[Congressional Record Volume 149, Number 24 (Monday, February 10, 2003)]
[Senate]
[Pages S2113-S2115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

  Mr. HATCH. Mr. President, I ask unanimous consent that on Tuesday 
there be an additional 6 hours for debate on the Estrada nomination; 
provided further, that the time be equally divided between the chairman 
and the ranking member, or their designees; and that following the 
conclusion of that time, the Senate proceed to a vote on the 
confirmation of the nomination, with no intervening action or debate.
  Mr. REID. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. Mr. President, we have had a robust debate on the 
nomination. I still remain very hopeful that we will reach a consent to 
have a vote on the nomination after some further reasonable period of 
time. I hope our colleagues on the other side will permit a vote on 
Miguel Estrada. I think it is the right thing to do.
  Mr. REID. Will the Senator from Utah yield?
  Mr. HATCH. I will be happy to yield.
  Mr. REID. Mr. President, I agree with the Senator. I think the debate 
has been very constructive today. The chairman of the committee and 
this Senator spoke with the majority leader today, and we expect some 
more debate tomorrow. The two leaders will speak tomorrow after the 
caucuses.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Wyoming is recognized for 10 minutes.
  Mr. REID. Mr. President, while the Senator is in the Chamber, it is 
my understanding that Senator Enzi is going to speak for a period of 10 
minutes and the Senator from Wisconsin will speak for up to 12 minutes. 
I am wondering if there are any other speeches. We have an important 
conference committee that starts at 6:30 tonight.
  Mr. HATCH. I know of no other speeches.
  Mr. REID. I do not think we have anyone on our side.
  Mr. HATCH. Mr. President, I ask unanimous consent that these be the 
last speeches.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wyoming.
  Mr. ENZI. Mr. President, I rise to support the nomination of Miguel 
Estrada to the U.S. Court of Appeals for the Washington, DC, Circuit. 
We have a great need in our Nation for qualified judges who have the 
patience, perseverance, and integrity to ensure that the United States 
continues to be a nation that is ruled by law and not by uncontrolled 
emotion; by reason and not by political expediency.
  I am confident that Mr. Estrada is that kind of man and will be that 
kind of judge. There is no question that Mr. Estrada is qualified. He 
has proven himself through his education. He has proven himself through 
his work experience. And he has proven himself through his own 
perseverance, for he has been forced to wait for almost 2 years--2 
years--for the Senate to consider this nomination. He has done this 
with the kind of patience and integrity that befits a U.S. Federal 
judge.
  We often talk about the ideal in our debates in the Senate. We hold 
up a picture of what things should look like and how things should be 
done in the hope that someday we can move our Nation forward to the 
point where the ideal is more than a dream, but is instead a reality.
  One of those ideals that has been presented is a world where our 
judges and our courts are more representative of America. Our courts 
have been accused of being elitist. The Bush administration has been 
working hard to change that image by making sure our judges are more 
diverse. By confirming Miguel Estrada to the DC Circuit Court of 
Appeals, we will, for the first time, have a Hispanic judge in the DC 
Circuit. But I can tell you, Mr. Estrada was not nominated just because 
he is Hispanic. He was nominated because he graduated magna cum laude 
and Phi Beta Kappa with a bachelor's degree from Columbia University in 
1993. He was nominated because he also graduated magna cum laude from 
Harvard Law School in 1986 where he was also editor of the Law Review. 
He served as a law clerk for Supreme Court Justice Anthony Kennedy, as 
a Federal prosecutor in New York, and as an Assistant Solicitor General 
for both the Bush and Clinton administrations, and as the leading 
appellate lawyer at a national law firm. Altogether, he has argued 15 
cases before the Supreme Court, including one case in which he 
represented a death row inmate pro bono.
  One will have to search long and hard to find anyone anywhere more 
qualified for a position on the DC Circuit Court of Appeals, and yet in 
spite of all of his qualifications and personal integrity, Mr. Estrada 
has had to wait almost 2 years for the Senate to complete his 
nomination.
  Why? I must say that as far as I can tell, his confirmation has been 
delayed for reasons that have absolutely nothing to do with his 
qualifications or integrity as a judge. Instead, they have everything 
to do with partisan politics and partisan bickering.
  What is most tragic about this situation is that these delays have 
not come without a cost. There are victims in this situation who have 
been denied their rights to a fair and impartial judicial process 
because there are not enough judges to hear their appeals. The real 
victims of these delays are not Mr. Estrada or the Bush administration 
or even the Republican Party. No. The real victims are the people whose 
rights have been set aside by partisan bickering and whose appeals are 
forced to wait because we do not have enough judges.
  There is a saying: Justice delayed is justice denied. There are those 
in Washington who are willing to deny justice by making people with 
very real needs and very real issues wait while they try to score a few 
points in this game of politics. They force people seeking justice to 
drag out their court costs, their attorney's fees, their restitution 
and damage payments, all because they want to get one up on the other 
party.
  We have a crisis in our courts that we can solve. Mr. Estrada is part 
of that solution. He was given the highest possible rating of 
unanimously well qualified by the American Bar Association. He has 
similar, if not more, experience than five of the eight judges 
currently serving in the DC Circuit. He has been praised by his 
colleagues as having those attributes most sought for in a judge; 
namely, brilliance, compassion, fairness, and a respect for precedence.
  It is not only my opinion that is changing. I picked up a copy of 
Roll Call today and found a full-page ad by the Latino Coalition, which 
is a little bit upset over the delay in getting this nomination 
approved. They say the

[[Page S2114]]

only controversy regarding Miguel Estrada is his race. This is an 
impression that is being given to America. They say Senators have 
supported non-Hispanic judicial nominees with fewer qualifications and 
less experience. So the only difference here is that they cannot 
support an independent-minded and well-qualified Hispanic, an 
impression that is being put out there to America.
  Of course, they give the arguments that he is qualified, that the 
American Bar Association gave him a well-qualified rating, that he does 
have experience, and that there is a double standard for Hispanics. 
Five of the eight judges currently serving on the DC Circuit had no 
previous judicial experience when appointed. That includes two of 
President Clinton's nominees: Merrick Garland, whose Justice Department 
record was quite similar to that of Miguel Estrada, and David Tatel. In 
addition, Judge Harry Edwards had no prior judicial experience when he 
was nominated by President Carter in 1979, and he was younger and had 
less experience than Estrada.
  They go on to talk about whether he has a conservative ideology, and 
they suggest you tell that to Clinton appointees, prominent Democrats, 
and they mention a number of them. Again, this is an impression that is 
out there in the world about what is happening right here and now.
  They are concerned about the comments they have heard that perhaps he 
is not Hispanic enough, and they are a little upset with that. They 
listed a number of organizations that are backing him and are getting 
the message out that here is a person who is well qualified and that 
there is a belief that there is some discrimination occurring.
  I hope we can get this rapidly concluded and get this outstanding man 
on the bench.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Wisconsin is recognized for 12 minutes.
  Mr. FEINGOLD. Mr. President, I oppose the nomination of Miguel 
Estrada. Let me take a few minutes to explain why.
  First, I want to discuss the background of this nomination, which I 
think is an important factor for the Senator to consider. The DC 
Circuit, to which Mr. Estrada has been nominated, as many people have 
said, is widely regarded as the most important Federal circuit. It has 
jurisdiction over the actions of most Federal agencies. Many of the 
highest profile cases that have been decided in recent years by the 
Supreme Court concerning regulation of economic activity by Federal 
agencies in areas such as the environment, health and safety 
regulation, and labor law, went first to the DC Circuit. In the area of 
administrative law and the interpretation of the major regulatory 
statutes such as the Clean Air Act, the Clean Water Act, the 
Occupational Safety and Health Act, the National Labor Relations Act, 
and even the Federal Election Campaign Act, the DC Circuit is the last 
word, as the Supreme Court accepts relatively few cases on appeal from 
the circuit courts.
  The DC Circuit is now evenly split, and has been for some time, 
between nominees of Democratic and Republican Presidents. There are 
four judges who were appointed by Republicans and four by Democrats, 
and there are four vacancies. In the last Congress of President 
Clinton's term, he made two nominations that were never acted upon by 
the Senate Judiciary Committee. In one case, the committee held a 
hearing but never scheduled a vote, and in another, the Clinton nominee 
was not even given the courtesy of a hearing.
  Now we hear that President Bush is not only going to fill those two 
seats, but also two others that Republicans have argued for years did 
not need to be filled at all because of the court's supposedly smaller 
workload in comparison to other circuits. I have heard this time and 
again in the Judiciary committee, we do not need these positions 
filled. Now that there is a Republican Senate, suddenly they are going 
to be filled. So this nomination becomes a pivotal nomination, and this 
circuit could very quickly become divided 8 to 4 between Republican 
appointees and Democratic appointees. Again, this is the context where 
President Clinton's nominees were not given a chance to have a vote.
  I am disappointed that the Bush administration has not been willing 
to extend an olive branch on this circuit in particular. There are 
enough vacancies to accommodate both of the pending nominees and the 
two nominations by President Clinton who were treated so badly in the 
107th Congress. But that does not seem likely to happen.
  It is worth mentioning as well that seats on the DC Circuit have also 
in recent years served as springboards for the Supreme Court. Three of 
the current nine justices on the Supreme Court, Justices Scalia, 
Ginsburg, and Thomas, first sat on the DC Circuit.
  Many commentators and activists, on the right and the left, believe 
that Mr. Estrada is being groomed for a Supreme Court appointment.
  For all of these reasons, I believe it is our duty to give this 
nomination very close scrutiny. Unfortunately, Mr. Estrada has not made 
this task easy. In fact, by failing to answer questions at his hearing 
candidly and completely, he has made it even more difficult. Unlike 
many of the circuit court nominees that the Judiciary Committee has 
reviewed so far, Mr. Estrada is not a judge on a lower court, with a 
record of judicial opinions that we can review to get an idea of his 
views and his judicial philosophy for this lifetime appointment. Unlike 
some of the other nominees we have seen, he is not a law professor, 
with extensive written work that we can review and about which we can 
ask questions. He is a private attorney, with no published writings 
since law school. The Justice Department has refused to let the 
committee see his memos from when he worked in the Solicitor General's 
office, which may or may not be revealing of his views.
  This is where we are: we were left with the hearing to explore with 
Mr. Estrada directly the question of what kind of judge he would be on 
the D.C. circuit. As a member of the Judiciary Committee, I attended 
much of that hearing. Mr. Estrada steadfastly refused to help us get a 
sense of his views. And his way of resisting the committee's legitimate 
inquiry was, in my mind, extraordinary. I have been on that committee 
for over 8 years and have never quite seen this. He took the position 
that he could not express an opinion about a case that had already been 
decided by the Supreme Court unless he took the time to review not only 
the opinion of the court, which for many would be sufficient, but all 
the briefs and the arguments of the parties, and also, and I'm quoting 
here from one of his answers: ``[doing] all the legwork of 
investigating every last clue that the briefs and the arguments offer 
up.''
  Mr. Estrada says he has to do all that just to give his reaction to a 
decision of the Supreme Court. That is not the type of approach I have 
seen most people take when being up for a nomination in front of the 
Senate Judiciary Committee. The result? Mr. Estrada gave us no evidence 
of the kind of judge he would be. For me, given the importance of his 
circuit and the history of appointments to this circuit, that is a big 
problem. The Senate has a right to complete and responsive answers to 
its questions before confirming someone to a life term on such an 
important court.
  In a few areas, we have something to go on because Mr. Estrada 
undertook pro bono representation of a group called the Center for 
Community Interest on whose board he served. Unfortunately, even though 
this is one of the few pieces of information we have, I was not 
reassured by what I learned. Mr. Estrada not only defended an anti-
loitering statute ultimately struck down by the Supreme Court, but on a 
radio program he took a very aggressive stance in dismissing the 
arguments made against the statute. He even went so far as to suggest 
there was something improper about the fact that this legal challenge 
had been brought, and that attitude carried over in his arguments in a 
challenge to another anti-loitering ordinance, which Mr. Estrada argued 
that the NAACP did not have standing to challenge the law.
  I was also not satisfied with Mr. Estrada's answers to questions 
concerning his role in helping to screen law clerk applicants for 
Justice Anthony Kennedy of the Supreme Court. Allegations have been 
made that Mr. Estrada saw himself as an ideological gatekeeper of 
sorts, with the task of

[[Page S2115]]

making sure no one was too liberal for his tastes to be a clerk for the 
Justice. After first asserting the comments ascribed to him were meant 
as a joke, Mr. Estrada then gave very careful lawyerly answers to 
follow-up questions.
  I cannot say for certain that he was untruthful. I am not saying 
that. But he certainly was not forthcoming. And this is the pattern 
throughout the process of trying to examine this nomination of Mr. 
Estrada.
  Both to this area and in answers to questions concerning specific 
decisions of the courts or legal principles, I think the Senate has the 
right and duty to demand more openness and responsiveness from someone 
whose public record is so thin and who has been nominated for such an 
important judicial position.
  Let me be clear, I very much want to be fair about something such as 
this. I probably would vote to confirm Miguel Estrada to a Federal 
district court judgeship. He has a distinguished academic and 
employment record. But for this crucial seat on this crucial court, we 
need to be confident that a nominee, if confirmed, will be fair, 
impartial, and not devoted to advancing an ideological agenda.
  Based on the record before us, I do not have that confidence in Mr. 
Estrada. I must, therefore, reluctantly oppose his nomination.
  I yield the floor.

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