conviction of death 
row inmate Tommy David Strickler. His cocounsel in that case, Barbara 
Hartung, wrote the committee that Mr. Estrada:

       . . . values highly the just and proper application of the 
     law. Mr. Estrada's respect for the Constitution and the law 
     may explain why he took on Mr. Strickler's case, which at the 
     bottom concerned the fundamental fairness of a capital trial 
     and death sentence. I should note that Mr. Estrada and I have 
     widely divergent political views and disagree strongly on 
     important issues. However, I am confident that Mr. Estrada 
     will be a distinguished, fair and honest member of the 
     federal appellate bench.

  Again, that is high praise from Barbara Hartung.
  Another letter in support of Mr. Estrada came from Leonard Joy, 
attorney in charge of the Legal Aid Society, Federal Defender Division 
in New York City, which is the community defender organization 
appointed to represent indigent defendants in Federal court at the 
trial and appellate levels. Mr. Joy, who frequently represented 
defendants whom Mr. Estrada prosecuted while he was an assistant U.S. 
Attorney, wrote that:

       He clearly was one of the smartest attorneys in the office 
     which prides itself in attracting the best and the brightest. 
     Yet throughout he was eminently practical in the judgments he 
     made and he had a down-to-earth approach to his cases. I 
     found him to be a fair and straightforward prosecutor who did 
     not treat defendants unduly harshly.
       It is fair to say that all lawyers in my office liked him. 
     Many of them are liberal in their politics and it is a credit 
     to Mr. Estrada that he was able to get along with people who 
     may have had different views than he.

  Mr. HATCH. The letters the committee has received from lawyers who 
know Mr. Estrada both personally and professionally depict him as a 
brilliant yet fair attorney who is willing to listen to both sides of 
an issue before making a decision. Inherent in this description is the 
necessary conclusion that Mr. Estrada is not an idealogue but instead 
shows great respect for persons with divergent viewpoints. Indeed, as I 
noted at the hearing, Mr. Estrada placed phone calls to my office to 
support the confirmation of two Clinton judicial nominees: Adalberto 
Jose Jordan, who was confirmed to the Southern District of Florida, and 
Elena Kagan, nominated for the DC circuit.
  Beyond the letters of support we have received for Mr. Estrada, the 
cases he has taken on as an attorney illustrate his commitment to 
following the law instead of imposing any political agenda. I know that 
the issue of reproductive choice is one that is very important to many 
of my Democratic colleagues, although it is one on which we disagree. I 
am not sure how many of them saw the portion of the hearing when Mr. 
Estrada was asked about his work on the NOW--National Organization for 
Women--case for the Clinton administration. Even if you assume that Mr. 
Estrada is pro-life as a matter of politics, which even I do not know, 
that representation illustrates his ability to put aside his personal 
convictions and follow the law as a good jurist has to do.
  In addition, on the NOW web site there is an article by Vera Haller 
of Women's E-news. Although this article criticizes several of 
President Bush's judicial nominees--unfairly, in my view--but that is a 
different story--it applauds the selection of Mr. Estrada, noting that 
``[h]is presence on the list . . . was seen by some as a sign that 
President Bush hoped to avoid contentious confirmation battles in the 
Senate.''
  I want to take a moment at the outset here to address a couple of 
issues that we are sure to hear more about as the discussion of Mr. 
Estrada's nomination progresses.
  First, Mr. Estrada has been unfairly criticized by some for declining 
to answer questions at his hearing about whether particular Supreme 
Court cases were correctly decided. Lloyd Cutler, who was White House 
Counsel to both President Carter and President Clinton, put it best 
when he testified before a Judiciary Committee subcommittee in 2001. He 
said, ``Candidates should decline to reply when efforts are made to 
find out how they would decide a particular case.'' He further 
explained, ``What is most important is the appointment of judges who 
are learned in the law, who are conscientious in their work ethic, and 
who possess what lawyers describe as `judicial temperament.' '' Mr. 
Estrada's academic achievement, his professional accomplishments, and 
the letters of support we have received from his colleague all indicate 
that Mr. Estrada fits this description and deserves our vote of 
confirmation.
  Second, several opponents of Mr. Estrada have attempted to block his 
confirmation by demanding that the Department of Justice release 
internal memoranda he authored while he was an assistant to the 
Solicitor General in the Solicitor General's office. First, it is 
important to note that Mr. Estrada told the committee that he does not 
object to the release of these documents. He is, rightfully, proud of 
his legal work. But there is a larger institutional problem. What the 
opponents of Mr. Estrada, or those who are continuing to demand these 
documents, apparently ignore is the fact that all seven living former 
Solicitors General--four Democrats and three Republicans--oppose this 
request. Their letter to the committee explains that the open exchange 
of ideas upon which they relied as Solicitors General ``simply cannot 
take place if attorneys have reason to fear that their private 
recommendations are not private at all, but vulnerable to public 
disclosure.'' These seven former Solicitors General--four Democrats, 
three Republicans--concluded that ``any attempt to intrude into the 
Office's highly privileged deliberations would come at a 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.''
  The Wall Street Journal and the Washington Post have also criticized 
attempts to obtain these memoranda--and they should. The seven former 
Solicitors General of the United States are right, and their wise 
counsel should be followed.
  I ask unanimous consent that the letter of the Solicitors General, as 
well as the Wall Street Journal and Washington Post editorials, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page S1931]]




                                   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 of 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 and 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 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 
     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,
       On behalf of: Seth P. Waxman, Walter Dellinger, Drew S. 
     Days, III, Kenneth W. Starr, Charles Fried, Robert H. Bork, 
     Archibald Cox.
                                  ____


                [From the Washington Post, May 28, 2002]

                             Not Fair Game

       Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) 
     recently sought a series of internal Justice Department memos 
     in connection with the judicial nomination of Miguel Estrada. 
     Mr. Estrada, whom President Bush has named to the D.C. 
     Circuit Court of Appeals, is a conservative who served as a 
     staff attorney in the Office of the Solicitor General, mostly 
     during the Clinton administration. Although his former 
     colleagues there generally speak highly of him, one, a man 
     named Paul Bender, has suggested publicly that Mr. Estrada's 
     conservatism would corrupt his judicial work. Apparently to 
     see if Mr. Estrada's paper trail within the office would 
     support this suggestion, Sen. Leahy has requested all of Mr. 
     Estrada's written recommendations to the office concerning 
     whether cases should be appealed and what positions the 
     government should take as a friend of the court. Such a 
     request for an attorney's work product would be unthinkable 
     if the work had been done for a private client. The legal 
     advice by a line attorney for the federal government is not 
     fair game either.
       The desire to evaluate Mr. Estrada's performance is 
     understandable, and the problem of how to explore a nominee's 
     views is not trivial. Mr. Estrada has no significant record 
     of public statements or controversial writings, yet despite 
     scant evidence, liberal groups are convinced that he 
     threatens values they hold dear. Like most nominees, however, 
     Mr. Estrada likely will decline to discuss specific issues 
     that might come before him as a judge. So there is no good 
     way of exploring whether he would respect and apply precedent 
     faithfully or engage in judicial policymaking.
       That said, there are plenty of bad ways, and few involve 
     greater institutional risk for the Justice Department than 
     letting appeals memos become fodder for wars about 
     nominations. Particularly in elite government offices such as 
     that of the solicitor general, lawyers need to be able to 
     speak freely without worrying that the positions they are 
     advocating today will be used against them if they ever get 
     nominated for some other position. Says Walter Dellinger, one 
     of President Clinton's solicitors general and one of Mr. 
     Estrada's bosses in the office: ``It would be very 
     destructive of all of the purposes served by the attorney-
     client privilege to have attorneys in the solicitor general's 
     office looking over their shoulders when they write memos.'' 
     It is also needlessly destructive. A broad range of Clinton-
     era Justice Department political appointees are perfectly 
     capable of describing Mr. Estrada's role at the solicitor 
     general's office.
       On several occasions in recent years, Congress recklessly 
     has gone after work by line attorneys at the Justice 
     Department. Importing these excesses into the confirmation 
     process is a terrible idea. After a year of investigating, 
     liberal activists have not been able to find much on Mr. 
     Estrada, and the unfortunate result seems to be a fishing 
     expedition. But there's no logical end to it. Mr. Estrada 
     once clerked for Justice Anthony Kennedy, and it is perfectly 
     possible that he made comments in some of his memos there 
     that the Judiciary Committee might find interesting as well. 
     Why not ask for those? There are some ponds in which 
     activists--and Senators--should not fish.
                                  ____


              [From the Wall Street Journal, May 24, 2002]

                           The Estrada Gambit

       Senate Judiciary Chairman Patrick Leahy keeps saying he's 
     assessing judicial nominees on the merits, with political 
     influence. So why does he keep getting caught with someone 
     else's fingerprints on his press releases?
       The latest episode involves Miguel Estrada, nominated more 
     than a year ago by President Bush for the prestigious D.C. 
     Circuit Court of Appeals. Mr. Estrada scares the legal briefs 
     off liberal lobbies because he's young, smart and 
     accomplished, having served in the Clinton Solicitor 
     General's office, and especially because he's a conservative 
     Hispanic. All of these things make him a potential candidate 
     to be elevated to the U.S. Supreme Court down the road.
       Sooner or later even Mr. Leahy has to grant the nominee a 
     hearing, one would think. But maybe not, if he keeps taking 
     orders from Ralph Neas at People for the American Way. On 
     April 15, the Legal Times newspaper reported that a 
     ``leader'' of the anti-Estrada liberal coalition was 
     considering ``launching an effort to obtain internal memos 
     that Estrada wrote while at the SG's office, hoping they will 
     shed light on the nominee's personal views.''
       Hmmm. Who could that leader be? Mr. Neas, perhaps, Whoever 
     it is, Mr. Leahy seems to be following orders, because a 
     month later, on May 15, Mr. Leahy sent a letter to Mr. 
     Estrada requesting the ``appeal recommendations, certiorari 
     recommendations, and amicus recommendations you worked on 
     while at the United States Department of Justice.''
       It's important to understand how outrageous this request 
     is. Mr. Leahy is demanding pre-decision memorandums, the kind 
     of internal deliberations that are almost by definition 
     protected by executive privilege. No White House would 
     disclose them, and the Bush Administration has already turned 
     down a similar Senate request of memorandums in the case of 
     EPA nominee Jeffrey Holmstead, who once worked in the White 
     House counsel's office.
       No legal fool, Mr. Leahy must understand this. So the 
     question is what is he really up to? The answer is almost 
     certainly one more attempt to delay giving Mr. Estrada a 
     hearing and vote. A simple exchange of letters from lawyers 
     can take weeks. And then if the White House turns Mr. Leahy 
     down, he can claim lack of cooperation and use that as an 
     excuse to delay still further.
       Mr. Leahy is also playing star marionette to liberal 
     Hispanic groups, which on May 1 wrote to Mr. Leahy urging 
     that he delay the Estrada hearing until at least August in 
     order to ``allow sufficient time . . . to complete a thorough 
     and comprehensive review of the nominee's record.'' We guess 
     a year isn't adequate time and can only assume they need the 
     labor-intensive summer months to complete their 
     investigation. (Now there's a job for an intern.) On May 9, 
     the one-year anniversary of Mr. Estrada's nomination, Mr. 
     Leahy issued a statement justifying the delay in granting him 
     a hearing by pointing to the Hispanic groups' letter.
       These groups, by the way, deserve some greater exposure. 
     They include the Mexican American Legal Defense and 
     Educational Fund as well as La Raza, two lobbies that claim 
     to represent the interests of Hispanics. Apparently they now 
     believe their job is to help white liberals dig up dirt on a 
     distinguished jurist who could be the first Hispanic on the 
     U.S. Supreme Court.
       The frustration among liberals in not being able to dig up 
     anything on Mr. Estrada is obvious. Nan Aron, president of 
     the Alliance for Justice, told Legal Times that ``There is a 
     dearth of information about Estrada's record, which places a 
     responsibility on the part of Senators to develop a record at 
     his hearing. There is much that he has done that is not 
     apparent.'' Translation: We can't beat him yet.
       Anywhere but Washington, Mr. Estrada would be considered a 
     splendid nominee. The American Bar Association, whose 
     recommendation Mr. Leahy once called the ``gold standard by 
     which judicial candidates have been judged,'' awarded Mr. 
     Estrada its highest rating of unanimously well-qualified. 
     There are even Democrats, such as Gore adviser Ron Klahin, 
     who are as effusive as Republicans in singing the candidate's 
     praises.
       When Mr. Estrada worked in the Clinton-era Solicitor 
     General's office, he wrote a friend-of-the-court brief in 
     support of the National Organization of Women's position that 
     anti-abortion protesters violated RICO. It's hard to paint a 
     lawyer who's worked for Bill Clinton and supported NOW as a 
     right-wing fanatic.
       We report all of this because it reveals just how poison 
     judicial politics have become, and how the Senate is 
     perverting its advise and consent power. Yesterday the 
     Judiciary

[[Page S1932]]

     Committee finally confirmed a Bush nominee, but only after 
     Republican Arlen Specter went to extraordinary lengths to 
     help fellow Pennsylvanian Brooks Smith.
       Mr. Estrada doesn't have such a patron, so he's fated to 
     endure the delay and document-fishing of liberal interests 
     and the Senate chairman who takes their dictation.
                                  ____


             [From the Wall Street Journal, June 11, 2002]

                          No Judicial Fishing

       Senate Judiciary Chairman Patrick Leahy has just received 
     the answer to his outrageous request for the private decision 
     memos written by judicial nominee Miguel Estrada: No fishing 
     now, or ever.
       Last month Mr. Leahy followed orders from liberal interest 
     groups (as reported in Legal Times) to ask the Department of 
     Justice for all of the appeal recommendations, certiorari 
     recommendations and amicus recommendations that Mr. Estrada 
     worked on while at the Clinton-era Solicitor General's 
     office.
       Internal deliberations are highly confidential documents, 
     protected by executive privilege. No White House would 
     disclose them, and sure enough, the Bush Administration has 
     now quickly refused to do so. Assistant Attorney General 
     Daniel Bryant wrote Mr. Leahy last week that future Assistant 
     Solicitors General would be ``chilled'' from providing ``the 
     candid and independent analysis that is essential to high-
     level decision-making.''
       The Justice Department ``cannot function properly if our 
     attorneys write these kinds of documents with one eye focused 
     on the effect that their words, if made public, might have on 
     their qualifications for future office,'' he added.
       This is no surprise to anyone, certainly not to Mr. Leahy 
     and his liberal minders. Their goal here is delay, trying to 
     put off the day when Mr. Estrada takes a seat on the D.C. 
     Circuit Court of Appeals, from which President Bush could 
     promote him to become the first Hispanic-American on the U.S. 
     Supreme Court. Mr. Estrada was nominated 13 months ago and 
     hasn't even had a hearing yet.
       In the meantime, the D.C. Circuit, like the federal 
     judiciary overall, faces a severe vacancy crisis; four of its 
     12 seats are vacant. Mr. Leahy's ideological petulance grows 
     more costly by the day.

  Mr. HATCH. Madam President, let me say this to colleagues who insist 
upon seeking internal memoranda Mr. Estrada wrote during his tenure at 
the SG's office. During the last Congress, the Senate confirmed 
Jonathan Adelstein, whom I fully support, to an important position on 
the FCC. Mr. Adelstein is a former aide to the distinguished minority 
leader, but the Republicans did not demand all of Mr. Adelstein's 
memoranda to Senator Daschle on telecommunications issues before 
confirming him. This is despite the fact that such memoranda probably 
could have been useful in determining how Mr. Adelstein would have 
approached his decisions as a commissioner. The reason we did not seek 
them was because of the obvious: To do so would have intruded into the 
deliberative relationship between Mr. Adelstein and Senator Daschle. 
This would have been an inappropriate intrusion, as all of the 
Solicitors General, including President Clinton's Solicitors, have 
warned of the Judiciary Committee's request, regardless of how valuable 
the memoranda would have been in deciding whether to support Mr. 
Adelstein.
  Along the same lines, I must note the American public would probably 
find insightful the internal memoranda written to any of my colleagues 
in the Senate by their staff. How would we feel about that? Do we think 
we would get the most candid advice if our top counsel knew their 
private advice is not really private? Let's get real here.
  These misguided efforts should not prevent our confirmation of a 
highly qualified nominee who has pledged to be fair and impartial, and 
to uphold the law regardless of his personal convictions. I have no 
doubt Mr. Estrada will be one of the most brilliant Federal appellate 
judges of our time. This is a picture of Miguel Estrada, who was found 
by the American Bar Association--unanimously--well qualified, the 
highest rating given to any judicial nominee. I have no doubt Mr. 
Estrada will be one of the most brilliant Federal appellate judges of 
our time, and I urge every Member of this body to join me in voting to 
confirm him.
  Madam President, let me say just a few more things about the 
significance of this nomination. There have been many people who have 
been waiting for the confirmation vote on this nominee, and many more 
people who are watching today for the first time as we display our 
American institutions and the value we give to the independence of our 
judiciary.
  It was no small matter that at our hearing for Mr. Estrada, we had in 
the audience the Honorable Mario Canahuati, the Ambassador of Honduras 
to the United States. The Honduran community in this country, though 
centered in Louisiana, is scattered throughout the U.S., from North 
Carolina to New York to California.
  We welcomed also to our hearing the leaders of the many Hispanic 
communities and organizations in the U.S. who came to express support 
for this nomination.
  In this context, I want to make a general comment on judicial 
confirmations. For over a year, we have had a very troubling debate 
over issues that we thought our Founding Fathers had settled long ago 
with our Constitution. I have been heartened to read the scores of 
editorials all across this country that have addressed the notion of 
injecting ideology into the judicial confirmation process, because this 
notion has been near universally rejected--except, of course, for a 
handful of well paid, special interest liberal lobbyists in Washington, 
and a few other diehards.
  It seems to me the only way to make sense of the advise and consent 
role our Constitution's Framers envisioned for the Senate is to begin 
with the assumption that the President's constitutional power to 
nominate should be given a fair amount of deference, and that we should 
defeat nominees only where problems of character, qualifications, or 
inability to follow the law are evident.

  As Alexander Hamilton recorded for us, the Senate's task of advise 
and consent is to advise and to query on the judiciousness and 
character of nominees, not to challenge, by our naked power, the 
people's will in electing who shall nominate.
  To do otherwise, it seems to me, is to risk making the Federal courts 
an extension of this political body. This would threaten one of the 
cornerstones of this country's unique success--an independent 
judiciary. Let me say this again. Such political efforts would threaten 
one of the cornerstones of this country's unique success--an 
independent judiciary.
  Let's not take my advice here, let's listen to Presidents Carter and 
Clinton's White House counsel, Lloyd Cutler, a person, though we 
disagree on many issues, for whom I have the highest regard and always 
have. He is a terrific human being and a wonderful lawyer, one of the 
best who has ever served his country.
  Moreover, these are not just my views, this is our Anglo-American 
judicial tradition. It is reflected in everything that marks a good 
judge, not the least of which is Canon 5 of the Code of Judicial 
Conduct of the American Bar Association that expressly forbids nominees 
to judicial duty from making ``pledges or promises of conduct in office 
[or] statements that commit or appear to commit the nominee with 
respect to cases, controversies, or issues that are likely to come 
before the courts.''
  I should expect no Senator would invite a nominee to breach this code 
of ethics, and it worries me that we are coming close, and that we now 
appear to complain that a nominee does not breach the code when we ask 
him to. I can honestly say I fear that we are getting to or crossing 
over dangerous lines here I have not witnessed in my 27 years in the 
U.S. Senate.
  As I have indicated by reciting his stellar record, Miguel Estrada's 
nomination is before us today because it deserves to be here under any 
standard that any disinterested person could devise. He is qualified 
for the position for which President Bush has nominated him. I know it, 
and after our debate, I think the American people will know it as well.
  But notwithstanding all of Mr. Estrada's hard work and unanimous 
rating of highly qualified by the ABA, he has been subjected, so far, 
to a pinata confirmation process with which we have all become very 
familiar. The extreme left-wing Washington groups go after judicial 
nominees like kids after a pinata. And it is not specific to Mr. 
Estrada. They beat it and they beat it until something comes out that 
they can then chew and distort.
  In the case of Mr. Estrada, the ritual has been slightly different. 
They have been unable to find anything they can chew on and spit out to 
us, so they now

[[Page S1933]]

say that we simply do not know enough about Mr. Estrada to confirm him. 
And that is after more than 640 days of delay.
  Well, it is not that we do not know enough. We had a full-day 
hearing, conducted by Senator Schumer. It was a full hearing. I commend 
him for conducting and allowing all Senators the opportunity to ask any 
and all questions they wished to ask. I believe that was last 
September. Mr. Estrada's nomination has been pending before us for 
almost 2 years. We know as much about Mr. Estrada as we have known 
about any nominee. Their complaint is that we know all there is and the 
usual characters haven't found anything to distort.
  But surely we should not expect to hear it suggested today that Mr. 
Estrada doesn't have enough judicial experience. Only 3 of the 18 
judges appointed to the DC circuit by Democrats since President Carter 
had any prior judicial experience before their nominations.
  These include Ruth Bader Ginsburg and Abner Mikva to select two. 
Likewise, judicial luminaries such as Louis Brandeis and Byron White 
had no judicial experience before being nominated to the Supreme Court. 
And Thurgood Marshall, the first African American on the Supreme Court, 
had no judicial experience before he was nominated to the Second 
Circuit. I could go on and on.
  I wish to address another aspect of Mr. Estrada's background. I know 
Miguel Estrada and I know how proud he is, in ways that he is unable to 
express, about being the first Hispanic nominated to the D.C. Circuit 
Court of Appeals. So I will express it. This nomination is a matter of 
pride for him for the same reason that it is for any of us, not just 
because Mr. Estrada is a symbol for Latinos in America, but because 
Miguel Estrada's story is the best example of the American dream of all 
immigrants. He and I are proud because we love this great country and 
the future it continues to promise to young immigrants. Miguel 
Estrada's success can make each of us love this country all the more.
  In fact, I have never seen any Hispanic nominee whose nomination has 
so resonated with the Latino community, except for the partisans--the 
partisan Democrats.
  As I said earlier, Miguel Estrada was born in Honduras. He was so 
bright at an early age that he was enrolled at a Jesuit school at the 
age of 5. He was raised in a middle-class family. At age 17, he came to 
live with his mother who had immigrated to New York, knowing very 
little English. Today he sits before the Senate of the United States 
waiting to be confirmed to one of the greatest courts in the land.
  I am embarrassed, therefore, by the new lows that some have gone to 
attack Mr. Estrada. Detractors have suggested that because he has been 
successful and has had the privilege of a fine education, he is somehow 
less than a fullblooded Hispanic. This is the most embarrassing tactic 
used against this nominee. I wonder if we would tolerate saying of a 
woman nominee that because of this or that, she is not really a woman, 
or of a male nominee that because he is this or that, he is not fully a 
man. We would not tolerate that here, and I do not think we should 
tolerate it in the case of Miguel Estrada.
  Even more offensive, it seems to me, are the code words that some of 
his detractors use about him--code words which perpetuate terrible 
stereotypes about Latinos--used in effect to diminish Miguel Estrada's 
great accomplishment and the respect he has from colleagues of all 
political persuasions.
  As chairman and founder 13 years ago of the nonpartisan Republican 
Hispanic Task Force which, despite the name, is made up of both 
Republicans and Democrats--I have tried to achieve greater inclusion of 
Hispanics in the Federal Government. I have worked hard to do that. I 
love the Hispanic people. They know it.
  I am concerned by the obstacles they face. I fear that some Democrats 
are creating a new intellectual glass ceiling for Hispanics. If they do 
not think a certain liberal way that they do, then they are not good 
enough for upward mobility and advancement.
  Let me say that again. If they do not think a certain liberal way 
that they do, then they are not good enough for upward mobility and 
advancement. That is wrong, and this body should not perpetuate that.
  Many liberals in this town fear that there could be role models for 
Hispanics that might be moderate to conservative--despite the fact that 
polls show that the great majority of Hispanics are conservative. But 
surely, the advancement of an entire people should not be dependent on 
one party being in power.
  This past year I met with a number of leaders of Hispanic 
organizations from all across the country. I asked them what they think 
about the subtle prejudices that Mr. Estrada is facing and they agree. 
Perhaps, they are more offended than I could ever be, but I doubt it.
  The best expression of this outrage was shown just last week by 
Congressman Herman Badillo in an article in the Wall Street Journal.
  I ask unanimous consent that this article be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Jan. 30, 2003]

                            Que Pasa, Chuck?

                          (By Herman Badillo)

       New York.--Nothing makes Democrats more frenzied than when 
     a Hispanic or African-American goes off the reservation. 
     Witness now the opposition that the Puerto Rican Legal 
     Defense Fund and the usual Washington special interests are 
     giving Miguel Estrada, the young Honduran immigrant-turned-
     New Yorker that President Bush has nominated to the D.C. 
     Circuit Court of Appeals.
       Congressional Democrats have gone so far as to say that Mr. 
     Estrada is a Hispanic ``in name only.''
       But if their behavior is outrageous it is also par for the 
     course. Half of the Democrats' energy lately seems focused on 
     corraling the nation's two largest minority groups into an 
     intellectual ghetto. The vitriol we saw most famously 
     directed at Clarence Thomas, and more recently at Condoleezza 
     Rice, demands that blacks and Hispanics toe a political line 
     to have their success acknowledged by their own community.
       When confirmed by the Senate, Miguel Estrada, a brilliant 
     lawyer with extraordinary credentials, will be the first 
     Hispanic on the second most prestigious court in the land. He 
     will be a role model not just for Hispanics, but for all 
     immigrants and their children. His is the great American 
     success story.
       But his confirmation by the Senate will come no thanks to 
     Chuck Schumer, his home-state senator. Mr. Schumer has thrown 
     every old booby-trap in Mr., Estrada's way, and invented a 
     few new ones just for him. When the Senate held a hearing for 
     Mr. Estrada last year, Mr. Estrada's mother told Mr. Schumer 
     that she had voted for him and hoped that he would return the 
     favor. He hasn't yet.
       It is hard to blame Democrats of course. They know how 
     their bread is buttered and by whom--the monied special 
     interest groups that have made a profitable business of 
     opposing the nominations of President Bush. The Hispanic 
     groups that shun Mr. Estrada, including the Congressional 
     Hispanic Caucus, which announced its opposition to his 
     nomination last September, are a different matter. They 
     should be ashamed of themselves.
       Sen. Orrin Hatch (R., Utah), who heads both the Senate 
     Judiciary and the Senate Republican Hispanic Task Force, put 
     it well when he said that these liberal Hispanic groups 
     ``have sold out the aspirations of their people just to sit 
     around schmoozing with the Washington power elite.''
       Mr. Schumer's one-man campaign against Mr. Estrada has 
     grown tiresome too. Despite the rebuke of every living U.S. 
     solicitor general of both parties dating back four decades, 
     Mr. Schumer continues to make irresponsible demands, never 
     made before for a non-Hispanic nominee, and insists on making 
     backhanded and unfounded insinuations about Mr. Estrada's 
     career and temperament. This treatment of Mr. Estrada is 
     demeaning and unfair, not only to the nominee but also to the 
     confirmation process and the integrity of the Senate.
       Mr. Schumer's petulance ignores Mr. Estrada's 
     qualifications, intellect, judgment, bipartisan support, and 
     that he received a unanimous ``well qualified'' rating--the 
     highest possible rating--from the American Bar Association. 
     The liberal Hispanic groups that challenge Mr. Estrada's 
     personal identity as a Hispanic ignore his support by non-
     partisan Hispanic organizations, such as the Hispanic 
     National Bar Association, the League of United Latin American 
     Citizens, and the U.S. Hispanic Chamber of Commerce.
       Mr. Schumer and his colleagues are fond of speaking about 
     the need for ``diversity'' on the courts. Apparently that 
     talk does not extend to President Bush's nominees, since the 
     confirmation of Mr. Estrada would provide just such diversity 
     on this important court. It is past time that Mr. Schumer put 
     an end to his embarrassing grandstanding on Mr. Estrada's 
     nomination.
       One would think that a New York senator would know that, 
     whether Puerto Rican, Dominican or Honduran, Hispanics are 
     most

[[Page S1934]]

     united in one thing--the pride we take in our advancement as 
     Americans regardless of where we started. One suspects that 
     Mr. Schumer may learn this lesson yet, and that Miguel 
     Estrada's name is one that Charles Schumer will hear repeated 
     when he runs for re-election all too soon.

  Mr. HATCH. Mr. Badillo served four terms as a Democrat in the House 
of Representatives, as Deputy Mayor of New York City under Mayor Koch, 
as Bronx President and as Board Chairman of the City University of New 
York. He is the best known Hispanic public leader in New York State 
with five decades of public service to show for his efforts.
  Mr. Badillo had this to say about how Mr. Estrada has been treated:

       [It is] demeaning and unfair, not only to the nominee but 
     also to the confirmation process and the integrity of the 
     Senate.

  Mr. Badillo notes that Mr. Estrada has had demands placed on him 
``never made before for a non-Hispanic nominee.''
  The Hispanic experience, in fact, sheds new light on the debate we 
have been having about ideology in judicial confirmations. Many new 
Hispanic Americans have left countries without independent judiciaries, 
and they are all too familiar with countries with political parties 
that claim cradle-to-grave rights over their allegiances and futures.
  I have a special affinity for Hispanics and for the potential of the 
Latin culture in influencing the future of this country. Polls show 
that Latinos are among the hardest working Americans. That is because 
like many immigrant cultures in this country, Hispanics often have two 
and even three jobs. Surveys show they have strong family values and a 
real attachment to their faith traditions and they value education as 
the vehicle to success for their children.
  In short, Hispanics have reinvigorated the American dream, and I 
expect they will bring new understandings of our nationhood, that some 
of us some of us, Madam President--might not fully see with tired eyes.
  Without trumpeting the overused word ``diversity,'' I have made it my 
business to support the nominations of talented Hispanics for my entire 
career in the Senate. I hope that the desire for diversity that many of 
my Democrat colleagues say they share with me will trump the reckless 
and destructive pursuit of injecting ideology into the judicial 
confirmations process as we move forward on this particular nomination.
  In Spanish-speaking churches all over this country and in every 
denomination, Hispanics sing a song called DE COLORES. This means OF 
MANY COLORS. It celebrates the many colors in which we all are created.
  Hispanics know they come in many colors, with all kinds of 
backgrounds. They enjoy among themselves a wide diversity already. They 
left behind countries filled with ideologues that would chain them to 
single political parties. Latinos share a commonsense appreciation of 
each other's achievements in this country without any regard whatsoever 
to ideology, over which some Americans have the luxury of obsessing.
  Congressman Herman Badillo said it well--in fact, he said it 
beautifully:

       [W]hether Puerto Rican, Dominican or Honduran, Hispanics 
     are most united in one thing the pride we take in our 
     advancement as Americans regardless of where we started.

  In fact, that is true for all of us.
  It seems to me that any political party's attempt to control a group 
and to bar independent thought and belief, in effect to disallow 
diversity of thought within the Hispanic community, is simply wrong and 
no people should stand for that. That is what I have come to call and 
deplore as the ``intellectual glass ceiling.''
  I have news for those engaging in this: Hispanic Americans--like all 
Americans--have liberals and conservatives. No one should be so 
arrogant as to demand that a whole community should think as they do. 
People who are demanding that all Hispanics should fit into one mold 
ought to be ashamed of themselves. They have sold out the aspirations 
of their people just to sit around schmoozing with Washington's liberal 
power elite.
  Let's be clear, these liberal groups are only two or three in number, 
and they are basically surrogates for the Democrat Party. They are 
marginalized given the large number of Hispanic organizations that have 
come out in support of Mr. Estrada. I should note that Mr. Estrada's 
supporters include LULAC, the League of United Latin American 
Citizens,--the largest and oldest Latino organization in this country.
  Like President Bush--I have the same feelings--I think it is high 
time that a talented lawyer of Hispanic descent sits on the second most 
prestigious court in the land. Miguel Estrada is that man.
  I wish to address one last thing. I noticed that the very liberal 
Puerto Rican Legal Defense Fund issued a report just last spring, 
arguing that there were too few Hispanics on the bench and challenging 
the Bush administration to nominate more.
  I noticed, however, that they never mentioned Miguel Estrada's 
nomination. In fact, though they address all the other federal circuit 
courts, the DC Circuit Court for which Mr. Estrada is nominated is 
oddly missing from their analysis arguing for more Hispanic 
nominations.
  In this respect, I want to commend President Bush. He has already 
sent us 9 since he began, and we expect by the end of this week to have 
altogether 12 well-qualified Hispanic nominees. At this rate, if he has 
8 years to serve, President Bush will have nominated close to 40 
Hispanic-American judges. This will be more than any other President 
before him, Democrat or Republican. Already, as this chart indicates, 
President Bush has a greater percentage of Hispanic nominations than 
any President before him.
  Nevertheless, I too am concerned about the few Hispanic judges we 
have, especially given that Hispanics are now the largest minority 
group in America. And I am concerned by the obstacles they face. 
Congressman Badillo, himself a former Democrat, describes it this way: 
``Nothing'' he says, makes some people ``more frenzied than when 
Hispanics and African Americans go off the reservation.'' I hope that 
he is not talking about any Senators here.
  Finally, I ask unanimous consent to have printed in the Record an 
editorial by The Washington Post that expresses their support for Mr. 
Estrada.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Sept. 29, 2002]

                           Exploiting Estrada

       It is hard to image a worse parody of a judicial 
     confirmation process than the unfolding drama of Miguel 
     Estrada's nomination to the U.S. Court of Appeals for the 
     D.C. Circuit. Opponents of Mr. Estrada, a well-regarded 
     appellate lawyer who served a stint in the solicitor 
     general's office, are convinced that the young, conservative 
     Hispanic represents a grave threat to the republic. Yet Mr. 
     Estrada has not done his foes the courtesy of leaving a 
     lengthy paper trail of contentious statements. And this 
     creates something of a problem for those bent on keeping him 
     off the bench: There is no sound basis on which to oppose 
     him. Mr. Estrada's other problem is that the White House does 
     not merely want credit for appointing a first-rate lawyer to 
     an important court but wants to use Mr. Estrada, who had a 
     hearing last week before the Senate Judiciary Committee, to 
     curry favor with Hispanic voters. As a result, Mr. Estradas' 
     nomination has been turned into a political slugfest and 
     discussed in the crudest of ethnic terms.
       On one side of this degrading spectacle, Mr. Estrada's 
     opponents question whether he is Hispanic enough, whether a 
     middle-class Honduran immigrant who came to the Untied States 
     to go to college can represent the concerns of ``real'' 
     Latinos. The Puerto Rican Legal Defense and Education Fund, 
     for example, complains that his ``life experiences [have not] 
     resembled .  .  . those of Latinos who have experienced 
     discrimination or struggled with poverty, indifference, or 
     unfairness.'' Such distasteful ethnic loyalty tests have no 
     place in the discussion. Yet on the other side, Republicans 
     have reduced Mr. Estrada to a kind of Horatio Alger story. 
     White House counsel Alberto R. Gonzales, in an article on the 
     opposite page on Thursday, described him as ``an inspiration 
     to Hispanics and to all Americans.'' But Mr. Estrada has not 
     been nominated to the post of inspiration but that of judge. 
     Both sides should remember that there is no Hispanic manner 
     of deciding cases.
       Lost in all of this is a highly qualified lawyer named 
     Miguel Estrada. Democrats have suggested opposing him because 
     of general concerns about the partisan ``balance'' on the 
     D.C. Circuit or because they don't know enough about his 
     views to trust him. They also continue to fish for dirt on 
     him. Sen. Charles E. Schumer (D-NY.) grilled him at his 
     hearing about questions that have been raised anonymously 
     concerning his aid to Justice Anthony M. Kennedy in picking 
     clerks. And Democrats are still pushing to

[[Page S1935]]

     see confidential memos Mr. Estrada wrote in the solicitor 
     general's office and trumpeting criticism of him by a single 
     supervisor in that office--criticism that has been 
     discredited by that same colleague's written evaluations.
       Seeking Mr. Estrada's work product as a government lawyer 
     is beyond any reasonable inquiry into what sort of judge he 
     would be. Nor is it fair to reject someone as a judge because 
     that person's decision to practice law, rather than write 
     articles or engage in politics, makes his views more opaque. 
     And its is terribly wrong to demand that Mr. Estrada answer 
     charges to which nobody is willing to attach his or her name.
       Democrats have a legitimate grievance concerning the D.C. 
     Circuit: Two excellent nominees of the previous 
     administration were never acted upon by Senate Republicans. 
     The White House is wrong to ignore this issue and does so at 
     its peril. But the answer is not attacks on high-quality Bush 
     administration nominees such as Mr. Estrada. At the end of 
     the day, Mr. Estrada must be considered on his merits. His 
     confirmation is an easy call.

  Mr. HATCH. As one editorial puts it, his nomination is ``an easy 
call.''
  The Post was right to point out that we who support Miguel Estrada 
should not do so simply because he is a Hispanic. As the Post points 
out there is no particularly ``Hispanic manner of deciding cases.'' 
They reject the diversity argument.
  I agree, and as I indicated Mr. Estrada has an exemplary record as a 
magna cum laude of both Columbia University and Harvard Law School 
graduate, and his extraordinary record of public service, including 15 
cases argued before the Supreme Court. This record has not been met by 
many of the nominees of either party over the 27 years I have been 
here.
  In addressing why he was before us at his hearing I did not say 
anything about confirming Miguel Estrada because he is Hispanic. I did 
not have to make that argument because, as The Post points out, his 
record makes his confirmation ``an easy call.''
  But this fact should not diminish the pride, that I have addressed, 
that Miguel Estrada's supporters have in the compelling story of a 
young immigrant who arrives from Honduras at age 17 and rises to be 
nominated to the second most prestigious court in the land. This is a 
pride I hope we can all share, Democrats and Republicans, when this 
Senate confirms him. It is a non-partisan pride.
  I disagree with The Post, however, to the extent they minimize the 
significance of confirming a well-qualified Hispanic.
  Confirming minority candidates, provided they are also well-qualified 
as Mr. Estrada is, is a positive good, in and of itself. It is 
important to raise role models in high office for young Hispanics in 
this country, indeed for all immigrants, provided they are otherwise 
well qualified or as in Miguel Estrada's case--unanimously well-
qualified. Now, I will take a second with another chart because it is 
important to go through his qualifications. These are only a few 
qualifications, but they are very important.

  Miguel Estrada not qualified? Give me a break. My friends on the 
other side have said the American Bar Association is the gold standard. 
I think the way they are doing it now is probably true. ABA rating: 
Unanimously well qualified.
  He argued 15 cases before the U.S. Supreme Court, winning most of 
them; Columbia and Harvard Law, graduated magna cum laud; editor of the 
Harvard Law Review--there are a lot of lawyers in this body; I doubt if 
many have been editors of law reviews--law clerk for U.S. Supreme Court 
Justice Kennedy; assistant solicitor general for President Bush 1 and 
President Clinton.
  Those are very important qualifications. There are not many who come 
before this body who have been confirmed, even to the prestigious 
Circuit Court of Appeals for the District of Columbia, that can match 
Miguel Estrada.
  I believe he handled himself well before the committee, although some 
on the other side do not. Be that as it may, Miguel does work very hard 
with the speech impediment he has had all his life. In spite of that 
handicap or disability, he has argued 15 cases before the U.S. Supreme 
Court. It has been hardly a disability to him. He is a terrific human 
being. He is a very upright person. He is an example to all of what we 
can achieve in this great land. He certainly deserves confirmation by 
this body. I hope we can do that within a reasonable period of time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. I ask unanimous consent the call of the quorum be 
dispensed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, notwithstanding the misleading charts of 
my good friend from Utah--we will get to the numbers--there is an easy 
number for everyone to remember. There are 10 Hispanics on the circuit 
court of appeals today. Eight were nominated by President Clinton. 
There would actually be 13 on the circuit courts of appeals today 
except the Republican leadership in the last couple of Congresses 
blocked three of President Clinton's nominees for the court of appeals. 
President Clinton does have, by far, the record of having successfully 
appointed the highest number of Hispanics for circuit courts of appeals 
of either President of either party. As I said, it would be even larger 
if the Republican Party had not refused votes in committee on three 
nominations.
  Madam President, in the wake of the tragic events of this week, all 
Americans are grieving with the families of the crew of the Space 
Shuttle Columbia and with the entire NASA community. The President 
acknowledged that loss with a prayerful statement Saturday afternoon 
and with his presence, and his eloquent words yesterday in Houston were 
joined by a number of Senators of both parties. Our Nation mourns the 
loss of another crew, the crew of the Black Hawk helicopter that went 
down east of Baghram Afghanistan last Thursday.
  Both were connected to important national missions, one the 
scientific quest into space, and the other part of the continuing 
struggle to secure Afghanistan from those who have made it a haven for 
international terrorism. These actions remind us all of the courage and 
sacrifice of those who serve the Nation in our armed services and on 
the frontiers of space. This week the Nation mourns, and much of the 
world grieves with us.

  This morning, Secretary of State Powell spoke to the Security Council 
of the United Nations on the situation in Iraq as the administration 
moves forward with preparations for war, war that appears now 
inevitable. We know how precious to their families are each of the 
members of the Reserves and Armed Forces who may be about to take 
assignments in harm's way. In light of all these events, this week is 
really a poor time for the leadership of the Senate and the 
administration to force the Senate into an extended debate on the 
administration's controversial, divisive plan to pack the Federal court 
with activists. I had hoped the administration and the Republican 
leadership would reconsider that plan and the timing of this debate. I 
know the Democratic leader raised the matter with the Republican 
leadership. I thank Senator Daschle for having done so.
  I thought the Senate was right to begin the week with unanimous 
Senate action on S. Res. 41, commemorating the devotion and regretting 
the fate of the Columbia space shuttle mission. Both the Republican 
leader and Democratic leader joined to put together that resolution. I 
commend both of them for doing it.
  In fact, memorials are taking place around the country this week, in 
our hometowns and small towns, as well as the one in Houston yesterday, 
and here at the National Cathedral in Washington tomorrow, at Cape 
Canaveral in Florida, and elsewhere. Of course, there are memorials in 
other countries affected, especially Israel and India.
  So this is not the time I would have chosen for this debate. The 
Senate should be finding matters of consensus on which we can all work 
together in unity in these difficult days of grieving. It would be 
good, just for once, to have things that could unite us rather than 
things that divide us.
  Under Democratic Senate leadership in the difficult days following 
the terrorist attacks of 9/11, that is what we did. We joined together, 
Democrats and Republicans alike. We worked hard to

[[Page S1936]]

put aside divisive issues. We focused exclusively on what America 
needed most in the aftermath of those attacks. I recall how hard some 
of us devoted ourselves to what became the USA Patriot Act; the hours, 
the days, the weeks we spent trying to forge consensus.
  We also saw how the administration worked to demean that 
bipartisanship, and how during the election season it denigrated the 
work of Democrats trying to help the security of this country and 
began, once again, to divide, not unite.
  It would be good to see national leaders in national campaigns seek 
to unite us and not to divide us. But it has been sometime since we 
have seen that.
  So in the new 108th Congress, as we begin this initial nominations 
debate in the Senate Chamber, we see an emboldened executive branch 
wielding its rising influence over both Houses of Congress, and ever 
more determined to pack the Federal courts with activist allies, to 
turn this independent judiciary into a political judiciary.
  That would be one of the greatest tragedies this Nation could face. 
Throughout the world, when people come to America they look at our 
Federal judiciary and say: This is a truly independent judiciary. 
Shouldn't we be working to do that?
  In upholding our constitutional oath, shouldn't we, as Senators, be 
doing that? Shouldn't whoever is President be doing that?

  I recall when the Soviet Union collapsed, Members of the new Russian 
Duma came here to the United States to see how we do it in a democracy. 
I recall sitting in my conference room with a number of people. I 
remember the Members of the Duma coming to my office. There were those 
who were going to have to oversee the new judiciary. One of the things 
that struck me is one of them said: We have heard that there are 
instances where American citizens go into a court and they bring suit 
against the American Government. Is that true?
  I said: Yes, it happens all the time.
  They said: We have also heard there were times when Americans bring 
suit against their Government and the individual citizen wins, the 
Government loses.
  I said: That happens all the time.
  And they said: You don't replace the judges if they rule with one of 
the citizens and rule against the U.S. Government?
  I said: If the U.S. Government is in the wrong, of course they do, 
that's their duty. That is what we mean by judicial independence. That 
is how the same American citizen could come in on another issue and 
lose. The fact is, American citizens can come into our Federal courts 
and know they are going to be independent. They are going to know it 
doesn't make any difference whether they are Republicans or Democrats, 
whether they are rich or poor, no matter what their color, no matter 
what their religion, no matter whether they are liberal, conservative, 
moderate, or whatever part of the country they are from, when they go 
to the Federal courts they can see they are independent.
  Now, in this attempt to change the ideology of all the Federal courts 
into one narrow ideological strata, we see a attempt not to unite 
Americans but to divide them. But worse than that, because these are 
lifetime appointments, we see an attempt to irrevocably damage the 
integrity and the independence of the Federal judiciary.
  With unprecedented speed--certainly unprecedented in the last 15 or 
20 years--the Democratic-controlled Senate moved through and, in 17 
months, confirmed 100 of President Bush's nominees. The vast majority 
of them were conservative Republicans, and I voted for almost all of 
them because I thought, having listened to them, at least we knew 
enough about them to know that they could be impartial on the bench. 
There were some we did not take up because it was so obvious from their 
statements that they were there to take a political, ideological view. 
Then we find some, of course, who will not tell us at all what they are 
there for.
  The fundamental checks and balances of our Federal system are at risk 
of being sacrificed to a one-party rule with the coequal branches of 
our Government collapsing into one.
  The Senate should not abandon its critical role. I wish more people--
I wish 100 Members of the Senate--would sit down and read history books 
and determine how we got here and what our advice and consent rule is. 
Look at the fact that even President George Washington had judges who 
were turned down by the Senate at that time.
  This is a great institution. I have given 29 years of my life here. 
It is the main place of checks and balances in our Federal Government, 
especially when it comes to advising and consenting to appointees. We 
are not talking about an appointment to an assistant secretaryship, or 
administratorship somewhere in a job that may last for a couple of 
years, important though it may be; we are talking about lifetime 
appointments, appointments of judges who will be there long after all 
of us have left.
  Defending and upholding the Constitution is what we Senators are 
sworn to do. I can remember every time I walked down the aisle of this 
Senate and up to the Presiding Officer and raised my hand to take my 
oath of office to begin another 6-year term. I can remember each one of 
those times as though it was in crystal, as though time stopped, 
because what I remember is not the fact that I have become a Senator 
again, or that my family may be in the Gallery, or that my friends are 
happy. What I remember is I am taking a very awesome oath. This oath 
says that I will uphold the Constitution, and I will uphold my duties 
as a U.S. Senator--not as a Democrat or as a Republican, and not even 
as a Vermonter but as a U.S. Senator. We are a nation of 275 million 
Americans. Only 100 of us get the opportunity to represent this country 
at any given time. And it is an awesome responsibility.

  I see the administration trying to pack the Federal court with 
activists. I take that very seriously. I have voted against nominees of 
Republican Presidents and of Democratic Presidents if I believed it 
would not be upholding my duties as a Senator to vote for them. But, 
unfortunately, this debate will be contentious, and it may be split 
largely along party lines.
  Already, Republicans have charged those who have spoken or voted 
against this nomination as motivated by racism. I do not know any 
racist in this body in either party, and I resent the fact that some 
Republicans have said those who have voted against this nominee in the 
committee were motivated by racism. There are none in this body.
  The Associated Press reports that Republicans, last Thursday, charged 
those who opposed this nomination of doing so ``because of ethnicity'' 
and with wanting ``to smear anyone who would be a positive role model 
for Hispanics.'' Those who made such statements should begin this 
debate by withdrawing those statements and disavowing that divisive 
rhetoric.
  It is wrong for anybody to be declaring that Members of this body in 
either party are racists. I think it is wrong what has happened here.
  Those who have done so should apologize to Democratic Senators on the 
Judiciary Committee who voted against this nomination, and also to the 
Hispanic leaders--very respected Hispanic leaders--in this country who 
showed the courage to examine this nomination, and, having examined the 
nomination of Mr. Estrada, decided to oppose it.
  Last year, some Republicans made an outrageous and slanderous charge 
that religious bigotry motivated votes by the Democrats on the Senate 
Judiciary Committee--even going so far as to say no Christians should 
get a vote, and basically made it very clear because there are four 
Catholics and four Jews on that committee. As one of those Catholics, I 
resent that, and I resent that more than anything I have heard in 29 
years in the U.S. Senate. We have not seen that outrageous and 
slanderous charge withdrawn.
  Again, I have never met a Senator in either party who showed 
religious bigotry. But I have heard Senators accuse Democratic members 
of the Senate Judiciary Committee of that. It is wrong. It is 
absolutely wrong--and just as wrong to say if you vote against somebody 
it is out of racism. That is wrong.
  I have voted on thousands upon thousands of nominees for Presidents 
of both parties. For most of them I had

[[Page S1937]]

absolutely no idea what their race or religion was. And when I did, it 
never once entered into my thought. It may cause fundraising letters or 
cheap applause lines when speaking to different groups, but I must 
admit as a member of a religious minority that I find that it is 
something which I resent greatly.
  I had hoped the administration and the Republican leadership would 
not do something so controversial and divisive with this nomination--
not with all this Nation has gone through and continues to go through, 
with the tragedy of last weekend, and not knowing that we are coming to 
the final decision on going to war.
  Just as the President has, once again, chosen to divide rather than 
unite by sending controversial judicial nominations in an effort to 
pack the courts, the Republican leadership in the Senate has chosen 
this time to force that controversy forward.
  I made efforts over the last 2 years to try to work with the White 
House to confirm and appoint judges to the judicial vacancies, 
including a very large number of vacancies that are there because 
Republicans refused to allow a vote on nominations by President 
Clinton--moderate nominations by President Clinton. The vacancies 
remain year after year after year because the Senate does not allow a 
vote on the nominee.
  As I said, during the last 17 months of the last Congress under 
Democratic leadership, the Senate confirmed 100 of President Bush's 
judicial nominees. Actually during that time, even though the 
Republicans were in charge for 6 months, they did not confirm a single 
one of President Bush's judicial nominees--but Democrats did, 100 of 
them. We worked at a rate almost twice that averaged during the 
preceding years when a Republican-led Senate was considering nominees 
of a Democratic President.
  Consensus nominees were considered first and relatively quickly. 
Controversial nominees took more time but we considered many of them as 
well.
  The last judicial nominee considered by the Senate last December was 
from the neighboring State of the distinguished Presiding Officer, 
Judge Dennis Shedd of South Carolina. Judge Shedd's nomination was 
chiefly supported by Senator Strom Thurmond. Despite his record--and 
certainly a record with which I disagree--in civil rights cases and his 
record on the bench, we proceeded. His record raised serious concerns 
among many--especially among African Americans living in the Fourth 
Circuit and across the Nation. But we brought the nominee forward. I do 
recall when we did that some Republicans said it would bring adversity 
to the bench. I am not sure what they meant by that. But we brought it 
forward, nonetheless, as I had agreed to. The Senate vote was 55 to 44 
to confirm him.
  Shortly thereafter, the Nation and the Senate were confronted by the 
controversy over the remarks of the former Republican leader, and 
people openly speculated whether the President would renominate that 
Senator's choice, Judge Charles Pickering. The nomination was defeated 
in our committee.
  I do not know of any precedent for a President renominating a 
judicial nominee who was voted on and rejected by the Judiciary 
Committee. Yet this President has chosen to renominate--to go against 
precedent--both Judge Pickering and Justice Priscilla Owen, who both 
had been voted on by the Judiciary Committee and whose nominations were 
rejected last year.
  I am over the fact that we haven't seen them on the agenda, in case 
Senators have second thoughts. But we will see. But now we have a 
different nomination before the Senate.
  As I have said for some time, the Senate and the American people 
deserve to have an adequate record and strong confidence about the type 
of judge Mr. Estrada would be in order to support a favorable vote on 
this nomination. But we don't have that in the sparse record before the 
Senate on his nomination to the second highest court of the land, and 
as a Senator I certainly don't have confidence to support this 
nomination when basically all I can say about him is he is a pleasant 
person to be with. We have seen different sort of constantly changing 
biographies of him in the press--all impressive, whichever one is the 
latest one being used. But what I want to know is what is he going to 
be like in a court? You have to be concerned. Will he be an activist on 
the DC court?
  Throughout our earlier proceedings, I repeatedly urged Mr. Estrada 
and the administration to be more forthcoming--certainly to be 
forthcoming at least to the extent that the five previous 
administrations I served with have been. But neither the nominee nor 
the administration has shown any interest--any interest whatsoever--in 
being more forthcoming.

  So what do we have? We have before us for consideration a nominee 
with no judicial experience, and little relevant practical experience 
related to the jurisdiction of this court. He counts Justice Scalia, 
Kenneth Starr, and Ted Olson among his friends and mentors, but any 
information about how his decisionmaking would go or what he thinks is 
not there.
  The Senator from New York, Mr. Schumer, asked him: Well, we are not 
going to ask you about a case that may actually be before the court. 
Senator Schumer said: We are not going to ask you how you would vote on 
the WorldCom case because that may well be there. But if you look at 
Supreme Court cases, for example, can you name any you disagree with? 
And that was just to get some idea of what he thinks. He asked him: Can 
you name any cases you disagree with? And he could not.
  Even if you did not want to look at some very recent cases, I would 
think somebody would think of a case, such as the Dred Scott decision, 
or Plessy v. Ferguson. These are a couple cases that would come to mind 
that you might disagree with. I certainly would disagree with the court 
upholding, what everybody now realizes is unconstitutional, the locking 
up of Japanese Americans during World War II, the locking up of loyal 
American citizens absent any due process just because of where their 
ancestors came from, which was upheld by a very political Supreme 
Court. I could have disagreed with that.
  There has to have been some cases--over all these years. Upholding 
slavery? Upholding separate but equal? Upholding the internment of 
Americans for no other reason than the color of their skin and where 
their parents or grandparents came from? That was a softball toss. We 
are not even going to be allowed to know what he thinks about that. 
Maybe he thinks those were good cases. But if that is the case, then 
say they are good cases, which actually is what he did. He said there 
were none he disagreed with.
  So you have to think that maybe one of the reasons for the 
controversy over Mr. Estrada is because he appears to have been groomed 
to be an activist appellate judge and groomed by well-connected, 
ideologically driven legal activists.
  For example, those who he declares are his friends--you can have 
friends whenever you want. I have friends who range across the 
political spectrum. But I think I also would be willing to state what 
my political philosophy is, or certainly what my judicial philosophy is 
if I am going to ask for a lifetime appointment to the bench, just as I 
have to state what my political philosophy is when I ask the people of 
Vermont to elect or reelect me.
  Last week, the Congressional Hispanic Caucus and the Congressional 
Black Caucus restated their concerns, and the Puerto Rican Legal 
Defense and Education Fund, the Mexican American Legal Defense and 
Education Fund, and the Southwest Voter Registration and Education 
Project reiterated their concerns.
  Some of the most respected Latino labor leaders, including Maria 
Elena Durazo of HEAR, Arturo S. Rodriguez of the UFW, Miguel Contreras 
of L.A. County Fed., Cristina Vazquez of UNITE, and Eliseo Medina of 
SEIU have indicated their strong opposition to this nomination.
  Let me quote from the letter from Antonia Hernandez and Antonio 
Gonzalez:

       As a community, we recognize the importance of the 
     judiciary, as it is the branch to which we have turned to 
     seek protection when, because of our limited political power, 
     we are not able to secure and protect our rights through the 
     legislative process or with the executive branch. This has 
     become perhaps even more true in light of some of the actions 
     Congress and the executive branch have taken after 9/11, 
     particularly as these actions affect immigrants.

[[Page S1938]]

       After an extensive review of the public record that was 
     available to us, the testimony that Mr. Estrada provided 
     before the Senate Judiciary Committee, and the written 
     responses he provided to the committee, we have concluded at 
     this time that Mr. Estrada would not fairly review issues 
     that would come before him if he were to be confirmed to the 
     D.C. Circuit Court of Appeals. As such, we oppose his 
     nomination and urge you to do the same.

  Two of the Nation's most respected Hispanic leaders.
  They go on to analyze an array of issues that affect not only the 
Latino community but all Americans on which they find this nomination 
wanting. Of course, MALDEF outlined its concerns in advance of the 
hearing last fall in a memorandum to the White House. As their recent 
letter says:

       [T]he Judiciary Committee gave Mr. Estrada ample 
     opportunity to address [their concerns]. Ultimately, Mr. 
     Estrada had the affirmative obligation to show that he would 
     be fair and impartial to all who would appear before him. 
     After reviewing the public record, the transcript and the 
     hearing, and all written responses submitted by Mr. Estrada, 
     we conclude that he failed to meet this obligation. He chose 
     one of two paths consistently at his hearing and in his 
     written responses: either his responses confirmed our 
     concerns, or he chose not to reveal his current views or 
     positions.

  My view of the record is similar to theirs. It is also shared by the 
respected Puerto Rican Legal Defense and Education Fund.
  Senator Schumer chaired a fair hearing for Mr. Estrada last 
September. Every Senator--Republican and Democrat--had ample time to 
ask whatever questions they wanted. I was hoping that the hearing would 
allay concerns because I have been impressed with Mr. Estrada as a 
person in meeting with him. But what I wanted to know was not Mr. 
Estrada the person, somebody who lived next door to you, but what would 
a Judge Estrada--the person sitting up at the bench when you appear 
there--how would that person be?
  When he avoided answering question after question after question, 
then I ended up with more questions than answers.
  The recent statement from Latino labor leaders makes the following 
point:

       Mr. Estrada is a ``stealth candidate'' whose views and 
     qualifications have been hidden from the American people and 
     from the U.S. Senate. Since his nomination, Mr. Estrada has 
     consistently refused to answer important questions about his 
     views and his judicial philosophy.

  These Latino leaders went on to say that it would be ``simply 
irresponsible for the Senate to put him on the bench.''
  After a thorough review, the Puerto Rican Legal Defense and Education 
Fund concluded that Mr. Estrada was not sufficiently qualified for a 
lifetime seat on the Nation's second highest court and said that his 
``extreme views should be disqualifying; that he has not had a 
demonstrated interest in or any involvement with the Hispanic community 
or Hispanic activities of any kind; and that he lacks the maturity and 
judicial temperament necessary to be a circuit judge.''
  PRLDEF said Mr. Estrada has ``made strong statements that have been 
interpreted as hostile to criminal defendants' rights, affirmative 
action and women's rights.'' They expressed concern about his 
temperament. People they interviewed about Mr. Estrada described him as 
``arrogant and elitist'' and that he ```harangues his colleagues' and 
`doesn't listen to other people,''' that he is not even tempered and he 
is ``contentious, confrontational, aggressive and even offensive in his 
verbal exchanges'' with them.
  As I said before, some of his supporters have said, if a Senator 
opposes him, that Senator is racist or anti-Hispanic.
  These claims are offensive and absurd. Well-respected leaders of the 
Hispanic community itself have raised very serious objections and 
concerns about his nomination. In fact, to say that those who vote 
against him are racist or anti-Hispanic is as false as the statements 
made last fall that those who voted against Judge Pickering were anti-
Christian.
  No one has worked harder to increase Hispanic representation on our 
courts than PRLDEF, MALDEF, and the congressional Hispanic caucus. In 
fact, they didn't begin their review of Mr. Estrada's record with the 
expectation of opposing his nomination. Instead, they started with 
their strong record of supporting more diversity on the Federal bench, 
something they have done for years, President after President, urging 
more diversity on the Federal bench. This was before the 10 Hispanics 
on the court of appeals. I know President Clinton listened to them 
because he appointed eight of those 10. They actually would have had 
three more had the Republican-controlled committee allowed them to come 
to a vote.
  Now there is all this talk about how can we possibly be stopping 
President Bush when he is trying so hard to have Latinos on the bench. 
There are 42 vacancies that have existed in the 13 circuit courts of 
appeal during President Bush's tenure. Mr. Estrada is the only Hispanic 
he has nominated. Unlike the eight that were confirmed of President 
Clinton's and the other three that he had in there, 11 that he 
nominated, President Bush has nominated one, and he had 42 chances to 
nominate. Out of those 42 chances, the only one he nominates is not 
somebody who could form a consensus within the Hispanic or non-Hispanic 
community, but he has one that is rejected by much of the Hispanic 
community, is guaranteed to be divisive. And one more time--one more 
time but consistent as always--the administration seeks to divide, not 
to unite, something that has been their hallmark.
  They didn't find any Hispanics to nominate for the four vacancies on 
the Tenth Circuit. That includes New Mexico and Colorado, both States 
with large Hispanic populations. They didn't find any Hispanics to 
nominate for the three vacancies in the Fifth Circuit, which includes 
Texas, certainly a State with a large Hispanic population, or the six 
vacancies on the Ninth Circuit. They couldn't find any Hispanics to 
nominate there, but that includes California and Arizona, certainly 
States with large Hispanic populations. There are three vacancies on 
the Second Circuit, no Hispanics, even though that includes New York 
and Puerto Rico. Certainly, they should have found some there. Or the 
Third Circuit, New Jersey and Pennsylvania, they couldn't find any 
Hispanics there to appoint.
  And we know that there are some outstanding Hispanic lawyers in each 
of those circuits. Some are sitting on the State courts doing a superb 
job where there is a record and where there would be a consensus and 
where you would have somebody who would unite rather than divide.
  In fact, there are more than 1,000 local, State, or Federal judges of 
Hispanic heritage, and out of those 1,000, for these 42 vacancies, the 
President finds one, and that one is there with no experience, no 
background as a judge, and is there solely because he has been put 
forward to carry on a particular judicial ideology.
  I don't want to leave the impression that the President sent nobody 
up here of Latino descent. He did. And a Democratic-controlled Congress 
confirmed them all. Judge Christina Armijo of New Mexico, Judge Phillip 
Marinez, and Randy Crane of Texas, Judge Jose Martinez of Florida, 
Magistrate Judge Alia Ludlum, and Jose Linares of New Jersey--they were 
all nominated. We confirmed every one of them. In fact, we just held a 
hearing on Judge James Otero of California. I told him at the end of 
the hearing that I assumed we would be confirming him very quickly. 
Actually, we would have, had the nominee had his hearing last year, had 
his paperwork been completed.

  But also, as I have said before, there are 10 Latino appellate judges 
currently seated in the Federal courts. Eighty percent of them were 
appointed by President Clinton. Even there, a number of them were 
denied Senate consideration for years while the Republicans controlled 
the Senate.
  For example, the confirmation of Judge Richard Paez to the Ninth 
Circuit took more than 1,500 days, even though he was strongly 
supported by both his home State Senators. And after Republicans 
delayed Judge Paez for 5 years, 39 voted against him.
  Judge Sonia Sotomayor is in the Second Circuit, my circuit; everybody 
agreed that she was a superb candidate, but then for month after month 
after month--we wanted to bring her up for a vote--an anonymous hold on 
the Republican side of the aisle blocked consideration--anonymous hold 
after anonymous hold.
  The irony there is that she had a strong court record. She had first 
been

[[Page S1939]]

appointed to the Federal bench by the first President Bush. He 
appointed her. She had this record. She had a unanimously well 
qualified, the highest rating possible. They stalled her and stalled 
her with an anonymous hold. Finally, the embarrassment got too much. 
And when it came to a vote, 29 Republicans voted against her.
  Now a number of the circuit court nominees President Clinton sent up 
here never even received a hearing or vote. Jorge Rangel and Enrique 
Moreno of Texas were both nominated to the Court of Appeals for the 
Fifth Circuit. President Clinton was able to find qualified Hispanics 
for the Fifth Circuit, but the Republican leadership would not allow 
them to come to a vote. And Christine Arguello of Colorado was 
nominated to the Tenth Circuit. An awful lot of President Clinton's 
judicial nominees were never even given hearings or votes. Many of them 
were qualified Hispanics, African American, or women.
  That is why during the past Congress, in the year and a half the 
Democrats were in control, we tried to restore fairness to the 
confirmation process. We tried to address the vacancies we had 
inherited. Even though those vacancies were caused because Republicans 
would not allow votes on Democratic nominees, we brought forward 
Republican nominees for the same places. Diversity has been the 
greatest strength of our Nation. That diversity of backgrounds should 
be reflected in our Federal courts, not just on the streets of our 
cities and towns. We also should accept the fact that race or ethnicity 
or gender are no substitute for the wisdom, experience, fairness, and 
impartiality that qualify someone to be a Federal judge--especially a 
Federal judge--entrusted with a lifetime appointment.

  No potential candidate for a lifetime appointment to the Federal 
courts should get a presumption of competence or entitlement. You are 
not automatically competent or entitled simply because you are 
appointed. It makes no difference which party the President is from. If 
it were otherwise, we should do away with the advise and consent clause 
of the Constitution and change it to advise or rubber stamp, or 
something like that.
  Nominees should be treated fairly, but the proof of suitability for a 
lifetime appointment rests on the nominee and on the administration. 
The Senate is not required to prove they are qualified for a lifetime 
appointment. We have to satisfy ourselves as individual Senators, as 
100 Senators, that they are qualified and suitable for this lifetime 
appointment. It is up to the nominee himself or herself and the 
administration to make the case that allows us to reach the conclusion 
that they are qualified.
  We have to look at their records, listen to their answers to the 
questions--if they will answer the questions--and if they refuse to 
answer the questions, I don't know why any Senator would think that he 
or she has an obligation to vote for this person if they will not even 
answer the question of why they are qualified, beyond a political 
connection, to a lifetime appointment on what is supposed to be an 
independent, nonpolitical Federal bench.
  Certainly, we know the benefits of diversity and how it contributes 
to achieving and improving justice in America. That is fine. We should 
look at that and the President should. All of these questions should be 
looked at, and the answers to the questions should be looked at. But if 
all we have are questions and no answers, where do we go?
  As Antonia Hernandez wrote in the Wall Street Journal:

       The fact that a nominee is Latino should not be a shield 
     from full inquiry, particularly when a nominee's record is 
     sparce, as in Mr. Estrada's case.

  She continued:

       It is vital to know more about a nominee's philosophies for 
     interpreting and applying the Constitution and the laws.

  It was in connection with the nomination of Judge Dennis Shedd, a 
white male and former staffer to Senator Thurmond, that Republicans 
argued he would bring diversity to the Fourth Circuit. Maybe that is 
their sense of diversity. I suspect it is not the sense of many others. 
Be that as it may, each Senator has to make up his or her mind about 
the qualifications. I defy any Senator to make up his or her mind 
satisfactorily when they don't have a record before them or answers to 
questions.
  The Fourth Circuit was a Federal circuit court that had the longest 
history without an African-American judge, speaking of diversity. It 
wasn't until President Clinton's recess appointment of Judge Roger 
Gregory that the Fourth Circuit was finally desegregated.
  The reason we were not able to get him through before was the 
Republican majority used blue slips and secret objections to block the 
integration of that court for years during the Clinton administration 
as the Clinton administration nominated one qualified African American 
after another. He was accorded a hearing, but they did say Judge Shedd 
would bring diversity to that court. In that regard, I am glad that 
common sense came out, and I applaud the two Senators from Virginia--
Republican Senators--for convincing the President to renominate Judge 
Gregory, this outstanding African-American jurist. I commend both 
Senator Allen and Senator Warner for standing up for him. When he came 
to the Senate floor and we had a rollcall vote on him, every Senator, 
except one, voted for him. It shows the quality of the nominee, but 
also it is a strong signal to that court that here is a judge who has 
been looked at by both Republicans and Democrats in 1990, and 100 
Senators came to the conclusion that he was qualified.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter from the Congressional Hispanic Caucus and a CHC civil rights 
task force scorecard.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                               Washington, DC, September 25, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Judiciary Committee, U.S. Senate, Washington, DC.
       Dear Mr. Chairman: On behalf of the Congressional Hispanic 
     Caucus (CHC), we wish to inform you that the CHC has decided 
     to oppose Miguel Estrada's nomination to the United State 
     Court of Appeals for the District of Columbia Circuit. After 
     reviewing Mr. Estrada's record and meeting with him in 
     person, we have concluded that he fails to meet the CHC's 
     evaluation criteria for endorsing judicial nominees.
       As you know, the judicial nomination process is important 
     to the CHC because we believe that our nation's courts should 
     reflect the diversity of thought and action that enrich 
     America. Earlier this year, we launched the Hispanic 
     Judiciary Initiative to further formalize our involvement in 
     this issue by establishing a set of evaluation criteria and 
     an internal process for endorsing nominees. We hope that this 
     initiative will allow us to continue our work to ensure fair 
     treatment of Latino judicial nominees and tackle the lack of 
     diversity in the federal judiciary.
       In evaluating Mr. Estrada, we considered not only his 
     honesty, integrity, character, temperament, and intellect, 
     but also his commitment to equal justice and advancement 
     opportunities for Latinos working in the field of law. 
     Because of the nature of the CHC's mission and the important 
     role that the courts play in achieving that mission, in order 
     to support a judicial nominee the CHC requires that he or she 
     has a demonstrated commitment to protecting the rights of 
     Latinos through his or her professional work, pro bono work, 
     and volunteer activities; to preserving and expanding the 
     progress that has been made on civil rights and individual 
     liberties; and to expanding advancement opportunities for 
     Latinos in the law profession. On this measure, Mr. Estrada 
     fails to convince us that he would contribute under-
     represented perspectives to the U.S. Court of Appeals for the 
     District of Columbia Circuit.
       As stated by Mr. Estrada during his meeting with us, he has 
     never provided any pro bono legal expertise to the Latino 
     community or organizations. Nor has he ever joined, 
     supported, volunteered for or participated in events of any 
     organization dedicated to serving and advancing the Latino 
     community. As an attorney working in government and the 
     private sector, he has never made efforts to open doors of 
     opportunity to Latino law students or junior lawyers through 
     internships, mentoring or other means. While he has not been 
     in the position to create internships or recruit new staff, 
     he never appealed to his superiors about the importance of 
     making such efforts on behalf of Latinos. Furthermore, Mr. 
     Estrada declined to commit that he would be engaged in 
     Hispanic community activities once appointed to the bench or 
     that he would pro-actively seek to promote increased access 
     to positions where Latinos have been traditionally under-
     represented, such as clerkships.
       Mr. Estrada shared with us that he believes being Hispanic 
     would be irrelevant in his day-to-duties on the court, which 
     leads us to conclude that he does not see himself

[[Page S1940]]

     as being capable of bringing new perspectives to the bench. 
     This is deeply troubling since the CHC's primary objective in 
     increasing ethnic diversity of the courts is to increase the 
     presence of under-presented perspectives.
       Mr. Estrada's limited record makes it difficult to 
     determine whether he would be a forceful voice on the bench 
     for advancing civil rights and other protections for 
     minorities. He has never served as a judge and has not 
     written any substantive articles or publications. However, we 
     did note that in responding to inquiries about case law, Mr. 
     Estrada did not demonstrate a sense of inherent 
     ``unfairness'' or ``justice'' in cases that have had a great 
     impact on the Hispanic community.
       The appointment of a Latino to reflect diversity is 
     rendered meaningless unless the nominee can demonstrate an 
     understanding of the historical role courts have played in 
     the lives of minorities in extending equal protections and 
     rights; has some involvement in the Latino community that 
     provides insight into the values and mores of the Latino 
     culture in order to understand the unique legal challenges 
     facing Latinos; and recognizes both the role model 
     responsibilities he or she assumes as well as having an 
     appreciation for protecting and promoting the legal rights of 
     minorities who historically have been the victims of 
     discrimination.
       Based on the totality of the nominee's available record and 
     our meeting with him, Miguel Estrada fails to meet the CHC's 
     criteria for endorsing a judicial nominee. In our opinion, 
     his lack of judicial experience coupled with a failure to 
     recognize or display an interest in the needs of the Hispanic 
     community do not support an appointment to the federal 
     judiciary. We respectfully urge you to take this into account 
     as you consider his nomination to the U.S. Court of Appeals.
           Sincerely,
     Silvestre Reyes,
       Chair, Congressional Hispanic Caucus
     Charles A. Gonzalez,
       Chair, CHC Civil Rights Task Force.
                                  ____


 CONGRESSIONAL HISPANIC CAUCUS HISPANIC JUDICIARY INITIATIVE--SCORECARD
                FOR CIRCUIT COURT NOMINEE MIGUEL ESTRADA
------------------------------------------------------------------------
                                     Mr. Estrada's
       Evaluation criteria              record            Conclusion
------------------------------------------------------------------------
Commitment to equal justice for   No record.........  ..................
 Latinos.
Commitment to protecting Latino   None..............  Failed.
 interests in the courts.
Support for Congress' right to    No record.........  ..................
 pass civil rights law.
Support for individuals access    Unclear...........  ..................
 to the courts.
Support for Latino organizations  No................  Failed.
 or causes through pro bono
 legal expertise.
Support for Latino organizations  No................  Failed.
 or causes through volunteerism.
Support for Latino law students   No................  Failed.
 or young legal professionals
 through mentoring and
 increasing internship
 opportunities.
Commitment to increase Latinos'   No................  Failed.
 access to clerkships once on
 the bench.
------------------------------------------------------------------------

  Mr. LEAHY. Mr. President, before my voice goes, I see the 
distinguished Senator from Utah in the Chamber. Obviously, he will be 
recognized next. Then I hope we will go to Senator Schumer. I will have 
more to say, but the spirit is more willing than the vocal cords.
  I yield the floor.
  Mr. SCHUMER. Mr. President, will the Senator yield for a unanimous 
consent request?
  Mr. HATCH. I yield to Senator Schumer for a unanimous consent 
request.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that immediately 
after Senator from Utah finishes, I be recognized for a period of time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I thought I would make some points here 
because the distinguished Senator from Vermont is mistaken in a number 
of accusations he makes.
  I wish to list the following Hispanic groups or Hispanic-owned 
businesses that express their support for Miguel Estrada. One of the 
oldest Hispanic organizations in the country is the League of Latin 
American Citizens. It is well known, well respected, and bipartisan. 
They are firmly behind Miguel Estrada. Next is the U.S. Hispanic 
Chamber of Commerce; Hispanic National Bar Association; Hispanic 
Business Roundtable; National Association of Small Disadvantaged 
Business; Mexican American Grocers Association; ATL, Inc.; PlastiComm 
Industries, Inc.; Phoenix Construction Services; Hispanic Chamber of 
Commerce of Greater Kansas City; eHEBC Hispanic Engineers Business 
Corporation; Hispano Chamber of Commerce de Las Cruces; Casa Del 
Sinaloense; Republican National Hispanic Assembly; Hispanic Engineers 
Business Corporation; Hispanic Contractors of America, Inc.; and the 
Charo-Community Development Corporation.

  That is to mention a few. There are dozens of organizations that 
support Miguel Estrada. As anybody would understand, there is a lot of 
pride in Hispanic organizations for this type of a nominee, who has 
achieved so much in his life, and has done it basically on his own and 
has achieved the heights that very few lawyers and people have 
achieved, who has not had a glove laid on him in our committee 
hearing--other than complaints that they don't know his philosophy. My 
goodness, they have had almost 2 years to learn his philosophy and they 
could have asked any question, and they did ask a lot of questions.
  Let me say there is a double standard here on judicial 
qualifications. On January 30, 2003, the Senate Judiciary Committee 
voted 10 to 9 to approve the nomination of Miguel Estrada to the U.S. 
Court of Appeals for the DC Circuit. On January 24, 2003, Senator Leahy 
questioned Mr. Estrada's qualifications, saying he ``has no judicial 
experience. He has no publications since law school.''
  He is not a distinguished legal scholar or professor of law.
  I might add that in 1997, the distinguished Senator from Vermont 
praised Merrick Garland--as did I, by the way; I supported him 
strongly; he was another DC Circuit nominee with no judicial 
experience, no professional experience, no publications--as ``highly 
qualified for this appointment'' and someone who would make ``an 
outstanding Federal judge.'' That is in the Congressional Record of 
March 19, 1997, at S2518.
  That is what was said about Merrick Garland. I agree with Senator 
Leahy on that point. He was an excellent candidate, an excellent judge. 
I supported him strongly and broke down barriers to make sure he could 
become a judge on the Circuit Court of Appeals.
  Mr. Estrada's and Mr. Garland's credentials, or should I say Judge 
Garland's credentials, were exactly the same at the time. Let me go 
down through a list of credentials.
  The age of the nominee: Miguel Estrada was 41. That was 2 years ago 
almost; Merrick Garland was 44.
  Phi Beta Kappa: Yes for Miguel Estrada; yes for Merrick Garland.
  Harvard Law School, magna cum laude: Yes for Miguel Estrada; yes for 
Merrick Garland.
  Editor of the Harvard Law Review: Yes for Miguel Estrada; yes for 
Merrick Garland.
  Law clerk, U.S. Court of Appeals, the Second Circuit: Yes for Miguel 
Estrada; yes for Merrick Garland.
  Law clerk of the U.S. Supreme Court: Yes for both of them.
  Private practice: 7 years for Miguel Estrada; 7 years for Merrick 
Garland.
  Assistant U.S. attorney: 2 years for Miguel Estrada; 3 years for 
Merrick Garland.
  U.S. Department of Justice: From 1992 to 1997 for Miguel Estrada; 
from 1993 to 1997 for Merrick Garland who now sits on the DC Circuit 
Court of Appeals.
  Bipartisan support: Yes for Miguel Estrada; yes for Merrick Garland.
  Race: Miguel Estrada is Hispanic. Merrick Garland is white.
  Days from nomination to Judiciary Committee approval: 631 days for 
Miguel Estrada; only 100 for Merrick Garland. They are not quite equal 
there.
  Seven current Judiciary Committee Democrats served in the Senate in 
1997. Seven of them are current Democrats on the committee. Every one 
of those Democrats voted for Merrick Garland, and every one of them 
voted against Miguel Estrada--all seven of them.
  Let me say that the statement of Senator Kennedy, our distinguished 
former chairman of the committee way back when, about Merrick Garland 
in the Congressional Record of March 19, 1997 at S2518 I think applies 
to Miguel Estrada. This is our distinguished colleague from 
Massachusetts:

       No one can question Mr. Garland's qualifications and 
     fitness to serve on the DC Circuit. He is a respected lawyer, 
     a former Supreme Court law clerk, a partner at a prestigious 
     law firm, and has served with distinction in the Department 
     of Justice under both Republican and Democratic 
     administrations. Support for him is bipartisan.

  I think that statement in every detail applies to Miguel Estrada. I 
do not think there is any question about it.
  What is going on here? What is wrong with this tremendous lawyer who 
has

[[Page S1941]]

made it on his own under very trying circumstances; who has an ABA 
rating of unanimously well qualified; who has argued 15 cases before 
the U.S. Supreme Court--I am not sure Merrick Garland did that, 
although I think Merrick Garland is a terrific individual--Columbia and 
Harvard Law, magna cum laude; editor of the Harvard Law Review, 
something that is about as prestigious as it gets in law school; a law 
clerk for U.S. Supreme Court Justice Kennedy; Assistant Solicitor 
General not only for George Bush I, but for President Clinton as well, 
praised by the person who supervised him, who later, not knowing we had 
all of those praises, besmirched him. But it is pretty hard to go 
against what he put in writing way back when, and I will get into that 
before we are through.

  I have been listening very carefully to some of the comments of my 
distinguished friend from Vermont, and I do not believe that bringing 
up the names of Clinton nominees who happen to be of Hispanic descent 
has anything to do with how this Senate should treat Mr. Estrada. 
However, since my Democratic colleagues have criticized my treatment of 
these nominees when I was chairman, I feel compelled to set the record 
straight.
  The fact is, under Republican leadership, most of President Clinton's 
Hispanic nominees--14, to be exact--were, indeed, confirmed. Although 
my Democratic colleagues would have you believe something more 
nefarious was at work, the fact is the nominations of Jorge Rangel and 
Enrique Moreno for the Fifth Circuit stalled because there was an utter 
failure of consultation by the Clinton White House. There is no 
question about that. And neither sitting Senator in Texas was willing 
to return their blue slips because there was no consultation, which is 
a requisite.
  My colleagues on the other side are certainly raising consultation 
questions all the time about this White House, and we have directed the 
White House to consult. Unfortunately, some of them, I think, take the 
attitude that unless the White House chooses who they want, it is not 
consultation. That is not a good definition of consultation.
  Tenth Circuit nominee Christine Arguello has been brought up. She was 
not nominated until July of 2000. It was way too late in the session to 
effectively move her nomination under those circumstances. We did not 
receive her questionnaire until August of 2000 and, if my records are 
correct, I do not believe we ever did receive her FBI file. So to raise 
that is sophistry at best.
  It is unfortunate for the nominee when he or she is not confirmed 
because of these obstacles, but none of these face Mr. Estrada. As we 
all know, he has been pending for 2 years now and has been rated 
unanimously well qualified, the highest rating by the American Bar 
Association.
  As for Ninth Circuit Court nominee Richard Paez, I was a vocal 
supporter of Judge Paez in the face of harsh criticism from some in my 
own party. I was one of two Republicans to vote for him in this 
committee, and I led the effort on the Republican side to get him 
confirmed on the floor. I believe my Democratic colleagues know this, 
so I take exception when they cite his name as an example of my alleged 
stonewalling on Clinton nominees. There was none.
  Let me talk about the hearing testimony of Mr. Estrada. Mr. Estrada 
repeatedly answered the questions that were put to him. Let me give 
some examples.
  Mr. Estrada testified he was committed to following the precedents of 
higher courts faithfully and giving them full force and effect, even if 
he disagrees with them and even if he believes such precedents are 
erroneous. That is pretty important testimony, and it is testimony that 
should be in his favor.
  When asked how he would decide cases presenting an issue for which 
there was no controlling authority, Mr. Estrada testified:

       When facing a problem for which there is not a decisive 
     answer from a higher court, my cardinal rule would be to 
     seize aid from anyplace I could get it.

  He testified this would include related case law and other areas of 
legislative history and views of academics.
  When asked if he sees the local process as a political game, Mr. 
Estrada testified: The first duty of a judge is to self-consciously put 
that aside and look at each case by withholding judgment, with an open 
mind, and listening to the points. I think the job of a judge is to put 
all that aside and to the best of his human capacity to give a judgment 
based solely on the arguments on the law.
  Miguel Estrada said: I will follow binding case law on every case, 
and I don't even know if I can say whether I concur in the case or not 
without actually having gone through all the work of doing it from 
scratch. He further says: I may have a personal moral philosophical 
view on the subject matter, but I undertake to you that I would put all 
that aside and decide cases in accordance with binding case law, and 
even in accordance with the case law that is not binding but seems 
instructive on the area, without any influence whatsoever from a 
personal view I may have about that subject matter.
  Mr. President, I could go on and on. What is clear from this 
testimony is Mr. Estrada will be a judge who sets aside his personal 
convictions, whatever they may be, and follow the law. This is 
precisely the type of a person we want on the Federal bench.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the senior Senator from New York 
for permitting me to go for 5 minutes.
  Mr. SCHUMER. Mr. President, I ask unanimous consent before I speak 
the Senator from Pennsylvania be given 5 minutes. I also ask unanimous 
consent Senator Kennedy be allowed to speak at 5:40.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to support the 
nomination of Miguel Estrada. We have heard a lot about his academic 
record. The Senator from New York knows what a taste of being magna cum 
laude at Harvard is like. He is a Harvard graduate himself. I know what 
it is like to be magna cum laude of Harvard, too, and the Phi Beta 
Kappa standing from Columbia and magna cum laude there, and editor of 
the Harvard Law Review.
  These academic credentials are unsurpassable. Fifteen cases argued 
before the Supreme Court, extraordinary. Clerk for the U.S. Supreme 
Court Justice--again, an ``A+'' rating. There could be no doubt about 
the qualifications of this man.
  Now, there is an objection raised that not enough is known about his 
philosophy. What is really being attempted here is to impose a test 
that you have to be in philosophical agreement in order to get the vote 
of a Senator for confirmation. I suggest that is an inappropriate test. 
It is not the traditional test. It is going much too far.
  When Justice Scalia was confirmed, he would not even give his opinion 
on whether he would uphold Marbury v. Madison. There have been many 
Supreme Court nominees and circuit court nominees with whom I have 
disagreed philosophically on major points, but I have not withheld my 
vote in confirmation for Chief Justice Rehnquist, Justice Scalia, 
Justice Kennedy and Justice Thomas because I did not like their views 
on the issue of choice.
  If a nominee is outside of the mainstream, that is one thing. I did 
not hesitated to oppose the nomination of Judge Robert Bork, where he 
was outside of the mainstream, even though he was nominated by my 
party, where he articulated the view of original intent, which simply 
could not be comprehended, and did not accept judicial review. He said 
absent original intent, there is no judicial legitimacy, and absent 
judicial legitimacy there cannot be judicial review. That is beyond the 
mainstream.
  No one can contend Miguel Estrada is beyond the mainstream. If there 
are specific objections, let's hear them. But we have not heard them.
  Then you have the business about the refusal to turn over his 
memoranda when he was in Solicitor General general's office, and you 
have the letter from seven ex-Solicitors General, which I ask unanimous 
consent to have printed in the Record--both Democrat and Republicans.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page S1942]]


                                       Wilmer, Cutler & Pickering,
                                    Washington, DC, June 24, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, 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 of 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 and 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 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 
     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 sacrified in the process.
           Sincerely,
                                                   Seth P. Waxman,
     On behalf of
     Walter Dellinger,
     Drew S. Days, III,
     Kenneth W. Starr,
     Charles Fried,
     Robert H. Bork,
     Archibald Cox.

  Mr. SPECTER. It is absolutely chilling to the operation of the 
Solicitor General's office or the operation of any governmental office 
with lawyers working to say their work product, their views, will be 
subject to review and scrutiny if they are later nominated to some 
judicial position.
  I think it boils down to--I will not call the request for the 
opinions of the Solicitor General's office a red herring; that could be 
a little too harsh--it certainly is a subterfuge. It is not what they 
are really looking for. They are looking for an excuse.
  The news reports today are that the Democrats plan a filibuster. That 
is the headline: ``Democrats Plan Filibuster on Estrada Nomination.'' 
If that is so, the Senate is going to come to a grinding halt. If 
Miguel Estrada cannot be confirmed, then I doubt that anybody can be 
confirmed. We may be locked in debate on this matter--I heard an 
estimate of 3 months at lunch; that may be an understatement.
  I don't think the American people are going to tolerate this. There 
has been much too much judicial politics. Republicans are as guilty of 
it as are the Democrats. When President Clinton was in office and 
Republicans controlled the Senate, nominations were blocked 
inappropriately. I was prepared to cross party lines where I thought it 
was justified. Now that we have a Republican in the White House and the 
Democrats have controlled the Judiciary Committee for most of the last 
2 years, the shoe is on the other foot and there have been 
inappropriate blocking of nominees.
  The only filibuster which we can find is the one on Abe Fortis for 
Chief Justice of the United States Supreme Court, which is hardly a 
judgeship for the court of appeals.
  I say to my colleagues on the other side of the aisle, the Democrats 
on the Judiciary Committee, and the Democrats generally, we have to 
come to some accommodation. We have to come to a judicial protocol so 
we consider the issues on the basis of merit and qualification without 
politicizing and without looking for people who agree with us 
philosophically.
  I may come back to speak later, but I wanted to speak at an early 
point in this proceeding because of my participation in the 
confirmation hearings of some seven Supreme Court nominees and hundreds 
of lower Federal court nominees. I hope we will take Estrada out of 
politics and confirm him.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, this is going to be a long debate, 
whatever happens. I very much appreciate the sincere concerns of my 
colleagues from Utah and Pennsylvania.
  I say to my friend from Pennsylvania before he leaves, he asked, if 
Miguel Estrada cannot get confirmed, who can? I, for one, have voted 
for 96 of the 102 judges President Bush has nominated. We passed over 
100 of them.
  There seems to be an idea on the other side if we oppose a single 
judge we are totally blocking the President's program. I argue just the 
opposite. I argue to my friend, as he well knows because he knows the 
Constitution better than just about anyone else in this Chamber, with 
maybe the exception of our good friend from West Virginia, the Founding 
Fathers wanted debate. They wanted the Senate to have a role. Read the 
Federalist Papers. That is how it was for many years.
  To sum up, the White House has started to nominate ideological 
nominees--not like President Clinton, not like the first President 
Bush--but when we try to examine the ideology of these nominees, that 
is wrong. We do virtually no moderates before us. Everyone is from 
conservative, to way out of the mainstream, and we have voted for most 
of the conservative judges. Let's be honest about it. This debate was 
not started by Democrats in the Senate. This debate was started by a 
White House that is intent on changing the character of the Federal 
bench, to go way beyond what is the mainstream of America. Everyone 
will agree, Justice Scalia and Justice Thomas are the two most 
conservative judges on the court. President Bush said it in his 
campaign. He said: I will nominate Justices like Scalia and Thomas.

  That is not saying moderation. He promised the American people 
moderation when he ran. But when it comes to the article III section of 
Government, we don't see a drop of moderation.
  We will continue to make this argument because we believe we are 
defending the Constitution. We are doing just what James Madison and 
John Jay and Alexander Hamilton and all of the great writers of this 
Constitution wanted us to do, which is have some influence on the 
article III section of Government.
  I am going to speak at some length, which is not what I usually do 
here. I usually say I think you can say everything in 5 or 10 minutes. 
But this issue is so important to me that I intend to be on the floor 
here today for a period of time, and regularly after that.
  I rise in opposition to the nomination before us today. Mr. Estrada 
has been nominated to a lifetime appointment, a lifetime seat on the DC 
Circuit, the Nation's second most important court. If confirmed, this 
42-year-old man will spend the next half century making important 
decisions that will affect our children, our grandchildren, our great-
grandchildren, and generations beyond. If we vote to confirm Mr. 
Estrada, there is no going back. There is no opportunity to look at 
what he does in his first years as judge and reconsider. The vote here 
is final. If he is confirmed, we are all going to have to live with the 
consequences for decades to come.
  So this is not a trivial matter. This is not a trifling matter. This 
is one of the most important matters that comes before us. The ability 
to ratify or reject a President's nomination to a lifetime appointment 
in article III, the third branch of Government, is a solemn obligation. 
It is one that should not be taken lightly. To rush through the 
nomination, to not have questions fully answered and explored, does 
violation to the very Constitution that we all revere. Yet that is what 
the other side is asking us to do.
  The Senate has a solemn, almost sacred duty when evaluating 
applicants for such powerful posts. I will quote my good friend from 
Utah, Senator Hatch:

       The Senate has a duty not to be a rubberstamp.

  Those are his words. That is every bit as true today as it was when 
he uttered them.

[[Page S1943]]

  The Founding Fathers, in my opinion--not just mine, almost 
everybody's--were really quite brilliant in devising a system of checks 
and balances. When it came to judicial nominations, they had a robust 
debate. For a good period of time at the Constitutional Convention they 
were considering vesting all the power in the Senate. There was a 
period where they considered vesting all the power in the President. 
They realized, as they did with most matters, that our country was best 
off with a system of shared power.
  The Framers gave the President the power to select nominees but gave 
the Senate coordinate responsibilities to advise the President on whom 
to nominate, and to decide whether the nominees deserve confirmation. 
By and large, the system has worked well for over 200 years. For those 
of us who revere the Constitution and who believe in the rule of law, 
it is a beautiful work of art.

  I believe to this day what was said when America was founded, that we 
are God's noble experiment. We still are. That is why the debate today 
and in the following weeks has so much vitality. For this beautiful 
work of art to maintain its beauty and brilliance, the Senate must hold 
up its end of the bargain. We have a duty, a responsibility, an 
obligation to the judiciary, to the Constitution, and, yes, to the 
American people, to carefully evaluate these nominees and decide 
whether they merit confirmation.
  This cannot be a rote process where the President sends us names and 
we just say ``OK,'' without undertaking an independent evaluation. As 
we hear so often from Senator Byrd, the keeper of tradition in this 
body, we have a duty to be vigilant defenders of constitutional 
principles and the Senate's role in checking executive power. For the 
Senate to retain its historical role in our system of government, we 
must live up to the standards set by those who came before us and 
ensure that we have balance in Government.
  Too often, debates around here devolve into rancor and partisan 
backbiting. Too often in the past, debates involved personal attacks on 
people. Because we don't like a nominee, someone goes back and finds 
they smoked marijuana when they were in college, or they took out the 
wrong kind of movie when they were a young man or woman. That demeans 
the process.
  To have a full debate and a fulsome discussion with the nominee about 
how he or she feels about important issues such as the first amendment 
and the second and the fourth and the commerce clause and the 
sovereignty clause and the right to privacy is not simply fun. It is 
not simply optional. It is deeply and solemnly necessary to uphold the 
will of the Founding Fathers, to uphold the very structure of the 
Government we revere. We should focus on facts in what we do and, 
equally important, on what we know and, equally important to this 
debate, what we don't know about this nominee.
  When a nominee is seeking such a powerful post, this lifetime 
position on the Nation's second highest court, I believe the nominee 
has an obligation to answer questions. I believe the nominee has a duty 
to tell us what he thinks about the law, how he views vexing legal 
questions of the day, and to share with us his approach to the 
Constitution and his judicial philosophy. These are not only reasonable 
areas of inquiry, they are urgent and important areas of inquiry. We 
cannot be expected to undertake our constitutional duties without 
answers to these questions.
  In the words of Mr. Dooley, ``this ain't beanbag.'' This isn't fun or 
a political game. This isn't trying one-upmanship. This goes to the 
very sacred obligation each of us has, when we take that oath of office 
upon our election or our reelection.
  I know my friends on the other side of the aisle agree with me on 
this fundamental view. While I expect they will take to the floor and 
denounce the inquiries we have made, if we go back and look at the 
questions they asked--my friend from Utah and all the members of the 
Judiciary Committee, the questions they asked of President Clinton's 
nominees--they will see our questions pale in comparison. The questions 
we asked were exactly the kinds of questions the Founding Fathers 
expected us to ask to ensure balance in our system of government and 
justice. We asked nearly 100 questions of this nominee and he refused 
to answer all too many of them. He refused to answer most of the 
important ones. It is his right to duck or dodge or hide behind legal 
subterfuge. That he can do. But that doesn't mean we have to confirm 
him, plain and simple.

  I have sat through a good number of judicial hearings in my years in 
the Senate. I followed many more in my career in the House. I have 
never seen such an incredible sense of avoidance and of ultimate 
stonewalling in any confirmation process as I saw when Miguel Estrada 
came before our committee. I chaired that hearing, as my good friend 
from Utah will remember, and one exchange we had was particularly 
memorable to me. Mr. Estrada kept saying, when we asked him about his 
views, that he didn't want to discuss it because future cases might 
come before him.
  I'm a lawyer. Many of us are lawyers. We know, when you are asked 
what's your view of the first amendment, and you say: Well, a case 
might come before me on the first amendment and I can't discuss it, 
that is not the appropriate response. Certainly, if we were to ask Mr. 
Estrada how he might rule on, say, WorldCom and the suits against 
WorldCom, or on an existing case before the lower courts, he would have 
a right and an obligation not to answer that question. But to say he 
cannot discuss his views of the expansiveness or the narrowness of the 
commerce clause because eventually he will have to rule on the commerce 
clause makes a mockery of every judicial hearing we have had or will 
have.
  But I kept trying. I decided if Mr. Estrada would answer nothing 
about his prospective views, why not look at what happened in the past.
  So I asked him to discuss cases that by definition could never come 
before him if he were confirmed to a lifetime seat on the District of 
Columbia Circuit. I asked him about Supreme Court cases which are 
already decided. These cases are already the law of the land and can be 
reconsidered only by the Supreme Court. So there is no fear that a 
nominee would be doing something unethical by taking such a position. 
There is not only nothing wrong with discussing these cases, but there 
is a lot right about discussing these cases.
  Answers to these questions will give us insight as to what kind of 
judge he will be:
  Whether the nominee will fairly assess the claims of average people 
who want their basic rights vindicated in Federal courts;
  Whether the nominee will approve the administration's environmental 
rollbacks against the interests of people who would protect the 
environment;
  Whether the nominee has a general inclination to side with business 
interests or labor interests;
  And whether this nominee basically supports States' rights or the 
rights of individuals within those States.
  We have seen in the Supreme Court in the last decade these decisions 
being carefully discussed by the Justices with great differences of 
opinion.
  These are the things the public wants to know. These are the things 
that determine, in my judgment, whether somebody should become a judge.
  Everyone in this Chamber will come to a different conclusion once 
they know those answers. People will weigh answers differently. That is 
fair, and that is good.
  But there is no question, my colleagues, that we should know 
something about how this nominee views the first amendment, the second 
amendment, the fourth amendment, the 11th amendment, and the 14th 
amendment before we just hand him such an important job.
  We should know whether the nominee has an expansive view of the 
commerce clause or a narrow view; an expansive right to privacy or a 
narrow view.
  These are the issues that are the sinew, that are the warp and woof 
of what our Republic is about. When the Founding Fathers in their 
beautiful and infinite wisdom decided that they would be careful with 
the one unelected branch of government--article III section of 
Government, the Judiciary--they knew what they were doing. They didn't 
want to vest too much power in any one person--the

[[Page S1944]]

President, any Member of this body--and simply appoint judges, because 
they knew with a lifetime appointment, which in its wisdom insulates 
people from the vicissitudes of political pressures--that was too 
serious and solemn a happening to just pass off to one person.
  So the questions we hoped Mr. Estrada would answer honestly and 
forthrightly are the kinds of questions the American people depend on 
us to ask. These are the kinds of questions that should be answered 
before we vote on a nominee. Realizing Mr. Estrada would not answer 
anything about the future, despite the fact that countless others 
have--it hasn't interfered with their ability to be fine judges--I went 
back and asked him, Mr. Estrada, to answer questions about the past so 
we might get some feeling for his views. I asked him to name any one 
Supreme Court case from the history of all Supreme Court jurisprudence 
he was critical of. To the surprise of myself and some on the 
committee, he even declined to do that.
  I asked him to tell me his views on a particular case I disagree 
with, Buckley v. Valeo. I don't think a millionaire has an absolute 
first amendment right to spend all the money he or she wants on putting 
on the same political commercial 411 times. I don't think it is what 
the Founding Fathers intended. There are two views on that. The Court 
disagrees with me. But I wanted to know Mr. Estrada's view. No matter 
how many times I tried, no matter how many opportunities he was given, 
Mr. Estrada insisted he could not state a view on a single court case--
not Korematsu, not Dred Scott, not Plessy 1v. Ferguson, not Brown v. 
Board of Education, not Miranda v. Arizona, not Griswold v. 
Connecticut, not Roe v. Wade, not a single case.
  Mr. HATCH. Mr. President, will the Senator yield for one question?
  Mr. SCHUMER. I would be happy to yield.
  Mr. HATCH. Is it not true that the question the Senator asked was 
whether he could name three cases in the last 40 years and not in all 
of jurisprudence? The specific question was in the last 3 years, and he 
said there were cases. But that is a little different than saying in 
all the jurisprudence.
  Mr. SCHUMER. I say to my colleague, if I might reclaim my time, I 
first asked him about the first 40 years. And when he refused to answer 
that, frustrated as I was, I said, How about in all of jurisprudence?
  Mr. HATCH. Could I just ask the question again? All I wanted to make 
sure of was the Senator said, Please tell us what three cases from the 
last 40 years of the Supreme Court jurisprudence you are most critical 
of, and just give me all of the sentences and as to why for each one. 
Then Mr. Estrada said, Senator, I think there are cases that I have 
been critical of that I can think of--and then he goes on to say more. 
Then you asked again on page 210, With all your legal background and 
legal work, you can't think of three or even one single case that the 
Supreme Court has decided that you disagree with. And then Mr. Estrada 
said he wasn't sure he was even in a position to disagree, et cetera. 
Then on page 211, you then asked this question.
  Mr. SCHUMER. Could I reclaim my time?
  Mr. HATCH. Let me finish this one last question. You don't know a 
single case in the last 40 years? I will tell you that for me, I think 
Buckley v. Valeo. But all I am trying to say is, Isn't it true that in 
the last 40 years, not in all jurisprudence.
  Mr. SCHUMER. I will say to my colleague, reading from the transcript, 
I asked 40 years first. And then I said to him, So with all of your 
legal background and your immersion in the legal world, you can't think 
of three or even one single case that the Supreme Court has decided 
that you disagree with? I didn't say in the last 40 years at that 
point.
  Mr. HATCH. On the next page, 40 years.
  Mr. SCHUMER. I asked both, as I said to my colleague. And he didn't 
say. And I will argue to my colleague--I will not yield on that point--
I asked him about 40 years. And then I asked him about it permanently 
on page 211. But I will say this.
  Mr. HATCH. Will the Senator yield again?
  Mr. SCHUMER. I will say this. I think it is amazing he couldn't name 
a case he disagreed with in 40 years alone. I don't think that is 
really the point here, whether it is 40 years or all the way back in 
jurisprudence. But I will continue with my remarks, and then I will 
yield for a question.

  (Ms. COLLINS assumed the chair.)
  Mr. HATCH. Will the Senator yield for one last question?
  Mr. SCHUMER. I will yield for one last question.
  Mr. HATCH. That is on the one page, the first page limited to 40 
years, and on the second page it was more broad. But it wasn't clear 
that it meant all of jurisprudence. On the next page, again, 40 years.
  That is just my point. All I am saying is in the heat of the moment 
someone may not be able to conjure up some cases. But be that as it 
may, he indicated he had some he was critical of. But I think the 
Supreme Court advocate, not knowing whether he will be confirmed, he 
probably wasn't about to antagonize anyone on the Court.
  Mr. SCHUMER. That is for each of us to judge, whether a nominee who 
is worried about his confirmation should not speak about any case he 
might disagree with, whether it be 40 years or in all of jurisprudence.
  But I just wanted to say, if you look at the record, it is clear. I 
gave him many different opportunities to answer that question. I asked 
the question in different ways. I came back to it. And Mr. Estrada 
didn't answer. To the average citizen who looked at it, he was 
stonewalling. He was just not giving answers that every law professor, 
or law student, or lawyer when asked would venture a guess at.
  Let me tell you why many of us think he refused to answer the 
question. I would like my colleagues to hear this, because I don't 
think this has come out. Mr. Estrada stonewalled because that is the 
game plan he was given by the Justice Department and the White House. 
They told him not to answer questions. That was what they told him to 
do. Because again, they know Mr. Estrada's views. They do not want 
anybody else to know, because I believe if they were revealed, they are 
so far out of the mainstream he would not be approved. I don't know if 
that prediction will prove to be true. Maybe we will know, if we find 
the views on the issue.
  But there is no secret to this. This has been the game plan of those 
who have sought to stack the judiciary to the far right side for years.
  Let me review with my colleagues an article in the Legal Times which 
talked about a meeting that Judge Laurence Silberman--a leading 
conservative judge, a very erudite man, but he shared his strategy with 
prospective judicial nominees at a Federalist Society meeting just last 
year.
  The Federalist Society is the breeding ground for most of the States 
rights agenda, supporting nominees the administration is sending us. It 
is no secret that Federalist Society members are among the most active 
in the White House and Justice Department in choosing judges. I will 
let the American people judge for themselves, but most believe the 
Federalist Society is not moderate and not conservative but way over to 
the hard right.
  Judge Silberman appeared along with Senator Kyl and Fred Fielding, 
President Reagan's counsel, to discuss with the group how to get these 
out-of-the-mainstream nominees on the bench, because they realized if 
they told the truth, they would have a difficult time because America 
is not far left or far right but moderate.
  If President Clinton tried to stack the bench with far left nominees, 
we heard howls. He did not. But that is just what President Bush is 
trying to do. President Clinton, as I mentioned, nominated mostly 
partners in law firms and prosecutors, not many legal aid society 
people, not many ACLU advocates. President Bush is not doing the mirror 
image himself.
  In any case, this is what was reported about that meeting. And I am 
quoting from an article in the Legal Times:

       President George W. Bush's judicial nominees received some 
     very specific confirmation advice last week:

  This is the article, not me--

       "Keep your mouths shut.''
       The warning came from someone who has been a part of the 
     process. Laurence Silberman, a senior judge on the U.S. Court 
     of Appeals for the D.C. Circuit--


[[Page S1945]]


  The very court we are talking about--

       Told an audience of 150 at a Federalist Society luncheon 
     that he served as an informal adviser to his then-D.C. 
     Circuit colleague Antonin Scalia when Scalia was nominated to 
     the Supreme Court in 1986.

  This is a quote from the article:

       "I was his counsel, and I counseled him to say nothing [at 
     his confirmation hearings] concerning any matter that could 
     be thought to bear on any cases coming before the Court,'' 
     Silberman said.
       Silberman said his advice led to Scalia's speedy 
     confirmation by keeping the nominee out of trouble on Capitol 
     Hill. He also explained that the advice was intended to be 
     rather far-reaching.
       Scalia called Silberman at one point, the latter recalled, 
     and told him he was about to be questioned about his views 
     about Marbury v. Madison, the nearly 200-year-old case that 
     established the principle of judicial review.
       "I told him that as a matter of principle, he shouldn't 
     answer that question either,'' Silberman said. He explained 
     that once a prospective judge discusses any case at all, the 
     floodgates open and he would be forced to discuss other 
     cases.

  Does that help shed some light on why this nominee refused to discuss 
and answer an innocuous softball of a question: to name a case--whether 
it be in the last 40 years or all the way back--with which you 
disagree?
  My colleagues, is the idea that a nominee to a powerful lifetime post 
on the Federal bench would be ``forced'' to discuss with the Senate his 
or her views on important historical cases really so terrifying?
  If we cannot talk about Marbury v. Madison with nominees, if we 
cannot discuss the case that provides the foundation for jurisprudence 
in America, we are in pretty bad shape.
  I was not in the Senate at the time of Justice Scalia's confirmation 
hearing, but I cannot imagine us confirming any nominee refusing to 
discuss a case that is 200 years old, a case that establishes the 
judiciary's power.
  I do not think there was a philosophical reason by Judge Silberman. I 
think he thought that if the nominee's real views were known, many of 
the American people would rise up and say: This is not the kind of 
nominee we want. This is the kind of nominee who will not just 
interpret the laws as the Constitution calls for but make law.
  It so happens judges on the far right and on the far left have a 
proclivity to want to make law because they feel things are so bad that 
they have to change them on their own.
  I have to tell you that a nominee who refuses to discuss the single 
most important case in the history of the Supreme Court will have a 
hard time winning many Senators' votes. Confirming such a nominee would 
confirm that the Senate's role is nothing more than a mere formality. 
If the President picks you, and we cannot find something in your 
ancient past, some little personal transgression, then you go to the 
bench.
  Balance becomes the baby that gets thrown out with the bath water. 
Our system of government gets thrown out of whack.
  It is very interesting that Mr. Estrada seems to be executing the 
Federalist Society's game plan, remaining silent and stonewalling, 
while other nominees, who are generating less opposition, are simply 
answering questions.
  There were five district court nominees at the hearing where Mr. 
Estrada testified. Because we spent so much time trying to get answers 
out of Mr. Estrada, we had little time to question each of them. So I 
asked each of them to answer, in writing, the very same question I 
asked of Mr. Estrada. I asked them to identify three Supreme Court 
cases with which they disagree. And do you know what? Each of them 
answered. Each was able to give me three cases with which they 
disagreed.
  Some of them picked obvious cases, such as Korematsu, the Supreme 
Court case upholding the Government's power to put Japanese-American 
citizens into interment camps, a case which has been thoroughly 
discredited; cases such as Plessy v. Ferguson which held that separate 
was equal, a case that was later overruled by Brown v. Board of 
Education. But many of these nominees picked cases that have not been 
overruled.
  Judge Linda Reade, a judge who I voted for in committee and on the 
floor--one of 96 judicial nominees by President Bush that I have 
supported so far, and who we unanimously confirmed to a district court 
judgeship in Iowa--gave some particularly interesting answers.
  Judge Reade was critical of two Supreme Court cases that expanded 
police powers and diminished privacy rights under the fourth amendment.
  One of the these cases, United States v. Rabinowitz, held that police 
had the power to search someone's office when he was arrested with an 
arrest warrant but without a search warrant.

  The other case was Harris v. United States, where the court held, 
again, that a search of an arrestee's entire four-bedroom apartment was 
constitutional despite the fact that the police did not have a search 
warrant.
  Her concerns about these cases reflected a heightened sensitivity to 
privacy rights protected by the fourth amendment. I do not want judges 
who read the fourth amendment so expansively that the police are 
handcuffed and unable to do their jobs. I want judges who will balance 
privacy rights with law enforcement interests.
  Her answers suggested to me that Judge Reade would be attuned to the 
privacy side of the argument. I may not have fully agreed with her--I 
tend to be more conservative on these criminal justice issues--but I 
appreciated her candor and her forthrightness. I appreciated her 
straightforwardness. She was not hiding a thing. She was telling us 
what she thinks. And I voted for her.
  Obviously, there is not a single Senator in this body who thinks 
Judge Reade's answers disqualify her for a Federal judgeship. Not a 
single one of us objected to her nomination or voted against her. And 
the same is true of the four other nominees we asked questions of the 
day of Mr. Estrada's hearing. They answered the questions forthrightly. 
They didn't hide the ball. They appeared to be within the mainstream. 
We confirmed them all quickly.
  Just last week we held a confirmation hearing for Jeffrey Sutton, a 
very controversial nominee to the Sixth Circuit.
  He is one of the leaders in the States rights movement. He has argued 
many of the seminal cases, and clearly he evokes much controversy. As 
my good friend from Utah will recall, the disabled community was so 
upset that they came out in large numbers, and we had to move the 
hearing room to a larger room, to which my friend from Utah graciously 
acceded.
  I haven't decided how I will vote on Mr. Sutton's nomination, and 
there are still questions I have asked him to answer. But I will say 
this about him: He started on the right foot with me by at least 
telling us what he thinks of some cases. Twice Jeffrey Sutton told us 
on his own, without being asked, that he was critical of Supreme Court 
cases Buck v. Bell and Kiryas Joel.
  When I asked him about other cases he was critical of, he said he had 
problems with Korematsu and Plessy v. Ferguson. I will grant these are 
not hard cases to be critical of, and I will repeat that there is still 
ground to cover with Mr. Sutton, but at least Mr. Sutton said that much 
and was committed to discussing other cases in writing.
  Mr. Estrada told us nothing, not a single thing. This is reminiscent 
of what I thought was one of the least fine moments of the Judiciary 
Committee. It is reminiscent of Clarence Thomas telling America that he 
had never discussed Roe v. Wade and had no views on the case 
whatsoever. How many of us believed him then? How many of us believe 
him now? It is simply not credible. It is totally unbelievable that 
this nominee, Mr. Estrada, had no critical views on any Supreme Court 
case in history. Every lawyer in America, and most nonlawyers in 
America, can point to one Supreme Court case he or she is critical of. 
Of course, we all know Mr. Estrada has thoughts on the subject. Every 
single person, ask every one of the 100 Senators to bet all their money 
on whether Estrada has opinions on certain cases. We would all bet he 
does.
  The bottom line is simple: If we confirm Miguel Estrada, we are 
ratifying a ``don't ask, don't tell'' policy for judicial nominees. Mr. 
Estrada sat there and said nothing, believing if he didn't say a word, 
we would rubberstamp him. By remaining silent, Mr. Estrada only 
buttressed the fear that he is a far-right stealth nominee, a sphinx-
like candidate who will drive the Nation's

[[Page S1946]]

second most important court way out of the mainstream. I had hoped he 
would choose candor over secrecy. He refused to do so. All he said is: 
I will follow the law.
  In my book, that doesn't explain much.
  There is a myth that the law is something automatic, that the facts 
of a case, the applicable statutes can be dumped into a computer, and 
the right answer will just pop out, that a person's philosophy and 
ideology have nothing to do with determining how they vote when they 
get to be a judge. We all know that is poppycock. Anyone who studied 
the system knows that is not how the law works. If we did, we would 
have IBM build a computer, put some black robes on the computer, and 
obviate the need for these confirmation hearings or any judges. But we 
all know there is more to judging than that. We all know judges bring 
their experiences, their values, their judgment and, yes, their 
ideology to the bench with them.
  If ideology didn't matter, both Republican and Democratic Presidents 
would nominate judges from across the political spectrum. Instead, 
Democrats tend to nominate Democrats; Republicans tend to nominate 
Republicans. That is fine. I know that as long as President Bush is 
President, I will be voting on mainly Republican nominees. I still 
voted for 96 out of 102, as did most of my colleagues. But that 
doesn't mean we have to rubberstamp each one. And certainly it doesn't 
mean that ideology is in play. If ideology was not in play, if we were 
just relying on the legal quality of the mind, then Estrada's mind is 
of good legal quality, excellent legal quality. But then the appointees 
of Democratic Presidents to the Supreme Court and other courts and the 
appointees of Republican Presidents to the Supreme Court and the other 
courts would be scattered all over the lot when it came to rendering 
decisions.

  We know that is not true. There are always exceptions. Earl Warren 
became a very liberal Chief Justice although he was nominated by 
President Eisenhower. But by and large, the ideology matters. And that 
is why Democratic nominees tend to support different opinions and 
decisions than Republican nominees. That is our system, and that is 
great.
  But to say ideology doesn't matter would mean President Bush would be 
nominating a whole lot of Democrats for judge and a whole lot of 
moderate Republicans. He has hardly nominated any of either category. 
The best you get is someone who is a conservative, not a hard right 
conservative.
  Now let's go back to Mr. Estrada. There are some other ways to get at 
what Mr. Estrada actually believes and how he will act as a judge. By 
the way, this is all we have. If he refuses to answer questions at a 
hearing, and he doesn't, he is not a judge and he is not a law 
professor who opines on these issues.
  Mr. DOMENICI. Might I inquire from the Senator, how much longer do 
you think you will be?
  Mr. SCHUMER. I would say to my colleague, I will probably be another 
15 minutes. I appreciate it. I rarely speak on the floor very long. I 
speak often, but usually for 5 or 10-minute amounts. But as my good 
friend from New Mexico knows, I feel very strongly about this issue.
  Mr. DOMENICI. I had assumed your usual.
  Mr. SCHUMER. I will try to finish as quickly as possible, in 
deference to my good friend from New Mexico.
  So we don't have much on the record about Mr. Estrada. That is why 
his papers as Solicitor General mean so much. Because when Mr. Estrada 
worked in the Justice Department, he looked at cases and analyzed them 
and assessed the constitutionality of laws. That is, for all intents 
and purposes, what appellate judges do. Unlike a lawyer in a law firm 
who is looking out for a client with a vested interest, Mr. Estrada was 
working for the Government. His client was the Constitution. His memos 
would help show how he interprets the Constitution. Similar memoranda 
have been requested and produced when Congress was evaluating other 
nominees, both to the executive and judicial branches, creating ample 
precedent for such a request.
  I know there has been a series of letters that have gone back and 
forth. I know we have differing views about the propriety of sharing 
these memoranda. But one thing is clear, there is precedent because 
others, including Bradford Reynolds and Justice Rehnquist, submitted 
those papers. It is clear there is no privilege. And it is clear these 
memos are needed to lift the veil covering whatever it is Mr. Estrada 
wants to remain covered.
  So, in other words, because we have so little information on how Mr. 
Estrada thinks, these memos are more important to understand his 
thinking than they would be for the typical judicial nominees.
  Mr. Estrada did work that was quintessentially judge-like, but we are 
being denied the opportunity to examine it, evaluate it, and assess for 
ourselves what kind of judge he would be. That doesn't seem right. A 
former supervisor has charged that Mr. Estrada advocated extreme 
positions, more aligned with his own interests than the Government's 
interest, when he was Solicitor General.
  My friend from Utah said at a hearing that he had backed off those 
positions. He has not backed off those positions.
  Many have said: Well, his evaluations were excellent.
  We have talked to Mr. Bender, and he has said, first, when you look 
at those evaluations, they don't talk about his views and whether he 
would have fidelity to the Constitution or try to impose his own views. 
They talk about whether he was a hard worker. But what Mr. Bender said 
is: Everyone gets checked off excellent on those--we will have to check 
the record there--because it helps them get merit advancements.
  So here you have the supervisor saying he was extreme, saying he 
would take his own views and not follow the law. Guess what the best 
way is to disprove that supervisor. Make the memos public. If the memos 
prove the supervisor wrong, Mr. Estrada has nothing to fear from their 
disclosure. If the memos prove the supervisor is right, this is someone 
no one in the Senate should want on the DC Circuit.
  Mr. President, I have always used three criteria in evaluating 
judicial nominees. I call them excellence, moderation, and diversity.
  Excellence is legal excellence, the quality of the mind. We don't 
want political hacks on these important courts. No one disputes that 
Mr. Estrada passes this point with flying colors. He comes highly 
recommended in this regard. When the ABA recommends him, that is all 
they are evaluating.
  My second criteria is diversity. Clearly, he passes on this point. I 
have fought for as long as I have been in public service to promote 
diversity. A principal goal of mine in New York is to put more people 
of color on the Federal bench--and I have, as my record shows. We are 
going to talk a lot about the push for diversity, and we are going to 
see Mr. Estrada is the only Hispanic nominee of President Bush. 
Diversity seems to be limited at this point to Mr. Estrada when it 
comes to the court of appeals; whereas, those of us on this side, in 
the Hispanic caucus and others who oppose the nomination, have done far 
more for diversity than those who claim they are moving its cause 
forward today. In any case, I am for diversity. I will not talk more 
about that today. I will give that part of the speech next week.
  The third factor forces me to take the floor today, and that is 
moderation. I don't like judges too far to the right, and I don't like 
them too far to the left. To be honest with you, when my judicial 
committee sends me recommendations, those are their instructions. I 
think judges too far left, as well as those too far right, want to make 
the law, not interpret it. I think they don't belong on the bench, with 
certain exceptions--rare, but certain.
  So is Mr. Estrada moderate? Is he even a moderate conservative? Well, 
he gives every appearance of being extreme. People who know him say 
that, people who have talked to him about his views. That is one of the 
reasons, again, many of us feel he doesn't want to speak out, because 
if we knew his real views, he might well be rejected. Why has the 
Congressional Hispanic Caucus, the Puerto Rican Legal Defense and 
Education Fund, and the Mexican American Legal Defense Fund opposed Mr. 
Estrada? These groups have acted courageously in opposing

[[Page S1947]]

him because they share my commitment to promoting Latinos on the 
Federal judiciary. I have worked with them for years to diversify the 
bench. But the concerns about his views are overwhelming.
  Let me tell you what Mr. Paul Bender had to say. He oversaw Mr. 
Estrada's work in the Solicitor General's office. He said he was too 
much of an ideologue to serve as a Federal judge. Mr. Bender said Mr. 
Estrada would bring his own personal agenda--an extreme agenda--to the 
courts if we confirm him.
  My friend from Utah suggested Professor Bender has backed off. I 
assure my colleagues that is not the case. He stands by them 100 
percent.
  Again, my friends on the other side have suggested Bender is not 
credible because he gave Mr. Estrada high marks on his work 
evaluations. Every one of those evaluations went to legal excellence. I 
am not disputing that. Those evaluations did not deal with Mr. 
Estrada's potential extreme ideological nature. But don't take 
Professor Bender's word for it. Here is what Ann Coulter, the 
conservative pundit and Mr. Estrada's close friend, said about him this 
week:

       The second [Mr. Estrada] gets in there, he'll overrule 
     everything you love.

  This is a close friend of Mr. Estrada's, a conservative columnist. 
What was Ms. Coulter talking about? She was talking to Paul Begala. Was 
she saying Mr. Estrada will approve the Bush administration's rollback 
of environmental protections? Was she saying he would side with big 
business and special interests against the rights of labor and workers 
every time?
  When Ms. Coulter says Miguel Estrada will overrule everything Mr. 
Begala cares about, it is not hard to worry that he will be another in 
a long line of rightwing judicial activists who prioritize States' 
rights over people's rights.
  This is a lifetime appointment. Once it is done, it cannot be undone. 
If we approve Mr. Estrada, he is there for life and his decisions will 
affect all of us for generations to come. This Senate deserves a full 
and open debate. This Senate deserves answers to questions that may 
sound esoteric but will affect the lives of every single American. The 
people of this country, the American people, deserve these answers. 
They are so important to the future of this country.
  When you have judges who try to make law, they make this Senate, the 
House, and the President--the elected branches of Government--less 
significant and less important. I say to my colleagues, many of us on 
this side of the aisle feel very strongly about this issue. We urge Mr. 
Estrada and the administration to reconsider. We urge them to give a 
fulsome view of how Mr. Estrada feels on the important issues of the 
day, and not simply to say he has a good legal mind, not simply to talk 
about the fact he has a nice history--which he does, and I give him 
credit for it--but to talk about the main thing that will influence 
what he does when he becomes a judge--his views.
  We will continue this debate over the next few weeks and it could be 
one of the Senate's finest moments. I hope--no, I pray--we will rise to 
the occasion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. DOMENICI. Madam President, anyone who doubted whether or not 
there were certain Democrats who intend to filibuster this nomination 
just heard a leading Senator who is going to espouse that. Two weeks of 
debate, he said; he hopes we will still be discussing this nomination 
then. It is the desire of at least one Senator, the Senator from New 
York, that this nominee not be approved, and that we will not have the 
opportunity to vote because they will not give us time.
  Madam President, I come from a State, New Mexico, where 42 percent of 
the people are from what we generally call Hispanic descent--42 
percent. Some people wonder why the Senator from New Mexico has 
different views than some of you around here. Well, we have 8 to 10 
percent Native American Indians. If my arithmetic is right, when you 
add the two, there is about 51 percent either Hispanics or Native 
American Indians in my State.
  I say right up front, I am not afraid of the views of a Hispanic 
whether he is a Democrat or a Republican. I don't niche Hispanics 
because they are Democrats and say they must be liberals who I would 
not approve for anything. Neither do I niche Republican Hispanics and 
say because they are Republicans--there is an implication they should 
not be, they should be Democrats--but if they are, they obviously 
should not be on the bench because they are obviously too conservative, 
or they would not be Hispanic Republicans.
  I believe we are perilously close to determining it is OK to 
discriminate against Hispanics if they are conservative. I don't even 
know how conservative Mr. Estrada is, but the allegation is he is too 
conservative. He happens to also be Hispanic.
  Just imagine, Madam President, if there was a Democrat nominee with 
the name Espinoza--I just picked one that came to mind--and Republicans 
found something wrong with him as a candidate--imagine what they might 
be saying: Republicans oppose a Hispanic for the circuit court of the 
United States. They don't want people of color on the circuit court of 
appeals.
  I have not said that of the Democrats yet, but I am getting 
perilously close to wondering why, if he does not know enough about 
this nominee, he would call him unqualified for the bench in the 
circuit court. Is it because of his color? Is it because of from where 
he came? He epitomizes the American dream beyond what anyone in this 
Senate would probably epitomize. Coming here at 17 years of age and 
speaking no English; in a short period of time he learned the English 
language; graduated magna cum laude from law school, none other than 
Harvard--and we have people here wondering whether he is qualified.
  In New Mexico, nobody would say of that man, Miguel Estrada: He is 
not qualified because he probably is too conservative, because he 
joined the Republican Party or, at least, he is one of them. I believe 
that would be wrong.
  Again, I want to make sure everybody understands that I am doing my 
very best to tell it like I see it, but I am also doing a bit of 
surmising because my good friend from New York has not been here very 
long, and we welcome him. But there is no doubt in my mind that if they 
ever get a nominee on their side of the aisle who is a Hispanic 
Democrat for the circuit court of the United States and a Republican or 
a group of them are against that nominee, they might say the 
Republicans do not want to put a Hispanic on the bench.
  Mr. SCHUMER. Will my colleague yield?
  Mr. DOMENICI. I sat here for 30 minutes. I am very sorry.
  Mr. SCHUMER. There were Hispanic nominees opposed by your side, and 
we never raised the issue because they were Hispanic--Paez, Rangel, 
Moreno.
  Mr. DOMENICI. Madam President, I have the floor.
  The PRESIDING OFFICER. The Senator from New Mexico has the floor.
  Mr. DOMENICI. I did not interrupt his comments when there was 
tremendous opportunity to point out inconsistencies. I made only five 
notes and I could have stopped and asked him if something he said is 
really what he meant, but I chose not to. I am going to finish my few 
remarks. I will not be much longer.
  I did not say that would happen, nor that they were discriminating 
against him, but the implication is clearly that it is kind of strange 
that this bright Hispanic young man is a Republican. I believe that is 
in the marketplace of ideas on the Democratic side.
  I suggest there are some things happening in our country. In my own 
State, a young Hispanic came up to me the other day from a very large 
family--young people, middle-age people, grandmas, grandpas. They all 
have very beautiful Spanish names for all of those categories of 
people. He put his arm around me and he said: We have all been 
Democrats. There are probably 200 people in my family. We have all been 
Democrats. But you know, I am wondering if I should not join with you 
and become a Republican. It seems like you think like we do, and 
wouldn't it be something if I did and my whole family decided that I 
was right?
  I said to him: I believe there are thousands like you who feel that 
way in New Mexico and in our country, and we welcome you.

[[Page S1948]]

  If this young man, Miguel Estrada, when he became a citizen, became a 
Republican--and I do not know that, but there is an implication he is 
one of us or he is conservative--I welcome him. I am proud of him. I am 
glad he did it. I do not believe he ought to be eliminated from 
consideration on the circuit court of appeals or even a higher court 
because of that issue. I honestly believe it takes people of diversity 
in our country to join both parties and speak through their ideology 
and their feelings about what they think of our country.

  I am not at all sure the argument being made today by the 
distinguished Senator from New York is anything other than ``we are 
afraid of this guy; we're not so sure he should be on the bench,'' but 
they really do not know why.
  I hope that many Republicans join with Democrats and decide that if 
the distinguished Senator from New York wants to speak and wants to be 
joined for 2 weeks, that we will do him the favor and let him talk for 
2 weeks. I am not sure our leader will do that because maybe we should 
shut off debate, but maybe it would be doing a favor for America and 
Hispanics across this country if we let him speak for 2 weeks. I do not 
think their cause will get any better. I think it might get even worse 
with the passage of time.
  This young man went through all this effort thinking that he might 
complete the American dream. What must it have been like for this young 
man who learned English so quickly, went on to school and law school at 
Harvard? He must have thought the American dream for him might mean 
fulfillment as a judge.
  He was appointed by the President of the United States more than 630 
days ago, and instead of a dream, he has had a nightmare. I think it 
should end. The nightmare should be over. If they would like to make it 
2 weeks longer and want to talk that long in the Senate, I hope the 
Senate insists that those who want to talk long on the Senate floor can 
talk long.
  Certainly I am a very knowledgeable Senator about the institution. I 
love it, where some Senators do not even like to hear people say that. 
They think we waste too much time; we do this, that, and the other. I 
really love it. I did not at first, but I do now. I do not believe the 
other side will spend 2 weeks talking about this man unless they 
clearly do not want him to be on the bench, perhaps because of what I 
have said here; that maybe he does not belong as a Hispanic because, 
after all, he is conservative. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I am one who really cares for the 
distinguished Senator from New York. I understand him. I know him very 
well, and I care a great deal for him. He is just totally wrong.
  For instance, Senator Schumer, the distinguished Senator from New 
York, submitted no written questions to Mr. Estrada. We waited 631 days 
to have a hearing. They conducted the hearing. The distinguished 
Senator from New York conducted the hearing. He could have asked any 
questions he wanted. He is saying he did not get good answers. I think 
some are interpreting that to mean he--or other Democrats as well--did 
not get the answers he wanted and he could not get anything on this 
man.
  Following Mr. Estrada's hearing, the distinguished Senator from New 
York did not submit any questions. That is his right. I think sometimes 
we do submit too many written questions, and I respect him for not 
doing that. In fact, only two of my Democratic colleagues submitted any 
written questions at all to Mr. Estrada, which, of course, he answered 
immediately.
  I find it amusing that the Senator from New York now claims he has 
questions for Mr. Estrada. If he did, why not write some questions? He 
certainly had a right to do that. With regard to the hearing testimony, 
Mr. Estrada repeatedly answered the questions put to him.
  Let me give some examples. Mr. Estrada testified he is committed to 
following the precedents of higher courts faithfully and giving them 
full force and effect, even if he disagrees and even if he believes the 
precedents are erroneous. He will follow them. That is mainstream. That 
is not out of the mainstream. That is mainstream. I would not support 
anyone who would not answer the question that way.
  When asked how he would decide cases presenting an issue with no 
controlling authority, Mr. Estrada testified: When facing a problem to 
which there is not a decisive answer from a higher court, my cardinal 
rule would be to seize it from any place I could get it. He testified 
this would include related case law and other areas, legislative 
history and views of academics.
  How do you answer better than that? I guess you can using semantics 
that might be better than that, but I don't think you can do so.
  When asked if he sees the legal process as a political game, Mr. 
Estrada testified: The first duty of a judge is to self-consciously put 
that aside and look at each case by withholding judgment with an open 
mind and listening to the parties. So I think that the job of a judge 
is to put all that aside and, to the best of his human capacity, give a 
judgment based solely on the arguments on the law.
  Mr. Estrada also said: I will follow binding case law in every case. 
I don't even know that I can say whether I concur in the case or not 
without actually having gone through the work of doing it from scratch. 
I may have a personal, moral, philosophical view on the subject matter, 
but I undertake to you I would put all that aside and decide cases in 
accordance with binding case law and even in accordance with the case 
law that is not binding but seems instructive on the area without any 
influence whatever from any personal view I may have about the subject 
matter.
  That is a pretty good answer. I could go on and on.
  What is clear from his testimony is that Mr. Estrada will be a judge 
who will set aside his personal convictions, whatever they may be, and 
will follow the law. This is precisely the type of person we want to be 
a Federal judge.
  I have heard the comments about the Federalist Society for years. The 
Federalist Society does not take positions in the law, but they put on 
the best seminars and conferences in the country today. And in every 
conference they have put on that I know of since I am a member of the 
board of advisers, along with a lot of other very distinguished people, 
far more important than I am, who have been mainstream thinkers through 
all the years, they put on these conferences with both sides being 
fully represented--plenty of Democrats representing the liberal side, 
to be brutally honest about it.
  Now, let me just put one other thing to bed. I am so doggone tired of 
hearing about this Professor Bender. I ask unanimous consent I be 
permitted to talk about Professor Bender for a few minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. As far as I can tell, Mr. Estrada's primary critic is Paul 
Bender, who supervised Mr. Estrada at the Clinton Solicitor General's 
office. I caution my Democratic colleagues that, before they rely too 
heavily on Mr. Bender to make their case against Mr. Estrada, there are 
many reasons why Mr. Bender's allegations lack credibility.
  According to published reports, Mr. Bender himself was the source of 
much conflict during his tenure at the Clinton Solicitor General's 
office.
  According to published reports, while Mr. Bender was serving as the 
principal deputy from 1993 to 1996, about 1/3 of the assistants, 
including one 16-year career veteran, left the office.
  Mr. Bender is an extremist by even the most liberal standards, as his 
30-year history of hostility to Federal efforts to regulate pornography 
illustrates.
  Mr. Bender has stated publicly that sexually explicit material should 
not be banned ``any more than material about war, crime, housing, 
poetry and music.''
  In 1993, Mr. Bender pressed his agenda on pornography while serving 
as principal deputy Solicitor General, forcing President Clinton and 
the United States Congress--including 9 of my 10 Democratic colleagues 
on the Committee--to publicly reject his views.
  In a case which became a political embarrassment for the Clinton 
Administration and the Reno Justice Department, Mr. Bender approved a 
brief filed with the U.S. Supreme Court in September 1993 which sought 
to overturn

[[Page S1949]]

the conviction of a repeat child pornographer and known pedophile.
  The facts of the Knox case are straightforward. Stephen Knox was 
convicted of receiving and possessing child pornography under the Child 
Protection Act after the U.S. Customs Service found in Knox's apartment 
several videotapes of partially-clad girls--some as young as age ten--
wearing bathing suits, leotards, or underwear in sexually seductive 
poses.
  The brief that Mr. Bender approved sought to reverse the previous 
Bush Administration's policy of liberally interpreting the Child 
Protection Act to define as child pornography any materials which 
showed clothed but suggestively posed young children.
  In response, on November 3, 1993, the United States Senate voted 100-
0 for a resolution to reject Mr. Bender's position in the case.
  Upon learning of the Justice Department's position in the case, and 
after the Senate's unanimous vote denouncing it, President Clinton 
wrote to Attorney General Reno in November 1993 to argue that the 
Department's new interpretation of the Child Protection Act left the 
child pornography law too narrow and emphasized that he wanted ``the 
broadest possible protections against child pornography and 
exploitation.''
  In 1994, the House voted 425-3 to condemn the Department's position, 
finding that Mr. Bender's argument would ``bring back commercial child 
pornography and lead to a substantial increase of sexual exploitation 
of children.''
  Each of my Democratic colleague on the Committee who were Members of 
Congress at the time voted for either the Senate or House resolutions.
  Bowing to congressional pressure and the rebuke by President Clinton, 
Attorney General Reno reversed Mr. Bender's position and filed her own 
brief, which restored the first Bush Administration's interpretation of 
the Child Protection Act.
  My democratic colleagues who once condemned Mr. Bender now appear to 
rely on his views of Mr. Estrada's qualifications for the federal bench 
and continue to repeat his description of Mr. Estrada as ``an 
ideologue.'' I find this illogical, given that their determination in 
the past that Mr. Bender's views were out of the mainstream.
  The Knox case is only one example of Mr. Bender's extremism.
  In 1977, he testified before the Committee against tough anti-child 
pornography laws in a hearing entitled ``Protection of Children Against 
Sexual Children Against Sexual Exploitation.''
  According to Mr. Bender's testimony, he rejected the notion that 
Congress could prohibit child pornography in order to protect children 
from harm because ``the conclusion that child pornography causes child 
abuse involves too much speculation in view of the social situation as 
we know it, and the fact that it seems that most kids who act in these 
films probably are doing these acts aside from the films anyway. . . 
.''

  This is the hero they are quoting?
  Mr. Bender testified that in order to prohibit child pornography and 
not run afoul of the First Amendment, ``you would have to have a 
finding, based on evidence, that in fact, the distribution of this type 
of film substantially increases the incidence of child abuse before you 
could possibly support the constitutionality'' of new laws prohibiting 
child pornography.
  He noted that, in his experience, ``the estimates of the size of the 
pornography problem are usually much, much too large.''
  Tell that to the millions of people who see child pornography all 
over the internet.
  Mr. Bender concluded that he ``could not find any discernible harm to 
children from being exposed to explicit sexual materials as children . 
. . the harms that we found to children who were exposed to these 
things were harms that flowed, not from the materials, but from the 
social settings in which they saw them.''
  Mr. Bender's testimony before this Committee exposes his ultra-
liberal, pro-pornography views that are difficult to characterize as 
anything but out of the mainstream.
  From 1968 to 1979, Mr. Bender served as the controversial Chief 
Counsel to the President's Commission on Obscenity and Pornography. 
Once again, his views were roundly rejected by the Senate.
  Mr. Bender was the architect of the commission's report recommending 
the abolishment of all federal, state, and local laws interfering with 
the rights of adults to obtain and view any type of pornography, 
including hard-core pornography.
  Dissenting members of the commission described the Bender Report as a 
``Magna Carta for the pornographer.''
  In 1970, the Senate vote 60-5 for a resolution rejecting the 
Commission's report and recommendations, with nine additional Senators 
announcing that if they had been present they would have supported the 
resolution.
  No current member of the Senate supported Mr. Bender's views.
  One Democratic Senator noted during the debate on the resolution 
that:
       The Congress might just as well have asked the 
     pornographers to write the report, although I doubt that even 
     they would have had the temerity and effrontery to make the 
     ludicrous recommendations that were made by the Commission.

  Mr. Bender's extreme views aren't limited to pornography. In 1998, he 
argued that convicted murderer James Hamm should be admitted to the 
Arizona bar. Hamm was convicted in 1974 and sentenced to 25 years to 
life after pleading guilty to killing a Tucson, AZ man during a drug 
deal. Mr. Bender, who taught Hamm constitutional law at Arizona State 
Law School, called him ``a poster boy for rehabilitation in prison'' 
and argued that he should be admitted to the bar because ``he's not 
going to steal from clients or file frivolous suits.''
  Mr. Bender's views are certainly out of the mainstream of society in 
general. What's more, he appears to be out of the mainstream even among 
former members of the Clinton administration--hardly a conservative 
bunch--when it comes to Mr. Estrada.
  Ron Klain, former chief of staff to Vice President Gore, praised Mr. 
Estrada, saying that he would be able to ``faithfully follow the law.'' 
Ron Klain was a former member of the Judiciary Committee. He is a 
wonderful Democrat and, no question, he's a wonderful attorney. We all 
know him and appreciate him and respect him.
  Former Solicitor General Drew Days opined of Mr. Estrada, ``I think 
he's a superb lawyer.''
  Another Clinton era Solicitor General, Seth Waxman, called Mr. 
Estrada an ``exceptionally well-qualified appellate advocate.'' Seth 
Waxman was a great Solicitor General. We all respect him. I know him 
personally. He's a very fine lawyer and a wonderful Democrat. I'm not 
calling him a wonderful Democrat because he's on our side with Estrada. 
I am calling him that because that's the way he is. He's a great 
attorney. I strongly supported him at that time.
  Randolph Moss, former Chief of the Justice Department's Office of 
Legal Counsel, wrote the Committee:

       to express my strong support for the nomination of Miguel 
     Estrada . . . . Although I am Democrat and Miguel and I do 
     not see eye-to-eye on every issue, I hold Miguel in the 
     highest regard, and I urge the Committee to give favorable 
     consideration to his nomination.

  These are people who know him forward and backwards, who know what a 
great lawyer he is. These are mainstream Democrats calling him a 
mainstream person, we ought to listen to them.
  And Robert Litt, Deputy Assistant Attorney General in the Clinton 
Justice Department, said:

       Miguel has an absolutely brilliant mind. He is a superb 
     analytical lawyer and he's an outstanding oral advocate.

  With all of this glowing support from former high-ranking, well 
respected Clinton administration lawyers, you have to wonder why my 
Democratic colleagues choose to listen instead to the unsubstantiated 
criticisms of Mr. Bender, a liberal extremist whose out-of-the-
mainstream views have been twice condemned by the U.S. Senate.
  There are many reasons to discredit Paul Bender's criticisms of Mr. 
Estrada. That is why I am taking this time to do it and I will try to 
finish so the distinguished Senator from Massachusetts can have the 
floor.
  There are many reasons to discredit Paul Bender's criticisms of Mr. 
Estrada, not the least of which is the fact that he is the lone voice 
of criticism amid a sea of admiration and praise for Mr. Estrada.

[[Page S1950]]

  One of Mr. Estrada's most ardent supporters from the Clinton 
administration is Seth Waxman, who specifically disputed Mr. Bender's 
criticisms of Mr. Estrada, yet they are being brought up on the floor 
again. There is a time to quit bringing these types of people to try to 
hurt Mr. Estrada. Let me read you what Mr. Waxman said in a letter to 
the Committee dated September 17, 2001.

       I understand from published reports that . . . Paul 
     Bender[] has criticized Mr. Estrada's professional conduct 
     while in the Solicitor General's Office. I do not share those 
     criticisms at all. During the time Mr. Estrada and I worked 
     together, he was a model of professionalism and competence. 
     In no way did I ever discern that the recommendations Mr. 
     Estrada made or the analyses he propounded were colored in 
     any way by his personal views--or indeed that they reflected 
     any consideration other than the long-term interests of the 
     United States. I greatly enjoyed working with Miguel, 
     profited from our interaction, and was genuinely sorry when 
     he decided to leave the office in favor of private practice.
       Much has been said about Mr. Estrada's views regarding 
     policy and social issues. I have never had a conversation 
     with Mr. Estrada about either. To my mind--and I believe Mr. 
     Estrada's as well--those views were entirely irrelevant to 
     the work we had before us in the Solicitor General's office. 
     I have great respect both for Mr. Estrada's intellect and for 
     his integrity.

  Now, this is not some right-wing fanatic who is praising Mr. 
Estrada's intellect and integrity. This is former Clinton Solicitor 
General Seth Waxman. Can there be any genuine doubt about his 
sincerity? The answer is no.
  Mr. President, I ask unanimous consent that a copy of this letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Wilmer, Cutler & Pickering,

                               Washington, DC, September 17, 2001.
     Chairman Patrick J. Leahy,
     Senate Judiciary Committee, Washington, DC.
     Senator Orrin G. Hatch,
     Senate Judiciary Committee, Washington, DC.
       Re: Miguel Estrada

       Dear Chairman Leahy and Senator Hatch: During much of the 
     year in which I served as Principal Deputy Solicitor General 
     (1996-1997), Miguel Estrada and I were colleagues. I 
     understand from published reports that my predecessor, Paul 
     Bender, has criticized Mr. Estrada's professional conduct 
     while in the Solicitor General's Office. I do not share those 
     criticisms at all. During the time Mr. Estrada and I worked 
     together, he was a model of professionalism and competence. 
     In no way did I ever discern that the recommendations Mr. 
     Estrada made or the analyses he propounded were colored in 
     any way by his personal views--or indeed that they reflected 
     any consideration other than the long-term interests of the 
     United States. I greatly enjoyed working with Miguel, 
     profited from our interactions, and was genuinely sorry when 
     he decided to leave the office in favor of private practice.
       Much has been said about Mr. Estrada's views regarding 
     policy and social issues. I have never had a conversion with 
     Mr. Estrada about either. To my mind--and I believe Mr. 
     Estrada's as well--those views were entirely irrelevant to 
     the work before us in the Solicitor General's office. I have 
     great respect both for Mr. Estrada's intellect and for his 
     integrity.
           Yours sincerely,
                                                   Seth P. Waxman.

  Mr. HATCH. I will put Seth Waxman up against Paul Bender any day, any 
time, anywhere. This is not some right-wing fanatic.
  Mr. KENNEDY. Mr. President, I want to permit my friend and colleague 
to complete his thought, but we are trying to get some idea--
  Mr. HATCH. I think I will only be a few more minutes.
  Mr. KENNEDY. I believe there was an order before the Senate that I be 
recognized at 5:40, as I understood it?
  Mr. HATCH. As I understand it, you were not here at the time and I 
had to make these points.
  Mr. KENNEDY. I believe I was in the Chamber at 5:40. I heard the 
Senator speak at that time.
  Mr. HATCH. I will try to finish as soon as I can. As I understand it, 
I have the floor.
  The PRESIDING OFFICER. The Senator from Utah does have the floor.
  Mr. HATCH. I will certainly try--
  Mr. KENNEDY. Just as an parliamentary inquiry, what was the 
understanding?
  The PRESIDING OFFICER. The order was to recognize the Senator from 
Massachusetts at 5:40. But the Senator was not present at that time.
  Mr. KENNEDY. And what is the time now?
  The PRESIDING OFFICER. The time is 5:56.
  Mr. KENNEDY. Fine. I wasn't here at 5:40. I think I was at the 
entrance to the Chamber when the Senator asked consent to be able to 
proceed. If he wants to take advantage of that, so be it. But I think 
that it is unfortunate and unfair.
  Mr. HATCH. If I might remark, I have been a friend of the Senator 
from Massachusetts for a long time.
  Mr. KENNEDY. I just stated that--
  Mr. HATCH. Who has the floor?
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. KENNEDY. You have the floor.
  Mr. HATCH. I ask for the regular order.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I have been his friend for a long time, and I am going to 
finish this very quickly in deference to him. But he wasn't here. I did 
not see him at the door. And I had to make these comments because of 
some of the comments that were made that I thought were improper, 
against Mr. Estrada. And I am going to defend Mr. Estrada on the floor 
when these kinds of comments are made. I think it is the right thing to 
do. I am certainly not trying to take advantage of the distinguished 
Senator from Massachusetts, but I exercise my rights as a coequal 
Senator. Let me just finish this, and I will do it as quickly as I can.
  Mr. President, at the request of the Committee, Mr. Estrada provided 
copies of his annual performance evaluations during this tenure at the 
Solicitor General's office. These documents cast serious doubt on Mr. 
Bender's allegations about Mr. Estrada.
  The evaluations show that during each year that Mr. Estrada worked at 
the SG's Office, he received the highest possible rating of 
``outstanding'' in every job performance category.
  The rating official who prepared and signed the performance reviews 
for 1994 to 1996 was none other than Paul Bender.
  Let me read a few excerpts from the evaluations that Mr. Bender 
signed. They say that Mr. Estrada:

       States the operative facts and applicable law completely 
     and persuasively, with record citations, and in conformance 
     with court and office rules, and with concern for fairness, 
     clarity, simplicity, and conciseness. . .
       Is extremely knowledgeable of resource materials and uses 
     them expertly; acting independently, goes directly to point 
     of the matter and gives reliable, accurate, responsive 
     information in communicating positions to others. . .
       All dealings, oral, and written, with the courts, clients, 
     and others are conducted in a diplomatic, cooperative, and 
     candid manner.

  I might add this doesn't sound like some radical rightwing fanatic 
some would portray Mr. Estrada as.
  He goes on to say:

       All briefs, motions or memoranda reviewed consistently 
     reflect no policies at variance with Departmental or 
     Governmental policies, or fails to discuss and analyze 
     relevant authorities. . .
       Is constantly sought for advice and counsel. Inspires co-
     workers by example.

  These comments represent Mr. Bender's contemporaneous evaluation of 
Mr. Estrada's legal ability, judgment, temperament, and reputation for 
fairness and integrity.
  In short, these comments unmask Mr. Bender's more recent statements, 
made after Mr. Estrada's nomination, for what they are: A politically 
motivated effort to smear Mr. Estrada and hurt his chances for 
confirmation.
  The performance evaluations confirm what other Clinton Administration 
lawyers, and virtually every other lawyer who knows Mr. Estrada, have 
said about him: That is he a brilliant attorney who will make a fine 
federal judge.
  Having said all that, I apologize to my colleague from Massachusetts 
for having to make these comments after the comments made by the 
distinguished Senator from New York. But I think I would have been 
remiss had I not made those comments to correct the Record to show this 
man Bender may be a law professor at an institution in the West, but he 
certainly has not been very fair to Mr. Estrada. And his own reputation 
would lead one to believe he is not worth listening to with regard to 
his opinion, which I believe and I think any fair person would believe 
was nothing but a politically motivated smear.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from New York is 
recognized.

[[Page S1951]]

  Mr. KENNEDY. Mr. President, first of all, as I stated at the hearing, 
the personal attacks on Paul Bender are really beneath this body. Paul 
Bender has a long and esteemed history in public and private practice. 
He clerked for Felix Frankfurter on the Supreme Court. He argued dozens 
of cases before the Supreme Court. He taught constitutional law at the 
University of Pennsylvania and the University of Arizona. To criticize 
Paul Bender because you disagree with his statements is also chilling 
to anyone who wishes to express their personal opinions about a 
nominee. I really hope we can talk about the issues without resorting 
to personal attacks.
  Others as well have echoed the Bender criticism.
  Among the great debates at the Constitutional Convention two 
centuries ago was the issue of judicial appointments. Initially, there 
was broad agreement among the delegates that either the Senate alone or 
the legislature as a whole should appoint federal judges, and in June 
of 1787, the delegates tentatively adopted a proposal to give the 
appointment power to the Senate. But opposition soon arose. The 
delegates re-opened the issue and considered alternatives such as 
giving the power of appointment to both the Senate and the House, or to 
the President with the advice and consent of Congress, or to the 
President alone.
  After months of debate, the issue was finally resolved in September. 
It was decided the President was to nominate, and the Senate would be 
asked to concur before the appointment could be made. The Framers 
believed that one person should have the responsibility for nominating 
judges, but they clearly wanted to avoid vesting too much power on this 
issue in the President. The Senate would have the power to prevent the 
President from shaping a judiciary in his own image. As Alexander 
Hamilton said in Federalist No. 77, ``If by influencing the President 
meant restraining him, this is precisely what must have been 
intended.''
  By requiring the President and the Senate to share the responsibility 
of appointing federal judges, the Framers created one of the most 
important checks and balances in the Constitution and laid a solid 
foundation for the independence of the judiciary that has served the 
Nation so well.
  In keeping with this shared responsibility, the Senate must fulfill 
its constitutional duty to review the nominations sent to us by 
President Bush--including the nomination of Miguel Estrada. We must 
assure ourselves that every nominee has the qualifications, 
temperament, and commitment to enforcing the constitutional and federal 
statutory protections that are central to our American democracy.
  This is not a role we take lightly. At stake are lifetime 
appointments to courts that have the power to make far-reaching 
decisions affecting the lives of our people and the life of our Nation. 
The D.C. Circuit is one of the most important courts in the country--
second only to the Supreme Court. It is particularly important to 
workers, immigrants, and those seeking to enforce their civil rights. 
It has a unique and prominent role among the Federal courts of appeals, 
particularly in the area of administrative law, and has exclusive 
jurisdiction over many workplace, environmental, civil rights, and 
consumer protection statutes.
  If confirmed, Mr. Estrada would make decisions about the rights of 
workers. He would decide cases involving the right to form a union 
without intimidation by an employer and cases that affect health and 
safety rules and regulations--regulations affecting workers exposed to 
tuberculosis, and dangerous, even toxic, chemicals. These problems 
aren't going away--they are increasing. The administration continues to 
issue anti-worker Executive Orders and undermine the labor rights of 
airline workers. It refuses to put a plan in place to address the 
serious problem of ergonomic injuries in the workplace. We need judges 
who will interpret the law fairly--not judges tied to special interests 
that drive the administration's agenda.
  In recent years, the D.C. Circuit has become a safe haven for 
employers eager to defy the orders of the National Labor Relations 
Board. In 1980, 83 percent of all NLRB decisions were enforced in full 
by the D.C. Circuit. Deference was given to the Board by the court. In 
2000, however, only 57 percent of NLRB decisions were enforced in full. 
Time after time, the closely-divided D.C. Circuit has refused to defer 
to the NLRB's expertise.
  Jose Castro knows that one judge's vote can make a difference. A few 
years ago, the Hoffman Plastics Company fired workers in retaliation 
for their attempts to organize a union. In response, the National Labor 
Relations Board ordered reinstatement and backpay for the workers 
affected. The board later denied reinstatement and granted only limited 
backpay to Mr. Castro, an undocumented worker. When Hoffman Plastics 
challenged the board's decision, the D.C. Circuit--in a 5 to 4 
decision--rejected the employer's argument and enforced the board's 
order. The court determined that the board had appropriately crafted 
its order to take into account the policies underlying both the 
National Labor Relations Act and the Immigration Reform and Control 
Act.
  Last year, however, the Supreme Court reversed the board and the D.C. 
Circuit and held--in a 5 to 4 decision--that many immigrant workers are 
not entitled to backpay remedies under the National Labor Relations 
Act. The Supreme Court's decision affects as many as 6 million 
immigrant workers across the United States, and employers have used it 
to claim that those workers have no labor protections.
  If confirmed, Mr. Estrada would make decisions about our 
environmental laws--such as challenges to clean water regulations, 
Superfund clean-up of toxic sites, and Clean Air Act regulations. He 
will decide cases such as American Trucking Associations v. EPA, which 
denied EPA the authority to establish health standards for smog and 
soot. The issue in that case directly affects the thousands of children 
who suffer and die from asthma every year.
  Mr. Estrada will be making these decisions as the Bush administration 
takes dramatic steps to curtail enforcement of our environmental laws. 
The administration has proposed rules to remove 20 million acres of 
wetlands from Federal protection, new regulations to weaken national 
forest protections enacted by the Reagan administration, approved 
natural gas drilling in Texas along the Nation's longest stretch of 
undeveloped beach, and proposed to scale back environmental reviews and 
judicial oversight over national forests and public lands.
  Mr. Estrada will also make decisions about the enforcement of our 
nation's civil rights laws when he reviews race, gender, and disability 
discrimination cases like Kolstad v. American Dental Association. 
Carole Kolstad sued her employer for gender discrimination, and a one-
vote majority of the D.C. Circuit upheld a very high standard for the 
collection of punitive damages. The Supreme Court later vacated the 
D.C. Circuit's decision, but once again it is clear that one vote can 
make a difference on the D.C. Circuit.
  The question before the Senate is what role Mr. Estrada will play on 
this important court and in the lives of the American people. Will he 
be a fair and impartial advocate for the law and the Constitution, or 
will he be at the forefront of efforts to deny basic rights and 
protections for those who need them?
  Mr. Estrada's record and his testimony before the Judiciary Committee 
provides little information and even less assurance that he is the 
right person for this important position. It is difficults--if not 
impossible--for us to exercise our constitutional duty of advice and 
consent, and to satisfy ourselves that Mr. Estrada is fit for a 
lifetime appointment without full information. Yet, Mr. Estrada remains 
a mystery. He refused to provide candid answers to questions during his 
hearing or in writing to the committee. And the Justice Department 
refuses to provide memoranda produced by Mr. Estrada when he served in 
the Solicitor General's office.
  These Solicitor General memoranda would be helpful in understanding 
Mr. Estrada's fitness for a judgeship. They would aid us in determining 
how he would approach the complex task of judging, and whether he would 
be able to separate his own personal views from an objective analysis 
of the law. This administration and previous administrations have 
provided us with this kind of information in the past, and it is 
incumbent upon the administration to provide the Senate with the

[[Page S1952]]

information necessary to evaluate nominees to our Nation's Federal 
courts.
  The little we do know of Mr. Estrada's record raises grave concerns. 
In fact, his direct supervisor in the Office of the Solicitor General 
has raised questions about whether Mr. Estrada has the temperament and 
requisite moderation to sit on the D.C. Circuit. The supervisor, Mr. 
Bender, has expressed his belief that Mr. Estrada would have difficulty 
separating himself from his personal ideological views.
  It has been reported, for instance, that some of Mr. Estrada's 
colleagues have said that he is not openminded and that he ``does not 
listen to other people.'' After an in-depth meeting with Mr. Estrada, a 
member of the Congressional Hispanic Caucus stated that Mr. Estrada 
appeared to have a ``very short fuse'' and that he did not ``have the 
judicial temperament that is necessary to be a judge.'' According to 
the Puerto Rican Legal Defense Fund, with whom Mr. Estrada met, he was 
not ``even-tempered"--he became angry during their meetings with him, 
and he even threatened the group with legal action because they had 
raised concerns about his record.
  These reports are very troubling. What we seek in our judges is a 
quality that makes them more than just talented lawyers or advocates. 
We want to know that a judge is openminded and fair. I am not persuaded 
that Mr. Estrada possesses the key qualities of moderation, openness 
and fairness required of our judges.
  The cases that Mr. Estrada has made the primary focus of his pro bono 
activity also raise concerns about whether he will be fair in the wide 
range of cases that come before him. In two cases, Mr. Estrada tried to 
limit the first amendment rights of minorities to congregate and 
associate on public streets. He also sits on the board of the Center 
for Community Interest, which advocates the kind of police tactics that 
have often led to harassment and racial profiling in minority 
communities.
  Mr. Estrada's single-minded focus on justifying such ordinances is 
cause for great concern. Even after the clear rebuke from the Supreme 
Court about the Chicago ordinance, he devoted many hours to defending 
the City of Annapolis against challenges to the constitutionality of 
its own antiloitering ordinance. When the NAACP challenged the 
ordinance, Mr. Estrada ``offered to take the city's case all the way to 
the U.S. Supreme Court, if necessary, free of charge.'' Mr. Estrada 
lost that case, too, however, when a Federal district court struck down 
the law as unconstitutional.
  We know that decades of important civil rights precedents may well be 
at stake in coming years. These issues raise very serious concerns 
about Mr. Estrada's nomination. He is an intelligent and talented 
lawyer. But that is not enough. To serve as a Federal judge--
particularly on the second most important court in the land requires a 
commitment to the core constitutional values of our democracy. It 
requires the special qualities that enable judges to meet their own 
important responsibilities--fairness, impartiality, and openmindedness.
  There is nothing anti-Latino about our objections to Mr. Estrada. 
President Bush has nominated five Latinos to the Federal courts, four 
of whom were confirmed last year, when the Democrats controlled the 
Senate. It is the Democrats who have taken the lead in appointing 
Latinos to the Federal courts. During the Clinton administration, 23 
Latino nominees were confirmed to the Federal courts--more than in any 
previous administration, Republican or Democrat. More Latinos would 
have been confirmed had it not been for the unfair tactics of Senate 
Republicans.
  In fact, five Latino nominees sent to the Senate by President Clinton 
were not confirmed by the Republican-controlled Senate. Two of them, 
nominated to the Fifth Circuit Court of Appeals from Texas, were not 
even given hearings. One waited more than a year in the Senate before 
his nomination was returned to the President because of inaction by the 
Judiciary Committee. The other waited more than a year, and was then 
renominated by President Clinton in January of 2001, but President Bush 
withdrew it.
  All five Latino nominees blocked by Senate Republicans had the full 
support of the Latino community--but the same cannot be said of Mr. 
Estrada. The major Latino organizations have raised strong concerns 
about Mr. Estrada. The Congressional Hispanic Caucus has opposed his 
nomination. The Latino organizations opposing or raising concerns about 
Mr. Estrada include: the Mexican American Legal Defense Fund, the 
Puerto Rican Legal Defense Fund, the National Association of Latino 
Elected and Appointed Officials, the National Council of La Raza, the 
California La Raza Lawyers, the Southwest Voter Registration Project, 
and the Illinois Puerto Rican Bar Association.
  The Congressional Hispanic Caucus has told the Senate Judiciary 
Committee that Mr. Estrada does not meet their criteria for endorsement 
of a nominee. As the letter they sent to the committee states:

       The appointment of a Latino to reflect diversity is 
     rendered meaningless unless the nominee can demonstrate an 
     understanding of the historical role courts have played in 
     the lives of minorities in extending equal protections and 
     rights; has some involvement in the Latino community that 
     provides insight into the values and mores of the Latino 
     culture in order to understand the unique legal challenges 
     facing Latinos; and recognizes both the role model 
     responsibilities he or she assumes as well as having an 
     appreciation for protecting and promoting the legal rights of 
     minorities who historically have been the victims of 
     discrimination.
       Based on the totality of the nominee's available record and 
     our meeting with him, Mr. Estrada fails to meet the CHC's 
     criteria for endorsing a nominee.

  The Mexican American Legal Defense Fund opposes Mr. Estrada as well. 
According to their statement:

       The most difficult situation for any Latino organization is 
     when a President nominates a Latino who does not reflect, 
     resonate or associate with the Latino community, and who 
     comes with a predisposition to view claims of racial 
     discrimination and unfair treatment with suspicion and doubt 
     instead of with an open mind. Unfortunately, the only Latino 
     whom President Bush has nominated in two years to any Federal 
     circuit court in the country is such a person. President Bush 
     nominated Mr. Estrada to the D.C. Circuit Court of Appeals.
       After a thorough examination of his record, his 
     confirmation hearing testimony, and his written answers to 
     the U.S. Senate, we announce today our formal opposition to 
     his nomination. We cannot in good conscience stand on the 
     sideline and be neutral on his nomination or others like his. 
     We oppose his nomination and that of others that will prevent 
     the courts from serving as the check and balance so 
     desperately needed by our community to the actions being 
     taken by the executive and legislative branches.

  Recently, the Puerto Rican Legal Defense Fund also issued a statement 
reaffirming its opposition to Mr. Estrada's nomination.
  Many of us have deep concerns about Mr. Estrada's record and his 
unwillingness to supplement the record with answers to important 
questions or production of the memoranda from his days in the Solicitor 
General's office.
  I urge the Senate to reject this nomination. A lifetime appointment 
to a court so important in deciding so many basic issues should not be 
given to a nominee about whom we know so little.
  The basic values of our society--whether we will continue to be 
committed to equality, opportunity, freedom of expression, the right to 
privacy, and many other fundamental rights--are at stake in all of 
these nominations. On the role of the Senate in the appointment 
process, the genius of the Constitution is the clear system of checks 
and balances that it provides. The Constitution says ``advice and 
consent''--not ``rubber stamp.'' When this or any other administration 
nominates judges who would weaken the core values of our country and 
roll back the basic rights that make our country a genuine democracy, 
the Senate should reject them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, today I rise in support of Miguel 
Estrada, the nominee for the 12th Circuit Court of Appeals.
  It is an honor to serve my State of Georgia in this great 
institution, and I am pleased that the work we are undertaking today 
pertains to such an important issue for our country--filling the 
vacancies in our courts with good and honorable judges.
  One of the most important burdens that has been placed on the 
shoulders

[[Page S1953]]

of the Senate is the sanction of Federal judges. I relish this task 
because it grants us an opportunity to have a hand in the future of the 
laws that govern this great land. And there is no better way to help 
craft the America of the next generation, the America to be served by 
our children and our grandchildren.
  Before I came to Congress, I practiced law for 26 years and I can say 
that it is rare to meet someone as qualified for the bench as Miguel 
Estrada. The American Bar Association unanimously rated Mr. Estrada as 
``well qualified.'' I understand that some of my colleagues in the past 
have referred to this rating as the ``gold standard'' for judicial 
nominees. It seems then that a unanimous ``well qualified'' rating 
should speak volumes about Mr. Estrada's merit.
  Some critics have said that Mr. Estrada should not be confirmed 
because he lacks judicial experience. I would simply highlight the 
examples of Justice White and Chief Justice Rehnquist. Both men had no 
prior judicial experience when they were appointed to the Supreme 
Court. Also on the same court that Mr. Estrada would join, five of the 
eight sitting judges had no prior judicial experienced, two of which 
were nominated by President Clinton.
  Mr. Estrada, however, has had exceptional experience both in the 
government and in private practice. From 1992 to 1997, he served in the 
Clinton administration as Assistant to the Solicitor General in the 
Department of Justice. He has argued 15 cases before the Supreme Court 
and is widely regarded as one of America's leading appellate advocates. 
He is currently a partner for a leading law firm with their appellate 
and constitutional law practice group. I believe that this represents 
sufficient experience for his nomination.
  Another argument made by some is that Mr. Estrada has refused to 
produce confidential memoranda that he wrote when he was with the 
Solicitor General's office. I would argue that this request, if met, 
would have a debilitating effect on the ability of the Department of 
Justice to represent the United States before the Supreme Court and I 
have a letter signed by every living former Solicitor General--Democrat 
and Republican alike--saying the same. I would ask unanimous consent to 
print this letter in the Record.
  There being no objection, the letter ordered to be printed in the 
Record, as follows:

                                       Wilmer, Cutler & Pickering,


                                               Washington, DC,

                                                    June 24, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, 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 of 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 and 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 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 
     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,
       On behalf of: Seth P. Waxman, Walter Dellinger, Drew S. 
     Days, III, Kenneth W. Starr, Charles Fried, Robert H. Bork, 
     Archibald Cox.

  Mr. CHAMBLISS. Also, as we have heard, Mr. Estrada has a great story; 
he is accomplished, competent, and experienced. This man came to 
America to seek the American Dream and he is now living that dream. He 
came to the United States from Honduras when he was seventeen years old 
and has spent his life gaining credibility as a Hispanic man of 
distinction. If confirmed, Mr. Estrada would break a glass ceiling by 
being the first Latino judge to serve on the DC Court of Appeals. 
However, if he is not confirmed, it would not just be terrible for the 
District of Columbia, but it would send the wrong message to Hispanic 
communities in my home state of Georgia and across the nation. But I 
would say to my colleagues that you should not vote for Miguel Estrada 
because he is Hispanic, you should vote to confirm him because he is a 
world-class laywer and he will make a world-class judge.
  Mr. Estrada is a great lawyer and will make a superb judge. He has 
the qualifications, the capacity, the integrity, and the temperament to 
serve on the federal bench. I was happy to support his nomination last 
week in the Judiciary Committee and I urge my colleagues to join me in 
supporting the President's nominee for this important position.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, just a few remarks. The distinguished 
Senator from Massachusetts is very concerned about this court and how 
judges function on it, as am I. It is a very important court. In fact, 
next to the Supreme Court, it is the next most important court in the 
country--no question about it--because the decisions they make affect 
almost every American in many instances.
  In terms of straightforward application of the law, the DC Circuit is 
one of the best functioning courts in the country. Recent years have 
seen DC circuit judges agreeing in the overwhelming majority of cases, 
including ones of great political significance, even when Republicans 
outnumbered Democrats six to four.
  I might also add that the DC Circuit is in the midst of a vacancy 
crisis unseen in recent memory. Only eight of the court's 12 authorized 
judgeships currently are filled. In the past 2 years, two of the 
court's judges have taken senior status.
  The DC Circuit has not been down to eight active judges since 1980. 
It is a crisis situation because it is extremely important. The vacancy 
crisis is substantially interfering with the DC Circuit's ability to 
decide cases in a timely fashion. As a result, litigants find 
themselves waiting longer and longer for the court to resolve their 
disputes. Because so many DC Circuit Court cases involve constitutional 
and administrative law, this means that the validity of challenged 
government policies is likely to remain in legal limbo.
  In the 2001-2002 term, the court had to cancel several scheduled days 
of oral argument. As a result, cases that would have been heard in 
2001-2002 will not be heard until September of 2002 at the earliest. 
For the 2002-2003 term, the court will be able to hear cases on just 96 
days and will be able to schedule just 336 cases. Because of the 
limited number of sitting days, the court's oral argument calendar is 
already nearly full through March of 2003.
  The vacancy crisis is also interfering with the operation of the 
court's emergency panel which hears emergency cases and various 
motions. Because only seven judges are now available for emergency 
panels, each one has to serve 6 weeks of overtime emergency duty on top 
of the 16 weeks he or she ordinarily serves throughout the year.
  The court often has been forced to constitute emergency panels with 
fewer than the usual complement of three judges.
  The chief judge of the DC Circuit, at a recent circuit conference 
said:

       If the court does not have additional judges soon, our 
     ability to manage our workload in a timely fashion will be 
     seriously compromised.

  He further explained that:


[[Page S1954]]


       . . . it is clear that the Senate's inaction is coming to 
     jeopardize the administration of justice in this Circuit.

  That is important stuff. It is really important that we put Miguel 
Estrada on the court.
  We have had some comments about a few Latino groups that are known 
for liberal politics and have been opposed to Miguel Estrada. Let me 
list a few groups that support him. The following groups are just some 
that have announced support for him: League of United Latin American 
Citizens, LULAC, the Nation's oldest and largest Hispanic civil rights 
organization; U.S. Hispanic Chamber of Commerce; Hispanic National Bar 
Association; Hispanic Association of Corporate Responsibility; 
Association for the Advancement of Mexican Americans; MANA, a national 
Latina organization; Cuban American National Council; U.S.-Mexico 
Chamber of Commerce; Hispanic Business Roundtable; The Latino 
Coalition; National Association of Small Disadvantaged Businesses; 
Mexican American Grocers Association; Phoenix Construction Services; 
Hispanic Chamber of Commerce of Greater Kansas City; HEBC, Hispanic 
Engineers Business Corporation; Hispano Chamber of Commerce de Las 
Cruces; Casa Del Sinaloense; Republican National Hispanic Assembly; 
Hispanic Engineers Business Corporation; Hispanic Contractors of 
America; Charo, Community Development Corporation; Cuban American 
National Foundation.
  The League of United Latin American Citizens is the oldest Hispanic 
civil rights organization. Established in 1927, it has more than 700 
councils and more than 120,000 individual members.
  The U.S. Hispanic Chamber of Commerce was established in 1979, with a 
network of more than 200 local chambers across the country, and it 
advocates on behalf of the 1.8 million Hispanic-owned businesses in the 
country.
  The Hispanics National Bar Association was established in 1972 and 
has more than 25,000 members, consisting of lawyers and judges.
  MANA, a national Latino organization, was established in 1974 to give 
a voice to the more than 20 million Hispanic women of all backgrounds 
and professions across the U.S.
  The AAMA, Association for the Advancement of Mexican Americans, with 
over 30 years of service to the community, has been ranked the ninth 
largest Hispanic nonprofit in the country, providing education, 
employment and training, health care, and related services to more than 
30,000 people annually.
  The Cuban American National Council has served the Cuban American 
community of Florida for the past 23 years, through education, housing, 
health and human services, and employment and training.
  I just thought the record needed to show that Miguel Estrada has 
tremendous support among Hispanic people. Now, things we've heard in 
the debate against Miguel have been some of the saddest things I have 
ever witnessed. It is akin to the lioness eating her cubs--Democratic 
Latino community leaders turning on one of their own because he doesn't 
fit their definition of ``Latino.''
  Among their concerns is he is a recent immigrant, he hasn't lived in 
this country long enough to understand the plight of Hispanic 
Americans, he wasn't poor enough, his family was middle class and he 
attended private schools, he speaks English too well, he speaks Spanish 
too well--these are comments made by some of the liberal Latino groups. 
He is not from Mexico or Puerto Rico, he is from Honduras; he didn't do 
the right kind of pro bono work; he sought to protect victims of crime, 
not criminals. Jeepers.
  His critics would have you believe that to be Hispanic you have to be 
poor, attend only inner city schools, work for the public defenders 
office, and never aspire to work for the Department of Justice, or to 
clerk for the U.S. Supreme Court. I don't think the vast majority of 
Hispanic people think that way. I think they are proud of Miguel 
Estrada, and they ought to be because he is a man who has really made 
something of his life, and he is still a very young man.

  Miguel Estrada is the American dream incarnate. I think this should 
be celebrated by all Americans, but certainly by Hispanic Americans, 
and especially Hispanic mothers and fathers who dream of a bright 
future for their children. Tell those mothers and fathers that in order 
to be considered Hispanic, your children have to remain poor, forgo a 
quality education, and give up their dreams of succeeding in the legal 
profession. That is pure bunk and everybody knows it. But these are 
some of the arguments that have been made against Miguel Estrada.
  Lest anybody think I am just saying these things because I am 
supporting Miguel Estrada, I have spent most of my Senate career 
working very closely with the Hispanic community in the United States, 
getting to know the issues and addressing the community's concerns 
through legislation. In fact, in 1986, I started the U.S. Senate 
Republican Conference Task Force on Hispanic Affairs to ensure that the 
Hispanic community had a strong voice in the Senate. Over my lifetime, 
I have grown to love the Hispanic culture, their people, and their 
history. I believe their values and culture have infused and 
invigorated the American dream. The Latinos I have come to know over 
the past 26-plus years tell me it is all about heart. It is the 
``corazon.'' Frankly, I have come to feel like I personally have a 
Latino heart beating in my breast. That is how important this community 
is to me. That is how close I feel to my Hispanic brothers and sisters. 
I have the credentials to make that case. I happen to know Miguel 
Estrada. He, too, has ``corazon.''
  The Hispanic community leaders I respect and admire have dedicated 
themselves to ensuring that people such as Miguel have the very 
opportunity Miguel has used to his advantage. They want Hispanics to 
succeed. They are not trying to force all Latinos into cookie cutter 
shapes. They want Hispanics to be as free to find their own way as 
American citizens. Organizations such as the League of United Latin 
American Citizens, the oldest Hispanic civil rights organization in the 
country, and the United States Hispanic Chamber of Commerce have 
existed for decades. Their mission has been to ensure that the 
downtrodden, the poor, the recent immigrant, and his heirs have an 
opportunity to succeed absent discrimination.
  Hector Flores, president of LULAC, and George Herrera, the Hispanic 
Chamber's President, work hard to get more Hispanic kids into Columbia 
and Harvard, more Latino youth to clerk in at the U.S. Supreme Court, 
to work at the Department of Justice, and to become partners of a 
prestigious law firm. Miguel Estrada deserves credit, rather than this 
constant worry that he might be too conservative, or he might be too 
conservative than some of these liberal groups would like.
  I have a lot more to say, but I will yield the floor at this point.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. REID. Mr. President, I didn't want the night to go by without 
commenting on some remarks made by two Senators on the other side, the 
majority, who have suggested that those who oppose Miguel Estrada are 
doing it on the basis of his ethnicity. In fact, one Senator said it 
was anti-Hispanic. The Congressional Hispanic Caucus, which is in 
existence here in Congress and consists of Hispanic members of Congress 
who have been elected by people from congressional districts all around 
the country, was formed many years ago. The Congressional Hispanic 
Caucus has taken a position against the nomination of Miguel Estrada. I 
hope nobody would suggest that the Congressional Hispanic Caucus is not 
Hispanic.
  In fact, the Congressional Hispanic Caucus was so concerned about the 
fact there are not enough Hispanics in the judiciary that they formed 
in the last Congress the Congressional Hispanic Caucus Hispanic 
Judiciary Initiative to assure fair treatment of judicial nominees and 
to promote diversity.
  While the Congressional Hispanic Caucus has endorsed other Bush 
judicial nominees who are Hispanic, such as Jose Linares, Mr. Estrada 
failed most of the factors in their evaluation. Therefore, they oppose 
his nomination.
  The Congressional Hispanic Caucus sent a letter to the Judiciary 
Committee late last year. It was signed by Congressmen Silvestre Reyes 
and Charles Gonzalez on behalf of the entire Hispanic caucus. The 
letter was based on the review of his qualifications and their 
interview with him.

[[Page S1955]]

  I am certainly not a member of the Judiciary Committee, and I am not 
here to debate the issue with the learned chairman of the committee, 
but I want everyone within the sound of my voice to understand that 
someone can opposes this nomination and not do it based on anti-
Hispanic grounds. There is no better logic than to look at the 
Congressional Hispanic Caucus which opposes this nomination.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I wish to make a few points. Some of my 
colleagues are suggesting that we are playing what amounts to the race 
card on this nominee. That is ludicrous. Personally, I resent it.
  Let me make one point clear: No one is suggesting that anyone in the 
Senate has a bigoted bone in his or her body. No one is suggesting that 
for a minute. No one is suggesting Mr. Estrada is being opposed because 
he is a Hispanic. That is just a red herring. It is a shame on anyone 
who is arguing that carbuncle.
  What I have suggested is exactly what Herman Badillo, a former 
Democratic Congressman, has written publicly. Some liberal, and, yes, 
Democrats, show increasing intolerance to Hispanics and African 
Americans who do not subscribe to their left of mainstream ideology. 
Their intolerance is not because they are Hispanic or African American 
but because they are Hispanic or African American and not liberals. 
That is where the intolerance is.
  Some people will simply not accept a Hispanic, African American, or 
even women who do not toe the line of the radical left of special 
interest groups. We are finding that all over this instance.
  Herman Badillo, a former Democratic Congressman, for whom I have 
always had respect, has written:
       Liberals and their special interest groups want to force 
     these minorities into one monolithic intellectual ghetto 
     demanding that they be of one mind.
  I would think that every minority, whether liberal or conservative, 
would find such patronizing thought, control, and elitism demeaning and 
insulting. It amounts to an intellectual glass ceiling for minorities, 
and that is, to a degree, what is happening here.
  In the hearing we held last September and in the follow-up questions, 
I have not heard one argument against Miguel Estrada--not one, not one 
valid argument. I have not heard one person make a case that the 
American Bar Association was wrong when they gave Miguel Estrada a 
unanimously well-qualified rating, the highest rating that the American 
Bar Association can give.
  I have not heard one person indicate that this man is not of the 
highest intellect, the highest moral purpose, the highest 
qualifications, except for Paul Bender, who I think we more than 
explained away a few minutes ago, and it had to be done because for 
some reason they keep bringing up this man who has been very unfair and 
for partisan, cheap political reasons apparently, after having given 
the highest, most glowing recommendations for Mr. Estrada when he 
worked for him at the Justice Department.
  They try to explain it away: Well, he was not talking about his 
ideology. Of course, he was. If there had been one indication of bad 
ideology or too much extreme ideology, I can guarantee you Paul Bender 
would never have given those glowing performance evaluations.
  It is offensive. This man is a law professor in this country and, 
unfortunately, I hate to say it, but the law professors in this 
country, as a whole, are extremely to the left, and that is not too far 
different from many of the political science professors in this 
country.
  I remember I went to one of the major universities a few years ago, 
and of the 41 members of the faculty, only one claimed to maybe be a 
moderate. All the rest admitted they were left wing, and yet these are 
the people teaching our children. That is not bad. They have a right to 
hear left-wing ideology and more liberal teachers, but I think they 
also have a right to hear people who are on the other side of the 
equation who may be right in many ways, not just right ideologically.

  To be honest, I get a little tired of this business that we Democrats 
are the ones who have really done more appointments for Hispanics. 
Republican Presidents altogether in recent years have appointed 25 
Hispanic judges. Sonia Sotomayor of New York was appointed by the first 
President Bush and was subsequently nominated to the Second Circuit by 
President Clinton and was confirmed.
  The second President Bush has already nominated nine Hispanics, with 
three more coming up, according to press reports, for a total of 12. 
His chief counsel in the White House is Hispanic. There is no question 
he is reaching out and doing a good job. It is one of the things I love 
about him.
  At the current rate of second President Bush, we can expect in 8 
years President Bush I think will probably appoint at least 36 to 40 
Hispanic judges on his own, more than all the past Republican 
Presidents put together and more than any single Democratic President.
  To try to make the case only Democrats care for Hispanics is just 
ludicrous. I will say this, my colleagues on the other side are good 
people. I believe they are sincere in working for minorities as they 
have done, and I appreciate them personally, but to try to imply we are 
not I think is hitting below the belt in ways that should not happen on 
the Senate floor.
  In all honesty--and I have heard arguments today that would cause 
anybody--I mean the bad arguments--the arguments against Miguel Estrada 
would cause people to vote for him. Miguel Estrada is a fine man. 
Miguel Estrada has made it to the top of his profession even with a 
disability. There are not many people who have argued 15 cases before 
the Supreme Court or who have the unanimously well-qualified American 
Bar Association rating or who have been the editor in chief of the 
Harvard Law Review, who have served various Federal judges.
  I am a little surprised about some of my colleagues' confusion as to 
why Mr. Estrada, they claimed, did not address policy questions put to 
him. It is quite understandable. Would we policymakers want another 
public official, in this case a judicial nominee, to answer policy 
questions? A judicial nominee is not applying for a job as a 
policymaker. He or she is going to be a judge. Judges are not in the 
business of answering policy questions. It is just that simple.
  When one asks the question, What is your view of the first amendment, 
my gosh, how does one answer that question? It is easy to say: I 
believe in it. I guess that is what Miguel Estrada could have said. Or 
if one asks, Are you going to overturn all of the environmental laws of 
our country, or words to that effect I heard on the floor today, first, 
it is offensive to ask that kind of question and, second, nobody in his 
or her right mind as a judicial nominee would want to give an opinion 
on a broad issue that might foreclose them from sitting on important 
cases that would come before the court later.
  Yes, nominees are told on both sides, whether it is a Clinton judge 
or George W. Bush judge, that you should not be giving opinions that 
might involve what you might later have to judge when you get on the 
bench.
  So it is a fine line and it is not an easy thing for witnesses, and 
frankly especially those who have not served on the Judiciary Committee 
and have not been through it for a long time. And even if they have, it 
is not easy.
  The important realization in regard to Miguel Estrada is they had 
every opportunity to ask him any questions they wanted. They were in 
the majority. They held the committee hearings. I have heard Democrats 
on the committee say those hearings were conducted fairly and 
responsibly. Afterwards they had a right to submit any written 
questions they wanted to submit, and only two Senators submitted them 
and they were answered. So some of these arguments I have heard today 
are not arguments at all.
  I think it was Walter Mondale who said: Where is the beef? What is it 
that makes Miguel Estrada unqualified to be on the Circuit Court of 
Appeals for

[[Page S1956]]

the District of Columbia? I do not think there has been even the 
slightest case made against him.
  Then what is it? What is against him? What is against this fine 
Hispanic man who has made it on his own? I do not see any reason. Maybe 
we will get some in the next few days, but I do not see any reason. And 
I sure as heck would not rely on Paul Bender, not after what we all 
know he has done. He gave glowing performance evaluations when he 
really had the power--as an honest liberal, which we believed him to be 
at the time--he gave glowing performance evaluations and then later 
when this fine person, Miguel Estrada, is offered up as a judicial 
nominee by the President of the United States, he comes out and says he 
is an ideologue.
  Who are you going to believe? I do not think I would believe Paul 
Bender on that issue, and I do not think anybody else should, either.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, there have been too many protests on the 
other side. The majority has said time and time again that they, the 
Republicans, treat the Hispanics well. I do not know why they have to 
keep saying that. The record speaks for itself. This side need not do 
so because our record does speak for itself. And that is the reason, as 
I said earlier, when people come--one Senator did come and talk about 
words to the effect I am not anti-Hispanic and then proceeded to lay 
out everything that was. That is why I thought I would come forward and 
talk about the fact that the Hispanic Caucus, which certainly could 
never be judged to be anti-Hispanic, has come out against this 
nomination, as have numerous other organizations: the Congressional 
Hispanic Caucus, the Congressional Black Caucus, and Hispanic 
organizations such as the Puerto Rican Legal Defense and Education 
Fund, Juan Figuera, President and General Counsel, the Mexican American 
Legal Defense and Education Fund, National Association of Latino 
Elected and Appointed Officials, National Council of La Raza, NCLR, 
National Puerto Rican Coalition, California La Raza Lawyers, Puerto 
Rican Bar Association of Illinois, Southwest Voter Registration 
Education Project, Labor Council for Latin American Advancement, Linda 
Chavez Thompson, AFL-CIO, 52 different Latino labor leaders, including 
people from all over the country from California to New York and places 
in between.

  There are civil rights and other organizations that oppose this 
nomination: the American Federation of Labor and Congress of Industrial 
Organizations, AFL-CIO, Sierra Club, Leadership Conference on Civil 
Rights and Alliance for Justice, Leadership Conference on Civil Rights, 
National Association for the Advancement of Colored People, National 
Organization for Women, National Black Women's Health Project, Mexican 
American Legal Defense and Education Fund, Lawyers' Committee for Civil 
Rights Under Law, National Association for the Advancement of Colored 
People, Alliance for Justice, People for the American Way, National 
Council of Jewish Women, National Family Planning and Reproductive 
Health Association, Feminist Majority, National Association for the 
Advancement of Colored People, People for the American Way, Planned 
Parenthood Federation of America, NARAL Pro-Choice, National Family 
Planning and Reproductive Health Association, and scores of other 
organizations.
  I think the debate at this stage is being framed improperly. There 
are people on this side who have not made up their mind what they are 
going to do, but the way the debate is going forward, it does give me 
some concern. I hope the debate in during the next whatever period of 
time it goes forward, we can talk about the man's judicial 
qualifications and not berate people who say for one reason or another 
he is not qualified, such as Mr. Bender. I have never met Mr. Bender, 
but I think he has taken enough lashes today that we should drop the 
subject. He has a right, in my opinion, to oppose someone. These 
organizations have a right to oppose him. The organizations who support 
him have every right to come forward and support him. It should be on 
the basis of this man's qualifications, whatever they might be, and not 
on ethnicity and on whether or not groups support people because they 
are for the poor.
  I made some notes here that someone suggested Latinos only support 
those lawyers who work for the poor or for the public defender's 
office. I really do believe this debate would be much more structured, 
civil, and productive if we dealt with Miguel Estrada's qualifications 
and not berate people who are for or against him.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Let me say about Mr. Bender, I was criticized by the 
distinguished Senator from Massachusetts for pointing out the biases of 
Mr. Bender. I was accused of finding fault with him. Well, what about 
Mr. Bender dishonestly finding fault with Miguel Estrada? I think I 
more than made a case that this man has done it for partisan political 
purposes, and I am going to make that case over and over. If they want 
to keep bringing up Paul Bender, then I am going to make the case that 
Paul Bender has done a very bigoted, rotten thing, after having given 
the greatest performance reviews one could get in the Solicitor 
General's office.
  So who would you believe? I think it is important to point that out 
and not let anybody get away with that.
  I will mention one group because it has been mentioned by my friend--
and he is my friend--the distinguished Senator from Nevada. A review of 
the Congressional Hispanic Caucus' statement in opposition is most 
disappointing to me. It was issued in advance of Miguel's hearing. They 
did not even listen to him, and they issued it. My colleagues in the 
House, who have argued persuasively for a fair process, decided Miguel 
was not so entitled. They did not even wait until he testified to 
condemn him. They pronounced judgment beforehand. But that should not 
surprise us because the Democrat Congressional Hispanic Caucus is 
exactly that. It is a Democrat machine. The Republican members of the 
caucus who were members at one time were forced out because they did 
not think and act like their Democrat counterparts. There are no 
Republican members of the Congressional Hispanic Caucus, not one. They 
were forced out. The Democrat Congressional Hispanic Caucus may oppose 
Miguel Estrada, but the Republican Congressional Hispanic members, 
Lincoln Diaz-Balart, Ileana Ros-Lehtinen, Henry Bonilla, Mario Diaz-
Balart, all support his confirmation.
  Again, I say to my colleagues on the other side, where is the beef? 
All this speculation about what they think that Miguel Estrada will be 
on the court, where is the proof? There is not any. In fact, there is 
proof to the contrary.
  So that is one reason why I have been a little bit upset today, and I 
think I am going to continue to be upset if these types of approaches 
are taken against this really fine man. We are going to defend him. We 
are going to defend him as the good person he is.
  I ask unanimous consent that the Senate now return to legislative 
session and that it proceed to a period for morning business.
  Mr. REID. Mr. President, I object at this time.
  The PRESIDING OFFICER. The objection is heard.
  Mr. REID. Mr. President, I will respond very briefly.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. I am happy to yield to the distinguished Senator.
  Mr. REID. I was involved in a long conference with the Hispanic 
caucus yesterday. This organization met long and hard with Miguel 
Estrada. They met for 3 hours on one occasion, and based upon that and 
other issues they raised in their letter, they thought they could not 
support him.
  As I stated earlier today, the Congressional Hispanic Caucus has 
supported, and will continue to support, other Bush judicial nominees 
who are Hispanic, and they have already done so.
  I mentioned a number of names earlier. They can speak for themselves.

[[Page S1957]]

They are Members of the other body and do not have authority to speak 
here, but if they could speak, they would speak loudly, with a lot of 
articulation, about the fact that this man is not qualified, in their 
opinion. They are entitled to that opinion.
  This is a body that is not known for its radicalism; it is a body 
known for its stability, having a long line of very prominent chairmen.
  Maybe with Mr. Bender I should have said he needs to be beaten up 
some more and he would not have been, but I think the record is replete 
that those on the other side think Mr. Bender's evaluation of Miguel 
Estrada is wrong. He has a right to do that. He was his supervisor. He 
has made and continues to make known his opinion that he is not 
temperamentally qualified for this job as a circuit court judge. That 
is what he said.
  This debate should focus on the qualifications of this man. That is 
what this letter to the Senate Judiciary Committee consists of, from 
the Hispanic caucus, to Senator Leahy. They say that the man is not 
qualified. He is not qualified based upon his past experience. They are 
entitled to that opinion.
  As the debate proceeds, a decision will have to be made in this body 
as to whether people agree with the Hispanic caucus about the 
qualifications of persons before this body. Debate that has taken place 
and will take place in the future will be productive in that regard. 
That is why we have a Senate. That is why we are not limited, as in the 
House of Representatives, with, on many occasions, 1 minute and 
sometimes no minutes. We can talk here as long as we want about the 
qualifications of this man. I hope we do not have to talk a long time 
about this man's qualifications. We should talk long enough that full 
debate on his qualifications takes place.
  I am happy now to have my friend reoffer his unanimous consent 
request.
  Mr. HATCH. I add one thing. I believe they are entitled to their 
opinion but they are not entitled to their own facts. They have to live 
with the facts that exist.
  I don't see a fairness in this process. It has not been fair. It has 
been quite partisan, especially on Mr. Bender's part.
  I have been told by those who know, by my Hispanic friends, that the 
Congressional Democratic Hispanic Caucus was pretty split. But the 
majority prevailed. There was a real split over whether they should do 
this to Miguel Estrada. I personally believe that all these liberal 
groups persuaded them.
  I point out, where are the arguments? To say he is not qualified, 
when their own gold standard, the American Bar Association, says he is 
unanimously well qualified flies in the face of any facts. That is just 
my point. Where are the facts?
  I ask unanimous consent that a letter from Henry Bonilla, Lincoln 
Diaz-Balart, and Ileana Ros-Lehtinen be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                               Washington, DC, September 23, 2002.
       Dear Senators Daschle, Lott, Leahy, and Hatch: We are 
     Hispanic Members of the United States House of 
     Representatives who write to strongly support Miguel Estrada, 
     President Bush's nominee to be a judge on the United States 
     Court of Appeals for the District of Columbia Circuit. If 
     confirmed, Miguel would be the first Hispanic judge on what 
     is widely recognized as the nation's second highest federal 
     court. President Bush made an historic decision by nominating 
     Miguel Estrada, and we urge the Senate to promptly confirm 
     this outstanding Hispanic-American.
       Miguel Estrada is an American success story. He immigrated 
     to the United States as a teenager from Honduras speaking 
     little English. He attended Columbia College and Harvard Law 
     School, graduating magna cum laude from both. He clerked for 
     Judge Amalya Kearse on the Second Circuit and Justice Anthony 
     Kennedy on the Supreme Court. Miguel is one of the few 
     Hispanics ever to serve as a law clerk on the Supreme Court 
     of the United States. Miguel worked as an Assistant United 
     States Attorney in the Southern District of New York, and 
     both tried cases in federal district court and argued appeals 
     before the Second Circuit on behalf of the United States. He 
     has worked twice in private practice at leading law firms, in 
     New York at Wachtell, Lipton, Rosen & Katz and in Washington 
     at Gibson, Dunn & Crutcher.
       Miguel also served for five years in the Office of 
     Solicitor General at the United States Department of Justice. 
     In that capacity, Miguel argued 14 cases before the Supreme 
     Court and wrote numerous briefs on behalf of the United 
     States. He is widely recognized as a brilliant lawyer and 
     oral advocate, and his official performance reviews noted 
     that he ``inspired co-workers by example.''
       As demonstrated during his service as Assistant to the 
     Solicitor General, Assistant United States Attorney, and law 
     clerk on the Supreme Court, Miguel Estrada believes in the 
     integrity of the courts and the law. He appreciates the 
     difference between law and policy, between the judicial task 
     and the legislative task.
       Based on his qualifications, intellect, judgment, and 
     temperament, it is no surprise that Miguel Estrada received a 
     unanimous ``well qualified'' rating--the highest possible 
     rating--from the American Bar Association Standing Committee 
     on Federal Judiciary. As Hispanic Members of Congress, we are 
     very proud that the American Bar Association gave this 
     outstanding Hispanic-American its highest possible rating.
       Miguel has performed significant public service beyond his 
     work in government. Most notably, while in private practice, 
     he represented pro bono a capital defendant before the 
     Supreme Court. Capital cases are very difficult legally and 
     emotionally for the lawyers representing the capital 
     defendants. Miguel's decision to involve himself in a 
     difficult capital case speaks volumes about his integrity and 
     devotion to the legal system, and his willingness to perform 
     difficult public service. He also assisted the former United 
     States Attorney in New York, who was appointed by President 
     Clinton, in discussing how to ensure that more federal 
     prosecutors are Hispanic.
       Miguel is widely supported by Hispanic organizations, such 
     as the Hispanic National Bar Association, the League of 
     United Latin American Citizens, and the U.S. Hispanic Chamber 
     of Commerce. He also is supported by prominent Democrat 
     lawyers, such as Ronald Klain, who served as Counsel to Vice 
     President Gore, Robert Litt, who served as Assistant Attorney 
     General for the Criminal Division under President Clinton, 
     and Randy Moss, who served as Assistant Attorney General for 
     the Office of Legal Counsel under President Clinton. 
     Furthermore, Seth Waxman, who served as Solicitor General 
     under President Clinton, has written to the Judiciary 
     Committee that he has ``great respect both for Mr. Estrada's 
     intellect and for his integrity'' and that Miguel was ``a 
     model of professionalism and competence.''
       Miguel Estrada would be the first Hispanic judge on the 
     United States Court of Appeals for the District of Columbia 
     Circuit. You and your colleagues have spoken often about the 
     need for balance on the courts. It is past time that an 
     Hispanic judge serve on this important court. Confirmation of 
     Miguel Estrada would provide balance. We urge you to treat 
     Miguel Estrada with fairness and to confirm him promptly.
       Thank you for your consideration of our views.
           Sincerely,
     Henry Bonilla,
     Lincoln Diaz-Balart,
     Ileana Ros-Lehtinen,
       Members of Congress.

  Mr. REID. I ask unanimous consent that a letter to Pat Leahy from the 
Hispanic caucus signed by Silvestre Reyes and Charles Gonzalez be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                               Washington, DC, September 25, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: On behalf of the Congressional Hispanic 
     Caucus (CHC), we wish to inform you that the CHC has decided 
     to oppose Miguel Estrada's nomination to the United States 
     Court of Appeals for the District of Columbia Circuit. After 
     reviewing Mr. Estrada's record and meeting with him in 
     person, we have concluded that he fails to meet the CHC's 
     evaluation criteria for endorsing judicial nominees.
       As you know, the judicial nomination process is important 
     to the CHC because we believe that our Nation's courts should 
     reflect the diversity of thought and action that enrich 
     America. Earlier this year, we launched the Hispanic 
     Judiciary Initiative to further formalize our involvement in 
     this issue by establishing a set of evaluation criteria and 
     an internal process for endorsing nominees. We hope that this 
     initiative will allow us to continue our work to ensure fair 
     treatment of Latino judicial nominees and tackle the lack of 
     diversity in the federal judiciary.
       In evaluating Mr. Estrada, we considered not only his 
     honesty, integrity, character, temperament, and intellect, 
     but also his commitment to equal justice and advancement 
     opportunities for Latinos working in the field of law. 
     Because of the nature of the CHC's mission and the important 
     role that the courts play in achieving that mission, in order 
     to support a judicial nominee the CHC requires that he or she 
     has a demonstrated commitment to protecting the rights of 
     Latinos through his or her professional work, pro bono work, 
     and volunteer activities; to preserving and expanding the 
     progress that has been made on civil rights and individual 
     liberties; and to expanding advancement opportunities for 
     Latinos in the

[[Page S1958]]

     law profession. On this measure, Mr. Estrada fails to 
     convince us that he would contribute under-represented 
     perspectives to the U.S. Court of Appeals for the District of 
     Columbia Circuit.
       As stated by Mr. Estrada during his meeting with us, he has 
     never provided any pro bono legal expertise to the Latino 
     community or organizations. Nor has he ever joined, 
     supported, volunteered for or participated in events of any 
     organization dedicated to serving and advancing the Latino 
     community. As an attorney working in government and the 
     private sector, he has never made efforts to open doors of 
     opportunity to Latino law students or junior lawyers through 
     internships, mentoring or other means. While he has not been 
     in the position to create internships or recruit new staff, 
     he never appealed to his superiors about the importance of 
     making such efforts on behalf of Latinos. Furthermore, Mr. 
     Estrada declined to commit that he would be engaged in 
     Hispanic community activities once appointed to the bench or 
     that he would pro-actively seek to promote increased access 
     to positions where Latinos have been traditionally under-
     represented, such as clerkships.
       Mr. Estrada shared with us that he believes being Hispanic 
     would be irrelevant in his day-to-day duties on the court, 
     which leads us to conclude that he does not see himself as 
     being capable of bringing new perspectives to the bench. This 
     is deeply troubling since the CHC's primary objective in 
     increasing ethnic diversity of the courts is to increase the 
     presence of under-represented perspectives.
       Mr. Estrada's limited record makes it difficult to 
     determine whether he would be a forceful voice on the bench 
     for advancing civil rights and other protections for 
     minorities. He has never served as a judge and has not 
     written any substantive articles or publications. However, we 
     did note that in responding to inquiries about case law, Mr. 
     Estrada did not demonstrate a sense of inherent 
     ``unfairness'' or ``justice'' in cases that have had a great 
     impact on the Hispanic community.
       The appointment of a Latino to reflect diversity is 
     rendered meaningless unless the nominee can demonstrate an 
     understanding of the historical role courts have played in 
     the lives of minorities in extending equal protections and 
     rights; has some involvement in the Latino community that 
     provides insight into the values and mores of the Latino 
     culture in order to understand the unique legal challenges 
     facing Latinos; and recognizes both the role model 
     responsibilities he or she assumes as well as having an 
     appreciation for protecting and promoting the legal rights of 
     minorities who historically have been the victims of 
     discrimination.
       Based on the totality of the nominee's available record and 
     our meeting with him, Miguel Estrada fails to meet the CHC's 
     criteria for endorsing a judicial nominee. In our opinion, 
     his lack of judicial experience coupled with a failure to 
     recognize or display an interest in the needs of the Hispanic 
     community do not support an appointment to the federal 
     judiciary. We respectfully urge you to take this into account 
     as you consider his nomination to the U.S. Court of Appeals.
           Sincerely,
     Silvestre Reyes,
       Chair, Congressional Hispanic Caucus.
     Charles A. Gonzalez,
       Chair, CHC Civil Rights Task Force.

  Mr. REID. And I say that the final two sentences of this letter be 
read:

       In our opinion, his lack of judicial experience coupled 
     with a failure to recognize or display an interest in the 
     needs of the Hispanic community do not support an appointment 
     to the federal judiciary.

  The Hispanic caucus unanimously opposed the nomination.
  Mr. HATCH. I cannot let that go. If they are saying because he lacks 
judicial experience he should not be on the court--which is what it 
appears to me they are saying--they are just condemning almost every 
nonjudge Hispanic to never have a chance to be a Federal district or 
circuit court of appeals judge. That is ridiculous. Every Democrat 
President I have served with--President Carter and President Clinton--
have appointed a wide variety of people who never served on the bench 
but who are highly qualified and are doing a good job as judges now.
  It may be helpful to have some judicial experience, but not having 
judicial experience does not mean you cannot serve. If that were the 
case, some of the greatest judges in the history of the world would 
never have had a chance.
  But if you interpret what they say, that means that any Hispanic who 
has not had judicial experience really should not be supported. That is 
ridiculous. That is caving in to the liberal special interest groups in 
this town with which they continually spend time, and is to the 
detriment of the Hispanic community. I say that as a chairman of the 
Republican senatorial Hispanic task force who has worked for the last 
13 years to try to solve these problems.
  I don't take second seat to anyone with regard to my love for the 
Hispanic community or my work on their behalf.

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