[Congressional Record Volume 149, Number 25 (Tuesday, February 11, 2003)]
[Senate]
[Pages S2144-S2172]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I have listened with great interest, and 
even great concern, to the debate that has taken place in this Chamber 
on the issue of Miguel Estrada's nomination to serve on the DC Circuit 
Court of Appeals, and I feel impelled to stand and explain the reasons 
why I think not only Miguel Estrada deserves confirmation by this 
body--indeed, he deserves a vote--but why I think the judicial 
confirmation process is broken and has fallen into a state beneath the 
dignity of this institution and this body.
  Indeed, I think if you could characterize what has been going on with 
regard to this confirmation process, you could talk about ``delay''--
the fact that Miguel Estrada's name had been sent up for consideration 
by the Senate some 18 months ago, on May 9, 2001.
  Second, I would choose the word ``defeat'' in talking about this 
nomination. It is clear the overarching objective of those who choose 
to oppose this nomination are those who wish to defeat President Bush 
on any and every front they can find, where they don't believe they 
will have to pay a political price.
  You could also talk about ``deny''--denying an opportunity for 
immigrants like Miguel Estrada, someone who is living the American 
dream, to serve in a position of public trust.
  Finally, I will use the word ``dispirit.'' Clearly, there is an 
attempt to dispirit those who would offer themselves for public 
service, to make it so burdensome and so distasteful that they will 
choose not to offer themselves for public service.
  So I believe much of this debate encompasses these four concepts: 
Delay, defeat, deny, and dispirit.
  Now, how have opponents to Miguel Estrada's confirmation chosen to 
approach their opposition? First, I believe they have used scare 
tactics. The Senator from Massachusetts said the other day:

       When this or any other administration nominates judges who 
     would weaken the core values of our country and roll back the 
     basic rights that make our country a genuine democracy, the 
     Senate should reject them.

  And then we heard from the Senator from Vermont:

       We see an emboldened executive branch wielding its rising 
     influence over both Houses of Congress and ever more 
     determined to pack the Federal courts with activist allies, 
     to turn the independent judiciary into a political judiciary.

  Mr. President, if either one of those statements were true, if I 
believed those accusations were supported by the evidence, I would not 
support this nomination, nor would, I believe, any Senator, Republican 
or Democrat, support this nomination. But I believe more than anything 
else that sort of rhetoric, unsubstantiated in fact, is proof positive 
this confirmation process is broken. And I say enough is enough.

  Opponents of Miguel Estrada's confirmation claim he has an inadequate 
record. They claim he has little relevant practical experience. They 
claim because he would not engage with them in a debating tactic, 
asking him whether there is any Supreme Court decision with which he 
disagreed, and finally, they claim that he has not clearly stated his 
judicial philosophy.
  In my remarks over these next few minutes, I hope to address each one 
of those objections and show they are merely pretext for what is really 
going on here.
  The American people know what is going on here, though, regardless of 
what Members may claim. They realize the judicial confirmation process 
in the Senate has become a game of political football, where the 
participants think they are going to score points against their 
opponent--Republicans against Democrats, Democrats against Republicans. 
But while the people who engage in this game of political football may 
believe they are scoring points, it is the American people who lose.
  Again, I want to associate myself with the thoughtful remarks made 
the other day by the senior Senator from Pennsylvania who called for an 
end to the fingerpointing, the recriminations and the faultfinding. He 
called for the beginning of a new protocol, a new process that befits 
the dignity of this institution, one that would provide a timely, 
comprehensive, and efficient way to evaluate and vote on judicial 
nominees, regardless of which party is in power in the White House.
  First of all, I want to address the objection that has been noted 
about Mr. Estrada's refusal to state a political position or 
ideological position on a whole range of issues that will, in all 
likelihood, come before him on the bench.
  Everyone knows judges are not supposed to be politicians, running on 
the basis of a party platform, and, worse yet, everyone knows judges 
are not supposed to prejudge cases that may come before them. Why have 
a trial? Why have the adversaries in a court of law argue about what 
the facts are or what the application of the law to those facts should 
be if a judge is going to prejudge that case? That is not justice; that 
is the antithesis of justice and the dispassionate impartiality we 
expect from judges.
  Every lawyer--and this body is chock full of lawyers--knows that 
cases are decided on the basis of the facts and the law, not--in a 
court of law, at least--on the basis of a political persuasion or an 
ideological position. Of course, Mr. Estrada is well within his rights 
to say, I am not going to prejudge a case because I do not know exactly 
how the facts may come before me; I do not know how the jury may decide 
the facts, and therefore I cannot tell you how the law may apply to 
that particular set of facts on a case-by-case basis.
  Under our system of government, judges hold a very different job from 
that held by a member of the legislature or even the President, a 
member of the executive branch. Judges, if they are going to be true to 
their oath, if they are going to interpret the law, not make law, are 
bound by what this body says the law should be when we pass a bill or 
the President signs a bill into law, by the Constitution, and by 
precedents; that is, earlier decisions made by high court.

[[Page S2145]]

  Any judge who presumes to take on the role of a lawmaker is, I 
submit, a lawbreaker. A judge should not be a politician campaigning 
for confirmation, and I applaud Mr. Estrada for refusing to submit 
himself to that sort of process and refusing to prejudge cases or to 
act like a politician campaigning for confirmation.

  During the Judiciary Committee hearing and during the executive 
sessions in which I participated as a member of the executive 
committee, Mr. Estrada was asked: Do you disagree with any previous 
decision of the U.S. Supreme Court? I am afraid that demonstrates again 
what the judicial confirmation process has degenerated into. It should 
not be trivialized, and it should not be reduced to a law school 
classroom where narrow and provocative points of law are debated.
  Does anyone really doubt that if any nominee disagreed with a 
Senator's view on policy issues, no matter how wrong under the law, we 
would see nothing but further degeneration of the confirmation process?
  I believe that Mr. Estrada, being a good lawyer and highly qualified 
to serve on the DC Court of Appeals, is following the dictum of a 
Supreme Court Justice who said the Supreme Court is not final because 
it is always right; it is right because it is final. In other words, 
the way the Supreme Court decides a case puts it to rest unless, in the 
legislative area, Congress comes back and passes a statute that, in 
effect, overrules that decision by changing the law and making it 
perhaps clearer what its intent is, or even, in the rarest of 
circumstances on a constitutional point, that the people choose to 
amend the Constitution and say that does not represent what we, the 
people, want the Constitution to reflect or it does not reflect our 
values. And there is a process, of course, for that as well.
  One of the most extraordinary arguments I have heard by opponents to 
Miguel Estrada's confirmation is that he does not have the experience 
to sit on the DC Court of Appeals.
  I have been honored during my career to serve as a judge at a trial 
court level, at a State supreme court level, and I have been honored to 
serve as an attorney general of my State, the State of Texas, before I 
came to the Congress. I will tell you that Mr. Miguel Estrada has 
exactly the kind of experience that has prepared him better than 
virtually anyone could possibly be for service on this court.
  Of course, we all know his record, a distinguished academic record. 
We know he served in the Solicitor General's Office during the Clinton 
administration and argued 15 cases before the U.S. Supreme Court. As 
attorney general of Texas, I had the honor of arguing twice before the 
U.S. Supreme Court myself, and I must tell you that is the Super Bowl 
for someone in my profession and someone in Miguel Estrada's 
profession. That is the peak of your career. That is the highlight of 
your legal experience, and to do it 15 times, it is as if he had Super 
Bowl rings on every finger of both hands, and to claim he is not 
qualified is preposterous.
  Of course, you cannot have the experience of being a judge until you 
have actually been one. People have to start somewhere. Even the senior 
Senator from New York has stated that Miguel Estrada passes his self-
styled test for excellence. He said: Excellence is legal excellence, 
the quality of the mind. We don't want political hacks on these 
important courts. No one disputes that Mr. Estrada passes this point 
with flying colors. He comes highly recommended in this regard. When 
the ABA, the American Bar Association, recommends him, that is all they 
are evaluating.
  I believe it is a red herring to argue that Miguel Estrada has 
insufficient experience to serve on this important court.
  What is really going on? I think a comment in the Congressional 
Record on February 5, 2003, by the ranking minority member of the 
Judiciary Committee, the Senator from Vermont, is very telling, and I 
want to read this twice so there is no missing what he said.
  He said:

       I have friends who range across the political spectrum. But 
     I think I also would be willing to state what my political 
     philosophy is, or certainly what my judicial philosophy is, 
     if I am going to ask for a lifetime appointment to the bench, 
     just as I have to state what my political philosophy is when 
     I ask the people of Vermont to elect or reelect me.

  So it is clear, what the Senator is saying is he expects a person 
nominated by the President, before this body for confirmation, to 
express a political philosophy, just like he or any other Member of 
this body would running for the Senate.
  I believe that demonstrates exactly how wrong the concept is of what 
the advice and consent function of the Senate should be under our 
Constitution, and how wrong the concept is of what a judge should be 
under our Government of separated powers. I want to talk about that in 
a moment.
  When I think about the scare tactics that have been employed over the 
last few weeks with regard to Miguel Estrada, it becomes crystal clear 
to me why our Government has a difficult time recruiting talented 
individuals to leave the private sector and offer themselves for public 
service. Why would anyone in Miguel Estrada's position, a successful 
lawyer, someone who, as I said, has been to the Super Bowl 15 times, 
subject himself to such a spectacle?
  Mr. Estrada is very good at what he does. He has a successful law 
practice as a partner in a prestigious firm. In the 16 years he has 
practiced law, his reputation is unblemished. For the first time in his 
career, his professionalism, his temperament, his willingness to put 
his hand on the Bible and take an oath and abide by that in performing 
the job of a judge are all being called into question. Again, I ask: 
Why would he or anyone else like him subject himself to this broken 
process?
  If he were here today, he would say, as he told me in my office, that 
accepting this nomination to serve on the DC Court of Appeals is not 
about personal accomplishment, personal achievement, but it is a sense 
of duty and obligation to our country, his adopted country.
  This country took in his mother and his sister, and himself. At age 
17, he came from Honduras to America, barely speaking English. Working 
together and at great sacrifice, his mother put Miguel through law 
school, with his help. He worked odd jobs. It is also worthwhile to 
note, they put his sister through medical school.
  These immigrants, one a distinguished lawyer, another a distinguished 
doctor, by dint of hard work, access to a good education, have achieved 
what we all recognize as the American dream and what every immigrant 
hopes for. Indeed, we are a nation of immigrants. Through education and 
hard work, they have found prosperity, and this opportunity, this hope, 
is the best civil right this country can give to any immigrant.
  Miguel Estrada sees this as an opportunity to contribute to a way of 
life that provided him a way out, an opportunity for great achievement 
and success, and an opportunity for public service. Only under our 
broken, destructive judicial confirmation process, as it has now become 
in this body, someone can be demonized, not just criticized but 
demonized, for such an honorable goal. It is a shame.
  America has always been, and God willing will always be, a land of 
opportunity. Yes, despite our imperfections, despite our mistakes, 
millions have flocked to these shores seeking a better life for 
themselves, their children, and their grandchildren. America is, of 
course, a land of immigrants, where those who come look for freedom to 
speak as they wish, to associate with whom they choose, to worship 
according to the dictates of their conscience and, yes, to seek 
justice. Those who have come have spared nothing, sometimes even their 
own lives, seeking opportunities for those who come after. At different 
times during the course of this Nation's history, they have come from 
England, Italy, Ireland, Spain, Mexico, Canada, Asia. They have come by 
the thousands and tens of thousands. What has drawn them irresistibly 
to this country is their hope and their ambition, not just for 
themselves but for those who would come after them.

  It is that diversity, that desire, that dedication, that is the 
bedrock of American strength and resilience, and which has made America 
a beacon of hope for the rest of the world.

[[Page S2146]]

  To me, one of the most amazing things about Miguel Estrada's story is 
in many ways it is not unique. It is exemplary, but it is not unique. 
His learning to speak English at 17, his subsequent admission and 
outstanding accomplishment at the premier institutions of higher 
learning in this country, have all been remarkable, but the simple 
immigrant story that is his life has been repeated time and again over 
the course of this Nation's history. People have come to work in this 
country with little but their hopes and their dreams, and by dint of 
faith, hard work, determination, sacrifice, they achieve the American 
dream. Each time this happens, and it has happened time and again 
during the course of this Nation's history, America redeems a promise 
it makes to all who would come here: Liberty and justice for all.
  Too often, we focus on what is wrong with our country. No doubt we 
should strive to correct our mistakes, strive to overcome our 
shortcomings whenever and however we can, but we would be a cynical 
people, knowing the costs of everything and the worth of nothing, if we 
did not also celebrate what is right in America. We should celebrate 
occasions like this when the hopes, dreams, and aspirations of an 
immigrant family from Honduras have become a reality, confirming once 
again America is indeed the last best hope of mankind, where all who 
come here and who are willing to work hard to sacrifice can live up to 
their God-given potential.
  We have heard it said Mr. Estrada has not laid out his judicial 
philosophy. I was surprised to hear that in the Senate Judiciary 
Committee the other day, when the senior Senator from New York made 
that charge, and said all he has told us is he will follow the law, he 
has not told us what his judicial philosophy is. Well, I think Mr. 
Estrada has articulated the best judicial philosophy that we as 
Americans could possibly hope for, a judicial philosophy and a 
dedication to the law that the American people who appear before the 
bench require.
  What he has said is he will not pursue his own agenda. He will not 
pursue a social or political agenda. He will not try to make the law 
according to his liking. He will give the legislatures' enactments and 
the acts of Congress deference and will seek to determine our intent as 
policymakers and as those in the political branch who run for office 
based on a platform saying what we are for and then are voted for by 
the people of our State to come here. By saying he would follow the 
law, he is saying he would not only honor legislative acts, he would 
follow judicial precedence. That is the decisions by the highest court 
in the land.

  As legislators, as those in the Senate who have the awesome 
responsibility of advice and consent, we should want to hear that. We 
should embrace it. There is no role for advocacy of personal beliefs or 
political agendas on the part of a judge under our Constitution. Judges 
are bound to follow Supreme Court precedent, whether they agree with it 
or not as a personal matter. If there is such a thing as the rule of 
law as opposed to the rule of men, judges are bound to follow the acts 
of the legislature and judicial precedent, whether they agree with them 
or not. Mr. Estrada has committed to follow the law, whether he agrees 
with it or not. Personal views and ideology have no role whatsoever to 
play. I believe that under our Constitution--and I believe that is what 
is taught in our classrooms in civics every day across this Nation--
this is the appropriate role for a judge and for our judicial branch. 
We don't want them making legislative policy. We do not want judges who 
are legislators in robes.
  My colleagues across the aisle in this Chamber know, we all know, 
that is our job. We stand accountable to the American people and to the 
voters of our States for doing that job. That is what we have accepted 
by coming here and agreeing to represent our States.
  A lot of the debate we are hearing today, this week--and who knows 
how long this will go on--is not just about Miguel Estrada but about 
what is the appropriate role for our three branches of Government. 
Heaven knows, this is not a brandnew debate. But I would think most of 
the country would have thought that matter already settled. Indeed it 
was. Alexander Hamilton wrote about it in the Federalist Papers, of 
course, as the President knows, when the people of New York were 
considering this new Constitution, whether to ratify it. He was 
explaining the various provisions of this new Constitution to the 
people at that ratifying convention in New York. It is addressed in 
Federalist No. 78, what is the role we expect of the judiciary and how 
does that relate or compare to the role we have for the legislature or 
for the executive branch--the President.
  He said:

       Whoever attentively considers the different departments of 
     power must perceive, that, in a government in which they are 
     separated from each other, the judiciary, from the nature of 
     its functions, will always be the least dangerous [branch] to 
     the political rights of the Constitution; because it will be 
     least in a capacity to annoy or injure them. The Executive 
     [on the other hand] not only dispenses the honors, but holds 
     the sword of the community.

  In other words, the executive's job is to execute the laws passed by 
the legislature.

       The legislature not only commands the purse, but prescribes 
     the rules by which the duties and rights of every citizen are 
     to be regulated.

  In other words, the legislature makes policy, makes the law.
  He goes on to say:

       The judiciary, on the contrary, has no influence over the 
     sword or the purse; no direction either of the strength or of 
     the wealth of the society; and can take no active resolution 
     whatever. It may truly be said to have neither FORCE nor 
     WILL, but merely judgment; and must ultimately depend upon 
     the aid of the executive arm even for the efficacy of its 
     judgments.

  I would like to address one other comment that is made from time to 
time about the role of the Senate in performing its advice and consent 
functions. Some Senators I have heard say they perceive their role as 
seeking to achieve balance of the courts, by which I take them to mean 
they believe that a court, the District of Columbia Court of Appeals, 
must be evenly split with judges of different philosophies.

  That concept is completely alien to our Constitution. Balance and 
independence, in our judicial branch, are not meant to be determined by 
Republicans and Democrats choosing their respective champions. The 
President has a right granted to him under the Constitution to appoint 
judges of his choosing, subject to the advice and consent of the 
Senate. That is one of the reasons we vote for a candidate to serve as 
President of the United States. All we should rightly do as Senators is 
determine whether or not a nominee has the qualifications and the 
temperament to be a judge. Included, of course as an element of that 
temperament, we should expect that nominees will pledge to a sound 
judicial philosophy, to uphold the law, by giving the legislature 
deference and by following judicial precedent. Miguel Estrada has 
pledged to do exactly that, and we should ask no more and no less of 
any nominee.
  I said earlier I believe our judicial confirmation process is broken, 
that the kind of things we see going on in the process--delay, defeat, 
denial, and a dispiriting of those who would offer themselves for 
public service--has created a terrible situation. The process has 
become so politicized that we find ourselves in situations such as 
this, where Senators on the other side of the aisle are now talking 
filibuster, to deny this President the prerogative, granted to him 
under the Constitution, to appoint a highly qualified individual such 
as Miguel Estrada to serve on the District of Columbia Court of 
Appeals.
  It is obvious to any reasonable person that the Senate needs a fresh 
start. We need a fresh start on judicial nominees and on the judicial 
confirmation process. Miguel Estrada, like other nominees, has waited 
for an inordinate amount of time--18 months so far. We owe it to the 
men and women who are nominated by the President to do our job on a 
timely basis, and to do it applying constitutional standards, not those 
that we make up or which we perhaps prefer, or those which serve the 
political interests of some constituency. The truth is, we owe it not 
only to the men and women who are nominated, we owe it to the American 
people to do our job, to do it on a timely basis, and to apply correct 
constitutional standards, because we know, and common sense will tell 
us, that the failure of this body to timely act on the President's 
nominees means that

[[Page S2147]]

very real human beings with real live cases and controversies that they 
need to have resolved are simply being told there is no room for their 
case. Justice delayed is justice denied.
  As someone new to this body, I hope a new system can be devised 
enabling us to consider, on a bipartisan basis, new rules, a new 
agreement, a new paradigm, a new protocol that will guide us in the 
manner in which we consider the President's nominees. That is not just 
for this President, but anyone elected by the people to serve in that 
important office, regardless of who is in power, whether it is a 
Republican or a Democrat.
  The result of this fresh start should be timely consideration of a 
nominee's qualifications and an up-or-down vote by the Judiciary 
Committee--and certainly no one is suggesting that any Senator ought to 
do anything other than to cast their vote either for or against a 
nominee. But they ought to do so on a timely basis. We should not have 
the kind of delay which we have had in this case. But if a nominee is 
voted out of the Judiciary Committee, then, of course, there ought to 
be that timely vote by the entire Senate regardless of who is 
President. Let us not hold to the delays and obstructions of the past 
as methods for treating judicial nominees in the future.

  In closing, I urge my colleagues to confirm Miguel Estrada. I believe 
we ought to have a vote today on his nomination. We have had many days 
of debate. We have had 18 months since the President first proposed his 
name. Mr. Estrada has been scrutinized and questioned. His background 
has been investigated by the FBI. I believe he deserves a vote either 
up or down today.
  Of course, I will, for the reasons I have just stated, vote for his 
confirmation. I believe the Nation will benefit from his experience, 
and he will be given the opportunity to give back to his adopted 
country through this position of honorable public service.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, first, I have enjoyed the presentation of 
the Senator from Texas. But I would suggest that my experience here 
over for now more than two decades indicates that the problem isn't a 
matter of whether it is a Democrat or a Republican President. The 
process is broken down there. It is not up here. The advice and consent 
role which we have under the Constitution is something that should work 
and should continue to work.
  I suggest here on the floor myself that we need to do something to 
speed up the process down there. When these people apply for 
judgeships, the work is unending. For people who want to have Cabinet 
or sub-Cabinet jobs, the process is unending, and we have to do 
something to get that speeded up. The problem is not up here.
  The Senator from North Carolina wishes to speak for up to 10 minutes. 
Following that--I always want to refer to Senator Byrd as the leader, 
and he is a leader but he is now the President pro tempore emeritus--I 
ask unanimous consent that Senator Byrd, the distinguished Senator from 
West Virginia, be recognized following the remarks of Senator Edwards.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from North Carolina.
  Mr. EDWARDS. Mr. President, I believe judges have no greater 
responsibility than to ensure fair treatment and equal justice under 
the law. I also believe one of our greatest responsibilities as 
Senators is to advise and consent on the President's nominees to the 
bench. I, for one, take this responsibility very seriously. It is not 
our duty as Members of the Senate to just rubber stamp the President's 
nominees--particularly nominees who we doubt are committed to 
protecting equal rights for every single American.
  Having read the record of this nominee very carefully, I feel 
compelled to oppose the nomination of Miguel Estrada for two reasons. 
First, what we know about his record raises serious questions about his 
commitment to protecting equal rights under the law.
  Second, and more importantly, his refusal to answer reasonable 
questions during the confirmation process makes it impossible to 
examine his views of the law and determine whether his personal views 
would overrule law and legal precedent.
  Federal judges wield enormous power and have a huge impact on the 
rights of individuals all across America. Given the fact that the 
Supreme Court reviews fewer than 100 cases per year, circuit courts, 
such as the DC Circuit where Miguel Estrada is being nominated to, ends 
up as the courts of last resort for nearly 30,000 cases each year.
  Let me repeat that. Fewer than 100 cases are reviewed before the 
Supreme Court, and 30,000 cases are decided at the circuit court level.
  These cases affect the interpretation of the Constitution as well as 
statutes enacted by us to protect equal rights. The circuit courts are 
the courts where Federal regulations will be upheld or overturned, 
where many personal rights will either be kept or lost, and where 
invasions of freedom will be allowed or curtailed. They are the courts 
where thousands of individuals will have a final determination in 
matters that affect their financial future, their health, their 
liberty, and their lives.
  The District of Columbia Circuit is an especially important court in 
our judicial system. It is the most prestigious and powerful appellate 
court below the Supreme Court level because it has exclusive 
jurisdiction over critical Federal constitutional rights.
  About Mr. Estrada: The little that we know of Miguel Estrada's 
approach to the law is troubling. But Mr. Estrada's record is not the 
main reason I can't support his nomination at this time. The main 
reason is that he has not explained his views. Before his hearing, I 
looked forward to hearing Mr. Estrada discuss his views, but he refused 
to do so. Instead, he stonewalled serious and valid questions--serious 
and valid questions that have been answered by many other nominees who 
have appeared before the committee.
  Other judicial nominees of President Bush have discussed at length 
their views in hearings before the Senate Judiciary Committee. For 
example, Michael McConnell, whom I voted for and who was recently 
confirmed to the Court of Appeals for the Tenth Circuit, thoroughly 
discussed his views on subjects such as Roe v. Wade and the Supreme 
Court's recent ``federalism'' or ``States rights'' decisions limiting 
the authority of Congress.
  But with Mr. Estrada, it is very different. The Justice Department 
refused to produce any legal memoranda written by Mr. Estrada during 
his 5 years as a lawyer in the Solicitor General's office. In this 
position, Mr. Estrada researched the law, he wrote memoranda, 
pleadings, and briefs on behalf of the Federal Government on critical 
and constitutional and statutory questions that were before the U.S. 
Supreme Court.

  I understand the administration has concerns about executive 
privilege, but there are ways to strike a balance between the 
privileges of the executive and the rights of the Senate to learn about 
a nominee before we make a decision about him. That is what has 
happened during the judicial nomination process of other nominees who 
have worked in the Solicitor General's office, including Robert Bork 
and Chief Justice William Rehnquist. We tried to discuss Mr. Estrada's 
views with him during the hearing, but instead of being forthcoming in 
answering our questions, Mr. Estrada was extraordinarily evasive. Time 
after time, Mr. Estrada refused to answer our questions because he 
claimed not to have an opinion since he has not been personally 
involved, read the briefs, listened to oral arguments, or independently 
researched the case.
  Anybody who has attended law school, including myself, knows that law 
students and lawyers express opinions about Supreme Court cases every 
day because of their ramifications for current cases with similar 
issues.
  Nine times during his testimony Mr. Estrada refused to name any 
Supreme Court case with which he disagreed. And time after time after 
time, Mr. Estrada just flat out refused to offer us any explanation of 
or insight into his view of his judicial philosophy.
  For example, we have heard the President state on many occasions that 
he intended to appoint judges who are strict constructionists--a term 
commonly used in describing judicial philosophy and often applied to 
Justices Scalia, Thomas, and Rehnquist. I asked Mr. Estrada a simple 
question of whether he considered himself within that category; did he 
consider himself

[[Page S2148]]

a strict constructionist? But he refused to provide a straight answer.
  Question to Mr. Estrada:

       Are you a strict constructionist?

  Answer:

       I am a fair constructionist, I think.

  Question:

       Do you consider yourself to be a strict constructionist?

  Answer:

       I consider myself to be a fair constructionist. I mean, 
     that is today. I don't think that it should be the goal of 
     our courts to be strict or lax. The goal of the courts is to 
     get it right. . . .

  I tried again.
  Question:

       Let me ask the same question a little differently. The 
     President gave a speech last night at a fundraiser and 
     specifically referred to your nomination, among others. The 
     President said, ``For a stronger America, we need good 
     judges. We need people who will not write the law from the 
     bench, but people who''--and I am quoting him now--``strictly 
     interpret the Constitution.''
       Do you fall within the President's definition?

  Mr. Estrada's answer:

       I have not spoken with the President about this or any 
     other subject. I don't know what he meant. If I had to take 
     his text as a statute, I would want to know more about the 
     circumstances in order to figure out whether I can answer 
     your question.

  Question:

       You haven't been asked that question by anyone during the 
     course of your nomination process?

  If I can interject here, this is something the President talks about 
regularly--appointing judges who are strict constructionists.
  He has now been asked several times by me in the hearing whether he 
is a strict constructionist. His answer was artifice language without 
answering the question.
  I asked the question whether he is a strict constructionist. I asked:

       You haven't been asked that question by anyone during the 
     course of your nomination process?

  Answer:

       No. I was asked very similar questions, and they generally 
     had to do with how I go about generally interpreting the 
     Constitution and statutes--and I gave the answer that I gave 
     you a few minutes ago.

  In other words, ``none of your business'' was the answer.
  Other Senators tried to get a straight answer from Mr. Estrada.
  Question:

       Of the current members of the Supreme Court, who would you 
     characterize as a strict constructionist? Who would you 
     characterize as a fair constructionist?

  That was his language.

       How would you characterize the remaining Justices?

  Answer:

       I would characterize each member of the current Court as a 
     ``fair constructionist.''

  The people on the Supreme Court today have totally different 
philosophies. Everyone knows that. You have a broad spectrum from 
someone such as Justice Scalia to someone such as Justice Stevens. But 
Mr. Estrada said they were all ``fair constructionists,'' which 
basically meant the term had no meaning at all.
  It is like asking someone, ``Which Member of the Senate has your 
philosophy?'' and the answer being, ``Well, they all do.'' We do not 
all have the same philosophy in the Senate. I do not think anyone would 
question that.
  He refused to answer a question about his views of any judge, living 
or dead.
  Question:

       In terms of judicial philosophy, please name several 
     judges, living or dead, whom you admire and would like to 
     emulate on the bench?

  Answer:

       There is no judge, living or dead, whom I would seek to 
     emulate on the bench, whether in terms of judicial philosophy 
     or otherwise. . . .

  Again, ``none of your business.''
  As a judge on the D.C. Circuit, Miguel Estrada would have an enormous 
impact on the lives of millions of Americans. The American people 
deserve to know about this man who will have such an effect on their 
lives. They deserve to know whether he will respect and protect their 
civil rights. They deserve to know this before he dons the cloak of 
silence he will get once he is on the bench. The American people 
deserve more from Miguel Estrada than ``none of your business.''
  I look forward to working on a bipartisan basis to elevate qualified, 
moderate nominees to the Federal bench. In particular, in the Fourth 
Circuit, where North Carolina is, I have high hopes President Bush will 
nominate a highly qualified candidate whom I will be able to support.
  But, based upon Mr. Estrada's record, this is clearly not the right 
man. I will not just rubberstamp nominees who have not proven they are 
qualified for the extraordinary responsibilities of a Federal judge, 
and particularly the extraordinary responsibilities of a judge who 
would sit on the DC Circuit Court of Appeals. As a result, I urge my 
colleagues to oppose this nomination.
  I thank you, Mr. President.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from West Virginia.
  Mr. BYRD. Mr. President, parliamentary inquiry. Is the Senate in 
executive session?
  The PRESIDING OFFICER. The Senate is in executive session.
  Mr. BYRD. I thank the Chair.
  Mr. President, I ask unanimous consent to speak as in legislative 
session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Byrd are printed in today's Record under 
``Morning Business.'')
  Mr. REID. Mr. President, the Senator from Minnesota is here. I am 
holding the floor now because the Democratic leader has been waiting 
since 2:15 to come and speak. I am wondering how long the Senator from 
Minnesota wishes to speak?
  Mr. COLEMAN. Mr. President, I say to the Democratic whip, I have 
about 2\1/2\ pages typed, probably no more than 10 minutes, 5 to 10 
minutes maximum.
  Mr. REID. Why don't you go ahead and speak for, what did you say, up 
to 10 minutes?
  Mr. COLEMAN. At the maximum.
  Mr. REID. I ask unanimous consent that following the statement of the 
Senator from Minnesota, the Democratic leader be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Minnesota is recognized.
  Mr. COLEMAN. Mr. President, this morning the distinguished Senator 
from New York made some statements about the Senate's constitutional 
advice and consent responsibility. I would like now to respond to those 
statements because some of her views of the Senate's appropriate role 
in judicial nominations are different from mine.
  I speak as a former solicitor general of the State of Minnesota. I 
had an opportunity to argue on many occasions before the highest courts 
in my State. I have a great love and appreciation for our Constitution 
and its history.
  In its enumeration of the President's powers, the Constitution has 
provided a role for the Senate in the appointment of various Federal 
officials, including Federal judges. The relevant text, which is set 
forth in article II, section 2, of the Constitution, reads:

       The President . . . shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint . . . Judges 
     of the Supreme Court, and all other Officers of the United 
     States, whose Appointments are not herein otherwise provided 
     for, and which shall be established by law[.]

  As one scholar has noted:

       a reasonable reading of the text suggests that because the 
     Senate's role in the appointments process is outlined in 
     Article II enumeration of presidential powers, rather than 
     described in the Article I enumeration of congressional 
     powers, the Senate plays a more limited role in the 
     appointment of judges.

  A reading of Alexander Hamilton's commentary on the Appointments 
Clause sheds some additional light on how the Framers viewed the 
Senate's duty of advise and consent. Hamilton acknowledged the danger 
that the Senate's advise and consent role could create an overly 
indulgent Senate relationship to appointed officeholders engaged in 
malfeasance. Hamilton rebutted this point by arguing that the Senate 
would have a strong interest in appointing qualified leaders and in 
protecting its reputation for appointing quality officeholders. He 
further pointed out--and this is important--that the Senate does not 
have the power to choose officeholders, but only to advise and consent. 
In a moment of amazing prescience, he stated that he felt that Senators 
might have political reasons for confirming or rejecting a nominee. He 
nevertheless observed--or perhaps hoped--that since the President alone

[[Page S2149]]

makes the nominations, Senators would be somewhat constrained in their 
voting decisions and that self-interested decisions would be offset by 
other Senators. He predicted that voting decisions on the merits would 
become much more the norm.

  I wonder what Alexander Hamilton would say about the debate we have 
had over Miguel Estrada's nominations. I can't imagine that he would be 
pleased.
  Hamilton believed that the appointments powers were wisely vested in 
the hands of two parties, the President and the Senate. On one hand, 
Hamilton believed the President, acting alone, would be the better 
choice for making nominations, as he would be less vulnerable to 
personal considerations and political negotiations than the Senate and 
more inclined, as the sole decision maker, to select nominees who would 
reflect well on the presidency. On the other hand, he argued that the 
Senate's role would act as a powerful check on unfit nominees by the 
President. As he put it, Senate confirmation ``would be an excellent 
check upon a spirit of favoritism in the President, and would tend 
greatly to prevent the appointment of unfit characters from State 
prejudice, from family connection, from personal attachment, or from a 
view to popularity.''
  So there you have it, straight from Alexander Hamilton himself. The 
role of the Senate is a limited one of protecting against the 
appointment of nominees who are unfit for the federal bench. I agree 
that the Senate owes some deference to the President's choices.
  Hamilton also believed that the Senate would act on judicial nominees 
with integrity in order to avoid public disapproval. Now, the last 
thing I want to do is cast aspersion on the integrity of my colleagues 
who oppose Mr. Estrada's nomination. But I must say that the amount of 
misinformation being repeated here on the Senate floor about Mr. 
Estrada, and the manner in which his opponents have ignored his vast 
legal experience and record, is cause for grave concern.
  Historically, deliberation by the Senate on judicial nominations was 
quite short, especially when compared to what we are seeing on the 
Senate floor on Mr. Estrada's nomination. Take, for example, the 1862 
nomination and confirmation of Samuel F. Miller to the United States 
Supreme Court. The Senate formally deliberated on the nomination for 
only 30 minutes before confirming him. Confirmations on the same day, 
or within a few days of the nomination were the norm well into the 20th 
century.
  Contrast this with what we are seeing on Mr. Estrada's nomination. We 
are now on our fourth day of debate with no end in sight. The 
Republicans have offered at least two generous time agreements to set a 
vote for Mr. Estrada's nomination, but the Democratic leadership 
rejected both of them.
  I have taken the time to share with my colleagues some of the 
historical details of the judicial confirmation process in order to put 
the debate over Mr. Estrada's nomination into perspective. What was 
enumerated in the Constitution as ``advice and consent'' has in 
practice devolved to ``negotiation and cooperation'' in the best cases, 
and ``obstruct and delay'' in the worst cases, aided and abetted by the 
liberal Washington special interest groups. I fear that we are seeing 
the latter at work in Mr. Estrada's case.
  I was recently elected to get things done. I was elected, and I heard 
my voters say: Put aside the bitter partisanship that is stopping the 
Senate from moving forward and that has prevented the Senate from 
getting a prescription drug benefit and Medicare for seniors, that 
stopped us from getting disaster relief assistance, that stopped us 
from getting a budget and appropriations bills passed.
  Now we are facing the first partisan filibuster of a circuit court 
judicial nominee. Now we are facing a new standard--not the gold 
standard of the American Bar Association but talks about qualified, or 
well-qualified, of which Mr. Estrada has received the highest ranking--
a new Federal standard. But, instead, we are facing a standard of 
political acceptability. Our Constitution is being tested. It is being 
tested by the reaction to Mr. Estrada's nomination.
  He is someone who comes to us as an immigrant who worked his way up, 
who became the top of his class in college, the top of his class in law 
school, magna cum laude from Harvard, editor of the Law Review, clerked 
for Federal judges, clerked for Supreme Court Judges, and comes to us 
with the highest qualification rating by the American Bar Association. 
But now we are facing a new standard.
  I urge my colleagues on both sides of the aisle to reject the 
political considerations and get back to that view and that perspective 
on whether they are fit, whether they are qualified, and whether they 
have the right kind of judicial temperament. Let us put an end to this 
debate. Let us support and confirm Mr. Estrada's nomination.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Chafee). The Democratic leader.
  Mr. DASCHLE. Mr. President, last night the Senate voted on three 
judicial nominations. And we voted unanimously--Republicans and 
Democrats. We voted unanimously, recognizing that those nominations 
were very likely ones with which we had perhaps even broad 
philosophical differences. But we voted. We didn't delay. We had 
debate. We all had an opportunity to make our evaluation. We came to 
some conclusion.
  That is how it should work. That is what our Founding Fathers had 
envisioned. That is what the distinguished Senator from Minnesota was 
just alluding to--advise and consent. When it works, there are very few 
glitches. When it works, Republicans and Democrats can come together 
and make their best judgment.
  It worked in this case. Why did it work? It worked in part because 
these nominees came before the Judiciary Committee and they did their 
best to answer the questions presented to them. They did their best to 
offer as much information as they could about their past, about their 
record, about others' judgments, and about their record. Having 
presented their information, having made their case, the Judiciary 
Committee voted, they were passed out of committee, they came to the 
floor, and the Senate voted.
  Not one Republican Senator has mentioned that process today. They say 
that somehow we are abrogating our responsibilities in requesting 
exactly the same information from Miguel Estrada--not any more but not 
any less.
  So this is not a question about disallowing conservative judges. We 
do that. We actually do it fairly regularly. It is my view that there 
are times when judges we view to be outside the mainstream--extreme, in 
other words--ought to be considered on the basis of their philosophical 
points of view. But if they fall within what we view to be, as best as 
we can tell, the philosophical mainstream in spite of their 
conservatism, I think a President has a basic right to nominate those 
in whom he has confidence.
  There are those who have argued in the last couple of days that this 
is really about our opposition to diversity, that somehow we are 
opposed to Hispanic judges. That is not only unfortunate and not only 
in error, but I think it does a disservice to this debate. Frankly, 
they ought to know better than to resort to that kind of rhetoric which 
demeans the debate. If this were about diversity, if this were about 
some concern for Hispanic judges as some have asserted, we would be 
hard pressed to find one, much less virtually the entire Congressional 
Hispanic Caucus, in opposition. Yet that is what we find. Virtually 
every member of the Hispanic Caucus in the House of Representatives has 
opposed this nomination. Why? In large measure for the same reasons we 
oppose this nomination, unless we have more information. They don't 
know either where Mr. Estrada stands. They have no record either. In 
spite of their best efforts, there is a shroud of secrecy around this 
nominee that is very disconcerting.
  Why is it that nominee after nominee comes before the Judiciary 
Committee and provides the information required? Why is it we have 
access to the information, the records of virtually every other 
nominee? Why is it, with that record of performance, that when it comes 
to this nominee--whether it is before the Judiciary Committee or before 
the Hispanic Caucus or before anybody else seeking information--we come 
up with nothing?

[[Page S2150]]

  Mr. President, either this nominee knows nothing or he feels he must 
hide something. It is one or the other: He knows nothing or feels the 
need to hide something.
  Now, I suppose if this were a temporary nomination, if this were 
something within the administration, with a beginning and an end to the 
term--a commission, even a Secretary--perhaps we could let this go by, 
perhaps we should not feel quite as troubled by this lack of 
willingness to be more forthcoming. But this is for the second highest 
court in the land. And not only the second highest court in the land, 
this is actually for, arguably, the most important court in all of the 
circuits in this country.
  It is within this circuit that we find perhaps the single most 
complex, the most serious, the most hotly debated, the most contentious 
issues to come before the courts. Those who will serve on this court 
will decide the future of title IX, the future of workers rights, the 
future of campaign finance, the status of toxic waste cleanup. Those 
and many more issues will be decided in the D.C. Circuit.
  So we are left with a very serious dilemma: Do we vote on what is 
essentially a blank slate or do we say: ``Look, we will vote, we will 
be prepared to move forward on this and any other nomination so long as 
that information can be provided''?
  Today, Senator Leahy and I have sent a letter to the President asking 
that the documentation that has been provided on numerous other 
occasions--the Solicitor General records--be provided as they were with 
Mr. Bork, Mr. Rehnquist, Benjamin Civiletti, and many others. That 
precedent has long since been established. We have asked for the same 
information provided to the Senate that was provided on those nominees. 
Why? Because there is no record. Why? Because there is no basis upon 
which to make a public judgment unless we have that information.
  That is all we are asking: Give us some record upon which to make our 
judgment, No. 1. And, No. 2, let us just ask Mr. Estrada to present to 
us the answers to the same questions that have been asked by Republican 
colleagues to nominees in past Congresses and by Democratic and 
Republican Senators to nominees in this Congress.
  Why is it we should give some exclusion to this particular nominee? 
What is it about this nominee that gives him that right to say: ``No, 
I'm above that. I don't have to provide that information. I don't have 
to provide the same information that Mr. Bork provided or that Mr. 
Rehnquist provided. I don't have to do that. I'm unique''?
  There is nothing unique about defying the Senate. Others have 
attempted to do so. But when one defies the Senate, defies the 
Constitution, when someone undermines the constitutional obligation we 
have to advise and consent, we take that seriously.
  So we have no choice. We have an obligation to live up to the same 
standard with this nomination that we have with all the others. All we 
are suggesting is that our colleagues live up to it as well. Provide us 
with the information. Answer the questions. Once that happens, we will 
make our judgment on this nomination. Some already have. But there are 
many others who deserve the right to make a proper evaluation.

  I must say, based on the limited information available to us, there 
already are serious questions about Mr. Estrada's qualifications. His 
immediate supervisor at the Justice Department said: I cannot, in good 
conscience, recommend this man to serve on the Circuit Court of the 
United States of America. I cannot do that. In fact, he went on to say: 
I can't even trust this person. That is from the supervisor, the person 
who probably knows this man the best.
  Mr. President, if a supervisor at the Justice Department cannot find 
within himself to support this nominee, how in the world is it we say 
we know better?
  If Mr. Estrada has more information he can share that would shed some 
light on what it is that has caused his supervisor to be as concerned 
as he was to oppose this nomination, then I would say it would be in 
his interest to bring it forward, to let us look at it. And that is why 
the Solicitor General papers are so critical.
  So, Mr. President, I do not know how long this debate will go on, but 
I will say this: We have thought about this very carefully now for many 
days. And it is not without a great deal of concern and disappointment 
that I come to the floor with the report I have just shared.
  Our colleagues feel as strongly about this as anything that has been 
presented to us. There is no doubt we have the votes to sustain 
whatever procedural efforts are made to bring this debate to a close. I 
would hope that would not be necessary.
  This matter can be resolved if we simply have access to the documents 
and have answers to the questions.
  Mr. President, I ask unanimous consent that the letter Senator Leahy 
and I sent to the President be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, February 11, 2003.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: We are writing in reference to your 
     nomination of Miguel Estrada to the U.S. Court of Appeals for 
     the District of Columbia Circuit. Pursuant to the 
     Constitution, the Senate is to act as a co-equal participant 
     in the confirmation of judges to the federal bench. Unlike 
     nominations made by a President for Executive Branch 
     appointments, judicial nominees are reviewed by the Senate 
     for appointment to lifetime positions in the Judicial Branch.
       The Senate has often requested and received supplemental 
     documents when it is considering controversial nominations or 
     when evaluating a candidate with a limited public record. The 
     Chairman of the Senate Judiciary Committee wrote to your 
     Administration on May 15, 2002 to request such supplemental 
     documents to assist in Senate consideration of the Estrada 
     nomination. In particular, the request was made for appeal 
     recommendations, certiorari recommendations, and amicus 
     recommendations that Mr. Estrada worked on while at the 
     Department of Justice.
       Prior Administrations have accommodated similar Senate 
     requests for such documents. Such documents were provided 
     during Senate consideration of the nominations of Robert H. 
     Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen 
     Trott, and William H. Rehnquist.
       Your Administration has refused to accommodate the Senate's 
     request for documents in connection with the Estrada 
     nomination. That refusal was a matter of inquiry at the 
     confirmation hearing held on this nomination on September 26, 
     2002. Following the hearing, Senator Schumer wrote to the 
     Attorney General on January 23, 2003, to follow up on the 
     request.
       In addition to requests for documents, Senators frequently 
     question judicial nominees during their confirmation hearings 
     to determine their judicial philosophy, views and 
     temperament. For example, then-Senator John Ashcroft asked 
     nominees: ``Which judge has served as a model for the way you 
     would conduct yourself as a judge and why?'' Mr. Estrada 
     refused to answer a similar question.
       During consideration of President Clinton's judicial 
     nominees, Republican Senators asked repeated questions 
     regarding nominees' judicial philosophy, views or legal 
     matters, and approaches to interpreting the Constitution. 
     They insisted on and received answers. During his 
     consideration before the Senate Judiciary Committee, Mr. 
     Estrada failed to answer these kinds of questions. These 
     questions have not only been routinely asked by the Senate, 
     they have been routinely answered by other nominees--
     including other nominees from your Administration.
       For the Senate to make an informed decision about Mr. 
     Estrada's nomination, it is essential that we receive the 
     information requested and answers to these basic legal 
     questions. Specifically we ask:
       1. That you instruct the Department of Justice to 
     accommodate the requests for documents immediately so that 
     the hearing process can be completed and the Senate can have 
     a more complete record on which to consider this nomination; 
     and
       2. That Mr. Estrada answer the questions that he refused to 
     answer during his Judicial Committee hearing to allow for a 
     credible review of his judicial philosophy and legal views.
       We would appreciate your personal attention to this matter.
           Sincerely,
     Tom Daschle.
     Patrick Leahy.

  Mr. DASCHLE. Answer the questions. Provide the information. Let's 
move this debate forward. Let's do the right thing. Let's live up to 
our constitutional obligation. Let's respect the advice and consent 
clause of the United States Constitution. Let's do what our forefathers 
expected of us. Let's not carve out an exemption for Mr. Estrada or 
anybody else. Let us make a wise decision about this nomination, as we 
have in so many other cases.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic whip.

[[Page S2151]]

  Mr. REID. Mr. President, earlier today there was a colloquy between 
the junior Senator from New York and this Senator, following remarks of 
the distinguished Chair of the Judiciary Committee, who said the 
Congressional Hispanic Caucus was divided on their feelings about the 
nominee now before this body.
  I mentioned to the Senator from New York I had been privy to a 
conversation just a few days ago with the chairman of the Hispanic 
Caucus and other members of that caucus who said they unanimously 
oppose Miguel Estrada to be district judge for the District of 
Columbia.
  I will now read into the record a statement of the Chair of the 
Hispanic Caucus, Congressman Ciro D. Rodriguez, dated today, which 
reads:

       ``It is disheartening to see that Members of the Republican 
     Senate continue to make misleading and unfound statements 
     regarding the Congressional Hispanic Caucus's opposition to 
     Bush judicial nominee Miguel Estrada,'' said Congressman Ciro 
     D. Rodriguez, chair of the Congressional Hispanic Caucus. 
     ``The CHC will continue to stand by its unanimous opposition 
     to this unqualified nominee and will not waiver.''
       ``Senate Republicans continue to hit below the belt, 
     insulting Hispanic Members of this Congress who have been 
     elected to serve as a voice for the people in their 
     community,'' continued Congressman Rodriguez. ``Today, Senate 
     Judiciary Chairman Orrin Hatch continues to make misleading, 
     partisan swipes. He incorrectly claims that the CHC is split 
     in its opposition, and he mischaracterizes our arguments. 
     Yesterday, the CHC released a letter to Senator Hatch 
     demanding an apology for comments he made during Senatorial 
     debate, likening Members of the CHC `to the lioness eating 
     her cubs . . .' We have yet to receive an apology or even an 
     acknowledgment from the Senator that his comments were out of 
     line and insulting.''
       ``The CHC has supported numerous highly qualified Hispanic 
     appointees by the Bush Administration,'' noted Congressman 
     Rodriguez. ``We oppose Mr. Estrada, however, based on our 
     review of his inadequate qualifications for what is viewed as 
     the second most powerful court in the nation.''

  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Dole). Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, I have been on the Senate floor since the 
debate on the Miguel Estrada nomination commenced last week. I have 
stated in the strongest terms my support for his qualifications. I am 
not alone. Virtually anybody who knows him, anybody who has any 
background on Miguel Estrada, feels the same way. I have stated in the 
strongest terms this support. The record is replete with reasons why he 
would be an excellent addition to this DC Circuit and with facts 
dispelling the specious arguments of his detractors.
  I will now address the procedural tactic that is being used against 
Miguel Estrada, and I am talking about a filibuster of this nomination. 
A filibuster of Mr. Estrada's nomination will require a cloture vote by 
the Senate to end debate, unless reasonable minds on the Democratic 
side can prevail.
  I know there are some who are working to try to prevail, just like I 
had to work on our side to prevail over those who wanted to filibuster 
some of President Clinton's nominees. I am hoping reasonable people on 
the Democrat side will prevail. They simply must prevail because we 
really do not want to start down the road of a filibuster.
  As I say, a filibuster of Mr. Estrada's nomination will require a 
cloture vote by the Senate to end debate. This means that a 
supermajority of 60 votes will be required to allow us to proceed to an 
up-or-down vote on Miguel Estrada's nomination. That is an insult to 
Miguel Estrada. It is an insult to the Senate. It is an insult to 
Hispanic people all over this country who are watching what is 
happening. Actually, it is an insult to this coequal branch of 
government, the judiciary.
  I have taken the Senate floor on more than one occasion to decry the 
tactic of enforcing judicial nominees through a cloture vote. My 
position has been the same, regardless whether the nominee was 
appointed by a Democratic or Republican President. I am proud to say 
during my nearly 30 years in the Senate, I have never voted against 
cloture for a judicial nominee, even on the rare occasion when I 
opposed a judicial nomination and ultimately voted against that 
nomination.
  An example in point is the nomination of Lee Sarokin to the Third 
Circuit. Even though I voted against his nomination, I voted in favor 
of cloture because I strongly believed his nomination deserved to 
succeed or fail on the basis of the votes of a simple majority of the 
Senate, not on the will of merely 41 Senators who vote against cloture. 
I argued strenuously in favor of invoking cloture on two of President 
Clinton's judicial nominees, Marcia Berzon and Richard Paez.
  There are times when legislators must, to be effective, demonstrate 
mastery of politics, but there are also other times when politics, 
though available, must be foresworn. This is one of those times. There 
is a quote of Disraeli that addresses this situation perfectly. To 
paraphrase, next to knowing when to seize an opportunity, the most 
important thing is knowing when to forgo an advantage.
  I hope my colleagues will forgo their perceived advantage of a 
filibuster of Miguel Estrada's nomination. Forcing a supermajority vote 
on any judicial nominee is a maneuver that needlessly injects even more 
politics into the already overpoliticized confirmation process. I 
believe there are certain areas that should be designated as off limits 
from political activity. The Senate's role in confirming lifetime 
appointed article III judges and the underlying principle that the 
Senate perform that role through the majority vote of its Members are 
such issues. Nothing less depends on the recognition of these 
principles than the continued untarnished respect for our third branch 
of Government, the one branch of Government intended to be above 
political influence, the Federal judiciary.
  On the basis of principle, I have always tried to be fair to judicial 
nominees, regardless of the political affiliation of the President 
making the nomination. The opposition to now Judge Berzon and now Judge 
Paez, two Clinton nominees, was led by members of my own party. They 
believed very deeply that Marcia Berzon, with her very liberal 
philosophy, would become an activist judge. They knew, in their eyes--
and I think they were pretty right--that Judge Paez as a Federal 
district court judge was an activist judge, writing activist decisions. 
I met Judge Paez, and he said he would be very careful not to be 
activist in the future. It did not take him long on the Ninth Circuit 
Court of Appeals, in the eyes of some, to go back to his activist ways. 
Activism means acting as a superlegislator on the bench, making laws 
that should be made by those who have to stand for reelection--Members 
of Congress and the President.
  When members of my own party fought against Judge Berzon, now Judge 
Berzon, and then Judge Paez, during that time I stood against the use 
of cloture to attempt to thwart a vote on their nominations, and I was 
successful. Now it is my friends across the aisle first subjecting 
Miguel Estrada's nomination to a cloture vote. I stand just as firmly 
today against the use of this tactic to prevent his nomination from 
coming to the floor of the Senate for an up-or-down vote, which is what 
the President deserves. If we are going to be fair to the President of 
the United States, whoever the President may be, we should always 
provide that opportunity to have an up-or-down vote on these nominees.

  To be sure, this body has on occasion engaged in the dubious practice 
of filibusters of judicial nominees, but forcing the filing of cloture 
on a judicial nominee remains the exception rather than the rule. We 
have always been able to thwart the attempted filibuster by some who I 
think at the time did not fully realize the import of their actions.
  We have always been successful. Overall, these episodes have been 
infrequent and they have been unfortunate in each case. I hope they 
will remain as such and that what we are seeing today is not the 
beginning of a long battle of fighting filibuster threats against 
President Bush's judicial nominees. There is real cause for concern 
that is not to be taken lightly in the wake of the November elections. 
Leading liberals hit the newspapers to urge my

[[Page S2152]]

Democratic colleagues to use the filibuster as a tool to defeat 
President Bush's judicial nominees.
  On November 11 of last year, the Legal Times published an article: 
``A Major Shift in the Battle for the Bench.'' The article was 
subtitled: ``With GOP steering the Judiciary Committee, liberal 
advocates turn to more desperate measures.'' The article reported on 
the plans of liberal interest groups to refocus their energies against 
President Bush's judicial nominees on the Senate floor where 
``filibusters and legislative horse trading may give liberal interest 
groups their best shot at influencing the process.''
  The senior legislative counsel of one liberal group called the 
filibuster a ``plausible weapon.''
  Also on November 11, two liberal law professors published an op-ed in 
the Los Angeles Times entitled: ``No to a Far-Right Court: Use 
Filibusters.'' In an implicit nod to the rarity of the use of a 
filibuster to defeat a judicial nominee, the article urged ``courageous 
Democrats'' that a filibuster is the only way to thwart President 
Bush's nominees.
  The New York Times on November 10 similarly urged Democrats ``not 
[to] be afraid to mount a filibuster,'' which, again, implicitly 
acknowledges the extremity of filibustering a judicial nomination.
  On November 14, the Madison Capital Times reported that a Federal 
feminist group was targeting Wisconsin for a grassroots campaign to 
drum up support for the filibustering of Bush Supreme Court nominees. 
The paper candidly reported:

       The tactic would call on Senators to filibuster in order to 
     block [pro-life] nominees. A filibuster is a parliamentary 
     technique that allows a majority of Senators to keep a vote 
     from being taken. Defeating a nominee requires a majority 
     vote in the Senate, but only 41 of the 100 Senators are 
     needed to sustain a filibuster.

  The rallies in Madison and Milwaukee were only 2 of 12 such campaigns 
by this group on college campuses nationwide to drum up support for 
filibustering judicial nominees based on the single litmus test issue 
of abortion.
  Madam President, I ask unanimous consent editorials be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From Capital Times, Nov. 14, 2002]

            Activist: Urge Senators to Save Abortion Rights

                          (By Samara Kalk Der)

       Women's rights leader Eleanor Smeal was in Milwaukee and 
     Madison Wednesday urging grass-roots abortion rights 
     supporters to send a message to U.S. Sens. Russ Feingold and 
     Herb Kohl.
       Smeal said she came to Wisconsin because it is the only 
     state where both of its senators sit on the Judiciary 
     Committee, which wields considerable power when it comes to 
     the scrutiny and confirmation of Supreme Court justices.
       While Democrats Feingold and Kohl both take positions 
     supporting abortion rights, women in Wisconsin must not take 
     for granted, Smeal told an overflow crowd of 250 that packed 
     into the Marquee Room at the Madison Civic Center Wednesday 
     night for ``Never Go Back,'' a national campaign aimed at 
     putting a spotlight on the protection of abortion rights.'' I 
     hope this campus organizes like it has never organized 
     before,'' Smeal told the group, which was nearly all female 
     and filled with many UW-Madison students.
       The political landscape is making those who cherish the 
     right to choose an abortion nervous, and Smeal and local 
     activists who spoke.
       ``What Nov. 5 (the midterm election) has done is made it 
     clear to everybody what we are up against,'' said Smeal, 
     president of the Feminist Majority Foundation and three-time 
     president of the National Organization for Women.
       Smeal led the first national abortion rights march in 1986, 
     which drew about 100,000 to rally in Washington, D.C. In 
     1989, more than twice as many marched, she said. And then, in 
     1992, the march turned out more than 700,000.
       ``I believe we are going to have to march again and again 
     and again,'' she said.
       Vacancies on the U.S. Supreme Court may appear as early as 
     this summer, and it is expected that President George W. Bush 
     will seek to appoint justices who oppose abortion.
       Smeal is touting a plan to save abortion rights now that 
     the country has a conservative president and U.S. Senate 
     majority. The strategy focuses on the Senate because it has 
     the power to confirm, reject or block nominees to he U.S. 
     high court.
       The tactic would call on senators to filibuster in order to 
     block anti-abortion nominees. A filibuster is a parliamentary 
     technique that allows a minority of senators to keep a vote 
     from being taken. Defeating a nominee requires a majority 
     vote in the Senate, but only 41 of the 100 senators are 
     needed to sustain a filibuster.
       ``It's the safest tool we have to save the lives of the 
     next generation of women,'' Smeal said.
       If the Supreme Court overturns Roe v. Wade, the 30-year-old 
     decision that struck down restrictive state abortion laws, 
     abortion rights will again be determined state by state. That 
     means rich women will be able to hop a plane to get an 
     abortion, while poor women will be left to bring unwanted 
     pregnancies to term or seek dangerous, ``back alley'' 
     abortions, Smeal said.
       ``We'll lose centuries,'' she added.
       Dr. Dennis Christensen, medical director of the Madison 
     Abortion Clinic, also spoke. He said the huge turnout for the 
     event was one of the few bright spots he's seen since last 
     week's election. For the first time in 30 years he really 
     feels the urgency of the abortion rights cause, he said.
       ``Where were the women in this election?'' he asked.
       ``Christensen said he is not a politician or a fund-raiser. 
     He is a physician who is able to help women ``with this 
     problem that they have.''
       ``I don't have to worry about it. I'm not going to get 
     pregnant,'' he added.
       If Roe v. Wade is overturned, abortion in Wisconsin will 
     become illegal the next day, Christensen said. Wisconsin is 
     one of just 14 states where abortion will be considered 
     illegal should the federal law get struck down, he added.
       ``I don't think I'm ready to spend my retirement in jail,'' 
     he quipped. ``I plan to spend it on the golf course.''
                                  ____


                [From the New York Times, Nov. 10, 2002]

                        Defending the Judiciary

       The biggest fallout from last week's Republican capture of 
     the Senate may be that it will now be harder to block 
     ideologically extreme nominees to the federal courts. But 
     contrary to what some conservatives claim, nothing in the 
     election returns suggests that Americans want the courts 
     packed with such judges. Given the new political lineup, 
     Democratic and moderate Republican senators must be more 
     involved in the confirmation process to ensure that Justice 
     Department ideologues do not have a free hand in shaping the 
     federal judiciary for decades to come.
       For all of the talk of Republican ascendancy, last week's 
     election returns did not produce anything like a right-wing 
     mandate. Republicans running in the hardest-fought elections 
     hewed to the political center. The victory margins in the 
     races that ended up shifting the Senate--Minnesota and 
     Missouri--were less than three percentage points.
       Despite President Bush's campaign promise to ``unite, not 
     divide,'' many of his judicial nominees have done the 
     reverse. They favor taking away the right to abortion, 
     striking down reasonable environmental regulations and 
     turning back the clock on race. (One pending nominee at one 
     point criticized the Supreme Court's ruling that Bob Jones 
     University should lose its tax-exempt status for 
     discriminating against black students.) With the Senate in 
     Republican control, the administration is likely to choose 
     even more troubling nominees.
       Senate Democrats must insist on two things going forward: 
     consultation and consensus. Senator Patrick Leahy, who will 
     be the ranking minority member of the Judiciary Committee, 
     should ask to meet with the administration in advance to head 
     off unacceptable candidates before they are nominated. 
     Consultation of this kind occurred in the Clinton years, and 
     it should be the norm for judicial selections, no matter 
     which party holds the White House.
       Senate Democrats should also make it clear that they will 
     not accept extremist nominees. They must draw a line in the 
     sand and say that those whose politics cross it will not be 
     confirmed.
       Democrats in the Senate no longer control the Judiciary 
     Committee, which has until now been screening out the worst 
     nominees, and cannot win party-line votes. But they should 
     reach out to moderate Republican senators and build a 
     mainstream coalition. And when a judicial nominee is 
     unacceptable, they should not be afraid to mount a 
     filibuster, which Republicans would need 60 votes to 
     overcome.
       Rumors have been swirling around Washington that there 
     could be one or more Supreme Court vacancies in the next few 
     months, making the stakes as high as can be. With the White 
     House representing the far right in the nominating process, 
     it remains up to the Senate--even in its new configuration--
     to represent the rest of the country.

  Mr. HATCH. What these articles suggest is that the liberal interest 
groups are just as intent as ever on using every trick in the book to 
defeat President Bush's judicial nominees. From the start of their 
record, as they have tried to do with Miguel Estrada and others, by 
forcing a cloture vote, it appears the liberal interest groups will 
stop at nothing to further their agenda. What is more, it looks as if 
the defeat we are seeing on Miguel Estrada is

[[Page S2153]]

not so much about him as it is about seeing how well a filibuster works 
in case there is a Supreme Court nominee this summer.
  It also may have a more sinister purpose: To desensitize the American 
people to filibustering judicial nominees so that the practice will 
become more acceptable and so that less outrage will be expressed over 
the filibustering of other circuit nominees and ultimately a Supreme 
Court nominee. This is all part of the strategy of changing the ground 
rules on judicial nominations that Senate Democrats discussed at their 
retreat back in April of 2001.
  I am not the only one who recognized the dangerous precedent that 
some Democrats would set in filibustering qualified nominees. The 
Washington Post, hardly a bastion of conservatism, warned in a December 
5, 2002, editorial that ``a world in which filibusters serve as an 
active instrument of nomination politics is not one either party should 
want.''
  The Washington Post urged Democrats to ``stand down'' on any attempt 
to deny Miguel Estrada a vote because his nomination ``in no way 
deserves a filibuster.''
  I couldn't agree more.
  I hope I am wrong about the extent to which the liberal interests 
groups have had a role in orchestrating this lengthy debate on Miguel 
Estrada's nomination. I hope that this is not another example of an 
attempt by some of my Democratic colleagues to change the ground rules 
on judicial nominees. I hope that my Democratic colleagues will 
exercise the same independence that I did when I joined them to invoke 
cloture on the nominations of Clinton judicial nominees who were 
opposed by many of my Republican colleagues.
  When I argued to invoke cloture on the nominations of Judge Berzon 
and Judge Paez, I noted several important reasons for avoiding a 
filibuster of judicial nominees. One is that the Senate's 
constitutional duty of advise and consent contemplates that a vote by a 
simple majority of the Senate determine the fate of a judicial nominee. 
There is nothing in the Constitution that gives that power to a 
minority of 41 Senators, just as that power should not be yielded by 10 
Senators in a party-line vote in committee.
  Another reason is that most of the fight over a nomination has 
occurred well before a nominee arrives at the Senate floor. The battles 
are largely fought between the White House and the Judiciary Committee, 
since it is our job to vet the nominees. By the time a judicial nominee 
reaches the Senate floor, he or she deserves a vote on the merits 
without having to clear the procedural hurdle of a cloture vote.
  In the past, several of my Democratic colleagues have joined me in 
condemning the practice of forcing judicial nominees through a cloture 
vote. For example, during the debate on Clinton nominees, one of my 
Democratic friends spoke passionately about this tactic. He said:

       I . . . 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.

  He continued:

       I . . . took the floor on occasion to oppose filibusters to 
     hold . . . up [nominations] and believe that we should have a 
     vote up or down.

  On a different occasion, the same colleague said:

       I have stated over and over again on this floor that . . . 
     I would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported; that I felt 
     the Senate should do its duty.

  And another Democratic colleague put it simply when she said:

       A nominee is entitled to a vote. Vote them up or vote them 
     down . . . If someone has an opposition to a judge, they 
     should come to the floor and say that.

  I agree wholeheartedly with these statements.
  Miguel Estrada waited more than 16 months for his confirmation 
hearing. He waited another 4 months for a committee vote on his 
nomination. And now his nomination is being subjected to yet another 
hurdle: Extended floor debate on his nomination with no end in sight. 
If we're going to debate Mr. Estrada's nomination, then let's do it, 
vote on it, and get on with the other important matters that are the 
work of this body.
  I hope my colleagues are not going to the unworthy ends of 
filibustering the President's nominees. It is unfair to the President. 
It is unfair to the process. It is unfair to Miguel Estrada who has 
earned the right to be here.
  I think it is important to remind my Democratic colleagues of 
statements they have made over the years opposing filibusters of 
judicial nominees. Of course, there was a Democratic President in the 
White House at the time these statements were made. I guess that is the 
double standard for Mr. Estrada, in more ways than one.
  I remember, on the nomination of Merrick Garland, here was a 
statement of Senator Sarbanes, who came to the Senate the same time I 
did, and whom I respect, the Senator from Maryland. It was on the 
nomination of Merrick Garland, President Clinton's nominee to the very 
same court, the Circuit Court of Appeals for the District of Columbia, 
for which Miguel Estrada has been nominated. He said this:

       It is worse than that. It is not whether you let the 
     President have his nominees confirmed. You will not even let 
     them be considered by the Senate for an up-or-down vote. That 
     is the problem today. In other words, the other side will not 
     let the process work so these nominees can come before the 
     Senate for judgment. Some may come before the Senate for 
     judgment and be rejected by the Senate. That is OK. But at 
     least let the process work so the nominees have an 
     opportunity and the judiciary has an opportunity to have 
     these vacant positions filled so the court system does not 
     begin to break down because of the failure to confirm new 
     judges. The Senator from Delaware, when he was chairman of 
     the committee, always measured up to that responsibility, I 
     think often taking a lot of political heat for doing it. But 
     he was out to make sure the system could function. He had 
     Republican Presidents nominating judges. He processed their 
     nominations. He brought them to the floor of the Senate. He 
     gave the Senate a chance to vote on them up or down for those 
     people to get confirmed. that process is breaking down.

  On another occasion Senator Biden said:

       So any member who is nominated for the district or circuit 
     court who, in fact, any Senator believes will be a person of 
     their word and follow stare decisis, it does not matter to me 
     what their ideology is, as long as they are in a position 
     where they are in the general mainstream of American 
     political life and they have not committed crimes of moral 
     turpitude, and have not, in fact, acted in a way that would 
     shed a negative light on the court. But I also respectfully 
     suggest that everyone who is nominated is entitled to have a 
     shot, to have a hearing and to have a shot to be heard on the 
     floor and have a vote on the floor.

  That was a statement of Senator Joseph Biden, Congressional Record, 
March 19, 1997 at S2540.
  This is a statement of Senator Barbara Boxer on the nomination of 
Margaret Morrow, to the Ninth Circuit Court of Appeals:

       According to the U.S. Constitution, the President 
     nominates, and the Senate shall provide advice and consent. 
     It is not the role of the Senate to obstruct the process and 
     prevent numbers of highly qualified nominees from even being 
     given the opportunity for a vote on the Senate floor.

  That statement of Senator Boxer was printed in the Congressional 
Record, May 14, 1997 at S4420.
  On the nomination of Judge Richard Paez, to the Ninth Circuit, 
Senator Leahy, the distinguished ranking member and Senator from 
Vermont, said:

       I have heard rumors that some on the Republican side 
     planned to filibuster this nomination. I cannot recall a 
     judicial nomination being successfully filibustered. I do not 
     recall earlier this year when the Republican Chairman of the 
     Judiciary Committee and I noted how improper it would be to 
     filibuster a judicial nomination. During this year's long-
     delayed debate on the confirmation of Margaret Morrow, 
     Senator Hatch said: `I think it is a travesty if we ever 
     start getting into a game of filibustering judges.' Well, it 
     appears that travesty was successfully threatened by some on 
     the Republican side of the aisle and kept the Minority Leader 
     from fulfilling his commitment to call up the nomination for 
     a confirmation vote.

  That is printed in the Congressional Record, October 14, 1997 at 
S12578.
  He said:

       If Senators are opposed to any judge, bring them up and 
     vote against them. But don't do an anonymous hold, which 
     diminishes the credibility and respect of the whole U.S. 
     Senate. I have had judicial nominations by both Democrat and 
     Republican Presidents that I intended to oppose. But I fought 
     like mad to make sure they at least got a chance to be on the 
     floor for a vote. I have stated over and over again on this 
     floor that I would refuse to put an anonymous hold on any 
     judge; that I would object and fight against any filibuster 
     on a judge, whether it is somebody I opposed or supported; 
     that I felt the Senate should do its duty.

  That was printed in the Congressional Record, June 18, 1998 at S6523.

[[Page S2154]]

  He said:

       I hope we might reach a point where we as a Senate will 
     accept our responsibility and vote people up or vote them 
     down. Bring the names here. If we want to vote against them, 
     vote against them.

  That was printed in the Congressional Record, October 22, 1997 at 
S10925.
  He also said:

       I hope that when we return . . . there will be a 
     realization by those in this body who have started down this 
     destructive path of attacking the judiciary and stalling the 
     confirmation of qualified nominees to the Federal bench that 
     those efforts do not serve the national interest or the 
     American people I hope that we can once again remove these 
     important matters from partisan and ideological politics.

  That is a statement of Senator Patrick J. Leahy printed in the 
Congressional Record of November 13, 1997 at S12569.
  There are other statements by my colleagues, but I don't want to bore 
the Senate with any more. Let me just say, I hope we do not have a 
double standard, but it sure looks as if we do. If Miguel Estrada's 
nomination is truly filibustered--and I hope it is not, but we are 
getting to the point where we know it will be and we know that it is 
because the time is passing--then I think this body is going to be 
sorry because in the past we have been able to stop filibusters. Both 
sides have labored diligently to do so.
  I have to tell you, if this is the way it is going to be in the 
future, nobody is going to be able to stop them. It just means that 
really highly qualified candidates who are controversial to one side 
are going to be filibustered. It is that simple. I don't want to see 
that day come.
  I am disappointed and somewhat outraged with the recent letter that 
was sent to the President of the United States. This was sent by the 
distinguished minority leader and the distinguished Democrat leader on 
the Judiciary Committee. The fact of the matter is, Miguel Estrada's 
hearing was held in September of last year while the Senate was under 
Democratic control. The Democrats remained in control for the rest of 
the 107th Congress. If they weren't satisfied with Miguel Estrada's 
answers at the hearing, they could have held another hearing.
  But this is what the letter said:

       Dear Mr. President: We are writing in reference to your 
     nomination of Miguel Estrada to the Estrada to the U.S. Court 
     of Appeals for the District of Columbia Circuit. Pursuant to 
     the Constitution, the Senate is to act as a co-equal 
     participant in the confirmation of judges to the federal 
     bench. Unlike nominations made by a President for Executive 
     Branch appointments, judicial nominees are reviewed by the 
     Senate for appointment to lifetime positions in the Judicial 
     Branch.
       The Senate has often requested and received supplemental 
     documents when it is considering controversial nominations or 
     when evaluating a candidate with a limited public record. The 
     Chairman of the Senate Judiciary Committee wrote to your 
     Administration on May 15, 2002 to request such supplemental 
     documents to assist in Senate consideration of the Estrada 
     nomination. In particular, the request was made for appeal 
     recommendations, certiorari recommendations, and amicus 
     recommendations that Mr. Estrada worked on while at the 
     Department of Justice.
       Prior Administrations have accommodated similar Senate 
     requests for such documents. Such documents were provided 
     during Senate consideration of the nominations of Robert H. 
     Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen 
     Trott, and William H. Rehnquist.
       Your Administration has refused to accommodate the Senate's 
     request for documents in connection with the Estrada 
     nomination. That refusal was a matter of inquiry at the 
     confirmation hearing held on this nomination on September 26, 
     2002. Following the hearing, Senator Schumer wrote to the 
     Attorney General on January 23, 2003, to follow up on the 
     request.

  I note parenthetically that was after President Bush won the election 
and the control of the Judiciary Committee was on its way to the 
Republicans in the Senate.
  To continue with the letter:

       In addition to requests for documents, Senators frequently 
     question judicial nominees during their confirmation hearings 
     to determine philosophy, views and temperament. For example, 
     then-Senator John Ashcroft asked nominees: ``Which judge has 
     served as a model for the way you would conduct yourself as a 
     judge and why?'' Mr. Estrada refused to answer a similar 
     question.
       During consideration of President Clinton's judicial 
     nominees, Republican Senators asked repeated questions 
     regarding nominees' judicial philosophy, views on legal 
     matters, and approaches to interpreting the Constitution. 
     They insisted on and received answers. During his 
     consideration before the Senate Judiciary Committee, Mr. 
     Estrada failed to answer these kinds of questions. These 
     questions have not only been routinely asked by the Senate, 
     they have been routinely answered by other nominees--
     including other nominees from your Administration.
       For the Senate to make an informed decision about Mr. 
     Estrada's nomination, it is essential that we receive the 
     information requested and answers to these basic legal 
     questions. Specifically we ask:
       1. That you instruct the Department of Justice to 
     accommodate the requests for documents immediately so that 
     the hearing process can be completed and the Senate can have 
     a more complete record on which to consider this nomination; 
     and
       2. That Mr. Estrada answer the questions that he refused to 
     answer during his Judiciary Committee hearing to allow for a 
     credible review of his judicial philosophy and legal views.
       We would appreciate your personal attention to this matter.
           Sincerely,
     Tom Daschle.
     Patrick Leahy.

  Madam President, as I said before, if they weren't satisfied with 
Miguel Estrada's answers at his hearing which they conducted and which 
they controlled, then they could have held another hearing. Nothing 
would have stopped them. They had the power to do so. They did not. 
They could have asked him followup questions in writing. Only two of 
the Democrats did. The fact of the matter is Estrada did answer the 
questions he was asked by the Democrats and Republicans back in 
September when he had his hearing. My Democratic colleagues are unhappy 
only because Mr. Estrada did not say anything they could use to oppose 
him. In other words, he didn't tell them what they really wanted to 
hear, which would have been mistakes, or some error, or some difference 
in opinion they could then use to oppose him. He answered the 
questions. He just didn't answer them the way they wanted him to 
answer.
  That is why they are trying to engage in this fishing expedition and 
demanding unprecedented, unfettered access to the internal privileged 
memoranda Mr. Estrada offered at the Department of Justice. These 
memoranda are attorney work product done for our country when he worked 
for the Solicitor General. Any lawyer would object to having to hand 
them over. He didn't. He was proud of his work. He didn't care if the 
Government would give them over. But the Government has taken a 
principled position; that is, these internal documents should not be 
turned over to the Senate Judiciary Committee to be used to try to 
thwart the nomination of anybody, or to be used, since they were 
internal confidential documents. They were the work products of 
attorneys within the Solicitor General's Office. It is like asking a 
nominee to give up all of the confidential information his law firm had 
and that he worked on during the time at his law firm that is not in 
the public record. Any lawyer would object to turning that over.
  What are we going to do when we disagree with somebody who worked for 
Senator Hatch? Are we going to ask for all of the internal documents 
the man or woman did while he worked for me that were given for my 
purview as their supervisor, and as their Senator, so I could take 
those documents and determine what to do in the future?
  Let us make it even more clear.
  Should Senator Daschle's staff be subject to this kind of thing?
  Why would the Solicitor General's Office be subject to having to turn 
over confidential documents that were meant to help the Solicitor 
General make decisions on behalf of our country? Can you imagine how 
that would chill the work of the people in that office if attorneys 
there wanted to become judges someday? You don't think that would cause 
them to be putting their fingers up into the wind and asking, How will 
this be interpreted someday if I ever come up for a judicial 
nomination? Hopefully they wouldn't, but, of course, they would. Let us 
be honest about it.
  But here, unlike Senator Daschle's representations--he certainly is a 
friend of mine. He signed this letter. It is the Department of Justice, 
not Mr. Estrada, that holds the memos. The Department has set forth the 
reasons why it is so inappropriate to release these memos. It is 
crystal clear to me--to all seven remaining former Solicitors General 
of the United States,

[[Page S2155]]

and to the Washington Post. It is clear to them, and to the Wall Street 
Journal. It is to just about everyone, it appears, except to my 
Democratic colleagues. Why would they want these memoranda? To see if 
they could find some reason to again attack Mr. Estrada? Is this 
Hispanic gentleman so unqualified they have to go on fishing 
expeditions to try to find things to give him a difficult time with?

  The fact of the matter is he is as qualified as anybody we have had 
before the committee, and the American Bar Association said so. I know 
the Supreme Court Justices feel so. I know a lot of leading Democratic 
lawyers in this town are saying this is the man who deserves 
confirmation. Why is he being treated differently?
  One of my colleagues the other day was complaining he thinks some of 
us over here are calling our Democratic colleagues racists because they 
are against Miguel Estrada. No. Nobody over here has made that comment. 
Nobody over here has even implied that. But what I have said is it 
isn't because he is Hispanic they are against him--it is because he is 
a Hispanic Republican who they think is conservative and who is going 
on a court they think is equally divided--where over 90 percent of the 
cases are unanimous decisions, anyway, in that court.
  It is the worst excuse for voting against him I have ever heard. But 
it is because he is a Hispanic Republican conservative. That is the 
reason they are against him. They are so afraid he might not please 
them when he gets on the Circuit Court of Appeals for the District of 
Columbia.
  I suggest to them he is a great lawyer. He understands precedent. He 
understands the rule of precedent. He understands the rule of what we 
call stare decisis in the law, and he more than told every one of them 
who questioned him over and over that he would apply the law as it is, 
regardless of his personal beliefs.
  What more can anybody say? They are accusing him of not being 
responsive? I am accusing them of not being fair to a Hispanic 
conservative Republican. I do not know what his point of view is on Roe 
v. Wade. To this day, I don't know. I do know he at one time helped the 
National Organization for Women in a serious case, which I think if 
they were offering him as a nominee they would argue means he is all 
right. I do not know what his position is. But I will tell you this. He 
deserves to be confirmed as a jurist on the Circuit Court of Appeals 
for the District of Columbia.
  Let me address in a little more detail why this letter Senator 
Daschle and Senator Leahy sent to President Bush is so outrageous in 
its continuous demand for privileged documents.
  At the outset, I must note the nature of this request for unfettered 
access to the universe of Mr. Estrada's work product is truly 
extraordinary. Contrary to what Senator Daschle and others would have 
us believe, and as I have mentioned before, during the last Congress 
the Senate confirmed Jonathan Adelstein, a former aide to Senator Tom 
Daschle to a position on the FCC. The Republicans did not demand all of 
Mr. Adelstein's memoranda to Senator Daschle on telecommunications 
issues before confirming him, despite the fact they would have been 
useful in determining how Mr. Adelstein would have approached his 
decisions as a commissioner. This is because of the obvious reason that 
to do so would have intruded into the deliberative relationship between 
Mr. Adelstein and Senator Daschle. Nobody here ever wanted to do that, 
even if we didn't like the appointment of Mr. Adelstein. And some on 
our side definitely did not like that appointment. I was not one of 
them, but there was a considerable number who did not agree with this 
appointment for the same reason, and for other equally sound reasons 
that I will detail.

  No Member of this body should advocate holding Mr. Estrada's 
nomination hostage to demands for access to internal, confidential 
documents he authored at the Solicitor General's Office.
  My Democratic colleagues have claimed that the Department of Justice 
has a history of disclosing previously confidential, internal documents 
in connection with confirmation proceedings. This is simply not 
accurate.
  In a letter dated October 8, the Department of Justice points out 
that since the beginning of the Carter administration there have been 
67 former Department of Justice employees confirmed as Federal circuit 
judges--38 of whom, like Mr. Estrada, had no prior judicial experience. 
Eight of these nominees, again like Mr. Estrada, had worked in the 
Solicitor General's Office.
  The Department of Justice could find no record of having produced 
internal, deliberative materials created by the nominee while a DOJ 
lawyer in any of these cases.
  Madam President, one of my Democratic colleagues listed six nominees 
in connection with which he claimed that the Department of Justice 
released confidential, internal documents. In its October 8 letter, the 
Department of Justice explained that of these nominees, the hearings of 
only one--only one; Judge Bork--involved documents from their service 
in the Solicitor General's Office.
  I think there have been those misrepresentations made to Senators in 
their caucus, and they are absolutely false, because I chatted with 
some of my Democratic friends on my way over to the medical liability 
hearing I conducted this afternoon, and they were citing these same 
specious arguments that they had been told. Look, if we are going to 
tell our colleagues things, they ought to be accurate.
  In that one case--Judge Bork's--the Department of Justice produced a 
limited number of documents related to specific topics of interest to 
the committee. The Department of Justice did not agree to the fishing 
expedition that was demanded, and they certainly did not agree to the 
type of fishing expedition that my Democratic colleagues now seek to 
impose upon Mr. Estrada in the Justice Department.
  As the Department of Justice observed:

       The vast majority of memoranda authored or received by 
     Judge Bork when he served as Solicitor General were neither 
     sought nor produced. And the limited category of documents 
     that were produced to the Committee did not reveal the 
     internal deliberative recommendations or analysis of 
     assistance to the Solicitor General regarding appeal, 
     certiorari, or amicus recommendations in pending cases.

  Exactly what they have been asking for here is something that has not 
been done. Yet I know it has been represented to some of my Democratic 
colleagues that the Department of Justice did give these kinds of 
documents. Well, they did not. And I hope my colleagues are watching 
this so they can get the truth.

  This is hardly the unfettered, unprecedented access to privileged 
work product that my Democratic colleagues now seek. And why do they 
seek it for this fellow who has every qualification to be on the 
Circuit Court of Appeals for the District of Columbia, and more, who 
they have not laid a glove on, who they cannot name one thing that 
would refute his nomination other than these specious arguments that he 
has not answered the questions? Sure, he has answered the questions. 
They just don't like the answers.
  My Democratic colleagues also claim that policy considerations weigh 
heavily on the side of disclosure. Curiously, however, they fail to 
mention the letter that the committee received from all seven living 
former Solicitors General of the United States, four of whom are 
leading Democrat lawyers, leading Democrat former Solicitors General.
  I know some of my colleagues on the other side have not heard that 
yet because I asked some of them what is going to happen here and they 
indicated they are probably going to filibuster. And then one of them 
said: Why don't you give up those documents from the Justice 
Department? I said: Well, seven former Solicitors General, four of whom 
are Democrats, said that would be preposterous, that they should not do 
that. Those are confidential. That is the work product of attorneys in 
the Solicitor General's Office.
  You should have seen the surprised look on some of my colleagues' 
faces? ``Really?'' It seems to me, if you are going to argue against a 
person, you ought to at least tell the truth and the facts on the other 
side.
  Why is it they are picking on this young, terrific Hispanic candidate 
for this job, who has the highest rating from the American Bar 
Association, a unanimously well-qualified rating?
  The letter, dated June 24, 2002, was signed by Democrat Seth Waxman--
we

[[Page S2156]]

all respect Seth; he is a great lawyer--Walter Dellinger--one of the 
great teachers in this country; taught at Duke; a fine man; I have 
grown to think a great deal of him as I have listened to him on a 
variety of matters, where in the early days I was not sure I did--Drew 
Days, who is a wonderful African-American former Solicitor General, and 
a very adamant Democrat; all of them are--and Archibald Cox. You have 
to go pretty far to find somebody more prestigious than Archibald Cox. 
All Democrats: Waxman, Dellinger, Days, and Cox. And it was signed, as 
well, by Republicans Ken Starr, Charles Fried, and Robert Bork.
  The letter notes that when each of the Solicitors General made 
important decisions regarding whether to seek Supreme Court review of 
adverse appellate decisions and whether to participate as amicus curiae 
in other high-profile cases, they ``relied on frank, honest and 
thorough advice from [their] staff attorneys like Mr. Estrada. . . .''
  The letter explains that the open exchange of ideas, which must occur 
in such a context, ``simply cannot take place if attorneys have reason 
to fear that their private recommendations are not private at all, but 
vulnerable to public disclosure.''
  The letter concludes that:

       [A]ny attempt to intrude into the Office's highly 
     privileged deliberations would come at a cost of the 
     Solicitor General's ability to defend vigorously the United 
     States' litigation interests--a cost that also would be borne 
     by Congress itself.

  This is a bipartisan group of seven former Solicitors General--all 
the living ones.
  The former Solicitors General are not the only ones who are disturbed 
by my Democratic colleagues' efforts to obtain privileged Justice 
Department memoranda. The editorial boards of two prominent newspapers 
have also criticized the attempt to obtain these records. I am sure 
there are others as well.
  On May 28 of last year, the Washington Post--as I say, hardly a 
bastion of conservative thought--editorialized that the request ``for 
an attorney's work product would be unthinkable if the work had been 
done for a private client. The legal advice by a line attorney for the 
federal government is not fair game either.''
  According to the Washington Post:

       Particularly in elite government offices such as that of 
     the solicitor general, lawyers need to speak freely without 
     worrying that the positions they are advocating today will be 
     used against them if they ever get nominated to some other 
     position.

  Gee, that is a pretty good reason from the Washington Post. I have to 
tell you, that is a wise editorial, and it is true. And it goes along 
with the seven former Solicitors General, four of whom are Democrats.
  The Wall Street Journal also criticized my Democratic colleagues' 
request in two editorials. In its second editorial, which appeared on 
June 11, they called the request ``outrageous'' and noted that the true 
goal was ``to delay, [to] try . . . to put off the day when Mr. Estrada 
takes a seat on the D.C. Circuit Court of Appeals, from which President 
Bush could promote him to become the first Hispanic-American on the 
U.S. Supreme Court.''
  The Wall Street Journal got it pretty right. What is really behind 
all this is to damage this person as much as they can so this Hispanic 
gentleman, with all of these qualifications, can never receive a 
nomination to the U.S. Supreme Court, can never be considered.
  Well, I am doing my best to make sure that does not happen, that he 
will have a chance, just as any other great lawyer in this country, to 
someday be nominated. And that is one reason why I have spent so much 
time on the floor.
  Let me conclude. The bottom line is that my Democratic friends are 
seeking internal, confidential material that any reasonable person, 
thinking about it, would agree should not be delivered by the Justice 
Department to the Senate for partisan purposes--for any purposes.
  Those seven former Solicitors General had no axes to grind. They 
understand how important those documents are, and how important they 
are to be held confidential. Yet my colleagues on the other side keep 
acting as if that is a right they should have no matter what.

  Their attempts have been criticized by all seven living former 
Solicitors General and by at least two major newspapers of which I am 
aware. But more fundamental is the fact that Mr. Estrada does not 
object to turning over these memoranda. He has nothing to hide. It is 
the Department of Justice that has an institutional interest and a 
rightful institutional interest in refusing to comply with my 
Democratic colleagues' request. I, for one, understand and agree with 
the Department's position but the Department's recalcitrance in this 
dispute should neither be imputed to nor held against Mr. Estrada.
  What bothers me is that we have had colleague after colleague from 
the other side come to the floor knowing that these seven Solicitors 
General have given this opinion--knowing it--and have not informed 
their colleagues, some of whom are very mixed up about this. Why? Why 
wouldn't they tell them the truth? I guess to embarrass Mr. Estrada.
  This is a fishing expedition par excellence. It is wrong. They just 
don't want a conservative Hispanic Republican on this court at this 
time, especially one who has all the credentials that Miguel Estrada 
has because he would have to be on anybody's short list for the Supreme 
Court of the United States of America. The longer they can delay him 
from taking his seat, the more difficult it will be for him to have any 
chance of being on the Supreme Court and become the first Hispanic not 
only on the Circuit Court of Appeals for the District of Columbia but 
the first Hispanic to serve on the U.S. Supreme Court.
  I am not saying the court is going to pick Miguel Estrada, but he 
would be on the short list; He is that good. How many Senators have 
argued 15 cases before the Supreme Court, winning 10 of them? How many 
Senators graduated magna cum laude from Columbia or from Harvard, which 
he did? How many Senators held the prestigious position of editor of 
the Harvard Law Review? I don't know of any.
  All I can say is, how many Senators could have served not only a 
circuit court of appeals judge but also as a clerk to a Justice of the 
U.S. Supreme Court, Justice Anthony Kennedy? I don't think any of them. 
Maybe some, but I don't know of them.
  We have reached the point where it is just terrible. We have waited 
long enough. We have been going on this debate now for a week. That is 
longer than most Supreme Court nominations. This man certainly deserves 
to have an up-or-down vote and not a vote on cloture.
  I have been asked by the leader to make the following unanimous 
consent request: I ask unanimous consent that there be an additional 6 
hours for debate on the Estrada nomination; provided further that the 
time be equally divided between the chairman and ranking member or 
their designees, and that following the conclusion of that time, the 
Senate proceed to a vote on the confirmation of the nomination with no 
intervening action or debate.
  The PRESIDING OFFICER (Mr. Alexander). Is there objection?
  Mr. DODD. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. I would modify my unanimous consent request to 8 
additional hours in addition to the 6 I have asked for.
  The PRESIDING OFFICER. Is there objection?
  Mr. DODD. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. Let me modify it to 10 additional hours.
  The PRESIDING OFFICER. Is there objection?
  Mr. DODD. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. Let me go further, let me modify it to 20 additional 
hours, which would probably be close to 3 more days.
  The PRESIDING OFFICER. Is there objection?
  Mr. DODD. Madam President, reserving the right to object, the good 
Senator, my friend from Utah, can add as many hours as he would like, 
but the Senate wants to be heard on this matter. There will be 
objections noted on every request for additional time.
  Mr. HATCH. Is the Senator telling me no matter what I offer that 
Senate Democrats are going to object?

[[Page S2157]]

  Mr. DODD. To try to limit debate on this matter, I tell my good 
friend from Utah, that any effort to limit debate will be objected to.
  Mr. HATCH. Even if I go up to 40 or 50 hours?
  Mr. DODD. This is not about the amount of time. The Senate wishes to 
be heard on this matter. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. I don't blame the distinguished Senator from Connecticut 
for having to make these objections.
  Mr. DODD. I don't blame the good Senator from Utah for making the 
requests.
  Mr. HATCH. I am going to keep making them because it is apparent now 
that we are in the middle of a filibuster. I just want to warn the 
Senate, that is not a good thing. It is not fair to the President. It 
is not fair to Miguel Estrada. It is not fair to the process. It is not 
fair to the judiciary. It is not fair to Senators who have been fair to 
Democrat nominees who were heavily contested where there were no 
cloture votes or no, should I say, real filibuster. It is just plain 
not fair.
  What is so wrong with giving this Hispanic man, who may be 
conservative and who is Republican, an opportunity to serve, to break 
through that intellectual glass ceiling that suddenly seems to have 
been erected and give him an opportunity to serve since he has such 
great ability to be able to do so and has proven it?
  I repeat again, he has the highest recommendations of the American 
Bar Association, the gold standard of my colleagues on the other side. 
They are the ones who said that the ABA recommendations are the gold 
standard, and he holds a unanimously well-qualified, highest rating of 
the American Bar Association. How can we stand here and filibuster 
somebody like that?
  All I can say is that I hope everybody in America is watching us 
because it is just plain not fair nor is it right. If we are going to 
do this, it is a road I surely don't want to see the Senate go down. I 
am hoping that my good friend from Connecticut will talk to his friends 
on the other side and my friends on the other side and get some reason.
  We are now at a new point in history for this body. In the 
confirmation of judicial nominees, this will be the first time in the 
history of this country and of this body that a filibuster will be 
conducted against a circuit court of appeals nominee, a true 
filibuster. I am going to keep the door open for my colleagues to see 
the error of their ways, and hopefully we can resolve this matter 
before the end of this week or in any reasonable time. I offered up to 
50 hours that were objected to. I am surely hoping that my colleagues 
who think a little more clearly on the other side will influence all of 
our other colleagues who are seemingly so caught up in an ideological 
warfare and give this vote to Miguel Estrada who deserves it.

  I notice my colleague has been patiently waiting for a long time. I 
apologize to him, but I had to make these comments.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Madam President, I am not a member of the Judiciary 
Committee. I was in the other body some years ago when I served there. 
But like many of my colleagues here who have served in this institution 
for some time and have been involved in any number of judicial 
nominations, going back now over the past two decades, this is a unique 
moment.
  My friend and colleague from Utah has called this a moment of 
historic significance. I agree with him about that. This is an 
important moment historically. It is an important moment for this 
institution.
  I enjoy carrying every day with me in my pocket a copy of the 
Declaration of Independence and the Constitution given to me some years 
ago by my seatmate, Senator Robert C. Byrd of West Virginia, a rather 
tattered looking copy now. I carry it with me and refer to it quite 
frequently as a reminder to myself of what a wonderful privilege it is 
to serve in this institution and the sacred obligation we bear, each 
and every one of us, when we are sworn in as Members of this body to 
uphold and defend this Constitution.
  There are two important relevant points during the next few moments 
as I share my thoughts on the matter of this nomination. The first 
begins with article III of the Constitution written more than 200 years 
ago by our Founding Fathers. It says:

       The judicial Power of the United States, shall be vested in 
     one supreme Court, and in such inferior Courts as the 
     Congress may from time to time ordain and establish.
       The judges, both of the supreme and inferior Courts, shall 
     hold their offices during good Behaviour . . . [in a sense 
     for life].

  It is a unique office in the judicial branch in this country. Unlike 
article II on the Presidency, in article III, judicial nominations 
serve, during good behavior, for the rest of their lives.
  This nominee is in his early forties, I am told. God willing, Miguel 
Estrada may have as many as 40 or 50 years to serve on the judicial 
branch of this country, either at the circuit court level, or possibly 
the Supreme Court level, having listened to my friend from Utah about 
the possibility of being on a short list.
  So in assessing this nomination and the process, it is critically 
important that my colleagues and others be mindful of this article III, 
section 1 provision, that judges are nominated by the President and 
serve, if confirmed, for life. These are unique positions in the entire 
constellation of offices that could be held in the Federal Government--
for life, during good behavior.
  The second provision that is important to take note of as you engage 
in this discussion is in article II, section 2. I will quote it. 
Article II, section 2, in part, reads, in the second paragraph:

       He [the President] shall have, Power by and with the Advice 
     and Consent of the Senate, to make Treaties, provided two-
     thirds of the Senators present concur; and he shall nominate, 
     and by and with the Advice and Consent of the Senate, shall 
     appoint Ambassadors, other public Ministers and Consuls, 
     judges of the Supreme Court, and all other Officers of the 
     United States. . . .

  By and with the advice and consent of the United States Senate.
  Those two provisions are critically important to keep in mind as you 
listen to this debate and discussion about this particular nomination. 
The debate and discussion, I suggest, goes far beyond the individual 
attributes, qualifications of Miguel Estrada.
  For those reasons, I totally agree with my colleague from Utah that 
this is a historic moment in terms of how we consider this process, 
which has survived for more than 200 years. It has never been changed. 
Over the history of this institution, Senates have taken the role of 
advice and consent to varying degrees with more or less seriousness. 
There have been times when there was hardly any advice and consent, and 
matters went through here rather routinely. I think most historians 
look back on those periods and would define those moments as being less 
than stellar periods of this institution's history. When this 
institution, a coequal branch of Government with the article I and 
article III branches of government, has taken its advise and consent 
role seriously--particularly with lifetime appointments--then I think 
we have lived up to the Founding Fathers' ambitions for this body.
  I have voted for almost every Presidential nominee to serve in a 
cabinet or ambassadorial post. I received significant criticism when I 
voted for John Tower more than a decade ago during the administration 
of the first President Bush. I voted for John Ashcroft to be Attorney 
General of the United States and received substantial criticism, and 
still do, to this day from people in my own party. I did so not because 
I agreed with John Ashcroft or with John Tower, but I happen to believe 
that, when it comes to cabinet officers or ambassadors for periods of 
limited duration, Presidents ought to be able to have their counsel and 
official team to advance the ideas and values they articulated during 
their campaigns and which the American public supported through the 
election process. That is not to say I would vote for every single 
nominee of whatever kind, because I take the advice and consent role 
seriously.
  I have always felt when it comes to judicial nominations, because of 
that article III, section 1 language that gives them the right to serve 
for life, far beyond the tenure of the President who appoints them or 
the Congress that confirms them, far beyond any tenure of anyone who 
serves in any office in the Federal Government, there is a heightened 
degree of responsibility

[[Page S2158]]

to fulfill the article II, section 2 provisions of the Constitution to 
provide our advice and consent.
  So it is with that background I come to this nomination, not because 
I want to necessarily become embroiled in the conditions or 
qualifications of Miguel Estrada, but because I am deeply concerned we 
are getting away from fulfilling the Senate's historic responsibilities 
of fulfilling its article II, section 2 functions and responsibilities.
  So I rise to express my opposition to this confirmation and to vote, 
when the matter occurs, against this nomination, for one simple reason: 
The administration and Mr. Estrada have failed to provide this Member 
and this institution and its Members with sufficient evidence to 
demonstrate that Mr. Estrada would fairly and objectively decide cases 
that will come before the Court of Appeals for the DC Circuit.

  I have no doubt in my mind, nor should anyone, that Mr. Estrada was 
not chosen in some sort of a blind lottery. His name wasn't just picked 
out of the blue because we thought we would like to have a Hispanic on 
the bench--he has a Hispanic heritage; therefore, we will take Mr. 
Estrada. I promise you there were people who questioned Mr. Estrada 
about his views before his nomination was made by the President of the 
United States. Let there be no doubts or illusions about that. The 
question remains, then, if the President is satisfied this nominee is 
qualified to sit on the District's Circuit Court of Appeals, why should 
those of us who have to vote on this nomination not also be entitled to 
the same opportunity to be full informed about his views? Not about 
particular cases that may or could come before the court. I have always 
felt we have no business inquiring of a judicial nominee what his or 
her views might be about a pending matter that might come before them. 
But on general questions about their judicial philosophy, their 
demeanor, how a nominee would conduct him or herself as a judge, those 
are entirely legitimate issues. In fact, we bear a responsibility to 
see that those questions are raised--certainly, just as the President 
or his appointees have questioned Mr. Estrada on those matters. Before 
they sent his name up here, I promise you they did that. Certainly 
those of us who have the responsibility under the Constitution to 
provide our advice and consent, and ultimately our votes, should be 
entitled to the same opportunity. We have been denied that opportunity. 
But whatever reasons and motivations there may be this is a process 
issue that should not be tolerated.
  To suggest a nomination can be made by the President and sent to this 
body, and that this body should confirm such a nominee without having a 
meaningful opportunity to solicit information from the nominee is a 
precedent I don't think we ought to make. That is why I agree with my 
colleague from Utah that this is a historic moment. We should not walk 
away from our responsibility simply because Mr. Estrada is Hispanic 
and, apparently, of good background. I am not arguing about all of the 
good things I've heard about Mr. Estrada. What concerns me is the 
President and the nominees, or the appointees at the Justice 
Department, have had an opportunity to inquire of Mr. Estrada about his 
views, and that this body--a coequal branch--the Constitution requires 
we who exercise our advice and consent function are being denied that 
same opportunity. So no one that I know of--maybe there are some, but 
certainly not this Member--is questioning the accomplishments of Mr. 
Estrada. What many in the Chamber have questioned, however, is whether 
Mr. Estrada is likely to be a fair and unbiased appeals court judge for 
life.
  This is an extremely important nomination for the reasons I have just 
tried to articulate. The Court of Appeals for the District of Columbia 
is an important court that has exclusive jurisdiction to review many 
Federal administrative law questions. In a sense, the Court of Appeals 
for the District of Columbia is the Nation's second highest court, 
because its decisions can profoundly impact how the Federal Government 
conducts the people's business. The decisions made by the court of 
appeals affect all of us across the country. This is not a debate, as I 
said a moment ago, about whether Mr. Estrada should be appointed to 
serve as a trial judge where he might gain some judicial 
experience, although were he to go through the process and refuse to 
respond to the questions, I would have the same concerns, even for a 
district court nominee. I think the precedent is dangerous. When the 
President nominates someone to serve as an appellate court judge and we 
allow the nonanswers to stand, the matter is even that much more 
serious because it is an appellate court.

  Rather, this is a debate about whether Mr. Estrada, who has never 
served as a judge anywhere before, should be appointed as a judge who 
will judge judges and issue final decisions on a wide-ranging set of 
legal questions that will have national impact.
  My colleague from New York, Senator Schumer, as well as others who 
are members of the Judiciary Committee, has pointed out Mr. Estrada is 
a young man, as I mentioned earlier. He is in his early forties. If 
confirmed, he may spend the next half century making decisions that 
will affect our children, our grandchildren, and generations to come. 
This is a lifetime appointment.
  Again, I emphasize that point under article III, section 1. There is 
no going back if we find out Mr. Estrada is not a good judge. This vote 
is final, and if we confirm Mr. Estrada, we are all going to have to 
live with that decision the rest of our lives. We are being asked to 
confirm Mr. Estrada even though we have been provided with virtually no 
information about his judicial philosophy or judicial competency.
  We have been offered some evidence that Mr. Estrada is a good lawyer, 
but good lawyers do not necessarily make good judges and, in my view, 
Mr. Estrada, like all judicial nominees, has an obligation to show the 
Senate he can be a good judge. He showed the President he can be a good 
judge, obviously. He showed the staff at the Justice Department he 
could be a good judge. But he has not shown the Members of this body, 
nor has the American public had the opportunity, through us, to draw 
that same conclusion.
  We are not hiring a lawyer, we are confirming a judicial nomination. 
One of the fundamental differences between lawyers and judges is that 
lawyers are supposed to zealously represent the interests of their 
clients, but judges are supposed to be balanced, of even temperament, 
fair, impartial. We want lawyers to be passionate in advocating the 
causes of their clients, defending those who deserve to be defended and 
prosecuting those who deserve to be prosecuted. We have an entirely 
different expectation of judges in terms of demeanor and behavior.
  Again, the fact that Mr. Estrada is a very good lawyer, a passionate 
advocate on behalf of his clients, is certainly a good recommendation, 
but not necessarily a recommendation that he bears the temperament to 
sit as a judge on the circuit court of appeals. That may be the case, 
but when we are denied the opportunity to inquire of him about his 
judicial temperament, about his philosophy, then, in my view, we really 
don't know. And if we confirm a nomination when we really don't know we 
are setting a precedent that I think is dangerous indeed.
  Mr. Estrada, apparently on the advice of the administration, has 
chosen not to respond to the Senate's questions, refusing to answer 
questions on what he thinks about legal issues. He was asked by Senator 
Schumer, I am told, in the committee to name one Supreme Court decision 
over the last 40 or 50 years with which he disagreed. I do not know of 
a person in this Chamber who could not answer that question in about 2 
minutes, particularly those who are members of the bar, attorneys by 
profession. Certainly, we all know of cases, maybe even cases we 
learned when we were in law school that we thought were wrong.

  If Mr. Estrada, this terrific lawyer, a graduate of Harvard Law 
School, Phi Beta Kappa, cannot name one Supreme Court case with which 
he disagrees, then we are getting a message: I am not going to answer 
your questions about these matters, period. I think it is dangerous to 
allow nominees to refuse to respond.
  My colleague from Utah, the chairman of the committee, Senator Hatch, 
once noted that when it comes to judicial nominations:

       The Senate has a duty not to be a rubberstamp.


[[Page S2159]]


  I could not agree more with my friend and colleague from Utah on that 
point. This is not a trivial matter to be taken lightly. I believe it 
would be irresponsible to vote to confirm a judicial nominee without 
knowing something about his or her judicial temperament.
  Not every judicial nominee comes to the Senate with years of 
experience on the bench, but when a nominee, such as Miguel Estrada, 
has no judicial experience, we bear a responsibility to look for other 
evidence of his demeanor and his ability to put aside rancor in favor 
of balanced judicial reasoning.
  I would like to add that when nominees with similar backgrounds as 
Mr. Estrada have provided us with evidence, they have been confirmed by 
the Senate regardless of their ideologies. It was a few months ago the 
Senate Judiciary Committee and the full Senate voted unanimously to 
confirm Professor Michael McConnell as a judge on the Tenth Circuit 
Court of Appeals. Despite his impressive credentials as a lawyer and 
scholar, he had never been a judge before and, as we all know, a number 
of groups were concerned that his clearly conservative ideologies would 
influence his decisions on the bench.
  However, after Professor McConnell openly and extensively discussed 
his opinions on issues, such as federalism and Roe v. Wade, in his 
hearing before the Judiciary Committee, then the full Senate, Democrats 
as well as Republicans, agreed that he would fulfill his duties as a 
judge impartially regardless of his personal views.
  That is a recent example of a nominee unanimously confirmed by this 
body. But Professor McConnell had the courage of his convictions. He 
was not ashamed to stand up and say what he believed and why he 
believed it. As a result of that kind of forthrightness, this body 
unanimously confirmed him to be a circuit court judge. He had no 
judicial experience, but he was not ashamed of who he was or in what he 
believed.
  I do not know Mr. Estrada, and I presume he is not ashamed of his 
views, but the reluctance to share those views with the membership of 
the Senate, with the members of the Judiciary Committee, is troubling, 
to put it mildly. When a nominee will not answer questions, when they 
cannot name a single Supreme Court case with which they disagree, then 
we begin to get concerned that this is a stonewalling operation.
  During a hearing before the Senate Judiciary Committee, Mr. Estrada 
refused to answer a long list of questions about his positions on 
important legal matters. Mr. Estrada refused to explain whether he is 
inclined to support the interests of business, States rights, the 
rights of workers, consumers, or children. He refused to comment on 
whether he would approve the administration's environmental rollbacks. 
He even declined to give his opinion on a wide range of constitutional 
issues--the merits of Roe v. Wade, the constitutionality of affirmative 
action programs, the death penalty, employment discrimination against 
homosexuals, the balance between environmental protection and property 
rights, the public's right to know about health and safety standards 
versus a litigant's right to privacy in product liability cases.
  Is there any doubt that the President or his appointees or staff at 
the Justice Department have a good idea of how Mr. Estrada feels about 
those questions? Does anyone believe for a second they would send his 
nomination to the Senate without having some idea of where he stood on 
these questions? And do not I as a Member of this body, in a coequal 
branch of Government, have a right, before I cast my vote, to at least 
have the opportunity to raise these questions and get some answers to 
them? I think I do.
  If we set the precedent of saying you can be nominated by a President 
of any party, that your appointed staff at the Justice Department can 
ask these questions and know the answers, but Members of the Senate, 
Democrats or Republicans, have no right to solicit or find out this 
information, that is dangerous. That is precedent setting. That is 
troubling, indeed.
  Regardless of who the nominee is, regardless of who the President is 
who sends a nominee to this Chamber, if we set the precedent that 
people can go through the confirmation process and not share with us 
their general views--not their views on how they would rule on 
individual pending cases; I would strenuously object to questions like 
that--but to get some sense of the nominee's demeanor, judicial 
philosophy and ideas. Much to the great credit of Professor McConnell, 
with whom I would disagree on many matters, I believe, I admire the 
fact he had the intestinal fortitude to stand up and say: This is what 
I believe.
  As a result of that, the full support of the Senate. But I am deeply 
troubled with the idea that a person can stonewall, not answer these 
questions, and then be confirmed by this body. This issue goes far 
beyond Miguel Estrada. Our failure to understand that, I think, is 
dangerous.
  When asked about each and every one of the issues I've discussed, Mr. 
Estrada refused to articulate an opinion to the members of the 
Judiciary Committee. It ought to be troubling to every one of us, 
regardless of our views, to set that precedent. It is troubling, to say 
the least, that a prospective appellate court judge and one who 
clearly, should a vacancy arise in the Supreme Court, according to my 
friend from Utah--and I believe he is correct--will be on the short 
list to be on the Supreme Court--that he would have no opinions on any 
of these matters.
  If Mr. Estrada does indeed have opinions on these issues, it is even 
more troubling that he refuses to make those opinions known, not just 
to me or members of the committee but to the American public who have 
sent us to the Senate to represent them. They have a right to know how 
this individual would at least view some of these basic fundamental 
constitutional questions.
  Instead of honestly and openly answering questions about his judicial 
philosophy, Mr. Estrada decided to keep quiet, to take his chances, and 
roll the dice on the floor of the Senate, hoping that the dice would be 
loaded in his favor and that there would be no way to stop this 
nomination from going forward.
  Senator Schumer once again pointed out that if we confirm Miguel 
Estrada, we are ratifying a don't-ask-don't-tell policy for judicial 
nominees. Tragically, I think that characterization is correct.
  Mr. Estrada sat before the Judiciary Committee and said nothing, 
believing if he did not say a word, the majority of the Senate would 
rubberstamp his nomination. And in turn, the administration has 
willingly participated in this conspiracy of silence to deny the Senate 
and the American people access to information by refusing to release 
copies of Mr. Estrada's legal memoranda from his time in the Solicitor 
General's Office.
  I listened to my colleague from Utah go on at some length about this 
point. There is no legal requirement that memoranda from the Solicitor 
General's Office be withheld from the Senate. It is true that previous 
Solicitors General have said they would prefer that these documents not 
be forwarded to the Senate for the reason that this might make it 
difficult in future years to get the kind of candid assessments by 
Justice Department lawyers. I am somewhat sympathetic to that argument 
forwarded by my colleague from Utah, but in the absence of any other 
information it is more necessary to see documents. Certainly, if a 
person is forthcoming in sharing their views and thoughts, then the 
necessity to go and solicit documents from the Justice Department where 
a nominee may have worked before ought to be avoided, but the issue 
arises when a nominee refuses to answer any questions. Where there are 
no other papers, no documents, very few written materials that the 
nominee has produced, the value of these legal memoranda is heightened. 
So that in the absence of being forthcoming when the questions are 
asked, where does one go? What do I rely on? Do I say to my 
constituents back home that I am sorry he would not say anything and, 
by the way, there is no legal requirement but the Solicitor General's 
Office won't share information either?
  Now, based on some research that has been done, there is precedent 
for the Solicitor General sharing information, that is really true, and 
I will leave it to my friend and former chairman of the

[[Page S2160]]

Judiciary Committee, the Senator from Vermont, Mr. Leahy, to comment 
specifically on that.

  Going back a number of years ago, the Judiciary Committee sought and 
received a number of documents, I believe during the Bork nomination 
and several others. I think Judge Trott was another case. There were 
two or three others who had worked in the Solicitor General's Office or 
other offices at the Department of Justice, and they shared with the 
Senate Judiciary Committee the work product of those employees. Those 
documents were used by the Judiciary Committee during the confirmation 
process.
  I do not disagree with the Senator from Utah that there are some 
concerns about going that route for the reasons I have stated, but 
there is precedent where that information has been made available to 
the Senate Judiciary Committee when considering nominations for the 
Federal judiciary.
  Mr. HATCH. Will the Senator yield on that point?
  Mr. DODD. Let me finish my statement, and I will come back because I 
am going to put in the Record a large number of documents that make 
that case.
  Mr. HATCH. I just ask the Senator to yield on that narrow point.
  Mr. DODD. I would like to finish my statement rather than engage in a 
debate on this particular point.
  Mr. HATCH. I do not want to debate. I just want to make one point.
  Mr. DODD. I yield for one question.
  Mr. HATCH. Is the Senator aware that I just went through that the 
Justice Department proved that these types of documents have never been 
given to anybody?
  Mr. DODD. I was not going to dwell on the point.
  Mr. HATCH. We go over and over it.
  Mr. DODD. Then I will go over and over it. In the past documents were 
submitted to the Senate Judiciary Committee.
  Mr. HATCH. No, they weren't.
  Mr. DODD. There are four pages of list here that go on. They sent us 
a long list.
  Mr. HATCH. Is the Senator aware of the list from the Justice 
Department?
  Mr. DODD. In fact, I have a letter from the Justice Department dated 
May 10, 1988, signed by Thomas M. Boyd, Acting Assistant Attorney 
General, in which he says to Chairman Biden:

       As assistant attorney general John Bolton noted in an 
     August 24, 1987, letter to you, many of the documents 
     provided to the committee reflect or disclose purely internal 
     deliberations within the Executive Branch, the work product 
     of attorneys in connection with government litigation or 
     confidential legal advice received from or provided to client 
     agencies within the Executive Branch. We provided these 
     privileged documents to the committee in order to respond 
     fully to the Committee's request and to expedite the 
     confirmation process.

  Would you send them back, in essence. These were documents in the 
committee that were provided by the Solicitor General's Office, and the 
assistant attorney general is asking for them back. What do you mean, 
they had not been sent up? They were.
  I do not want to dwell on this point, but when we get no information 
from the nominee about where he stands on important matters--by the 
way, here is a list of the documentation in that particular case that 
goes on for four pages. I ask unanimous consent that these matters be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         U.S. Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                Washington, DC, September 2, 1987.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Attached is one set of copies of 
     documents assembled by the Department in response to your 
     August 10, 1987 request for documents relating to the 
     nomination of Robert Bork to the supreme court of the United 
     States, and provided in response to requests made to date by 
     Committee staff. These documents are being provided under the 
     conditions stated in my August 24, 1987 letter to you.
           Sincerely,
                                                   John R. Bolton,
                                       Assistant Attorney General.
       Attachments.
                                                      U.S. Senate,


                                   Committee on the Judiciary,

     Washington, DC, August 10, 1987.
     Hon. Edwin Meese III,
     Attorney General, Department of Justice,
     Washington, DC.
       Dear General Meese: As part of its preparation for the 
     hearings on the nomination of Judge Robert Bork to the 
     Supreme Court, the Judiciary Committee needs to review 
     certain material in the possession of the Justice Department 
     and the Executive Office of the President.
       Attached you will find a list of the documents that the 
     Committee is requesting. Please provide the requested 
     documents by August 24, 1987. If you have any questions about 
     this request, please contact the Committee staff director, 
     Diana Huffman, at 224-0747.
       Thank you for your cooperation.
           Sincerely,
                                             Joseph R. Biden, Jr.,
                                                         Chairman.

Request for Documents Regarding the Nomination of Robert H. Bork to Be 
          Associate Justice of the United States Supreme Court

       Please provide to the Committee in accordance with the 
     attached guidelines the following documents in the 
     possession, custody or control of the United States 
     Department of Justice, the Executive Office of the President, 
     or any agency, component or document depository of either 
     (including but not limited to the Federal Bureau of 
     Investigation):
       1. All documents generated during the period from 1972 
     through 1974 and constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the so-
     called Watergate affair.
       2. Without limiting the foregoing, all documents generated 
     during the period from 1972 through 1974 and constituting, 
     describing, referring or relating in whole or in part to any 
     of the following:
       a. Any communications between Robert H. Bork and any person 
     or entity relating in whole or in part to the Office of 
     Watergate Special Prosecution Force or its predecessors- or 
     successors-in-interest;
       b. The dismissal of Archibald Cox as Special Prosecutor;
       c. The abolition of the Office of Watergate Special 
     Prosecution Force on or about October 23, 1973;
       d. Any efforts to define, narrow, limit or otherwise 
     curtail the jurisdiction of the Office of Watergate Special 
     Prosecution Force, or the investigative or prosecutorial 
     activities thereof;
       e. The decision to reestablish the Office of Watergate 
     Special Prosecution Force in November 1973;
       f. The designation of Mr. Leon Jaworski as Watergate 
     Special Prosecutor;
       g. The enforcement of the subpoena at issue in Nixon v. 
     Sirica;
       h. Any communications on October 20, 1973 between Robert H. 
     Bork and then-President Nixon, Alexander Haig, Leonard 
     Garment, Fred Buzhardt, Elliot Richardson, or William 
     Ruckelshaus;
       1. Any communications between Robert H. Bork and then-
     President Nixon, Alexander Haig and/or any other federal 
     official or employee on the subject of Mr. Bork and a 
     position or potential position as counsel to President Nixon 
     with respect to the so-called Watergate matter;
       m. Any action, involvement or participation by Robert H. 
     Bork with respect to any issue in the case of Nader versus 
     Bork, 366 F. Supp. 104 (D.D.C. 1975), or the appeal thereof;
       n. Any communication between Robert H. Bork and then-
     President Nixon or any other federal official or employee, or 
     between Mr. Bork and Professor Charles Black, concerning 
     Executive Privilege, including but not limited to Professor 
     Black's views on the President's ``right'' to confidentiality 
     as expressed by Professor Black in a letter or article which 
     appeared in the New York Times in 1973 (see Mr. Bork's 
     testimony in the 1973 Senate Judiciary Committee hearings on 
     the Special Prosecutor);
       O. The stationing of FBI agents at the Office of Watergate, 
     Special Prosecution Force on or about October 20, 1973, 
     including but not limited to documents constituting, 
     describing, referring or relating to any communication 
     between Robert H. Bork, Alexander Haig, or any official or 
     employee of the Office of the President or the Office of the 
     Attorney General, on the one hand, and any official or 
     employee of the FBI, on the other; and
       p. The establishment of the Office of Watergate Special 
     Prosecution Force, including but not limited to all documents 
     constituting, describing, referring or relating in whole or 
     in part to any assurances, representations, commitments or 
     communications by any member of the Executive Branch or any 
     agency thereof to any member of Congress regarding the 
     independence or operation of the Office of Watergate Special 
     Prosecution Force, or the circumstances under which the 
     Special Prosecutor could be discharged.
       3. The following documents together with any other 
     documents referring or relating to them:
       a. The memorandum to the Attorney General from then-
     Solicitor General Boark, dated August 21, 1973, and its 
     attached ``redraft of the memorandum intended as a basis for 
     discussion with Archie Cox'' concerning ``The Special 
     Prosecutor's authority'' (typeset copies of which are printed 
     at pages 287-288 of the Senate Judiciary Committee's 1973 
     ``Special Prosecutor'' hearings);
       b. The letter addressed to Acting Attorney General Bork 
     from then-President Nixon, dated October 20, 1973., directing 
     him to discharge Archibald Cox;
       c. The letter addressed to Archibald Cox from then-Acting 
     Attorney General Bork,

[[Page S2161]]

     dated October 20, 1973, discharging Mr. Cox for his position 
     as Special Prosecutor;
       d. Order No. 546-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Abolishment of 
     Office of Watergate Special Prosecutor Force'';
       e. Order No. 547-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Additional 
     Assignments of Functions and Designation of Officials to 
     Perform the Duties of Certain Offices in Case of Vacancy, or 
     Absence therein or in Case of Inability or Disqualification 
     to Act'';
       f. Order No. 551-73, dated November 2, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Establishing 
     the Office of Watergate Special Prosecution Force'';
       g. The Appendix to Item 2.f., entitle ``Duties and 
     Responsibilities of Special Prosecutor'';
       h. Order No. 552-73, dated November 5, 1973, signed by 
     then-Acting Attorney General Bork, designating ``Special 
     Prosecutor Leon Jaworski the Director of the Office of 
     Watergate Special Prosecution Force'';
       i. Order No. 554-73, dated November 19, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Amending the 
     Regulations Establishing the Office of Watergate Special 
     Prosecution Force''; and
       j. The letter to Leon Jaworski, Special Prosecutor, from 
     then-Acting Attorney General Bork, dated November 21, 1973, 
     concerning Item 2.i.
       4. All documents constituting, describing, referring or 
     relating in whole or in part to any meetings, discussions and 
     telephone conversations between Robert H. Bork and then-
     President Nixon, Alexander Haig or any other federal official 
     or employee on the subject of Mr. Bork's being considered or 
     nominated for appointment to the Supreme Court.
       5. All documents generated from 1973 through 1977 and 
     constituting, describing, referring or relating in whole or 
     in part to Robert H. Bork and the constitutionality, 
     appropriateness or use by the President of the United States 
     of the ``Pocket Veto'' power set forth in Art. I, section 7, 
     paragraph 2 of the United States Constitution, including but 
     not limited to all documents constituting, describing, 
     referring or relating in whole or in part to any of the 
     following:
       a. The decision not to petition for certiorari from the 
     decision of the United States Court of Appeals for the 
     District of Columbia Circuit in Kennedy v. Sampson, 511 F.2d 
     430 (1947);
       b. The entry of the judgment in Kennedy v. Jones, 412 F. 
     Supp. 353 (D.D.C. 1976); and
       c. The policy regarding pocket vetoes publicly adopted by 
     President Gerald R. Ford in April 1976.
       6. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the 
     incidents at issue in United States v. Gray, Felt & Miller, 
     No. Cr. 78-00179 (D.D.C. 1978), including but not limited to 
     all documents constituting, describing, referring or relating 
     in whole or in part to any of the exhibits filed by counsel 
     for Edward S. Miller in support of his contention that Mr. 
     Bork was aware in 1973 of the incidents at issue.
       7. All documents constituting, describing or referring to 
     any speeches, talks, or informal or impromptu remarks given 
     by Robert H. Bork on matters relating to constitutional law 
     or public policy.
       8. All documents constituting, describing, referring or 
     relating in whole or in part either (i) to all criteria or 
     standards used by President Reagan in selecting nominees to 
     the Supreme Court, or (ii) to the application of those 
     criteria to the nomination of Robert H. Bork to be Associate 
     Justice of the Supreme Court.
       9. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and any study 
     or consideration during the period 1969-1977 by the Executive 
     Branch of the United States Government or any agency or 
     component thereof of school desegregation remedies. (In 
     addition to responsive documents from the entities identified 
     in the beginning of this request, please provide any 
     responsive documents in the possession, custody or control of 
     the U.S. Department of Education or its predecessor agency, 
     or any agency, component or document depository thereof.)
       10. All documents constituting, describing, referring or 
     relating in whole or in part to the participation of 
     Solicitor General Robert H. Bork in the formulation of the 
     position of the United States with respect to the following 
     cases:
       a. Evans v. Wilmington School Board, 423 U.S. 963 (1975), 
     and 429 U.S. 973 (1976);
       b. McDonough v. Morgan, 426 U.S. 935 (1976);
       c. Hills v. Gautreaux, 425 U.S. 284 (1976);
       d. Pasadena City Board of Education v. Spangler, 427 U.S. 
     424 (1976);
       e. Roemer v. Maryland Board of Public Education, 426 U.S. 
     736 (1976);
       f. Hill v. Stone, 421 U.S. 289 (1975); and
       g. DeFunis v. Odegaard, 416 U.S. 312 (1975).


                               GUIDELINES

       1. This request is continuing in character and if 
     additional responsive documents come to your attention 
     following the date of production, please provide such 
     documents to the Committee promptly.
       2. As used herein, ``document'' means the original (or an 
     additional copy when an original is not available) and each 
     distribution copy of writings or other graphic material, 
     whether inscribed by hand or by mechanical, electronic, 
     photographic or other means, including without limitation 
     correspondence, memoranda, publications, articles, 
     transcripts, diaries, telephone logs, message sheets, 
     records, voice recordings, tapes, film, dictabelts and other 
     data compilations from which information can be obtained. 
     This request seeks production of all documents described, 
     including all drafts and distribution copies, and 
     contemplates production of responsive documents in their 
     entirety, without abbreviation or expurgation.
       3. In the event that any requested document has been 
     destroyed or discarded or otherwise disposed of, please 
     identify the document as completely as possible, including 
     without limitation the date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and the reason for 
     disposal of the document and the identity of all persons who 
     authorized disposal of the document.
       4. If a claim is made that any requested document will not 
     be produced by reason of a privilege of any kind, describe 
     each such document by date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and set forth the 
     nature of the claimed privilege with respect to each 
     document.

  Mr. DODD. I ask unanimous consent that the letter to Senator Biden 
from Thomas Boyd dated May 10, 1988, requesting these materials back 
from the Senate Judiciary Committee also be printed in the Record at 
this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Department of Justice,


                                Office of Legislative Affairs,

                                     Washington, DC, May 10, 1988.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Biden: This letter requests that the 
     Committee return to the Justice Department all copies of 
     documents produced by the Department in response to Committee 
     requests for records relating to the nomination of Robert 
     Bork to the Supreme Court. As Assistant Attorney General John 
     Bolton noted in an August 24, 1987, letter to you, many of 
     the documents provided the Committee, ``reflect or disclose 
     purely internal deliberations within the Executive Branch, 
     the work product of attorneys in connection with government 
     litigation or confidential legal advice received from or 
     provided to client agencies within the Executive Branch.'' We 
     provided these privileged documents to the Committee in order 
     to respond fully to the Committee's request and to expedite 
     the confirmation process.
       Although the Committee's need for these documents has 
     ceased, their privileged nature remains. As we emphasized in 
     our August 24, 1987, letter, production of these documents to 
     the Committee did not constitute a general waiver of claims 
     of privilege. We therefore request that the Committee return 
     all copies of all documents provided by the Department to the 
     Committee, except documents that are clearly a matter of 
     public record (e.g., briefs and judicial opinions) or that 
     were specifically made a part of the record of the hearings.
       Please contact me if you have any questions. Thank you for 
     your cooperation.
           Sincerely,
                                                   Thomas M. Boyd,
                                Acting Assistant Attorney General.

  Mr. DODD. So there is precedent for this. I do not want to dwell on 
that point because we ought to avoid that at least when we get nominees 
who are more forthcoming when questions are asked.
  I will wrap this up because I see my colleague from New Jersey is in 
the Chamber and wants to speak on this matter. The Senator from 
Vermont, who knows far more about this than this Senator does, is also 
present.
  Since the matter was raised by my friend and colleague from Utah 
earlier in his remarks, I thought it was appropriate to address and 
respond to the issue of whether or not documents from the Solicitor 
General's Office had, in fact, been provided to the Judiciary Committee 
in the past. Of course, there is ample evidence that they have been.
  I do not blame Mr. Estrada for this, by the way. These are not his 
documents. These documents are the documents of the Solicitor General's 
Office, and therefore the allegation that Mr. Estrada is unwilling to 
provide these documents is not fair. It is the Department of Justice 
that has made that decision. I am disappointed that Mr. Estrada has not 
been willing to respond to Senators' questions about judicial 
philosophy and temperament but, rather, refused to answer any 
questions. That is a separate matter, but I thought it was important 
for our colleagues to make the distinction.
  It is unfortunate this has come to be seen as a partisan debate. This 
should not be the case. This ought to be a matter of concern to every 
single Member. If this is the way we conduct these judicial nominations 
in the future and this becomes the precedent, then I think this 
institution suffers terribly in terms of fulfilling its article II, 
section 2, requirements of the advice and

[[Page S2162]]

consent when the President submits nominations. Of course, for lifetime 
appointees, this matter becomes even that much more serious.
  I will not take more of the Senate's time on my feelings on this. I 
do not speak on all of these matters. I pointed out earlier that this 
Member has, in the overwhelming majority of cases, voted to confirm 
nominees from all these administrations over the years where the 
nominations have been for a limited duration. I pointed out I voted for 
John Tower and John Ashcroft. I believe Presidents ought to have their 
teams. I recall very vividly, with great warmth, voting for the 
Presiding Officer when he was considered as a nominee before this body.
  When someone gets elected President, they ought to have their team. 
The public ought to understand that when the President appoints someone 
to a high office, a Cabinet office or an ambassador, that certainly 
requires the advice and consent of the Senate. But for a lifetime 
appointee, particularly a young man of 40 years of age, who could be on 
that bench for 40 or 50 years, far beyond the tenure of this 
President's term of office, far beyond the tenure of probably every 
single Member who would vote on his nomination, that rises to a 
different level, with all due respect, to the other nominees who come 
before this institution.
  The advice and consent function on a lifetime appointment requires a 
heightened degree of responsibility, in my view, and when nominees will 
not answer questions about judicial temperament and demeanor, it is 
deeply troubling to me. Conservatives and liberals ought to join 
together in saying: I am sorry, but, Mr. President, if you send us 
nominees and instruct them to do this, then all of us will join 
together against that. Regardless of whether it is a Democrat or 
Republican in the White House, as Senators, as Members of a coequal 
branch of Government, we cannot fulfill our constitutional 
responsibility if that is the way in which the President conducts his 
business.
  This goes beyond Miguel Estrada. I regret he has been caught in this. 
He has, for whatever reason, decided to be used in this way. That is 
terribly unfortunate for him but far more unfortunate for this 
institution and the future of judicial nominations if, in fact, this 
becomes the platelet on how you get confirmed for a lifetime 
appointment: Don't answer any questions; don't respond to issues about 
constitutionality of various provisions.
  I repeat: I have on numerous occasions voted for judicial nominees 
with whom I have disagreed. But because they have been forthcoming, 
they have been honest about their views, because they have convinced me 
they would be impartial and fair sitting on a bench, I have never used 
the litmus test whether I ideologically disagree with a judicial 
nominee. But when you do not answer my questions or the questions of my 
colleagues on whom I rely under our committee system, that troubles 
this Senator deeply. Whether this nominee was made by a Democratic 
President or a Republican President, I would stand here and make the 
same case, that this institution and its Members have an obligation in 
this historic hour to say to the President, this is not the way to do 
business around here. You cannot send up nominees in this manner and 
expect this body to rubber stamp a nomination and to send the nominee 
off for the many years he may serve, making decisions without any 
knowledge of whether or not he will conduct his affairs as a judge in a 
way that will bring credit to himself and to the federal courts, let 
alone the institution which is responsible for ultimately voting to 
confirm this nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I agree with my colleague that what he was saying is true, 
as I am sure he intended it to be. He is a dear colleague and close 
friend. I agree he has an open mind with regard to nominees and has 
exhibited that through the years. He has been totally misled on these 
matters.
  That is something that is starting to bother me. I have run into a 
number of Democrat Senators who have spouted the same things that are 
just plain not right or factual--not everything he said.
  But he is correct, I did make a speech at one time where I said we 
should not rubber stamp these people, and I still believe that. 
However, this is not rubber stamping.
  First, it was 516 days before Miguel Estrada even got his hearing. 
For those who think he did not answer any questions, take a look at 
this hearing record. My gosh, I can hardly lift the doggone thing. He 
answered question after question after question. He just did not answer 
questions the way they wanted. I suspect, as is very evident here 
today, and evident throughout this matter, they do not have anything on 
him.
  The distinguished Senator from Vermont wanted to speak and I am 
prepared to turn the time over to him when he returns. I ask unanimous 
consent that after my remarks the distinguished Senator from New 
Jersey--how much time does the Senator desire?
  Mr. CORZINE. About 30 minutes.
  Mr. ALLARD. I need about 15 minutes.
  Mr. HATCH. I ask unanimous consent that the distinguished Senator 
from New Jersey immediately follow me for 30 minutes, the distinguished 
Senator from Colorado follow the distinguished Senator from New Jersey 
for 15 minutes, and that the distinguished Senator from Alabama be 
permitted then to speak.
  Mr. REID. I have no objection, but just so we have some idea, and I 
really don't care how long the Senator from Alabama speaks, but do you 
how long you might speak tonight?
  Mr. SESSIONS. Probably 15 minutes.
  Senator Dodd mentioned some documents. Have those been offered for 
the Record?
  Mr. DODD. Yes.
  Mr. SESSIONS. I would be pleased to take a look at those.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I tell my dear colleague from Connecticut 
that I think he has been very badly misled by some of the people on his 
side. Mr. Estrada waited over 500 days for a hearing conducted by 
Democrats. Senator Schumer is no shrinking violet. We all know that. He 
is another friend of mine, and he is no shrinking violet.
  They asked questions for a lengthy, extraordinary period of time 
compared to other nominees. This is the hearing transcript. My gosh. He 
answered question after question after question. But he just did not 
answer them the way he wanted them to answer. And he did not make any 
mistakes, apparently, and he did not give them anything to hang him 
with.
  There is a double standard being played here. I remember the 
distinguished Senator from Connecticut saying he is sorry that Miguel 
Estrada has to be used in this way as a bad example. He is being used 
all right because they cannot pin anything on him that they do not like 
other than they claim he did not answer the questions.
  Well, they had the committee. They could have asked all the questions 
they wanted to, and they did, and it went on for hours. I might add 
that he answered them. He just did not answer them the way they wanted 
him to answer. Talk about a double standard.
  Why is this Hispanic person going through this? I will tell you why. 
Because he is a Hispanic conservative Republican who they are afraid 
will tip the balance of power on the Circuit Court of Appeals for the 
District of Columbia and might even be considered for the Supreme Court 
of the United States of America. They are going to do everything they 
can in their power to delay his nomination.
  It is pathetic. It is shameful. I am sick and tired of it. I am tired 
of my colleagues being misled by their own colleagues. We go over and 
over the facts in this matter. The requests they were making of the 
Justice Department were for confidential documents.
  I will take a few minutes, because it is important, after this last 
speech. I know my colleague would not have said some of the things he 
said if he had been given the true facts. I am not disagreeing with 
everything he said, but I certainly disagree with an awful lot of what 
he said.
  Fact versus fiction--I will cite what has really gone on here. Their 
base is People for the American Way, a national abortion rights league, 
the Alliance for Justice--you can name 20 other far left organizations 
that just plain do not want any of President Bush's circuit court of 
appeals nominees being treated fairly. They do not

[[Page S2163]]

want them at all. They disagree with them because they are left wing 
and these nominees are moderate to conservative. At least, we hope they 
are. Certainly, the President hopes they are.
  And I might add, the President does not tell them what to say up 
here, which was implied in the last remark. I know how they vote these 
judges. They do not ask them questions like that. We know darned well 
the minute they do our questionnaire would bring it up. We make it very 
clear in the questionnaire that is not supposed to happen, but, 
naturally, they help these people understand what is going on.
  Let me use People for the American Way, just for one of these left-
wing groups that is almost always wrong. Here is an argument against 
Miguel Estrada. This is in the Senate Democratic Policy Committee 
briefing book on the nomination of Miguel Estrada: Lack of judicial 
experience. Mr. Estrada has no judicial experience. He has had no 
publication since a banking law article he wrote in law school. He is 
not a distinguished legal scholar or professor and he has never taught 
a class. The bulk of his career has been spent in the Solicitor 
General's Office and in private practice.
  Hey, that ain't bad right there, Solicitor General's Office and 
private practice. But the fact he has no judicial experience is a 
joke--as if that is an inhibiting factor.
  This is what People for the American Way said in a letter from the 
president, Ralph Neas, to the Senate Judiciary Committee, dated January 
29, 2003: Mr. Estrada has worked for the Justice Department for more 
than half of his career and has never served as a judge or a magistrate 
or law professor and, indeed, has not published any legal writings 
since law school. It is virtually the same thing in the Democratic 
policy books. But here are the facts. Only 3 of the 18 judges confirmed 
to the DC Circuit since President Carter's term began in 1977 
previously had judicial experience--only 3 of them of the 18 judges.

  Here is another fact. Democrat-appointed DC Circuit judges with no 
prior judicial experience include Harry Edwards--I think he is the 
current chief judge, isn't he, or he was--Merrick Garland, Ruth Bader 
Ginsburg, Abner Mikva, David Tatel, and Patricia Wald. They are all 
Democrats, of course. All were appointed by either Carter or Clinton 
and had no prior judicial experience.
  Why is it fair for them to be on this court with no prior judicial 
experience but it is not fair for Mr. Estrada? Why the double standard? 
My gosh, they are not treating this guy fairly at all.
  Let me give another fact. Several other Clinton appointees to the 
courts of appeals received their appointments despite having no prior 
judicial experience. Ninth Circuit appointees Richard Tallman, Marsha 
Berzon, Ronald Gould, Raymond Fisher, William Fletcher, Margaret 
McKeown, Sidney Thomas, and Michael Hawkins all had no judicial 
experience prior to taking the bench. Seven of these eight--all but 
Fletcher, who was a law professor--were in private practice when they 
were nominated by President Clinton and confirmed by the Senate.
  Several Supreme Court Justices had no prior judicial experience 
before their first appointment to the bench. Louis Brandeis spent his 
entire career in private practice before he was named to the Supreme 
Court in 1916. Byron White, a personal friend of mine, one of the great 
Justices, spent 14 years in private practice and 2 years in the Justice 
Department. He worked for the Justice Department. I guess that was an 
inhibiting factor before his appointment to the Court by President 
Kennedy in 1962. He had no prior judicial experience.
  Thurgood Marshall had no judicial experience when President Kennedy 
recess appointed him to the Second Circuit in 1961. Marshall served in 
private practice and as special counsel and director of the NAACP prior 
to his appointment.
  Why is Miguel Estrada, this Hispanic gentleman, being treated 
differently? Because he is a Hispanic conservative Republican, or at 
least they think he is conservative. I am not sure.
  Let me go back to the Democratic Policy Committee.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. HATCH. Sure.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I know the Senator is so knowledgeable about these 
matters. This is an appellate bench, which handles appellate matters. 
But isn't it true that Mr. Estrada was a law clerk for a Second Circuit 
Federal judge and a U.S. Supreme Court Justice?
  Mr. HATCH. He was a law clerk to Amalya Kearse on the Second Circuit 
Court of Appeals and law clerk to Justice Kennedy. He had lots of 
experience on the judiciary. I am glad the Senator pointed that out.
  The Senate Democratic policy book on the nomination:

       Mr. Estrada often refused to answer questions.

  We are getting this bullcorn on the floor today, and we have gotten 
it every day we have been here. They don't seem to listen to the facts.

       Mr. Estrada often refused to answer questions, or provided 
     extremely evasive answers during his confirmation hearing.

  You should have heard all of their nominees, whom we allowed to go 
through. OK. It goes on to say:

       He declined to answer all questions about his judicial 
     philosophy and his views on important Supreme Court cases. 
     For example, when Senator Schumer asked Mr. Estrada to name a 
     single case from the entire history of the Supreme Court law 
     that he disagreed with, Mr. Estrada refused.

  My goodness. The policy statement says:

       Other judicial nominees of President Bush, including some 
     with significant ``paper trails, have discussed their 
     jurisprudential views extensively in hearings before the 
     Senate Judiciary Committee. Just last year, Michael 
     McConnell--

  You heard Senator Dodd bring this up--

     confirmed to the 10th Circuit, thoroughly discussed his views 
     on such subjects as Roe v. Wade and the Supreme Court's 
     recent ``federalism'' decisions limiting the authority of 
     Congress.

  Here is what People for the American Way have to say:

       Mr. Estrada refused to reveal his jurisprudential views . . 
     . in response to questions by Senators. For example, despite 
     repeated attempts by Senator Schumer, he refused to identify 
     even a single Supreme Court decision over the past 40 years 
     with which he disagrees.

  At least they got that right--the 40 years part--because we have had 
Senator after Senator come here and say he refused to talk about any 
decisions with which he disagreed. Wouldn't he have disagreed with Dred 
Scott or Plessy v. Ferguson? Those were a long time before the 40 years 
that Senator Schumer asked about. But let's go a little further. People 
for the American Way says:

       Estrada refused to answer key questions at his Senate 
     Judiciary Committee hearing about his judicial philosophy, 
     such as his views on important Supreme Court decisions. For 
     example, he refused to name a single Supreme Court decision 
     in the last 50 years that he thought was wrong.

  Then they go on to say this. This is again a letter from Ralph Neas.

       Other judicial nominees of President Bush, including some 
     with significant ``paper trails have discussed their 
     jurisprudential views extensively in hearings before the 
     Senate Judiciary Committee. Just last year, Michael 
     McConnell, who was recently confirmed to the Court of Appeals 
     for the 10th circuit, thoroughly discussed his views on such 
     subjects as Roe v. Wade and the Supreme Court's recent 
     federalism or States rights decisions limiting the authority 
     of Congress.

  That was a letter dated January 24, 2002.
  Let me give you the facts to show how wrong they are. That is what is 
killing me, that my colleagues would misrepresent like this on the 
floor of the Senate and misrepresent to their own colleagues. That is 
what is killing me. Here are the facts.

       Cannon 5A(3)(d) of the American Bar Association's Model 
     Code of Judicial Conduct states that prospective judges 
     ``shall not . . . make pledges or promises of conduct in 
     office other than the faithful and impartial performance of 
     the duties of office . . . [or] make statements that commit 
     or appear to commit the candidate with respect to cases, 
     controversies or issues that are likely to come before the 
     court.

  Justice Thurgood Marshall made the same point in 1967 when he refused 
to answer questions about the fifth amendment.

       I do not think you want me to be in a position of giving 
     you a statement on the Fifth Amendment and then, if I am 
     confirmed and sit on the Court when a Fifth Amendment case 
     comes up, I will have to disqualify myself.


[[Page S2164]]


  Or Lloyd Cutler, who is one of the great lawyers in Washington, DC, 
and, frankly, in the country:

       Lloyd Cutler, President Clinton's former White House 
     Counsel, testified before the Senate Judiciary Committee last 
     year that ``it would be a tragic development if ideology 
     became an increasingly important consideration in the future. 
     To make ideology an issue in the confirmation process is to 
     suggest that the legal process is and should be a political 
     one. That is not only wrong, it is a matter of political 
     science; and also serves to weaken public confidence in the 
     courts.''

  Think about it. Think about it. The reason Mike McConnell had to 
answer very carefully is that he had written so extensively that he 
pretty well had to acknowledge that that is what he wrote on Roe v. 
Wade. He was highly critical of Roe v. Wade. I respect my colleagues 
for accepting Professor McConnell. On the other hand, he had 305, many 
of whom were the most liberal law professors in the country, supporting 
him because he is so honest and decent and smart, rated as one of the 
two or three top constitutional experts in the country.
  Just think about it. These kind of things bother me. Let me just talk 
about the SG memo, the Solicitor General memos we have heard so much 
about here. This is what the Democratic Policy Statement says:

       Due to Mr. Estrada's almost nonexistent paper trail, the 
     Judiciary Committee Democrats have tried to obtain legal 
     memoranda he wrote while serve at DOJ. DOJ has refused to 
     provide these documents which presumably would show Mr. 
     Estrada's constitutional analysis of cases and statutes and 
     give members a window into his judicial reasoning.

  Here is what People for the American Way said in a letter from Ralph 
Neas dated January 29:

       As several Senators have explained, Mr. Estrada has a 
     limited paper trail, particularly because the Justice 
     Department has refused to release the legal memoranda he 
     wrote while serving in the Department.

  Let's get the real facts. All seven living former Solicitors General 
of the United States--Seth Waxman, Drew Days III, Walter Dellinger, 
Kenneth Starr, Charles Fried, and Robert Bork--have written the 
Judiciary Committee defending the need to keep such documents 
confidential. Four of those are leading Democrats.
  The letter noted that the SG, the Solicitors General:

     relied on frank, honest and thorough advice from their staff 
     attorneys like Mr. Estrada--

  And that the open exchange of ideas which must occur in such a 
context--

     simply cannot take place if attorneys have reason to fear 
     that their private recommendations are not private at all, 
     but vulnerable to public disclosure.

  I have said that on the floor of the Senate so many times I am 
getting sick of saying it. Yet I have had Democrats tell me today: You 
mean seven Solicitors General said that, four of whom are Democrats?
  They were amazed to hear that.
  Why did the people for the American Way say that? Because they are 
partisans. They are left-wing partisans. I don't blame them. They 
believe in that left-wing philosophy of theirs, and I respect people 
who believe in their philosophies. The ones I don't respect are those 
who distort the record. That is unfortunate. That is what they have 
been doing.
  On May 28, 2002, the Washington Post editorialized that the 
committee's request for attorney work product ``would be unthinkable if 
the work had been done for a private client. The legal advice by a line 
attorney for the federal government is not fair game either.''
  According to the Post editorial:

       Particularly in elite government offices such as that of 
     the solicitor general, lawyers need to be able to speak 
     freely without worrying that the positions they are 
     advocating today will be used against them if they ever get 
     nominated to some other position.

  These people in the Solicitor's Office are generally the top lawyers 
around. Many of them are going to serve in other positions in the 
Government. A number of them are going to be judges. We just named 
eight of them. There are seven former Deputy Assistants for the 
Solicitor General now serving on Federal circuit courts of appeals. 
None had any prior judicial experience, and the committee did not ask 
the Justice Department to turn over any confidential internal memoranda 
those nominees prepared while serving in the Solicitor General's 
Office.
  Why is Miguel Estrada being treated like this? Why is he being 
treated so unfairly and differently from anybody else? Why is he being 
treated differently than those seven others, many of whom are 
Democrats? Is there a double standard here? You doggone right there is. 
It is because he is a Hispanic conservative Republican. That is why--
because they cannot pin anything on him. When you can't pin something 
on somebody, you do fishing expeditions to find any amount of dirt you 
can get. A fishing expedition into confidential memoranda in the 
Solicitor General's Office should not be allowed, and it has not been.
  Let me go back to the Democrat policy statement:

         Lack of Support From Hispanic and Other Organizations

       Mr. Estrada is opposed by, among others, the following 
     organizations: Congressional Hispanic Caucus, Congressional 
     Black Caucus, Mexican American Legal Defense and Education 
     Fund, Puerto Rican Legal Defense and Education Fund, 
     Leadership Conference on Civil Rights, AFL-CIO, Sierra Club, 
     NOW, National Women's Law Center, NARAL and SEIU.

  On January 30, People for the American Way again; this is a press 
release rather than a letter:

       Neas noted that leading Hispanic organizations opposing 
     Estrada's confirmation--including the Congressional Hispanic 
     Caucus, Mexican American Legal Defense and Education Fund, 
     Puerto Rican Legal Defense and Education Fund--have been 
     joined in opposition by a diverse coalition of environmental 
     protection, women's rights, and other public interest groups.

  But they don't tell you that the following groups, among others, have 
announced their support for Estrada: League of United Latin American 
Citizens (LULAC) (nation's oldest and largest Hispanic civil rights 
organization); U.S. Hispanic Chamber of Commerce; Hispanic National Bar 
Association; Hispanic Business Roundtable; the Latino Coalition; 
National Association of Small Disadvantaged Businesses; Mexican 
American Grocers Association; and the Hispanic Contractors of America, 
Inc.
  Of course, you can see many other things. There are so many groups 
that support him.
  I attended a press conference today where the head of LULAC was so 
outraged at the double standard and the way Miguel Estrada is being 
treated--and, I might add, LULAC is not a conservative organization but 
it is a respected organization, and I have always respected them. Its 
leader ripped into what is going on over on the other side of the floor 
like you can't believe. He is one of the leading Hispanics in America, 
and rightfully so.
  Let me tell you, I think the Hispanic people are starting to catch 
on--that it is outrageous the way this man is being treated. He is 
being treated with a double standard. He is being mistreated with a 
double standard.
  I must say that I was a little surprised when I saw the similarities 
between the Democrats' handbook on Mr. Estrada and the propaganda being 
circulate by People for the American Way. I guess it's now clear where 
my Democratic colleagues' talking points are coming from. Maybe my 
Democratic colleague should examine a little more closely the 
euphemistically-named People for the American Way.
  Over the past two years, I have watched the war of propaganda waged 
against President Bush's judicial nominees. I have seen the records of 
good men and women distorted and smeared simply because they are the 
nominees of a conservative President. And I have decried the 
pertpetrtors of these smear campaigns who have nothing to lose by their 
misrepresentations but everything to gain when it come to raising money 
to promote their left-wing agenda.
  I am taking about the liberal Washington special interest groups that 
are the ones manufacturing the weapons of mass obstruction.
  That is what they are--weapons of mass obstruction in this case, and 
others as well.
  One of these groups, People for the American Way, claims that 
``Americans could lose fundamental rights, freedoms, and protections 
that they have enjoyed for decades'' if the Senate confirms Miguel 
Estrada. How low can you get? When I learned this, I said to myself, 
with a name like People for the American Way, maybe I should rethink my 
position on the Estrada nomination. I began thinking, Who are these 
folks who call themselves People for

[[Page S2165]]

the American Way and who want me to oppose Miguel Estrada?
  Obviously, I am not a member of their organization. But, given its 
name, I thought to myself, maybe I should look into joining it. After 
all, I am a person, and I am all for the American way--which, in my 
book, stands for truth, civility, fidelity, and justice. So I asked 
around my neighborhood and, well, it doesn't appear that any of my 
neighbors are members. My family and friends aren't members. Nor does 
it appear that any of my veteran friends are members.
  So who are they, these People for the American Way? I went to their 
Web site to find out. It appears that they are a very busy bunch of 
people who raise money for left-wing causes. Indeed, their Web page on 
President Bush's judicial nominees contained four separate 
solicitations for donations, four on one page. Profiting at the expense 
of trashing other people's reputation may qualify for the National 
Enquirer way--but it is not the American way. Of course, this 
organization should be free to raise money and exercise its first 
amendment rights. But the Senate is not obligated to do its bidding or 
jump when it says so.
  Unfortunately, you can see where a lot of the language is coming 
from--People for the American Way over and over. It is false.
  So I became more curious. Maybe if I learned who its board members 
are I would be convinced that they truly are people who stand for the 
American Way.
  I did a little more surfing on this Web site and found out that 
People for the American Way, board members, include a Hollywood actor.
  Gee, I think that is great--to have a Hollywood actor acting in 
politics. We certainly have a few of them, don't we?
  The board members include a record executive, a Democratic lobbyist, 
and a former Clinton White House staffer who was the center of the FALN 
terrorist clemency debacle. Are these mainstream Americans? Are these 
people to whom we defer on what qualifies as the American way? Maybe in 
Hollywood or on the Upper East Side of Manhattan. But not in my 
neighborhood nor, would I say, in most of America.
  This is something that deeply troubles me. Too many of my colleagues 
on the other side of the aisle appear beholden to groups such as People 
for the American Way. But their brand of politics includes obstructing 
the confirmation of qualified men and women to the Federal judiciary 
using any available weapon. To them, this is war, and all is fair--even 
if it means smearing the reputation of good, solid nominees such as 
Miguel Estrada.
  Not qualified? Give me a break. An ABA rating, unanimously well-
qualified, the highest you can have; 15 U.S. Supreme Court arguments; 
Columbia, and Harvard Law magna cum laude; editor of the Harvard Law 
Review; law clerk for the U.S. Supreme Court for Justice Kennedy; and 
Assistant Solicitor General for both Presidents Bush and Clinton.
  That sort of politics is not the American way at all.
  I hope my colleagues on the other side of the aisle will stand up to 
the pressure tactics of the left and recognize that only in America can 
a teenage immigrant from Honduras apply his intellect and talent to 
rise to a Presidential appointment to our Nation's highest court. That 
is the American way.
  Only in America can someone such as Miguel Estrada come here hardly 
speaking English, accomplish so much and rise to the point where the 
President of the United States has nominated him to one of the most 
important courts in the country. And only in America can his record be 
distorted like it is being distorted by the People for the American 
Way, and others. They have a right, I suppose, under the first 
amendment to do any kind of distortions they want, but it isn't right 
for them to do so.

  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from New 
Jersey is recognized.
  Mr. CORZINE. Mr. President, I rise today to express my opposition to 
the nomination of Miguel Estrada to the U.S. Court of Appeals for the 
District of Columbia.
  As many of my colleagues have expressed--and my remarks are not from 
the talking points of the People for the American Way--there are a few 
responsibilities of Senators that are more important than the review of 
judicial nominations. There are few things we will involve ourselves in 
on the floor of the Senate that actually will survive many of us in our 
careers in the Senate. The Constitution delegates us both the authority 
to advise the executive about possible nominations and the power to 
give or withhold consent. It is critical that we exercise these 
responsibilities seriously and with the utmost care. We need to be 
judicious.
  After all, judicial nominations are fundamentally different than 
nominations for executive branch appointments. Unlike the nominations 
of Cabinet officers, judges, ambassadors, they do not serve the 
President. They function in an entirely independent branch of 
Government, a branch with significant power to shape the actions and 
policies of the other two. As a consequence, there is far less reason 
to be deferential to a President's judicial nominations than executive 
branch nominations. A President deserves to have his own team, but when 
we are talking about the judiciary, we are talking about an independent 
branch of Government.
  Perhaps even more important, judges, unlike executive branch 
officials, have lifetime appointments. Once the Senate approves their 
nominations, there are few effective ways to hold them accountable for 
their decisions. Only in extraordinary circumstances--when a judge is 
guilty of high crimes and misdemeanors--can the legislative branch 
recall a judge who does a bad job. That is why it is especially 
important that Senators assure themselves about the quality of a 
nominee and their philosophy before he or she is sent to the bench. 
This power should not be just a review of their biographical 
information or their academic credentials, their resume. It ought to be 
complete with regard to understanding their judicial philosophy and how 
they may approach their demeanor on the bench.
  Of course, while all judicial nominations deserve careful review, the 
particular nomination before us is unusually important. I think it is 
pretty clear that the Court of Appeals for the District of Columbia is 
widely acknowledged to be the most powerful appellate court in the 
Nation, below only the Supreme Court itself. Because it hears appeals 
for so many cases, involving Federal agencies, the work of Government, 
its decisions often have broad national impact. It regularly 
establishes rules with profound implications for workers' safety, 
consumer protection, civil rights, the environment, and on and on. And 
its decisions help determine the extent to which ordinary Americans are 
allowed to challenge the decisions of their Government or the 
judiciary.
  Moreover, the person who is ultimately selected to fill the current 
vacancy is likely to be a swing vote on the court. The fact is, there 
currently are eight active judges in place, who are often divided on a 
4-4 split. So this individual will almost certainly have an enormous 
impact on the lives of millions of Americans and vital concerns to 
them, for better or worse. That, no doubt, is largely why the President 
and the majority of the Senate have made it such a high priority. 
And it is a high priority. That is why all Senators need to think long 
and hard before approving this or any nomination.

  Unfortunately, at this point, all of my colleagues face a serious 
problem in evaluating the nomination before us. We simply do not have 
enough information to do the job properly. At least that is my view. 
That is because this nominee has no record in public office, and 
basically has refused to provide us with information necessary to 
evaluate his judgment, fitness for appointment to the second highest 
court in the land. He has refused to answer many basic questions that 
were posed during the Senate Judiciary Committee review. And he has 
withheld examples of his work and thought in the past, things I think 
would be available to anyone who would be actually scrubbing down this 
nominee if he were in the executive branch.
  As a result, it is extremely difficult--frankly, impossible--for any 
Senator to

[[Page S2166]]

evaluate his full set of views, his temperament, values, and method of 
analyzing legal issues, and his likely approach to the bench.
  Fundamental questions on issues before the Nation are at stake very 
regularly in this court with respect to affirmative action, Roe v. 
Wade, how our labor laws are interpreted, interpretation of the 
commerce clause, basic fundamental directions I think Senators should 
understand and at least have a little bit of perspective about on how 
this nominee might feel about it.
  Let me be clear, I recognize it is not appropriate to ask judicial 
nominees to say anything in the nomination process that would undermine 
their ability to judge particular cases in the future. They should not 
be asked to evaluate particular facts, nor to comment on specific legal 
issues likely to come before them, if confirmed. Nominees have a right 
and responsibility to exercise reasonable discretion throughout the 
nomination process. I respect that. I think my Senate colleagues do.
  That said, we still need to have an understanding of how one might 
approach generally the philosophy of being a judge, how one might look 
at the Constitution, their judicial temperament. All those kinds of 
things seem to be fair questions people ought to have some 
understanding of before someone is approved.
  While it is not appropriate to expect to comment on specific cases, 
it is entirely appropriate for nominees to answer general questions 
about their philosophy, their views and thoughts on broad types of 
legal issues. In fact, it is essential to do so. Otherwise, Senators, 
in my view, will be unable to exercise their own constitutional 
responsibilities to provide serious advice and consent in this process.
  By the way, this is fundamental. It is clearly a bipartisan 
viewpoint. It certainly was as we looked at the judicial appointment 
process under the previous administration. People wanted to understand 
what a candidate's judicial philosophy was and how issues might be 
framed in a general context as they went forward and looked at nominees 
forthcoming from the previous administration.
  Unfortunately, the nominee before us today--and I believe this is 
really the heart of the matter--has essentially refused to answer any 
of those relevant questions. He won't provide any information about his 
approach to the legal issues. He won't comment about any past cases. He 
won't give us even a clue about his judicial philosophy or his views on 
the way judges should handle their responsibilities. Instead, time 
after time, in his appearance before the Judiciary Committee, he simply 
refused to answer questions at all.
  Now, that does not mean there wasn't any testimony or there were no 
questions answered. I saw a big book raised up that has a transcript of 
the hearing, but when it got to the basic questions of judicial 
philosophy, temperament, and how one would approach issues, there were 
no answers to the questions. Nor has the administration been willing to 
share any of Mr. Estrada's work product during his service in the 
Solicitor General's Office--a refusal that is apparently not consistent 
with precedent, at least in a number of cases in recent history, 
Justice Bork's nomination being one of those cases. But there are a 
number of others as well.
  This is the kind of stonewalling, frankly, that I find unacceptable, 
and I think the American people would find unacceptable if they were 
focused on it. We, as Senators, must not tolerate it either. If this 
stealth and secretive approach to nominations is validated in this 
case, I am afraid all nominees in the future will adopt a similar 
``secret strategy.'' It will not reveal anything, and so we will sort 
of play Russian roulette with how candidates will serve once they get 
to the bar.
  Senators will be asked to exercise their constitutional duties with 
little or no information. Frankly, being blindfolded as a Senator when 
you are considering such an important issue is not acceptable.
  Governing in the dark, governing in secret is most certainly contrary 
to the philosophy underlying our constitutional premises, and approving 
a nomination in such circumstances would represent a gross abdication 
of our responsibilities. In effect, we become nothing more than a 
rubberstamp. I hear there has been some argument about the rubberstamp 
concept. The distinguished Senator from Utah used that phrase when he 
was taking a different view about judicial philosophy for other 
candidates at another point in time and didn't appreciate it. I don't 
think we should at this point accept it and embrace it as our approach.
  We need to be a part of this process and understand more about the 
nominee. Remember the stakes that could well be involved in the pending 
nomination. Is the Senate really willing to put the fate of worker 
safety in the hands of someone we know so little about? What about the 
myriad of consumer protections or civil rights, environmental 
protections, and so on?
  Would any of my colleagues be willing to hire a legal counsel into 
their own staff, would any of us bring anybody into our own activities, 
as we represent the people from our States, without knowing at least 
something about their general approach to how they would deal with 
issues and how they approach their worklife? Who would do that? I don't 
know that anybody would do that in the private sector where I came 
from, and I doubt very seriously anybody would do that right here with 
their own staffs. That is true even though any of us can easily remove 
our own staffers if they fail to perform adequately.
  In the case of a judicial nomination, by contrast, we are talking 
about a lifetime appointment over which we will have no control once 
confirmation is in place.
  Let me ask my colleagues this: Do we really think the White House and 
the Justice Department nominated Mr. Estrada without knowing his views 
and approach to the law? Do we really think the same kinds of questions 
we would expect to ask ourselves, maybe of our own employees or someone 
who was giving us legal advice, don't we think that process was 
followed by the Justice Department and the White House? Once again, if 
that didn't happen, I would be disappointed. I would think the 
executive branch would not be following its responsibilities. I doubt 
anyone would take on someone with a lifetime appointment in a most 
serious position without understanding where they stood 
philosophically, temperament-wise, and with regard to how they view the 
law.
  Beyond the constitutional issue, which by a wide margin is the most 
important, I would like to take a moment to respond to some claims that 
have been made by supporters of the nomination during the course of the 
debate. I am actually a little bit offended by it.
  First, some of the supporters of Mr. Estrada have suggested those 
opposed to the nomination somehow are obstructing the process of 
filling vacancies on the Federal bench. This is a ridiculous statement 
on its face. During the last 17 months of the last Congress, under 
Democratic leadership, the Senate confirmed 100 of President Bush's 
judicial nominees. In fact, under Democratic leadership, the Senate 
worked at a rate almost twice the average during the preceding years 
when a Republican-led Senate repeatedly blocked the nominees of a 
Democratic President.

  I can tell you in my own experience in New Jersey, we had four 
openings on the district court. We worked very carefully and 
thoughtfully and cooperatively with the administration to fill those 
vacancies with a diverse set of candidates, quite broad based. And we 
are now working very cooperatively to try to fill a circuit court 
judgeship in the same way that is now being debated with regard to the 
district court in Washington, DC. This is not something where 
cooperation is lacking. Over and over and over again people are 
prepared to reach out even when people have different judicial 
philosophies and work together.
  I am not suggesting Democrats should block nominations in some sort 
of a tit for tat. In fact, we have not. I don't agree with that 
approach. I don't think it would be appropriate. But it is wrong and 
unfair for others to argue we are being obstructionist just because we 
refuse to serve as rubberstamps. I don't plan on being one. I was not 
elected to be a rubberstamp.
  Let's remember, Senator Schumer has pointed out so eloquently that in 
the case of judicial nominations, the burden of proof does not lie with 
the Senate or those opposed to a nomination. The burden appropriately 
rests

[[Page S2167]]

with the nominee himself or herself and the President who made the 
nomination. It is their affirmative obligation to convince the Senate 
of a nominee's suitability.
  It is clear in this case Mr. Estrada and the administration have not 
met this obligation. To the contrary, they have tried to say as little 
as possible about Mr. Estrada and his views. Again, we have a stealthy, 
secretive nomination process going on, and it is inconsistent with what 
our responsibilities are. It degrades the integrity of our role as 
Senators in the confirmation process.
  Unfortunately, others in this body have also gone so far as to say 
that opposition to Mr. Estrada's nomination has been based on an ethnic 
background. I heard that just recently. It has even been suggested that 
opponents of the nomination are intent on keeping Hispanics off the 
court and opposition is disrespectful to our Hispanic citizens.
  Let's get real. These kinds of attacks are outrageous, part of an 
attempt to intimidate those opposed to the Estrada nomination. Frankly, 
they just don't represent the kind of debate we should be having in the 
Senate, and they won't work. After all, most major national 
organizations that exist to represent the Hispanic community are 
actively opposing this nomination. I know this from actual dialog, not 
from some lobbying organization that represents a particular judicial 
philosophy. I hear it from the Congressional Hispanic Caucus, hardly an 
anti-Hispanic organization. I hear it from the National Association of 
Latino Elected and Appointed Officials; again, hardly an anti-Hispanic 
organization; Mexican American Legal Defense and Education Fund--I 
could go on and on--National Puerto Rican Coalition; Puerto Rican Legal 
Defense and Education Fund. None of these organizations are anti-
Hispanic.
  By the way, those of us on this side of the aisle who are trying to 
express a principle with regard to the Constitution are not, either. To 
have any kind of implication that we are is over the top. When 
virtually every credible Hispanic group opposes this nomination, it 
simply does not pass the laugh test to argue otherwise. The claim is 
ridiculous.
  It is similarly preposterous to claim the Democratic Party is anti-
Hispanic. Of the 10 Hispanic appellate judges currently seated in the 
Federal courts, eight were appointed by President Clinton. Three of 
President Clinton's first 14 judicial nominees were Hispanic, and he 
nominated more than 30 Hispanic men and women to Federal courts.
  Let's contrast that record to that of our friends from the other side 
of the aisle. First, let's look at the Bush administration record. Of 
the 42 vacancies that existed in the 13 circuit courts of appeal during 
President Bush's tenure, the President has nominated only two 
Hispanics. That is 42 vacancies, two Hispanics.
  Now let's look at the record of Republicans in the Congress. During 
President Clinton's tenure, 10 of the more than 30 Hispanic nominees 
were delayed or blocked from receiving hearings or votes, and many 
highly qualified Hispanic nominees were delayed for extended periods of 
time.
  Take Richard Paez, for example. He was a highly qualified candidate, 
well respected in his profession, yet his confirmation was delayed for 
more than 1,500 days--1,500 days and we are complaining about 500 here. 
And 39 Republican Senators voted against him then.

  In sum, the other party doesn't have a strong record when it comes to 
promoting this. I think it is hard to put it into a framework that 
somehow or another this campaign is anti-Hispanic.
  Speaking for myself, I strongly believe in promoting diversity on the 
Federal bench. I was proud to join my colleagues who spoke about the 
efforts of working together with the White House and actively 
supporting the nomination of Jose Linares to the district court last 
year. Mr. Linares, a first-generation American born in Cuba, has been a 
leader in the Hispanic community in my State for many years, serving as 
president of the New Jersey Hispanic Bar Association and representing 
many clients of Hispanic origin while operating in private practice. 
Mr. Linares is just one example of my continued dedication, and I 
believe most of us in the Senate on both sides of the aisle, to 
promoting diversity on the Federal bench.
  While I strongly believe in the value of promoting diversity and 
increased Hispanic representation in the judiciary, that doesn't mean 
the Senate should be rubberstamping any and every Hispanic nomination. 
In this case, we have a nominee who has consistently refused to answer 
any substantive questions regarding judicial philosophy, has no 
judicial experience, and is actively opposed by most of the mainstream 
organizations that represent the Hispanic community.
  I hope my colleagues will remember what is at stake here. This is not 
just another vacancy on a single court. This debate, ultimately, is 
about our responsibilities as Senators. The question is whether we are 
going to become nothing more than that proverbial rubberstamp, 
abandoning our duty of advice and consent on judicial nominations. The 
question is whether we are going to start approving nominees about 
whose philosophies we know virtually nothing; whether we are going to 
vote like a gambler, blindly spinning a wheel of chance and hoping for 
the best.
  I don't think the American people want that. I know the folks in New 
Jersey don't want that kind of attitude out of their Senator. I, for 
one, hope that the Senate will live up to our constitutional duties and 
that Senators will embrace the responsibilities entrusted to us by the 
people who elected us. That is why we are here: To ask those questions, 
to be diligent, thorough, and judicious, and to make sure we have an 
impartial judiciary after we go through the process.
  I hope enough of my colleagues will have the strength to stand up to 
the demagogic attacks coming from many proponents and supporters of 
this nomination. I hope some of those on the other side will reconsider 
their approach.
  Speaking for myself, this is one Senator who cannot and will not face 
down under these irresponsible attacks. This is one Senator who will 
not abandon his sense of responsibility to our Constitution. I simply 
cannot, in good conscience, support this nomination as it stands today 
without the information being provided that is necessary to understand 
the context of the nominee.
  I would very much like to see a more diverse court, and I will work 
to make sure it happens. But I will not put my seal of approval on an 
individual who has basically challenged the nomination process in 
refusing to answer the kinds of questions that would allow me to have 
the assurance, when I speak to the people of New Jersey, that I 
understand how someone with a lifetime appointment might think about 
some of the most important issues that impact their lives in the days 
and years and decades ahead, particularly for a 43-year-old nominee. I 
do not intend to be a rubberstamp.

  I thank the Chair.
  The PRESIDING OFFICER (Mr. Talent). Under the previous order, the 
Senator from Colorado is recognized for 15 minutes.
  Mr. ALLARD. Mr. President, I rise to share an observation made by my 
colleague on this side of the aisle--the chairman of the Judiciary 
Committee, Senator Hatch from Utah--that, like him, I believe there is 
a double standard.
  Last week, I came to the floor to urge my colleagues to support the 
confirmation of Miguel Estrada, President Bush's nominee to the DC 
Circuit Court. Last week, I had my statement focused on the late Byron 
White, Justice to the U.S. Supreme Court. During my comments, I pointed 
out that Justice White's judicial career began in a manner very similar 
to that of Miguel Estrada. Justice White was nominated by President 
John F. Kennedy when he was only 44 years old. He went on to serve his 
country for three decades, without having any judicial experience prior 
to joining the Supreme Court. And he did an exemplary job on the bench.
  Yet opponents of Miguel Estrada have pointed to his lack of judicial 
experience as the ``poison pill'' to his nomination. This is an 
unacceptable double standard. This experience litmus test, as I call 
it, is nothing but an obstructionist argument that is intended to 
undermine the entire judicial nomination process. It is wreaking havoc 
with our constitutional duty to confirm the President's nominations.

[[Page S2168]]

To say that Mr. Estrada, one of the best appellate court lawyers in the 
country, should not be confirmed because he lacks prior judicial 
experience is simply ridiculous. Justice White, a great Coloradan, 
would never have been confirmed had he faced such a strenuous litmus 
test; nor would another great Coloradan, Carlos Lucero, have been 
confirmed had that test been applied to him.
  Judge Lucero was nominated to the Tenth Circuit Court of Appeals by 
President Bill Clinton on March 23, 1995, and was confirmed by the 
Senate on June 30, 1995. Three months is all it took. Like Justice 
White and Miguel Estrada, Judge Carlos Lucero had never served as a 
judge prior to joining the court. Regardless of this fact, within 3 
months of his nomination, the Judiciary Committee, then under the 
leadership of Chairman Hatch, held a confirmation hearing for Mr. 
Lucero. At no point during the confirmation hearing--not even once--did 
a member of the committee discuss his lack of judicial experience; nor 
did they consider it to be an impediment to his nomination. Instead, 
the Judiciary Committee moved forward with the nomination in a 
Republican-controlled Senate.
  Judge Lucero had served as a staff assistant to a U.S. Senator. He 
had served on the staff of the Senate Judiciary Committee, clerked for 
Judge Doyle of the Colorado District of the U.S. District Court, and 
practiced law in the private sector prior to joining the Federal bench.
  Let's look at Miguel Estrada. He was a graduate from Harvard Law 
School with high honors. We have a lot of his qualifications listed on 
the board behind me. He served as a law clerk to Supreme Court Justice 
Anthony Kennedy, and he worked as an Assistant Solicitor General of the 
United States in both the Bush and the Clinton administrations. Neither 
Carlos Lucero--now Judge Lucero--nor Miguel Estrada had judicial 
experience at the time of their nomination. They both had a breadth of 
legal experience that ensured success on the bench. Miguel Estrada's 
outstanding record of accomplishment and real-life experiences prove 
that he will be no different than Judge White or Judge Lucero and that 
he will perform his judicial duties with great conviction and 
enthusiasm.
  Within 3 months, Mr. Lucero was nominated, confirmed, and seated on 
the bench of the Tenth Circuit, becoming that court's first Hispanic 
judge. Somehow, the fact that Mr. Lucero had no judicial experience did 
not stop a Clinton appointee from being confirmed, but that is not the 
only ironic argument.
  The Lucero nomination points out a second double standard being put 
forward by his opponents that Miguel Estrada is too political. Carlos 
Lucero was a two-time candidate for the Senate and a member of one of 
President Carter's advisory committees. Yet he still was confirmed 
without a concern being voiced by a single Senator that he was involved 
in a Senate race which was hailed by local newspapers as a bitter 
interparty slugfest, and the opposition to Miguel Estrada wants to 
complain about politics.
  Upon his confirmation, Judge Lucero correctly stated it was ``an 
unfortunate vestige of history'' that it had taken so long for the 
Tenth Circuit to seat a Hispanic judge. It certainly was not because of 
delays in a Republican Senate.
  With the nomination of Miguel Estrada, the Senate has an opportunity 
to place the first Hispanic judge on the bench of the DC Circuit Court, 
a man who came to this country at age 17 as an immigrant from Honduras, 
and a man who is well equipped to serve as the Nation's second most 
important court, certainly a success story of America and one that I 
like to herald time and again.
  When Judge Lucero was before the committee, he was not asked his 
position on one issue, and yet my colleagues just saw my colleague from 
Utah show the Members of this Senate three pages of facts and testimony 
that had been collected on Miguel Estrada.
  There were a couple questions in committee. I have them right here. 
This is the committee record on Lucero. We saw the 3-inch committee 
record on Miguel Estrada. When Judge Lucero from Colorado was on the 
Tenth Circuit Court of Appeals, they asked him two questions: No. 1--it 
was an open-ended question--give this committee some idea why you think 
you qualify to serve on the Tenth Circuit Court of Appeals. It was an 
open-ended question, a softball. No. 2--it was intended to be somewhat 
humorous and bring some levity to the committee hearing--they simply 
kidded him with a question: Is it easier to become a Senator or is it 
easier to become a judge? That was the extent of the questions, other 
than a few introductory remarks that were made in committee on Carlos 
Lucero.
  Yet we have information collected of an extremely qualified 
candidate, Miguel Estrada. I have to tell you, there is a double 
standard. Unlike Judge Lucero who was nominated by President Clinton, 
Miguel Estrada has been forced to put his life on hold while special 
interests play games with our system of justice, delaying his 
confirmation and perpetrating an unfortunate status quo.
  Miguel Estrada's nomination has been pending since May 9, 2001. That 
is nearly 2 years, and this is simply ridiculous. Judge Lucero was 
nominated and confirmed in 3 months. Miguel Estrada has been waiting 
for 2 years. Judge Lucero ran for the Senate twice. Miguel Estrada is 
far less political than Judge Lucero.
  Judge Lucero clerked for a U.S. district judge but had no judicial 
experience. Miguel Estrada served as a clerk to Justice Kennedy of the 
U.S. Supreme Court, Assistant to the Solicitor General, assistant U.S. 
attorney, and deputy chief of the appellate section, and law clerk to 
Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second 
Circuit.

  Judge Lucero practiced law in Colorado. Miguel Estrada practiced law 
in front of the U.S. Supreme Court where he argued 15 cases. Mr. 
Estrada's qualifications are clear and abundant. The obstructionist 
charade must stop.
  Over the past 2 years, many of my colleagues have come to the floor 
to make statements regarding the sad pace of judicial nominations 
during the last Congress. They have made excellent points, but I 
believe the most telling statistic is simply that more appeals court 
nominees have had to wait over a year for a hearing in President Bush's 
Presidency than in the last 50 years combined.
  Let me repeat that. The most telling statistic is simply that more 
appeals court nominees have had to wait over a year for a hearing in 
President Bush's Presidency than in the last 50 years combined.
  The stalemate on the Bush nominees must end. In the wake of September 
11, we now understand the somber reality that the most basic of our 
country's values and traditions are under attack. That is why it is so 
important that we move the nomination process forward and provide the 
judiciary branch of Government the tools that are necessary to carry 
out its constitutional duty. We cannot continue to allow partisan 
politics to interfere with principled jurisprudence that is intended to 
serve justice on those who have done us harm.
  Justice cannot be delivered from an empty bench. Miguel Estrada's 
life story defines the very notion of our Republic. Like Judge Lucero 
and Justice White, he is an American success story, building his 
success by combining energy and opportunity with self-respect and 
integrity and values.
  It is time for the confirmation process to move forward and for a 
vote on the floor of the Senate. At least we can have a vote on the 
floor of the Senate. And it is time to drop the double standard and to 
confirm this very highly qualified nominee. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I have been watching these proceedings on 
television in my office. I have heard some of the presentations that 
have been made. It seems that emotions are running high on this issue 
on both sides, and I can understand that, and maybe, given the stakes 
we are playing with, applaud the fact that people feel strongly enough 
to come to the floor and express themselves.
  I wish to make a few comments simply in reaction to some of the 
statements I heard this afternoon, however. Perhaps no one will notice, 
but in my own mind I will have done something to set the record 
straight.
  The Democratic leader talked at some length about Miguel Estrada's 
supervisor at the Department of Justice,

[[Page S2169]]

a supervisor who has now publicly stated that he does not think Mr. 
Estrada should be confirmed. That is obviously that supervisor's right, 
and it is something I think we should appropriately take into 
consideration.
  That which I would point out, however, is that while Mr. Estrada was 
working there, that same supervisor gave him the highest possible 
ratings in his annual performance reviews. We are told there is no 
paper trail on Mr. Estrada, but there is a paper trail in terms of the 
written performance reviews of his activities while he was in the 
Department of Justice, and those reviews are unanimously and 
unchangingly glowing, giving us the indication, at least in the written 
opinion of his supervisors filed for the record in a situation where 
there was no political pressure one way or the other, that Mr. Estrada 
is certainly qualified in every way for the assignment he had at the 
Department of Justice and the implication, of course, is that he would 
be qualified for further assignments later in his career.
  I should also like to point out that this was not the Ed Meese 
Justice Department, this was not the Richard Kleindienst Justice 
Department, those who have been attacked as being unduly partisan 
because of the nature of the particular Attorney General and his 
closeness to the President. This was the Janet Reno Justice Department, 
and Mr. Estrada was there not for a week or two in transition but he 
was there for a matter of years. If he is part of the vast right-wing 
conspiracy, as some have suggested, why did the people of the Reno 
Justice Department speak so highly of him and retain him for so long?

  There can be only one logical answer. Either the people involved in 
the hiring of the Justice Department under Janet Reno were incredibly 
blind to Mr. Estrada's ideological bent or they saw in him a lawyer of 
incredible and significant ability and wanted his services and retained 
his services.
  The Democratic leader made a great point out of the fact that none of 
Mr. Estrada's memos, while he was at the Justice Department, is being 
supplied to the committee for review. He did not tell us that Mr. 
Estrada's supervisor, the Solicitor General of the United States, 
appointed by President Clinton and serving under Attorney General Reno, 
says those memos should not be made public. The Solicitor General, not 
Mr. Estrada, was the client. The client who received the memos is the 
one saying the memos should not be made public, and yet the lawyer who 
prepared the memos, in confidentiality for his client, is being 
attacked for not violating his client's request.
  I think it is fairly clear that the client is right in this case and 
that Mr. Estrada is acting in the highest levels of his profession to 
see to it that those memos are not made public. If they were made 
public, I do not think they would find anything in them that would 
expose Mr. Estrada as part of the vast right-wing conspiracy. I think 
they would find the excellent work of a superb lawyer so that it would 
probably help Mr. Estrada's case if those memos were brought forth in 
establishing his competence and his ability. But professional ethics 
say that a lawyer does not disclose that which he has prepared for a 
client, particularly in the case where the client says: Do not do it. 
Mr. Estrada has not done it and is being attacked now on the floor of 
the Senate for what, in my opinion, is his appropriate professional 
stance.
  So we have the circumstance where a man who is responding to his 
professional requirements, a man whose career is fully open and clear 
for everyone to see, a man who has hidden nothing and has no holes at 
any point in his chronological resume, is being held up and being 
denied a vote on the floor of the Senate. As I have said before, we do 
not really know why. We do not know what particular test is being 
applied to this confirmation.
  We know there are others whose rating by the American Bar Association 
is not as good as Mr. Estrada's who have gone through without any 
difficulty. We know there are those whose ``lack of judicial 
experience'' is exactly the same as Mr. Estrada's, others for whom the 
lack of judicial experience made no difference but which in his case 
suddenly is touted as making all the difference in the world.
  We know these are straw arguments because we can find plenty of cases 
where others in exactly the same situation as Mr. Estrada did not have 
them raised against them.
  So what we have is a situation where an additional test, unannounced 
and therefore unknown, is being applied in this case. I have tried to 
figure it out. I have asked Senator Leahy to disclose what particular 
test he is applying in this situation. I have been unable to find a 
satisfactory answer. As I have said, perhaps facetiously but with some 
seriousness, I have come to the conclusion that the test that is being 
applied is passing muster with the editorial board of the New York 
Times. If the New York Times editorial board decides Mr. Estrada is not 
to be accepted, that means he must be turned down because the New York 
Times is the voice of what I call the responsible left in this country. 
We have the irresponsible left, but we have the responsible left.

  There are those who claim the New York Times is completely middle of 
the road, the New York Times has no ideology. Those who are making that 
claim do not read the New York Times, or if they do, they do not 
understand it. It is the voice of the left in this country, the 
responsible left.
  If its editorial board has decided that Miguel Estrada must not be 
confirmed, there are those who say we cannot cross the editorial board 
of the New York Times, we must follow their dictates, and therefore, 
without announcing it, we recognize that Estrada has failed that test 
and therefore must be opposed, and we will make up these other reasons 
to oppose him, even though we cannot apply these same reasons to other 
candidates for whom we have voted.
  I hope I am wrong. Some will say: That is a facetious, almost 
capricious, statement on your part, Senator Bennett. But I renew the 
request. I ask those who have determined in advance the test that 
Estrada must pass, and who have determined that he has failed to pass 
that test, to do us the courtesy of telling us what that test is, 
telling us in advance what hoop the nominees must pass through in order 
for them to allow the nominees a vote on the floor of the Senate. Until 
they tell us, this whole process we are going through will remain 
somewhat of a mystery.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, we are about to wrap up for this evening. I 
have been very disappointed with some of the debate today because it is 
apparent that some of our colleagues have not looked at the record, 
have not gotten the facts, that they are listening to People for the 
American Way and all the distortions that come from there. That is 
disturbing to me.
  When I was chairman of this committee for 6 years during the Clinton 
administration, we put through 377 Federal judges. There were a number 
who gave great angst to people on my side because of the differences in 
philosophy, differences in judging, differences in approaches to 
judging, but we put them through. We did not mistreat people, at least 
as far as I can see, not like this.
  It is important for people to realize what he has been through, 
because to hear this talk on the other side, one would think nobody 
ever even looked at this man; that they had not had a chance to 
question him; that he did not answer any questions.
  This binder contains the hearing record. Most hearing records would 
be 10 pages. This is his hearing record. My gosh, the hearing was 
conducted by Democrats. They controlled the whole shebang. They asked 
every question they wanted to, and he answered them. I can see today he 
did not answer them the way they wanted him to, so that they could 
complain about him, but he did answer them. I think he answered them 
better than most of their judges whom I put through answered our 
questions.
  Think about what he has been through. Before a person gets nominated, 
the White House does a thorough review. They do a thorough research on 
whether or not to nominate the person. They also interrogate the person 
as to whether there are any difficulties that person might have. Then 
if they decide they are ready to go forward, they are subject to an FBI 
report. They then send out the Federal Bureau of Investigation.

[[Page S2170]]

  The Federal Bureau of Investigation does a terrific investigation. 
Generally on a judgeship like Estrada, it is a notebook at least this 
thick, where they interview the nominee's friends, neighbors, business 
associates, enemies, wackos, crazies. This is what you call a raw FBI 
report. Then assuming that goes well, the administration then makes a 
determination whether to submit the name. As they submit the name, they 
generally notify--sometimes even before they submit the name--the 
American Bar Association.
  The American Bar Association then takes one of their examiners after 
all the FBI has done and their examiner generally is from the same area 
as the nominee. That examiner then goes and talks to the leading 
attorneys, the leading lawyers in the area--and others, if the person 
is so led--to determine ethical standards, legal ability, 
industriousness, health, strength, temperament, and so forth. All that 
is investigated by the ABA. Most nominees get a rating of 
``qualified.'' That is a high rating. Anytime you can get the rating of 
``qualified'' from the American Bar Association, you have done 
something pretty worthwhile. That means you have achieved in this life.
  I used to be pretty upset at the American Bar Association when I saw 
partisan politics being played with the standing committee that 
investigated people. The perfect illustration was in the Bork case. 
Unanimously well qualified when he came up for the Circuit Court of 
Appeals for DC, the same court we are talking about here, and just a 
few years later, found to be ``well qualified'' by a majority of the 
standing committee, and ``not qualified''--one of the leading 
intellects in law in the history of this country? I happen to know one 
or two of the people on there who voted ``not qualified'' who were very 
partisan Democrats and did not want a conservative like Bob Bork on the 
court. They won in the end.
  Since then we have had our problems with the ABA. When I became 
chairman, I took the ABA out of the process, and my argument was then, 
and it is still a good argument, why let one of the bar associations, 
even though it is the largest one, and not all the other ones, vote 
these people? If we let them all vote, we would never get through the 
process. In fact, it takes at least 2 months to 3 months for the ABA. 
They say they can do it in 30 days, but it is generally between 35 and 
60 days to do their research. When the nominee comes up to the 
Judiciary Committee, all of that is submitted to the Senate Judiciary 
Committee.
  Now, the chairman and the ranking member, in particular, have staff--
skilled, honest, decent staff on both sides--who, along with the 
chairman and ranking member, go through all of those materials that the 
FBI especially has collected. Sometimes it is extremely voluminous. If 
we see, in going through the materials, that something has not been 
answered, or something has not been investigated, then we go to the FBI 
and say, You have to do further investigation. We want this done. And 
the FBI then does it, pursuant to our rules. It is, again, a very big, 
arduous, difficult process.
  Then, as in the case of Estrada, the Democrats controlled the 
committee. They took a total of 516 days--16 months--before they even 
had a hearing. Now, generally these hearings go 2 or 3 hours at the 
most. Estrada's hearing was virtually all day. It was conducted by the 
Democrats. In fact, Senator Schumer chaired the hearing. Senator 
Schumer, as I have said before, is no shrinking violet. He is a tough 
guy. He is a very smart lawyer. I value our friendship because he is 
always straightforward. We have a decent, good, workable relationship. 
But he, along with other Democrats, then came in and asked questions of 
Miguel Estrada. They asked voluminous questions. That is what this 
hearing transcript is all about. You do not see many hearing 
transcripts that big. I have been here almost 30 years and I have seen 
very few that large until there is some real problem. But in all of 
this hearing, out of it came their comments that he really did not 
answer the questions. But he did answer the questions. Some of the 
questions he did not want to answer because they may have involved 
issues that could come before him as a judge. And he was not supposed 
to answer those questions. Lloyd Cutler, whom I quoted over the last 
week many times, says they should not answer questions that involve 
matters that might come before them.

  The Circuit Court of Appeals for the District of Columbia has a 
tremendously broad jurisdiction. It is, like the people said, the 
second most important court in the country and in some ways the most 
important court because they have thousands of cases that the Supreme 
Court of the United States of America will never hear because they can 
only take 80 to 100 cases a year. So it is a very important court. It 
is a court of last resort to many. Because, as I said, those cases do 
not go to the Supreme Court.
  Not only did they ask questions all day long and ask serious 
questions and he gave serious answers--and if you read the transcript, 
you will see that--they had every crack they wanted. If they did not 
have it, they could have called for another day of hearing. That would 
have been extremely unusual for a circuit court nominee, but they could 
have. They controlled the committee. There would have been absolutely 
nothing I as ranking member on that committee could have done other 
than complain. I probably would not have complained. But they did not 
do that. They did not ask anymore questions.
  Now, after the full hearing and all of this time it took to do that, 
and all of the questions all of the Democrats asked at that time--which 
he answers; maybe, I admit, he did not answer the way they wanted him 
to, but that is not his obligation; he didn't make any mistake--he did 
not give them something to feed on to destroy him with.
  There has not been a good argument against him made since we have 
started this debate other than ``he did not answer the questions.'' 
Well, some questions did not deserve being answered, but he answered a 
lot of questions.
  Then, when the hearing is closed, they do a transcript. That is what 
this big document is, a transcript of that hearing. That is given to 
the Senators who want it. And most everyone does. Then the Senators 
pour over that transcript and if they see questions that were not 
answered in that transcript, then they have a right to write written 
questions. And the Senators who are really interested then write 
written questions for him to answer. Guess how many Democrats wrote 
written questions? Two. And he answered those written questions. He may 
not have answered them the way they wanted him to do so they could 
attack him and try to destroy his nomination, but he answered them. 
Where were all of the questions they are now raising when they had 
every opportunity to ask those questions?
  By the way, that hearing was finished in September of last year. 
Ordinarily when you have a hearing--not always but ordinarily--the next 
Judiciary Committee markup, the persons put on that Judiciary Committee 
markup where you can raise anything you want to. Did they put him on a 
markup between September and January of this year? Not on your life. 
They did not give him a chance. He would not have made it. And the 
Republicans then won control of the Senate. He would not have had a 
chance. So they relied on being able to kill this nomination by never 
calling it up. Why would they want to kill a nomination of one of the 
brightest young Hispanic leaders in America who is totally qualified 
for the Circuit Court of Appeals for the District of Columbia? I'll 
tell you why. It is a very simple reason, to be honest with you. It is 
because he is a Hispanic Republican, appointed by a Republican 
President. They didn't like it. And they think he is conservative. I 
don't know whether he is or isn't. I presume he is. I guess they think 
he is on the fast track to the Supreme Court, and I suspect Miguel 
Estrada has a chance of becoming not only the first Hispanic nominee on 
the Circuit Court of Appeals for the District of Columbia, but the 
first Hispanic on the United States Supreme Court. And he is not the 
right kind of Hispanic.

  I am the chairman of the Republican Senatorial Hispanic Task Force. 
That task force is made up of Democrats, Republicans, and Independents. 
We didn't worry about their political ideology. We worried about 
getting together with them and seeing what we

[[Page S2171]]

could do to help the Hispanic community. That has been an amazingly 
successful Hispanic task force.
  I can tell you I fought very hard for Hispanics my whole Senate 
career, and for other people of color, other minorities as well. But 
the reason they don't like him is because he was appointed by a 
Republican; a Hispanic appointed by a Republican, who is conservative, 
they believe, and a Republican himself. That is enough to give him this 
kind of a rough time here on the floor of the Senate.
  But even then, they had between September of last year and January of 
this year. As a matter of fact, they had between September of last year 
and February of this year to ask even further questions if they wanted 
to. It would have been very improper for them to do so because he had 
already been questioned. They controlled, certainly right up to 
January, the middle of January of this year. They could have asked any 
questions they wanted. They could have had another hearing if they 
wanted. It would have been highly extraordinary and highly unusual, but 
that is what they could have done.
  It is partisanship. That is what is showing its ugly face here.
  As chairman of the Hispanic Task Force in the Senate, I can tell you 
the Hispanic people in this country, the Latino people, have helped to 
make this country what it is. The Latino people are basically 
conservative. They believe in families. They believe in staying 
together in their marriages. They believe in educating their children. 
They believe in hard work. They have built the railroads. They have 
helped mine the mines. They have helped build our buildings.
  Now we have young Hispanics such as Miguel who have gone on to 
professional schools and they are making a difference in this country 
that deserves commendation. Look what Miguel Estrada is going through 
for all of that, a fellow who is fulfilling the dream that America 
makes for us.
  Miguel deserves better than what he is getting. Frankly, he is being 
treated very unfairly. I, for one, am really disturbed by it. To 
filibuster Miguel Estrada with the thin line of complaints they have 
is, I believe, going beyond the pale; to filibuster for the first time 
in a true filibuster the first Hispanic ever nominated to the Circuit 
Court of Appeals for the District of Columbia because he is a Hispanic 
Republican who they think is conservative, appointed by a Republican 
President who they don't like. I am not saying all the Democrats don't 
like him, but the ones who are making these, I think, very 
unsubstantiated arguments, do not.

  Time after time we have refuted their arguments in absolute terms and 
they come right back and keep spewing out the same stuff. The reason I 
went through People for the American Way is because all of that stuff 
has been coming from People for the American Way. That, as I have said 
earlier today, is not the American way, to treat a human being the way 
this man is being treated.
  I warn my friends on the other side, if you are going to filibuster 
Miguel Estrada, then Katie bar the door because I know people on our 
side who are going to filibuster anybody they disagree with when the 
Democrats have the Presidency. That will be a sorry state of affairs.
  As chairman of this committee, I worked very hard to make sure some 
of our firebrands did not get their way in wanting to filibuster Carter 
and Clinton judges. And I won. I was able to convince people it was not 
the thing to do.
  I question, under the Constitution, whether you can do this. I really 
question it. I don't believe you can. I think it is outrageous to try. 
It is dangerous to try. And it is not fair to the first Hispanic 
nominated to the Circuit Court of Appeals for the District of Colombia, 
especially when they have had every chance and we are now in the 21st 
month for Mr. Estrada.
  I guess we can learn to expect that because Mr. Roberts, who is on 
our markup on Thursday, who is considered one of the two greatest 
appellate lawyers in the country--Estrada is considered one of the top 
appellate lawyers, but Roberts is considered one of the two greatest in 
the country and that's from Supreme Court Justices themselves and many 
others--Roberts has been sitting here for 11 years, waiting for 
approval by the Senate; nominated three times by two different 
Presidents.
  That is what we are going through. This is a big slowdown, trying to 
thwart the process because they don't like President Bush.
  A lot of our people didn't care too much for President Clinton. I 
did, but a lot of the others didn't. But that didn't stop us from 
treating him fairly.
  We have taken enough time.
  Mr. REID. Has the Senator yielded the floor?
       Mr. HATCH. I will be happy to yield the floor to my 
     colleague.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, my father-in-law, may he rest in peace, was 
a chiropractor, but he knew a lot about people's illnesses and how 
people handled sickness. One thing he always said--he died as a young 
man--one thing he always said was, when somebody says they are sick, 
you believe they are sick. We have all said ``they are not really 
sick.'' When someone says they are sick, they are sick.
  This debate here reminds me of my father-in-law's statement. My 
friend, no matter how many times the distinguished chairman of the 
committee says there is not a problem with Estrada, there is a problem 
with Estrada. You can say there is not. You can have pictures of him. 
You can do all kinds of things, say all kinds of things that there is 
not a problem. There is a problem. In this country, the Constitution of 
the United States, article II, section 2, says that we as a Senate have 
a right to advise and consent on nominations the President gives us for 
a wide variety of offices, not the least of which is the judiciary.
  That is something that has been done in this country for a long time 
and it will continue a long time after the Estrada matter has ended. 
For my friend, who has served with such distinction as the chairman of 
the Judiciary Committee and ranking member for many years, to say he 
thinks it is unconstitutional to do what we are doing leaves me without 
any logic. I don't understand how he could say that.
  I repeat, there is a problem with Estrada. You may not agree with 
what we believe is a serious problem, a flawed nominee, but we believe 
there is a problem. This isn't something we have jumped into in a 
matter of 10 minutes, 20 minutes, 10 hours. This has taken a matter of 
days, to take a look at this nominee and to make a decision about what 
we were going to do.
  The majority has various things they can do at their disposal. We 
believe there are questions he did not answer. All nine members of the 
Judiciary Committee who are Democrats agree this man is not, for many 
different reasons, a person who should go on the District Court of 
Appeals.
  We have heard it before, and I am reminded of my friend, Mo Udall, a 
longtime Member of Congress from Arizona, who said:

       Everything has been said, but not everyone has said it.

  That is what has happened here. We have talked for days and days, and 
we will tomorrow, and if someone can come up with something that hasn't 
been said by either side--I doubt it. They will continue to say what 
has been said in the last few days. We have opposition of the 
Congressional Hispanic Caucus. We believe, as has been done with a 
number of other people who have been sent to the Senate by Presidents, 
we are entitled to the memos he wrote when he was a member of the 
Solicitor's Office.
  I recognize that some say that is not a good idea. It has been done 
in the past. If the majority believes this man is as good as they say 
he is, why don't they give us those memos? Are they afraid he said 
something there that may weigh against his being a judge? I do not 
know. But I think they protest too much.
  There is a problem with this nomination. We don't need a numbers game 
here. But this is a filibuster. There are ways you can get rid of a 
filibuster: Take down the nomination, and vote to invoke cloture. That 
is about what you can do. Or you can do what has been suggested by the 
ranking member of the Judiciary Committee and the Democratic leader in 
a letter sent to the President, which basically says let

[[Page S2172]]

us have another hearing, let us ask some questions of this man, and 
have him submit those memos. It wouldn't take very long. I assume he 
didn't write too many memos, but we could tell. I am sure they could be 
reviewed in a day. I am sure the hearing could take place in a day.
  To say that this opposition is because he is Hispanic and he is a 
conservative simply is not based on the facts.
  But I accept what my friend from Utah has said. That is what he 
believes. I know he believes that. I submit that it is not right. He 
has a right to believe that. As I have said before, people have made 
statements over here about why they oppose Miguel Estrada. That doesn't 
mean that my friend from Utah has to agree. But that is how people over 
here feel.
  We have a problem with this nomination. We are now in the throes of a 
filibuster. The majority leader has said he thinks the debate tomorrow 
should go for a long time. If that is what he wants, that is fine. I 
spend all of my legislative life here in the Chamber. I can spend a 
night or two here. It doesn't really matter that much. We have a lot to 
do. I know we have other things the leader wants to do. I know we have 
a very important appropriations bill that should be coming forward in 
the form of a conference report very soon. We have to do that.
  The other reason we may be going through this process is that the 
leader doesn't want to bring any of that stuff forward. Maybe this is 
an excuse for doing nothing. But whatever the majority leader wants to 
do, I understand the procedures here in the Senate, and we are here 
because he determines what we do on this floor. But one of the things 
we have a right to do is take a look, because of the Constitution of 
the United States, at nominations that are given us. That is what we 
are doing.
  As I started my brief little talk here tonight, you may not think 
there is a problem. But take the word of my father-in-law. May he rest 
in peace. There is a problem. I would suggest there are well over 40 
Democrats who believe there is a problem. It seems to me that is the 
case; there is a problem.
  There are only a few ways to deal with it. You can stay here and talk 
day after day after day and run TV ads, as they are doing right now, 
saying that we are anti-Hispanic. It is not going to change the belief 
of people over here that Miguel Estrada should answer questions and 
that he should provide his memos.
  If they do not want to do that, they can continue running their ads 
and having to stay here late at night--stay here all night, and have us 
stay here during our vacation. When I say ``vacation,'' as everyone 
knows, they are not vacations; we go back to the States and work. But 
we are here. We have signed onto this. We as a matter of principle 
oppose this nomination. People may disagree with our principle. But 
that is in fact why we are here. We think there is a problem with this 
man being given this appointment. According to us, he has not answered 
questions, and he has not submitted his memos. And he is opposed by a 
lot of groups who should be supporting him and don't because they 
believe he is not a person who should go on the District Court of 
Appeals.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate my colleague. I agree with 
him; there is a problem here. I don't think there is any question about 
it. There is a problem of whether we are going to treat a person 
fairly. I appreciate my colleague in his own characteristic quiet and 
cautious and decent way. He has outlined what he feels.
  Think about it. Where were the questions during the time they 
controlled the Senate right up through the middle of January? They 
didn't ask any further questions. Only two Senators gave written 
questions. They could have held an additional hearing. They did not do 
it. I guess they rolled the dice, figuring they were going to win 
anyway, and they would kill this nomination no matter what happened. 
The fact is they lost, and now the Republicans are in control of the 
Senate, and we want to see this man get fair treatment.
  I admit there is a problem. But the Constitution doesn't say the 
Senate should advise and filibuster these nominations. It says the 
Senate should advise and consent to these nominations. That is a far 
cry from filibustering.
  I question a filibuster in the case of judges in the third branch of 
Government. They are a coequal branch of Government.
  With regard to the memos, Mr. Estrada said it is fine with him if 
they give up the memos. He doesn't have anything to hide. He is proud 
of his work. But the Justice Department, in its wisdom, says we don't 
give up these kinds of memos; it is a bad precedent, and we are not 
going to do it. So why blame Estrada for that? Why hide behind that 
when Estrada isn't the one causing the problem.
  I happen to agree with the Justice Department. I don't think they 
should give up confidential memoranda that could chill the work that 
goes on in the Solicitor General's Office. I don't see how anybody with 
a straight face could make that argument as much as it has been made 
with straight faces today.

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