[Congressional Record Volume 149, Number 25 (Tuesday, February 11, 2003)]
[Senate]
[Pages S2125-S2144]
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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go to executive session and resume consideration of Executive Calendar 
Order No. 21, which the clerk will report.
  The 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 have heard so much misinformation

[[Page S2126]]

about Mr. Estrada here on the floor of the Senate for the past few 
days, I hardly know where to begin to correct the record. It is simply 
amazing to me that some of my Democratic colleagues claim they cannot 
support Mr. Estrada because he lacks judicial experience or because he 
hasn't been a law professor or because he has not published 
extensively. Let me remind my colleagues there are more than a few 
nominees confirmed as circuit judges whose record did not include 
judicial experience or extensive scholarly writings but whom they 
managed to vote for and confirm anyway. Yesterday I listed 26 circuit 
court of appeals judges who had no judicial experience when they were 
nominated but were confirmed anyway. That is just a small fraction of 
all those who never had judicial experience before the last number of 
years.
  Don't get me wrong. Even though they have had no judicial experience, 
these are all very qualified judges who deserved confirmation. But I 
don't believe any of them clerked for a Supreme Court Justice or argued 
15 cases before the United States Supreme Court, as has Mr. Estrada.
  Take, for example, Clinton Ninth Circuit nominee Sidney Thomas. He 
graduated from the University of Montana Law School in 1978 and went 
straight into private practice with a firm in Billings, where he 
remained for his entire pre-judicial career. Of the 10 writings or 
speeches he listed in his questionnaire, four of them consisted of 
outlines of presentations. The fifth was copyrighted while he was still 
in college and so could not possibly present his legal views. Still 
another appears to be a study guide for a college class he taught. 
Given this record, I would not have expected a review of the hearings 
transcript to reveal demands by my Democratic colleagues for access to 
internal memoranda Judge Thomas prepared at his law firm, memoranda 
that are commonly known as attorney work product. Instead, a review of 
his hearing transcript reveals a grand total of less than two pages of 
questions, all of them asked by a Republican committee member. The 
Democratic committee member declined to ask Judge Thomas any questions, 
despite a record that includes no judicial experience and limited 
published writings.

  Let me read you some of the exacting questions Judge Thomas was asked 
at his confirmation hearing and some of the answers he gave.
  He was asked:

       Would you state in detail your best independent legal 
     judgments with regard to existing Supreme Court precedent on 
     the constitutionality of capital punishment?

  Judge Thomas replied:

       Well, I believe that the Supreme Court has spoken, I think 
     quite appropriately, on the death penalty. I do not possess 
     any moral or religious convictions which would cause me to 
     not apply the death penalty in an appropriate case.

  This answer was apparently sufficient to satisfy the members of the 
committee that Judge Thomas would follow the law regardless of his 
personal convictions about the death penalty. But when Miguel Estrada 
gave similar answers to questions from Democratic committee members, he 
was accused of not being forthcoming. That is a double standard: We 
will treat President Clinton's nominees differently than we will treat 
President Bush's nominees.
  Judge Thomas was also asked:

       Do you believe the Federal Constitution contains . . . a 
     right to privacy?

  He replied:

       Well, the Supreme Court, again, has spoken on that. There 
     is no explicit right to privacy in the Federal Constitution. 
     Montana has a constitutional protection for privacy. That is 
     another area where I think the appellate courts have to 
     proceed very carefully in light of the Supreme Court 
     precedent in the area.

  There were no followup questions demanding to know his personal 
opinion on whether there is a right to privacy in the Constitution. His 
acknowledgement of controlling Supreme Court precedent, coupled with 
his statement that ``courts ought to move very cautiously'' in this 
area, were deemed sufficient to confirm him, as I think they should 
have been.
  I could go on to discuss other confirmed circuit judges with 
backgrounds similar to Judge Thomas's, but I think the point is clear: 
Miguel Estrada is being held to a different standard, even though his 
qualifications are similar to--or exceed--those of other confirmed 
circuit court of appeals judges.
  Let me next turn to the allegation that Mr. Estrada was not 
sufficiently responsive to questions he was asked at his hearing.
  Let's get to the heart of the matter. The real complaint of some of 
my Democratic colleagues is that no plausible reason to oppose Mr. 
Estrada's nomination exists. But instead of saying this, they complain 
that Mr. Estrada refused to criticize the reasoning of settled Supreme 
Court precedent.
  Of course, if Mr. Estrada is confirmed as a lower court judge, he 
will be bound to follow Supreme Court precedent regardless of whether 
he is critical of it. This was what he testified he would do if 
confirmed, and this was the only responsible answer to the questions he 
was asked about specific Supreme Court cases.
  During the course of this debate, I have already mentioned the 
statements Lloyd Cutler has made on this point, but I believe they are 
worth repeating because some of my Democratic colleagues keep 
resurrecting the spurious allegation that Mr. Estrada was not 
forthcoming at his hearing.

  Mr. Cutler, as we all know, served this country well as counsel to 
Presidents Carter and Clinton. He also served on two national 
commissions that addressed problems in the confirmation process.
  This chart I have in the Chamber shows what he actually said:

       Candidates should decline to reply when efforts are made to 
     find out how they would decide a particular case.

  That is the leading Democrat lawyer in this town. He has been Chief 
Counsel to two Presidents, two Democratic Presidents. He is highly 
regarded as a constitutional expert and a great lawyer not only in the 
area of Washington, DC, but throughout the country. He is a fine man. I 
have always respected him, and I do today.
  So regarding judicial nominees, he stated, in unequivocal terms, 
that:

       Candidates should decline to reply when efforts are made to 
     find out how they would decide a particular case.

  In his opinion:

       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, 
the letters of support we have received from his colleagues--both 
Democrat and Republican--and his unanimously well-qualified, highest 
rating by the American Bar Association, all indicate that Mr. Estrada 
fits this description and deserves our vote of confirmation.
  At the same hearing at which Mr. Cutler made his statements about the 
appropriate scope of the inquiry for confirming judicial nominees, 
another legal luminary, Boyden Gray, testified. Mr. Gray, of course, 
served as White House Counsel in the first Bush administration. During 
his testimony, he told us that two Democratic Senators, who are former 
Judiciary Committee chairmen, met with him very early in the 
administration to let him know in no uncertain terms that if the White 
House were caught asking any potential nominee any questions about 
specific cases, that nominee would be flatly rejected. Now, that is 
arrogance at its height, to tell Boyden Gray that or to have that 
attitude. Surely, the White House should be able to talk to their 
potential nominees about what their viewpoints are before they nominate 
them.
  On the other hand, Mr. Gray, of course, is one of the most respected 
people in Utah. Again, Boyden Gray is one of the great lawyers in 
Washington; like Mr. Cutler, he is highly respected, has been in very 
responsible positions, and has fulfilled his service to the U.S. 
Government very well.
  As Mr. Gray pointed out, that same philosophy is reflected in the 
Judiciary Committee questionnaire, which all judicial nominees must 
complete before the committee will act on their nominations. The 
questionnaire asked the following:

       Has anyone involved in the process of selecting you as a 
     judicial nominee discussed with you any specific case, legal 
     issue, or question in a manner that could reasonably be 
     interpreted as asking or seeking a commitment as to how you 
     would rule on such a case, issue or question?


[[Page S2127]]


  The clear goal of this question is to deter any White House from 
getting commitments from potential nominees on how they would rule on 
specific cases, or commitments that they would overrule certain Supreme 
Court decisions.

  I happen to know the Republican White Houses have acted honorably 
with regard to this responsibility. I remember during the Reagan years, 
some of our friends on the other side were constantly questioning 
whether the White House was trying to influence its judicial nominees 
during the Reagan administration to vote a certain way once they got on 
the courts.
  I happen to know that that was totally irresponsible on the part of 
our colleagues because the person who vetted all of these nominees 
happened to be a former staffer of mine who is now on the Michigan 
State Supreme Court and one of the great jurists of this country. I 
know he never asked or told people what they should be doing with 
regard to their future, after confirmation, on any particular court.
  It now appears that some Senate Democrats want to forbid the White 
House from asking nominees how they would rule on specific issues while 
reserving that right for themselves. Call it what you will, but this is 
a double standard if I have ever seen one. More fundamentally, it 
threatens the very independence of the Federal judiciary that our 
constitutional system of checks and balances was designed to preserve.
  I cannot believe some of the questions that have been asked and some 
of the statements that have been made about how unresponsive Miguel 
Estrada was when they were asking him questions about how he would rule 
when he became a member of the Circuit Court of Appeals for the 
District of Columbia. Now, they might say, ``We did not directly ask 
that,'' but that is what was behind it.
  A number of Senators on the other side have indicated they need to 
know the philosophy of these nominees. I think that is irrelevant, as 
long as the philosophy is that they will uphold the precedents of the 
courts above them. And to be honest with you, this is going way too far 
in some ways.
  Let's face it, too many questions in the confirmation hearings of 
President Bush's judicial nominees seem calculated politically to 
manipulate the judicial selection process and to frustrate the 
appointment of judges who would refuse to follow a potentially popular 
course when the Constitution and settled judicial precedent provide 
otherwise. Miguel Estrada was right not to fall into the trap of 
criticizing particular Supreme Court cases that he may be called upon 
to rely upon as a sitting Federal judge.
  My colleagues should be commending him for this, not proffering it as 
a reason to vote against his confirmation. Unfortunately, that is 
basically their argument, that they should vote against his 
confirmation because he has abided by what really are rules that have 
long been time honored in the Senate.
  I yield the floor.
  Madam President, 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. DURBIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, this is a historic debate on the floor 
of the Senate. It is rare in our history that the Senate has considered 
the nomination of the President of the United States for a circuit 
judgeship and at least the prospect of a filibuster is looming. It is 
an interesting issue historically that the Senate would reach this 
point that the minority in the Senate--in this case, the Democratic 
side of the aisle with 49 Members--would suggest to the majority party 
that we will stop this nomination by filibuster. I have asked my staff 
to take a look historically to find out how often that has occurred. It 
is extremely rare. Maybe the Senator from Utah can illuminate my 
knowledge. But I am told only in the case of Abe Fortas, who was being 
suggested as Chief Justice, was a filibuster suggested. The obvious 
question by those observing the debate is, Why? Why at this moment in 
time, with this nominee, is the Senate, maybe for the first or second 
time in its history, considering a filibuster?
  Many of us who serve on the Judiciary Committee believe this 
nomination and this debate is so historically significant that we must 
consider an extraordinary response by the minority of the Senate. It 
certainly goes beyond the question of Miguel Estrada, although I will 
address what he has said and what he has testified during the course of 
our committee hearing. But it has been my good fortune to serve now for 
my fifth year on the Senate Judiciary Committee, both under President 
Clinton, a Democrat, and President Bush, a Republican; both under 
Chairman Hatch as Republican chairman of the committee and Patrick 
Leahy of Vermont as the Democratic chairman. I have watched the ebb and 
flow of this process.
  I think we have to stop and reflect for a moment about why we are at 
this moment considering this nomination and taking it so seriously. It 
goes to our oath of office. When each of us is sworn into the Senate, 
we walk down this aisle and stand before the Vice President of the 
United States and swear to uphold the Constitution. And within that 
Constitution is an explicit delegation of authority to the Senate not 
to give blanket approval to any President's judicial nominees but to 
advise and consent. It is natural that the President's party in 
Congress will always say forget the advice part, just consent, and let 
us get on with business. But, like it or not, we understand the 
responsibility of the Senate is to ask the hard questions, to say if 
any nominee before you will receive a lifetime appointment to the 
Federal judiciary, particularly beyond the district level, the lower 
court level, to the circuit level where, in fact, many policy decisions 
affecting America are made, we want to know who you are. We want to 
know what you think. We want to make certain we are putting a person in 
this position of responsibility who can meet the challenge.

  The obvious questions are there. We certainly ask whether a person 
has a background and a knowledge of the law, whether they have a 
reputation for honesty, and whether they have appropriate temperament. 
But other questions arise as well, questions as to whether this person 
seeking a policy- making position on the court who will stand in 
judgment of laws passed by the Congress is a person of moderation and 
is reasonable in their outlook. We cannot reach a conclusion on this 
simply based on press reports. We have to ask the questions and seek 
the answers. That has been done time and time again with nominees from 
Democratic Presidents as well as Republican Presidents.
  What is troubling to most of us who come to this floor and suggest 
there is a problem with Miguel Estrada's nomination to the District of 
Columbia Circuit Court is he was so purposefully vague and so secretive 
in terms of his own point of view and his own philosophy. This is a man 
who has academic and legal credentials. He is not a newcomer freshman 
from a bar exam coming before us. He is a man who, across the street 
from this building, sat as a clerk in the Supreme Court. He has advised 
the Justices of the Supreme Court on some of the most important legal 
issues of our time.
  Yet, when we asked him basic and fundamental questions, I was stunned 
by his efforts to really stonewall, to basically refuse to tell the 
Senate Judiciary Committee where he stands. In light of that, what is 
my responsibility as a Senator? When this nominee refuses to disclose 
the most basic information about who he is and what he believes and 
what is in his heart, am I at that point to step back and say let us 
give him the benefit of the doubt; if he doesn't want to answer the 
questions, so be it? I am not going to do that, and I will tell you 
why.
  As a Member of the House of Representatives, I watched the Clarence 
Thomas hearings for the Supreme Court. I was stunned when then-nominee 
Clarence Thomas was asked his views on the issue of abortion, a major 
social policy and a major legal issue. He wasn't asked on a specific 
law whether he would rule one way or the other but just on the issue of 
abortion. Clarence Thomas said he had not really thought about that 
issue very much.

[[Page S2128]]

  That is an incredible statement for a man seeking a position on the 
Supreme Court in two respects. Clarence Thomas was a Catholic 
seminarian who went to a Conception monastery in Missouri known as 
Conception Abbey. To think you could go through that training and never 
have a view on the issue of abortion is absolutely incredible. To think 
you can be a law student, as Clarence Thomas was when Roe v. Wade was 
decided, and never have discussed the issue just defies any 
credibility.

  It, frankly, established a line of attack by those who want to go to 
the highest courts of the land and avoid the tough and hard questions.
  The Clarence Thomas tactic and strategy is being followed today by 
Miguel Estrada. Charles Schumer, Senator from New York, asked him a 
basic open-ended question which you can ask any law student in their 
first or second year. When you look at the history of the Supreme Court 
of the United States and 200 years of decisions made by the men and 
women on the Supreme Court, is there one decision you would disagree 
with? Is there one you could point to and say the Court made the wrong 
decision? I hope most Americans would say some are fairly obvious; the 
Dred Scott decision, which basically recognized slavery in this 
country; Plessey v. Ferguson, which said separate but equal is a fair 
civil rights standard--the list goes on and on.
  Yet, Miguel Estrada, with all of these academic decisions and all of 
his experience before the Supreme Court, refused to name one decision 
by the Supreme Court he would disagree with. What does that tell you? 
That this man is such a blank slate it has never crossed his mind that 
a decision by the Supreme Court over time has been found to be wrong 
for this United States, or a decision by the Supreme Court has been 
found to be violative of constitutional values and principles?
  What is going through his mind? The Clarence Thomas tactic--don't 
answer anything, don't say a word.
  I asked Mr. Estrada a question. I sent it in writing to give him a 
chance to think about it. I asked, In terms of judicial philosophy, 
please name several judges, living or dead, whom you admire and would 
like to emulate on the bench.
  Listen. If that were a question in a constitutional law course, you 
would breath a sigh of relief saying, Thank goodness, this is easy. I 
ought to be able to find one Justice, either liberal or conservative, 
that I agree with, and maybe one on each side.
  He said there is no judge, living or dead, whom I would seek to 
emulate on the bench in terms of judicial philosophy, or otherwise.
  It is breathtaking. This man wants to be taken into the Federal 
judiciary in the second highest court of the land for a lifetime 
appointment and is so cautious and so careful he can't name one Supreme 
Court decision he disagrees with in the history of the United States, 
and can't name one judge, living or dead, whom he would seek to emulate 
on the bench.
  What does that tell you? It tells you the Estrada nomination is 
making a mockery of our constitutional responsibility in the Senate.
  He has refused to disclose the legal memoranda he has written as a 
person working at the Department of Justice and for the court. He has 
refused to answer the most basic questions. And he comes to us and 
says: Take it or leave it.
  We hear that our opposition to him clearly must be because he is a 
Hispanic, maybe conservative in his views. Excuse me. As a member of 
the Judiciary Committee, I have repeatedly voted in favor of 
conservative nominees from the Bush White House. I understand this is 
the President's prerogative, but I have tried to find in each of them a 
reasonable approach to the law and a reasonable understanding of the 
philosophy of law which will give them a chance to be at least moderate 
in their approach on the bench. That is something all of us should seek 
to do.
  I will have an opportunity later this morning to come to the floor.
  Mr. REID. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I ask the Senator from Illinois, who had a long and 
impressive record in the House of Representatives, is he aware of the 
stand that the Hispanic caucus has taken on Miguel Estrada?
  Mr. DURBIN. I am. It is instructive that this Hispanic nominee to 
such a high court is opposed by the Hispanic caucus. They have sat down 
with Mr. Estrada in private and asked him questions about his views on 
issues, and they have come out in opposition to his nomination. There 
are many--myself included, and I have appointed Hispanics to the 
Federal bench in Chicago--who believe there should be more Hispanic 
nominees. Under the Clinton administration, quite a few nominees were 
brought before the committee, and many were approved. That should 
continue. But doesn't it tell you something that this high level, high 
profile appointment is opposed by the Hispanic caucus?
  Mr. STEVENS. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. STEVENS. Is the Senator aware that Republican Members of the 
House of Representatives who are not in that caucus because it is 
purely a Democratic caucus do support this nominee?
  Mr. DURBIN. There are those who support this nominee.
  Mr. STEVENS. I mean in the House of Representatives. The Senator is 
trying to leave the impression that people of Spanish background in the 
House of Representatives all oppose this nominee.
  Mr. DURBIN. I didn't say that. I said, if you check the record, that 
the Hispanic caucus has come out in opposition.
  Mr. STEVENS. Which is all Democrats.
  Mr. DURBIN. At this point, the vast majority of those serving of 
Hispanic origin are Democrats.
  Mr. STEVENS. It is all Democrats.
  Mr. DURBIN. I am sure the Senator from New York will catalog all the 
Hispanic organizations that oppose this nominee. It is not just the 
Democratic members of the Hispanic caucus. I see my colleague has come 
to the floor. I yield to the Senator from New York.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from New York.
  Mrs. CLINTON. Mr. President, I appreciate the many points made by my 
colleagues with respect to this nomination. As I have listened to the 
debate, not having been a member of the Judiciary Committee, I have 
tried to educate myself on what this is all about. I put myself into 
the position of somebody at home who maybe just has turned on C-SPAN or 
is flipping channels and sees us talking about something. They are 
trying to understand what this is all about.
  I thought I would come to the Chamber and perhaps talk a few minutes 
about what I think it is about and to try to answer some of the 
questions that might be in the minds of New Yorkers and Americans.
  First, it is about the nomination of a gentleman to become a judge on 
what everyone, regardless of what party you are or where you live in 
the country or whether or not you are a lawyer, believes is the second 
most important court in our land. Everybody knows under our system of 
government the Supreme Court is the supreme court. It is the most 
important. But as we have gone through many decades of courts hearing 
cases, of new causes of action for people to be able to bring cases, 
what has emerged very clearly is that because the Supreme Court cannot 
take every case that has to be finally resolved one way or the other, 
many of the most important cases that are really significant to people 
living from one end of our country to the other are finally decided in 
the District of Columbia Court of Appeals.
  This is the court that sits here, and it has some special 
jurisdiction about environmental matters and labor matters and energy 
matters. This is a really big deal court. This really matters. It is 
not just any court. It is the DC Court of Appeals.
  All of our courts of appeals are important and because as you go up 
the Federal court system, you start with all of the district courts 
that are in every State and sometimes, depending upon the size of the 
State and many parts of the State and decisions there, if you are not 
satisfied with them, get appealed to the courts of appeal. It is like a 
pyramid. It starts narrowing because the numbers of cases that can be 
heard, the kinds of issues that can be heard begin to narrow because, 
clearly, choices have to be made.

[[Page S2129]]

  Not everybody who starts a lawsuit in a Federal district court will 
be able to get to the court of appeals. Even fewer will get to the 
Supreme Court.
  When we face a decision of giving someone a lifetime job, we have to 
take that seriously. We have to take it seriously whether it is a 
district court or a court of appeals or the Supreme Court. Actually, 
that is the way our Constitution set it up.
  If the Constitution, which I think is, other than the Bible, the most 
amazing document the world has ever seen, if the Constitution meant for 
the President to say OK, this is who I want to sit on that bench, and 
just pick out any person who the President chose and just send them to 
the bench, the Constitution would have said that. But that is not what 
the Constitution says. The Constitution very clearly sets up what we 
call a balance of power. That is an important concept. That is critical 
to how successful we have been as a nation. It is absolutely 
fundamental as to our democracy continuing to function over all these 
many years because we have a balance of power.
  We know human beings are fallible. We know that every one of us is 
flawed, and people get an idea that they are bigger than they should 
be; they want more power. And we get this balance of power in our 
Constitution which has worked extremely well for our country.

  Critical to that balance of power is the role that the Senate plays 
in advising and consenting with respect to the President's nominees for 
the Federal court. It is right there in the Constitution. This is not 
something that Democrats or Republicans have made up for the purpose of 
this debate. It is fundamental to our Constitution.
  As a result, those of us who are honored to serve in the Senate--and 
there haven't been very many over the course of our history; fewer than 
2,000 people have sat in this most important deliberative Chamber in 
the history of the world--are bound by the Constitution. We take an 
oath to the Constitution. We want to defend and protect the 
Constitution.
  Therefore, when we look at our duties, among our most important 
duties are advising and consenting when it comes to judicial nominees 
for lifetime positions on the courts established under our 
Constitution.
  All of us take that responsibility seriously. But whether we are 
confronted by a nominee to the DC Court of Appeals or certainly, if we 
are confronted by a nominee to the U.S. Supreme Court, maybe it keeps 
us up a little longer at night. It makes us feel even more strongly 
that we have to make sure we are doing the right thing. We have to ask 
the hard questions. We have to get the information. Because once we 
sign off on it, that person is there for life.
  It would be like somebody hiring someone to do an important job. You 
want to know that the person you are hiring to be a doctor or nurse in 
your hospital, or to supervise the construction of your house, that 
these are people qualified, able to answer your questions, that you 
confidently believe can get the job done.
  That brings us to what we are debating today, a very important court, 
lifetime appointment, second only to the Supreme Court in the number of 
important cases decided, rooted in our Constitution where we as 
Senators, representing the constituents we serve, are required, are 
duty bound under our Constitution to advise and consent with respect to 
the President's nominations.
  Now, I have voted for many judges since I have been in the Senate 
over the last 2 years, and those judges are not people, by and large, I 
ever knew personally or with whom I had any direct dealings. But the 
Judiciary Committee, which consists of Republicans and Democrats, is 
charged with the responsibility of doing the work of trying to figure 
out whether somebody is qualified and whether they should get this 
lifetime appointment. They are the first of our colleagues to advise 
and consent, or advise and not consent. I know the members of the 
Judiciary Committee on both sides of the aisle, and they take that 
responsibility very seriously.
  With respect to Mr. Estrada, it has been a hard task to fulfill the 
responsibilities entrusted to us in the Constitution to advise and 
consent because there is no information. It is as though somebody walks 
into the hospital and says: I want the very best doctor you can give me 
for the condition that ails me, and I want to know where that person 
stands on the procedures he is going to use on me; I want to know what 
he thinks about postoperative treatment, I want to know what drugs he 
believes are best, and I want to know where he ranks in terms of his 
belief about whether or not I can be cured. Well, I am sorry we are not 
going to give you that information. Here is your doctor; you take him.
  We are faced with a nominee who has thus far refused to answer 
legitimate questions about what kind of a judge he would be, where he 
stands on the great issues of our time and of the past, what his 
positions are in thinking about these fundamental rights we cherish as 
Americans, whom he respects or admires on the judiciary already, or 
with whom he would compare and contrast himself. We cannot get answers 
to any of those questions. I don't necessarily hold Mr. Estrada 
responsible for that. I know a little bit about the confirmation 
process. Having spent some time on the other end of Pennsylvania 
Avenue, I know he is doing what he has been told to do. He has been 
told to sit there, don't say anything, don't answer the questions, 
dodge, duck, don't leave any record, don't let anybody pin you down, 
and, boy, we are just going to go right through the opening that is 
given to us and make up this case that will get you on the circuit 
court.
  Well, I suppose that is a strategy, but it is an unconstitutional 
strategy. It is a strategy that is absolutely contrary to what the 
Founders intended when they spent all those hot days in Philadelphia 
writing the Constitution. They expected advise and consent to actually 
be the responsibility of Senators. How can you advise and, certainly, 
consent if you cannot even get basic information about where someone 
you are going to give a lifetime job to stands on all these important 
issues?
  It is not as though members of the Judiciary Committee didn't try. 
They certainly tried. Led by my colleague and friend from New York, 
Senator Schumer, they tried every which way they knew. You have already 
heard this morning from Senator Durbin of Illinois how questions were 
phrased and, if he could not get an answer from Mr. Estrada, how they 
would be rephrased, trying to get some information. It was a classic 
stonewall; there is no information, no record, nothing to which anybody 
can point.
  Now, that puts a Senator in a very difficult position. If you are 
just going to do what the White House tells you to do, what the 
President tells you to do, without regard to your constitutional duty 
to advise and consent, then it is an easy issue; you stand up, salute, 
and you vote, and that is it. But if you take seriously your 
constitutional duty, then it is not so easy. I have to go back to New 
York, and people will say: What kind of a judge do you think this will 
be on the court that hears all these important issues? I have to say I 
don't have a clue because we cannot get any information about him. We 
cannot discharge our constitutional duty to advise and consent.

  I know my friends on the other side of the aisle say: Well, there is 
no information; this man is a blank slate; he has never been a judge; 
we have no record; he has never been a law professor; he hasn't put a 
lot of his thoughts down in writing; so you have to take what you see. 
Here is this gentleman, and you just have to take it on face value that 
he will fulfill the rather awesome responsibilities for which he has 
been nominated.
  I just don't think that is good enough. I am just amazed that my 
friends on the other side of the aisle are willing to abdicate the 
Senate responsibilities embedded in the Constitution, because when you 
stonewall the Judiciary Committee, when you refuse to answer questions, 
when you act as if you just came out of nowhere and don't have an 
opinion on anything, everybody knows that is a charade. Everybody knows 
that. That is what you were told to do in the White House; therefore, 
you are sitting there, not giving an answer, because if you gave an 
answer, even some of the Republicans, people of the President's own 
party, might be disturbed.
  I went back and looked at some of the questions that were asked. I 
have not been in law school for a very long

[[Page S2130]]

time, but I cannot imagine any law student who, with a straight face, 
could say I don't have an opinion on any Supreme Court case--not one 
since the beginning of our Republic. I don't think that is a person who 
belongs on the appellate bench. If you don't have an opinion, move out 
of the way and let somebody who has opinions, who understands the law, 
who understands the Constitution, who knows what the Supreme Court has 
decided--let that person take the position on the appellate bench.
  It is hard to imagine someone sitting before the Judiciary Committee 
and saying he has no opinion on major Supreme Court cases. I find that, 
frankly, unbelievable. Nobody believes that. My colleagues on the other 
side are willing to go forward with this charade and pretend that the 
man has no opinions when everybody knows he has opinions. He could not 
be in the position he is in without opinions.
  I pulled a quote from Chief Justice Rehnquist which I think really 
bears on this. Here is what Chief Justice Rehnquist had to say:

       Since most justices [you could substitute ``judges'' as 
     well] come to this bench no earlier than the middle years, it 
     would be unusual if they had not by that time formulated at 
     least some tentative notion that would influence them in 
     their interpretation of the sweeping clauses of the 
     Constitution and their interaction with one another. It would 
     be not merely unusual but extraordinary if they had not at 
     least given opinions as to constitutional issues in their 
     previous legal careers.

  Well, that is not me talking. That is Chief Justice Rehnquist. I 
think you could certainly conclude from that that this nominee must be, 
therefore, extremely unusual--so unusual that I don't think he deserves 
to be confirmed to the bench. Someone who has no opinions clearly does 
not deserve the kind of responsibility and honor that this appointment 
suggests.

  Mr. DURBIN. Will the Senator yield for a question?
  Mrs. CLINTON. Yes.
  Mr. DURBIN. Is the Senator familiar with the statement made by the 
chairman of the Senate Judiciary Committee, Senator Hatch, before the 
Federalist Society when he said:

       Many of President Clinton's nominees tend to have limited 
     paper trails. Determining which of the President's nominees 
     will become activist is complicated and will require the 
     Senate to be more diligent and extensive in its questions of 
     a nominee's jurisprudential views.

  Mrs. CLINTON. Mr. President, I have heard about that, I respond to my 
friend from Illinois. There is an old colloquial saying: What is good 
for the goose is good for the gander. It seems to me, if that is the 
standard the current chairman of the committee adopted in previous 
years, then for the sake of consistency that ought to be the standard 
today. But, of course, that is not what this is all about, as my good 
friend from Illinois knows.
  What was an appropriate standard in the previous administration, when 
I believe the President nominated mainstream people willing to answer 
questions, willing to present opinions, is no longer applicable now 
that there is a different President. I think that is a very dangerous 
precedent, and I do hope that Americans understand this: That the 
Constitution does not change from administration to administration.
  The advise and consent role stays there for the Senate to exercise. 
If the Senate willingly abdicates this role and decides, I have a 
President of my own party in the White House now, so I better not ask 
any questions because I may not like the answers, that is, I believe, a 
direct repudiation of our constitutional obligations.
  I know my good friend from Illinois asked a number of questions of 
Mr. Estrada seeking some enlightenment, some information on the basis 
of which the Senator from Illinois could exercise his advise and 
consent role. The best I can determine, it is very hard to see that the 
Senator got any answers.
  I know in previous years, with many of the same people on the 
committee, very specific, explicit questions were asked of nominees. I 
know that many of the nominees who were nominated by President Clinton 
were asked very detailed questions about their views of Supreme Court 
and circuit court cases, and to the best of their ability, those who 
received hearings which, of course, was not everyone who was nominated 
by the President, but those of President Clinton's appointments who 
received hearings felt duty bound to answer those questions, and they 
did so. They were asked questions such as: Please define judicial 
activism. Do you agree with the Supreme Court's decision in a specific 
case, such as United States v. Morrison? If you were a Supreme Court 
Justice, under what circumstances would you vote to overrule precedent 
in the Court? And on and on--very specific questions about the 
Constitution, about our Nation's laws, about Supreme Court decisions.
  The nominees from President Clinton believed that was their 
obligation, and that is what they were instructed to believe from the 
other end of Pennsylvania Avenue.
  Unfortunately, many of them were not even given hearings and many who 
were given hearings were not given votes, and even some who were given 
votes were never brought to the floor. That is then. What I am worried 
about is now and how we are going to discharge our constitutional 
responsibilities.

  If one looks at the long list of people who have appeared before this 
committee in the past, it has always been the practice to seek 
information that committee members thought would be relevant to 
exercising their constitutional duties, to make sure this person at 
least had an opinion about the Supreme Court decisions, to make sure 
this person was not just someone sitting there to fill a chair, but 
could actually discharge the duties that were about to be considered 
for him.
  What bothers me deeply is what I see: a developing of a difference in 
standards. We are a country that has lasted so long because, among 
other reasons, we believe in the rule of law. It is not people but 
laws. That is why we invest so much in our Constitution and setting up 
courts and ensuring people who serve on those courts for lifetime 
positions are of the right stuff--not that they are conservative or 
liberal but that they are people who will not be swayed by political or 
partisan considerations, but will do the best with their God-given 
ability the job with which they are entrusted, which is to continue the 
rule of law and to serve justice.
  Therefore, it is troubling that when we had one President of one 
party, the same people in this body wanted to ask everything they could 
ask. They wanted to know what meetings you went to that had nothing to 
do with your law practice. They wanted to know how you stood on 
referenda as a citizen in States that use referenda to set laws. They 
wanted to know all this, and the people who were nominated complied. 
They thought: I do not see the relevance of it, but if this is what is 
requested, we will comply with it.
  Now when we are just focusing on the core issues about the 
suitability of someone for a lifetime appointment to the second highest 
court in the land, we cannot even get information that one would expect 
to get from a first year law student.
  Obviously, a political decision has been made by the administration 
that ``don't ask, don't tell'' applies to judicial nominees and, 
therefore, we are in a position where we cannot discharge our 
constitutional responsibilities.
  It sort of surprises me, as well as disappoints me, that the 
administration is taking this position. I guess we have to expect it 
because time and again this administration has proving itself to flout 
the rule of law, to be very concerned with secrecy, unwilling to share 
information with the elected representatives of the American people, 
and, therefore, a pattern seems to be developing.
  I do not care whether you are a conservative or liberal from New 
York, Texas, California, Alaska, Hawaii--wherever--it is not good for 
our country to be adopting a policy that elevates secrecy over openness 
when it comes to judicial nominations and many other matters.
  On many grounds, therefore, I stand here today quite troubled about 
what is developing with respect specifically to Mr. Estrada, with 
respect to our Constitution, with respect to the refusal by this 
administration to provide information legally requested by the Senate 
to fulfill its obligations.
  I do not understand why we are in this position. I really do not. I 
have gone back and read the quotes from the distinguished chairman of 
the Judiciary Committee, someone I consider a very thoughtful leader on 
legal issues,

[[Page S2131]]

and yet I do not follow the logic of having one standard for one 
administration's nominees and another standard for this administration, 
and the willingness of the Senate to cede our constitutional 
responsibilities. That strikes me as going right to the heart of what 
the Senate is and should be.
  Before I arrived in the Senate, I knew it from a distance, as an 
admirer, a law student, a lawyer, and a law professor in my previous 
life. I understood the critical role the Senate played, but I have to 
confess until I actually came, sat in one of these chairs, looked 
around this august Chamber, and listened to my mentor and leader, 
Senator Byrd, describe to us how we happen to be here--not by some 
accident or bolt of lightning, but because of the genius of our 
Founders building on the ideas of those who came before, and that every 
generation of Americans has been obligated to continue this 
extraordinary experiment in constitutional democracy. We did not get it 
100 percent right at the beginning. We had a lot of work to do. And the 
courts played a major role in saying, wait a minute, America, you say 
all these nice words. You act like these are your values, all men are 
created equal. What about black men? What about Native Americans? What 
about women? Do you not think we ought to kind of make reality coincide 
with rhetoric and really live up to this Constitution?
  So for more than 200 years, that is what we have been doing. It has 
been a partnership: The executive branch, the legislative branch, the 
judicial branch. Decade after decade, we have taken stock of ourselves, 
determining what our real bedrock values are as a nation, and making it 
absolutely clear we would continue to try to perfect our Union, to live 
up to those extraordinarily high ideals that no nation in the history 
of the world had even put down on paper, let alone tried to fulfill.
  Part of what we are facing today is an agenda by some to really 
change the direction of our country. Maybe it is a decision the people 
of the United States would support if they ever got to vote on it. 
Maybe it is a decision the people in this Chamber would support if we 
ever voted on it. But that is not how it is occurring. It really is by 
secrecy and stealth. It is by nominees to our second highest court who 
will not tell us what they believe on the most important issues facing 
us as a nation. It is a deliberate attempt to turn the clock back.
  I read the documents that have come from organizations that work hand 
in hand with the administration about vetting and nominating nominees. 
I know they refer to the Constitution in exile. By that, I guess they 
mean the Constitution that expanded the civil rights, human rights, and 
opportunities of people in cases such as Brown v. Board of Education. 
That is really sad, that their view of America is so narrow. They want 
to close doors, take up ladders of opportunity, turn the clock back. I 
think that is very sad. Certainly they are entitled to their opinion, 
but their opinion should be explicit. If that is the agenda, then let 
us have a democratic argument about it. Let's have a vote about it. 
Let's know what we are voting on, so when decisions get reversed, 
rights get taken away, people know it was not just foisted on them by 
secrecy and stealth. It happened because of a debate, which is the 
heart of democracy, where people stood on both sides of this Chamber 
and said I do think we have gone too far and others could say, no, we 
have not gone far enough and where is the middle and how do we come to 
some resolution.
  Why it is so important we focus on Mr. Estrada is because he is a 
stealth nominee, because he will not answer questions, and because of 
what we are attempting to determine as to our constitutional 
responsibilities.
  I have reviewed the transcripts of Mr. Estrada's hearings in front of 
the committee. In a moment, I will relay several of the more concerning 
areas where we lack information. I want to highlight what two of my 
colleagues on the Judiciary Committee have said about both the written 
information, which is very limited, and the oral response to questions 
from Mr. Estrada. Senator Kohl from Wisconsin has said, and I quote, I 
personally have voted for 99 percent of the nominees that have come 
before this committee. In all of those cases, I felt that I knew what 
we were getting when we voted. There was some record of some writings 
that gave me an idea about how the nominee would perform as a judge. We 
do not have much of a public record or written record.

  Addressing Mr. Estrada, Senator Kohl went on, you have opinions, of 
course, on many issues, I am sure, but we do not hardly know what any 
of them might be, and some of us might have a tough time supporting 
your nomination when we know so little.
  Upon the eve of her vote on Estrada's nomination before the 
committee, Senator Feinstein said: Over the last few days, I have been 
reviewing background materials about Miguel Estrada, talking to those 
who have concerns about him, and I have reread the transcript of Mr. 
Estrada's hearing. I must say that throughout this process, I have been 
struck by the truly unique lack of information we have about this 
nominee, and the lack of answers he has given to the many questions 
raised by members of this committee.
  Let me take a minute or two to highlight some of the important issues 
that come before the DC Circuit and explain more fully why Mr. 
Estrada's answers are just not satisfactory. I do not expect to agree 
with the vast majority of the judges this administration sets forth. I 
have a different idea about the Constitution, about the philosophy that 
should govern the rule of law. I am fully prepared to say that. I have 
already voted for about 100 people I probably do not agree with on a 
lot of things, but they played by the rules. They respected the 
Constitution. They answered the Senators' questions, not my questions. 
I am not on the committee, but I trusted my Republican and Democratic 
colleagues who were on the committee would ask good questions, as they 
always do, get answers, and then they would make a judgment.
  We have confirmed something like 100 judges in the last 2 years. I 
trusted the Judiciary Committee, which is the first line of defense on 
advise and consent, to do the hard work. I would then assess that and 
make my decision. I cannot do that in this case. I wish I could. I 
might still vote against the nominee because I might not agree with 
what he said in his opinions, but at least the process would be 
respected, the advice and consent clause of the Constitution would be 
honored.
  That is not the case. If we look at the individual areas of concern, 
I think we begin to get an idea why Mr. Estrada does not want to answer 
questions and why the administration does not want him to answer 
questions, because even my colleagues on the other side of the aisle 
would have some really hard questions if the nominee were permitted to 
answer questions.
  Let's start with the environment. The fact is the DC Circuit hears 
almost all of the cases challenging environmental rules and regulations 
issued by the Environmental Protection Agency. These are extremely 
significant decisions. The court decides issues of national importance. 
It decides issues of great local and regional importance. We may 
disagree about the best way to protect the environment, but if we are 
going to go down a road where we pack the DC Circuit with judges who do 
not have the idea that protecting the environment is a Federal 
responsibility, we should know that. We should know what we are 
getting. We are not buying blindly. We should know what we can expect. 
Maybe then the Congress, if it so chose, could rewrite laws or be clear 
about congressional intent, but in the absence of knowledge we do not 
know anything.
  The court, in a 1999 decision, American Trucking Association v. EPA, 
demonstrated not only its deep division but its potential for 
circumventing the President and congressional intent. In that case, the 
DC Circuit decided not to review a ruling that struck down Clean Air 
Act protections against soot and smog. In fact, in the dissent, one of 
the judges said the court's ruling ignored the last half century of 
Supreme Court jurisprudence. When the case got to the Supreme Court, in 
a decision written by Justice Scalia, the DC Circuit was reversed. This 
was not a Republican or Democrat or liberal or conservative decision. 
This was a decision based on the precedence, the jurisprudence, the 
law.

  Many of the cases that the circuit court of appeals decides in DC do 
not

[[Page S2132]]

go to the Supreme Court. Therefore, we have to be conscious of what a 
nominee's position is on environmental issues.
  Across the board, environmental groups have opposed Mr. Estrada's 
nomination because he has consistently evaded questions on how he might 
consider cases of vital environmental interest.
  With respect to labor decisions and the National Labor Relations 
Board, the DC Circuit hears many of those labor and worker-related 
cases. The court has decided more than 1,000 labor cases over the 
years. The National Labor Relations Board administers the National 
Labor Relations Act, which is the primary law that governs 
relationships between employers and employees. Of course, that is at 
the root of our economy. We want people to be productive and work, but 
we also want them not to be taken advantage of and mistreated. There is 
a balance of power, to go back to my favorite concept, embedded in the 
Constitution. The Congress has worked it out over the last 50 years 
where workers have some rights, employers have some rights, and there 
is a system for adjudicating disagreements and grievances. Time and 
time again, the Circuit Court of the District of Columbia has ruled on 
these decisions and has consistently said that if a decision from the 
National Labor Relations Board is supported by substantial evidence, 
the courts are supposed to uphold it.
  Unfortunately, many people are concerned and have spoken out against 
Mr. Estrada's nomination because they have no way of knowing what, if 
any, opinions he has on these critical issues. It is a fair set of 
questions to ask and to receive answers about.
  When it comes to energy, certainly one of the most important issues 
throughout our country, the DC Circuit has exclusive jurisdiction over 
cases coming from the Federal Energy Regulatory Commission. That is 
called FERK. These cases are often up in the court of appeals, trying 
to figure out what is a just and reasonable rate of return for oil, 
gas, and electric companies. Therefore, the cases coming out of the DC 
Circuit affect everybody who has any power that is generated by oil, 
gas, and electricity around our country.
  In many of these cases, not only individuals but States have big 
stakes in their outcome. When we think about ruling on these cases, it 
is only fair, since it may affect my energy bill, that I have some 
understanding from the Judiciary Committee whether this nominee has 
opinions, past track records, clients, anything that might affect his 
rulings.
  Similarly, the DC Court has exclusive jurisdiction over cases arising 
under the Federal Communications Commission. Again, that affects every 
one of us. Do you have a television? Do you have cable? Do you enjoy 
the mass media, the broadcast media? Do you have a telephone? Do you 
know what rates you pay ultimately for long distance? Do you have a 
wireless phone? All of these issues fall under the FCC. Without any 
written record, again, we cannot get answers to questions about matters 
that will affect every American.
  Some of this may sound technical, and I understand that, but it is 
easily understood that the stark reality is the DC Circuit controls so 
many of the rules under which we live every single day in our homes and 
workplaces. This is not some abstract speculative concern about what 
might happen to somebody else. What happens in this DC Circuit affects 
each of us. That is why I am so concerned that in the absence of 
information, in the absence of the Judiciary Committee believing they 
have been able to make an informed decision and have not just done what 
they were told to do by the administration, we may be setting up the 
people we represent for all kinds of changes in their lives that were 
never aired publicly, were never given due consideration, but which 
will affect every one of us.

  That is why this nomination cannot be handled lightly, why it cannot 
be rammed through, why the Constitution and the rule of law, the role 
of the Senate to advise and consent, need to be respected.
  When we think about where we are right now in the 21st century, we 
know we have lots of big challenges ahead. We have national security 
challenges, homeland security challenges, economic challenges, 
challenges concerning health care, education, the environment, and 
energy. There is a lot that lies in front of us. We need to bring to 
our considerations the same thoughtful, careful analysis that our 
predecessors in this body brought to theirs.
  I am very worried that we are making decisions at home and abroad 
that will affect our country and our children for generations to come. 
Certainly, judicial decisions fall into that category. The DC Circuit 
has served as kind of a bullpen for the Supreme Court. More judges have 
been appointed to the Supreme Court from the DC Circuit than from any 
court in the land. That is often where the President looks to find 
somebody qualified who understands the full range of constitutional and 
legal issues that will very well end up in the Supreme Court. In fact, 
the DC Circuit has given us three of the nine current Supreme Court 
Justices--Justices Ginsburg, Scalia, and Thomas.
  Therefore, I have to be doubly careful about my vote. I don't know 
what will happen on the Supreme Court. I wish every one of the Justices 
good health and a lot of energy for decades to come, but none of us 
knows where we will be tomorrow. We have no way of predicting our fate. 
It could turn out that there might be an opening on the Supreme Court 
and it might very well be someone from the DC Circuit who could be 
chosen. So far as I know everyone else serving actually answered 
questions, offered opinions, went through the process, gave the Senate 
the opportunity to exercise our constitutional duty to advise and 
consent.
  If Mr. Estrada joins the court and all of a sudden an opening were to 
occur and the administration said to themselves, this was so good, we 
got somebody through that nobody could even ask a question of or get a 
straight answer from, let's just nominate him for the Supreme Court and 
do the same thing, run the same drill, then I would hope my colleagues 
on both sides of this aisle would say, no, no, I cannot let that happen 
to my Constitution. I may love my President but I love my Constitution. 
Presidents come and go but the Constitution remains.
  We, at our peril, undermine it, disrespect it, disregard it, and this 
body, at its peril, gives up its constitutional prerogative rendering 
it a debating society, at best, and irrelevancy, at worst. Here we are, 
debating not just a nomination but debating the Constitution, debating 
the rule of law, debating whether this Senate and its Judiciary 
Committee will be able to fulfill its constitutional 
responsibility. These are high stakes. Talking about many of the 
nominees to the district court of appeals, I just can't help but use a 
little history. I think those who do not know history are condemned to 
repeat it. I know there is always a lot of revisionist history that 
goes on to suit political, partisan, ideological--even commercial ends. 
But these are the facts.

  The former President nominated highly qualified people for the DC 
Circuit. Unfortunately, of those three nominees, two of them were given 
a hearing, one was not; two were not given a committee vote, one was. 
It took from 15 to 18 months for no action, no vote, and one out of 
three was confirmed. We didn't even get the courtesy of a vote, even 
though tons of information was turned over on the first two of these 
nominees.
  From my perspective, that is water under the bridge. But I think it 
is telling because the Constitution did not change. As far as I know, 
the same Constitution we had in 1990 is the Constitution we have in 
2003. The advice and consent clause didn't change, as far as I know. 
The advice and consent responsibility was the same throughout the 1990s 
as it is now in the 21st century. Some nominees went to extreme lengths 
to provide every scrap of paper, every opinion requested, in order to 
demonstrate their good faith and their respect for the Senate, their 
respect for the Constitution.
  In a previous time, I know my good friends on the other side of the 
aisle, were he to have sat there and said, I have no opinion about 
anything, would have said: You are not getting my vote. You should not 
even get a hearing. You don't deserve one. Because somebody

[[Page S2133]]

who comes before this committee and says he has no opinion about 
anything is clearly gaming the committee. Everybody knows that. I do 
not think the committee would have stood for it in the 1990s.
  The Democrats this time voted unanimously against Mr. Estrada on the 
basis of his failure to answer questions and failure to appropriately 
and respectfully provide written material that was provided in previous 
instances with respect to Justice Rehnquist and Justice Bork. That 
material was not provided with respect to Mr. Estrada. So I think we 
really obviously have a double standard. It is an ideologically driven 
double standard.
  I think that is a mistake. I think it is always a mistake when we try 
to push through something that in the long run undermines the balance 
of power, the constitutional framework, the role and responsibility of 
the Senate.
  I have received countless letters, e-mails, and telephone calls about 
this nomination. Many of the people have expressed their concerns about 
the process in which we are engaged. A letter from a Utica, NY, 
constituent, Anna Maria Convertino, sums up the objections my office 
has been receiving. She gave me permission to quote from her letter. 
Here is what Anna Maria from Utica, NY, has to say:

       I am writing to urge you to filibuster the nomination of 
     Miguel Estrada for the District of Columbia Court of Appeals 
     by voting no on cloture. Estrada has refused to answer 
     questions about his commitment to abortion rights or basic 
     civil rights. The burden should be on the nominee for a 
     lifetime appointment to show that he deserves to serve as a 
     Federal judge. Estrada's lack of an established record and 
     unwillingness to answer questions means that he has failed to 
     make this showing.

  I certainly appreciate Anna Maria contacting me and summing up so 
well the problems with this nomination.
  Many people who have followed this closely, many major Latino and 
Hispanic organizations across our country, and in New York, share those 
doubts. The Congressional Hispanic Caucus, which has members from New 
York City to LA, from Texas to Chicago, interviewed Mr. Estrada. After 
that interview and reviewing his credentials, they concluded that he 
failed to merit their endorsement. Today, the caucus again opposes his 
nomination along with the Mexican-American Legal Defense and Education 
Fund, the Puerto Rican Legal Defense Fund led by the able work of my 
constituent, Angelo Falcon; the National Association of Latino Elected 
and Appointed Officials, the California La Raza lawyers, the Southwest 
Voter Registration Project, the Illinois Puerto Rican Bar Association, 
and on and on and on.

  Mr. REID. Mr. President, will the Senator from New York yield for a 
question?
  Mrs. CLINTON. I certainly will.
  Mr. REID. The Senator was on the floor this morning when there was a 
colloquy between this Senator and the senior Senator from Illinois. 
There was a question that arose as to the number of people in the 
Hispanic Caucus in the House. I have since checked that and determined 
there are 20 in the Hispanic Caucus in the House. The only Hispanic 
Members of the House of Representatives, I am told, who are not members 
of that Hispanic Caucus, are three in number. So it is 20 who are 
members of the Hispanic Caucus and 3 who are not.
  Mrs. CLINTON. I appreciate the clarification from my good friend from 
Nevada. Certainly, having worked with the Congressional Hispanic Caucus 
over many years, I know they are a national organization, representing 
people throughout our country. They did not reach this conclusion 
lightly. They interviewed Mr. Estrada. They asked questions. They 
sought information. They talked to other people who knew him, had 
worked with him. They really tried to do due diligence. They tried to 
do the job that the Judiciary Committee should do, trying to get at 
what is it about this nominee that we can either oppose or support. At 
the end of their inquiry and investigation, they concluded that they 
could not support him.
  I am sure that was a difficult decision, from talking with my friends 
in the Hispanic Caucus. It was a very tough decision because on the 
face of it, this looked like a no-brainer: Line up behind Mr. Estrada, 
vote for him, put him on the DC Circuit, and everybody can go home and 
say: Look what I did; I voted for this nominee.
  But that is an abdication of responsibility. That is truly the kind 
of action that undermines faith in our democratic process--to abdicate 
your intelligent, careful analysis of someone just to be able to check 
a box. I thought it was very courageous of the Hispanic Caucus to say: 
We have looked into this, we have investigated it, and we cannot 
support him.
  Therefore, please--please--at least try to find out what this man 
stands for, what he would do, what he believes in, because we have not 
been able to do so.
  Part of why many of us are coming to the floor is that this is a 
troubling nomination on many grounds. I know there are those, such as 
my friends in the Hispanic Caucus, who are troubled by the nominee and 
what he stands for or doesn't stand for, what he would do or not do, 
and the failure to get information.
  I know my colleagues on the Democratic side in the Judiciary 
Committee were extremely troubled--including people, as I have just 
quoted, who historically vote with a President on a nominee--and were 
very pained about having to say, I can't do it this time.
  I know, too, that many of us are concerned because, if the Judiciary 
Committee cannot do the work, we can't do the work. We can't call Mr. 
Estrada into our office and put him under oath and ask him the 
questions that he wouldn't answer when my colleagues from Illinois and 
from New York and from Wisconsin and California and everywhere else 
could not get answers out of him.
  But fundamentally, even beyond the procedures--the failure to answer, 
the kind of stealth campaign that the administration is running, the 
don't ask, don't tell--the nomination process is the Constitution. I 
think there are certain duties, whether you are a constitutionalist, an 
originalist, a Federalist--whatever you are, whatever the label you 
want to pin on yourself might be--there are certain duties that cannot 
be delegated. There are responsibilities embedded in the Constitution 
that were given to us by our Founders in Philadelphia, and among the 
most important is the importance of the role of the Senate to advise 
and consent.
  Mr. HATCH. Mr. President, will the Senator yield for a question?
  Mrs. CLINTON. Certainly.
  Mr. HATCH. Is the Senator aware that Miguel Estrada has argued 15 
cases before the Supreme Court?
  Mrs. CLINTON. Yes, on behalf of clients--not on behalf of himself.
  Mr. HATCH. He won 10 of them. Right?
  Mrs. CLINTON. I am aware of that.
  Mr. HATCH. Has the Senator from New York read any of those briefs 
that he filed in that court?
  Mrs. CLINTON. I have reviewed a number of them. I certainly am no 
expert on the cases, but I concede the point to the chairman that Mr. 
Estrada has argued cases on behalf of clients whose positions he was 
advocating and has done so extremely well.
  Mr. HATCH. And he has done it on behalf of clients as an attorney 
should.
  Mrs. CLINTON. Indeed. But he is not representing his clients before 
the Judiciary Committee. He stands there as Miguel Estrada for a 
potential lifetime appointment to the second highest court in the land. 
Therefore, he can no longer speak for clients. He must speak for 
himself.
  Mr. HATCH. He did.
  Mrs. CLINTON. That is not the conclusion reached by the Democratic 
Senators, nor by the Hispanic Caucus, nor by many who have followed 
this nomination closely--to ask a man of his record before the Supreme 
Court whether he had an opinion about any Supreme Court decision and 
for him to say, no, he did not, is absolutely unbelievable.
  Mr. HATCH. Is the Senator aware that the Hispanic Caucus in the House 
is made up of all Democrats because they would not meet the Republicans 
who were left out of the caucus?
  Mrs. CLINTON. I am very well aware of the makeup of the Hispanic 
Caucus. I have worked with members of the Hispanic Caucus for many 
years.
  I think it is also fair to look at the geographical diversity and the 
experience base of these people who represent Americans from New York 
to L.A. and from Texas to Chicago who went to the

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trouble to interview the nominee and concluded by their own efforts 
that he was not going to be acceptable in part because they couldn't 
get adequate information on which to base a good decision.
  Mr. HATCH. Is the Senator aware that the Democratic Hispanic Caucus 
in the House was actually almost equally divided as to whether or not 
to support Miguel Estrada, but the majority made the----
  Mrs. CLINTON. I think what I judge is by what people say at the end 
of a conclusive discussion and what they determine based on their own 
consideration. Much of my concern is based on the Constitution and the 
role of this body--not on what people did or didn't do, although I 
think that is instructive, and I think it is very helpful. It does have 
sway with me because I don't believe we have developed an adequate 
record in the Judiciary Committee that would give even those of us who 
might end up opposing his nomination--I don't know that for a fact--an 
adequate basis on which to exercise our constitutional responsibility.

  Mr. HATCH. Will the Senator yield again for a question?
  Mrs. CLINTON. Yes. I will.
  Mr. HATCH. I will try not to interrupt the Senator anymore, but the 
point I was making with the briefs in the Supreme Court--15 of them and 
more--is that there is a record from which you certainly can determine 
legal reasoning, as well as an extensive stack of records of the 
Judiciary Committee hearings. And let me say this. Those hearings were 
conducted by none other than the Senator's colleague from New York, 
Senator Schumer, and other Democrat Senators who said the hearings were 
fairly conducted. Is the Senator aware of all of that?
  Mrs. CLINTON. I say to my good friend from Utah, I am aware of all 
that. But I have to respectfully point out several responses.
  A long time ago I used to practice law. I represented a lot of 
clients of different kinds, all sorts of folks. Their views and their 
positions were not necessarily mine. I won some and I lost some in the 
trial court, in the appellate court, and in the administrative hearing 
room, but I do not believe that any of my clients spoke for me. My 
advocacy on behalf of clients was not the same as my positions about 
the law, about constitutional issues, and about many other matters. So 
the fact that someone has practiced law and that someone has argued 
cases is a factor to take into account. I certainly believe that is a 
significant factor. But that is not determinative. That is not in any 
way decisive when it comes to giving someone the opportunity to have a 
lifetime position on the second highest court in the land.
  Mr. REID. Mr. President, will the Senator from New York yield for a 
question?
  Mrs. CLINTON. Yes, I will.
  Mr. REID. I want the Senator to know that I met with the chairman of 
the Hispanic Caucus and other members of the caucus, plus a number of 
people on a conference call a few days ago--in the last week or 10 
days. Is the Senator aware that on that telephone call I was told that 
every member of the Hispanic Caucus--all 20 of them, every one of 
them--opposed the nomination of Miguel Estrada to be a member of the 
District of Columbia Court of Appeals?
  Mrs. CLINTON. The Senator is absolutely correct. In fact, I have a 
copy of the September 25, 2002, letter written by the Congressional 
Hispanic Caucus to the then-chairman of the Judiciary Committee 
announcing the decision to oppose the nomination.
  Mr. HATCH. Will the Senator yield on another point?
  Mrs. CLINTON. Yes.
  Mr. HATCH. Is the Senator aware that every Republican Hispanic member 
in the House is totally in support of Mr. Estrada?
  Mrs. CLINTON. I am well aware that there are three Republican 
Hispanic Members in the House who are not members of the Hispanic 
Caucus. I understand that.
  Mr. HATCH. And that there are four of them.
  Mrs. CLINTON. I would be more than happy to have them send a letter 
explaining the reasons as to why they support him other than the fact 
they have been told to do so by the Republican leadership of the House 
and the administration.

  What I have from the Congressional Hispanic Caucus is a very well 
reasoned letter setting out the decision as to why all 20 members of 
the Hispanic Caucus would not support this nomination. I think it is 
instructive.
  It is instructive to read the thinking of the Hispanic Caucus. Of 
course, much of it rests on the fact that there is such a limited 
record. It is very hard to determine what it is this gentleman would 
do. I think the Hispanic Caucus raises some very telling points which 
have not been adequately addressed in the process up until now.
  For reasons of our Constitution, of our rule of law, of our 
nomination process, of our Senate and its prerogative, as well as the 
decision apparently made by the administration to adopt a don't ask, 
don't tell policy when it comes to important lifetime appointments on 
the Federal judiciary, I certainly will have to oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Enzi). The Senator from Utah.
  Mr. HATCH. Mr. President, I will speak more to the constitutional 
issues later.
  I have to say that I totally disagree with the distinguished Senator 
from New York, much as I respect her. I don't think her analysis of the 
Constitution is anywhere near accurate.
  Second, I was told by people for whom I have great respect that when 
the vote came up, when they were discussing whether or not the Hispanic 
Caucus in the House, all Democrats, were going to oppose Miguel 
Estrada, there was almost an equal split of those who thought it was 
inadvisable to do that. Of course, after the majority makes that 
decision, I suppose they went along with that. But that was my 
understanding. If it is incorrect, I would be happy to be corrected.

  I also want to make it clear that the three Republican Hispanic 
Members of the House--all three very outstanding individuals, who have 
stood up for Hispanics all of their careers, all three of them speak 
fluent Spanish--they were basically not allowed to meet with the 
Democratic Hispanic task force or caucus in the House, and they are 
totally in favor of Miguel Estrada.
  Having said those few things, I want to take a moment to talk about 
what we are seeing on the nomination of Miguel Estrada. What we are 
seeing is just another step in a campaign to stall action on President 
Bush's judicial nominees. It has gotten to the point that the tactics 
that some of my Democratic colleagues are using are so predictable that 
it is as if they are working from a handbook. I suspect that this 
handbook had its origins in the Democrats' April 2001 retreat, where 
leading liberal law professors--of course, most of the law schools in 
this country are filled with leading liberal law professors, or at 
least liberal law professors--they urged the Democrats in that 
conference to change the ground rules on judicial confirmations. What 
resulted from this retreat is something that can be called--if you will 
notice this chart--the Senate Democrats' ``weapons of mass 
obstruction'' handbook.
  Let's take a look at some of the weapons in this handbook. Let me 
turn to the first bullet on the chart. The first weapon suggested by 
these liberal law professors was to bottle up nominees in committee.
  We have seen a lot of that in the last 2 years, is all I can say, 
especially with regard to circuit court nominees. They have allowed a 
significant number of district court nominees to go through. These are 
the trial courts, where it is very unlikely to get into the major 
questions of law that have to be decided by appellate courts, although 
they certainly are important.
  Since the judiciary is a separate, coequal branch of government to 
the President and to this Congress, this is important stuff. But their 
first weapon in their handbook was to bottle up nominees in committee.
  When control of the Senate shifted to the Democrats in June 2001, we 
saw an immediate halt of nomination activity in the Judiciary 
Committee, especially of circuit court of appeals nominees. The 
President was not being treated as other Presidents have been. Even 
though other committees held nomination hearings prior to 
reorganization, and even though the Judiciary Committee held other 
hearings, no nomination hearings were held for more than

[[Page S2135]]

a month, despite the fact of a looming vacancy crisis and plenty of 
nominees awaiting a hearing. In fact, as we stand in the Chamber right 
now, we have a crisis of around 25 or 26 emergency seats, most of them 
circuit court of appeals seats, in this country today. It is a judicial 
crisis where people cannot get their cases decided.
  Then, once we did start considering nominees, the committee 
considered only one circuit court nominee at a time. When I was 
chairman during the Clinton administration, I considered more than one 
circuit nominee at 11 different hearings. But not once during the 107th 
Congress did the Democrats hold a hearing on more than one circuit 
nominee at a time. So bottling them up in committee has been a definite 
practice that came out of that retreat.
  The point is, as I have been making it here, the first weapon in the 
Democrats' handbook--that of bottling up nominees in committee--was 
something that worked only as long as the Democrats controlled the 
committee. Since this is no longer the case, and we are now holding 
orderly hearings, fair hearings, with expedition, because the 
Republicans were fortunate enough to be able to take over control of 
the Senate, the President is now being treated fairly, as I believe I 
treated President Clinton in almost every instance--in fact, in every 
instance as far as I was concerned.

  We put through 377 Clinton judges, the second highest total in the 
history of the country for any President, and only five less than the 
highest total of Ronald Reagan. And Reagan had 6 years of a 
Republican--his own party--Senate to help him. President Clinton had 6 
years with an opposition party--the Republicans--to help him. And we 
did. You can point to some instances where I wish we had done better, 
but as far as totality, as far as getting it done, we did the job for 
President Clinton, and we treated him fairly. And he, I think, knows 
it.
  Let's look at some of the other weapons they have used that came out 
of that retreat. One of the most potent weapons of mass obstruction has 
been to try to inject ideology into the confirmation process--yes, try 
to inject ideology into the confirmation process. Miguel Estrada's 
nomination is a prime example of how that has worked.
  Some of my Democratic colleagues claim they oppose Mr. Estrada's 
nomination because he allegedly was not responsive to their questions 
at his hearing. I think we just heard an hour's worth of that. This is 
a laughable assertion. Mr. Estrada's hearing, which was held while the 
Democrats controlled the committee, and chaired by the distinguished 
other Senator from New York, Mr. Schumer, lasted all day. Mr. Estrada 
was asked dozens and dozens of questions, all of which he answered.
  The real problem that some of my Democratic colleagues have with Mr. 
Estrada is not that he did not answer their questions but that his 
answers did not give them any reason to oppose him. That is what the 
real problem is here. He testified that he would follow binding 
precedent--what more could you ask of a circuit court of appeals 
nominee--that nothing in his personal views would interfere with his 
ability to follow the law. What more could you ask of a circuit court 
of appeals nominee?
  For some of my Democratic colleagues, this is not enough. They want 
to delve into Mr. Estrada's ideology to understand his personal views 
on whether Supreme Court cases were correctly decided, and use those 
personal views as the yardstick by which they measure whether he is 
worthy of confirmation.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. I am delighted to yield.
  Mr. DURBIN. Does the Senator recall a speech he made to the 
Federalist Society? I will quote from his statement there:

       [M]any of President Clinton's nominees tend to have limited 
     paper trails. Determining which of the President's nominees 
     will become activists is complicated and will require the 
     Senate to be more diligent and extensive in its questions of 
     a nominee's jurisprudential views. . . .

  Does the Senator recall making that speech to the Federalist Society?
  Mr. HATCH. I sure do. I agree with that statement to this day. I 
agree where there are no paper trails, you should ask questions. I am 
sure the Senator will agree with me, the Democrats controlled the 
committee, they controlled the hearing that day. It was a lengthy 
hearing. They asked every question they wanted to ask. They weren't 
happy with some of the answers, but that was probably par for the 
course. It was, certainly, when I was chairman of the committee.

  But injecting ideology into the confirmation process is misguided, at 
best, and down right irresponsible at worst. It is not, as some 
Senators have suggested, essential to executing our duty of advise and 
consent. But do not merely take my word for it. My goodness, Heaven 
forbid.
  During the course of this debate, I have already mentioned the 
statements that Lloyd Cutler made on this point. Again, I mention Lloyd 
Cutler because both sides of this body respect him. We both know he has 
been an excellent servant of the people. We both know he is a great 
lawyer, not just in the District of Columbia but throughout the 
country.
  I have participated in forums with Lloyd Cutler, and I have nothing 
but respect for him. I have not always agreed with him--I have to admit 
that--but, by and large, we have agreed on most issues.
  I have already mentioned statements Lloyd Cutler has made on this 
point, but I believe they are worth repeating because some of my 
colleagues keep resurrecting the spurious allegation that Mr. Estrada 
was not forthcoming at his hearing.
  Mr. Cutler, as we all know, served this country as counsel to 
President Carter, and President Clinton, by the way. He also served on 
two national commissions that addressed problems in the confirmation 
process.
  He said:

       Candidates should decline to reply when efforts are made to 
     find out how they would decide a particular case.

  That is just a rule that both sides have followed even before Mr. 
Cutler made that very erudite statement.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Sure.
  Mr. DURBIN. Can the Senator point to any question asked of Miguel 
Estrada by either a Democratic or Republican Senator as to how he would 
rule in a particular case during the course of the confirmation 
hearing? Did any Senator violate the standard Lloyd Cutler enunciated 
in asking Miguel Estrada to tell us how he would rule in a particular 
case?
  Mr. HATCH. One of the Democrats on the floor said, if I recall 
correctly, he asked the question, what is your belief about the first 
amendment. Gee whiz, I could teach law school class for over 3 months 
on that subject alone. Another--it may have been the same Senator--said 
he wanted to know in his questions whether he was going to overturn all 
of the clean air, clean water, and environmental rules, because this 
court is so important.
  Mr. DURBIN. Does that relate to a particular case we are asking him 
to tell us about or rather his views on the Constitution?
  Mr. HATCH. The Senator is an excellent lawyer. I know he is. I have 
tremendous respect for him. He sits on the committee. I enjoy him. But 
when you ask questions like that, those are areas where cases come 
before the Circuit Court of Appeals in the District of Columbia.
  Mr. DURBIN. Is it the Senator's position we should not ask a question 
of a nominee in any area of law that might come up in any case a judge 
would rule on?
  Mr. HATCH. No, I think the Senators on the committee can ask any 
questions they want to, but I think it is incumbent upon the nominee to 
follow Mr. Lloyd Cutler's suggestion that ``candidates should decline 
to reply when efforts are made to find out how they would decide a 
particular case.''
  I suspect anybody can discuss general law, but that is not what the 
distinguished Senators were interested in.
  Mr. DURBIN. I ask the Senator one last question: Can he point to any 
question asked by any Senator that went beyond general law and asked 
Miguel Estrada how he would rule on a particular case?
  Mr. HATCH. I think I just gave two illustrations that certainly were 
questions of law that could come before the

[[Page S2136]]

court. I might add Mr. Estrada was asked to criticize Supreme Court 
cases. Here a Supreme Court advocate who has to appear before the nine 
Justices on the Court is asked to criticize Supreme Court cases that he 
will be bound to follow as a circuit court judge.
  By the way, if I recall it correctly, the distinguished Senator from 
Illinois just a short while ago was criticizing Mr. Estrada because in 
the whole history of American jurisprudence, from the beginning to the 
end, he couldn't come up with cases like Dred Scott, Plessy v. 
Ferguson, but the question, if you read in the record was, in the last 
40 years, could you tell us three cases you disagreed with.
  I believe he could have, maybe. I don't know. But when you are under 
pressure and you are sitting there and you are trying to answer 
questions, I don't think we should hold him to a standard that he has 
to meet these questions head on and absolutely come up with spur-of-
the-moment comments. I mean, I can come up with some, I am sure, right 
off the bat, but that was the last 40 years. There were three 
references to it, twice referring to 40 years. The middle one between 
the two I am sure he felt he was talking about the last 40 years, not 
the whole history of jurisprudence. The first case that has come to 
your mind perhaps would be Dred Scott; certainly Plessy v. Ferguson. 
Could you name a whole raft of others, perhaps. I don't know. I don't 
know how I would do if I was sitting there under pressure as Miguel 
Estrada was.

  He is a young man. He has a lot of experience. He can talk about 
current Supreme Court law as well as anybody in our existence. The fact 
is, I thought it was kind of unfair to try and hold him to that 
particular standard. I am not criticizing my friend from Illinois, but 
to go back and read the record, you will find that was what the 
questions were.
  Now, regarding judicial nominees, Mr. Cutler has stated in 
unequivocal terms that candidates should decline to reply when efforts 
are made to find out how they would decide a particular case.
  I would have trouble with a nominee if the nominee did try to reply 
in those cases. In his opinion, that is Mr. Cutler's opinion, ``what is 
most important is the appointment of judges who are learned in the 
law''--certainly, Estrada is as learned in the law as anybody we have 
had before the committee--``who are conscientious in their work 
ethic''--my gosh, you can't find any fault with Mr. Estrada there; he 
is a hard worker--``and who possess what lawyers describe as judicial 
temperament.''
  We have heard some criticize Mr. Estrada because they think he might 
have a temper. I think everybody in this body might have a temper. That 
is one heck of a poor allegation.
  Mr. Estrada's academic achievement, his professional accomplishments, 
his letters of support we received from his colleagues, many of whom 
are Democrats and top Democrats at that, and his ABA rating, the 
highest the American Bar Association can give, ``unanimously well 
qualified,'' all indicate Mr. Estrada fits this description and 
deserves our vote of confirmation--this description of none other than 
Lloyd Cutler.
  At the same hearing at which Mr. Cutler made his statements about the 
appropriate scope of the inquiry for confirming judicial nominees, 
another legal luminary, one of the great lawyers in this town, a man I 
think almost all of us look up to--certainly I do, and I think I am in 
a position to know great lawyers when I see them--Boyden Gray, 
testified for Mr. Estrada. Mr. Gray, of course, served as White House 
counsel in the first Bush administration.
  During his testimony, he told us that two Democratic Senators who are 
former Judiciary Committee chairmen met with him very early in the 
administration to let him know in no uncertain terms that if the White 
House was caught asking any potential nominee any questions about 
specific cases, that nominee would be flatly rejected.
  As Mr. Gray pointed out, that same philosophy is reflected in the 
Judiciary Committee questionnaire which all judicial nominees must 
complete before the committee will act on their nominations. It is an 
extensive questionnaire. The questionnaire asks:

       Has anyone involved in the process of selecting you as a 
     judicial nominee discussed with you any specific case, legal 
     issue, or question in a manner that could reasonably be 
     interpreted as asking or seeking a commitment as to how 
     you would rule in such a case, issue, or question?

  The clear goal of this question is to deter the White House from 
getting commitments from potential nominees on how they would rule in 
specific cases or commitments that they can overrule certain Supreme 
Court cases. It now appears certain Senate Democrats want to forbid the 
White House from asking nominees how they would rule on specific issues 
while reserving that right for themselves. That seems a little 
inconsistent to me. Call it what you will, but this is a double 
standard if I have ever seen one.
  More fundamentally, it threatens the very independence of the Federal 
judiciary that our constitutional system of checks and balances was 
designed to preserve.
  Let's face it--too many questions in the confirmation hearings of 
President Bush's judicial nominees seem calculated politically to 
manipulate the judicial selection process and to frustrate the 
appointment of judges who would refuse to follow a popular or 
politically popular course when the Constitution and settled judicial 
precedent provide otherwise.
  Miguel Estrada was right not to fall into the trap of criticizing 
particular Supreme Court cases that he may be called upon as a sitting 
Federal judge to uphold. My colleagues should be commending him for 
this, not proffering it as a reason to vote against his confirmation.
  Another weapon in the Democrat handbook is to, as we can see here, 
seek all unpublished opinions. This all came from that retreat: Bottle 
up the nominees as much as you can in committee. I think that even goes 
further--bottle them up on the floor, too. We will get to that. Inject 
ideology into the confirmation process so you can say this fellow just 
isn't what we want on the court. Seek all unpublished opinions. Let's 
talk about that.
  For some nominees who have been judges for a decade or more, this 
demand has resulted in the production of hundreds of opinions and 
required the expenditure of a significant amount of Federal dollars, of 
resources, of money, of effort, and of time. All the time judges spend 
producing unpublished opinions meant they were not spending that time 
adjudicating cases before them.
  While demands for unpublished opinions were outstanding, the 
Democrats in control of the committee had a perfect excuse for not 
acting on their nominations. But the fact is that these nominees had 
ample records on which to evaluate their qualifications for the Federal 
bench without seeking their unpublished opinions and diverting them 
from doing their job to be judges to satisfy the whim of a few 
Democratic Senators.
  I remember in the case of, I believe, Dennis Shedd--who is now 
confirmed to the circuit court of appeals in his district--they asked 
for all of his unpublished opinions which were, as I recall, in 
Atlanta, GA, and what was the reason? It was only to see if they could 
dig up something that would be against Dennis Shedd. Unpublished 
opinions? My gosh, I don't ever remember when we did that. But that was 
a tool that was used throughout the process to delay. It was an 
expensive tool to the taxpayers, with no real good fruit coming from 
it.
  I will refer to the fourth one here. Another weapon is to demand that 
the nominee produce internal memoranda that are not within the 
nominee's control. Isn't that an interesting one? We Democrats demand 
that you produce your internal memoranda that you made, and did the 
research on, and that you wrote while you served the Federal 
Government--even though you don't control that and even though it is 
tightly controlled--or should I say those memoranda are tightly 
controlled.
  We saw the debut of this weapon to obstruct the confirmation of Mr. 
Estrada, and I expect we will see it again. I don't believe a day of 
this debate has gone by without one Democratic colleague complaining 
that there is an ``incomplete record'' on him without the record he 
offered as an Assistant Solicitor General of the United States.

[[Page S2137]]

  This complaint ignores many facts. First, every living Solicitor 
General opposes the Democratic efforts to obtain these memoranda. 
Second, both the Washington Post and the Wall Street Journal--many 
would say they are on opposite sides of the fence--also oppose these 
efforts. Third, this demand for internal Department of Justice 
memoranda is unprecedented, as the Department itself has explained in a 
lengthy letter.
  Finally, this demand for internal memoranda ignores the abundant 
record of Mr. Estrada. This man has argued 15 cases before the U.S. 
Supreme Court. He won 10 of them. In each one of those cases, he 
authored a brief that anybody can get ahold of. In each one of those 
cases, there is a transcript of the oral arguments that anyone can get 
ahold of. Certainly, members of the Senate Judiciary Committee can get 
ahold of them. Surely, my Democratic colleagues can evaluate Mr. 
Estrada's legal reasoning and fitness for the Federal appellate bench 
by examining these briefs and transcripts.
  Each weapon of obstruction that I have mentioned was most potent when 
the Democrats controlled the Judiciary Committee. Now things have 
changed. Democrats no longer control the committee and, as a result, 
Miguel Estrada's nomination is being debated on the Senate floor. This 
means that the Senate Democrats must turn to their ultimate weapon of 
obstruction. I am going to peel off that last one. The ultimate weapon 
is the filibuster.
  Well, filibuster is a potent but extreme weapon to rely upon for the 
defeat of a judicial nominee. It is potent because it requires a 
supermajority of 60 votes by 60 Senators to end it. It is extreme 
because it unduly politicizes the Federal judiciary, the one branch 
intended to be insulated from political pressure. Let's go through 
these again. At the retreat, these law professors, who should have 
known better but are more interested in ideology, in partisanship, 
Democratic Party politics, in control of the judiciary, made these 
recommendations: Bottle up nominees in committee. We saw a lot of that 
when they were in control. Now they cannot do that anymore, except that 
I suspect that because the Judiciary Committee has a rule that once 
these nominees are put on a markup, any member of the committee can put 
them over for a week, we will see that right exercised in every case. 
At least, we have so far. So bottle them up in committee. Then inject 
ideology into the confirmation process because, by doing that, you can 
say I disagree with you and maybe you think you have a right to vote 
against him.

  Look, we don't know how any nominee is going to vote once they become 
a judge; it is a lifetime appointment. It is important to ask questions 
and try to do what we can to understand whether the nominee is capable 
or should be confirmed. To inject ideology into the confirmation 
process is a very dangerous thing. Thirdly, seek all unpublished 
opinions. That is the ultimate delay tactic, at a tremendous cost to 
the taxpayers. I don't remember in the past where that was done, except 
it may have been done in a case where they were critical to the final 
determination. But it is done today because they want fishing 
expeditions, or they wanted them to see if they could find some reason 
to oppose. Then, seek privileged internal memoranda.
  Can you imagine what would happen to the Solicitor General's Office 
if secret memoranda that were used to determine what the Solicitor 
General should do would be disclosed to the public in every case? Can 
you imagine how that would chill getting responsible, accurate, and 
honest opinions, so that the Solicitor General can rely upon them? 
Anybody who wanted to be a Federal judge would have to think, how can I 
write this so it won't come back to haunt me in the future rather than, 
how can I write this to do it right and help my Solicitor General. And 
then the ultimate weapon, if you cannot do anything else, is the 
filibuster.
  Now, to filibuster a nominee would be an unprecedented, dangerous 
weapon to use. As best I can tell, a true filibuster has never been 
used to defeat a circuit court nominee. In fact, no filibuster has been 
used to defeat a circuit court nominee. Its contemplated use now 
against Miguel Estrada's nomination has been soundly criticized. I was 
told a short while ago that my colleagues on the other side have 
decided to filibuster. I don't believe the reasonable people on the 
Democratic side are going to resort to that type of a weapon. But if 
they do, they will be following the advice of these law professors who 
have never been Senators and who are from the far left of the political 
and legal spectrum.
  The filibuster is an unprecedented and very dangerous weapon, never 
before used to defeat a circuit court nominee. In fact, it has never 
been used to defeat a district court nominee either. Let me go a little 
bit further here.
  Just last week, the Washington Post, our local newspaper--but 
national in scope--declared:

       [A] world in which filibusters serve as an active 
     instrument of nomination politics is not one either party 
     should want.

  That was February 5--last week. The Post is absolutely right. Once we 
go down that road, that works both ways. I would not want it to, but it 
naturally will.
  The Wall Street Journal concurred in the Washington Post's sentiment. 
You can see the quote:

       Filibusters against judges are almost unheard of. . . . If 
     Republicans let Democrats get away with this abuse of the 
     system now, it will happen again and again.

  Mr. President, copies of these editorials have been printed in the 
Record.
  Filibusters of judicial nominees allow a few Members of this body to 
block the confirmation of any Federal judge, a prospective member of 
our third coequal branch of Government.
  I have taken to the floor time and again for Democratic and 
Republican nominees alike to urge my fellow Senators to end debate by 
voting to invoke cloture which requires the vote of 60 Senators. Most, 
if not all, of these occasions did not represent true filibusters but 
were situations in which nominees were, nevertheless, forced to 
overcome a procedural obstacle of a cloture vote.
  I am not alone in my disdain for forcing judicial nominees to a 
cloture vote. The distinguished minority leader himself once said, on 
this double standard for the use of the weapons, Democrat leader Tom 
Daschle, one of my friends and a person for whom I have a lot of 
respect:

       As Chief Justice Rehnquist has recognized: ``The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down.'' An up-or-down vote, that is all we 
     ask.

  I think that was wise advice then, and I think it is wise advice now.
  The ranking member of the Judiciary Committee, my friend Senator 
Patrick Leahy, said:

       I, too, do not want to see the Senate go down a path where 
     a minority of the Senate is determining a judge's fate on 
     votes of 41.

  In other words, 41 Senators can stop any judge once that road is 
taken. And once we go down that path, that will be a doggone mess and a 
doggone tragedy to this country.
  Another one of my Democratic colleagues, himself a former chairman of 
the Judiciary Committee and a friend of mine, Senator Ted Kennedy, had 
this to say:

       Nominees deserve a vote. If our Republican colleagues don't 
     like them, vote against them. But don't just sit on them--
     that's obstruction of justice.

  He was right then and that quote is right today. Of course, each of 
my Democratic colleagues made these remarks when a Democratic President 
was appointing judicial nominees. It appears that if they filibuster 
this nominee on the thinnest of excuses--in fact, I do not think they 
have any reasons to, other than their fear that he is a Hispanic 
conservative Republican who may not rule the way they want him to rule 
in the future and who may some day be considered for the Supreme Court 
of the United States of America--it appears there must be a double 
standard for the use of these weapons.
  Let me tell you the origin of the word ``filibuster'' because that is 
an important word here today. It comes from the Spanish word 
``filibustero,'' meaning a pirating or hijacking. It is just one more 
obstruction that has never been used in the case of Federal judges, for 
either the circuit court of appeals or for the district court.
  That is exactly what an unprecedented filibuster of this nominee 
would

[[Page S2138]]

be: A hijacking of the Senate. What it amounts to is two more simple 
English words: More obstruction.
  There was one true filibuster in the history of the Senate--I have to 
acknowledge that--and that was a filibuster of a Supreme Court nominee, 
Abe Fortas, back in 1968, if I recall it correctly. There was a 
bipartisan filibuster. There were plenty of Democrats and plenty of 
Republicans who voted against cloture in that case. I think they were 
wrong, whoever voted that way. Richard Nixon was for allowing the vote 
to go forward without a filibuster. But the Senate wisely has never 
utilized a true filibuster since that day. To use it on this nominee 
because some have said he is not Hispanic enough, to use it on this 
nominee because some have said he does not have any judicial 
experience--although Miguel Estrada was a clerk to Amalya Kearse of the 
Second Circuit Court of Appeals and a clerk to Justice Anthony Kennedy 
on the Supreme Court of the United States of America, and has argued 15 
cases before that august body and numerous cases elsewhere. It seems to 
me he has a lot of judicial experience, though he has not sat on the 
bench.

  If we take that opinion, then that virtually consigns almost every 
Hispanic in this country, probably most African Americans--in fact, 
probably everybody of a minority status--to never being a Federal judge 
because most Hispanics have never sat on a bench. There are those who 
have, admittedly. Most African Americans have never sat on a bench, 
although there have been some on lower court benches in the State 
courts particularly, and even in the Federal courts. But it basically 
says you cannot make it if you have to have served as a judge before, 
no matter how brilliant you are. There are brilliant African Americans. 
There are brilliant Hispanics. There are brilliant Native Americans. 
There are brilliant Asian Americans. And we have brilliant people who 
have never served as a judge who might have this opportunity some day 
that Miguel Estrada hopefully will have.
  Others have used other phony arguments against Miguel Estrada, such 
as he did not answer all the questions. That is par for the course. I 
do not know many contested judicial nomination proceedings where all 
the questions have been answered the way the questioners expected them 
to be answered.
  Then they say: We cannot get hold of all these documents because he 
did them confidentially while he worked at the Solicitor General's 
Office, even though four of those seven living Solicitors General who 
are opposed to that type of release of documents are leading Democrats 
in this country. They will not even listen to their own leading 
Democrats, let alone leading Republicans.
  I am just imploring my colleagues on the other side: Do not go down 
the terrible path of filibustering this nominee or any other nominee. 
It is not only dangerous, it would establish a precedent that literally 
would be offensive to the country, offensive to the Constitution, 
offensive to the judicial system, offensive to the third branch of 
Government, and offensive to any reasonable person who believes the 
President's nominees ought to get a fair hearing and they ought to get 
a vote up or down on the Senate floor. That is where we make that 
determination.
  If the Democrats have enough votes to defeat Miguel Estrada, I am not 
going to complain about it. I might feel badly about it, and I might 
say it was the wrong thing to do, but they have a right to do that. If 
we have enough votes on this side, with hopefully the help of a number 
of our friends on the other side, then that is the way it should be. 
Miguel Estrada should go on that bench.
  Unfortunately, I believe one of the arguments that is flitting around 
in the background in the penumbras and emanations of the Senate is he 
might some day be asked to be the first Hispanic on the U.S. Supreme 
Court, and that is the real reason, among a few others that are not 
valid as well, for the slowdown in a vote on Miguel Estrada.
  Mr. President, I do not think we should have a filibuster, or a 
pirating or hijacking of the judicial process. I think it would be a 
terrific mistake for Democrats to do. Every Republican is going to vote 
for Miguel Estrada, and I believe a number of Democrats will as well--I 
hope a great number of them will--and they ought to have that right, 
right here on the floor.
  If my colleagues who disagree do not like it, they can speak out. 
They can give their reasons, and they can vote no. That will be what 
they should do if they feel sincerely about this. Politics ought to be 
left out of it. The fact that they suspect Miguel Estrada may not be 
exactly the way they would want a judge to act on their issues--I do 
not know whether he will or will not, to be honest, but if the mere 
suspicion is enough to vote against him without any real basis 
otherwise, then I think we are treading on some very dangerous ground.
  I believe in Miguel Estrada. I believe this President is doing 
everything in his power to reach out to people of color in this 
country. I believe we ought to help him. He certainly has indicated his 
desire to do so, and he certainly has been doing it. This is a 
President who has put a number of Democrats on the Federal bench. I 
think he wants to make sure we fill these seats and we get them done as 
best we can. Naturally, any President worth his or her salt is going to 
try to appoint people who, hopefully, agree with him or her. I think 
that is the nature of the process, and that is what we get when we 
elect a President; we get that President's nominations to the various 
Federal courts.
  This President is very sincere and has approached it probably less 
politically than Presidents, Republican and Democrat, whom I have seen 
in the past. He deserves support. He deserves to be treated fairly. His 
nominees deserve to be treated fairly. Above all, Miguel Estrada should 
be treated fairly. If the ``filibustero'' occurs, I guarantee he is not 
being treated fairly.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, this is an important debate. I acknowledge 
my colleague, friend, and chairman of the Senate Judiciary Committee, 
Senator Hatch, who has argued very vigorously day after day in support 
of the Miguel Estrada nomination.
  For those who wonder why the Senate would be taking up time to 
discuss one man's nomination to one court, this debate goes to the 
heart of a very basic issue. The issue is the constitutional 
responsibility of the Senate. After most of us who serve in the Senate 
are long gone and forgotten, some will harken back to this debate and 
make reference to it to determine whether at this moment in history the 
Senate stood up for its constitutional authority and responsibility.
  That constitutional authority and responsibility is found in article 
II, section 2, of the U.S. Constitution, which says that the Senate 
shall have the power to advise and consent to the nominees of the 
President to the courts of our land. That is an important 
responsibility from the very beginning of this Republic.
  There are those in the President's party who might like to change the 
Constitution when it comes to President Bush's nominees, to take out 
the word ``advise'' and basically say ``consent''--just move on with 
it. If they could, we would move from a Senate to a rubber stamp. That 
is the choice: The Constitution or a rubber stamp.
  I hope the Senate never reaches the point where we do not stop to ask 
important questions of nominees who are seeking a lifetime appointment 
to the Federal bench--no review by voters, no review by Congress. The 
judge is there for life, and, subject to malfeasance or the commission 
of a crime, they will stay in that position until they die or quit. 
That is what is at stake.
  Miguel Estrada was nominated by President Bush to serve on the DC 
Circuit Court of Appeals, a lifetime appointment to the second highest 
court of the land. This is an important nominee, important because we 
know that when it comes to the DC Circuit Court of Appeals, it is the 
AAA team for the Supreme Court. The White House has made it clear that 
Miguel Estrada may be in line to move up to the major leagues. So 
Miguel Estrada is not just another judicial nominee.
  If we look at him--and I have had a chance to sit down and talk to 
him--what a compelling life story he tells. Senator Hatch has recounted 
it, as others have. His legal credentials are

[[Page S2139]]

impressive, but his views are so suspect that he has consistently 
refused to say publicly what he believes.
  I believe the decision of the Bush administration to affirmatively 
act to put a Hispanic nominee on the Federal bench is the right thing. 
A few weeks ago, President Bush said he was not in favor of affirmative 
action. With the nomination of Miguel Estrada, the White House is 
affirmatively acting to put a Hispanic on the bench. I support it. I 
salute it. It is the right thing to do. I have been honored to appoint 
a Hispanic to the district court in Chicago. I think it is important 
that that court reflect the diversity of my city, my State, and our 
Nation. The same thing is true on this court.
  We have the question being raised by the Senator from Utah as to 
whether or not Miguel Estrada, during the course of his nomination 
hearing, should be asked questions about his views on the Constitution. 
Excuse me, but if this Senate decides that we cannot ask a nominee to 
the Federal court a question as basic as his views on our Constitution, 
then we have been transformed into a rubber stamp: Take it or leave it. 
The President sent the nominee. Vote for him or else.
  A lot has been said of the quote from Lloyd Cutler, a man who is well 
respected, about whether or not a nominee should be asked how he would 
rule in a particular case. Lloyd Cutler is right. If one of the 
nominees came before us and we would ask that nominee, there is a case 
pending in the DC Circuit Court of Appeals, tell us how you would rule 
on that case if you sat on the bench, that is just plain wrong. We 
cannot do that. But it is not unfair to ask of a nominee his or her 
views on constitutional issues.
  It is interesting to me that Senator Hatch would raise this point 
because only a week ago, three circuit court nominees, nominated by 
President Bush, came before the Judiciary Committee and we spent the 
better part of a day or more asking them probing questions about their 
views on constitutional issues. To their credit, they were forthcoming, 
honest, and candid in all of their answers. I did not agree with some 
of their points of view, but that is not what this is all about. They 
do not have to say what I need to hear.
  I have voted over 100 times now for President Bush's nominees, many 
of whom I disagree with on constitutional issues and policy issues, but 
that is not what it is about. If they strike me as people who are 
moderate, honest, skilled, with good temperament, I am going to vote to 
put them on the bench, even if I do not agree with their political 
view. I think that is what the process should be.
  When it comes to Miguel Estrada, when we asked him the most generic 
questions to open up and tell us his thinking about constitutional 
legal issues, he fended us off; he refused.
  Justice Antonin Scalia on the U.S. Supreme Court was picked by 
President Bush as one of his favorite Justices. He likes his 
conservative bent. He may like him personally. Whatever reason, then-
candidate Bush said Antonin Scalia was his kind of Supreme Court 
Justice. Do my colleagues know what Justice Antonin Scalia said about 
questions of judicial candidates regarding their political views? In 
the case of Republican Party of Minnesota v. White, in an opinion 
written by Justice Scalia which overruled restrictions against 
candidates for elective judicial office from indicating how they would 
rule on legal issues while campaigning, Justice Scalia said:

       Even if it were possible to select judges who do not have 
     preconceived views on legal issues, it would hardly be 
     desirable to do so. Proof that a Justice's mind at the time 
     he joined the Court was complete tabula rasa in the area of 
     constitutional adjudication would be evidence of lack of 
     qualification, not lack of bias. And since avoiding judicial 
     preconceptions on legal issues is neither possible nor 
     desirable, pretending otherwise by attempting to preserve the 
     appearance of that type of impartiality can hardly be a 
     compelling state interest, either.

  Did you note the words of Justice Antonin Scalia, the favorite of 
President Bush and many of my Republican colleagues on the floor?

       Proof that a Justice's mind at the time he joined the Court 
     was a complete tabula rasa in the area of constitutional 
     adjudication would be evidence of lack of qualification, not 
     lack of bias.

  Going back to Latin courses I took too many years ago to recount in 
this speech, tabula rasa is a blank slate. What the Justice has said in 
this opinion is, when nominees come before you saying they never 
thought about a certain issue, never reflected on a constitutional 
position, don't have an opinion to share with you, that's not evidence 
of lack of bias, that's evidence of lack of qualification. And that is 
what this debate is all about.
  There is no doubt in my mind Miguel Estrada has his own point of 
view, understands constitutional issues, and would express it. But he 
has been carefully coached and managed by the Department of Justice and 
the White House to come before the Senate Judiciary Committee and, 
frankly, deny any opinion on any constitutional issue.
  My colleague, Senator Schumer, asked him to just point out a Supreme 
Court case he disagreed with.
  No, he said, if I didn't hear the arguments and I didn't read the 
briefs, I am not going to do it.
  We asked him not only in the hearings but in written questions I sent 
to him afterwards, what is your view on Roe v. Wade, the landmark 
decision related to abortion in America.
  Again he said, Well, since I didn't hear the arguments and I wasn't 
there, I am just not going to say what I understand when it comes to 
Roe v. Wade.
  What a sharp contrast to John Ashcroft, the new Attorney General 
under President Bush who, when asked the same question in his 
confirmation hearing, said he would view that as established law and, 
unless it were overturned by the Supreme Court, would enforce it. 
Miguel Estrada would not even go that far.
  I asked him as well to give the name of a judge, living or dead, whom 
you would emulate on the bench--a wide open, softball question. He 
could have picked the most conservative judge in history and the most 
liberal judge and said both of them brought the following qualities to 
the court and I hope to follow those qualities. He had been so 
carefully prepared, so cautioned by the Department of Justice, he 
wouldn't even go that far to suggest there was a Supreme Court Justice 
or a living judge, or one who has passed away, he would seek to 
emulate.
  So what does that mean? Here is a man who will not tell us the most 
basic information about his views on the Constitution, on judicial 
philosophy, general questions you would ask of any nominee. And the 
Republican majority comes and tells us approve him anyway. Give him 
that lifetime appointment.
  Roll the dice. Gamble he is going to be the right person. The 
Republican majority says to the Senate: Be a rubberstamp. Don't ask 
these questions. Now you are getting into ``advice.'' That is what the 
Constitution says, ``advice and consent.''
  Let me point out some things that ought to be part of the record. I 
am proud to have named a Puerto Rican judge to the district court in 
Chicago. During President Clinton's tenure, 10 of his more than 30 
Hispanic nominees were delayed or blocked from receiving hearings or 
votes by the Republican Senate Judiciary Committee, chaired by the 
Senator from Utah; 10 out of 30 Hispanic nominees.

  Mr. REID. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. The Senator recalls, I am confident, that one of the 
nominees, one of the 20 who made it through, a man named Paez from 
California, waited 4 years before he was able to get confirmed by the 
Senate?
  Mr. DURBIN. Four years. And there was never any question raised about 
his qualifications or answers to questions.
  Mr. REID. In fact, the Senator will recall he was a judge and had 
been for many years and had voluminous judicial opinions people could 
look at.
  Mr. DURBIN. Absolutely. I might say to the Senator from Nevada, the 
Senator from Utah, in a speech to the Utah Federalist Society, said 
when you have a nominee like Miguel Estrada with no published opinions, 
then you have to really ask questions. Get to the bottom of his 
jurisprudential views, in the words of the Senator from Utah. In the 
case of Judge Paez, there was not only ample record about how he ruled, 
he answered the questions. Miguel Estrada has ducked the questions time 
and time again and believes if he can

[[Page S2140]]

hold us back long enough he will get a lifetime appointment to the 
Federal bench. That would be a dereliction of duty on the part of the 
Senate and that is why we are spending this time on this nominee. An 
important constitutional principle is at stake here, a principle of 
whether or not the Senate will have the right and the authority to ask 
the questions, to make a reasoned judgment before we give our advice 
and consent to a President's judicial nominees.
  Mr. REID. Will the Senator yield for one more question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I am not sure the Senator is aware from Congressional News, 
this publication that quotes what we say in the press every day--the 
distinguished chairman of the Judiciary Committee appeared on MSNBC 
Hardball last evening. Among other things, are you aware he said, 
talking about the Democrats in the Senate:

       What they are really worried about is Estrada is so 
     qualified and so good and he's Hispanic, that he's on the 
     fast track to the Supreme Court. They think they don't want a 
     Hispanic Republican, let alone a conservative, on the Supreme 
     Court of the United States of America, and that's what this 
     is all about.

  What is the Senator's comment in that regard?
  Mr. DURBIN. I can tell the Senator, as I said earlier, I was happy to 
appoint a Hispanic to the Federal District Court in Chicago. I hope 
sooner rather than later there will be a Hispanic on the United States 
Supreme Court. If you look at this nominee, Miguel Estrada, it is 
really instructive to me that the Hispanic Caucus of Congress has come 
out in opposition to his nomination. Some have dismissed that and said 
there are three Republican Hispanics in the House who favor his 
nomination. I am going to make that part of the Record. I ask unanimous 
consent if I might have a list of letters in opposition and concern to 
the nomination of Miguel Estrada be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Letters of Opposition to and Concern About the Nomination of Miguel 
              Estrada to the D.C. Circuit Court of Appeals


                          congressional groups

       Congressional Hispanic Caucus, Congressional Black Caucus.


                            Hispanic Groups

       Mexican American Legal Defense and Educational Fund and 
     Southwest Voter, Registration and Education Project, Letter 
     of Opposition, January 29, 2002.
       Mexican American Legal Defense and Educational Fund, 
     National Association of Latino Elected & Appointed Officials, 
     National Council of La Raza, National Puerto Rican Coalition, 
     Puerto Rican Legal Defense & Education Fund, Washington, DC, 
     Letter of Concern, May 1, 2002.
       California La Raza Lawyers & Mexican American Legal Defense 
     and Educational Fund, Letter of Concern, September 24, 2002.
       Southwest Voter Registration Education Project, Letter of 
     Concern, September 24, 2002.
       Puerto Rican Legal Defense and Education Fund, Re-issue of 
     Position Statement in Opposition, January 27, 2003; Position 
     Statement in Opposition, September 17, 2002; Letter of 
     Concern, June 11, 2001.
       52 Latino Labor Leaders including the following: Linda 
     Chavez Thompson, AFL-CIO, Washington, DC; Milton Rosado, 
     President, LCLAA, Trenton, NJ; Eliseo Medina, Executive V.P., 
     SEIU, Los Angeles, CA; Miguel Contreras, Exec. Sec. Treas., 
     LA County AFL-CIO, Los Angeles, CA; Dennis Rivera, President, 
     SEIU, 1199NY, New York, NY; Christina Vazquez, International 
     VP, UNITE, Los Angeles, CA; Arturo S. Rodrijez, President, 
     United Farm Workers, Keene, CA; Maria Elena Durazo, 
     President, Local 11, HERE, Los Angeles, CA; Mike Garcia, 
     President, SEIU Local 1877, Los Angeles, CA; Oscar Sanchez, 
     Exec. Dir. LCLAA, Washington, DC; Debra Renteria-Styers, UAW, 
     Macomb, MI; Maria Armesto, AFT, Washington, DC; Dionisio 
     Gonzalez, USWA, Los Angeles, CA; Tony Padilla, TCU, 
     Rockville, MD; Celestino Torres, USWA, Hayden, AZ; Guillermo 
     Zeleya, IUPAT, Washington, DC; Al Ybarra, Exec. Sec-
     Treasurer, AFL-CIO, Orange County, CA; Ray Arguello, UAW, 
     Detroit, MI; Patricia Campos, Pres., DC Metro LCLAA, 
     Washington, DC; Rocio Saenz, President, SEIU Local 615, 
     Boston, MA; Rose Rangel, SEIU, South Pasadena, CA; Salvador 
     Aguilar, USWA, Griffith, IN; Jose A. Caez, IBEW, 
     Farmington, CT; Elsa Lopez, AFT, Miami, FL; Lorenzo 
     Rivera, UAW, Oxford, MI; Heriberto (Ed) Vargas, UNITE, New 
     York, NY; Henry Gonzalez, UAW, South Gate, CA; Gerardo 
     Becerra, ILA, Miami, FL; Jorge Rodriguez, SEIU, Los 
     Angeles, CA; E.J. Himenez, USWA, Corpus Christi, TX; 
     Hector Figueroa, Secretary Treasurer, SEIU Local 32BJ, New 
     York, NY; Roberto Jordan, UNITE 62-32, New York, NY; Gary 
     R. Allen, IAM, Albuquerque, NM; Joe Calvo, UAW, Lombard, 
     IL; Susie Luna Saldana, AFT, Corpus Christi, TX; Johnny 
     Rodriquez, UFCW, Dallas, TX; Baldemar Velasquez, FLOC, 
     Toledo, OH; Henry (Hank) Lacayo, UAW, Newbury Park, CA; 
     Lawrence Martinez, GCIU, Washington, DC; Jimmy Matta, Kent 
     Co. WA LCLAA, Seattle, WA; A Polinar Quiroz, USWA, 
     Chicago, IL; Walter Hinojosa, Texas AFL-CIO, Austin, TX; 
     Maria Portalatin, AFT, New York, NY; Manuel Armenta, USWA, 
     AZ; Santos Crespo, Jr., AFSCME, Brooklyn, NY; Angela 
     Mejia, CWA, Channelview, TX; Jose Rodriquez, IAM, Ontario, 
     CA; Armando Vergara, UBC, South Pasadena, CA; Jack Otero, 
     CTC, TCU, Washington, DC, Rudy Mendoza, CWA, Santa 
     Barbara, CA; Tania Rosario, Kent Co. WA LCLAA, Seattle, 
     WA; and Chuck Rocha, USWA, Pittsburgh, PA.
       National Council of La Raza (NCLR), Letter of Concern, 
     September 24, 2002.
       National Association of Latino Elected and Appointed 
     Officials (NALEO), Letter of Concern, September 25, 2002.
       Puerto Rican Bar Association of Illinois, Letter of 
     Opposition.


                                 labor

       AFL-CIO, Letter of Opposition, January 29, 2003; Letter of 
     Concern, September 26, 2002.
       UAW, International Union, United Automobile, Aerospace & 
     Agricultural Implement Workers of America, Letter of 
     Opposition, February 3, 2003.


                       Civil Rights Organizations

       Leadership Conference on Civil Rights, Letter of 
     Opposition, January 29, 2003.
       Alliance for Justice; Letter of Opposition, January 24, 
     2003.
       Leadership Conference on Civil Rights, Alliance for 
     Justice, Letter of Concern, September 26, 2002:
       Signed by: 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 Educational Fund; 
     Lawyers' Committee for Civil Rights Under Law; Alliance for 
     Justice; People for the American Way; National Council of 
     Jewish Women; National Family Planning and Reproductive 
     Health Association; and Feminist Majority.
       Sierra Club, Letter of Opposition, January 31, 2003.
       Friends of the Earth, Letter of Opposition, February 3, 
     2003.
       National Association for the Advancement of Colored People 
     (NAACP), Letter of Opposition, October 24, 2002.
       People for the American Way, Letter of Opposition, January 
     29, 2003, Letter of concern, September 25, 2002.
       National Women's Law Center, Letter of Opposition, January 
     29, 2003.
       National Partnership for Women and Families, Statement of 
     Opposition, January 30, 2003.
       American Association of University Women, Letter of 
     Opposition, January 23, 2003.
       Planned Parenthood Federation of America, Inc., Statement 
     of Opposition, January, 2003.
       NARAL Pro-Choice America, Letter of Opposition, January 29, 
     2003.
       National Organization for Women, Letter of Opposition, 
     January 29, 2003.
       National Family Planning and Reproductive Health 
     Association, Letter of Concern, January 31, 2003.
       National Council of Jewish Women, Letter of Opposition, 
     February 3, 2003.
       Others Opposed to Confirmation, Statement, January 31, 
     2003: ADA Watch/National Coalition for Disability Rights; 
     Americans for Democratic Action; Earthjustice; Feminist 
     Majority; Moveon.org.; NAACP Legal Defense and Educational 
     Fund, Inc.; National Fair Housing Alliance; and Working 
     Assets.
       Consumer Federation of America, Letter of Concern, 
     September 25, 2002.


                             Law Professors

       Society of American Law Teachers, Letter of Concern, 
     October 9, 2002.
       Rodriquez, Marc, Princeton University, Princeton, NJ.


                                citizens

       University of Virginia Law Democrats; Urging no vote until 
     production of documents, February 3, 2003.
       Mark and Debra Loevy-Reys, Shrewsbury, VT.
       Harry Callahan, Ft. Lauderdale, FL.
       Eugene Hernandez, San Fernando, CA.
       Paul Moreno, Mission Viejo, CA.
       Hall, George, Manhattan Beach, CA.
       Lizbeth Stevens, Los Angeles, CA.
       Christopher Chase, Lansing, MI.

  Mr. DURBIN. The list of organizations that oppose Miguel Estrada is 
extremely long. It goes on for pages. Congressional Hispanic Caucus and 
Black Caucus--but listen to these. The Mexican-American Legal Defense 
and Education Fund--this is the premier Hispanic civil rights 
organization in America--opposes the nomination of Miguel Estrada. 
Frankly, I hope we do have a nominee of Hispanic origin who is on the 
Supreme Court as quickly as possible, as soon as there is a vacancy and 
a qualified candidate. But I hope Members will take pause to realize 
that just having a Hispanic surname is not enough. We need to bring a 
person

[[Page S2141]]

to the highest court of the land who really understands that 
responsibility and is not so cagey and careful when it comes to 
explaining his point of view. That has been the case with Miguel 
Estrada.
  He is, in fact, a stealth candidate. It's an effort by the Bush White 
House to put in a secret judiciary, judicial nominees who do not share 
their point of view with the public so you, frankly, have to gamble, 
when they come to the bench, that they will be moderate and reasonable 
in their judicial views. That is not the case with Miguel Estrada.
  Let me make note, too, of the Federalist Society, to which Mr. 
Estrada belongs. He appears to be following the advice of DC Circuit 
Judge Lawrence Silberman, who recently told the Federalist Society that 
he provided key advice to Antonin Scalia in 1986 that led to his smooth 
confirmation. Lawrence Silberman told the great Federalist Society that 
he said to Antonin Scalia: Don't answer any questions about judicial 
philosophy or views.
  It goes back to the Clarence Thomas model. When Clarence Thomas, like 
Miguel Estrada, told the Senate Judiciary Committee at the time that he 
had no opinion on the issue of abortion--that is a red flag. There have 
been judicial nominees from the Bush White House who disagree with my 
position on this important issue, but they have been honest enough to 
say that, regardless of my personal and private points of view, when it 
comes to my responsibility as a judge, I will follow Roe v. Wade until 
it is overruled by the Supreme Court. As John Ashcroft, another person 
who opposes Roe v. Wade, has said, it is the established law of the 
land until overturned. Why couldn't Miguel Estrada, who has been a 
Supreme Court clerk, go that far--to acknowledge that point of law, 
that stare decisis and precedent would guide him on an issue as 
important as Roe v. Wade?
  His refusal to do that has caused alarm on this side of the aisle, 
among the majority of the Members.
  Let me speak to you about some of the other issues that have been 
raised by some of my Republican colleagues during the course of this 
debate. We have heard from a Republican Senator in the Dallas Morning 
News that if we deny Mr. Estrada the position on the DC Circuit, it 
would be to shut the door on the American dream of Hispanics 
everywhere.
  The reality is that until last week, Mr. Estrada was the only Latino 
nominated by President Bush to any of the 42 vacancies that have 
existed on the courts of appeal. In contrast, President Clinton 
nominated 11 Latinos to our appellate courts, and he also nominated 21 
to district courts. Republicans blocked several of these, including 
Enrique Moreno, Jorge Rangel, and Christine Arguello.
  Let me also note this argument about Estrada which Senator Trent Lott 
said to the Associated Press last year, that they--the Democrats--don't 
want Miguel Estrada because he is Hispanic. The reality is that 8 of 10 
Hispanic appellate court judges were appointed by President Clinton. 
Three other nominees of President Clinton to the courts would apply, as 
well as others for the district courts.
  Mr. Estrada, in his background, has never in his legal career 
provided any pro bono legal expertise to the Latino community. He has 
never joined, supported, volunteered for, or participated in events of 
any organization dedicated to serving and advancing the Latino 
community. He has never made any effort to open the doors of 
opportunity to Latino law students or junior lawyers.
  Let me refer to another comment made by some of the Republicans in 
the Chamber. Senator Rick Santorum said this on Fox News on April 10 of 
last year:

       They don't want any examples out there for America to see 
     of somebody who is conservative and also minority. . . . [I]f 
     you are a conservative, we don't like it. But if you are a 
     minority and a conservative, we hate you.

  Under Senator Leahy, then chairman of the Judiciary Committee, the 
committee approved the following Bush nominees: Phillip Martinez, Jose 
Martinez, Alia Ludlum, Randy Crane, and Judge Jose Linares.
  Time and again, when Republicans controlled the Senate, the Judiciary 
Committee has approved these judges who are conservatives and 
minorities.
  The point made by our colleague, Senator Santorum, just does not 
wash.
  Let me note some of the other statements that have been made.
  They argue that requesting Mr. Estrada to produce his writings is 
unprecedented.
  Here is a man who has not been a judge but is in the Solicitor 
General's Office who had a bounty of legal writings, and we are asking 
that he present them so we can have an insight into his thinking--not 
unlike a judicial nominee who has served as a judge and we read his 
opinions to try to understand where this judge is coming from. It is 
not unusual, frankly, in the Judiciary Committee to point out that a 
judge has been overruled a certain number of times to know whether or 
not they have clear thinking and whether or not they understand the 
law. But when it comes to Miguel Estrada, the Bush White House under 
Republicans refused to give us the documentation so we can see into the 
mind of Miguel Estrada who has carefully avoided answering direct 
questions on judicial philosophy.
  The Department of Justice provided memos by attorneys during the 
nominations of William Bradford Reynolds, nominated to be Associate 
Attorney General; Robert Bork, nominated to be a Supreme Court Justice; 
Benjamin Civiletti, nominated to be Attorney General; Stephen Trott, 
nominated to the Court of Appeals for the Ninth Circuit; and even Judge 
William Rehnquist when he was nominated to be Chief Justice of the 
Supreme Court.
  So asking for this documentation is certainly not unprecedented. In 
fact, there is ample precedent. When we look at the Estrada nomination, 
we see a clear effort to stonewall. Mr. Estrada has refused to say 
whether he would strictly interpret the U.S. Constitution.

  Listen carefully to what I say here. There is not a single Clinton 
nominee who would have made it past this question before the Republican 
Senate Judiciary Committee. They were each asked point blank that 
question. If they did not answer in a fashion acceptable to the 
Judiciary Committee, it was over, their nomination was finished.
  Miguel Estrada comes before us and refuses to even answer the 
question. I think I know what his answer would be. But why is he so 
afraid to share his judicial philosophy with us? Is it so radical, so 
unusual, is it so out of the ordinary that he is afraid people across 
America will be worried about putting him on the second highest court 
in the land for a lifetime appointment? That is the only conclusion I 
can draw from that.
  When it came to Mr. Estrada, he refused to discuss the judicial or 
legal philosophy of any current Supreme Court Justice.
  When I asked nominees for district court judgeships in my State to 
give me an insight into their thinking about Supreme Court Justices--
which you think is good or somebody you disagree with--I got really 
interesting answers from Democrat and Republican nominees. Sometimes I 
am surprised by the things they pick out. It gives you an insight into 
what they are looking for and perhaps the role model on whom they might 
model their own judicial career.
  When it comes to Estrada, a man on the fast track to the Supreme 
Court, he wouldn't discuss the judicial or legal philosophy of any 
current Supreme Court Justice. When we asked him to name any Supreme 
Court decision in history with which he disagreed--as I reflect on this 
question, this is not about a particular case. This is about a case 
that was decided 20 or 30 or 40 years ago. In this case, we have a 
situation where Miguel Estrada refused to answer the question.
  So what we have before us, unfortunately, is a situation where we 
have a candidate who has not brought before us the kind of background, 
the kind of answers to questions which can give us solace that we are 
appointing to the second highest court in the land a man who has the 
qualifications and the temperament and the skill to handle the job.
  Our colleagues have emphasized that Mr. Estrada received a well-
qualified rating from the American Bar Association. The ABA committee 
rating of Mr.

[[Page S2142]]

Estrada, as for all nominees, is advisory and not binding. But it is 
interesting to look at that rating and what it has meant in the past.
  Last fall, a number of Republicans complained that a Bush nominee 
with a well-qualified rating from the ABA received votes against their 
confirmation, but there was no acknowledgment that many of these same 
Republicans had voted against Clinton nominees who received well-
qualified ratings.
  While the Republicans were in control of the Senate, and when the 
Judiciary Committee was chaired by Senator Hatch, the following 
nominees received well-qualified ratings, and many Republicans voted 
against them:
  Judge Merrick Garland, the last judge confirmed to the DC Circuit; 
Judge Gerald Lynch, of the Southern District of New York; Judge 
Rosemary Barkett--who is, incidentally, a Latina--who was found well-
qualified for the Ninth Circuit was voted against by the Republicans; 
Judge William Fletcher of the Ninth Circuit; Judge Ray Fisher of the 
Ninth Circuit; Marcia Berzon of the Ninth Circuit; Sonia Sotomayor, 
another Latino, a nominee found well-qualified by the ABA and voted 
against in the Second Circuit by Republicans; Judge Margaret McKowen, 
of the Ninth Circuit; Richard Paez, to whom the Senator from Nevada 
just made reference, another Latino, to the Ninth Circuit, and was held 
up for 4 years, was found well-qualified, not voted for by Republicans; 
Judge Margaret Morrow, of California, voted well-qualified.

  Incidentally, the line of inquiry on Margaret Morrow I thought was 
the most intrusive I have ever heard. Under the Republican-controlled 
Senate Judiciary Committee, Margaret Morrow, with the most amazing 
legal credentials and who answered every question, finally in her 
frustration, when the Republican majority on the Senate Judiciary 
Committee said to her: We want you to tell us how you voted throughout 
your life on propositions on the California ballot. Did you vote yes or 
no, and why?--we are asking Miguel Estrada what his position is on Roe 
v. Wade, and the Republican majority on the floor here is saying: You 
are going too far.
  When it came to Clinton nominees such as Margaret Morrow, they wanted 
her to violate the secrecy and sanctity of her vote in the polling 
place and explain how she voted on a proposition before the California 
electorate. That shows you how far they were going to go--way too far 
in the extreme to stop the well-qualified nominee.
  All we are asking of Miguel Estrada is the basics: What is your 
position on basic constitutional issues? When it comes to Supreme Court 
decisions, discuss one of them you might have disagreed with in the 
last 40 years, or in the history of the Supreme Court.
  Mr. HATCH. Will the Senator yield for a question?
  Mr. DURBIN. In one moment.
  Asking him: Give us the name of one Supreme Court Justice, living or 
dead, whom you would emulate as a member of the bar or as a member of 
the bench. He refuses to answer any of those questions.
  I will yield to the Senator from Utah.
  Mr. HATCH. Does the Senator remember--you may or may not have been 
there at the time--he was asked about Roe v. Wade, and he said it was 
settled law and that he would apply it? Does the Senator remember that?
  Mr. DURBIN. I am happy to read exactly what he said when I asked the 
question because I sent it to him in the written questions that came.
  Mr. HATCH. That is what it said in the transcript.
  Mr. DURBIN. If the Senator will bear with me.
  Mr. HATCH. It is on page 128 of the transcript. Specifically asked, 
he said it is settled law and he would apply it. I do not know what 
more he could say.
  Mr. DURBIN. I am looking for it.
  Mr. HATCH. I certainly do not know what more he should have said. If 
you go to page 128----
  Mr. DURBIN. This isn't what I am referring to. These are written 
questions which were sent to him. I just read his answer. It was 
curious to me, I say to the Senator from Utah, when he was given an 
opportunity to say just that, he did not. He did not.
  Mr. HATCH. Well, he did. In his oral questions he was asked about Roe 
v. Wade, and he said it was settled law, he would apply it. Maybe he 
did not say exactly what you wanted him to at the time, but that is 
what he did say.
  Mr. DURBIN. Let me read my question:

       You and I met privately before your hearing--

  I addressed this to Miguel Estrada--

     and I asked you for your views on Roe v. Wade. You indicated 
     you considered the answer to that question to be a private 
     matter, but your answer suggested you do have an opinion. Do 
     you have an opinion on the merits of Roe v. Wade? If so, have 
     you read the briefs and transcripts of the oral argument?

  This is Miguel Estrada's response:

       I stated during our meeting, like many Americans, I have 
     personal views on the subject of abortion, which views I 
     consider a private matter that I was unprepared to share or 
     discuss with you. I also stated I do not harbor any personal 
     views of any kind that if I were a judge would preclude me 
     from applying controlling Supreme Court law in the area of 
     abortion. I did not state that I have private views on 
     whether Roe v. Wade was correctly decided. As I stated during 
     my hearing, it would not be appropriate for me to express 
     such a view without doing the intensive work that a judge 
     hearing that case would have to undertake, not only reading 
     briefs and hearing the arguments of counsel but also 
     independently investigating the relevant constitutional text, 
     case law, and history.

  Had he answered exactly as the Senator from Utah had said--it is 
controlling law, and that is what I will apply, or this is my view on 
the general issue of privacy--I think it would have opened our eyes to 
an insight into what he was thinking. But again, he was careful to 
avoid----

  Mr. HATCH. Will the Senator yield again?
  Mr. DURBIN. I am happy to yield.
  Mr. HATCH. Senator Feinstein asked him about Roe v. Wade. He 
basically said that he should not discuss his views on it, but he said, 
on page 128:

       I have had no particular reason to go back and look at 
     whether it was right or wrong as a matter of law as I would 
     if I were a judge that was hearing the case for the first 
     time. It is there. It is the law as it is subsequently 
     refined by the Casey case. And I will follow it.

  And Senator Feinstein said:

       So you believe it is settled law?

  Mr. Estrada said:

       I believe so.

  So maybe he did not answer exactly the way you wanted him to in the 
written questions, but in the oral testimony he made it very clear that 
he would follow the law and that he believes it is settled law. I do 
not know what more he should have said.
  Mr. DURBIN. I say to my colleague from Utah, I thank him for the 
question. And I just say that I cannot quite understand how we could 
get so many different versions of answers from this nominee. That is 
troubling to me. It concerns me. And I think it raises the question of 
whether or not he was coached in terms of avoiding or trying to avoid 
expressing his personal point of view.
  I see other colleagues in the Chamber seeking recognition at this 
time. I have spoken earlier, and I will just say, before closing, I 
hope that those following this debate will understand the historic 
nature of the debate. What is at stake here is the question of the 
constitutional authority and responsibility of the Senate when it comes 
to the advice and consent given on judicial nominees.
  We believe, on this side of the aisle--at least many of us do--that 
Miguel Estrada should be more forthcoming, should give us his writings 
so we can understand what is in his mind and what he would bring to 
this bench so we would have better answers to the basic questions we 
should ask every nominee from every President. To do otherwise is to 
relegate us to a minority status in terms of our major responsibility 
under the Constitution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, it is my understanding the Senator from 
Mississippi wishes to speak now. He told me earlier that he wishes to 
speak for 10 or 15 minutes. That would take us past 12:30. I ask 
unanimous consent that the distinguished Senator from Mississippi be 
recognized for up to 15 minutes, and following that the Senate recess 
for its normal Tuesday recess.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank the Senator from Nevada for making 
that

[[Page S2143]]

request. I believe I can make my remarks in that time.
  Mr. President, I take this occasion to speak on behalf of this 
nominee. I think he certainly deserves to be confirmed by the Senate, 
in a normal vote which would require a majority of the Senators, and 
that this matter not be subject to a protracted debate, which could, in 
fact, turn it into a filibuster.
  I wish to speak first in support of this specific nominee, but then 
also as one who has viewed the judicial nominations and the debate that 
has taken place over the past 7 years.
  There has been a lot of interesting discussion. It is amazing that 
when the majority changes, the debate seems to shift sides, both ways. 
Some of the arguments we are hearing now we were criticized for making 
in the past. But I do not want to get into statistics or what may have 
happened with this judge or that judge.
  At the beginning, I want to talk about this nominee, this outstanding 
man who has lived the American dream in an incredible way. I am pleased 
and honored to be able to come to the floor and express my support for 
Miguel Estrada to be a U.S. circuit judge for the District of Columbia 
Circuit Court of Appeals.
  I think he is highly qualified to be a Federal judge. Beyond that, 
however, his American success story exemplifies what the American dream 
is really all about. It is about hard-working immigrants who moved to 
the United States and searched for a better life. It is people, such as 
Mr. Estrada, who have made our country stronger by contributing to our 
society with their strong work ethic and desire to achieve. Others have 
made those points, but I want to be on record talking about them 
myself.

  First, Miguel Estrada was born and raised in Honduras, and immigrated 
to the United States at age 17, speaking little English at the time. He 
quickly learned English, however, and excelled in academics, graduating 
with a bachelor's degree magna cum laude and Phi Beta Kappa from 
Columbia College. Then he went on to earn his J.D. degree magna cum 
laude from Harvard Law School. I might add, he was editor of the 
Harvard Law Review, a high honor and great achievement.
  He had valuable opportunities to learn the intricacies of the Federal 
appeals court system by clerking for a Second Circuit court of appeals 
judge--who was a Carter appointee--and serving as a clerk for U.S. 
Supreme Court Justice Anthony Kennedy.
  He has built a distinguished record as an attorney in private 
practice, as a Federal prosecutor in New York, and as an Assistant to 
the Solicitor General under both President Clinton and President George 
H.W. Bush.
  Mr. Estrada has argued 15 cases before the U.S. Supreme Court, 
including a death penalty case in which he represented a death row 
inmate pro bono. The point was made that maybe he had not done any pro 
bono work for Hispanics specifically, but when you do pro bono work, 
you do not always check that kind of background. You do this work on 
behalf of a client who would not be represented if you were not willing 
to serve without pay on behalf of this individual.
  It is rare to see an attorney or judge with such an outstanding 
record even at the time of retirement. The experience this young man 
has had is incredible in terms of his background, his education, the 
variety of the experience he has with the judiciary and with the 
application of law--and even before the Supreme Court, both as a clerk 
and also in appearances he has made. So, clearly in terms of experience 
and education, Miguel Estrada is highly qualified.
  I find it very curious and exacerbating, quite frankly, that some 
Members of the Senate are questioning whether or not he is qualified. 
After all, he was rated unanimously well-qualified by the American Bar 
Association, a rating that has been considered--I believe Senator Hatch 
and others have described it as the ``gold standard'' for the Democrats 
as to whether or not a man or woman should be qualified to serve on the 
Federal judiciary. So certainly to get a unanimously well-qualified 
rating from the ABA should make a tremendous difference here as to this 
nominee.
  He does have the support of a lot of people in the Hispanic 
community. In fact, I know Hispanics all across America are asking the 
question: What is the problem here?
  This is a well-qualified man who is Hispanic and has the educational 
background and experience. Why are they still opposing him? Is it 
because he is brilliant? I suspect maybe that is part of the problem. 
Is it because he has a conservative philosophy of strict construction 
and interpretation of the Constitution? Maybe that is part of it, too. 
Is it because he is Hispanic? I don't understand the basis for the 
opposition.
  The only thing I heard is that maybe he hasn't revealed enough of 
what he might do in a hypothetical case or the argument just being 
made, or that he would not name a decision with which he disagreed. It 
is a catch-22. If you begin to speculate or if you begin to identify a 
particular case, then you are attacked because you identified that 
particular case.
  We have a right and an obligation to ask any question we want to ask. 
Judicial nominees have a right to have their own private views, but 
they also, as he has done, have to speak up and say they will support 
the law as it exists. They should state that they will support the 
rulings of the Supreme Court. He has done that.
  No, there is something more going on. It probably has something to do 
with the debate that just took place, with speculation or suspicion as 
to what his position privately may be on Roe v. Wade. That is partially 
what is going on here.
  We have argued back and forth over the years about what should be the 
basis for our votes. I talked to my senior colleague from Mississippi, 
Senator Cochran, who served on the committee and is a senior Member of 
this body, about what should be the basis of these votes. Generally 
speaking, the nominee is selected by the President of the United 
States, who won an election. A lot of people understand one of the most 
important things a President does is to select the men and women who 
will go on our Federal judiciary and the Supreme Court. They make that 
selection. If that man or woman is qualified by temperament, by 
education, and by experience, and unless there is some ethical 
limitation or something of that nature, generally speaking you ought to 
give them the benefit of the doubt and vote for them.
  That is why I stood here in the Senate and explained why I would vote 
for Justice Ruth Bader Ginsburg. I knew I wouldn't agree with a lot of 
her decisions. I didn't agree with her philosophy. But she didn't have 
a conflict of interest. She didn't have an ethical problem. She was 
qualified. I voted for her, even though philosophically I had problems 
with the nomination. There were others where that situation applied, 
where I wound up voting for them even though I would not agree with the 
decisions that they would make. That is the way we should do it.
  Other times I spoke against nominees and I voted against them, even 
though as the Majority Leader, I had the responsibility sometimes to 
call them up. I remember two very controversial judges nominated to the 
Federal bench, Paez and Berzon from California. Senator Hatch and I 
were criticized because we, in fact, moved them through the process. 
They wound up coming before the Senate and were voted on. I voted 
against them both, but I helped move the process forward. I stated my 
problems with them and voted against them. I wouldn't dare, however, 
try to filibuster them because I had some concerns about how they would 
rule in the Federal judiciary positions for which they had been 
nominated.
  If a decision is made to prolong debate and turn it into a filibuster 
and we wind up having to have votes on a cloture petition, we will be 
on the verge of setting a very dangerous precedent, one that has not 
happened, in fact, in 35 years or so.

  I remember a couple of years ago there was a nominee supported, as a 
matter of fact, during the Clinton years by Senator Hatch, I believe it 
was. We started having the movement toward a filibuster. I think we 
maybe even had a cloture vote. I remember the discussion across the 
aisle. Both sides were saying: Wait a minute, do we want to set this 
precedent; do we want to do this? Does the Senate want to start voting 
on judges requiring 60

[[Page S2144]]

votes to get a confirmation? The Senate responsibly, wisely, backed 
away from that position.
  I urge my colleagues, come to the floor, state your concerns. If you 
have additional questions, I guess there is still time to get some 
answers. But we need to have an up-or-down vote on this nominee this 
week. He has been pending since May 9, 2001, as have some other very 
qualified nominees for the Federal judiciary. How long is enough? How 
much time do you need to review the record and look at the credentials, 
the qualifications of a nominee?
  It is actually embarrassing, the way the questions are being raised 
about this nominee, that we wouldn't give this nominee an overwhelming 
and perhaps unanimous confirmation to this position. Is it a fear that 
this brilliant, young Hispanic who has lived and taken advantage of the 
American dream might some day be recommended for the Supreme Court? Is 
that what is going on here? If it is, why don't we at least wait and 
worry about that when he gets nominated to the Supreme Court.
  He is qualified. He will be an outstanding Federal judge. I urge my 
colleagues to stop using very weak arguments about how maybe he didn't 
answer detailed questions about what his rulings might be in a 
hypothetical case. That is not usually the basis we use for voting 
against a nominee.
  I thank Senator Hatch for the job he has done on the committee. I am 
glad this process is beginning to break loose now for men and women, 
minorities, who have been pending for close to 2 years and who deserve 
to be considered by the Senate. I wholeheartedly endorse this nominee 
and look forward to seeing the leadership he will provide on this 
particular circuit court of appeals.
  I yield the floor.

                          ____________________