[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
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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,
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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
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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
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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.
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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
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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.
____________________