[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2232-S2266]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                            The Bush Budget

  Mr. CORZINE. Mr. President, I come to the floor to make a statement 
with respect to something I believe is vital that the American public 
get focused on. Last Monday President Bush proposed a budget to the 
American people that, if it were adopted, would basically dramatically 
change the landscape, reshape the future of our Nation in a lot of 
different ways. I would like to speak about that in the context of a 
few ideas today.
  I hope I can come here every day, as long as is necessary, to make 
sure we raise up this, I think revolutionary document, radical 
document, with regard to what the shape of our economy and the shape of 
our participation of the Federal Government in our life in America is 
about.
  Perhaps because of its release so soon after the tragic Columbia 
shuttle tragedy, the budget has not received the public attention it 
deserves. Frankly, we had unbelievably revealing testimony by the 
Chairman of the Federal Reserve yesterday with respect to how that 
budget fits into the overall concept of fiscal responsibility and 
fiscal prudence that is so important for Americans to understand. But 
even with that, even with such dramatic statements coming from the 
Chairman of the Federal Reserve, the budget has not received the 
public's attention. I think we need to raise up the debate that is 
embedded in many of the propositions that are made in the President's 
budget.
  I do not think this is a run of the mill--these are the revenues, 
these are the expenses. By the way, we are going to have a $307 billion 
budget deficit, but that is not so important. This is a radical change 
from the direction that we in this country have been moving for a very 
long time. I don't think we are talking about it in those contexts, and 
I think the American people should understand the huge implications of 
its many far-reaching proposals.

  There are so many significant elements in this budget that it is 
difficult for me to actually even know where to start. The big picture 
is clear. The Bush budget is fiscally reckless, in my view, and 
imprudent in the extreme in the macroeconomic context, and would 
substantially reduce the security of America's working families for 
decades to come. I will try to go through some of that.
  But at the biggest level, when President Bush came to office we were 
projecting budget surpluses of $5.6 trillion over 10 years. We just 
preceded that with 3 years of budget surpluses. Since then that figure 
has declined by almost $8 trillion. We had projected $5.64 trillion in 
surpluses. Now in the same timeframe, until 2011, we are projecting $1 
trillion-plus in deficits. Where I come from in the private sector, if 
you have an $8 trillion negative cashflow, somebody would ask some 
questions about what is driving it, what is making such an overwhelming 
difference in the context of our financial posture with respect to 
fiscal affairs in this country. That is extraordinary.
  By the way, take that a step further. It was projected at the same 
time that we were going to pay down, for all practical purposes, the 
publicly held debt of the U.S. Government. That was in 2001, early 
2001--going down to $36 billion.
  Today, out to 2008, we are expecting a $5 trillion publicly held 
debt. That is extraordinary. That is an extraordinary amount of debt 
that will go on, not just to be financed by current generations of 
Americans. The view that we are not going to transfer to our kids and 
our grandkids future responsibilities to pay for what we are doing 
today, as we benefit from those expenditures--we are transferring it 
on. That is $5 trillion.
  By the way, it is a heavy burden not only in the debt that the 
current generation is transferring to future generations, but it is 
also an extraordinary expense. We are going from a $622 billion cost of 
our debt under the projections that were established in 2001 to, get 
this, $2.3 trillion we are going to spend--$2.3 trillion we are going 
to spend just to finance that debt, that change in that $8 trillion 
that comes across. That is what it is going to cost us over 10 years to 
finance the bad fiscal policies we are taking on.
  I don't know about most Americans, but I think they can figure out 
that we have lots of important things in this country that we could 
spend $2.3 trillion on, relative to this $622 billion, that we would 
have been able to spend if those changes had not occurred such as Leave 
No Child Behind, such as making sure our health care systems are 
properly funded, or that the Social Security trust fund is in place so 
Social Security can be in place. And maybe most importantly, we could 
protect Americans with something other than duct tape. We could 
actually put real protections in our ports, on our highways. We could 
make sure that the security surrounding our chemical plants across this 
country was in place. There are lots of things that this country could 
do if we had that $2.3 trillion that we are going to now give out in 
interest expense, many of those dollars going offshore, not even to 
Americans.
  I think it is absolutely irresponsible that we are putting ourselves 
in a position that we are going to run the kinds of deficits we are 
talking about. In fact, I think that was the overwhelming weight of the 
conversation we had with the Chairman of the Federal Reserve Board 
yesterday. If we do not get our fiscal house in order, we are going to 
put ourselves into a position where the United States is going to have 
not just small deficits and not just $2.3 trillion worth of interest 
expense, but we are going to see that explode in the years well beyond 
the next decade because that is when the baby boomers retire. We will 
go from 40 million retired Americans to 75 million retired Americans on 
Medicare and Social Security and that will put unbelievable pressures 
on what we have as a nation in our fiscal responsibility.

  So I find this a hard budget, at a macro level, for us to take on. I 
hope the American people can understand that we are burdening our 
children and our grandchildren as we go forward; that we really are 
putting at risk Medicare and Social Security as we understand it today 
as we go forward. Frankly, I think without a full discussion and 
without creating a full understanding in the minds of the American 
people, we are not doing our jobs. I think it is almost a question of 
ethics, about what our responsibility is to raise up this discussion so 
those choices are understood by the American people and not buried in 
some document of hundreds and hundreds of pages of numbers that really 
do not translate into the practical impact that the individuals need.
  I go back to it again. It is basic economics.
  We have had an $8 trillion swing in the cashflow of this government. 
There is no one I know who would think that is a positive way for us to 
approach the financial management of this country.
  To carry on with slightly more detail, as economists would say, this 
budget calls for a dramatic reduction in national savings. When you are 
borrowing all this money, that money isn't going into the private 
sector. It isn't going into areas of productivity and growth in this 
country.
  That is what we saw happen in the 1990s. We saw 22.5 million new jobs 
created, and we saw productivity rise from very low levels to the kind 
of high levels that are driving the successes of the economy in the 
late 1990s and continue to be the only really positive element we see 
in the economy today.
  When you have that capital going off to the Federal Government, it 
means less capital to be available to invest in plant and equipment and 
less capital to implant new technologies and new inventions, and to do 
research and medical advances. The end result almost inevitably will be 
lower economic growth in the future, if you carry those kinds of debt 
burdens into the future. That is not a conclusion based on partisanship 
or ideology. It is economics 101. Less savings means less investment 
which means lower growth.
  It is just that those are the truisms defined by the basic laws of 
economics. Less savings means less investment which means lower growth.
  By the way, when you are borrowing money at the $8 trillion level at 
the Federal Government, you are having less savings.
  That is just by definition. I guess that is why the 10 Nobel 
economists

[[Page S2246]]

yesterday put out the statement they thought we were on the wrong track 
with regard to our fiscal policy; that we were putting ourselves into a 
grave position with regard to our longrun fiscal structure. It is 
absolutely essential, in my view, that we stand back and get hold of 
the budget mess I think we are putting in place, if we go forward.
  Unfortunately, many administration officials have lately been denying 
the laws of economics, as far as I can tell, dismissing the importance 
of fiscal discipline. As OMB Director Mitch Daniels put it, while we 
have returned to an era of deficits, ``We ought not hyperventilate 
about this issue.''
  I guess we are just taking off the board all that discussion about 
balanced budget amendments, the No. 1 issue, and the Contract With 
America, all that discussion we had through the 1990s, all that 
discussion that the private sector has tried to impart to the public 
sector; that there really is competition for funds out in the 
marketplace; that deficits really do drive up long-term interest rates 
which, by the way, Chairman Greenspan once again reiterated very 
clearly and unequivocally yesterday; and that we hear consistent 
conversation about deficits do not matter to the investment function of 
the economy.
  It is hard to believe we are so blind to the fundamentals of 
economics. Supply and demand do matter. When there is demand for the 
credit in the marketplace for the Federal Government, it does impact on 
the private sector and the savings function.
  Comments like these--the one about hyperventilating about deficits--
make it seem like we are living in a strange twilight zone, in my view.
  As I said, we just came through a heavy period of discussion--
actually before I got into political life--about amending the United 
States Constitution to establish a rigid Balanced Budget Act. I do not 
know where that discussion went. I guess we had a change of heart and a 
change of mind at some particular point. But it really is hard for me 
to understand. I almost find it humorous, although I don't, really.

  We hear comments with regard to my Democratic colleagues that we are 
concerned about rising deficits. One of the leaders in the House 
dismissed the importance of fiscal discipline, arguing that ``The 
Soviet Union had a balanced budget.''
  I am not exactly how sure that fits into the overall structure of our 
debate. But I think it demonstrates we are making so light of this $8 
trillion--I repeat, $8 trillion--negative cashflow swing this 
government is now burdening our people with. It is serious.
  I come from a part of the world where you can tolerate some negative 
income for a short period of team, but, after a while, you go bankrupt. 
It undermines the reality of your financial success. It will for our 
Government. It may not go bankrupt, but we will be living with higher 
interest rates than we need be, and we will be losing the ability to 
see our private sector invest appropriately and basic saving functions 
as defined by economics.
  Think about it. Perhaps the most powerful Member of the other body, 
in effect, was comparing fiscal discipline to a failed regime on how 
operations work.
  I am really troubled about how light we are making this issue of our 
fiscal responsibility.
  Why are the administration and its supporters abandoning fiscal 
discipline? Quite simply because their overriding priority is to 
provide huge new tax breaks to those who are doing the best, I guess. 
There is no other basis of understanding. It looks to me like political 
policy as opposed to economic policy.
  Let us look at these tax breaks. As many of my Democratic colleagues 
have pointed out, they would provide relatively few benefits to working 
Americans. But, more importantly, they would do virtually nothing to 
create jobs or stimulate our economy. In fact, the Bush plan could well 
cost jobs, and I believe very clearly it is bordering on antigrowth. 
That is true for at least four reasons I would like to expand on.
  First, very simple, very little impact of that initiative the 
President has laid out--less than 5 percent of the growth package--
would kick in right away in 2003, and very little of it in 2004. Most 
of its impact would be delayed into the future, undermining the long-
term structure of our fiscal health, but doing little for the current 
package.
  By the way, those 10 Nobel economists yesterday also talked about 
temporary, short-term stimulus was needed to create demand in our 
economy--create demand now so we can pump-prime the economy and help 
get it going. And then we will see the growth of revenues be the basis 
of how we reestablish the cashflow to the Federal Government.
  By the way, we don't need to have all of these long-term cash cuts 
unless you are going to do it in a tax reform package. And, by the way, 
I totally agree with Chairman Greenspan. Double taxation on dividends 
is a bad idea. It ought to be done from a comprehensive, revenue-
neutral position of tax reform. No one would argue there is very little 
in tax difference. But it ought to be done with a comprehensive set of 
tax reforms. The American people understand that. They understand 
companies are paying only about one half of what they report on their 
income statements to the public when they try to sell their stock as 
taxable income. They are doing all kinds of things--some legitimate, 
some not so legitimate--to try to shelter income.
  We need to have a reform package that actually works--to raise 
revenues but also to make sure we don't have inhibition on American 
business in formation of capital such as taxes on dividends. But it 
ought to be on a comprehensive, revenue-neutral basis.
  I think most people, when they are honest and step back, will see the 
logic of that. Certainly the American people do.
  Second, the President's tax proposals provide, as I said, most of the 
benefit for those at the very highest incomes. These are the people 
least likely to spend a tax break. I think a better approach, as I have 
advocated with Senator Landrieu--and as Senator McCain talked about a 
``payroll tax holiday''--would target tax relief to middle-class 
working Americans who need help.
  By the way, I happen to think this ``payroll tax holiday'' and what 
Senator Landrieu and I talked about is really fundamental to how we can 
stimulate the economy today. Three out of four Americans pay more in 
payroll taxes than they do in income taxes. It is also the people who 
are stretched the hardest in trying to keep their budget together at 
home. By the way, individuals have to balance their budgets. So it is 
not exactly like they can walk away from running their debts up. We can 
do that in the Federal Government, but you cannot do that at the 
individual level. Otherwise, your creditors will come and see you and 
say it is time for you to sell your house.

  Third, the Bush plan to exempt most dividend income from taxation 
would have the effect of taking cash off the balance sheets of American 
corporations. That would mean less money to invest in plants and 
equipment and less money to hire new workers and retain old ones. In 
other words, it will depress the economy further as opposed to 
stimulating it.
  If you want to deal with double taxation on dividends, you do it at 
the corporate level. It might not be as politically attractive, but it 
would certainly be more rational that you would treat dividends as the 
equivalent of interest, and it would allow for the basic judgment of 
corporations as to whether they wanted to invest, pay dividends, hire 
new workers, or do whatever the economic, advantageous element of 
managing their business is about. But if you take the cash off the 
balance sheet, and pay it out in dividends, because you have an 
incentive to do that, you end up with far less of an incentive to grow 
the economy. And, in fact, you may very well get an incentive to stifle 
growth in the economy. I think it is very dangerous.
  Finally, whatever stimulative impact--and very few people think it is 
significant at all--the budget would have in the short-term, it is 
likely to be offset by those higher long-term rates, as projected 
future deficits shoot through the roof.
  I know the administration likes to claim there is no connection 
between deficits and interest rates, as I suggested, but the economic 
evidence is overwhelming that expectations of future deficits--that is, 
more Government competition for a limited pool of

[[Page S2247]]

capital--almost inevitably leads to higher interest rates.
  It was actually refreshing yesterday at the Senate Banking Committee 
to hear someone--who I do not necessarily always see eye to eye with, 
with respect to economic policy--make a clear and unequivocal statement 
that deficits do matter with respect to interest rates and the 
performance of the economy, and particularly with respect to the 
performance of the investment activities of this Nation. This is, 
again, simple supply and demand. If you have $8 trillion worth of 
deficits that you would not have had otherwise--or $5 trillion--it is 
going to compete with the private sector for capital. That, ultimately, 
is going to have something to do with the shape of our economy in the 
future, and it is absolutely the most important element of the savings 
function in the country.
  So the administration's tax breaks, in my view, for all of those 
reasons, are antigrowth as much as they are anything else. Again, I 
reemphasize that I think it is a political proposal, not an economic 
one. They have the effect of starving the Government of resources 
needed to protect the security of working families, while we are 
basically rewarding those who I think are doing reasonably well.
  The last I checked, in the 1990s, people did pretty well 
economically. There were more millionaires made in the 1990s, while we 
were creating 22.5 million jobs than I think we are doing so far in the 
new century. I wonder why it is that we think we need to have all these 
structural changes when, in fact, if we just get some demand going, 
taking up some of that overhang of excess production we have in our 
country, that we could get going.
  There are, though, some issues in this budget that go beyond these 
macroeconomic issues. And they are really important. I do not want to 
make light of them in and of themselves.
  I think budget deficits and whether you have a stimulus program or 
growth program are all fair questions, but are we going to continue as 
a nation to participate in helping protect the security of working 
families, protect the security of Americans everywhere?
  I think what is really radical about this budget is that it is 
beginning the process to undermine whether we are really going to 
provide that kind of support. Because we have to make choices, we are 
going to have to make choices whether we are going to run those 
deficits, driven in at least a significant part by the kinds of tax 
cuts we have, or whether we are going to retain some of those resources 
to be able to invest in the security of working families.
  I will take a few examples from the President's budget.
  First, the budget fails to provide funds that are badly needed to 
protect our Nation against the threat of terrorism. This is maybe the 
most important domestic issue. While there is some funding for some 
homeland security programs, we have really turned our back on a lot of 
the critical priorities, such as port security and border patrols.
  I heard today that actually we will have fewer people at border 
crossings, based on this budget, than we had prior to 9/11. I just 
visited the New York/New Jersey Port a weekend ago. The fact is, we are 
inspecting less than 2 percent--less than 2 percent--and that has not 
changed. We have been using that same number in debates on the floor of 
the Senate. It was not changed in our port at all.
  The resources are not being made available to check containers, and 
we are doing nothing to improve the safety and security of the American 
people--certainly the people in New Jersey and New York--with regard to 
our ports. We are doing nothing with regard to improving the security 
surrounding our chemical production facilities in this country. And all 
this just keeps going on and on, without putting our money where our 
mouth is with regard to homeland security. We talk about it as our top 
priority, and we do not put the resources with it.
  Time and time again, we have asked to try to increase the budget 
appropriations in this area and have not been able to do it. I think 
maybe it is the most important domestic issue. It is certainly on the 
minds of the people of New Jersey, and I suspect it is for most 
Americans.
  Second, the budget reneges on the President's promise to provide a 
meaningful prescription drug benefit for our seniors. Instead, the 
administration, in effect, forces millions of seniors to drop their own 
doctor and move to a private sector approach in order to secure a 
prescription drug. It moves away from fee-for-service plans. This 
amounts to a backdoor attempt, in my view, to privatize Medicare.
  We have not seen all the details, so it is a little hard to be as 
specific as I would like to be, but I have to tell you, if it is 
anything similar to the headlines we have heard in the State of the 
Union speech, there are a lot of us who are going to fight this tooth 
and nail. This is not the promise we have given to the individuals who 
have been paying payroll taxes for years and years with the expectation 
there will be a serious Medicare benefit at the end of the day. As you 
know, if anybody does any analysis, not only are the payroll taxes that 
go to Social Security being used to finance tax cuts for those who are 
already doing well, we are now using payroll taxes for Medicare to also 
do that. And we have gone through all those numbers. It is very hard to 
understand how we are putting this together.

  Many of my constituents say: What is going on with those payroll 
taxes that we are paying every day? We go to work with the expectation 
that we are going to get Medicare benefits and Social Security benefits 
at the end of the day when we retire. It is really wrong, and I hope, 
as we discuss this budget, that becomes clear and more clear to the 
American public.
  Third, the budget process proposes to gut health care coverage for 
the most disadvantaged Americans. Under the administration's plan, 
Governors, in effect, would be--I was going to say bribed--encouraged 
to leave the current Medicaid system and move to an alternative that 
probably would end up with poor and disabled Americans losing coverage.
  I tell you, I know in New Jersey that we have to cut the number of 
people who are accessing this, particularly kids in the Children's 
Health Insurance Program, because we do not have the resources to be 
able to deal with bringing them into these programs which have long 
been something that has provided broader health care.
  There is big, bipartisan support for a concept around here called 
Start Healthy, Stay Healthy, which is to bring prenatal care to a lot 
of our less economically enabled citizens. And it is through the 
Medicaid system and State programs. We are having to cut all of those 
kinds of programs because the resources are not available.
  I have to ask--anyone has to ask--is that what the administration 
means by ``compassionate conservatism''?
  I could go on and on with the misplaced priorities, from my point of 
view, of the administration's budget: Its underfunding or complete 
elimination of so many education programs, including afterschool care; 
its cuts in environmental protection--the riders included in the 
omnibus bill that is coming over which doesn't have to do with the 2004 
budget, is a mind-boggling way to legislate environmental laws--its 
abandonment of a program to put police officers on the streets, the 
COPS program--there are law enforcement officials who are enraged about 
their ability to continue to protect the public; again, it sort of 
relates to homeland security--its cuts for children's health insurance; 
its abolition of the HOPE VI homeownership initiative, which is one of 
the great programmatic efforts to try to get people to buy into their 
communities, to be a part of the community, a whole host of other 
housing programs.
  I could go on, and I probably will as the days go on, because these 
issues need to be identified in the mind of the American public. This 
is a budget that is changing the shape of what the role of the Federal 
Government is. Maybe that is what people want. Maybe they don't want 
afterschool programs for kids. Maybe they don't want the COPS programs. 
Maybe they don't want Leave No Child Behind underfunded. Maybe they do 
want it underfunded. Maybe they want no increase in affordable housing. 
Maybe they don't want them, but we ought to tell them what they are 
getting as opposed to piling it up into a whole host of numbers and 
covering it up with other things that

[[Page S2248]]

don't make it clear why we are doing what we are doing.
  I also want to talk about the administration's proposal to 
fundamentally change the tax treatment of investment income, another 
area where--a little bit of my background--it strikes me as really 
debilitating to the longrun fiscal posture of this country. I know 
proposals to allow sheltering of investment income sound attractive to 
many. I used to promote a few of them myself. I think we all agree 
about the value of expanding opportunities for all Americans to save, 
to better prepare for retirement. But when you look at the 
administration's proposal, it has little to do with promoting 
retirement security for working families.
  In fact, there are a whole series of these. For most Americans, these 
proposals are much more likely to undermine retirement security, and 
they will apply to a very narrow segment of American retirees or future 
retirees. Most Americans are not using all the tax-supported programs 
we have today. They are only using about 25 percent of them, if memory 
serves. And these programs will drain resources critical to the Federal 
budget to protect Social Security and Medicare in the future--again, as 
we go from 40 million retired seniors to 75 million. They represent a 
dramatic shift in the tax burden, a redistribution of wealth, to speak 
bluntly, to the benefit of those who have substantial investment income 
and to the detriment of people who depend on wages and support 
themselves and, by the way, pay payroll taxes.
  Once again, those people who are paying payroll taxes are funding tax 
breaks in the income tax system--really hard to understand.
  These new tax proposals are not merely radical in their 
redistribution of the tax burden, they are fiscally irresponsible and 
reckless in the context of our overall budget situation. There are a 
few elements of this program that need the light of day. They need the 
focus of the American people, whether it is homeland security, taking 
care of our kids' educational system, our health care, but probably 
most important, the longrun ability to fulfill the promise of Social 
Security and Medicare. That is what this debate is about. Are we really 
going to have the resources to do the kinds of things the American 
people have been promised?

  It is not enough to say: We don't want to do this. We have promised 
the American people they will at the end of the day have their Social 
Security benefits, guaranteed benefits. We need to make sure we have 
the fiscal structure that is in place that allows that to happen.
  This budget will not allow for that to take place. It needs lots of 
debate from the American people, lots of debate by the Senate, and a 
lot of debate in general until we get to a conclusion that is a long 
way from where we are starting.
  There is too much at risk here, too many jobs in the first instance, 
too much in the longrun investment in our economy, to grow our 
productivity, too much investment to protect the American people with 
regard to homeland security and the war on terrorism, too much risk 
with regard to health care and disparities, the ability to provide a 
meaningful prescription drug benefit to seniors, too much at risk with 
regard to Social Security.
  I hope we can truly flush out what the choices are being made through 
the context of this budget.
  I appreciate the opportunity to speak. It will be one of many times I 
would like to come to the Chamber to make sure the American people 
understand we have a radical reshaping of America's priorities through 
this budget. Frankly, it is a political statement, not an economic 
program. Nothing less than the future of our country is at stake. We 
need a real and serious debate about it.
  I yield the floor.
  Mr. REID. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Hagel). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, a number on the other side, in the majority, 
have lamented the fact that to get this man, Miguel Estrada, approved 
to be a circuit judge, it is going to take 60 votes. They ask, why 
can't we just have an up-or-down vote? Both Senators from Utah have 
talked about that today. Senator Bennett indicated it would be a 
tremendous change if we required 60 votes for Mr. Estrada. There are 
cartoons around the country today in support of our position--cartoons 
that have indicated nominees are coming through here and no one is 
asking any questions that are answered, and that there should be some 
answers forthcoming. But the issue is that in fact Mr. Estrada hasn't 
answered many important questions. That is one of the big problems.
  I found my colleagues' remarks very curious, lamenting the idea that 
it would take 60 votes to approve Mr. Estrada's nomination. They have 
lamented this, but I find this interesting because when President 
Clinton sat in the White House, his nominations were subject to 
anonymous holds by one or more Senators. Many were not provided 
hearings. Many were provided no votes. That is, rather than needing at 
least 41 votes to delay or block consideration of a nominee, 
Republicans allowed one Senator or a handful to block many of President 
Clinton's judicial nominees from getting hearings or votes.
  Mr. President, I have a list of nominees, and I ask unanimous consent 
that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Clinton Judicial Nominees Not Confirmed in Congress First Nominated


(31 Circuit/48 district--59 of these never allowed votes by Republican-
                           controlled senate)

   31 circuit court nominees (22 blocked from getting vote or being 
                               confirmed)

       Merrick Garland, D.C. Circuit. Allen Snyder, D.C. Circuit, 
     never given a vote by Republicans/not confirmed. Elena Kagen, 
     D.C. Circuit, never given a vote by Republicans/not 
     confirmed.
       Robert Cindrich, 3rd Circuit, never given a vote by 
     Republicans/not confirmed. Stephen Orlofsky, 3rd Circuit, 
     never given a vote by Republicans/not confirmed. Robert 
     Raymar, 3rd Circuit, never given a vote by Republicans/not 
     confirmed.
       James Beatty, 4th Circuit, never given a vote by 
     Republicans/not confirmed. Andre Davis, 4th Circuit, never 
     given a vote by Republicans/not confirmed. Elizabeth Gibson, 
     4th Circuit, never given a vote by Republicans/not confirmed. 
     Roger Gregory, 4th Circuit, never given a vote by 
     Republicans/not confirmed. J. Rich Leonard, 4th Circuit, 
     never given a vote by Republicans/not confirmed. James Wynn, 
     4th Circuit, never given a vote by Republicans/not confirmed.
       H. Alston Johnson, 5th Circuit, never given a vote by 
     Republicans/not confirmed. Enrique Moreno, 5th Circuit, never 
     given a vote by Republicans/not confirmed. Jorge Rangel, 5th 
     Circuit, never given a vote by Republicans/not confirmed.
       Eric Clay, 6th Circuit. Kent Markus, 6th Circuit, never 
     given a vote by Republicans/not confirmed. Kathleen McCree 
     Lewis, 6th Circuit, never given a vote by Republicans/not 
     confirmed. Helene White, 6th Circuit, never given a vote by 
     Republicans/not confirmed.
       Bonnie Campbell, 8th Circuit, never given a vote by 
     Republicans/not confirmed.
       Marsha Berzon, 9th Circuit. James Duffy, 9th Circuit, never 
     given a vote by Republicans/not confirmed. William Fletcher, 
     9th Circuit. Barry Goode, 9th Circuit, never given a vote by 
     Republicans/not confirmed. Ronald Gould, 9th Circuit. 
     Margaret McKeown, 9th Circuit. Richard Paez, 9th Circuit.
       Christine Arguello, 10th Circuit, never given a vote by 
     Republicans/not confirmed. James Lyons, 10th Circuit, never 
     given a vote by Republicans/not confirmed.
       Timothy Dyk, Fed. Circuit. Arthur Gajarsa, Fed. Circuit.
       (Helene White waited more than 1,500 days, never to be 
     allowed a hearing or a vote.)
       (Richard Paez waited more than 1,500 days to be confirmed.)


   48 District Court Nominees (37 blocked from getting vote or being 
                               confirmed)

       Steven Achelpohl, District Court, never given a vote by 
     Republicans/not confirmed. Ann Aiken, District Court. Richard 
     Anderson, District Court, never given a vote by Republicans/
     not confirmed. Joseph Bataillion, District Court, never given 
     a vote by Republicans/not confirmed. Steven Bell, District 
     Court, never given a vote by Republicans/not confirmed. John 
     Bingler, District Court, never given a vote by Republicans/
     not confirmed. David Cercone, District Court, never given a 
     vote by Republicans/not confirmed `02. Patricia Coan, 
     District Court, never given a vote by Republicans/not 
     confirmed. Jeffrey Colman, District Court, never given a vote 
     by Republicans/not confirmed. Valerie Couch, District Court, 
     never given a vote by Republicans/not confirmed. Legrome 
     Davis, District Court, never given a vote by Republicans/not 
     confirmed `02.
       Rhonda Fields, District Court, never given a vote by 
     Republicans/not confirmed. S.

[[Page S2249]]

     David Fineman, District Court, never given a vote by 
     Republicans/not confirmed. Robert Freedberg, District Court, 
     never given a vote by Republicans/not confirmed. Dolly Gee, 
     District Court, never given a vote by Republicans/not 
     confirmed. Melvin Hall, District Court, never given a vote by 
     Republicans/not confirmed. William Hibbler, District Court. 
     Faith Hochberg, District Court, never given a vote by 
     Republicans/not confirmed. Marian Johnston, District Court, 
     never given a vote by Republicans/not confirmed. Richard 
     Lazzara, District Court, never given a vote by Republicans/
     not confirmed. J. Rich Leonard, District Court, never given a 
     vote by Republicans/not confirmed. Stephen Lieberman, 
     District Court, never given a vote by Republicans/not 
     confirmed.
       Matthew Kennelly, District Court. James Klein, District 
     Court, never given a vote by Republicans/not confirmed. John 
     Lim, District Court, never given a vote by Republicans/not 
     confirmed. Harry Litman, District Court, never given a vote 
     by Republicans/not confirmed. Frank McCarthy, District Court, 
     never given a vote by Republicans/not confirmed. Donald 
     Middlebooks, District Court. Jeffrey Miller, District Court. 
     Margaret Morrow, District Court. Sue Myerscough, District 
     Court, never given a vote by Republicans/not confirmed. 
     Lynette Norton, District Court, never given a vote by 
     Republicans/not confirmed.
       Susan Oki Mollway, District Court. Virginia Phillips, 
     District Court, never given a vote by Republicans/not 
     confirmed. Robert Pratt, District Court. Linda Riegle, 
     District Court, never given a vote by Republicans/not 
     confirmed. Anabelle Rodriguez, District Court, never given a 
     vote by Republicans/not confirmed. Michael Schattman, 
     District Court, never given a vote by Republicans/not 
     confirmed. Gary Sebelius, District Court, never given a vote 
     by Republicans/not confirmed. Kenneth Simon, District Court, 
     never given a vote by Republicans/not confirmed. Christina 
     Snyder, District Court. Clarence Sundram, District Court, 
     never given a vote by Republicans/not confirmed.
       Hilda Tagle, District Court. Thomas Thrash, District Court. 
     Cheryl Wattley, District Court, never given a vote by 
     Republicans/not confirmed. Wenona Whitfield, District Court, 
     never given a vote by Republicans/not confirmed. Ronnie 
     White, District Court, never confirmed by floor vote. 
     Frederic Woocher, District Court, never given a vote by 
     Republicans/not confirmed.

  Mr. REID. They had mysterious holds and were not provided with votes 
of any kind and were simply not allowed to have their matters brought 
before the Senate. We would have liked the opportunity to even see if 
we could have stopped a filibuster, if that was what they wanted, but 
they simply would not bring them forward.
  I will name a few circuit court nominees. Out of 31 submitted who 
were not confirmed in the first Congress they were nominated, 22 were 
blocked by the Republicans from ever being confirmed. Allen Snyder, DC 
Circuit, never given a vote by Republicans, certainly not confirmed; 
Elena Kagen, DC Circuit, never given a vote by the Republicans; Robert 
Cindrich, Third Circuit, never given a vote; Steven Orlofsky, Third 
Circuit, never given a vote; Robert Raymar, Third Circuit, never given 
a vote; James Beatty, Fourth Circuit, never given a vote by the 
Republicans; Andre Davis, Fourth Circuit, never given a vote; Elizabeth 
Gibson, Fourth Circuit, never given a vote by the Republicans; Roger 
Gregory, Fourth Circuit, never given a vote by the Republicans, but 
finally, Mr. President, because President Clinton, in a recess 
appointment, appointed him, as a sitting judge, he was eventually 
confirmed; J. Richard Leonard, Fourth Circuit, never given a vote by 
the Republicans; James Wynn, Fourth Circuit, never given a vote by the 
Republicans; H. Alston Johnson, Fifth Circuit, never given a vote by 
the Republicans; Enrique Moreno--a Latino nominee--never given a vote 
by the Republicans; Jorge Rangel, Fifth Circuit, never given a vote--he 
is also Hispanic--Eric Clay, Sixth Circuit, and nothing happened with 
him; Kent Markus, Sixth Circuit, never given a vote by the Republicans; 
Kathleen McCree Lewis, Sixth Circuit never given a vote; Helene White, 
Sixth Circuit, never given a vote; Bonnie Campbell, Eighth Circuit, 
never given a vote; James Duffy, never given a vote; Barry Goode, Ninth 
Circuit, never given a vote; and Christine Arguello and James Lyons, 
Tenth Circuit, never given a vote.
  I just note that Helene White waited more than 1,500 days, never to 
be allowed a hearing or a vote. Richard Paez waited more than 1,500 
days, but there is good news there: He was finally confirmed. I spoke 
to that good man on a number of occasions during his time in ``legal 
limbo,'' or wherever he was, never being given a vote. But, finally, he 
had a hearing and he was confirmed after more than 1,500 days, more 
than 4 years.
  Mr. President, we submitted 48 district court nominees who were 
blocked in the first Congress they were nominated, and 37 were blocked 
from ever getting a vote or being confirmed. So for my friends to 
lament the fact that we are in the light of day, where we have told 
everybody here we are not going to allow Miguel Estrada to be confirmed 
unless he submits to proper questioning--I should not say proper 
questioning, how about proper answers--and unless we are allowed to 
review the Solicitor's memoranda that have been given to us on other 
occasions and unless he is forthcoming in answers to questions.
  These are not anonymous holds. We are telling the world that we will 
not allow Miguel Estrada to become a DC Circuit Court judge unless he 
does that. If he doesn't do that, the majority leader has three 
options: Pull the nomination, go forward to invoke cloture, or have 
this on the floor forever, which is something--boy, they are really 
giving it to us tonight. They are going to make us work late.
  That is what the leader said. We are going to work late. I said 
everything has been said about Miguel Estrada, just not everyone has 
said it. So we are going to have other people come and say the same 
things that have been said by approximately 20 Senators, and they will 
try to say it a little differently, but everything has been said.
  If the majority leader wants to take the time of the Senate and go 
forward on this nomination, not trying to invoke cloture, then that is 
his prerogative. He runs the floor. But there is other business we need 
to do. I know the omnibus bill should be here tomorrow. There are other 
judges we could approve perhaps. We approved three on Monday including 
Judge James Otero of California. So there is other business that could 
be done, but if he wants to have us stay late and keep talking about 
this person--we on this side believe there is a problem, and we feel it 
is our constitutional prerogative and duty to ask questions and have 
them answered.
  When we have someone who has a track record like this, where there is 
not much in the way of legal information other than some cases he 
handled, we should be able to review his legal memoranda he wrote when 
he was a member of the Solicitor General's Office.
  There were 48 district court nominees who did not get through the 
Senate in the Congress first nominated; 37 were blocked from getting a 
vote or being confirmed:
  Steven Achelpohl, district court, never given a vote by Republicans; 
Joseph Bataillon, district court, never given a vote by Republicans; 
Steven Bell, district court, never given a vote by Republicans; John 
Bingler, district court, never given a vote by Republicans; David 
Cercone, district court--once in a while there is some good news. David 
was not given a vote but eventually was confirmed.
  Patricia Coan, district court, never given a vote by Republicans; 
Jeffrey Colman, district court, never given a vote by Republicans; 
Valerie Couch, district court, never given a vote by Republicans; 
Legrome Davis, district court, never given a vote by Republicans 
finally allowed a vote once Democrats became the majority; Rhonda 
Fields, district court, never given a vote by Republicans; S. David 
Fineman, district court, never given a vote by Republicans; Robert 
Freedberg, district court, never given a vote by Republicans; Dolly 
Gee, district court, never given a vote by Republicans; Melvin Hall, 
district court, never given a vote by Republicans; Marian Johnston, 
district court, never given a vote by Republicans; Richard Lazzara, 
district court, never given a vote by Republicans; J. Rich Leonard, 
district court, never given a vote by Republicans; Stephen Lieberman, 
district court, never given a vote by Republicans; James Klein, 
district court, never given a vote by Republicans; John Lim, district 
court, never given a vote by Republicans; Harry Litman, district court, 
never given a vote by Republicans; Frank McCarthy, district court, 
never given a vote by Republicans; Sue Myerscough, district court, 
never given a vote by Republicans; Lynette Norton, district court, 
never given a vote by Republicans; Virginia

[[Page S2250]]

Phillips, district court, never given a vote by Republicans; Linda 
Riegle, district court, never given a vote by Republicans. This is very 
familiar to me because she is a bankruptcy judge from Nevada, still 
serving on the bankruptcy court. I nominated her. It simply did not 
move forward. I had a couple judges who did move forward and was very 
happy about that. Senator Hatch allowed me to move those nominations.
  Anabelle Rodriguez, district court, never given a vote by 
Republicans; Michael Schattman, district court, never given a vote by 
Republicans; Gary Sebelius, district court, never given a vote by 
Republicans; Kenneth Simon, district court, never given a vote by 
Republicans; Clarence Sundram, district court, never given a vote by 
Republicans; Cheryl Wattley, district court, never given a vote by 
Republicans; Wenona Whitfield, district court, never given a vote by 
Republicans; Ronnie White, this is a fine man. He was defeated in a 
surprise strict party-line vote, but his nomination at least was done 
in the light of day, and I appreciate that. That is better than all 
these anonymous holds and nothing never happens.
  Frederick Woocher, district court, never given a vote by Republicans.
  My friend, and he is my friend, Senator Bennett from Utah, a 
neighboring State--I have great admiration for him. He comes from a 
wonderful family. His father served in the Senate. He was very 
honorable. His wife is a friend. She is quite a musician. So I have 
only good thoughts about my friend, Senator Bennett, but I do say to 
the distinguished Senator from Utah that he should not come here and 
talk about what a terrible thing it is for us to require that Mr. 
Estrada answer these questions and submit the memos. This is something 
we are doing openly. We are not trying to hide what is happening in any 
way.
  I want to say one thing, I wanted to say it to him before he left the 
floor this morning, that I have been very honored to serve in the 
Senate. It is something I never dreamed could happen. I am every day 
aware of what an honor it is to serve in the Senate, and to serve with 
other Senators is an honor for me. This is unique.
  The two Senators from Vermont are in the Chamber. One just walked in. 
The senior Senator from Vermont has been in the Senate approximately 30 
years, and I have watched a magician--I say that in the most positive 
sense--perform his duties. I have the honor of serving with a senior 
member on the Appropriations Committee and the ranking member of the 
Judiciary Committee. I have so much admiration and respect for the work 
he does. He has been so fair. When people were saying, Don't do this, 
the senior Senator from Vermont stepped above the political fray and 
did what was right on many judges.
  I have come to the Chamber many times telling the Senator what a good 
job he has done, but I have not done it recently. I want the Senator to 
know the people of Vermont are so well served by his public service. 
The Senator from Vermont could go anyplace in America and make a 
fortune, literally, because of his legal skills and his experience in 
the Senate, but he has taken the more difficult path, and that is 
serving the Senate because of his love of public service.
  The people of Vermont are well served, but so are the people of 
Nevada. The people of Nevada benefit every day from the service of the 
Senator from Vermont.
  I am very grateful he is here helping us--not helping us, this is his 
committee. He is leading us on this most important matter to bring 
about some direction and responsiveness to the process which we are now 
going forward with.
  I see the other Senator from Vermont who is such a fine man. I want 
him to know how much I respect his service to the country, especially 
the work he does on the Environment and Public Works Committee. The 
environment is better because of the junior Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I want to thank my dear friend, the senior 
Senator from Nevada, for his comments. We have served together for a 
long time, as he said, on the Appropriations Committee. I have been in 
the Senate with several hundred Senators. I have been fortunate. Like 
the Senator from Nevada, I never knew I was going to be a Senator. I 
grew up in Montpelier, the State's capital. It had only 8,500 people. I 
lived almost diagonally across from the Statehouse.
  I remember as a child, probably about 4 years old, riding my tricycle 
through the halls of the Statehouse delivering newspapers to the 
Governor, playing on the Statehouse lawn, sliding in the snow. Suddenly 
one day, at the age of 34, I was being sworn in as a Senator and I 
think what a thrill it was. I was the junior most member of the Senate, 
but then I realized the best part of it is the people you get to know 
and serve with.
  Nobody has been more of a help, a mentor, a conscience for me, than 
the Senator from Nevada. Every morning when I come to work I look at 
the Capitol and I think this is a nation of 260 to 270 million 
Americans, so diverse, and there are only 100 of us who get a chance to 
serve at any given time. Only 100 Americans get a chance to serve and 
represent the whole country. Out of that 100, only 4 get to be the 
leaders of their party, the Republican leader and the deputy Republican 
leader, the Democratic leader, the deputy Democratic leader.
  I have served with a number of them, but I would say the Senator from 
Nevada, Senator Harry Reid, is one of the most extraordinary leaders 
the Senate has ever had. He has kept the old-fashioned virtue that was 
drilled into me by the first leader I knew, Senator Mike Mansfield. 
Senator Mansfield said, whatever you do--and this is far more important 
than how you vote--always keep your word.
  No Senator has a higher reputation for integrity and truth-telling 
than the Senator from Nevada, and that means a lot to me. I do 
appreciate the way he has watched the floor and brought dignity and 
respect to this debate. I admire him for it because, just as with the 
distinguished Presiding Officer, we all bring different experiences to 
the Senate. We all have different reasons for being here and we all 
have different life experiences.
  The distinguished Presiding Officer was a war hero. After serving, he 
began a business. He gained great experience in that field in his home 
State of Nebraska, and then he came to the Senate.
  The distinguished Senator from Nevada, of whom I was speaking, had 
varied experiences before coming to the Senate. He was a trial lawyer, 
a boxer, and a state official in Nevada. He even served as a Capitol 
police officer back in the days when many times they were chosen by the 
Senators of the congressional delegation from the particular State. All 
of these experiences of his he has brought to the Senate.
  Many times I have asked the distinguished Presiding Officer questions 
on military matters, not having had the experience of serving in the 
military. Considering how close he came to ending his life in Vietnam, 
the country has benefited by the fact he was there. I know as a result 
of his life being spared, I had the opportunity to gain another close 
and dear friend in the Senate.
  There are a few observations I would like to make before I go into 
the discussion I had earlier with both of the Senators from Utah about 
the administration's refusal to allow Senators to examine Mr. Estrada's 
writings--which, incidentally, is an unfortunate situation because Mr. 
Estrada told me and other members of the committee on both sides of the 
aisle he is perfectly willing to share and discuss his writings. He 
personally had no objection to his writings, his memos, his suggestions 
in the Department of Justice and elsewhere to be made public. He would 
have no objection to answering questions based upon what he wrote but, 
as he said, and he was very honest about this, the administration had 
told him he could not.

  Mr. Estrada said the administration told him he could not, which in 
itself is too bad because when this matter has come up many times 
before in history in connection with nominations for lifetime 
appointments as well as for short-term appointments, past 
administrations, Democratic and Republican, have allowed memoranda by 
Department of Justice attorneys to be examined by the Senate Judiciary 
Committee.

[[Page S2251]]

  I make this point speaking as one Senator, if Mr. Estrada were 
forthright and responsive to questions of Senators and if the 
administration sent these writings up and allowed Mr. Estrada to 
discuss them and answer questions about them--something Mr. Estrada 
himself has said he is perfectly willing to do--I may not like the 
candid and responsive answers, I may disagree with what is in the 
writings, but at that point I feel the questions have been answered, 
assuming he is forthcoming and we have the material, so then let us go 
ahead and vote for him or against him. But when my colleagues are going 
to vote for somebody on one of the most important courts in the 
country, at least we should do it knowing what is in the record and 
having meaningful, not evasive, answers to questions about his judicial 
philosophy, his views, and his feelings about legal decisions.
  Republican Presidents and Democratic Presidents have faced this 
question before. President Reagan, President Carter, and other 
Presidents did, and the material was forthcoming and the Senate then 
went on to make a decision based on what they knew about the nominees. 
This is the best way to do it.
  Before I discuss this precedent in more detail, I would like to note 
that this morning we had our third hearing in 2 weeks on the Judiciary 
Committee. This included the 16th nominee to receive a hearing, the 
fifth nominee to a circuit court in just two weeks. That is interesting 
because when a Democrat was President, the same Judiciary Committee 
chairman often took until the summer before having a hearing for these 
many nominees, especially this many circuit court nominees, many of 
whom have controversial or divisive records.
  I see the distinguished senior Senator from Utah on the floor. When 
he was chairman under a Democratic President, when the Democrat was 
making the nominations to the courts, it often took until the summer to 
have hearings for this many nominees, especially circuit court 
nominees. We are talking about having hearings for five circuit court 
nominee hearings by early February.
  In 1996, the Republican chairman did not hold hearings for five 
circuit court nominees all year. Of course, it was a Democrat 
President. Actually, no circuit court nominees were confirmed that 
year, and none of the four who were allowed a hearing were confirmed 
during that entire year.
  In 1997, when President Clinton had been in office now on his fifth 
year, we did not reach this number if circuit court nominees getting a 
hearing until September. Now the Committee has done it in just 2 weeks. 
It is interesting because there have been questions of partisanship. 
Now the Senate Judiciary Committee does in 2 weeks with a Republican 
President, with the same chairman, what took 9 months--more than 35 
weeks--to do with a Democratic President.
  I think that sort of demonstrates what the partisanship is. In fact, 
there is a nomination hearing being held this morning for a seat that 
has been vacant since 1999. One part of me says good, it is about time 
we have had a hearing for that vacancy, but President Clinton nominated 
two people to that vacancy. This was to the Court of Appeals for the 
Tenth Circuit. One is the Honorable James Lyons who was blocked for 
partisan political reasons. There was an anonymous hold on the 
Republican side.
  I mention this because also coincidentally we hear a lot about 
somebody getting the highest rating from the American Bar Association, 
actually from a screening committee which is now headed by a close 
friend and supporter of President Bush's. This nominee of President 
Clinton's had the highest rating possible. He could have easily been 
confirmed, but anonymous holds, not open holds but anonymous holds, on 
the Republican side stopped it. He was not even allowed a hearing or a 
vote in the committee. So the President nominated a second person, 
Christine Arguello, a Latina nominee. She had bipartisan support. She 
was supported by both her home State Senators. One would think she 
would get at least a hearing or a vote in the committee. No. A number 
of people were nominated after her and were given hearings and votes, 
but this Hispanic American woman was not. Under Republican control of 
the Senate, Professor Arguello was not even given a hearing, to say 
nothing about a vote.

  Regarding the document request related to Mr. Estrada's nomination, 
he has told both Senator Hatch and myself, as well as several Members 
of the Senate, that he is perfectly willing to show us his writings and 
respond to them and answer questions about them, but he has been told 
by the administration that he cannot; the administration, however, 
would review those writings. They are the only ones who know whether 
this direct evidence of his views, the interpretation of law, is 
accurate or misleading--they are the only ones who have access to it 
and they say, basically: Trust us. In carrying out your constitutional 
duties of advise and consent: Trust us. Give someone a lifetime 
appointment of one of the most important posts in the country: Trust 
us.
  Mr. HATCH. Will the Senator yield on that one point? I have some new 
information.
  Mr. LEAHY. I will yield on the basis that I will be allowed to retain 
the floor, to which I know the Senator from Utah does not object, and I 
want to continue then. Because of my deep respect and quarter century 
of friendship with the distinguished Senator from Utah, I yield.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. And we do have mutual friendship.
  I have done some checking on this, and I thought I would bring it do 
the attention of the Senator. They tell me at the White House that they 
have never, the Justice Department has never given out these materials 
requested by the Democrats--not in the Bork case, not in any other 
case.
  Now, in the Bork case they did give materials that pertained to his 
dismissal of Archibald Cox during Watergate, specific materials, but 
not a widespread fishing expedition. And there is a reason they do not 
want to give these documents up--because they are privileged, they are 
a work product of the Solicitor General's Office, they are crucial to 
the Solicitor General's Office functioning well.
  I bring that to my friend's attention because the arguments that have 
been brought up have been not persuasive, they are not accurate, and 
frankly in the other people beside Judge Bork, there is no record at 
all that the Justice Department ever gave those documents to those 
people. Somebody may have leaked them, but the Justice Department did 
not give them.
  I thank the Senator. I just wanted to tell the Senator that I think 
this is a red herring.
  Mr. LEAHY. Retaining my right to the floor, I ask the Senator from 
Utah to hear my speech because it may be that whoever he talked to at 
the White House may be new or may not be aware of this.
  Here are some of the memos past White Houses have provided us. They 
are still in the files here. They are pretty extensive. Included in 
this large volume are some of the same memos written by attorneys to 
then-Solicitor General Bork, as well as memos related to the 
nominations of Justice William Rehnquist to be Chief Justice, of 
Bradford Reynolds, the Reagan Associate Attorney General for Civil 
Rights to be Associate Attorney General and other nominees to short-
term or lifetime appointments.

  I really do want to finish my speech, and I think that then the 
Senator from Utah will understand what is going on--with Mr. Reynolds, 
Mr. Benjamin Civiletti, in his nomination to become Attorney General, 
and other past nominees. I will not put them in the Record now, but if 
my friend from Utah will bear with me, he will see what happens on 
this, and I will lay out the case where this has been done over and 
over again in the past.
  This is a case where the administration asks for the Senate to advise 
and consent to a lifetime appointment, something that will go on well 
after most of us have left the Senate, but the administration does not 
want to provide information and memoranda relevant to this nomination. 
The administration has done this in both judicial and executive 
nominations. Even this very administration has done so in another 
nomination for a short-term position, but it has refused to do so in 
the case of Mr. Estrada.

[[Page S2252]]

  I wonder--and of course if the Senator wishes me to yield, I will--I 
wonder if he would give me the courtesy of hearing some of these 
points.
  Mr. HATCH. If I could ask one question, and of course I will listen 
to the Senator.
  It is my understanding that the Democrats have asked for memoranda of 
appeals, certiorari petitions, and amicus curiae. Does the Senator have 
any indication that any documents pertaining to recommendations of 
appeals, certiorari, or amicus curiae have ever been given by the 
Justice Department?
  Mr. LEAHY. I do have evidence of exactly that. If the Senator would 
let me finish my speech, he would understand that.
  The current White House has disclosed to the Senate legal memorandum 
writing by an attorney of President George H.W. Bush's White House 
Counsel's Office in connection with the nomination of Jeffrey Holmstead 
to be Assistant Administrator of the Environmental Protection Agency, 
and, interestingly enough, this was a position of far less duration and 
importance than a lifetime judicial appointment.
  In Mr. Estrada's case, the White House will not provide any of the 
information sought. That bothers me. I wonder what is in there. They 
seem to be saying: We have looked at it; trust us, it is OK. Well, I 
remember the made-up Russian proverb that President Reagan speech 
writers came up with: Trust, but verify. Even though there was no such 
proverb, I thought it was a great saying, so I will use the same one.
  The administration's claim that such a request is unprecedented, as 
the distinguished Senator from Utah suggested, is actually wrong within 
the administration's own knowledge, even their own history. It is also 
wrong with respect to prior administrations and the confirmation 
history of the Judiciary Committee.
  What is happening is the White House seems willing to rewrite history 
for this case. I suspect if that is to be allowed, then the next 
difficult confirmation that comes up, the history will be rewritten 
again and the Senate will be stonewalled again.
  The facts, I say to my friend from Utah, are these. The Senate has 
requested, and past Justice Departments have provided, similar 
memoranda such as memoranda related to appeals, certiorari petitions, 
and amicus curiae--the decision to join a case as a friend of the 
court--written by attorneys of the Department of Justice. They have 
done this in connection with the nominations of Robert Bork to become 
Associate Justice of the Supreme Court; William Bradford Reynolds, 
Assistant Attorney General for the Civil Rights Division, to become 
Associate Attorney General; Benjamin Civiletti, nominated by President 
Carter to become Attorney General; Stephen Trott, nominated to become a 
judge in the Ninth Circuit; and then- Justice William Rehnquist, who 
was nominated by President Reagan to become Chief Justice--among 
others.
  I did not get a chance to go to the gym this morning, but I guess I 
can almost get as much exercise in picking up and holding some examples 
of the memoranda that have been provided by both Republican and 
Democratic administrations in the past, the exact same type of 
memoranda to the Solicitor General, as well as other similar legal 
memoranda, that we now ask for on Mr. Estrada. So the real red herring 
is to assert that there is no precedent and to claim that no such 
documents have never been shared with the Senate Judiciary Committee in 
past nominations, and to say therefore that the Senate cannot examine 
such documents and that they will not accommodate the committee's 
request. Mr. Estrada has stated, and I admire his candor in doing this, 
that he is proud of his memoranda and has no personal objection to us 
seeing his memoranda and he has no objection to answering questions 
based on what he wrote. The administration, however, says: We object. 
That objection is based on a complete rewriting of the history of such 
requests and past cooperation and accommodation. They have refused to 
allow Mr. Estrada to answer many questions and they have refused to 
allow the Senate to look at his memoranda.

  The Committee's request, however, is well within the practice of the 
Senate in prior administrations.
  What does seem to be said by the administration is we cannot ask for 
this because we have not asked it in relation to every judicial nominee 
who has ever worked at the Department. Many who worked there and who 
were nominated did have lengthy careers or academic writings or had no 
controversy about being unable to set aside deeply held beliefs, unlike 
the stealth candidate before us. The administration also ignored the 
fact that when the Senate Judiciary Committee has requested memoranda 
written by nominees for term and lifetime appointments who worked at 
the Justice Department, past Justice Departments have accommodated past 
Congresses upon the request.
  We get a lot of paperwork on nominees. Sometimes we ask for more and 
sometimes we ask for less, depending on the record before us. But when 
we have asked for it, everybody, except this administration, has 
allowed it and not stonewalled us. In fact, I have been here for 29 
years and I do not know of a time when the Justice Department has taken 
such an uncooperative approach to a request for information relating to 
a nomination.
  History shows the Senate does not always seek information it has the 
power to seek. We could ask for a whole lot of things that would be 
relevant to entrusting a person with a lifetime appointment as a judge. 
Often we do not ask. Sometimes there does not seem to be a need for it 
because there is enough other information on the record.
  But when the requests have been made, they have been honored by prior 
administrations that have followed a policy of accommodation in 
response to a request from a co-equal branch of the Government for 
relevant information related to constitutional responsibilities, 
especially related to nominations.
  This administration has not taken this position. Instead, they seem 
to be saying: We know what is there, just trust us. Rubberstamp what we 
send up to you. Don't ask any questions. Be quiet little boys and 
girls, just approve our lifetime judges and leave us alone.
  The irony with all this is that they don't want to show us this 
material so we could make an objective analysis and not look to second 
hand evaluations, but they are perfectly willing to go to some of these 
files and take out selective pieces and give them to the supporters of 
the nominee and give them to the press or leak them to the press. They 
want to have it both ways. They are more than happy to use anything 
from a confidential Government file they think will help them, but they 
don't want to disclose the entire record because they don't want to 
have it in context because then the truth may hurt.
  If this is how the administration and Department of Justice approach 
our shared constitutional responsibility for the appointment to high 
office, how are we to have confidence in them in their other 
representations about so many things critical to how our Government 
functions and how they exercise the enormous power entrusted to them as 
a function of the public office they occupy? How are we to accept it 
when they say, We don't want to talk about this but trust us? Yet when 
we ask questions about things we legitimately believe could be looked 
at--nothing classified, nothing confidential--they say they still don't 
want to show us that.

  We talked about the performance evaluation. The administration and 
Republican supporters of Mr. Estrada have sought to exploit his 
performance evaluation.
  Let's go to the whole story on that. They keep saying Professor 
Bender gave the highest evaluation to Mr. Estrada when he was at the 
Department of Justice. They claim that is all you need to know. They 
say we can't give you anything else in the file, but we will show you 
this one thing.
  Well, this is not quite the whole story. There is a letter received 
from Professor Bender this week. It was sent to Senator Hatch and the 
members of the committee. I assumed, since Senator Hatch had been 
putting so much in the Record, he would probably put this in. He 
somehow didn't.
  This is what Professor Bender's letter says in part. I would like to 
have the entire letter printed. He says:


[[Page S2253]]


       It has come to my attention that, in responding to 
     statements I made to the press several months ago regarding 
     the Estrada nomination, you [Senator Hatch] have said, both 
     to the Judiciary Committee and to the full Senate, (1) that I 
     have since changed my opinion about the nomination, and (2) 
     that performance evaluations of Mr. Estrada's work that I 
     signed in 1995 and 1996, when I was Principal Deputy 
     Solicitor General, are inconsistent with the views about the 
     nomination that I gave to the press. I am writing this to 
     correct those statements of yours.
       No. 1. I have not changed my opinion of the nomination--
  That is, the adverse opinion he had, in which he opposed the 
nomination of Mr. Estrada.
  He said:

       I have not changed my opinion of the nomination, nor have I 
     ever said to anyone that I had changed my opinion. . . . I 
     have not changed that opinion in any respect.

  This is dated February 10, 2003. He can't be any more specific than 
that. He was opposed to his nomination before. He is opposed to his 
nomination since.
  Then he says, speaking of the performance evaluations of Mr. Estrada, 
these:

       . . . are not inconsistent with my published statements [of 
     opposition to him.] To the best of my recollection, it was 
     the policy of the Solicitor General's Office at the time to 
     give every Assistant to the Solicitor General exactly the 
     same performance evaluation.

  These things could have been printed up a month before.

       The language in the Performance Achievements portions of 
     Mr. Estrada's evaluations was not written by me, nor did I 
     fill out the Employee Appraisal Record form.

  Then he goes on to say:

       I believe that the Solicitor General's Office had the 
     policy of giving each of the Assistants exactly the same 
     Excellent rating each year.

  And he stated why? Of course. It paid them the highest salaries 
permitted by the Government. Everybody they hired had those highest 
salaries. To keep the highest salaries, they had to have the excellent 
rating.
  I ask unanimous consent to have the letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     Arizona State University,

                                     Tempe, AZ, February 10, 2003.

     Renomination of Miguel A. Estrada to the United States Court 
         of Appeals for the District of Columbia Circuit.

     Hon. Orrin Hatch,
     U.S. Senate,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Hatch: It has come to my attention that, in 
     responding to statements I made to the press several months 
     ago regarding the Estrada nomination, you have said, both to 
     the Judiciary Committee and to the full Senate, (1) that I 
     have since changed my opinion about the nomination, and (2) 
     that performance evaluations of Mr. Estrada's work that I 
     signed in 1995 and 1996, when I was Principal Deputy 
     Solicitor General, are inconsistent with the views about the 
     nomination that I gave to the press. I am writing this to 
     correct those statements of yours.
       1. I have not changed my opinion of the nomination, nor 
     have I ever said to anyone that I had changed my opinion. 
     Someone must have inadvertently given you incorrect 
     information about this. When asked by reporters what I 
     thought of the nomination when it was first made (I assume I 
     was asked because I have been one of Mr. Estrada's 
     supervisors in the Solicitor General's Office), I stated my 
     honest opinion, to the best of my ability. I have not changed 
     that opinion in any respect.
       I have declined to keep stating the same views to the 
     press, over and over again, because I am not engaged in, and 
     do not wish to seem to be engaged in, any kind of campaign or 
     crusade against Mr. Estrada. I did not volunteer my negative 
     comments to anyone, either in the press, the government, or 
     elsewhere. I was asked my opinion and I gave it. Having done 
     so, I did not see any reason to keep repeating it to 
     reporters who called. My opinion has not changed.
       2. The ``Excellent'' performance evaluations of Mr. Estrada 
     that I signed in 1995 and 1996 are not inconsistent with my 
     published statements about the nomination. To the best of my 
     recollection, it was the policy of the Solicitor General's 
     Office at the time to give every Assistant to the Solicitor 
     General exactly the same performance evaluation. The language 
     in the Performance Achievements portions of Mr. Estrada's 
     evaluations was not written by me, nor did I fill out the 
     Employee Appraisal Record form. You will notice, in examining 
     the Performance Appraisal Record form, that the language in 
     the Performance Achievements portion was taken, word for 
     word, from the printed Performance Standards that precede 
     each part of the evaluation form. As far as I can remember, 
     an administrator in the Solicitor General's Office prepared 
     identical ``Excellent'' evaluations for each Assistant each 
     year, taking the language directly from the printed 
     performance standards. I do not think this practice is an 
     unusual one in the government.
       When these filled-out-forms came across my desk, I believe 
     that I asked the Solicitor General what to do with them, and 
     that he asked me to sign them, as written, as the Rating 
     Official. I did as he requested. He then signed them as the 
     Reviewing Official. No actual individual written evaluation 
     was done by me--or, so far as I know, by anyone else--in 
     connection with these evaluations for any Assistant to the 
     Solicitor General. They were boilerplate.
       I believe that the Solicitor General's Office had the 
     policy of giving each of the Assistants exactly the same 
     Excellent rating each year because it hired only the most 
     highly qualified lawyers and it paid them the highest 
     salaries permitted by the government. ``Excellent'' ratings 
     were necessary to justify these salaries. I signed the 
     already filled-out Performance Evaluation forms, as they were 
     give to me, as part of that policy.
       Since my views seem to be relevant to the Senate's 
     consideration of the nomination, I would appreciate it if you 
     would share this information with your colleagues who are 
     considering the nomination. I thank you in advance for this 
     consideration.
           Sincerely,
                                                      Paul Bender,
                                                 Professor of Law.

  Mr. LEAHY. Mr. President, I am doing that because Professor Bender 
asked that this be made known to the Senate, especially as he has been 
quoted as having changed his mind. He still opposes Mr. Estrada. I will 
quote him again. He says:

       I have not changed my opinion of the nomination, nor have I 
     ever said to anyone that I had changed my opinion.

  He makes it very clear that he feels he has been misquoted on the 
Senate floor. He may feel it was done inadvertently. He said, ``Someone 
must have inadvertently given you incorrect information about this,'' 
making it very clear that he was misquoted.
  I know what he means. It is easy to get misquoted around here. 
Earlier this week a Republican Senator misquoted me in the Senate 
Chamber. The Senator who purported to quote my words certainly could 
not have known that he was quoting me incorrectly. I can't believe--I 
would be shocked to think somebody would come here and quote me out of 
context or incorrectly to make a partisan point. I would be as shocked 
as Claude Raines was in ``Casablanca.''
  So people understand, the statement I did make on June 18, 1998, was 
to protest the anonymous Republican hold in the consideration of the 
judicial nomination of Judge Sonia Sotomayor. The nomination of Judge 
Sonia Sotomayor was held up, as I have stated before, for months and 
months and months by anonymous holds. She had been nominated by 
President Clinton to the Second Circuit Court of Appeals. I believe she 
was the very first Hispanic woman to go to that court of appeals. 
Everybody assumed her to be a slam dunk. She had been originally 
appointed by President George H.W. Bush to the district court. But 
Republicans allowed anonymous holds and nobody on the Republican side 
would say who was holding her up, but they held her up.
  I am saying I would never do this to a judge. What I said was I would 
refuse to put an anonymous hold on any judge. I never have put an 
anonymous hold on a judge. If I wanted to delay for whatever reason a 
nomination, I state it on the floor as I am doing now, in the light of 
day, not the cloak of secrecy.
  The portion of my speech about anonymous holds--like some speeches I 
made in the years 1996, 1997, 1998, 1999, and 2000--were not heard on 
the other side of the aisle. That is probably why they now misquote it. 
I am sure it is an inadvertent misquote. I think it is because they 
didn't hear it. They certainly didn't hear it at the time because they 
continue to use the ``anonymous holds.'' It is a practice I put an end 
to when I was chairman of the Judiciary Committee. But when Republicans 
controlled the Senate in years past they held up scores of judicial 
nominees of President Clinton, and never allowed them to come to a vote 
by ``anonymous holds'' of a single Republican Senator or more than one.
  I am not surprised that they misquote me on the floor, because they 
didn't hear my speech at that time. In this case, people should 
understand what was happening.
  Judge Sonia Sotomayor's nomination was delayed by anonymous 
Republican holds and was on the Senate calendar for months and months. 
She was favorably reported by the Judiciary Committee in early March of 
1998. But then

[[Page S2254]]

her nomination was stalled without explanation or accountability on the 
calendar without Senate action. Even after I made my speech criticizing 
anonymous holds and stating that I would never put on such an anonymous 
hold, her nomination continued to be delayed for several more months to 
the very end of the session of Congress. It was actually delayed, I 
think, for 7 months. When it finally came up, 29 Republican Senators 
voted against confirmation of Judge Sonia Sotomayor for the Second 
Circuit.
  I went back and checked the Congressional Record. They are not 
required to, of course, but you would think after voting against a 
judge, or having anonymous holds on a judge for a long period, there 
would be at least one or two words in the Congressional Record 
explaining why this was done. They don't have any requirement to do 
that, but I think it would have been nice. If they carry out an 
anonymous hold like that for all of those months, you might say, Why?
  I mention this because there seems to be a lot being overlooked. When 
that same Republican Senator quoted part of a colloquy between me and 
the then-majority leader, Trent Lott, I suspect that he did not really 
recall the discussion, or he would not have had it so wrong here on the 
floor.
  I will read again what Senator Lott, the Republican leader, said at 
that time:

       [T]here are not a lot of people saying: Give us more 
     Federal judges. They just are not. For us to be pontificating 
     about this and gnashing, how unfair, this appointment of more 
     Federal judges, It is just not there. . . . Some people might 
     argue that we have plenty of Federal judges to do the job. I 
     hope they will do that. I am saying to you, I am trying . . . 
     but getting more Federal judges is not what I came here to 
     do.

  The distinguished Presiding Officer was not in the Senate at that 
time. But he may recall Justice Ronnie White came from his State.
  The nomination of Ted Stewart to the District Court in Utah was also 
very controversial. A lot of the so-called ``liberal groups'' the 
distinguished chairman is fond of excoriating around here opposed Mr. 
Stewart. A lot of the same groups the distinguished senior Senator from 
Utah implies control things around here opposed Mr. Stewart.
  I voted for Mr. Stewart. I was one of those Democrats who should not 
be lumped together. In fact, a whole lot of Democratic Senators voted 
for Mr. Stewart, even though he was strongly opposed by groups that are 
normally aligned with Democratic interests, especially those who 
support a clean environment in this country.
  Then there was, of course, the nomination of Justice Ronnie White. He 
also was supported by every Democratic Senator. And every single 
Republican, including those who had voted for Ronnie White in 
committee, came down on the floor and voted against him.
  I do not recall anything like that ever happening on the Senate 
floor.
  His nomination was rejected by a party-line vote of Republics--it was 
quite unusual to vote down a district court nominee, especially one who 
had been voted out by the Judiciary Committee. Some of the same 
Republicans who voted for him before the committee voted against him on 
this floor. This superb African American jurist was humiliated and 
defeated.
  It took several more months of hard work to obtain votes on the 
nomination of Judge Paez and Marsha Berzon.
  Again, these anonymous Republican holds held them up until March of 
the following year 2000.
  Again, as I said, I will always oppose such anonymous holds.
  Even then, after obtaining a vote of Judge Paez's nomination to the 
circuit court involving overcoming several procedural hurdles and 
several votes before we were finally able, after more than 4 years of 
trying--4 years it sat here--this distinguished Hispanic jurist finally 
got a vote. Then 39 Republicans voted against the nomination, including 
a number of Republican Senators who were involved in yesterday's debate 
saying it would be a terrible and unique precedent if we don't 
immediately vote for a Hispanic who is nominated to the court of 
appeals, in this case, Mr. Estrada.
  They were perfectly willing to block floor votes for years before. I 
am not sure what the difference is. They both have supporters.
  I do recall the difference now. One was appointed by a Democratic 
President and one by a Republican President. Like I said, that seems to 
be all the difference in the world.
  In the debate, my Republican colleagues speak of the weight of the 
letter from the former Solicitors General and Acting Solicitor General. 
They say this is definitive and assert that the Senate has no right to 
ask these questions.
  Immediately, the independent 100 Members of the Senate say, My gosh. 
These guys who held these important staff positions at the Department 
of Justice are telling us we can't ask questions; that we should 
immediately run for cover, and say, of course, we will not ask 
questions.
  I don't quite read the Constitution that way.
  In fact, I frankly didn't get elected to the Senate and take my oath 
of office and decide at that point I will vote or take actions based 
upon what somebody who worked for the Attorney General tells me to do 
or not do as a Senator. I don't care which attorney general it might 
have been, Republican or Democrat. It is not in the cards.
  But I was concerned. I know of these former Solicitors General from 
both Republican and Democratic administrations. For many of them, I was 
impressed with their legal abilities. So I am struck with their 
letter's ignorance of the precedents. I do not know who wrote the 
letter, but one of the people who signed it was Robert Bork. But I 
doubt he wrote it because his own nomination provides some of the 
strongest precedent for the requests we are making.

  I do not fault them for seeking to maximize the secrecy of executive 
branch memoranda and deliberations, although I am surprised they are 
willing to do that at a time when we have the most secretive 
administration I have ever known out of the six administrations--I came 
here right after the Nixon administration, so I cannot speak for the 
Nixon administration. But this administration is certainly far more 
secretive than the other ones I have served with before: the Ford, the 
Carter, the Reagan, the first Bush, and the Clinton administrations.
  This letter states a policy preference and has been misinterpreted by 
some as a statement of law, or privileged, which it is not. I want to 
emphasize that. They state what they think the policy should be. They 
do not state what the law should be. Therein lies an enormous 
difference. They are not writing this based on their legal knowledge, 
saying this is the law. They are saying: This is what we think the 
policy should be.
  Well, I have always felt, on these kinds of issues, Senators should 
make that policy. Especially we should make the policy of what we are 
going to ask for in confirmation hearings. That was done at the time of 
our nation's first leader, President George Washington in cooperation 
with the Senate. I would note that in 1795, four years after the 
Constitution was adopted, the Senate defeated one of the judicial 
nominations of President Washington, that of John Rutledge and that 
vote was based on differences between many of the Senators and Justice 
Rutledge regarding ideas and policies. The Senate's consideration of 
judicial nominees and their views and approach to the law has been done 
by every Senate since.
  It is especially difficult to understand, hearing the sudden urge on 
the other side of the aisle that: Oh, my gosh, we have to keep 
everything in the executive branch confidential. Well, Congress passed 
the Presidential Records Act to require the opposite, that memoranda 
and writings of advisors to the President be made public.
  Additionally, I would not that some of the same Senators made demand 
after demand for internal documents of the Clinton administration over 
the last several years. They were asking for things that had never been 
asked for before, such as information related to on-going 
investigations. In fact, I think the Republican-led Senate spent tens 
of millions of dollars--tens of millions of dollars--of the taxpayers' 
money asking for document after document, many of which were probably 
were never read. I would be willing to bet some are still sitting in 
the envelopes they were transmitted in. And it was done almost every 
day: Let's think

[[Page S2255]]

of something else to ask for. And it was sent. And the taxpayers were 
paying for it.
  Now, if you have something that is relevant to the core functions of 
the Senate, especially the confirmation function, then it is 
appropriate to ask for it. This is especially so for the only positions 
in our whole system of government that are for life--these judgeships 
are lifetime appointments. The Senate cannot amend these decisions, 
like a law, if we make a mistake.
  The administration's assertion that the documents produced to the 
committee during the Bork nomination did not reveal internal 
deliberations is way off the mark--way off the mark. When they say this 
did not reveal internal deliberations, that is way off the mark. It is 
quite clear the Department provided the Senate with memoranda written 
to Mr. Bork by lower level attorneys, those who were in the exact same 
capacity as Mr. Estrada, making recommendations about appeals in a 
variety of cases.

  For example, the Justice Department provided the Senate Judiciary 
Committee with memoranda related to the Justice Department's legal 
analysis of school integration cases, such as memoranda from Frank 
Easterbrook when he was an Assistant Solicitor General and Bork was 
Solicitor General. The Easterbrook legal memo and similar memos were 
shown as examples at Mr. Estrada's recent hearing as part of the large 
volume of legal memoranda provided by the Reagan Justice Department and 
examined by Senators and key staff.
  Senator Dodd, in an excellent speech, referred to some of these 
materials last night in debate. Not all of the information disclosed 
was previously placed in the Estrada hearing record, so I ask unanimous 
consent, Mr. President, to have printed in the Record a sample of the 
correspondence between Senator Biden, who was the then-chairman of the 
Judiciary Committee, and the Justice Department, which demonstrates the 
substantial cooperation and the types of disclosures the Justice 
Department made to accommodate the Senate in past administrations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                 Office of Legislative Affairs

                                     Washington, DC, May 10, 1998.
     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.
                                  ____

         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;
       l. 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 v. 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);

[[Page S2256]]

       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, dated October 20, 1973, discharging 
     Mr. Cox from 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. TALENT assumed the Chair.)
  Mr. LEAHY. I put that material in the Record because it stands in 
stark contrast to the total lack of cooperation by the current 
occupants of the Justice Department.
  The administration, quite inappropriately, I believe, refuses the 
request of a coequal branch of Government. To quote a friend of mine, 
one who went to the same law school I did, at about the same time: We 
are not potted plants up here. The Senate has demonstrated its role in 
the confirmation of judges from the beginning of this country's 
history. After all, the Senate rejected some of President George 
Washington's and President Madison's judicial nominees. But let's go 
ahead with what has happened here. It makes me wonder if there is some 
kind of huge disconnect at the administration, or whether they are 
getting all their information based on some of the things that were 
wrongly stated on the Senate floor.
  What happened first is, the administration claimed: We cannot send up 
this material, these memos of Mr. Estrada because we never provided 
internal legal memos in the past. Then, of course, we gave them 
evidence: Well, yes, previous administrations had. Then the 
administration says: Whoops, well, those were different. They are 
distinguishable. So then we show them evidence: No, it is exactly the 
same kind of memoranda. And they say: Prove that you received memos 
that contained confidential information written by attorneys. And they 
say, we are still not going to accommodate you. We are still not going 
to come forth. They, in essence, are saying we are still going to 
stonewall you and we will continue to deny that any precedent exists.
  I am reminded of the famous story of President Lincoln's cross-
examination in a case when he was a young lawyer. As the story goes, 
Lincoln was cross-examining a witness about how a man, who was far away 
from the scene of a fight, could have seen what happened. And it went 
something like this.
  Lincoln said: Isn't it true that you were across the road from where 
the incident took place?
  The answer was: Yes.
  Then Lincoln said: Isn't it true that you are near-sighted?
  The witness answered: Yes.
  And then Lincoln said: Isn't it true that your view of the fight was 
blocked by trees?
  The witness said: Yes.
  So Lincoln said: Then, how can you sit there and testify under oath 
that the defendant bit Mr. Smith?
  The witness answered: Because I saw the defendant spit Mr. Smith's 
ear out of his mouth.
  In our case, subsequent to Mr. Estrada's hearing, we learned that 
most of the Bork appeal memos disclosed to the Senate were returned to 
the Department the year after the nomination. The proof is in a letter 
from Acting Assistant Attorney General Thomas Boyd to Chairman Biden in 
May 1988, which notes that:

       [M]any 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.''


[[Page S2257]]


  Sound familiar? Well, the requests should be familiar. It is exactly 
what we requested last year. The difference is, during President 
Reagan's administration, they responded. During this administration, 
they say: There is no precedent for it.

  So, frankly, this is the ``ear being spit out.'' The fact is, this 
letter ``spits out'' that the overly partisan current occupants of the 
Justice Department have sought to deny the Justice Department 
previously provided such documents. Mr. President, those denials are 
false.
  Surely, a copy of this letter is also in the Justice Department's 
files. If we had been able to get this letter earlier, even by the time 
of Mr. Estrada's hearing, we would have put it in the Record. It is 
obvious why the Justice Department probably did not want us to have it. 
Because it conclusively demonstrates the precedent that documents like 
the ones written by Mr. Estrada were provided to the Senate Judiciary 
Committee in the past.
  The Boyd letter conclusively demonstrates the precedent that 
documents like the ones written by Mr. Estrada were provided to the 
Senate Judiciary Committee in the past. It must now be admitted beyond 
dispute that, as the Justice Department acknowledged back then, ``the 
work product of attorneys in connection with government litigation or 
confidential legal advice'' was provided to the Senate in connection 
with past nominations.
  I hope that the administration and its Republican supporters will 
finally quit denying the precedent for the request and provide us with 
Mr. Estrada's memoranda. Letters from the Justice Department itself 
finally conclusively establish the precedent for our request.
  The longstanding policy of the Justice Department, until now, and the 
policy of prior administrations, including the Reagan and first Bush 
administrations, has been a practice of accommodation with the Senate 
in providing access to materials requested in connection with 
nominations. This administration would rather deny the truth and long-
standing practices. At times it is as if this administration thinks it 
has a blank slate and a blank check notwithstanding tradition, history, 
precedent or the shared powers explicitly provided by our nation's 
Constitution.
  There is part of a pattern of hostility by this administration to 
requests for information by Congress acting pursuant to powers granted 
to it by the Constitution, regarding nominees and other important 
oversight matters.
  Yesterday, I joined with the distinguished Democratic Leader in a 
letter to the President setting forth background on the stonewalling of 
his administration that has occurred with respect to this nomination 
and urging him to take action to help resolve the impasse. I thank the 
Democratic Leader for taking this action and seeking accommodation 
between the two branches of our government. I have been seeking such 
accommodation for the last two years with respect to judicial 
nominations. I hope that we can now be more successful.
  I would also note that the few court cases cited by the 
administration about the general desirability of confidentiality for 
government documents are dicta and not precedential or binding on the 
Senate.
  One of the cases relied on by the administration is United States v. 
Nixon, 418 U.S. 683 (1974), in which the Supreme Court ordered 
President Nixon to disclose his Watergate-related tape recordings of 
Oval Office conversations with his closest personal and legal advisors. 
The Supreme Court also noted in the Nixon case that it is quite 
unlikely ``that advisors will be moved to temper the candor of their 
remarks by the infrequent occasions of disclosure.'' 418 U.S. at 712.
  Just as the Supreme Court observed in the Nixon case, it seems 
unlikely that Mr. Estrada was chilled from expressing his views in his 
memos following the disclosure of memos written by attorneys at the 
Department in the decade prior to his service there in connection with 
the Trott, Bork, Rehnquist, and Reynolds nominations. Ironically, 
memoranda by Mr. Bork assessing President Nixon's authority to refuse 
to disclose information was one of documents provided to the Senate in 
connection with the Bork nomination.
  Other cases cited by the Justice Department in its second letter are 
inapplicable to the Senate or pre-date the Nixon decision. For example, 
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), is a case 
brought under the Freedom of Information Act (FOIA) involving a 
statutory-based claim of deliberative process privilege under FOIA, not 
a request from the Congress. I wish this administration were more 
forthcoming in connection with FOIA requests, but this is not a FOIA 
request, nor does FOIA limit Congress' authority to seek information 
from the Executive Branch or its agencies. Indeed, 5 U.S.C. 552(d) 
expressly provides that FOIA ``is not authority to withhold information 
from Congress.''
  During the course of this debate Republican Senators have also spoken 
as if these materials are somehow protected by an attorney-client 
privilege. First, I note that even the administration has not made that 
claim. The administration's refusal to cooperation is not based on any 
claim of a legal privilege, just recalcitrance. I believe I explained 
at Mr. Estrada's hearing some of the reasons a claim of attorney-client 
privilege would be misplaced. Until this week, only the Washington Post 
had gotten it wrong in asserting that privilege applies.
  Unfortunately, Republican Senators are now taking up that chant. It 
is heartwarming to hear Republicans' devotion to concepts like the 
attorney-client privilege but it is that concept is inapplicable to the 
request for Mr. Estrada's writings.
  As a legal matter, the Seventh, Eighth, and District of Columbia 
Circuits have ruled that government lawyers are not entitled to claim 
the attorney-client privilege.
  Moreover, in this setting the ``client'' is the government of which 
the Congress is certainly a part.
  This administration's own Assistant Attorney General for Legal Policy 
Viet Dinh flatly rejected the notion of such a privilege five years ago 
when he told Legal Times that a government lawyer's ``employer is not a 
single person but the United States of America.'' He said both the 
``United States of America'' and the ``government'' obviously include 
the United States Senate, especially when it is fulfilling 
constitutional responsibilities. As conservative law professor Ronald 
Rotunda has noted, ``government lawyers work for the government, and 
not the particular individual whose offices happen to be down the 
hall.'' He added that ``the government cannot plead attorney-client 
privilege against itself.'' This is from the Legal Times of August 3, 
1998.
  The attorney-client privilege is designed to encourage candor by the 
client, not the attorney. For those who are not attorneys, I note that 
the attorney-client privilege is designed for litigation in courts 
between private parties. It is a judge-made doctrine based on policy 
considerations to foster an effective adversary legal system. I am a 
strong believer in our adversarial legal system and a strong supporter 
of the attorney-client privilege. It does not apply in these 
circumstances.
  Finally, there is ample precedent that the attorney-client privilege 
does not apply to requests by Congress. As Senator Fred Thompson, who 
chaired one of the many Republican investigations into the Clinton 
Administration, noted: ``In case after case, the courts have concluded 
that allowing it [the attorney-client privilege] to be used against 
Congress would be an impediment to Congress' obligation and duty to get 
to the truth and carry out its investigative and oversight 
responsibilities.''
  My good friend from Utah, Senator Hatch, has echoed that analysis. A 
few years ago, he observed: ``The attorney-client privilege exists as 
only a narrow exception to broad rules of disclosure. And the privilege 
exists only as a statutory creation, or by operation of State common 
law. No statute or Senate or House rule applies the attorney-client 
privilege to Congress. In fact, both the Senate and the House have 
explicitly refused to formally include the privilege in their rules.''
  The Congressional Research Service has found that ``No court has ever 
questioned the assertion of that prerogative'' and noted that the 
privilege ``is not of constitutional dimensions, [and] is certainly not 
binding on the Congress of the United States.''
  I regret that so many of our Republican colleagues have chosen to 
seek

[[Page S2258]]

comfort and concealment in a legal principle that has no application to 
this matter. I think that the confusion started with a Washington Post 
editorial that got this matter all wrong and reflects a lack of 
familiarity with the history of nominations and the Senate's long-
standing view of the privilege. The Washington Post's editorials on 
these matters has been prone to err in a number of ways and they remain 
free to do so, but I am sorry so many were led astray on this and other 
matters.
  This Administration's policy argument for absolute secrecy of these 
memoranda is undermined by other long-standing practices related to 
nominees. The Senate routinely receives confidential information about 
lifetime and term-appointed nominees by way of the FBI's background 
investigation of a nominee, which details their adult lives and many 
private matters. Thus, the Senate is not required to show a 
particularized need for such private information which has long been 
germane to a nominee's fitness for judicial office.
  Moreover, the memos at issue do not involve national security. There 
are no state secrets in the documents Mr. Estrada has written requiring 
that they be sealed from congressional view forever. The memos do not 
relate to any on-going criminal investigation or to any matters that 
have not likely already been disposed of by the courts long ago. His 
writings are relevant to how he thinks, analyzes legal issues and makes 
judgement and, therefore, relevant to whether or not he should be 
confirmed to the second highest court in the country. Moreover, as 
Senator Schumer noted in his letter, anytime one of these memos is 
written, the writer must assume, and even hope, that his or her views 
will become the Department's official position. Thus, it is hard to 
believe the risk of disclosure on the remote chance that one might 
someday be selected for a judgeship would be chilling.
  Further, as noted long ago by the Supreme Court in McGrain v. 
Daugherty, 273 U.S. 135 (1927), Congress has the power to inquire into 
the administration of the Department of Justice--whether its functions 
are being properly discharged or neglected or misdirected, and 
particularly whether the Attorney General and his assistants were 
performing or neglecting their duties. Even Montesquieu, the architect 
of separation of powers, stated that ``The legislature should have the 
means of examining in what manner its laws have been executed by public 
officials.'' In this case, whether Mr. Estrada was using his position 
as an Assistant Solicitor General to advance his personal political 
opinions or to defend faithfully the laws passed by Congress has been 
called into question.
  In sum, there is ample historical precedent for the request made by 
the Senate Judiciary Committee. This Administration's refusal to 
cooperate obstructs Senators from fulfilling their role of giving 
meaningful advice regarding lifetime appointments and to give or 
withhold consent. The advice and consent responsibility that the 
Constitution entrusts to the Senate is demeaned if the Administration 
refuses to disclose information reasonably related to a nominee's 
fitness or integrity.
  Public confidence in the fairness of the judiciary is eroded when the 
Administration hides pertinent information about a nominee sought by 
the Senate Judiciary Committee in seeking to fulfill its role related 
to the appointment power that the Constitution confers jointly on the 
Senate and the President. The advice and consent clause of the 
Constitution is part of the Constitution's checks and balances in the 
lifetime appointment of individuals to a co-equal third branch of the 
federal government, unaccountable to the normal democratic process. The 
public's representatives in the Senate should have an opportunity to 
examine the writings of Mr. Estrada in advance of entrusting him with a 
judicial role for life.
  The influence of the courts over the lives of Americans demands that 
the Senate exercise its checking responsibility carefully and only 
after reviewing all relevant information.
  I think it has to be admitted beyond dispute that, as the Justice 
Department acknowledged back then, ``the work product of attorneys in 
connection with government litigation or confidential legal advice'' 
was provided to the Senate in connection with past nominations. I hope 
the administration and their supporters here in the Senate will finally 
quit denying the precedent for the request and provide us with Mr. 
Estrada's memoranda. Letters from the Justice Department itself finally 
and conclusively establish the precedent for our request.
  I ask unanimous consent that the letter, dated May 10, 1988, from 
Acting Assistant Attorney General Thomas Boyd be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                       U.S. 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. LEAHY. It is interesting to note that after I wrote the Attorney 
General and Mr. Estrada in May 2002, when I requested Mr. Estrada's 
writings, the administration didn't respond immediately. If they really 
believed in their own precedent, they would have come back and said: 
Look, we have a precedent against it. I think they realized there 
really was no such precedent, and they were going to try to make one 
up. They took weeks to respond. They could have responded in a day 
because the precedent was so clear. Or if they simply wanted to say, 
well, maybe all other Presidents did it that way, we are not going to 
do it that way, they could have done that in just a matter of days. But 
instead, it makes you wonder, did they go back and read those memoranda 
and say: Whoops, we don't want these to go before the Senate, they are 
too revealing?
  Whatever it is, Mr. Estrada himself says: As far as I am concerned, 
you can see them, and you can ask me questions about them.
  The irony is, in all likelihood we would not be here today, having 
this long debate on the Estrada nomination, if he had simply done that. 
If the administration simply said: Look, Miguel Estrada is willing to 
have his memoranda before the Senate Judiciary Committee and then to 
answer questions about what he meant, we would not be here; we would 
not be in the circumstance where he is asked, over the last 40 or 50 
years: Is there anything that you disagreed with that the Supreme Court 
said? During that time, the Supreme Court has overruled itself. No, 
nothing.
  So we really have no idea what he thinks. They simply said: Look, we 
nominated somebody. We were not willing to allow the nominations to go 
forward when President Clinton nominated people here. We blocked them 
for year after year after year, but take ours on faith.
  Again, to the folks who made up a slogan I kind of liked, ``Trust, 
but verify,'' we will trust but verify. As I said, we would not even be 
here today, we would not be having this debate today, if this had been 
done.
  The longstanding policy of the Justice Department until now, the 
policy of prior administrations, including

[[Page S2259]]

Reagan and the first Bush administration, has been a practice of 
accommodation with the Senate in providing access to materials 
requested in connection with nominations. But this administration wants 
to deny the truth and longstanding practices. You would think they 
believe they have a blank slate and a blank check notwithstanding 
tradition, history, and precedent or the shared powers explicitly 
provided by our Nation's Constitution.
  This goes beyond hubris. This goes to a sense of entitlement. It is a 
``l'etat, c'est moi'' attitude on the part of the administration. It is 
saying: If we say it, it happens. If we want it, it is OK. It is almost 
like the little kid on the playground who says: I want this one, I want 
this one, I want this one, and I don't care what the playground rules 
are.
  Well, this is a lot more than a playground. This is the U.S. Senate, 
a place I love and revere and a place steeped in constitutional 
history, steeped in constitutional prerogatives; but even more so, one 
where we are called upon day after day to protect the Constitution of 
the United States. I see a pattern of hostility by this administration 
to requests for information by Congress, even though Congress is 
actively pursuing the powers granted to it by the Constitution, 
regarding not only nominees but important oversight matters.

  Yesterday, I joined with the distinguished Democratic leader in a 
letter to the President. We set forth the background of the 
stonewalling of this administration that has occurred with respect to 
this nomination. We urged them to take action to help resolve the 
impasse. I thank the Democratic leader for taking this action seeking 
accommodation between the two branches of our Government. I have been 
seeking such accommodation for the last 2 years with respect to 
judicial nominations. I hope we can be more successful.
  I hope that now people will step back and say: Look, let's put this 
on a more even keel. Let's have real hearings, not assembly line type 
hearings. Let's carry out our constitutional responsibilities. Let's go 
forward. That is the way I thought it should be when I came to the 
Senate 29 years ago. That is the way I think it should be now. I think 
that is the way it could be. It is the way it was with both Republican 
and Democratic administrations.
  I was not here at the time of the Nixon administration. I came 
shortly thereafter. I don't know if this kind of stonewalling is 
precedent or not. In my experience, I would not know that. But I know 
it was not during the administrations of President Ford, President 
Carter, President Reagan, the first President Bush, or President 
Clinton.
  I ask unanimous consent that a copy of the letter Senator Daschle and 
I sent to the President on this matter, pointing out that the precedent 
for what we have asked for was shown in the nominations of Robert Bork, 
William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and 
William Rehnquist, be printed in the Record.
  There being no objection, the letter 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 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.

  Mr. LEAHY. Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening to this day after day 
after day. It is clear this is a game. It is a bad game. If they don't 
like the answers Mr. Estrada has given, vote against him. That is the 
remedy here. Don't filibuster. Don't explode this body into always 
having filibusters on any judge who may be controversial on one side or 
the other. Vote against him. Talk against him, like we have had plenty 
of. Then you have an absolute right to vote against him if you want to.
  Now, let me go back through some of the things we were talking about. 
On May 15, 2002, Senator Leahy sent the following letter to Attorney 
General Ashcroft:

       In connection with the nomination of Miguel Estrada to the 
     United States Court of Appeals for the D.C. Circuit, I write 
     to request that the Department of Justice send to the 
     Judiciary Committee appeal recommendations, certiorari 
     recommendations, and amicus recommendations Mr. Estrada 
     worked on while at the Department of Justice. This should 
     assist the Committee in considering this nomination.

  On June 5, in a letter from the Department of Justice, they answered 
the then-Chairman Leahy's letter:

       Dear Mr. Chairman:
       This is in response to your letter dated May 15, 2002, 
     requesting appeal recommendations, certiorari 
     recommendations, and amicus recommendations that Miguel 
     Estrada worked on when he was employed at the Department of 
     Justice.
       The categories of documents you have requested are among 
     the most highly privileged and deliberative documents 
     generated within the Department of Justice. The Solicitor 
     General must have the benefit of candid and confidential 
     advice in order to discharge his critical responsibility of 
     deciding what appeals the Government will take and what 
     positions the Government will adopt in pending litigation. 
     Attorneys like Mr. Estrada who serve as Assistants to the 
     Solicitor General are asked to render candid, unbiased, and 
     professional advice about the merits of potential appeals.
       They do so by preparing exactly the kinds of recommendation 
     memoranda you have requested. These documents review the 
     substantive legal issues in a case, the broader 
     jurisprudential implications of the case, policy 
     considerations, the strength of the factual record, and the 
     overall likelihood of success on appeal.
       If highly privileged and deliberative documents of this 
     kind are not shielded from disclosure, the Department will 
     face the grave danger that Assistants to the Solicitor 
     General, and others in comparable positions, will be chilled 
     in the future from providing the candid and independent 
     analysis that is essential to high-level decisionmaking. As 
     the unanimous Supreme Court recognized: ``Human experience 
     teaches that those who

[[Page S2260]]

     expect public dissemination of their remarks may well temper 
     candor with a concern for appearances and for their own 
     interests to the detriment of the decisionmaking process.'' 
     United States v. Nixon, 418 U.S. 683, 705 (1974). The Court 
     observed that ``the importance of this confidentiality is too 
     plain to require further discussion.'' Simply put, the 
     Department cannot function properly if our attorneys write 
     these kinds of documents with one eye focused on the effect 
     that their words, if made public, might have on their 
     qualification for future office.
       For these reasons, the Department has a longstanding 
     policy--which has endured across administrations of both 
     parties--of declining to release publicly or make available 
     to Congress the kinds of documents you have requested.
       We trust that you will appreciate the important 
     institutional interests that lead us to decline your request. 
     In our judgment, the Committee has had ample time and 
     alternative means for obtaining assessments of how Mr. 
     Estrada's performance as an Assistant to the Solicitor 
     General bears on the merits of his nomination. In particular, 
     you have been free to inquire of the Solicitors General under 
     whom Mr. Estrada served their views as to his qualifications 
     for the position to which he has been nominated.
       On January 25, 2002, you promised a Committee hearing for 
     Mr. Estrada this year. So that the Committee can meet our 
     commitment, we would request that you contact me or Judge 
     Gonzales as soon as possible to discuss this matter if you 
     have any questions or concerns.

  That is the letter from the Justice Department in response to the 
letter Senator Leahy sent on May 15. Apparently, at the hearing this 
issue was raised again, and the Department of Justice responded to 
Chairman Leahy again on October 8, 2002:

       Dear Mr. Chairman:
       During the hearing on September 26, 2002, on the nomination 
     of Miguel A. Estrada to the U.S. Court of Appeals for the 
     District of Columbia Circuit, you and Senator Schumer 
     restated your request that the Department of Justice disclose 
     certain confidential and privileged appeal, certiorari, and 
     amicus memoranda that Mr. Estrada authored when he was a 
     career lawyer in the Office of the Solicitor General.
       As we indicated in our letter of June 5, 2002, we must 
     respectfully decline your request. The relevant historical, 
     policy, and legal considerations implicated by your request 
     demonstrate that disclosure of these memoranda from the 
     Office of the Solicitor General would undermine the integrity 
     of the decisionmaking process in that Office.
       The Committee's request threatens the proper functioning of 
     the Office of the Solicitor General. Indeed, all seven living 
     former Solicitors General--from Archibald Cox to Seth P. 
     Waxman--have written to the Committee and explained that the 
     Committee's broad and unprecedented request would have a 
     debilitating effect on the ability of the United States to 
     represent itself in litigation. Their letter explained that, 
     as Solicitors General, their ``decisionmaking process 
     required the unbridled, open exchange of ideas--an exchange 
     that simply cannot take place if attorneys have reason to 
     fear that their private recommendations are not private at 
     all, but vulnerable to public disclosure.''

  That letter is quite detailed, Mr. President. It goes on to make this 
case as persuasively as it can, and it gives a number of charts that 
make the case as well, all to no avail, apparently, because our 
colleagues think this is a good issue to stop and stymie this Hispanic 
nominee.
  Now, that was October 8. Not until after we noticed the markup for 
Mr. Estrada on January 23, 2003, did Senator Schumer write to the 
Honorable John Ashcroft at the Attorney General's Office, again 
requesting these matters. And then the Department of Justice responded 
immediately. We received it on January 23. Jamie E. Brown, Acting 
Assistant Attorney General, explained that they cannot do this. I have 
been informed that never have they given up appeal recommendations, 
amicus recommendations, and certiorari recommendations.
  I ask unanimous consent that these letters be printed in the Record 
in that order.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                     Washington, DC, June 5, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: This responds to your letter dated May 
     15, 2002, requesting appeal recommendations, certiorari 
     recommendations, and amicus recommendations that Miguel 
     Estrada worked on when he was employed at the Department of 
     Justice.
       The categories of documents that you have requested are 
     among the most highly privileged and deliberative documents 
     generated within the Department of Justice. The Solicitor 
     General must have the benefit of candid and confidential 
     advice in order to discharge his critical responsibility of 
     deciding what appeals the Government will take and what 
     positions the Government will adopt in pending litigation. 
     Attorneys like Mr. Estrada who serve as Assistants to the 
     Solicitor General are asked to render candid, unbiased, and 
     professional advice about the merits of potential appeals. 
     They do so by preparing exactly the kinds of recommendation 
     memoranda that you have requested. These documents review the 
     substantive legal issues in a case, the broader 
     jurisprudential implications of the case, policy 
     considerations, the strength of the factual record, and the 
     overall likelihood of success of appeal.
       If highly privileged and deliberative documents of this 
     kind are not shielded from disclosure, the Department will 
     face the grave danger that Assistants to the Solicitor 
     General, and others in comparable positions, will be chilled 
     in the future from providing the candid and independent 
     analysis that is essential to high-level decisionmaking. As 
     the unanimous Supreme Court recognized: ``Human experience 
     teaches that those who expect public dissemination of their 
     remarks may well temper candor with a concern for appearances 
     and for their own interests to the detriment of the 
     decisionmaking process.'' United States v. Nixon, 418 U.S. 
     683, 705 (1974). The Court observed that ``the importance of 
     this confidentiality is too plain to require further 
     discussion.'' Id. Simply put, the Department cannot function 
     properly if our attorneys write these kinds of documents with 
     one eye focused on the effect that their words, if made 
     public, might have on their qualification for future office.
       For these reasons, the Department has a longstanding 
     policy--which has endured across Administrations of both 
     parties--of declining to release publicly or make available 
     to Congress the kinds of documents you have requested.
       We trust that you will appreciate the important 
     institutional interests that lead us to decline your request. 
     In our judgment, the Committee has had ample time and 
     alternative means for obtaining assessments of how Mr. 
     Estrada's performance as an Assistant to the Solicitor 
     General bears on the merits of his nomination. In particular, 
     you have been free to inquire the Solicitors General under 
     whom Mr. Estrada served their views as to his qualifications 
     for the position to which he has been nominated.
       On January 25, 2002, you promised a Committee hearing for 
     Mr. Estrada this year. So that the Committee can meet your 
     commitment, we would request that you contact me or Judge 
     Gonzales, as soon as possible to discuss this matter if you 
     have any questions or concerns.
           Sincerely,
                                                 Daniel J. Bryant,
     Assistant Attorney General.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                  Washington, DC, October 8, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: During the hearing on September 26, 
     2002, on the nomination of Miguel A. Estrada to the United 
     States Court of Appeals for the District of Columbia Circuit, 
     you and Senator Schumer restated your request that the 
     Department of Justice disclose certain confidential and 
     privileged appeal, certiorari, and amicus memoranda that Mr. 
     Estrada authored when he was a career lawyer in the Office of 
     the Solicitor General.
       As we indicated in our letter of June 5, 2002, we must 
     respectfully decline your request. The relevant historical, 
     policy, and legal considerations implicated by your request 
     demonstrate that disclosure of these memoranda from the 
     Office of the Solicitor General would undermine the integrity 
     of the decisionmaking process in that Office.
       The Committee's request threatens the proper functioning of 
     the Office of the Solicitor General. Indeed, all seven living 
     former Solicitors General--from Archibald Cox to Seth P. 
     Waxman--have written to the Committee and explained that the 
     Committee's broad and unprecedented request would have a 
     debilitating effect on the ability of the United States to 
     represent itself in litigation. Their letter explained that, 
     as Solicitors General, their ``decisionmaking process 
     required the unbridled, open exchange of ideas--an exchange 
     that simply cannot take place if attorneys have reason to 
     fear that their private recommendations are not private at 
     all, but vulnerable to public disclosure.'' Thus, ``[a]ny 
     attempt to intrude into the Office's highly privileged 
     deliberations would come at the cost of the Solicitor 
     General's ability to defend vigorously the United States' 
     litigation interests--a cost that also would be borne by 
     Congress itself.''
       Longstanding historical Senate practice reinforces the 
     position of the former Solicitors General that confidential, 
     deliberative documents from the Office of Solicitor General 
     have been, and should remain, confidential during 
     confirmation hearings. As the attached charts demonstrate, 
     since the beginning of the Carter Administration in 1977, the 
     Senate has approved 67 United States Court of Appeals 
     nominees who previously had worked in the Department of 
     Justice. Those 67 nominees--of whom 38 had no prior judicial 
     experience--include eight former lawyers with the Office of 
     the Solicitor General. Our review of each of these 67 
     nominees' hearing records establishes that in none of

[[Page S2261]]

     these cases did the Department of Justice produce internal 
     deliberative materials created by the nominee while a 
     Department lawyer. In fact, we could find no nominee for whom 
     the Senate Judiciary Committee even requested that the 
     Department produce such materials. The Committee's request 
     with respect to Mr. Estrada therefore is unprecedented.
       Of particular relevance are the appellate-court nominees 
     who previously had been Assistants to the Solicitor General 
     or Deputy Solicitors General, and had not served as judges as 
     the time of their nomination--the same position Mr. Estrada 
     occupies now. The nominees, nominated by Presidents of both 
     political parties and confirmed by Senates controlled by both 
     political parties, are:
       Samuel A. Alito Jr. (Assistant to the Solicitor General, 
     1981-85; confirmed to the Third Circuit, 1990);
       Danny J. Boggs (Assistant to the Solicitor General, 1973-
     75; confirmed to the Sixth Circuit, 1986);
       William C. Bryson (Assistant to the Solicitor General, 
     1978-79; Deputy Solicitor General, 1986-94; confirmed to the 
     Federal Circuit, 1994);
       Frank H. Easterbrook (Assistant to the Solicitor General, 
     1974-77; Deputy Solicitor General, 1978-79; confirmed to the 
     Seventh Circuit, 1985);
       Daniel M. Friedman (Assistant to the Solicitor General, 
     1959-68; Deputy Solicitor General, 1968-78; confirmed to the 
     appellate division of the Court of Claims (later the Federal 
     Circuit), 1982);
       Richard A. Posner (Assistant to the Solicitor General, 
     1965-67; confirmed to the Seventh Circuit, 1981); and
       A. Raymond Randolph (Deputy Solicitor General, 1975-77; 
     confirmed to the D.C. Circuit, 1990).
       In none of these cases did the Department of Justice 
     provide to the Committee the nominees' appeal, certiorari, or 
     amicus recommendations. And in none of these cases did the 
     Committee request that the Department do so.
       The policy considerations implicated by the Committee's 
     request underscore the strength of the Department's position 
     and demonstrate that previous Senate Judiciary Committees 
     have recognized the essential, long-term interest of the 
     United States in protecting the integrity of such memoranda. 
     The need to ensure the integrity of the process by which the 
     Solicitor General makes litigation decisions for the United 
     States is extraordinarily important. As the former Solicitors 
     General explained, the interest in receiving honest, candid 
     assessments of possible litigation positions, agency 
     interests, and Supreme Court opinions would be severely 
     compromised by disclosure in this context. It is important 
     to add, furthermore, that memoranda written by Assistants 
     to the Solicitor General present legal arguments 
     supporting the litigation position of the United States, 
     not their personal views. These memoranda seek to 
     determine the legal arguments that are appropriate in 
     government briefs, not the legal or policy preferences of 
     their author.
       Furthermore, the committee's need to assess a nominee's 
     performance, intellect, and integrity can be accommodated in 
     ways other than introducing into the deliberative process of 
     the Office of the Solicitor General. For example, the 
     Committee can review the nominee's written briefs and oral 
     arguments, consider the opinions of others who served in the 
     Office at the same time, and examine the nominee's written 
     performance reviews. In Mr. Estrada's case, for example, 
     there is a substantial body of information about his tenure 
     in the Office of the solicitor General. Former Solicitor 
     General Seth Waxman, who supervised Mr. Estrada, has written 
     to the Committee in support of his nomination. Mr. Waxman 
     wrote: ``During the time Mr. Estrada and I worked together, 
     he was a model of professionalism and competence. In no way 
     did I ever discern that the recommendations Mr. Estrada made 
     or the analyses he propounded were colored in any way by his 
     personal views--or indeed that they reflected anything other 
     than the long-term interests of the United States.''
       Moreover, 14 of Mr. Estrada's former colleagues in the 
     Office of the Solicitor General have written the Committee to 
     emphasize his ability, collegiality, and integrity: ``We also 
     know Miguel to be a delightful and charming colleague, 
     someone who can engage in open, honest, and respectful 
     discussion of legal issues with others, regardless of their 
     ideological perspectives. Based on our experience as his 
     colleagues in the Solicitor General's office, we are 
     confident that he possesses the temperament, character, and 
     qualities of fairness and respect necessary to be an 
     exemplary judge. In combination, Miguel's exceptional legal 
     ability and talent, his character and integrity, and his deep 
     and varied experience as a public servant and in private 
     practice make him an excellent candidate for service on the 
     federal bench.''
       Finally, Mr. Estrada has sent the Judiciary Committee 
     copies of his performance evaluations from his tenure in the 
     Office. These documents indicate that Mr. Estrada's 
     supervisors gave him ratings of ``outstanding''--the highest 
     possible score--in every category for every evaluation 
     period.
       It bears emphasis that the long-standing historical 
     practice, policy considerations and views of the former 
     Solicitors General are fully supported by applicable legal 
     principles. At the outset, it is important to note that the 
     memoranda sought by the Committee are indisputably within the 
     scope of the deliberative process, attorney-client, and 
     attorney working-product privileges. The Supreme Court has 
     recognized ``the valid need for protection of communications 
     between high Government officials and those who advise and 
     assist them in the performance of their manifold duties.'' 
     Houchins v. KQED, 438 U.S. 1, 35 n.27 (1978). Indeed, the 
     Court has explained that ``the importance of this 
     confidentiality is too plain to require further discussion. 
     Human experience teaches that those who expect public 
     dissemination of their remarks may well temper candor with a 
     concern for appearances and for their own interests to the 
     detriment of the decisionmaking process.'' Id. (internal 
     quotation omitted). The deliberative process privileges's 
     ultimate purpose is to prevent injury to the quality of 
     agency decisions by allowing government officials freedom to 
     debate alternative approaches in private. NLRB v. Sears, 
     Roebuck & Co., 421 U.S. 132, 151 (1975). Based on these 
     principles, courts have long recognized the Executive 
     Branch's authority to protect the integrity of documents and 
     other materials which would reveal advisory opinions, 
     recommendations and deliberations comprising part of a 
     process by which governmental decisions and policies are 
     formulated. See In re Sealed Case, 121 F.3d 729, 737 (D.C. 
     Cir. 1997).
       As a matter of law and tradition, these privileges can be 
     overcome only when Congress establishes a ``demonstrably 
     critical'' need for the requested information. Senate Select 
     Committee on Presidential Campaign Activities v. Nixon, 498 
     F.2d 725, 731 (D.C. Cir. 1974) (en banc). It is insufficient 
     for the requested material merely to ``have some arguable 
     relevance'' to appropriate Congressional function. Id. at 
     733. In assessing whether Congress' possesses a 
     ``demonstrably critical'' need for the material in question, 
     one crucial consideration is whether Congress can obtain 
     reasonably equivalent information from alternative sources 
     that would satisfy its legitimate needs. In this instance, we 
     again note that the Committee has full access to Mr. 
     Estrada's briefs and oral arguments, to the information 
     provided by Mr. Waxman, to the letter from former colleagues 
     in the Solicitor General's office, and to his performance 
     reviews. The Committee also is free to contact any of Mr. 
     Estrada's former supervisors and colleagues in the Office of 
     the Solicitor General to seek further information about Mr. 
     Estrada's temperament, fairness, analytical skills and 
     abilities or any other matters the Committee appropriately 
     deems relevant to its inquiry. Because the Committee has 
     adequate sources of information about Mr. Estrada, among 
     other reasons, it cannot establish the ``demonstrably 
     critical'' need for the deliberative materials in question.
       None of the seven examples cited during Mr. Estrada's 
     hearing as precedent for the Committee's request--the 
     nominations of Judge Frank Easterbrook to the Seventh 
     Circuit, Judge Robert Bork and Chief Justice William 
     Rehnquist to the Supreme Court, Benjamin Civiletti to be 
     Attorney General and Deputy Attorney General, William 
     Bradford Reynolds to be Associate Attorney General, Judge 
     Stephen Trott to the Ninth Circuit, and Jeffrey Holmstead to 
     be Assistant Administrator at the Environmental Protection 
     Agency--supports the Committee's request in this matter.
       Of the seven cited nominees, the hearings of only two--
     Judge Bork and Judge Easterbrook--involved documents from 
     their service in the Office of Solicitor General. Senator 
     Schumer placed into Mr. Estrada's hearing record a single, 
     two-page amicus recommendation memorandum that Judge 
     Easterbrook authored as an Assistant to the Solicitor 
     General. The official record of Judge Easterbrook's 
     confirmation hearing contains no references to this document, 
     and based on a comprehensive review of the Department's 
     files, we do not believe that the Department authorized its 
     release in connection with Judge Easterbrook's nomination. 
     Senator Schumer's possession of this memorandum does not 
     suggest that the Department waived applicable privileges and 
     authorized its disclosure in connection with Judge 
     Easterbrook's or any other nomination.
       The hearing record of Judge Bork's nomination to the 
     Supreme Court demonstrates that the Committee received access 
     to a limited number of documents related to three specific 
     subjects of heightened interest to the Committee, two of 
     which were related to Judge Bork's involvement in Watergate-
     related issues and triggered specific concerns by the 
     Committee. 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 
     Assistants to the Solicitor General regarding appeal, 
     certiorari, or amicus recommendations in pending cases.
       The remaining five nominations cited at the hearing 
     similarly do not justify the disclosure of deliberative 
     material authored by Mr. Estrada. None of the limited 
     documents disclosed in the hearings for those five 
     nominations involved deliberative memoranda from the Office 
     of the Solicitor General. The Committee with respect to those 
     five nominations requested specific documents primarily 
     related to allegations of misconduct or malfeasance 
     identified by the Committee. Moreover, as noted above, with 
     respect to

[[Page S2262]]

     the nomination of Judge Trott, the Committee requested 
     documents wholly unrelated to Judge Trott's service with the 
     Department. Again, the vast majority of deliberative 
     memoranda authored or received by these nominees where never 
     sought or received by the Committee. In sum, the existence of 
     a few isolated examples where the Executive Branch on 
     occasion accommodated a Committee's targeted requests for 
     very specific information does not in any way alter the 
     fundamental and long-standing principle that memoranda from 
     Office of Solicitor General--and deliberative Department of 
     Justice materials more broadly--must remain protected in the 
     confirmation context so as to maintain the integrity of the 
     Executive Branch's decisionmaking process.
       In conclusion, we emphasize that the Department of Justice 
     appreciates and profoundly respects the Judiciary Committee's 
     legitimate need to evaluate Mr. Estrada's qualifications for 
     the federal bench. We again suggest, however, that the 
     information currently available is more than adequate to 
     allow the Committee to determine whether Mr. Estrada is 
     qualified to be a federal judge.
       Thank you for considering the Department's views on this 
     matter. Mr. Estrada's nomination for a position on an 
     important federal court of appeals has now been pending for 
     518 days. There is no disagreement about the fact that he is 
     a talented, experienced and exceptionally well-qualified 
     nominee with strong and widespread bipartisan support. In 
     fact, after an intensive investigation, the American Bar 
     Association found Mr. Estrada to be unanimously well-
     qualified for a judgeship on the District of Columbia 
     Circuit. We sincerely hope that the Committee and the Senate 
     will approve Mr. Estrada's nomination before the close of the 
     107th Congress.
           Sincerely,
                                                 Daniel J. Bryant,
     Assistant Attorney General.
                                  ____

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, Jan. 23, 2003.
     Hon. Charles E. Schumer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Schumer: I am responding to your letter dated 
     January 23, 2003, in which you once again requested that the 
     Department disclose the confidential and privileged appeal, 
     certiorari and amicus memoranda that Miguel Estrada authored 
     when he was a career lawyer in the Office of the Solicitor 
     General. You continue to insist that disclosure of this 
     sensitive material is necessary to allow you adequately to 
     address Mr. Estrada's nomination to the United States Court 
     of Appeals for the District of Columbia Circuit--a nomination 
     that has been pending for some 624 days. As you know, Mr. 
     Estrada has received a unanimous ``well qualified'' rating 
     from the American Bar Association, the ABA's highest rating.
       We addressed fully the assertions made in your most recent 
     correspondence in our previous letters to you dated June 5, 
     2002, and October 8, 2002 (attached herewith). Our previous 
     explanations remain equally applicable today, and we 
     therefore must again respectfully decline your request. As we 
     have explained, the relevant historical, policy and legal 
     considerations implicated by your request establish that 
     disclosure of these memoranda from the Office of Solicitor 
     General would undermine the integrity of the decision making 
     process in that Office. Notwithstanding our previous letters, 
     several specific items in your letter merit discussion.
       At Mr. Estrada's hearing, you asserted that the Department 
     disclosed memoranda written by Judge Easterbrook in 
     connection with his confirmation hearing. In response to that 
     claim, as we noted in our letter of October 8, 2002, we 
     comprehensively reviewed the Department's files and the 
     public record of Judge Easterbrook's confirmation hearing and 
     we found absolutely no evidence that the Department 
     authorized the release of these memoranda in connection with 
     Judge Easterbrook's nomination. Your most recent letter now 
     asserts that the Easterbrook documents ``apparently'' were 
     provided to the Committee in connection with Judge Bork's 
     nomination. However, the public record of Judge Bork's 
     confirmation hearings contains no mention of the Easterbrook 
     memoranda you reference. As we explained previously, your 
     mere possession of these documents does not suggest that the 
     Department waived applicable privileges nor authorized their 
     disclosure in connection with either nomination.
       You also suggest in your letter that the Administration's 
     decision to disclose legal memoranda from the White House 
     Counsel's Office in connection with the nomination of Jeffrey 
     Holmstead to serve as Assistant Administrator of the 
     Environmental Protection Agency serves as precedent for 
     disclosing Mr. Estrada's highly privileged work product. As 
     you may be aware, the White House initially declined to 
     provide all of Mr. Holmstead's files as requested by the 
     Senate Environment and Public Works Committee, on the basis 
     of the deliberative process, attorney-client and work product 
     privileges. In response, the Environment Committee, based on 
     its particularized concerns and allegation of misconduct 
     regarding one specific subject, requested a small subset of 
     documents related only to that matter. Because of the 
     specificity of the Environment Committee's concerns, the 
     White House permitted the Committee to review that limited 
     subset of materials, which answered the allegation in 
     question. This example, if anything, further demonstrates the 
     overbreadth and impropriety of the current request--a request 
     that some have characterized as a fishing expedition 
     requesting all documents authored by Mr. Estrada about all 
     subjects during his entire tenure in the Office.
       Finally, we respectfully submit that, despite your view to 
     the contrary, your request threatens the proper functioning 
     of the Office of the Solicitor General. All seven living 
     former Solicitors General, including Archibald Cox, Drew 
     Days, Walter Dellinger and Seth Waxman, have written to the 
     Senate Judiciary Committee and explained the debilitating 
     impact your request would have on the ability of the Office 
     to represent the United States in litigation. The letter--
     authored by distinguished lawyers of both parties--noted that 
     their ``decisionmaking process required the unbridled, open 
     exchange of ideas--an exchange that simply cannot take place 
     if attorneys have reason to fear that their private 
     recommendations are not private at all, but vulnerable to 
     public disclosure.'' While we respect your right to disagree 
     with these seven former Solicitors General, we must defer to 
     their considered judgments about the impact of disclosure 
     based on their collective experience of decades heading the 
     Office. Thus, we respectfully adhere to our previous decision 
     to protect these highly privileged documents from disclosure.
       Thank you for considering the Department's views on this 
     matter. As we have noted previously, the public record is 
     more than adequate for the Committee to evaluate Mr. 
     Estrada's qualifications to be a Circuit Judge on the D.C. 
     Circuit. We look forward to Mr. Estrada's prompt 
     consideration by the Committee and confirmation by the full 
     Senate.
           Sincerely,
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.

  Mr. HATCH. Mr. President, I want to make one or two other points, and 
then I understand Senator Kyl is here and I hope he can be heard. I ask 
unanimous consent that he be recognized after me.
  Mr. REID. Objection.
  The PRESIDING OFFICER. Objection is heard.
  Mr. HATCH. All right. Here we are in the middle of an unprecedented 
filibuster. We have heard a lot of arguments and many repeated 
arguments. We have heard Mr. Estrada ``has not answered the Senators' 
questions.'' Well, he has. They asked question after question at the 
hearing--one that they conducted and they controlled. Any Senator who 
was not satisfied, and had additional questions, had the opportunity to 
send additional questions. Well, they did. Two Senators--only two of 
them--sent Mr. Estrada followup questions. Senators Durbin and Kennedy 
asked multiple questions. Mr. Estrada answered these, and answered them 
fully.
  Here is what is unfair. If they don't like the answers, as I have 
said, my Democratic colleagues have a remedy; they can vote against 
him. That is their right. If that is what they want to do, that is the 
proper exercise of their constitutional duty. But to simply deny the 
Senate a vote is unfair to the nominee, unfair to this body, unfair to 
the President, and unfair to a majority of Senators who want to vote 
for this man and exercise their constitutional duty under article II, 
section 2. This is an abuse of the debate privileges of this body. This 
is simply an abuse by the minority. It is nothing more than what some 
would call the tyranny of the minority. It is the first time in the 
history of this country that an appeals court nominee has been 
filibustered. It is a doggone shame the first Hispanic ever nominated 
to the Circuit Court of Appeals of the District of Columbia happens to 
be the nominee here. This is against our constitutional duty and 
against the spirit of what we are elected to do. We are supposed to 
advise and consent. Consent means Senators can vote against or they can 
vote for. It doesn't mean advise and filibuster. It doesn't mean advise 
and obstruct.
  I will say it again. The Democrats have asked their questions and 
they have gotten their answers. If they don't like the answers, they 
can vote against the nominee. But don't continue to obstruct. It is 
simply not fair.
  Mr. President, I think any fair observer who looks at the transcript 
of this hearing, and looks at those questions and answers, will have to 
admit he answered their questions. Admittedly, I suspect he did not 
answer them the way they wanted him to. That is, they could not dig up 
any dirt on him. So what are they doing now? Trying to

[[Page S2263]]

see if, through a fishing expedition, they can find some documents 
where they can. That is offensive. To ask for confidential, privileged 
documents from the Solicitor General's Office in spite of the warning 
of seven former Solicitors General, four of whom are leading Democrat 
attorneys who vociferously say you should not do that, that would be 
very harmful and detrimental to the process. They have ignored those 
recommendations.
  Any fair observer who looks at these questions and answers will have 
to say he answered their questions, maybe not the way they wanted him 
to, but he answered them as a deliberative person would, and as most 
other nominees have answered the same type of questions. He answered 
them in a very intelligent, worthwhile fashion.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Arizona.
  Mr. KYL. I thank the Chair.
  Madam President, I wish to expand on what the Senator from Utah was 
just talking about. To put this in context, I remind my colleagues we 
are talking about the nomination of a very distinguished lawyer, Miguel 
Estrada, by President Bush to serve on the DC Circuit Court of Appeals.
  There have been two primary objections recently raised by Members of 
the other side of the aisle to this nomination. The first includes a 
recitation of a long list of nominees of previous Presidents--I presume 
primarily President Clinton--who allegedly were not considered by the 
Republicans. I do not have the information. It has not been given to 
me, so I cannot vouch for its authenticity. But if that is the basis 
for denying a vote to Mr. Estrada, then it is nothing more than 
retribution or spite.
  I cannot believe that is the motivation of any of my colleagues on 
the other side. I refuse to believe that. So of what relevance is it 
that in previous Congresses some other President's nominee was or was 
not given a vote? What is the relevance to this individual, Miguel 
Estrada, who, by everyone's admission, is an extraordinarily well 
qualified lawyer? It has no relevance at all.
  The other line of thought is that he has not answered questions, and 
that is what Senator Hatch was just talking about. He answered every 
question that was asked of him. He was in a hearing from 10:06 a.m. 
until 5:25 p.m. There were other candidates on the panel with him, but 
hardly any questions were asked of them. Almost all of the questions 
were asked of Miguel Estrada. He answered them all, until there were 
not any more to be asked.
  Then there was the questionnaire. Senator Hatch noted the questions 
that have been asked by Senators in writing, in addition to the others. 
There was the questionnaire from the Judiciary Committee with 25 pages 
of answers. They are all right here. I will not suggest they be printed 
in the Record because I presume they already have. Every question was 
answered fully and satisfactorily, as far as I am concerned.
  I think one of them is especially interesting. It used to be there 
was not a litmus test for judges. When President Reagan was nominating 
judges, some people on the other side thought President Reagan was 
asking these nominees their opinions on how they might rule on a case. 
They said that was a litmus test and that would be wrong. They were 
wrong. He never had such a litmus test. But the committee has had a 
question in its file ever since--and I think even before then--that has 
been asked of every single nominee, and this is one of the questions to 
which Miguel Estrada responded.
  Let me read the question and his answer. The question is: Has anyone 
involved in the process of selecting you as a judicial nominee 
discussed with you any specific case, legal issue, or question in a 
manner that could reasonably be interpreted as asking you how you would 
rule on such case, issue, or question? If so, please explain fully.
  Answer: No.
  Mr. President, that is just about all he got in the hearing by the 
members of the other side of the aisle in the Judiciary Committee on 
how he would rule and what he felt about certain specific cases, legal 
issues, or questions. Specific cases were mentioned by name. Specific 
hypothetical questions were asked of him. Apparently, it is not OK for 
the President to find out how a candidate might feel about an issue, 
but Senators, by golly, we have the right and, in fact, it is so 
important to us, or to some of the body, that we are going to deny a 
nominee a vote even; we are going to deny the other Senators to have 
the opportunity to vote yes or no if we did not like the way he 
answered one of those questions.

  Senator Hatch is right; it is not that he did not answer the 
questions. It is that some people did not like his answers to the 
questions. If so, vote no, but do not deny everyone else the 
opportunity to vote, and that is what is going on here. It is called a 
filibuster.
  Our friends on the Democratic side have acknowledged that is exactly 
what they are engaged in: a filibuster of a judge. That is 
fundamentally wrong. It destroys the comity between the three branches 
of Government. It seeks to modify the majority vote confirmation 
process to an extra-majority requirement. It is going to poison the 
consideration of nominees of every President from here on, Democrat or 
Republican. This is one of those issues which, when once let out, you 
can never bring back; the horse will have been out of the barn.
  Never in the history of the Senate has a partisan filibuster 
succeeded in preventing the confirmation of a judge. That is what is at 
stake here. Of course, also at stake is the confirmation of a very 
decent, very fine, very forthright, and highly qualified candidate for 
judge.
  There was one other criticism I noticed early on, but I have not 
heard it recently, and that is he had no prior judicial experience. 
Senator Hatch pointed out the literally scores of Federal judges who 
became a judge when they were a lawyer. Not everybody can be born a 
judge, you see. First, you have to be a lawyer, and then somebody has 
to appoint you judge. So not everybody has experience as a judge when 
they are asked to be a judge.
  Current members of the U.S. Supreme Court, in fact, five out of the 
nine members of the DC Circuit Court of Appeals, the court to which Mr. 
Estrada is being nominated, were not judges before they were nominated.
  Mr. Estrada is a Hispanic lawyer. Are we going to create a new bar 
for minority lawyers? You have to be a judge before you can be elevated 
to the next level of the court? Not very many minority lawyers have 
been appointed or nominated as judges. President Bush is nominating a 
lot of them, that is true, but they are not judges now; they are 
lawyers. Are we going to create a bar that says if you are not already 
a judge, you cannot become a judge in the next level of the court?
  I do not want to see us setting a glass ceiling for minorities just 
because not as many of them have gotten to be judges. I think that is a 
very pernicious argument made with respect to Miguel Estrada. Five of 
the nine members of the court were not judges before they were 
nominated to serve. Why does it matter with respect to Miguel Estrada? 
I did not hear arguments made from the other side with respect to those 
nominees, so why with regard to Miguel Estrada? It is not right.
  I quoted yesterday, when the Senator from Vermont was on the floor, 
his own words, so I feel it appropriate to mention them again. He 
himself, the former chairman, now ranking member, of the Judiciary 
Committee said what many of the other leaders on the other side of the 
aisle have said: That filibustering a judge is wrong. And the Senator 
from Vermont said he would oppose--strongly oppose, I believe were his 
words--any filibuster of a judge regardless of whether he supported the 
nominee. You can always vote yes or no, but you should at least vote to 
invoke cloture.
  Madam President, I will give you an example. Twice I voted to invoke 
cloture so we could come to a vote on two of President Clinton's 
nominees. I supported one; I opposed the other. That is our right. I 
have good reasons for opposing the judge I opposed, but I believed my 
colleagues needed or had the right to vote on both of the candidates, 
and so I voted for cloture in both cases. That is the same point the 
Senator from Vermont made earlier: That we should vote for cloture and 
have an up-or-down vote.
  I will later bring to the floor the literally scores of statements by 
my colleagues on the other side of the aisle

[[Page S2264]]

over the years who have made the point over and over that filibustering 
a judge is wrong, that they would oppose it regardless of how they felt 
about the nominee, and that they would vote to invoke cloture.
  What has changed with Miguel Estrada? Why is he different? Why all of 
a sudden has their strongly held opinion, which was expressed before, 
changed? It is not that my colleagues are not consistent. Obviously, 
they want to be consistent. So it must be something else. It must be 
that in this nominee they see something very bad. They must see a 
reason why we should not even be allowed to vote on the nominee. It is 
so bad with Miguel Estrada that they are not willing to put it to a 
vote. They have to prevent the vote from occurring.
  What is it about Miguel Estrada that is so dangerous or so bad? If my 
colleagues say it is not about Miguel Estrada, it is the process, he 
would not answer the questions, Senator Hatch and I have already 
responded to that. He answered every question he was asked. Any more 
questions?
  As Senator Hatch said, the problem is they do not necessarily like 
all the answers. That is their right. We do not all agree with each 
other. That is why we have votes and the majority wins.
  I get back to the question, Why is it different with Miguel Estrada? 
There were 30 questions asked in the hearing that was held, and he 
answered them all. Maybe they did not like the answers. So vote no. But 
why would the other side deny the right of the Senators to cast a vote 
on the nominee?
  At the end of the day, the American people are going to look at this 
and wonder what is going on, what is this all about. Why will a 
minority of the Senate not agree to let the others vote? Is it because 
the candidate is not well qualified? No. This candidate had the highest 
rating that the American Bar Association can give a candidate.
  Is it that he does not have any experience? No. He is one of the most 
experienced lawyers in the country. In fact, he has argued at least 15 
cases to the U.S. Supreme Court. I practiced law for 20 years and only 
went to the Supreme Court three times, which is pretty good. Most 
lawyers never get there. Fifteen times he has argued cases.
  He answered every question that was asked of him. He has been 
strongly recommended by members of the bench and bar all over the 
country, Democrats and Republicans, including members of the former 
Democratic administration.
  There has been a question raised about when he was an Assistant 
Solicitor General and was providing advice to his seniors, should his 
confidential memos be released to the public? For the first time, our 
colleagues on the other side say, oh, yes, we want to see all of that.
  Now, I would kind of like to see the staff memos going to the 
Senators on the other side. Would that be fair? Would that be right? 
No, it really would not. Much as I would like to see what kind of 
advice they are getting, that would not be right.
  What about someday when very highly qualified staff of some of our 
colleagues on the other side of the aisle are going to be nominated for 
the court? That happens actually fairly frequently. Staff of the 
Judiciary Committee have been nominated to various courts. In fact, one 
of them serves no less than on the U.S. Supreme Court. How about asking 
for the memos that he sent to his boss advising his boss on various 
issues prior to his confirmation? What would we get there? I think we 
would get pushed back by Members saying, wait a minute, I was asking 
for his personal advice. I was asking for his judgment. I was not 
asking him for what he necessarily believed personally, and what he 
told me cannot be taken as something he personally believed but rather 
what he thought was the best advice for me on this particular issue. 
That is why our employees are protected from having to disclose all of 
the information they give us as their best judgment on different 
issues, because we are not asking them necessarily what they believe in 
their head or their heart. We are asking them for what the law is on 
this, what their recommendation is as to what I should do on this, 
knowing my views, not theirs.

  So to ask a young lawyer in the Solicitor General's Office to 
disclose all of the advice that he gave his bosses is nothing more than 
an unprecedented fishing expedition.
  I ask my colleagues on the other side of the aisle, is this the 
precedent that they want to create? When they seek to have one of their 
staff members nominated to a high court, do they expect to see a 
request for all of the memos that this staff person gave to them 
because they just might be useful in opposing the nomination? Maybe he 
said something that we could pick apart somehow or another.
  That is what is going on, and that is why four Democratic Solicitors 
General and three Republican Solicitors General, those who are living 
today, all wrote a letter unanimously saying this should not be done 
and all of them would have recommended against it.
  I happened to work for one of the Solicitors General who is no longer 
alive. One of the things he told me over and over again was that this 
is an office considered by some to be the tenth Justice on the Court. 
The Solicitor General is literally almost a member of the Court in a 
sense because of the objectivity and forthrightness with which he or 
she represents the views of the Government before the Court.
  The Court often solicits a brief from the Solicitor General saying, 
we have heard from both sides in this case but we would like to hear 
from the lawyer for the Government, the Solicitor General, who is 
supposed to be a very honest, forthright, and objective person. That is 
the office in which Miguel Estrada was working.
  If we ever get to the point where the decisions made by the Solicitor 
General, based upon the advice from the lawyers that work for him, do 
not represent the best objective advice, do not represent the best 
truth and the proper reading of the law as they can bring forth but, 
rather, now must take into consideration political considerations that 
arise from the fact that these memos and this advice would be disclosed 
publicly, the Solicitor General is no longer going to be deemed the 
``tenth Justice.''
  The Government is no longer going to be solicited for its advice to 
the Court on these important matters because the consideration would 
be, well, what did they have to consider politically since the whole 
world is going to read these memos and is going to know what the advice 
was that was given. It does not work that way. It cannot. That is why 
it would be wrong.
  Many of my colleagues on the other side know that it would be wrong. 
They know they are never going to get the memos. They know they should 
not get the memoranda. But because they can ask for it knowing that it 
is not going to come, they have an excuse to be able to say, gee, we do 
not have all the information we need.
  I do not think that is the motivation of any of my colleagues on the 
other side of the aisle because I think they realize this is not 
something that historically has been requested and should be requested.
  So when you parse out all of the different objections to Miguel 
Estrada, it all boils down to abstract process and, from some of the 
outside groups anyway, retribution. It has nothing to do with his 
qualifications. It seems to me that common decency and fairness would 
cause each one of the 100 of us to look deep within ourselves and say 
maybe we vote yes, maybe we vote no on his nomination, but we should 
not deny him a vote. That is partisanship and negativity and 
obstructionism that is not worthy of the Senate. So we should not do 
that.

  We should agree to let this nominee be voted on, cast the vote we 
believe is appropriate, and then move on with the Nation's business. At 
a time when we may well be on the brink of engaging in military 
conflict, and the President has a great many issues on his agenda to 
deal with in that regard, I think it is unseemly for the Senate to be 
holding up, filibustering, one of his highly qualified nominees to the 
DC Circuit Court of Appeals.
  As the Senator from Nevada said earlier today, everything has been 
said, it is just that everybody has not said it. Fine. Come on down and 
say it so we can get on with the vote, confirm Judge Miguel Estrada, 
and move on with the Nation's business.
  The PRESIDING OFFICER. The Democratic whip.

[[Page S2265]]

  Mr. REID. Madam President, if this were a matter of retribution, it 
would have started a long time ago.
  Senator Daschle came to the floor after we took the majority in the 
Senate and said that as it related to judicial nominations this was not 
payback time; we were not going to treat the then-minority, the 
Republicans, as we were treated when we were in the minority. To show 
that we were true to our word, we approved 100 nominees during the 
short time we had the majority of the Senate.
  I read into the Record earlier today the scores of judicial nominees 
who did not receive hearings, who waited and never got a vote on their 
nominations. They are out practicing law someplace. This is not 
retribution.

  Madam President, once in a while I try to come up with something that 
has not been said on the Senate floor during the last several days. My 
friend from Arizona said: Everything has been said, but not everyone 
has said it. I have come up with something that has not been said, in 
response to what my friend from Utah and others have said about this 
ABA rating that Estrada has. The Republicans thought so much of the ABA 
rating that when they had the majority, they decided to do away with 
it. But now they have decided it is a good thing.
  It is true, Estrada received a well-qualified rating from the 
American Bar Association. I think everyone acknowledges that the ABA 
should not completely supplant the Senate's role. Those on the other 
side have indicated the ABA rating of Mr. Estrada should be afforded 
great weight. I think it should be afforded some weight. Some have 
implied it should take the ABA's word for it when it comes to Estrada 
and simply limit our role in reviewing his record because he got a 
well-qualified rating from the ABA.
  The American Bar Association rating is a useful tool for the Senate. 
But that is all it is, a tool. It is not a replacement for the Senate 
exercising its own independent judgment regarding a nominee's 
suitability for the second highest court in the land. There are good 
reasons for that. The best reason is the Constitution, Mr. President.
  I am sorry, I referred to the Presiding Officer as a ``Mister.'' I 
have the greatest respect for the Senator from North Carolina, having 
one of the most distinguished records of any Senator who has come to 
the Senate, having served in so many different Cabinet positions that 
they are difficult to name; and, in addition, the highly visible role 
the Senator from North Carolina has held in different administrations. 
She has been head of one of the greatest organizations in the history 
of the world, the American Red Cross. I know who is presiding, and I 
was just reading from my notes and apologize for referring to the 
Senator as ``Mr. President.''
  The best reason we do not agree with the majority is the 
Constitution. The Constitution assigns the role of evaluating a nominee 
to the Senate--not to the American Bar Association. In addition, if you 
look at the ABA process, it is far from perfect. The ABA delegates the 
review of potential nominees to one individual member of the ABA 
committee for each circuit. In effect, these nominations that the 
President gives us, no matter what party, go to one lawyer in the ABA, 
and that lawyer makes a recommendation. The ABA delegates that review 
to one individual who nominates each nominee and appoints to the ABA a 
recommended rating of that nominee's qualifications.
  In this instance, a man by the name of Fred Fielding was in charge of 
evaluating potential nominees for the DC Circuit at the time Miguel 
Estrada was under consideration by the White House. In this role, Mr. 
Fielding was in charge of evaluating Mr. Estrada's qualification and 
was in charge of recommending a rating to the ABA. He recommended well-
qualified. The ABA places heavy reliance upon the recommendation of 
people such as Mr. Fielding and approved Fielding's recommendation 
unanimously.
  There have been some concerns about how this ABA process works and 
how it will work in this case. In this case, Mr. Fielding, at the same 
time he was evaluating DC Circuit Court nominees such as Miguel 
Estrada, continued to be heavily involved in partisan politics. He was 
counsel to the Republican National Committee for the Republican 
National Convention of 2000 and served on the Bush-Cheney transition 
team in 2000. At the same time he was serving on the ABA committee that 
evaluated DC nominees, Mr. Fielding cofounded, with C. Boyden Gray, 
something called the Committee for Justice.

  We all know C. Boyden Gray has been a long-time, very partisan 
Republican. There is nothing wrong with that. But that is a fact of 
life. This organization was founded to help the White House with the 
public relations effort to pack the Federal bench with extreme judges. 
They also founded it to run ads to intimidate Democrats from exercising 
their constitutional duty to scrutinize the President's judicial 
nominees. Ads are now run to that effect, saying Senate Democrats are 
really bad. The ads are paid for by the Committee for Justice, which is 
this front that has been established by Fred Fielding and Boyden Gray. 
Their ads label Members of this Chamber as ``liberal extremists'' and 
``anti-Hispanic'' even though the Hispanic Caucus has said Miguel 
Estrada should not be placed in the DC Circuit.
  These ads run by this organization that is led by Fielding and Gray 
are unfortunate. It is a right that Fielding and Gray have to engage in 
these activities to mislead the American people. They have that right. 
But it does call into question whether someone so heavily steeped in 
partisan activities can objectively and impartially evaluate nominees' 
qualifications to the second highest court in the land.
  This man, Fred Fielding, was the person who gave Estrada the 
recommendation while he was doing this. He was forming a committee he 
calls Committee for Justice, with Boyden Gray, another partisan 
Republican, and the purpose was to pack the bench with right-wing 
conservative judges. They also raised money so that if someone 
disagreed with them, they would run ads and intimidate them into 
agreeing with them. It does call into question whether someone so 
heavily steeped in partisan activities can objectively and impartially 
evaluate the qualifications of the nominees of the second highest court 
in the land.
  The Senate is not privy to Mr. Estrada's ABA report, and we have no 
way to evaluate how Mr. Fielding arrived at his recommendation, but I 
think at the very least his partisan activities at the time he was 
charged with independently evaluating Mr. Estrada create the appearance 
of a conflict of interest and should embarrass the American Bar 
Association.
  People expect the ABA reviews to be conducted by independent, 
nonpartisan individuals, not by partisans who are the President's foot 
soldiers in the effort to pack the Federal courts. The circumstances of 
Estrada's ABA evaluation are very serious--very serious. These 
circumstances underscore the need for the Senate to independently 
evaluate Mr. Estrada's record.
  It would be somewhat shallow for people to say that this man, 
Fielding, who evaluated this judge to be, was fair and independent. I 
said the ABA should be embarrassed. What we are talking about here is 
Estrada. This has made an independent review impossible. I am not 
willing to delegate my constitutional duty to Mr. Fielding, the 
cofounder of a group designed to attack Members of this body who do not 
agree with him.
  Earlier today, I had a chart here that outlined Mr. Estrada's 
assistance to this body so we could come up with answers to Judiciary 
Committee questions. Some people called in and said the chart was small 
and they could not read it. I want to make sure they can read this 
chart. It is titled ``Miguel Estrada's answers to the Judiciary 
Committee's questions.'' Here are his answers.
  There weren't any. Those from the other side can come here and talk 
and show us visual aids about all the answers given to this committee 
that fill volumes when, in fact, as Senator Durbin so well described, 
his answers were evasive.

       Mr. Estrada, give us the name of a Supreme Court Justice 
     that you would like to be.
       I don't have an opinion.
       Give us a case you disagree with.
       I don't have an opinion.

  These were his answers to the Judiciary Committee's questions.
  I had some other charts here, and they said the writing was too 
small.

[[Page S2266]]

Here is one about Miguel Estrada's legal memoranda. Here is the 
information we have regarding Miguel Estrada's legal memoranda. The 
writing this morning was too small. But here is what it says:

       Miguel Estrada's legal memoranda.

  Here is what we have: Nothing.
  My friend from Arizona said this would be chilling; why would we want 
to set a precedent like this?
  It has been set in the past. We have had Chief Justice Rehnquist, for 
beginners. When he came before this body and we wanted to look at a 
memo, we got it. I don't have all the names here, but we know Civiletti 
and Roberts and others--it has happened on other occasions. This is no 
dangerous, misleading, scary precedent.
  We have, by virtue of the Constitution of the United States, an 
obligation to make sure that we advise and consent to the nomination of 
the President. Article II, section 2, says that is our obligation, and 
that is what we are doing. We have an obligation that is in the depths 
of the Constitution to do just that.
  If they, the majority, believe this man is as good as they say he is, 
let us share in the information, let us look at his legal memoranda, 
and let us also have him answer questions.
  You would think we would want to know, as part of our constitutional 
duties, what a person's legal philosophy is. As the Senator from 
Illinois, Mr. Durbin, and I this morning indicated in an exchange, Mr. 
Durbin, the distinguished Senator from Illinois, the senior Senator 
from Illinois, he said to Miguel Estrada: Give us the name of a case in 
the Supreme Court that you disagreed with.
  As Senator Durbin and I said: You know, we have been to law school. I 
will bet it is not too hard of a press to come up with a case about 
which you think the U.S. Supreme Court was wrong. How about Dred Scott? 
Maybe Dred Scott was wrong.
  Not him. He wouldn't tell us. No.

       I have no opinion on that.

  Miguel Estrada's legal philosophy--that is it. And because that is 
it, this blank, we are going to make a decision? No.
  The majority leader is the one here who has to make a decision. He 
can go on like we are today, tonight, tomorrow. In fact, I read in a 
publication here that one of the Republican leaders says:

       If [Democrats] want to stay through the weekend, we'll stay 
     through the weekend.

  Boy, is that a threat that just chills me. We may have to work here 
over the weekend? That would be terrible. Is that supposed to take away 
our constitutional duties, because they are going to make us work? I 
work whether I work here or go home.
  The leader has to make a choice: Are they going to pull this 
nomination or do they think enough of this man to give us his legal 
memoranda and have him answer questions? Or he could do something that 
is done a lot around here: File cloture. See if he can stop the debate.
  As I have said before, we are in harmony over here. We believe what 
we are doing is principled and right. No matter how many times the 
other side says there is no problem, all they have to do is see what is 
going on here. There is a problem. If they want to resolve that 
problem, all the cards are in their hands and they can decide how they 
want to handle it. Otherwise, if they want us to stay here, we will 
stay in quorum calls or we will talk.
  I have suggested to some of the Senators here if we get past the 
morning hour when we have to be fairly germane to what is being talked 
about, I think it would be an excellent time, as the Senator from West 
Virginia did yesterday, I think we should have a little discussion 
about what is going on in the world. We are very close to going to war. 
That is what I am told. I think it would be very important to the 
people of Nevada to have a discussion about that. I think we are going 
to win the war, but are we going to win the peace in Iraq? That should 
be a subject. If they want to keep us here all weekend, we could talk 
about that at some length.
  Mr. BYRD. Madam President, will the Senator yield?
  Mr. REID. I am happy to yield for a question without losing the 
floor.
  Mr. BYRD. Are we likely to be in session this weekend?
  Mr. REID. That is a decision they have to make. I am just reading 
from one of the publications. One of the Republican leaders said they 
are really going to get us on this. They are not filing cloture, but 
what they are going to do is talk all night tonight and all night 
tomorrow night, to get a vote on the Estrada nomination by the weekend.
  Let me just say to everyone within the sound of my voice, that will 
not get them a vote on Estrada. We have told them what we believe is 
appropriate.
  People may disagree with us. This is the Senate. We have certain 
rules. We are not dealing from under the deck. We are not holding any 
cards up our sleeves. We have said openly what we are doing. We are not 
going to allow a vote on this until we get the information we want. So 
it is up to them. If they want to threaten us, we could also--we could 
talk about the war, as the distinguished Senator from West Virginia did 
yesterday.
  I think it is also important to think about this economic plan that 
has been suggested, the one the President has put forward that the 
Chairman of the Federal Reserve says is not a good plan. The chairman 
of the Ways and Means Committee in the House says it is not a good 
plan. We could talk and elaborate on how some of the Republicans feel 
about their own plan. That would take a little bit of time.
  We could talk about the President's Medicare fix, which the Speaker 
of the House of Representatives said is a really bad idea.
  We can talk about a lot of things. This is the Senate rules. We do 
not have to talk about Miguel Estrada. I said to everyone yesterday and 
I have said it today, everything has been said about Miguel Estrada, 
for and against him. But not everyone has said it. So we can be here, 
we can continue rehashing Miguel Estrada.
  But the President said--I think I am quoting almost verbatim when he 
was told there is a filibuster--the game is over.

  I don't know what that means. That is a term he used a lot. He said 
the game is over in Iraq. The game is over on Estrada. This is not a 
game; this is something we are doing based upon principle.
  I think, for the good of the country, unless they are going to give 
us the information we want, this nomination should be pulled. Then we 
can get on to other things that I think are very pressing that we 
should get on to.
  I want to make sure I was right. I want to make sure I said this 
right.

       Senate Judiciary Committee Chairman Orrin Hatch . . . 
     scoffed the Democrats' demand for more information about 
     Estrada.

  I said the President said: The game is over.
  Senator Hatch said that. He is quoting what the President said on 
other things.

       That game is over.

  The game is over--this is not a game. This is not something that was 
arrived at in a short period of time. In fact, the Democratic leader 
waited a number of days before the decision was made, after he 
conferred literally with every Democratic Senator about how he felt 
about this. This is not an arbitrary decision made by the Democratic 
leader. This is a decision made by Senator Daschle after having 
conferred with every Democratic Senator, on more than one occasion in 
most instances. That is what the body over here desired to do, and that 
is what we are doing. We hope everyone understands this is not a game. 
We are very serious about what we are doing. We believe what we are 
doing is principled.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.