[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2232-S2305]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session to resume consideration of Executive Calendar 
No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I will be very brief. I see the 
distinguished chairman of the committee on the floor. Under normal 
procedures, he would speak first. I appreciate his courtesy in 
withholding for a moment.
  A lot has been said, and as the distinguished senior Senator from 
Nevada said, not all have said it. There is actually one person who, 
were he to speak, could speed this whole matter up very quickly. Miguel 
Estrada has written extensively on his views on very complex issues on 
law which would be of great interest to those who have to vote on 
somebody for a lifetime position in the courts. He has written 
extensively, but he has kept the writing secret.
  We have ample precedent for similar writings that have been made 
available for everything from a nomination of a man who became Attorney 
General to a man who became the Chief Justice of the United States, 
William Rehnquist. The Democratic leader and I wrote to the President 
and asked once again: Release those secret writings.
  Ironically, Mr. Estrada told us, when asked, he had no objection to 
those writings being released. He has no objection to them being 
released. It is only the White House has said: We will not release 
them. If they were released, I suspect we would then have a discussion 
of what is in those writings, and we would go to a vote up or down, win 
or lose.
  At least we would know what we are voting on. We would not have a 
stealth candidate before the Senate. I think the White House ought to 
look at the fact Mr. Estrada has said he has no objection to his 
writings being made public. They ought to make them public, and then we 
can go ahead and complete action up or down on this nominee.
  Again, I thank my good friend from Utah for his courtesy in letting 
me go forward. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, it is interesting that my colleague, who is 
my friend, says Miguel Estrada is holding this process up, and then at 
the end of his remarks says he has agreed, he has no objections to 
giving these documents, but they never emphasize the fact the Justice 
Department is highly justified, is absolutely right, and has the 
opinion of the seven former Solicitors General saying these types of 
confidential memoranda should not be given to the Judiciary Committee 
or to Congress. The reason for this is that these memoranda are 
utilized in deciding what the Solicitor General's Office should do with 
regard to various cases.
  If these memoranda become readily available or available at all 
outside the Justice Department, this would chill the honest, forthright 
deliberations, suggestions, and recommendations by those who work in 
the Justice Department. I do not think it takes any brains to realize 
the Justice Department is totally right.
  Miguel Estrada is being blamed because the Justice Department, in 
accordance with their seven former Solicitors General, refuses to give 
up these confidential memoranda, which are privileged, so the Democrats 
can go on a fishing expedition and see if they can find some matters in 
those memoranda with which they disagree. They can then say: We cannot 
confirm him because he wrote some memoranda with which we disagree.

[[Page S2233]]

  That is what is behind this. This is not trying to be fair. This is 
not trying to understand what is good or bad about Mr. Estrada. It is a 
fishing expedition to try to get into privileged documents that should 
remain privileged, according to these seven former Solicitors General 
of the United States, four of whom are Democrats and partisan Democrats 
at that, although highly respected by me. And the other side seems to 
act like we should just brush those opinions aside, even though they 
are bipartisan opinions by people who have held this office. I do not 
think they can have it both ways. I do not think their arguments are 
worth a grain of salt.
  In addition, I listened intently yesterday morning, when I could, to 
the comments by the junior Senator from New York who spoke about the 
role of the Senate in the constitutional advice and consent process. 
According to the Senator, Mr. Estrada's failure to answer questions 
about his personal views on legal issues, which she called ``basic 
information about where a nominee stands,'' amounts to an 
unconstitutional strategy to deny the Senate an opportunity to engage 
in its role to advise and consent on nominations.
  While this is an interesting argument, it is wrong on the law. It is 
wrong on the law and wrong on the facts, too. Her argument ignores the 
basic underpinnings of the Senate's role in the advice and consent 
process. In fact, I submit that the other side's effort to demand Mr. 
Estrada's personal views on certain legal issues is itself an 
unconstitutional threat to the separation of powers inherent in our 
system of Government and to the Framers' desire to maintain an 
independent judiciary. I think that is a very persuasive argument on my 
behalf.
  It has never been the case that the Senate is constitutionally 
entitled to an answer to any question it chooses to ask a nominee while 
exercising its advice and consent responsibility.
  The reason for this is clear. The Framers sought to ensure the 
judicial branch would remain independent of the legislative branch. 
According to the Federalist Papers 78, judicial independence ``is an 
excellent barrier to the despotism of the prince'' and ``in a republic 
it is a no less excellent barrier to the encroachments and oppressions 
of the representative body.''
  For this reason, the Constitution prohibits Congress from reducing 
Federal judges' salaries, guarantees that judges will remain on the 
bench ``during good behaviour'' and allows Congress to remove them only 
by the process of impeachment. These protections were borne of the 
Framers' fear that like King George III, the Federal legislature would 
pressure judges into reaching outcomes of which it approved that 
otherwise were consistent with its interests.
  The Framers' intent to insulate Federal judges from the political 
influence of the legislative branch also informed their decision to 
restrict the role of the Senate in the confirmation process. The 
Senate's limited function is apparent from the Constitution's very 
text. To state the obvious, the President holds the power to nominate 
candidates to the Federal bench while the Senate's role is restricted 
to providing ``advice and consent.''
  Now, that does not mean advice and filibuster. It does not mean 
advice and obstruction. It does not mean advice and a demand that only 
the Senate's will can be followed. It does not mean advice and fishing 
expeditions, which is exactly what is going on.
  I do not think my colleagues on the other side have a leg to stand on 
in these arguments they have been making. Even if they did, they had 
every opportunity to examine Mr. Estrada. This argument that he did not 
answer the questions is ridiculous. They had every opportunity to ask 
him every question they wanted to, and even stupid questions they could 
ask. Any member of the Judiciary Committee could ask anything they 
wanted to, and sometimes we have some of the dumbest questions anybody 
could possibly hear, but they have a right to ask these dumb questions. 
But the nominee has a right to say: I do not think I can answer that 
because that issue may come before me as a judge, and if it does, I do 
not want to have to recuse myself. Virtually everybody who has ever 
been nominated, who has been in any controversy, has said exactly that. 
Top authorities from both sides of the political spectrum agree they 
should not answer that, and the American Bar Association's ethical rule 
says they should not. Yet, Mr. Estrada is being crucified because he 
did not tell them everything they wanted to hear.
  The real problem was, and I think is, that Mr. Estrada just did not 
say anything they could use against him. It is very disconcerting to my 
colleagues on the other side that they didn't find anything to use 
against Mr. Estrada. So they use ridiculous, idiotic arguments like he 
has no judicial experience. I saw the press release by Congressman 
Menendez who has led this terrible fight against Mr. Estrada, with his 
very partisan Democrat colleagues in the House, all of whom are 
rebutted by the Republican Hispanics in the House.
  He basically said, well, he has no judicial experience. Well, that is 
not only ridiculous, it is idiotic. One of them made the case one does 
not have to have judicial experience to be a great judge, and that 
President Clinton nominated innumerable people to be judges, that we 
approved, who had no judicial experience. Some of the greatest judges 
in the history of this country did not have any judicial experience, 
and yet that argument is used.

  It is a terrible argument. I think it is a prejudicial argument 
against Hispanics, because how many Hispanic judges are there in this 
country who might be put on the circuit court of appeals? Very few. 
That means all these great Hispanic lawyers who belong to the Hispanic 
Bar Association do not have a chance to be a judge under that reasoning 
because they have not sat as a judge anywhere before. Talk about 
discrimination. Talk about ridiculous arguments. Talk about prejudice.
  It is a shame it comes from one of the Hispanic leaders in the 
House--Democrat Hispanic leaders, I might add. I cannot imagine anybody 
who really wants to see Hispanics progress and to become judges saying 
he has no judicial experience, therefore, he cannot be a judge. Give me 
a break.
  Very few Hispanics have judicial experience, but there are a number 
of them who I hope President Bush and succeeding Presidents will give 
the opportunity of being a judge.
  Now that just shows the lengths to which the other side has gone to 
basically scuttle this nomination, and this constitutional argument we 
had yesterday fits in that category. The Constitution assigns the 
Senate a limited role in the selection of judicial nominees. It simply 
allows the Senate to ratify the President's choices, or decline to do 
so. That is the Senate's power.
  Put simply, the President selects, then the Senate reviews and 
reacts. As Alexander Hamilton explained in The Federalist No. 66:

       There will, of course, be no exertion of choice on the part 
     of the senate. They may defeat one choice of the Executive, 
     and oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice he may have 
     made.

  I think some of our colleagues on the other side want to choose these 
judges, and we are finding that continuously in their arguments, that 
the administration does not ``consult'' with them. If consultation 
means the administration has to take whatever judges the Democrats 
desire, then that is not consultation. Consultation is letting them 
know what is on the mind of the President, and the administration 
discussing it with them, seeing if they have any real objections to the 
choices of the President, asking them to weigh in and give the 
administration whatever information they can, and then making the 
choice and going from there. That is consultation.
  The administration even goes further. The administration has had to 
put up with the blue slip system, which means local Senators have a lot 
of power in determining who are going to be the Federal district court 
judges. They do not have the same type of power in who should be 
Federal circuit court of appeals judges. That power has always been 
jealously guarded by whichever White House.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Sure.
  Mr. DURBIN. I want to make sure, the Senator is saying we are going 
to stay with the blue slip approach then for judges in the future?

[[Page S2234]]

  Mr. HATCH. I doubt we are, because I have said I will follow the 
exact blue slip policy Senator Kennedy, Senator Biden, and I followed. 
So all this bull in the press saying that I am going to change the blue 
slip laws, yes, I am changing it from what Senator Leahy did, but I am 
going back to the process of Kennedy, Biden, and Hatch.
  Mr. DURBIN. So if the Senators from a State were----
  Mr. HATCH. I have said it enough I would hope the Senator heard it.
  Mr. DURBIN. To make sure it is clear for the record, if Senators from 
a State where a judge is being appointed do not approve of that judge, 
then you are not going to have a hearing; the Senator has to have two 
blue slips from two Senators from the State?
  Mr. HATCH. That is absolutely false. Senator Kennedy set the process 
to begin with. When he became chairman of the committee, he said 
negative blue slips shall be given great weight, but they are not 
dispositive.
  If both Senators are against the nominee, that is given great weight 
by me. It was by Senator Kennedy.
  Mr. DURBIN. Senator Leahy's approach of both Senators having a voice 
as to whether the nominee goes forward, the Senator is not going to 
abide by that blue slip process in the future?
  Mr. HATCH. I have changed the Leahy approach because it was in 
contradiction to the Kennedy, Biden, and Hatch approach, who followed 
Kennedy and Biden and did it to the letter.
  It is very difficult, when two Senators go against a nominee, for 
that nominee to make it, but it is, as Senator Kennedy said, not 
dispositive. That has been the rule, as long as I can remember, until 
Senator Leahy changed it. I think even Senator Leahy basically 
acknowledged that rule.
  Mr. DURBIN. I say to the Senator from Utah, the rule that has been 
followed since I have served in the committee under your leadership, as 
well as under Senator Leahy, said both Senators would have a voice in 
the blue slip process.
  Mr. HATCH. And both do.
  Mr. DURBIN. The fact the Senator is changing it suggests to me, 
again, he is removing the power of the committee and of the Senate to 
look at judicial nominees.
  Mr. HATCH. Not one bit.
  Mr. DURBIN. That is what the debate is all about.
  Mr. HATCH. Not one bit. In fact, I reiterate to my friend again, I 
did not set this policy. It was set by Senator Kennedy. I remember when 
he set it way back then, there was a lot of people upset about it on 
our side, but it became the policy of the committee. Then when Senator 
Biden became chairman of the committee, he agreed with that policy. He 
adopted that policy. Then when I became chairman of the committee for 
the first time, I agreed with that policy and I followed that policy. 
All I am saying is I am going to follow the policy set by Democrats.
  Mr. DURBIN. The Senator from Utah is rejecting Senator Leahy's 
policy?
  Mr. HATCH. I am not rejecting it. I am just saying we are going back 
to the original policy set by Senator Kennedy, Senator Biden, and 
myself.
  Mr. DURBIN. That is a very positive spin, but I think the answer is 
the Senator is rejecting Senator Leahy's approach.
  Mr. HATCH. We will not use the Leahy approach, that is true, because 
I think it is wrong. And I think Senator Kennedy and Senator Biden 
thought it was wrong, as well, by their actions.
  I find it a little strange that Democrats are criticizing a policy 
they themselves set and trying to say I have changed the policy when in 
fact it was set by Democrats--and leading Democrats at that.
  The fact that Senator Leahy changed it does not mean it was right for 
him to overrule Senators Kennedy and Biden and myself. I believed he 
was wrong.
  Mr. DURBIN. I ask the Senator one last question, does the Senator, as 
chairman----
  Mr. HATCH. Let me ask this: Does the Senator have a question?
  Mr. DURBIN. Yes. Did the Senator from Utah, as chairman of the 
committee, ever have a hearing for a nominee who did not receive both 
blue slips from Senators in the State?
  Mr. HATCH. I don't recall.
  Mr. DURBIN. I think the answer is no.
  Mr. HATCH. As the general rule, it stopped the nominee--as a general 
rule, but it is not dispositive.
  (Ms. MURKOWSKI assumed the chair.)
  Mr. DURBIN. So we will change not only the Leahy approach but the 
Hatch approach?
  Mr. HATCH. No, I still have the same approach. I gave great weight to 
the Senators, and I intend to in the future. But that does not mean 
that a legitimate nominee should not have his or her day in court.
  Mr. DURBIN. One last question: Does the Senator, as chairman of the 
committee, now send out blue slips to Members so they can respond?
  Mr. HATCH. We do. That is a policy of the Senate Judiciary Committee.
  Mr. DURBIN. They have been sent out?
  Mr. HATCH. As far as I know. If they have not, they should be. We 
know some have been returned and some have not been returned.
  Mr. DURBIN. Thank you.
  Mr. HATCH. Now, let me just say this. I was speaking a few minutes 
ago about the Federalist Papers and what they had to say.
  As I said before, and has been repeatedly quoted, as though I said 
something I am not following to this day, I agree that the Senate 
should not be a rubberstamp to a President's choices for the judiciary. 
We do not have to be a rubberstamp.
  We have an obligation to look at these people and to see what is 
wrong. Tell me what is wrong with Miguel Estrada. Tell me one glove 
they have laid upon him. Tell me one proof they have that he is not 
worthy of being on the Circuit Court of Appeals for the District of 
Columbia--other than the specious, spurious argument: Well, we do not 
know enough about him.
  They conducted a hearing. They controlled the process. They asked 
questions. That hearing transcript is this thick. Normally the 
transcript is 10 pages. They controlled everything. They could have 
asked written questions. Only two of them did--two Democrats did. And 
he answered them.
  Now they are coming in here crying over their failure to ask any 
further questions, saying: We must examine him more.
  I am hearing that on every judge this President has nominated. We 
have 26 emergency situations in this country--in other words, 26 real 
problems in this country--and other vacancies that are also problems, 
and I am getting these spurious arguments.

  We have a markup tomorrow. We have 3 circuit court nominees, and we 
had a hearing for 12 solid hours. I was willing to stay even longer. I 
would have stayed all night, if necessary, to get that hearing over 
with. It was the Democrats who decided it was over. They had every 
chance to ask questions. I am hearing they will filibuster these three 
nominees in the Judiciary Committee tomorrow.
  When is it going to stop? When are they going to start doing what is 
right? Will this all be partisan just because they did not win the 
Presidency? Is President Bush going to be treated this way on every 
judgeship? They say these are controversial judges. I have not seen one 
circuit court of appeals nominee since I have been chairman of this 
committee who they do not think is controversial. Every one is 
controversial. The reason is they are circuit court of appeals 
nominees, and this President has nominated them, and they presume they 
must be Republicans and conservative. The only nominees about whom I 
did not hear any argument were the Democrats this President has 
nominated, holding out his hand to them, saying, let's work together. 
He has nominated Democrats we have been able to get through, and with 
my approval.
  Now that we have some Republicans such as Miguel Estrada, who may be 
conservative, the President is not getting a fair shake. They are not 
even trying to give him a fair shake. I don't think my friends on the 
other side have to rubberstamp anybody, but they ought to be fair. They 
ought to be fair to this President. He is the President of the United 
States. He has a right to nominate these people. Unless they can show 
some legitimate reason for not confirming these people, then these 
people should be confirmed.
  Where is the legitimate reason against Miguel Estrada? I don't see 
any. I have not heard one legitimate

[[Page S2235]]

reason the whole time we have debated this for the last week--not one, 
not one--other than we should be able to continue a fishing expedition 
long after they held a very extensive hearing on this person, long 
after they had the opportunity of sending him written interrogatories 
or questions. And only two of them did. Now they are in here crying as 
if they have been somehow mistreated in this process. They controlled 
the process.
  As has been the case history, the Senate is entitled to detailed 
information about a nominee's background, career, and qualifications 
for the bench. Mr. Estrada has provided ample information to allow the 
Senate to determine his qualifications.
  First, it bears repeating that the American Bar Association, their 
gold standard, when we were having problems whether the Bar Association 
was fairly examining judges--and there were some real questions on our 
side because of some ridiculous, I think, ratings they had given in the 
past--the Democrats said: We must have the ABA ratings. We will not 
allow candidates to go through, nominees to go through, without the 
ratings. It is our gold standard.
  I think it bears repeating that the American Bar Association 
unanimously--the standing committee that really examines these judges 
and takes it seriously--unanimously rated Mr. Estrada well qualified 
for this position, the Democrats' ``gold standard.'' That is the 
highest rating the American Bar Association grants.
  Let me say one other thing before I yield to my colleague. That is 
this: I have had real problems with the American Bar Association in the 
past. I was the one who said: We are not going to allow them to be part 
of the process. They can submit their recommendations. I will give them 
weight, and Senators can give whatever weight they want. But they will 
not be a vetting processor that can determine whether a person sits or 
not. The reason I did that was I believed they were not being fair.

  In the intervening years, and currently, I believe the American Bar 
Association has straightened out its act, and I believe they are being 
fair, and I believe they are doing a good job. I want to be the first 
to correct the record as to why I am in agreement that we can pay very 
good attention. I don't think even the American Bar Association should 
stop someone from being a judge just because they disagree--and I can 
name two cases where I personally led the fight to have judges 
confirmed who were rated not qualified by the American Bar Association 
and the judges have turned out to be very good judges in the end.
  I yield.
  Mr. DURBIN. I think the Senator may have answered. I was going to 
ask, as chairman of the Senate Judiciary Committee, if the Senator 
believes we should approve Miguel Estrada because he was rated well 
qualified by the American Bar Association, has the Senator from Utah 
ever failed to approve a nominee from President Clinton who was well 
qualified by the American Bar Association? I think the Senator has 
answered that question that there were times when he rejected nominees, 
voted against nominees, refused to have hearings for nominees, delayed 
hearings on nominees who were rated well qualified by the American Bar 
Association.
  Mr. HATCH. Not that I recall. I never allowed the American Bar 
Association to make the determination in my mind whether I was for or 
against someone. I have paid attention to what they do, even when I 
disagree with them. I always read what their recommendations were, and 
I always gave credibility where credibility should be given. I will 
continue to do that.
  What I disagree with: I don't think the American Bar Association 
system should be a determining factor one way or the other whether a 
person is approved by a Judiciary Committee of the full Senate, whether 
a person is confirmed. I personally don't think anybody should take 
that attitude. Some did. But that should not be a rule of the Senate. 
We have that responsibility, not the ABA. I appreciate the Senator's 
excellent question.

  Nor am I for Mr. Estrada because he happens to be unanimously well 
qualified. It is because he is the fulfillment of the American dream. 
Here is this young Hispanic man who came to America not speaking a lot 
of English, he learned English, and then he goes on and becomes a 
graduate of Columbia University, magna cum laude, and then he goes to 
Harvard and graduates magna cum laude there, where he was editor of the 
Harvard Law Review. Then he holds various positions, ranging from clerk 
on the Second Circuit Court of Appeals and clerk for Justice Anthony 
Kennedy, a moderate on the Supreme Court. And then he worked in the 
Solicitor General's Office in the first Bush administration and also 
for the Clinton administration. He has raving reviews of the kind of 
work he did there. Then he becomes a partner in one of the great law 
firms in this country, Gibson, Dunn & Crutcher, at a relatively young 
age. He has argued 15 cases before the U.S. Supreme Court, winning 10 
of them.
  Look, it doesn't take many brains to say this must be one heck of a 
guy, he must be one heck of a lawyer, and he must really be someone who 
can do the job on any bench in this country. To say he has no judicial 
experience when he clerked for two major Federal judges--one a circuit 
judge and the other a Supreme Court Justice--I think is pure bunk, and 
everybody knows it. That keeps coming up like it is a real argument. 
That is what they call arguments--that he wasn't a judge and, 
therefore, he should not have this privilege; that he hasn't answered 
questions just the way they want him to answer, even though the 
transcript is thick with extensive hearing questions and answers. He 
answered their interrogatories, written questions, but only two of them 
took the time to write them. I hope we don't send written questions to 
every one of these nominees, but if you have some questions, send them.
  He said if the Justice Department wants to give up these memoranda, 
it is OK with me, I am proud of my work. But he fully understands why 
they don't want to simply turn them over. They are private, they are 
confidential, and they involve opinions that could undermine the work 
of the Solicitor General of the United States in arguing for our 
country. If they are disclosed and if other workers in the Solicitor 
General's Office believe their opinions are going to be disclosed to 
the public, guess how honest the future opinions are going to be, 
especially if somebody wants to go on to hold another position in the 
Justice Department or Government that is a confirmable position, or 
wants to become a district court, or circuit court, or Supreme Court 
judge.
  Second, Mr. Estrada testified for a full day in the Senate Judiciary 
Committee on a range of subjects and then answered written follow-up 
questions from committee members. As I said, it should be mentioned 
that only two members of the committee decided to pose such questions.
  Third, Mr. Estrada has received broad bipartisan support from lawyers 
who know him best, including former Clinton Solicitor General Seth 
Waxman and Vice President Gore's former chief of staff, Ron Klain--
these are top Democrats who say this man deserves confirmation--former 
Clinton Justice Department officials Randolph Moss and Bob Litt--again, 
two top Democrats, many individuals in the Justice Department; and, in 
addition, 14 other colleagues of Miguel Estrada in the Solicitor 
General's Office have all written glowing recommendations of Mr. 
Estrada.

  Fourth, the Senate is free to review the briefs and other publicly 
available written work Mr. Estrada performed on behalf of clients in 
the more than 15 Supreme Court cases he has handled during his career.
  The record is voluminous. They are also able to get the oral 
arguments he made before the Court. Surely they can get, from all of 
that documentation, enough to understand what his judicial philosophy 
might be. Keep in mind, he was representing clients, so it would 
probably even be unfair for them to distort and utilize anything they 
disagreed with in all these documents because he represented clients 
and had to do the best he could for them. That doesn't mean those were 
necessarily his opinions, other than he did a job as an attorney must 
do on behalf of his clients. It's a ridiculous argument that we don't 
know enough about him because there is no doubt that the record is 
voluminous. They could go through

[[Page S2236]]

all of that. I don't believe they have gone through very much of it. 
Perhaps some of the staff.
  This is just a phony bunch of excuses for giving this Hispanic 
American a rough time. They are against him because he is supported by 
a Republican President and he may be conservative. My goodness, he may 
even be against their hallmark decision of Roe v. Wade. Come on. These 
are foolish arguments.
  All of this information is more than adequate. We have the Supreme 
Court cases, the briefs that were filed, and arguments that were made--
all of that information is more than adequate to address Mr. Estrada's 
qualifications. We have approved thousands of judges who have never 
argued a case in the Supreme Court. He argued 15, winning 10 of them. 
This body must, in order to maintain the proper constitutional balance, 
refrain from seeking just this sort of information from Mr. Estrada. We 
should not have a right to this sort of information any more than we 
have a right to have them from their nominees to serve in our Federal 
courts.
  Many distinguished Democrats have themselves noted that seeking 
personal views is highly inappropriate. Justice Thurgood Marshall made 
this point in 1967, when he refused to answer questions at his 
confirmation hearing about the fifth amendment. He said:

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

  Lloyd Cutler, one of the great lawyers in this town, a former Clinton 
White House counsel, and former Carter White House counsel, who also 
was at the other end of Pennsylvania Avenue at the same time as the 
Senator from New York, disagrees with efforts to discern a nominee's 
ideology during the confirmation process. According to Mr. Cutler:

       It would be a tragic development if ideology became an 
     increasingly important consideration in the future. To make 
     ideology an issue in the confirmation process is to suggest 
     that the legal process is and should be a political one. That 
     is not only wrong as a matter of political science; it also 
     serves to weaken public confidence in the courts. Just as 
     candidates should put aside their partisan political views 
     when appointed to the bench, so too should they put aside 
     ideology. To retain either is to betray dedication to the 
     process of impartial judging.

  Former Senator Albert Gore, Sr., also believed that efforts to 
discern a nominee's personal views were inappropriate. Former Senator 
Gore noted the following in connection with the 1968 nomination of Abe 
Fortas to serve on the Supreme Court:

       [A] judge is under the greatest and most compelling 
     necessity to avoid construing or explaining opinions of the 
     Court lest he may appear to be adding to or subtracting from 
     what has been decided, or may perchance be prejudging future 
     cases.

  The Senate Judiciary Committee agreed with Senator Gore, noting the 
following in a committee report on the Fortas nomination that year:

       Although recognizing the constitutional dilemma which 
     appears to exist when the Senate is asked to advise and 
     consent on a judicial nominee without examining him on legal 
     questions, the committee is of the view that Justice Fortas 
     wisely and correctly declined to answer questions in this 
     area.

  To require a judge to state his views on legal questions or to 
discuss his past decisions before the committee would threaten the 
independence of the judiciary and the integrity of the judicial system 
itself. It would also impinge on the constitutional doctrine of 
separation of powers among the three branches of government as required 
by the Constitution.
  Democrats back then made it very clear, including Lloyd Cutler and 
countless others, that they should not be answering questions about how 
they might rule on given cases. Why this is suddenly not so clear to my 
colleagues on the other side is a mystery.
  Finally, the ABA's Model Code of Judicial Conduct also prohibits a 
nominee from discussing his personal views.
  Canon 5A(3)(d) of the ABA's Model Code of Judicial Conduct states 
that prospective judges ``shall not . . . make pledges or promises of 
conduct in office other than the faithful and impartial performance of 
the duties of office . . . [or] make statements that commit or appear 
to commit the candidate with respect to cases, controversies or issues 
that are likely to come before the court.''
  Mr. Estrada's opponents in essence are asking him to violate this 
ethical canon.
  Mr. Estrada possesses an excellent record--one which merits 
confirmation. Efforts by the other side to deny him confirmation in the 
face of this excellent record are unfair and degrading to the 
confirmation process.
  The arguments made by the other side are not constitutional, they are 
political. The other side knows that the Constitution prohibits this 
body from intruding on the independence of the judiciary, and from 
forcing candidates to provide us with their personal views on legal 
issues. I hope the Senate will reject these unconstitutional efforts 
and I surely hope that we will vote soon to confirm Miguel Estrada.
  I have to ask, Where are the real arguments against Mr. Estrada? The 
fact they haven't been able to dig up any dirt on him is lamentable, I 
guess, to them. But, on the other hand, they haven't been able to. The 
fact is they do not have a good argument against Miguel Estrada, other 
than these specious arguments that they should be allowed to get into 
confidential, private, and privileged information at the Department of 
Justice in the Solicitor General's Office. They can't get those 
materials, but the fact of the matter is they shouldn't be able to do 
so. Not only do I say that, but seven former Solicitors General--four 
of them are top Democrats--even to this day take that position as well.
  My gosh. The fact he wasn't a judge is irrelevant. If he is 
qualified, as he certainly is--and I don't think anybody can really 
argue he is not, with the reputation and the achievements he has had in 
his life--in all honesty, we should move to a vote. The fact he hasn't 
had judicial experience other than the years he spent as a judicial 
clerk in the Second Circuit Court of Appeals and with the Supreme Court 
of the United State of America--I mean, in all honesty, we have had 
fellow Hispanics say he is not Hispanic enough, and he hasn't done 
enough for the Hispanic community. Gee, I think everything he has done 
has been for the Hispanic community, and for everybody else as well. 
This is a man who really does.
  Where does all of this come from? It comes from the 2001 retreat the 
Democrats held where they had some of the top liberal law professors 
come in and suggest to them how they have to fight on judges and how 
they have to be unfair. They came up with these ``weapons of mass 
obstruction'' because they do not want to have Bush judges confirmed.
  No. 1, they suggested: ``Bottle up these nominees in committee.''
  We are doing that every day. I have had a threat they will filibuster 
the nominees in our markup, which I do not recall ever happening in my 
almost 30 years in the Senate. But that is what I have been informed 
might happen. I hope they will reconsider that.
  No. 2: ``Inject ideology in the confirmation procession.''
  We see that regularly, where heretofore both sides have said ideology 
is not a part of this process. Yet, we have seen that in almost every 
circuit court of appeals nomination.
  No. 3: ``Seek all unpublished opinions.''
  That is why they are upset. Because he is not a judge, he has no 
published opinions. He has unpublished opinions. But unpublished 
opinions--judges do hundreds of those every year. Over a course of 
time, such as in the case of Dennis Shedd, he did thousands of them. 
Yet, they wanted his unpublished opinions because that would slow the 
process down even more. Regardless of how much it cost the taxpayers to 
go back through all of those archival records and dig up unpublished 
opinions, there were thousands from Dennis Shedd.
  They don't have that in this case. They can't do that in the case of 
Miguel Estrada. What they seek is privileged in terms of memoranda. No 
nominee worth his salt is going to want his privileged internal 
memoranda made public to the Senate Judiciary Committee, or to anybody 
else, because that would chill the giving of fair, reasonable, and 
honest, and I might say, effective opinions of the Justice Department.
  What they really then said--and this is the bottom line--if all those 
top three weapons don't work, and so far

[[Page S2237]]

they haven't worked in the Estrada nomination--then you do the last 
thing; that is, filibuster for the first time in the history of the 
United States against a circuit court of appeals nominee, or even a 
district court nominee.

  I acknowledge we have had cloture votes in the past, but not because 
there was a true filibuster. But yesterday we were told by our 
colleagues on the other side they are going to filibuster. And we are, 
in effect, in the middle of a filibuster, as my good friend from Nevada 
mentioned this morning; that they are not going to allow a vote unless 
they can get these privileged internal memoranda, which is again part 
of this weapon of ``mass obstruction'' or these weapons of ``mass 
obstruction'' to totally shut down and delay fairness to President 
Bush's nomination. That is what it comes down to.
  Let me tell you, it is the wrong thing to do, because it works both 
ways. Someday perhaps the Democrats may get the Presidency themselves 
and then find themselves in the same stupid position we find ourselves 
in where they cannot get honest treatment for their nominees because 
whenever there is a ``controversial'' nominee, there is going to be a 
filibuster. It is a dangerous road to go down. I want to recommend to 
my colleagues on the other side, don't go down that road anymore. The 
best thing you can do is to face the music and let the Senate vote. 
That is what the Senate should do in this matter. It should vote up or 
down.
  It is believed by some on the other side that Miguel Estrada is a 
shoo-in because every Republican is going to vote for Miguel Estrada. 
We know there are a number of Democrats--I do not know how many, but 
there are a few for sure, and I believe others--who will vote for him 
as well, which means he will sit on the Circuit Court of Appeals for 
the District of Columbia. There are some on the other side who do not 
want him to sit on the bench under any circumstances because they think 
he might be a conservative judge who might disagree with them on some 
of their litmus test issues.
  That is wrong. If we took that attitude, there would be very few 
judges sitting on the circuit courts of appeals.
  I have worked my very best to make sure we never, ever had a 
filibuster started on my watch. We were successful. There were some who 
wanted to filibuster occasionally because they felt so deeply 
ideologically opposed to some of the Clinton nominees. There were some 
who felt deeply against some of the Carter nominees. But we stopped it. 
I believe my colleagues on the other side of the aisle ought to do the 
right thing to stop it here.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Democratic 
leader.
  Mr. REID. Mr. President, I have sat here for the last couple of days 
trying to figure out a way to explain Miguel Estrada's refusal to 
answer questions. I think I have finally come to a conclusion of how to 
explain why he has not answered questions.
  Travel with me 3,000 miles to Nevada. We have a home in a place 
called Searchlight, NV. It is a relatively new home. We built it a year 
ago last December. We have new furniture in it. I have a lot of 
grandchildren--12 and soon to be 13. One of my sons has three little 
boys. They are just very close together. My little grandson, Wyatt, 
just turned 3. It was obvious he had gone to one of our new couches and 
had written on it.
  So his dad sees that, and he goes to him and he starts interrogating 
my 3-year-old grandson. He had just turned 3. He said: Did you do that? 
Wyatt said: No. He said: Well, who did it, then? He said: I don't 
remember his name.
  That is how Miguel Estrada answers questions. He uses the ``Wyatt'' 
answering method. Sure, he fills up a book, but he does not say 
anything: ``Who did it?'' ``I don't remember his name.''
  Mr. President, I cannot do it in a better way: ``Miguel Estrada's 
Answers to the Judiciary Committee's Questions.'' Here they are, on 
this chart, for everyone to see. That is it: ``Miguel Estrada's Answers 
to the Judiciary Committee's Questions.'' That is it. It is a blank 
page.
  He can fill up a volume this deep with ``Wyatt'' answers. And the way 
he answers questions, here is what we know about his legal philosophy, 
as shown on this chart. That is it: ``Miguel Estrada's Legal 
Philosophy'' is summed up with those four words. There isn't any. We 
don't know.
  And if we want to take a look at his memoranda, which is some 
evidence of what he said in his legal writings, this is what we have: 
``Miguel Estrada's Legal Memoranda.'' That is it, another blank page.
  I said, as politely as I could, to the distinguished majority leader, 
we have a problem here. Now, we may be wrong, Mr. President. We think 
we, on the basis of principle, are doing what the Constitution directs 
us to do. We believe, as a matter of principle, we are right. And 
history, I believe, will prove we are right.
  Mr. HATCH. Will the Senator yield?
  Mr. REID. I will, in just a second, to my dear friend.
  Mr. President, people have a right to disagree with us, but we are 
united in saying we want from this man the ability to have him answer 
real questions and not give ``Wyatt'' answers.
  We also believe, Mr. President, without any question, we have a right 
to his legal writings he performed while he was with the Solicitor 
General's Office. It has been done before.
  Now, if this man is as good as they say he is, then that seems a very 
small duty. They can talk about how it is chilling, and all this kind 
of stuff, and that there have been people who say he should not do it. 
Of course, they say he should not do it. But that does not mean it 
cannot be done and has not been done in the past. Ask Chief Justice 
Rehnquist: Has it been done in the past? Of course, it has been done in 
the past. Ask others who have been here, Attorney General Civiletti, 
and others.
  Of course, when there is a question that arises and you think 
somebody is really good, then you do what is necessary to get them 
confirmed. We are not asking that much: Answers to questions, real 
answers, not ``Wyatt'' answers. And let's see what you wrote.
  Mr. HATCH. Will the Senator yield?
  Mr. REID. I am happy to yield for a question without losing my right 
to the floor.
  Mr. HATCH. Is the Senator familiar with this huge transcript of the 
hearing? I do not believe the Senator was there.
  Mr. REID. I say to my friend----
  Mr. HATCH. I think it is a little unfair to put up there that he 
doesn't answer any questions. This whole transcript is filled with 
answers. He may not have answered them all the way the Democrats wanted 
him to answer them.
  Is the Senator also familiar with the fact he argued 15 cases before 
the Supreme Court, and that the Democrats have had access to all of 
those briefs, all of those arguments?

  Mr. REID. As I told the majority leader----
  Mr. HATCH. I think that is a little unfair to use that type of 
argument--look at it.
  Mr. REID. As I told the majority leader this morning, everything has 
been said but not everybody has said it. What I am doing today is just 
saying it a different way. Everything has been said.
  Mr. HATCH. Let's be fair about it.
  Mr. REID. I would be happy to answer my friend. As I said--I am sure 
my friend was not listening--you could fill up a volume twice that big 
with ``Wyatt'' answers. That is what he has done. He has not answered 
questions. He has said words, but he has not answered questions.
  Mr. HATCH. Will the Senator yield for another question?
  Mr. REID. We have gone through his transcript. And, in fact, the 
distinguished Senator from California, Dianne Feinstein, is a person 
who is very fair, and on these nominations she bends over backwards to 
make sure the Republican President gets whoever he wants. But Dianne 
Feinstein was so concerned, she went back and reread everything, and 
she came to the conclusion he has said nothing. And that is what this 
is all about: He has said nothing.
  Mr. HATCH. Will the Senator yield again for another question?
  Mr. REID. Yes, I will.
  Mr. HATCH. Has the Senator read this transcript?
  Mr. REID. I have gone through the transcript.
  Mr. HATCH. You have read it, and you say he has not answered the 
questions?

[[Page S2238]]

  Mr. REID. He has given ``Wyatt'' answers. He has answered questions, 
but he has not answered questions committee members felt he should have 
answered. I think he was evasive, terribly evasive, and I think this 
adequately describes his answers.
  I want to say something else. It has been said--but let me say it 
again--he has been at the Supreme Court 15 times. Now, the 
distinguished Presiding Officer is a trial lawyer. I was very 
impressed, even though I disagreed basically with his presentation, 
right here, 4 years ago. But it was very clear, as I learned afterward, 
that the Presiding Officer was a fine trial lawyer. And I would like to 
think I have had some fairly good experience in a courtroom. I tried 
over 100 jury trials. But with all the jury trials I tried, you could 
go back and read every word I argued to a jury, every cross-examination 
I did, every direct examination I did, and you would not know how I 
stood on a single issue, because I was there representing people. I 
represented people who killed people. I represented people who robbed 
people with guns. I represented insurance companies. I represented 
people who had been injured. And I sued insurance companies. That does 
not have any bearing on how I feel about a particular principle, me 
personally.
  You could have 5,000 cases at the Supreme Court and that does not 
determine how you stand. You write briefs. You are an advocate for a 
client. And Miguel Estrada argued cases before the Supreme Court when 
he worked for the Federal Government. He had a job to do, and he did a 
decent job. He won 75 percent of his cases, I understand.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. REID. I will be happy to yield for a question.
  Mr. DURBIN. The point has been made by the chairman of the Judiciary 
Committee, Senator Hatch of Utah, that because some Democrats do not 
agree with what is supposed to be Miguel Estrada's political 
philosophy, that is why he is running into some difficulty in the 
course of this debate.
  I would like to ask the Senator from Nevada, is it not true we have 
approved over 100 nominees from the Bush White House, and 100 of those 
were under Senator Leahy, the Democratic chairman of the Judiciary 
Committee? And is it not also true that among those nominees were 
people who were generally conservative in terms of their political 
beliefs, who have been approved by the Judiciary Committee, and by the 
Senate, because we understood where they particularly held their 
beliefs and went forward and gave them approval?
  Mr. REID. Let me answer the question this way. A member of the 
Judiciary Committee, who has liberal credentials, came to me and said: 
You know, there's this man named McConnell--I think that was the name 
of the individual who came before the Judiciary Committee. The member 
of the Judiciary Committee disagreed with every answer he gave, but he 
knew what he was talking about, and he answered every question to the 
best of his ability. And that Senator voted for that person, even 
though that member of the Judiciary Committee told me he was not of 
that person's political philosophy. That is an example. Not only did we 
do 100, exactly 100 last year, the 18 months we were in control, but as 
I recall, Monday we voted on three judges. Not a single Democrat voted 
against any of those nominees.

  I said last night, and I will tell my friend from Illinois--I will 
repeat just what I said. My father-in-law was a chiropractor, but even 
though he was not a trained medical doctor, he really understood 
people's feelings and their illnesses. He always used to tell my wife, 
and he told me, that if a person says they are sick, they are sick. We 
have had people second-guess: He's not really sick, he's faking it. He 
said if somebody says they are sick, they are sick.
  What I have been telling everybody on the other side is Miguel 
Estrada has a problem. You may not agree it is a problem, but it is 
just like my father-in-law says: When somebody keeps telling me they 
have a problem, they have a problem. Miguel Estrada has a problem, and 
the only way they can have that problem resolved is supply his memos 
and, in addition to that, answer questions. If he doesn't do that, 
there are very few alternatives left.
  One is to try to invoke cloture to stop this debate. No. 2 is pull 
the nomination. That decision has to be made by the Republican 
majority. We are not in the business of stopping judges. We, along with 
many groups in America today--not the least of which is the 
Congressional Hispanic Caucus, but we could go on and on with other 
groups--believe this man is a blank slate.
  I want to say something to my friend from Illinois and everyone 
within the sound of my voice, including my dear friend from the 
neighboring State of Utah, somebody for whom I have great respect and 
admiration, Orrin Hatch.
  I don't know who came up with this ``weapons of mass destruction,'' 
but they should be ashamed of themselves. We have a situation where my 
family is out today trying to buy duct tape because they are afraid. 
They are afraid there is going to be a biological attack or a chemical 
attack, as we have been told by Secretary Ridge there might be.
  Why? Because people are going to bring to our country weapons of mass 
destruction. A play on words today, thinking it is real cute--they are 
saying we are using ``weapons of mass obstruction.'' I think it is 
cheap, petty, wrong, and is below the dignity of this Senate.
  I want anyone who thinks that is cute to get a better joke writer 
because it is not very funny.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Matter of personal privilege.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. We did not use the term ``weapons of mass destruction.'' 
Matter of personal privilege.
  Mr. REID. I have the floor. I have the floor.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. I am happy to yield to my friend from Illinois.
  Mr. DURBIN. I want to say to my friend from Nevada----
  Mr. HATCH. Parliamentary inquiry.
  The PRESIDING OFFICER. Will the Senators yield for an inquiry?
  Mr. REID. No.
  Mr. DURBIN. I want to say to my colleague, the Senator from Nevada, 
many people here may characterize this debate over Miguel Estrada in a 
variety of ways, but many of us believe--I think the Senator from 
Nevada shares this belief--what is at issue here is a constitutional 
principle. It goes to the founding of our Republic. When the Founding 
Fathers decided that this body of 100 people would have the last word, 
to advise and consent on appointments to the Federal bench of judges 
who were seeking lifetime appointments, this is no trivial thing. It is 
not a personal thing when it comes to Miguel Estrada.

  I think the point I tried to make to the Senator from Nevada: We have 
approved 103 nominees from the Bush White House without fail, each one 
of them conservative politically. I am sure I disagree with them on 
many issues, but so be it. That is the nature of the system.
  I ask the Senator from Nevada, what is at stake in this debate, the 
reason it is taking so much time? Is it not a constitutional principle 
that goes beyond a cute political phrase as to whether or not this 
Senate is going to meet its constitutional responsibility to make sure 
that every nominee is honest and open and candid with the American 
people and the Senate so we do not end up with a secret judiciary, men 
and women who skate through by keeping their mouths shut?
  I am sorry your grandson has become the object of this debate, but 
his answer to the question is a priceless one. When he was asked if he 
was guilty of mischief, he said: I don't remember the name of the 
person who was. That is the kind of evasive answer we have with Miguel 
Estrada. It goes way beyond a catchy political phrase. It goes way 
beyond political posturing.
  I ask the Senator from Nevada, did we not sit here yesterday, both of 
us, going to the Constitution itself, to read again our constitutional 
responsibility when it comes to advice and consent on the judges 
nominated by any President?
  Mr. REID. Article II, section 2.
  I am happy to yield to my friend from Utah.
  Mr. HATCH. I appreciate it. I knew he would. My friend is a very fair 
and

[[Page S2239]]

very decent man. Personally, I just want to correct the Record. We did 
not use the term ``weapons of mass destruction.'' We used the term 
``weapons of mass obstruction.''
  Mr. REID addressed to Chair.
  Mr. HATCH. The Senator yielded to me. We have used what was used in 
the Senate retreat for the Democrats in 2001, exactly what these 
liberal law professors said Democrats should do to mess up the 
confirmation process and make it difficult for this President to be 
treated fairly. If these are not weapons of mass--obstruction--to make 
it clear, then I don't know what they are. But I would be ashamed to 
use all of those approaches. Above all, I would be ashamed to use a 
filibuster, the first time in history, to risk the whole judiciary 
because of partisan politics, and to do it against the first Hispanic 
ever nominated to the Circuit Court of Appeals for the District of 
Columbia.
  What is fair about that? What is right about that? I would be 
ashamed.
  Mr. REID. I thought the Senator had a question for me.
  Mr. HATCH. I thought I was yielded the floor.
  Mr. REID. I technically yield the floor. I thought it was for a 
question. You have the floor.
  Mr. HATCH. If not, I apologize.
  The PRESIDING OFFICER. The Senator has the floor.
  Mr. HATCH. And then bring up Moreno, as if there were a blue slip 
policy issue? It could have been. But the real issue was that the White 
House refused to consult with the two Senators of the State. I wrote a 
letter to Chuck Ruff and said: You need to consult with them. And they 
never did.
  I have to say, in my chairmanship, if this administration doesn't 
consult with two Democrat Senators in the State, that nominee is not 
going to move. Now, I am not going to put up with a screwed-up 
definition of what consultation is. But they are going to have to 
consult. And they are consulting. That has been my direction to Judge 
Gonzales, to the Justice Department, to anybody: You need to consult 
with Democrats and Republicans up here. We do have some rights as 
Senators.

  But let me tell you, I personally resent anybody trying to compare 
what we are doing here, quoting liberal law professors who ought to 
know better, by calling what they have suggested to the Democrats 
``weapons of mass obstruction''--it is a far cry from ``weapons of 
destruction.''
  This is true. There is not a word on there that is not true. You go 
down to the bottom line, which is, if you can't win on all these other 
procedural mechanisms that really are not valid, then you filibuster; 
for the first time in the history of circuit court nominees, we have a 
true filibuster. And to do it against the first Hispanic ever nominated 
to the Circuit Court of Appeals for the District of Columbia I find 
particularly reprehensible. But it is not just that. It is not just 
that. The real reason they are doing this is that they are so afraid 
that this brilliant young Hispanic lawyer, with all of these 
credentials, may someday be tapped by the President for the U.S. 
Supreme Court. The very fact that he is considered for that shows the 
quality of the man.
  But look at his record. Then, to try to imply that he did not answer 
questions, or even state that he didn't, with this kind of hearing 
record, when they controlled the whole process, I think is particularly 
wrong.
  Look, I happen to respect my colleagues on the other side. I like 
them. I definitely have a great relationship with my friend from 
Nevada. We are close personal friends. This isn't the usual language 
around here. I am saying he is one of my close personal friends. I 
would do almost anything for him. I like the Senator from Illinois. He 
is one of the brightest, most articulate people in this body. He is a 
good lawyer.
  But I tell you, I have never seen anything like this, not in my whole 
time in the Senate. I think it is wrong. I think it is wrong.
  You know what is driving all these outside left-wing groups that are 
out there? It is their base, and they even say it, led by People for 
the American Way who are acting in a very un-American way: Distorting 
these people's records, bringing partisanship in, demanding litmus test 
votes, demanding a filibuster, which is exactly what the other side has 
done. They are hurting this process like you can't believe.

  Are my colleagues on the other side listening to that stuff? We have 
had some on our side listen to it, but we have always stopped it. I am 
really concerned about it. I am concerned about this process. As 
important as Miguel Estrada is, this process is even more important. 
But I have to say, Miguel Estrada is a terrific nominee. They should 
have to come up with something valid or substantive, not just all of 
these philosophical objections that really have no merit to begin with.
  Mr. REID. Will my colleague yield?
  Mr. HATCH. I am happy to yield.
  Mr. REID. The Senator raised a personal privilege.
  Mr. HATCH. I withdrew that.
  Mr. REID. And then I yielded the floor.
  Mr. HATCH. You did.
  Mr. REID. I didn't do it in the proper way. I had not finished my 
statement. I should have said, I yield the floor to my friend for a 
question. I didn't do that. I hope the Senator doesn't talk too much 
longer so I can get the floor back.
  Mr. HATCH. Let me honor my colleague's request by just saying that I 
hope we can work fairly through this process. I know my friends on the 
other side don't like President Bush or don't agree with his 
philosophy, and they don't agree with his choices of judges. Several of 
them really feel that way, and they do it sincerely. I can understand 
that. But let's treat them fairly. Let's treat the President of the 
United States fairly. Some day the Democrats will have that position. I 
hope it is not in the near future. But they may have that position. And 
if I am here, I am going to treat them fairly, which I did for 
President Clinton. I think everybody around here knows it. I made every 
effort I could.
  If my colleague asks for the floor back, I will be glad to give it 
back at this time.
  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. Mr. President, I want to complete my statement, and I will 
be very brief.
  I think it is improper. I have attended every Democratic retreat that 
has been held in the last many years. I don't remember anyone ever 
saying that at a retreat that I attended. It is improper and not good 
to use it at a time when the President is talking about going to war, 
when we have a war going on with terrorists today.
  Suffice it to say that Miguel Estrada's answers to Judiciary 
Committee questions are just like this, a blank slate. He has given 
answers, as my grandson answers questions: I don't remember his name.
  We refuse to serve as a rubberstamp. We believe strongly that there 
is a way out of this, and that is by answering the questions that were 
asked in detail as have other nominees who have come before us. We also 
believe he should supply the memoranda that he wrote when he was in the 
Solicitor General's Office.
  We believe this is our constitutional duty. And as I said before, 
everything has been said. We are going to figure out, however long the 
majority leader wants to talk, different ways to say it. But we are not 
going to back down from this. This is something we believe as a matter 
of principle. If we let this go through, somebody can come before the 
Judiciary Committee and, in effect, give them nothing and say, boy, I 
showed you guys. I think people need to be candid, forthright, and he 
has simply not done that. The record is very clear to that effect. I 
think using the term ``weapons of mass obstruction'' is wrong.
  Mr. BENNETT. Will the Senator from Nevada yield for a question?
  Mr. REID. I am happy to yield for a question.
  Mr. BENNETT. The Senator from Nevada has said this morning that the

[[Page S2240]]

Democrats would not allow a vote on this nomination. He has also said 
they want to see the memoranda that were compiled by Miguel Estrada 
while he was working for the Clinton administration.
  Mr. REID. And the Bush administration.
  Mr. BENNETT. And the Bush administration. I would ask the Senator 
from Nevada if he knows of any Senator on his side who, upon seeing the 
memoranda, would change his vote and allow a vote, not change his vote 
and vote for Estrada but change his vote and allow a vote on Estrada 
upon seeing the memoranda?
  Mr. REID. We would have to leave that to individual Senators. I am 
sure there could be some. It would be very helpful.
  I am not a member of the committee, but we have a former chairman and 
ranking member here and one of the active members who has been on the 
floor a lot during this debate.
  It could be very important in arriving at a decision about how you 
feel about this man if he did give his opinions. It helped with 
Rehnquist. It helped with Civiletti, Roberts, and a number of other 
people who came before various committees seeking their attention in 
the Senate.
  Mr. LEAHY. Will the Senator yield for a question?
  Mr. REID. I am happy to yield without losing my right to the floor.
  Mr. LEAHY. Mr. President, if the Senator from Nevada is aware of what 
the Senator from Vermont said, I realize the junior Senator from Utah 
was not in the Chamber at that time--the senior Senator from Utah was, 
as was the distinguished majority leader--it would be safe to say to 
the distinguished Senator from Utah that the Senator from Vermont 
stated this morning very clearly that I would be prepared to see this 
go to a vote once response would be made. And the Senator from Vermont 
noted that Mr. Estrada himself said he had no objection to having all 
this memoranda that we have sought made available but had been told by 
the administration that he would not be allowed to.

  If the question is how various Senators would feel if the memoranda 
were made available and we were allowed to question Mr. Estrada, 
something he said personally that he would have no objection to, then 
as far as I am concerned I would be perfectly willing after that to 
have the matter go forward to a vote and have Senators vote up or down 
however they may feel.
  Mr. REID. I would respond to my friend from Vermont, I would only add 
this: I think if the memoranda raise any questions, then certainly the 
members of the committee would be entitled to ask questions relating to 
those memoranda and get better answers--I should say, get answers, 
period--to the questions that were asked relating to those memoranda. 
That is fair; would the Senator agree?
  Mr. LEAHY. I would agree. In fact, that is what I said again this 
morning. If we had the memoranda, something Mr. Estrada said he is 
perfectly willing to let us have but the administration wouldn't let 
him, but if we had the memoranda, if we were able to ask what he meant 
by this or that in the memoranda, once that was done, if he answered 
those questions, whether I agreed or disagreed with the answers to the 
questions, this Senator at least is perfectly willing to have it go 
forward on a vote, which is basically what we did with numerous other 
Democratic and Republican nominees in the past in similar 
circumstances. I don't want there to be any question about that.
  This Senator is perfectly willing to have this matter come to a vote 
once Mr. Estrada did what he has said that he is perfectly willing to 
do--make available his memoranda and answer questions about them. So 
far only the administration has refused, and the distinguished 
Democratic leader and I wrote a letter to the President to that effect.
  Mr. REID. That was yesterday.
  Mr. LEAHY. That was yesterday.
  Mr. REID. It is no secret that the ranking member, on behalf of the 
members of the committee, has for weeks and weeks sought this 
information.
  Mr. LEAHY. Absolutely.
  Mr. REID. Does the Senator from Utah have another question? I would 
be happy to yield without losing my right to the floor.
  Mr. BENNETT. Mr. President, without the Senator from Nevada losing 
his right to the floor, I would like to continue a discussion at this 
point.
  The PRESIDING OFFICER. Without objection.
  Mr. BENNETT. Because I see perhaps the makings of a deal here, if 
indeed the senior Senator from Vermont is willing to allow this to go 
forward if the memoranda were made public and if indeed the nominee 
himself knows of nothing in the memoranda that would be 
objectionable, it comes down now, ultimately, to the decision of the 
client because this was an attorney serving a client, the decision of 
the client to allow this information to come forward.

  Now, every living Solicitor General has said it would be a bad idea 
for this to come forward. The Washington Post has said it would be a 
bad idea for it to come forward. But if it could be worked out that on 
a one-time basis, not setting precedent, the opinions of the Solicitors 
General, both Republican and Democrat, could be set aside and these 
memoranda could be made available, do we have a commitment that, then, 
this could come to a vote? Because if that is the case, I, for one, 
would go to the administration and say let's allow it to come forward.
  I recognize this is a precedent no one wants to set, but I think the 
precedent of establishing a filibuster is one nobody wants to set. I 
would be happy to join with the Senator from Vermont in asking the 
administration to consider these memoranda to be made public if, in 
fact, we can get a commitment that upon their being made public, we 
could get a vote.
  Mr. REID. Mr. President, I say to my friend from Utah that even 
though he is not a lawyer, he certainly acts like one. I won't tell 
anybody in Utah that.
  Mr. BENNETT. I am not sure that is a compliment.
  Mr. REID. I indicated I would not tell anyone in Utah.
  I want to respond to this question. The Democratic leader and the 
ranking member of the Judiciary Committee wrote a letter to the 
President of the United States yesterday and outlined exactly what we 
have talked about today. If, in fact, the memoranda were made public, 
were given to the Judiciary Committee--and it has happened other times 
in the past--and he would respond to questions, we would be happy to 
take another look at this man. That is what the letter said to the 
President of the United States. I said last night, and this morning, 
that there are a number of ways out of this: Pull the nomination, give 
us the information we want, the memoranda, and answers to these 
questions, or file cloture.
  I yield to my friend from Illinois.
  Mr. LEAHY. If I might, Mr. President, the suggestion has been made on 
the floor that this is a one-time precedent. It is not a fact that this 
is a one-time precedent. It happened in the nominations of Robert Bork, 
William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and 
William H. Rehnquist.
  I yield to my friend from Illinois.
  Mr. DURBIN. I say to my friend from Nevada, thank you for yielding. 
And I say to my colleague from Utah, Senator Bennett, with whom I share 
some responsibility on the Appropriations subcommittee, and whom I have 
found to be an extremely fair person, I think perhaps he has come up 
with the solution to the gordian knot we face.
  We are not against Miguel Estrada. Without information, we cannot 
make a judgment on Miguel Estrada. We believe it is our constitutional 
responsibility to ask of every judicial nominee, from both Democratic 
and Republican Presidents, obvious important questions. In the case of 
Mr. Estrada, since he never served as a judge, he has legal writings, 
legal memoranda, legal opinions. We are asking him to share those with 
us so we can have insight into who he is, what he believes, and what he 
will do with a lifetime appointment to one of the most important 
Federal benches in America.
  That is what this is about. It is not about being Hispanic. If you 
look at the record on the Democratic side, President Clinton appointed 
far more Hispanics to the bench than any other President in history. We 
supported him, and we continue to support that. I believe this 
affirmative action by the

[[Page S2241]]

White House to bring Hispanics into the judiciary is a good thing for 
America. Our judiciary should reflect the diversity of the country. 
Whether they are Hispanic, Irish, or Lithuanian, we are going to ask 
the hard questions. Then the Senate will make a decision. The thing the 
Senator from Nevada has stated repeatedly is that what we are about 
today is a real quest for information, a search for information.

  I hope the Senator from Utah will prevail not only on his leadership, 
but on the President, to follow the Bennett model here--full 
disclosure. Bring the legal memoranda and writings before us, let us 
ask the obvious questions that they will lead us to, and then let us 
consider up or down this nomination. That is an honest approach, and I 
think it would avoid what we have been through in the last couple 
weeks. Isn't this what the Senator from Nevada has been asking for and 
what the leadership has been asking for?
  Mr. REID. I say to my friend from Illinois, I have said not once, not 
twice, I don't know how many times--over a dozen times--if this man is 
as good as they say he is, this seems to be such a small push, to have 
him answer questions and give us his legal memoranda. That is what we 
are asking, because as I had shown through my visual aid today, we have 
nothing from him. If he is as good as they say, I repeat, bring that 
forward. That would make us happy in so many different ways. It would 
show that we don't have to take these people given to us, just jammed 
through, having blank slates. We have the right to ask questions.
  Secondly, it is important because I believe it sets a very dangerous 
precedent that Miguel Estrada, Harry Reid, Dick Durbin, or anyone going 
through the process can go through without the Senate having the 
ability to learn who they are. We have that obligation. The Senator is 
absolutely right. We sat back there next to one another yesterday 
looking through the Constitution--we both had one--looking up article 
II, section 2, to make sure we felt good about what we were doing. I 
think it is very clear that our constitutional responsibilities not 
only allow us to do this but demand that we do it. We have an 
obligation to not only this Senate but future Senates, and not only the 
people of America today but future generations, that we are doing the 
right thing.
  Mr. DURBIN. If the Senator will yield further for a question, I 
listened earlier when the Senator made his presentation about Miguel 
Estrada and what he said and did not say to the Senate Judiciary 
Committee and to the American people. He was challenged by Senator 
Hatch, who produced a binder and said: Have you read the words in here?
  The Senator from Nevada said: You can evade answers and fill up pages 
and pages.
  I would like to read, if the Senator will allow me, one exchange that 
I think gives light to why we are here today. This was between the 
Senator from New York, Mr. Schumer, and the nominee. Senator Schumer 
asked the following question:

       Other than the cases in which you were an advocate, please 
     tell us three cases from the last 40 years of Supreme Court 
     jurisprudence you are most critical of.

  Mr. Estrada answered:

       I'm not even sure that I could think of three that I would 
     be--that I would have a sort of adverse reaction to, 
     if that's what you're getting at.

  Senator Schumer asked:

       So with all of your legal background and immersion in the 
     legal world, you can't think of three or even one single case 
     that the Supreme Court has decided that you disagree with?

  Answer:

       I don't know that I am in a position to say that I disagree 
     with any case that the Supreme Court has ruled on or that I 
     think that the Court got it right.

  Senator Schumer:

       I'm not asking you how you approach cases. That is a 
     legitimate question and some have asked it. I want to know 
     how you feel about cases, and you have said more broadly than 
     any other witness I have come across, you have given us 
     virtually no opinion on anything because it might come up in 
     the future.

  Answer:

       But the problem is the same, Senator Schumer, because in 
     taking case A and looking at whether the Court got it right 
     or whether I think they got it right, I have only the benefit 
     of the opinions. I haven't seen the litigants. I haven't--the 
     case is ruled on, but I don't get to see what didn't make it 
     into the opinion.

  That is the end of that exchange.
  I went to law school many years ago, as did the Senator from Nevada, 
but if they put you on the spot today and said can you think of one 
Supreme Court case with which you might disagree----
  Mr. REID. I think maybe I would come up with Dred Scott.
  Mr. DURBIN. A case that approved slavery in the United States is one 
with which we might disagree. Why would a man with his academic and 
legal background not have that spring to his mind? How about Plessy v. 
Ferguson, separate but equal?
  Mr. REID. That was another dandy they did.
  Mr. DURBIN. Those are two obvious ones. You don't have to go to law 
school to think about those. This is an example of the how he filled up 
a page, and what did he say? I guess he would say: If I didn't get a 
chance to meet Dred Scott, I will not comment on that case. I didn't 
know Mr. Plessy or Mr. Ferguson, for that matter, so I should not say 
what I think about that.
  You wonder why the Democrats are coming to the floor and saying, for 
goodness' sake, this makes a mockery of the process. If a man wants a 
lifetime appointment to the second highest court in America, should he 
not be more honest, open, and candid? That is all we are asking today.

  I ask the Senator from Nevada, does he believe, as Senator Bennett is 
suggesting, that if there is full disclosure and openness that this 
will come to a vote? Miguel Estrada's legal memoranda will be 
presented, we will have a chance to ask questions, he will give us 
straight answers instead of these evasions, and then let the chips fall 
where they may; is that not what we are about?
  Mr. REID. Yes, that is what we have been saying, and I told the 
majority leader this morning, this is no game we are playing; this is a 
filibuster. We have a right to do that. Why? Because we believe that 
what is being done is wrong.
  I say to my friend from Illinois, we talk about article II, section 
2, but the Constitution is a little document. It is so unique, and it 
does so much to protect people. The Constitution was not written to 
protect majorities. They can always protect themselves. It was written 
to protect minorities.
  We know that the majority would vote 51 for this man today, and I 
think we have set a very bad tone for what we are doing in this 
country. What we have said is, there are a significant number of 
Democratic Senators--well over 40--who say this is not right. If we do 
this, why do you need the Senate? If you do this, why not just have, 
instead of President George, King George? He can just tell us what he 
wants done. It is not King George; it is President Bush. As a result of 
that, he has to go through this process, and if he wants this man, who 
they say they like so much, then let them come forward with the 
memoranda he wrote when he was in the Solicitor General's Office and 
let him answer some questions. It is as simple as that.
  Mr. DURBIN. If the Senator will yield for a further question, I, of 
course, will give my friend and colleague from Utah the opportunity to 
respond.
  Mr. REID. I yield to my friend for a question.
  Mr. DURBIN. I wish to ask this question. I assume the Senator from 
Nevada, as a Senator from that great State, has had an opportunity to 
sit down with judicial nominees who were seeking district or circuit 
court appointments affecting Nevada and probably has nominated men and 
women for the Federal bench in Nevada. I do not know what his process 
has been. I have had that great honor in Illinois, and I try to get to 
know these people. I ask them questions to get an idea of what is going 
on in their minds.
  It is not uncommon for me to ask the question we asked Miguel 
Estrada: Can you think of a Supreme Court case you think was 
particularly good or particularly bad and tell me why, as open-ended 
and as nonconfrontational as possible?
  I say to the Senator from Nevada, this is a question I asked Miguel 
Estrada, and I ask the Senator from Nevada to think about it in the 
context

[[Page S2242]]

of interviewing nominees for the Federal bench in Nevada. A simple 
question and a simple answer. The question I asked was:

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

  That is a pretty tame question: Tell me who you admire.
  Answer--this is Miguel Estrada:

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

  Forgive me, you cannot go through law school, you cannot be a clerk 
at the Supreme Court, you cannot argue before that Court 15 different 
times and not look at least at those nine Justices and think: I like 
that Justice's approach, or read the history of the Supreme Court and 
think: This judge added something to America; I would like to emulate 
this judge.

  If you have no heroes, living or dead, among the Federal judiciary, 
the obvious question is, Have you been paying attention? Have you 
noticed that men and women have made a difference for America sitting 
on the Federal bench?
  Here is this man being carefully groomed by the White House to move 
to the highest circuit court in our land, the DC Circuit, and perhaps 
to the Supreme Court--no one has denied that--and he cannot give us an 
answer to that question? It is the reason why we are here today.
  I ask the Senator from Nevada, when he brings nominees before him for 
his State, what kind of questions does he ask them?
  Mr. REID. Mr. President, I respond to my friend, I think he asked a 
trick question. I am being facetious, of course. I think that answer--
that is why I sat here, and I have sat here for days now and the 
Senator has been in the Chamber--but I finally came upon it: I do not 
remember his name, just like my little grandson. That ended the 
conversation. He could not remember whether it was one of his brothers 
or his grandmother. So that ended that. That is what we have here.
  We have a man who is evading answering a question. Obviously, he was 
pretty smart in doing that. He filled up a whole book saying: I am not 
going to answer. He filled up a book of nonanswers.
  It is my understanding that the Senator from Utah wants to ask a 
question.
  I allow the Senator from Utah to ask a question without losing my 
right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. Mr. President, I have now been given a copy of the 
letter signed by Senator Daschle and Senator Leahy addressed to the 
President. As I have examined the letter, I do not find in it the 
commitment I have been seeking in our dialog here. So I renew that with 
the Senator from Nevada. The question is, Could we on this side of the 
aisle get a commitment that we could go to a vote if the memoranda were 
delivered? Senator Daschle and Senator Leahy do not give that 
commitment in this letter. They simply say they want that information, 
they would appreciate the President's personal attention, and that they 
need the information in order to make an informed decision.
  I think most of the Senators have already made their decision, be it 
informed or otherwise, and the issue that I am striving at is to try to 
get an up-or-down vote, an opportunity for them to express their 
decisions. So I am asking again----
  Mr. REID. I respond to my friend, I think we have answered that very 
deliberately to the effect we feel that the memoranda are important, 
and we feel his answering questions regarding the memoranda and a 
couple of other issues are important.
  This is my recommendation to the majority leader and to my friend 
from Utah who is, by the way, a deal maker, and there is nothing 
negative at all about that. Legislation is the art of compromise, and 
this is no different than any other issue.
  If I were majority leader, I would simply ask the White House to 
supply this information, and that answer speaks for itself. I think if 
the information were forthcoming and the man, either in writing or 
otherwise, answers a few questions--I do not know what questions could 
come up by virtue of that information--but my answer speaks for itself. 
I think the majority leader should have that done. We should go on to 
other business in the Senate. There are other judicial nominations. 
There is other substantive legislative business on which we can work. I 
think when we come back from our break, this matter could be resolved 
very quickly.

  I do say that unless this is done, this nomination is going nowhere. 
We have waited a long time to announce we were conducting a filibuster. 
We understand the seriousness of looking at judicial nominations in the 
manner we did. We understand. We understand the heartburn we are 
causing Senator Hatch. We know how he feels, that this is intemperate 
and wrong. We know, as we have explained in conversation between 
Senator Durbin and me this morning, that it is extremely important we 
do this. We are locked in. We have talked to our Members over here. We 
are locked into this, but this does not mean if the information is 
forthcoming--and we will do what we think is appropriate. The margins 
in the Senate are very slim. You do not have to change a lot of votes 
to get what you want.
  I suggest if you do what we want, things will work out probably for 
you. If you do not, nothing is going to happen.
  Mr. BENNETT. Mr. President, if I may, I ask unanimous consent, 
without the Senator from Nevada losing the floor, to make a comment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I think the Senator from Nevada and I could probably 
make a deal here, but we are both representing groups behind us. What I 
would search for would be a firm commitment that this can come to a 
vote, not a statement that, well, we will do the right thing; not a 
statement that we will review the answers; but a firm commitment that 
if the memoranda is produced and Mr. Estrada gives answers with respect 
to that memoranda, we can then have a firm vote.
  The Senator from Illinois has given us an example of a question that 
was asked. He received an answer. He considers the answer totally 
inadequate and improper, but he received an answer. If we get into this 
conversation and say, all right, the memoranda will be produced, he 
will be questioned, and then you say, We do not like his answers, so we 
still will not give you a vote, that is not a blind alley into which I 
want to go.
  Mr. REID. Mr. President, let me reply to my friend. Without that 
information, Miguel Estrada will never be a Federal judge. We have 
talked with our Members, and it does not matter if there is 1 cloture 
vote or 50 cloture votes, we will all be together on that--those who 
have agreed to hold up on this nomination.
  I am speaking only for myself, but I think if he supplied that 
information, not evasive answers but tried to be fair in responding to 
any questions we had regarding those materials--and answers to some of 
these other questions people feel serious about--it would be resolved. 
I have no doubt that would be the case. So I think the Senator could 
spend his time with the significant influence he has--I know he is 
filling in for my counterpart who is ill temporarily, and that shows 
the respect people have for him on his side of the aisle--I am sure if 
the Senator from Utah went to work on that side, it would bear fruit. 
If it does not happen, nothing will happen other than acrimony, which 
is too bad because we are going to see this one through.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I thank the Chair. I thank Senator Bennett for the 
contribution he has made. I hope he understands my position--I cannot 
speak for others--once this nominee has made full disclosure--his legal 
background, opinions, memoranda, his answer to questions--frankly, I 
would view him as other nominees. I may vote for him or against him. I 
think I voted against 6 out of 103 of President Bush's nominees. I have 
not made a pattern of this, but some disagree with this thought. I 
think that is where we are leading to. I hope that is where we are 
leading to.
  More importantly, I hope the Senator from Utah understands why we are 
doing this. There is a belief among some that with the newfound 
majority on the Republican side since the last

[[Page S2243]]

election and with the control of Congress by the Republican Party and 
the White House, the process is going to be pushed aside and things are 
going to be moving quickly through without the kind of deliberation we 
have had in the past in the history of the Senate.
  Some have suggested that on their way to the bar serving on the 
bench, people will be moving through the Senate Judiciary Committee 
like the receiving line at an Irish wedding, and I hope that does not 
happen. I think what we need to have is a deliberative process where 
Members have a chance to ask questions of every nominee, and then, 
satisfied or not satisfied, they come to a vote.
  Make no mistake, Miguel Estrada is opposed by a variety of 
organizations which believe they know who he is and have seen enough 
evidence to raise questions in their mind. But I think for the sake of 
the Senate as an institution, whether Republican or Democrat, what we 
are asking is not unreasonable.
  When one reads these answers from this nominee, they have to say to 
themselves, why is the Senate Judiciary Committee wasting its time? 
Because if someone can get by with that type of an answer where they 
cannot identify one single Supreme Court decision they disagree with, 
they cannot name a single Federal judge, living or dead, whom they 
admire--if they can get by with that, why are we here?
  It reminds me of the Clarence Thomas nomination when he said before 
God and the world he never considered the issue of abortion in his 
life, had no opinion on it. A man who was a former Catholic seminarian 
at Conception Abbey in Missouri, a man who had been in law school when 
Roe v. Wade was decided, had no opinion on the issue of abortion? I 
guess that sort of thing was glossed over because of all the other 
hoopla and attention given to his nomination, but I thought to myself--
and I was not in the Senate at the time--would the Senate Judiciary 
Committee let others get by with this where they do not even answer the 
question?
  I can tell the Senator from Utah, and others who are following this 
matter, there have been nominees who have come before this Senate 
Judiciary Committee with whom I have disagreed vehemently on issue 
after issue. In fact, I have even successfully nominated judges to the 
bench in my State whom I disagreed with on basic issues. But I am not 
looking for a person who has the same political DNA that I am bringing 
to this job. I want a person who is moderate and reasonable, who shows 
that they are open minded and prepared to be a fair jurist.
  How can one reach that conclusion about a person without asking some 
very basic questions to try to get into their mind a little bit as to 
what makes them tick and where their values might be?
  Think about the election process for the Senate. Is that not what it 
is about? Don't the voters of this country basically want to know, 
whether it is Robert Bennett or Richard Durbin, who are you? What are 
your values? What are you likely to do?
  We cannot predict what votes they are going to cast, but what have 
they done in the past or generally how do they feel about the 
principles and the constitutional values of this country? Those are 
some pretty basic questions. Why wouldn't we ask that of a person 
seeking a lifetime appointment to the Federal bench, a person who, with 
the stroke of a pen, could basically wipe out a law or say that a law 
is valid? That is an enormous delegation of power to the judiciary, 
particularly to this level of the judiciary.

  What we are saying today when it comes to Miguel Estrada is we want 
to know some basic answers. We do not expect him to tell us his opinion 
of a case pending before the DC Court and how he is going to rule. 
Lloyd Cutler is right; we should never ask about a particular case. But 
to ask a judicial nominee their views on the issue of privacy, is that 
an important issue today?
  Pick up this morning's paper. We are going through a debate now as to 
whether the Department of Defense can collect information about 
Americans across the board in the hope of finding those who might be 
threatening this country with terrorism, and Congress has basically 
said to the Department of Defense: Close that shop. We do not know if 
we want you mining these data banks across America at the expense of 
the privacy of individuals' rights and liberties.
  This is an issue which is not going away. Since September 11, 2001, 
it has been front and center in the national debate and will continue 
to be.
  So when one asks a judicial nominee, a person who is going to the 
second highest court in the land with a lifetime appointment, what is 
their view on the issue of privacy, is that an important question? It 
is not only important; it is timely; it is critical. And for nominees 
such as Miguel Estrada to basically say, I do not have an opinion, that 
tells me we have a problem.
  We should be able to ask these nominees the most basic general 
questions relative to constitutional law and the rights and liberties 
of Americans, and we should not apologize for it.
  I have told my colleagues in the Senate Democratic Caucus, I met 
Miguel Estrada. I sat down with him. I have read his background, his 
personal resume, his legal credentials. They are very impressive. This 
is a man who has come very far in his life against great odds, and I 
respect him so much for that. He is an immigrant to America.
  I have a special affection for immigrants because my mother was an 
immigrant. I am proud to put her naturalization certificate in my 
office for everyone to see that I, as her son, would be standing today 
as a Senator from Illinois. Immigrants such as Miguel Estrada, my 
mother, and so many others bring so much to this country. So from a 
personal point of view, I admire this man very much. His legal 
credentials put me to shame. As a law student, I never got close to his 
level of achievement in law school, so I certainly admire that.
  Having said all of that, accepting that he is a good person, 
accepting that he has a marvelous career as a lawyer and as a law 
clerk, I still need to ask some basic questions in terms of where he is 
going, given this position of responsibility. When the Democratic 
Caucus sat down, they decided this was an important issue to raise. 
Miguel Estrada was the case in point.
  It is an important issue relative to the role of the Senate when it 
comes to President Bush's judicial nominees. If we cannot ask the 
questions, if we cannot ask questions that have been asked of nominees 
over and over again when Presidents of different political parties have 
been in power, then frankly we have given up more than our political 
right, we have squandered our constitutional responsibility.
  Mr. BENNETT. Mr. President, will the Senator yield for a question?
  Mr. DURBIN. I would be happy to yield for a question.
  Mr. BENNETT. I want to pursue this with the Senator. If we can get 
Miguel Estrada to give the Senator the name of a Supreme Court Justice 
whom he appreciates, along with the memoranda, and answer questions on 
the memoranda, would the Senator--not speaking for his caucus, just for 
himself--agree to give us a vote?

  Mr. DURBIN. I say to the Senator, obviously we do not know what the 
answers might be and what they might lead to, but what he suggests as a 
basic principle is one I stand behind. When nominees are open and 
honest with the Senate Judiciary Committee and the Senate, they are 
entitled to a vote.
  Mr. BENNETT. I appreciate the comment of the Senator because we must 
understand, once again, we are not talking about the Senate 
rubberstamping something from King George. We are talking about the 
Senate entering a whole new era of saying a nominee must be approved by 
60 votes--which is something we have not done before. I appreciate the 
Senator's understanding of how serious this is, that because Miguel 
Estrada gave answers that were not acceptable to some members of the 
Judiciary Committee, and because this memoranda has not been 
forthcoming--not at his request, but at his clients' request--we are 
now going to sail into a whole new sea. I hope everyone understands how 
significant that is, regardless of the qualifications of this man.
  I will do what I can to get him to come up with a name for the 
Senator from Illinois. I do not know if I will be successful. If that 
is the whole thing stopping his confirmation, that he could not think 
of a Supreme Court Justice whom he admired under those circumstance and 
if, after reflection,

[[Page S2244]]

he now can come up with a name, we would like to see the Senator from 
Illinois allow this to come to a vote.
  Mr. DURBIN. We gave two illustrations where we asked Miguel Estrada 
for a Supreme Court Justice, or a Federal judge, living or dead, he 
would emulate and admire; we also asked for a Supreme Court case he 
might disagree with. Senator Schumer asked the question. I say to the 
Senator from Utah, those are two very egregious illustrations of his 
evasion. There were others.
  I cannot speak for my colleagues, but I will go back to the premise 
of my reply. I believe when a nominee is open and honest and 
cooperative, they are entitled to go through the process and have a 
vote. That is my personal view. I don't speak for any other Senator.
  I have felt the same about issues on the floor of the Senate. My 
feeling is this: This is a deliberative body. We take our views on 
issues to the court of public opinion and to the 100 Senators gathered. 
We should be entitled to produce an amendment or a bill, debate it, and 
have an up-or-down vote. I think that is what the process should be all 
about. I have lost plenty in the Senate--the Senator of Utah can attest 
to that--I have won a few, but lost quite a few, too. I accept that 
consequence. That is why we serve.
  The same is true with nominees. If they are open and cooperative, 
they are entitled to go through the process, whether nominated by a 
Democratic or Republican president.
  When you take a look at the groups that oppose Miguel Estrada, many 
of them have seen in his background areas of great concern. Consider 
the groups that have opposed him: The Congressional Hispanic Caucus--
all members of the Congressional Hispanic Caucus have opposed this 
Hispanic nominee; the Mexican American Legal Defense Fund, which is the 
premier civil rights organization for Mexican Americans and many 
Hispanics in the United States, opposes Miguel Estrada; the Puerto 
Rican Defense and Education Fund opposes Miguel Estrada. And then more 
generic groups: The Leadership Conference on Civil Rights, NARAL, Pro-
Choice America, the Sierra Club, the National Women's Law Center, 
People for the American Way, and many others. I had printed in the 
Record yesterday the names of the organizations and I will not take up 
the pages of the Record again today with those illustrations.

  The clear question before the Senate is why a man with such a 
compelling personal story and such great legal credentials has so many 
groups questioning whether he is the right person for a job. Some of it 
has to do with his evasion. Some has to do with the secrecy that has 
surrounded his nomination and the suggestion that this relatively young 
lawyer is on his way to the Supreme Court as early as next year.
  Many believe when it comes to Supreme Court nominees, there are 
certainly higher standards that need to be met, but the DC Circuit 
Court is not far behind. As I said yesterday, the DC Circuit Court is 
the AAA for the major leagues on the Supreme Court. We have been told 
time and again by the ``great leakers'' at the White House, Miguel 
Estrada is on the fast track of the major leagues, the Supreme Court. 
We want to know his batting average and we want to know whether he can 
take an inside pitch. And he will not answer those questions. That 
really calls into question whether we are meeting our responsibility.
  As I said yesterday, the choice is simple. It is a choice between the 
Constitution, article II, section 2, which says the Senate shall advise 
and consent to nominees. It gives us a role of responsibility to advise 
and consent. Or whether we will give up this Constitution for a 
rubberstamp and just say, as the President sends his nominees, thanks a 
lot, Mr. Bush, ``approved.'' I will not do that. I don't think I was 
selected for that purpose.
  I think the Senator from Utah is understanding better what we are 
about. The fact Miguel Estrada has refused to disclose his writings is 
unprecedented. We have at least five illustrations, including Justice 
William Rehnquist, nominated as Chief Justice of the Supreme Court, who 
produced his writings so we could understand more about his thinking 
before he assumed the highest judicial post in America.
  Antonin Scalia, who was called on to rule in a case involving the 
disclosure of legal views, Antonin Scalia, absolutely the hero of the 
rightwing in American politics and of our President, when he had to 
rule on a case as to whether or not nominees would disclose their 
opinions on legal issues, the case was the Republican Party of 
Minnesota v. White, Justice Antonin Scalia said:

       [E]ven if it were possible to select judges who do not have 
     preconceived views on legal issues, it would hardly be 
     desirable to do so. ``Proof that a Justice's mind at the time 
     he joined the Court was complete tabula rasa [blank slate] in 
     the area of constitutional adjudication, would be evidence of 
     lack of qualification, not lack of bias.''

  So, many of us, despite this impressive resume of Miguel Estrada, 
have fundamental questions. Is the man qualified for the job? By 
stepping back and saying, I am a blank slate, can't think of a Supreme 
Court case I disagree with in its history, can't think of a Supreme 
Court Justice or any Federal judge whom I admire, you wonder why we 
have questions about him? You wonder why this extraordinary debate is 
under way?
  I see my colleague from New Jersey has come to the floor and I thank 
him for joining us this morning.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. CORZINE. Mr. President, to my colleague from Illinois, who is so 
eloquent on so many issues, his articulation, a reason why it is so 
important we challenge this nomination, if not the nominee, because of 
the process we have gone through, is just overwhelming. I think it is a 
basic sense of responsibility we should have as Senators. If we do not 
ask the questions on how one will respond in a jurisprudence context to 
not specific issues but general thought process before we hire someone 
to be an appellate court judge, I don't think we are fulfilling our 
constitutional responsibility of advise and consent.
  Would the Senator hire someone if you had not been able to ask how 
they may think about some of the basic processes and logic they might 
bring to bear in giving you advice with regard to legal counsel in your 
office? It is incredible to me. No one with a blank slate would turn 
over such an important duty without doing a serious interview process 
to understand at least the thinking process of an individual.
  Mr. DURBIN. Just to respond to my colleague from New Jersey, not only 
would I not hire them, I would be derelict in my responsibility in 
doing so. I think the Senator from New Jersey would agree, many times 
he has asked prospective staff people their opinions--and may even 
disagree with them. I, frankly, believe within my legislative staff 
there are people who think I am wrong on some issues. That is not only 
their right but their responsibility to give me that point of view. But 
at least going in, that is a pretty basic question.

  If we can't ask Miguel Estrada, who is seeking a lifetime appointment 
to the second highest court in the land, what is in his mind in terms 
of his values and principles when it comes to constitutional law, then 
we have failed as Senators and we fail our constitutional 
responsibility.
  Mr. CORZINE. Mr. President, I could not agree more with the Senator 
from Illinois. I have a responsibility to the people of New Jersey to 
make sure we ask serious questions with regard to how judges are 
selected. In my own process in reviewing district court judges and 
circuit court judges that we are asked to opine about by the White 
House, about how we would react, I have a bipartisan committee that 
does just exactly that. It sits literally for hours to make sure we 
have some sense of the approach future judges might take, how they 
think about issues, how they feel about constitutional principles. I 
think this is one of the most important debates we can have with regard 
to the responsibilities of being a Senator--making sure, when we 
determine the people who are actually going to sit on the court with 
lifetime appointments, that we do so with the full knowledge and 
understanding of where they are coming from.
  By the way, that is not to say you are going to agree with everyone 
with regard to all aspects about how they might think about issues. But 
you

[[Page S2245]]

ought to at least understand what you are getting into. I certainly 
hope we will have the opportunity to review real information on this as 
we go forward.


                            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.


                         Tribute to Joe Meadows

  Mr. BYRD. Madam President, this past Saturday my longtime, good 
friend, and former staff member, Joe Meadows, passed away.
  Joe Meadows was a dedicated, hard-working, conscientious, sincere, 
and loyal individual. As the mail clerk in my office in the Hart 
Building, he managed the mailroom for me. He did his

[[Page S2267]]

job effectively and efficiently. And everyone else on the staff liked 
him.
  One couldn't help but like Joe Meadows. From time to time, when I 
went into his section of the office, I would find Joe Meadows with a 
handful of papers, letters, correspondence, and files in one hand. And 
with his glasses down over his nose, he would look up over his glasses.

  He was a wonderful man. He rarely talked about it, this quiet, soft-
spoken, hard-working, unassuming man. He was also one of the best 
country fiddle players in the United States. He was a bluegrass 
musician, born in a small coal town in southern West Virginia, on the 
last day of 1934.
  Joe never learned to read a note of music.
  Does the distinguished Senator from New York have memories concerning 
the year 1934?
  Mr. SCHUMER. Madam President, I appreciate the Senator yielding. I 
say to the Senator, my memories are those my parents told me.
  Mr. BYRD. Well, the Senator, I take it, was not around in 1934?
  Mr. SCHUMER. I was not.
  Mr. BYRD. OK. Well, I was a high school senior in 1934. I graduated 
that year. And we were hearing talk, in those days, about a gadget that 
would allow one to see a person as that person spoke or would allow one 
to see a person who played the violin as the violin was being played. 
That was a few years right after the invention of the television. 
Television was invented in 1926. And so I am talking about 1934, just 8 
years after television was invented. Eight years after television was 
invented, 1934.
  Oh, we heard about this gadget, as I say. It was coming and would be 
on the market in a few years. My, what a change that made. 1934; well, 
the last day of 1934, Joe Meadows was born. He never learned to read a 
sheet of music, but he could really play it. He could make that fiddle 
cry. He could make it scream. He did have neighbors and a father who 
played the fiddle.
  He had an extraordinary gift for music: Joe Meadows from the hills of 
southern West Virginia. He is one of the finest bluegrass musicians I 
ever heard. Like many lads in southern West Virginia, including myself, 
Joe Meadows grew up listening to the Grand Ole Opry on the radio. The 
Grand Ole Opry, I can remember the times when that was all we had to 
listen to on Saturday night--the Grand Ole Opry.
  Yes, I can remember the Solemn Old Judge and Deford Bailey. Deford 
Bailey played that harmonica. Oh, he could make that harmonica scream. 
He could make that harmonica play ``Freight Train Blues,'' Deford 
Bailey. And there was Sam and Kirk McGee. There was Arthur Smith and 
His Dixieliners: ``Going on down that Dixie line, walking in my 
sleep''--Arthur Smith and His Dixieliners. He played ``The 
Mockingbird.'' He could make that mockingbird sing on that violin.
  But Joe Meadows could do anything that Arthur Smith could do, and 
better.
  The Grand Ole Opry, that is all we had in those days. On Saturday 
nights we would square dance and listen to the Grand Ole Opry. There 
was the Fruit Jar Drinkers. That was kind of a lousy band. I probably 
shouldn't say that. But I did not think as much of the Fruit Jar 
Drinkers as I did the Dixieliners, by any means. And Roy Acuff used to 
sing ``That Great Speckled Bird'' Saturday nights. Saturday nights, 
1934.
  I graduated from high school in 1934. I liked a pretty, pretty girl, 
too. She was not in my class. She was in the next class behind me, and 
she was the daughter of a coal miner. And that coal miner played a 
fiddle. His name was Fred James.
  I took a liking to that daughter of the coal miner. And I tell you, 
you young ladies, and young men as well, who are pages here, I tell you 
how I courted my girl, my sweetheart, how I won her hand in marriage.

  There was another boy in my class at Mark Twain High School in 1934. 
His name was Julius Takach. His father had a grocery store at Ury, what 
we called Cooktown, about 3 miles south of Stotesbury where I lived. 
And Julius Takach would, every morning, come to school with his pockets 
filled with that candy and chewing gum, bubble gum, and so on, from his 
father's store.
  Now, I tell you, I made it my business to be the first to greet 
Julius at the schoolhouse door upon his arrival every day because he 
would give me some of that candy and chewing gum.
  I tell you, it was something to be able to present your girl, your 
sweetheart, a piece of bubble gum. And I never let her know that I did 
not buy that, I did not purchase that gum or candy. I did not let her 
know it was given to me, but it was given to me by Julius Takach.
  I would meet her when the classes changed, and I would give her that 
candy and chewing gum. Boy, what a hit I thought I was, giving that 
pretty girl that candy and chewing gum.
  Well, now, 65 years and almost 9 months after I married that pretty 
girl, I am here to tell these young men who are pages, that is the way 
you court your girl, with another boy's bubble gum.
  Mr. SCHUMER. Will my friend and leader from West Virginia yield?
  Mr. BYRD. Yes.
  Will the Congressional Record please note that there was laughter.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. BYRD. Would the reporter kindly note there was laughter again in 
the Congressional Record. We have to make that Congressional Record 
come alive.
  Mr. SCHUMER. My colleague from West Virginia, if he might yield----
  Mr. BYRD. Yes.
  Mr. SCHUMER. Is making everything come alive in this Chamber. We have 
not had a happier moment in a long time. And I very much appreciate the 
stories he is telling. I was going to say, I guess we all ought to take 
this up, because 65 years of marriage to Erma--and we all hope and pray 
she is in good health again; and I hope she is--is something we should 
all pay very good attention to.
  Now, I don't know, these days, if the young ladies will just accept 
bubble gum. You might have to do a little more than that, maybe a whole 
basket of candy or something. But it is good for us to know.
  I did not want to interrupt my colleague. I just, in terms of the 
scheduling, ask if it might be all right to ask unanimous consent that 
after the Senator from West Virginia is finished I be recognized for 
the time that I might need.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SCHUMER. Madam President, if I may continue, I try to remember 
great speeches. One of the best speeches I ever heard was made by our 
colleague from West Virginia when he came to the floor, it must have 
been about a year and a half ago, and talked, with as much love as he 
has for his employee who has passed and almost as much love as for his 
wife, about the beauties of coming to West Virginia on a vacation. It 
was one of the finest, nicest speeches I ever heard. I will never 
forget it, and I think this one is going to be just as memorable. I 
look forward to hearing my friend continue. I thank him for his 
courtesy.
  Mr. BYRD. Madam President, I thank the distinguished senior Senator 
from New York for his observations. I am very grateful to him.
  Like many lads in southern West Virginia, including myself, Joe 
Meadows grew up listening to the Grand Ole Opry on radio--that was back 
in the days of the Great Depression--as well as ``Farm and Fun Time'' 
and other radio programs that featured country and bluegrass music. And 
Joe Meadows absorbed it all. His ear was fixed on and naturally attuned 
to the fiddle playing. Joe listened. Joe learned. And later, Joe 
performed what he had heard. At the age of 16, Joe Meadows began 
performing with Melvin and Ray, the Goins Brothers, and from there he 
went on to tour with and recorded with the greatest names in country 
and bluegrass music including Jim and Jesse, the Stanley Brothers, and 
the legendary Bill Monroe and his Blue Grass Boys.
  Joe Meadows' musical career included 25 years on the road as a 
professional fiddle player and a 7-year run at the Grand Ole Opry. He 
had toured Europe four times and Japan once where he was incredibly 
well received. Before I stopped playing the fiddle, Joe Meadows and I 
would sometimes sit down on weekends and play our fiddles together. We 
usually taped our sessions, and then we listened to our recordings 
together to see how we could improve our

[[Page S2268]]

playing. Well, he couldn't improve his playing much, but I had plenty 
of room to improve my own. I always hoped to be as smooth in handling 
that bow, that fiddle bow as Joe was. He had complete control of that 
fiddle bow. I don't think I ever got there, but he never stopped trying 
to help me.
  Joe Meadows was not only naturally endowed with a strong and supple 
bow arm, the good Lord blessed him with a great pair of fiddler hands.
  I never have had the pleasure to observe anyone whom I liked to 
listen to better than I liked Joe Meadows. He had nimble, quick 
fingers, and he used them beautifully.
  The bluegrass and mountain music and old-time fiddling world has lost 
a great musician. I have lost a good friend. West Virginia has lost a 
good and gracious son.
  My wife Erma and I extend our deepest condolences to Joe Meadows' 
family and to his many friends.

     Let fate do her worst.
     There are relics of joy,
     Bright dreams of the past
     That she cannot destroy.

     They come in the nighttime
     Of sorrow and care,
     And bring back the features
     That joy used to wear.

     Long, long be my heart
     With such memories filled,
     Like the vase in which roses
     Have once been distilled.

     You may break, you may shatter
     The vase, if you will,
     But the scent of the roses
     Will hang, 'round it still.


                          On the Brink of War

  Mr. BYRD. Madam President, to contemplate war is to think about the 
most horrible of human experience. On this February day, as this Nation 
stands at the brink of battle, every American on some level must be 
contemplating the horrors of war.
  My wife says to me at night: Do you think we ought to get some of 
those large bottles, the large jugs, and fill them with water? She 
says: Go up to the attic and see if we don't have two or three there. I 
believe we have two or three there.
  And so I went up to the attic last evening and came back to report to 
her that, no, we didn't have any large jugs of water, but we had some 
small ones, perhaps some gallon jugs filled with water. And she talked 
about buying up a few things, groceries and canned goods to put away.
  I would suspect that kind of conversation is going on in many towns 
across this great, broad land of ours. And yet this Chamber is for the 
most part ominously, dreadfully silent. You can hear a pin drop. 
Listen. You can hear a pin drop. There is no debate. There is no 
discussion. There is no attempt to lay out for the Nation the pros and 
cons of this particular war. There is nothing.
  What would Gunning Bedford of Delaware think about it? What would 
John Dickinson of Delaware think about it? What would George Read think 
about it? What would they say?
  We stand passively mute in the Senate today, paralyzed by our own 
uncertainty, seemingly stunned by the sheer turmoil of events. Only on 
the editorial pages of some of our newspapers is there much substantive 
discussion concerning the prudence or the imprudence of engaging in 
this particular war. I can imagine hearing the walls of this Chamber 
ring just before the great war between the States, a war that tore this 
Nation asunder and out of which the great State of West Virginia was 
born.
  But today we hear nothing, almost nothing, by way of debate. This is 
no small conflagration that we contemplate. It is not going to be a 
video game. It may last a day or 6 days. God created Earth, and man, 
the stars, the planets, and the Moon in 6 days. This war may last 6 
days. It may last 6 weeks. It could last longer. This is no small 
conflagration that we contemplate. This is no simple attempt to defang 
a villain. No, this coming battle, if it materializes, represents a 
turning point in U.S. foreign policy and possibly a turning point in 
the recent history of the world.
  This Nation is about to embark upon the first test of a revolutionary 
doctrine applied in an extraordinary way, at an unfortunate time--the 
doctrine of preemption, no small matter--the idea that the United 
States or any other nation can legitimately attack a nation that is not 
imminently threatening but which may be threatening in the future.
  The idea that the United States may attack a sovereign government 
because of a dislike for a particular regime is a radical, new twist on 
the traditional idea of self-defense. It appears to be in contravention 
of international law and the U.N. Charter. And it is being tested at a 
time of worldwide terrorism, making many countries around the globe 
wonder if they will soon be on our hit list, or some other nation's hit 
list.
  High-level administration figures recently refused to take nuclear 
weapons off the table when discussing a possible attack on Iraq. What 
could be more destabilizing? What could be more world shattering? What 
could be more future shattering? What could be more unwise than this 
kind of uncertainty, particularly in a world where globalism has tied 
the vital economic and security interests of so many nations so closely 
together?
  There are huge cracks emerging in our time-honored alliances. One 
wonders what is going to happen, and about what is happening to the 
United Nations. One should pause to reflect on what is happening there 
at the United Nations, formed 54 years ago. And we say: If you are not 
with us, you are against us. That is a pretty hard rule to lay down to 
the United Nations. If you are not with us, you are against us. If you 
don't see it our way, take the highway. We say to Germany and we say to 
France--both of whom have been around longer than we--if you don't see 
it our way, we will just brush you to the side.
  Do we fail to think about a possible moment down the road, a bit 
further on, when we may wish to have Germany and France working with us 
and thinking with us, standing with us, because there is a larger 
specter, at least in my mind, looming behind the specter of Saddam 
Hussein and Iraq. There looms a larger specter, that of North Korea, 
which has one or two nuclear weapons now, and others within reach 
within a few weeks. So there are huge cracks, I say, emerging in our 
time-honored alliances, and U.S. intentions are suddenly subject to 
damaging worldwide speculation.
  Anti-Americanism based on mistrust, misinformation, suspicion, and 
alarming rhetoric from U.S. leaders is fracturing the once solid 
alliance against global terrorism which existed after September 11, 
2001.
  Here at home, people are warned of imminent terrorist attacks, with 
little guidance as to when or where such attacks might occur. Family 
members are being called to active duty, with no idea of the duration 
of their stay away from their hearthside, away from their homes, away 
from their loved ones, with no idea of the duration of their stay or 
what horrors they may have to face, perhaps in the near future. 
Communities are being left with less than adequate police and fire 
protection, while we are being told that a terrorist attack may be 
imminent. What about those communities like little Sophia, WV?
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. BYRD. Yes, I am happy to yield.
  Mr. DURBIN. I am happy the Senator has taken the floor today. We have 
spent most of our time discussing other matters. But this is a 
critically important matter in West Virginia and Illinois.
  I ask the Senator, as a matter of record, if he would kindly recount, 
since September 11, the efforts he has personally made, as well as 
speaking on behalf of this side of the aisle in the caucus, to try to 
bring together the necessary resources and funds so that we can be 
prepared to deal with acts of terrorism against the United States. We 
were just alerted this weekend that we were on something called the 
orange alert. The Senator noted that his wife asked what does this mean 
in terms of water and protecting our families and our houses.
  Would the Senator be kind enough to tell us for the record, as we 
reflect on whether we are prepared to deal with terrorism, what we have 
tried to do--unsuccessfully--since September 11 to respond to this 
challenge?
  Mr. BYRD. Madam President, I thank the very able and distinguished 
Senator from Illinois who is a graduate of the other body where I 
believe he served on the Appropriations Committee.
  He serves on the Senate Appropriations Committee. I need only respond

[[Page S2269]]

in a brief way at this point to the incisive question which the 
distinguished Senator has asked. I refer him to the Congressional 
Record upon several occasions last year when I said to the Senate that 
I was bringing to the floor, or said to the Appropriations Committee, 
that I was bringing an amendment up dealing with homeland security, and 
I shall do that again, hopefully before this week is over.
  Let me say briefly in response to the able Senator, time and time 
again the Senator has worked with me and with every other Senator on 
the Senate Appropriations Committee, Republicans and Democrats alike, 
to report measures from the Senate Appropriations Committee unanimously 
that provided moneys for homeland security.
  I remember our providing $2.5 billion--$2.5 billion--for homeland 
security. We designated it in the committee as an emergency item, and 
all that remained to be done--all that remained to be done--in order to 
have that $2.5 billion immediately flow to the policemen, the law 
enforcement officers, the firefighters, the health emergency personnel 
all over this country, all that needed to be done was for the President 
of the United States to attach his signature and likewise designate 
that $2.5 billion as an emergency.
  How little to ask. But how much it would have meant to the first 
responders in the many towns and cities and rural communities in 
Illinois, in North Carolina, in West Virginia, and cities and hamlets 
all over this country if the President had but condescended in that 
moment to sign his name on that item, making it an emergency item.
  The law requires that for an item to be declared an emergency item, 
both the Congress and the President have to designate the item as an 
emergency. Congress did its part, and, in that case, that involved $2.5 
billion. The President literally gave the back of his hand to that 
effort on the part of the elected representatives of the American 
people in this Chamber and on that committee. He gave the back of his 
hand to that effort on the part of Congress to provide $2.5 billion for 
the local responders and people in the health laboratories all over 
this country, for border security, airport security, port security, and 
all of the many facets that are involved in homeland security. He 
turned his back on that effort.
  Then last year, I believe in November of this past year when we had 
the omnibus appropriations bill before the Senate, I offered an 
amendment, a $5 billion amendment, an amendment making $5 billion 
available for homeland security. Did the administration support that 
amendment? No, the administration fought it, and the amendment went 
down in flames, as it were, on the floor of the Senate on virtually a 
party-line vote.
  That $5 billion would have gone a long way, would have been out there 
today when we have this orange alert scaring the American people--I am 
not saying it is not appropriate to have an orange alert, but we have 
seen alert after alert after alert, and in spite of the alerts that 
have been so often set forth in this country by the administration's 
own people, the administration, the President, have turned their backs 
on these efforts of the Senate Appropriations Committee by unanimous 
votes, including the Republicans on the committee, to provide ample 
moneys for homeland defense.

  Again, having lost the $5 billion, I came back with an amendment 
providing for $3 billion. We slimmed down--you can go to the store and 
get the Slim Fast at the Giant. I go to the store and do the shopping 
for my wife. She does not need Slim Fast, but I sometimes get Slim 
Fast. Well, we slimmed fast that $5 billion and brought it down to $3 
billion, thinking we would pick up some votes with the administration's 
support.
  Did we get any more votes? No, the administration was against the $3 
billion, and today they are telling us all, we better be on watch day 
and night.
  Mr. DURBIN. Will the Senator yield for another question?
  Mr. BYRD. Yes.
  Mr. DURBIN. Madam President, the Senator is probably preeminent in 
this Chamber in his knowledge of history, and he certainly knows the 
history leading up to World War II when a Member of the House of 
Commons by the name of Winston Churchill took to the floor week after 
week, month after month, year after year, warning the people of England 
that the looming crisis, the rise of Nazism and fascism and their 
failure to prepare. William Manchester's famous biography of that 
period of Winston Churchill's life is entitled ``Alone'' because he 
stood alone warning the people of England of the crisis that was to 
come.
  I say to my colleague from the State of West Virginia, his role in 
this crisis facing America has been Churchillian in that he has taken 
the leadership in the Senate time and again to warn us of a looming 
crisis. I ask him if he agrees with most people that to have an orange 
alert and to tell mothers and fathers across America to put aside some 
bottles of water, buy some duct tape and plastic sheeting, and prepare 
for the crisis of terrorism is not enough; that we as a nation should 
have taken this looming crisis seriously long ago?
  I believe I know the answer to this question, but, Madam President, I 
thank my colleague from West Virginia for his leadership. I thank him 
for standing on this floor and reminding us that there is still an 
unfulfilled agenda, and that if we face terrorism, we have to be honest 
with the American people. We have tried in the Senate, but we have 
failed. We are not as prepared as we should be to face this threat.
  I ask the Senator from West Virginia--I am not going to take any more 
time from his great comments--if he would comment on the Churchill 
analogy.
  Mr. BYRD. The Senator is preeminently correct. His mention of William 
Manchester reminds me of that great book, ``The Glory and the Dream'' 
by William Manchester who wrote about the Great Depression. In fact, 
Herbert Hoover was the first President to have a telephone on his desk 
in the White House. ``The Glory and the Dream.''
  Yes, we have had time to prepare. In many respects, we have failed. 
Our committee on which the distinguished Senator from Illinois sits 
conducted hearings and requested that the Homeland Security Director, 
former Gov. Tom Ridge, appear before the Appropriations Committee to 
testify concerning the needs of homeland security in this country. Did 
he come? He probably would have come but his boss, the President, said, 
no, he shall not come. So we conducted 5 days of hearings on homeland 
security in those early months of 2002. As a result, we brought to the 
floor legislation based on the testimony that had been adduced from 
witnesses from all over this country--mayors, Governors, and first 
responders.

  This legislation, to a large extent, was pretty much sneered at--it 
is hard to respond in any other way--by the administration. Based on 
the testimony of those witnesses, we tried time and again to bring to 
the Senate and pass legislation that would provide for the needs of 
those local responders, the people at the local level, in the effort to 
prevent terrorist attacks and in the effort to deal with terrorist 
attacks once they occurred. We got no help from this administration.
  Did the people out there know it? Some of us attempted to tell the 
American people about these efforts, but the press has not picked up on 
it very well. Communities are being left with less than adequate police 
and fire protection. Other essential services are also shortstaffed. 
The mood of the Nation is grim, is the only way I know how to put it. 
The economy is stumbling. Economic growth is worse than it has been in 
50 years. Fuel prices are rising and may soon spike higher.
  This administration, now in power for a little over 2 years, must be 
judged on its record. I believe that record is dismal. In that scant 2 
years, this administration has squandered a large projected surplus of 
some $5.6 trillion. How much is that? That is $5,600 for every minute 
since Jesus Christ was born.
  Let me say that again. In that scant 2 years--I am talking about the 
last 2 years--of this administration's record, this administration has 
squandered a large projected surplus of some $5.6 trillion over the 
next decade and taken us to projected deficits as far as the human eye 
can see. This administration's domestic policy has put many of our 
States, including my own, in a dire

[[Page S2270]]

financial condition, underfunding scores of essential programs for the 
people, the people out there who are watching through those electronic 
lenses.
  This administration has fostered policies that have slowed economic 
growth. This administration has ignored urgent matters such as the 
crisis in health care for our elderly. This administration has been 
slow to provide adequate funding for homeland security. The 
distinguished Senator from Illinois, Mr. Durbin, and I have been 
talking about that.
  This administration has been reluctant to better protect our long and 
porous borders to the north and to the south, and to the east and to 
the west, where the great oceans form the borders.
  In foreign policy, this administration has failed to find Osama bin 
Laden. In fact, yesterday we heard from him again marshaling his forces 
and urging them to kill, kill, kill.
  This administration has split traditional alliances, possibly 
crippling for all time international order, crippling entities such as 
the United Nations and NATO. This administration has called into 
question the traditional worldwide perception of the United States as 
being a well-intentioned peacemaking, peace loving, peacekeeping 
nation.
  This administration has turned the patient art of diplomacy on its 
head. It has turned the patient art of diplomacy into threats, 
labeling, and name calling of the sort that reflects quite poorly on 
the intelligence and sensitivity of our leaders and which will have 
consequences for years to come, calling heads of state pygmies, 
labeling whole countries as evil--as though we are not evil, as though 
there is no country that is not evil--denigrating powerful European 
allies as irrelevant. These types of crude insensitivities can do our 
great Nation no good.

  We may have massive military might, and we have, but remember we have 
had massive military might before. How many millions of men marched to 
the drums of war only 60 years ago? Thirteen million American men under 
arms, was it? Millions.
  While we may have massive military might today, we cannot fight a 
global war on terrorism alone. We need the cooperation and the 
friendship of our time-honored allies, as well as the newer found 
friends whom we can attract with our wealth. Our awesome military 
machine will do us little good if we suffer another devastating attack 
on our homeland which severely damages this economy.
  Our military manpower is already stretched thin, and they are taking 
them from our States every day. Yesterday, I talked to the Senate about 
the vacancies, about the empty seats at the dinner tables in the homes 
of many West Virginians, because of the National Guard and Reserve 
departures every day from the State of West Virginia. Yes, there they 
come. They are law enforcement officers. They are State troopers. They 
are road builders. They are doctors. They are teachers. They are Sunday 
school teachers. These are the men and women who keep the lights 
burning when the snows fall and darkness comes. But on whom will we 
depend when these men and women are gone to foreign lands to fight a 
war if a war faces us here at home, a different kind of war.

  Our awesome military machine will do us little good if we suffer 
another devastating attack on our homeland which severely damages our 
economy.
  As I say, our military forces are already being stretched thin and we 
will need the augmenting support of those nations that can supply troop 
strength, not just sign letters cheering us on.
  The war in Afghanistan has cost us $37 billion so far. Yes, we bombed 
those caves. We ran them into the holes, but they could not hide. We 
ran them out of the holes, and we ran behind them to get them. But 
there is evidence that terrorism may already be starting to regain its 
hold in that region. We have not found Bin Laden, and unless we secure 
the peace in Afghanistan, the dark dens of terrorism may yet again 
flourish in that remote and devastated land.
  Pakistan, as well, is at risk of destabilizing forces. This 
administration has not finished the first war against terrorism, and 
yet it is eager to embark on another conflict with perils much greater 
than those in Afghanistan. Is our attention span that short? Have we 
not learned that after winning the war, one must also secure the peace?
  Yet we hear little, precious little, about the aftermath of war in 
Iraq. In the absence of plans, speculation abroad is rife. Will we 
seize Iraq's oil fields, becoming an occupying power which controls the 
price and supply of that nation's oil for the foreseeable future? There 
are some who think so.
  To whom do we propose to hand the reins of power in Iraq after Saddam 
Hussein? Will our war inflame the Muslim world, resulting in 
devastating attacks on Israel? Will Israel retaliate with its own very 
potent nuclear arsenal? What are we about to unleash here? The genie is 
getting out of the bottle. Can it ever be put back? Will the Jordanian 
and Saudi Arabian Governments be toppled by radicals, bolstered by 
Iran, which has much closer ties to terrorism than Iraq? Could a 
disruption of the world's oil supply lead to a worldwide recession? Has 
our senselessly bellicose language and our callous disregard for the 
interests and opinions of other nations increased the global race to 
join the nuclear club and make proliferation an even more lucrative 
practice for nations which need the income?
  In only the space of 2 short years, this reckless and arrogant 
administration has initiated policies which may reap disastrous 
consequences for years.
  We have heard it asked, Are you better off today than you were 4 
years ago? The question can be shortened: Are we better off than we 
were 2 years ago?
  One can understand the anger and the shock of any President after the 
savage attacks of September 11. One can appreciate the frustration of 
having only a shadow to chase and an amorphous, fleeting enemy on which 
it is nearly impossible to exact retribution. But to turn one's 
frustration and anger into the kind of extremely destabilizing and 
dangerous foreign policy debacle that the world is currently witnessing 
is inexcusable from any administration charged with the awesome power 
and responsibility of guiding the destiny of the greatest superpower on 
the planet.
  Frankly, many of the pronouncements made by this administration are 
outrageous. There is no other word. Yet this Chamber is hauntingly 
silent--silent. What would John Langdon of New Hampshire say about 
that? What would Nicholas Gilman of New Hampshire say about that? What 
would Rufus King and Nathaniel Gorham of Massachusetts say? What would 
Alexander Hamilton, who signed the Constitution, from the State of New 
York, say about the silence in this Chamber? What would Dr. Samuel 
Johnson of Connecticut say about the silence in this Chamber? What 
would William Paterson or William Livingston or David Brearley or 
Jonathan Dayton of New Jersey, the signers of the Constitution, have to 
say about the silence in this Senate which they created? What would 
Benjamin Franklin, Thomas Mifflin, James Wilson, Robert Morris, of 
Pennsylvania, have to say? What would Thomas FitzSimons or Gouverneur 
Morris, who signed the Constitution on behalf of the State of 
Pennsylvania, have to say about the silence that rings and reverberates 
from these walls today, the silence with respect to the war on which we 
are about to enter? What would they have to say? What would their 
comments be? Gunning Bedford, George Read of Delaware, Daniel Carroll, 
Dan of St. Thomas Jenifer of Maryland. These and more.
  What would these signers of the Constitution have to say about this 
Senate which they created when they note the silence, that is 
deafening, that emanates from that Chamber on the great subject, the 
great issue of war and peace? Nothing. Nothing is being said except by 
a few souls. Yet this Chamber is hauntingly silent--hauntingly silent 
on what is possibly the eve of horrific infliction of death and 
destruction on the population of the nation of Iraq. Think about that.

  Oh, I know Saddam Hussein is the person who is primarily responsible. 
But how about us? How about ourselves?
  Yes, there are going to be old men dying. There will be women dying. 
There will be children, little boys and girls dying if this war goes 
forward in Iraq. And American men and women will die, too.
  Iraq has a population, I might add, of which over 50 percent is under 
age 15.

[[Page S2271]]

Over 50 percent of the population in Iraq is under age 15. What is said 
about that? This Chamber is silent--silent. When it is possibly only 
days before we send thousands of our own citizens to face unimagined 
horrors of chemical and biological warfare, this Chamber is silent. The 
rafters should ring. The press galleries should be filled. Senators 
should be at their seats listening to questions being asked about this 
war, questions to which the American people out there have a right to 
expect answers. The American people are longing for information and 
they are not getting it. This Chamber is silent. On the eve of what 
could possibly be a vicious terrorist attack in retaliation for our 
attack on Iraq, it is business as usual here in the Senate, and 
business as usual means it is pretty quiet. There is not much going on 
in the Senate. Business as usual.
  Oh, I know it may be scare talk to talk about what may happen in the 
event of a terrorist attack. But when the Twin Towers fell, it wasn't 
scare talk. When hundreds of local firefighters and police officers, 
law enforcement officers died as the walls of the Twin Towers came 
tumbling down, it wasn't scare talk. It wasn't scare talk.
  We are truly sleepwalking through history. In my heart of hearts I 
pray that this great Nation and its good and trusting citizens are not 
in for a rudest of awakenings. To engage in war is always to pick a 
wild card. And war must always be a last resort, not a first choice.
  But I truly must question the judgment of any President who can say 
that a massive unprovoked military attack on a nation which is over 50 
percent children is in the highest moral traditions of our country. 
This war is not necessary at this time. Pressure appears to be having a 
good result in Iraq. Our mistake was to put ourselves in a corner so 
quickly. Our challenge is now to find a graceful way out of a box of 
our own making. Perhaps--just perhaps--there is still a way, if we 
allow more time.
  Madam President, I yield the floor. I suggest the absence of a 
quorum--I withdraw that suggestion.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH. Madam President, I believe Senator Schumer is scheduled to 
speak. I understand he is not now going to claim his time. If I may, I 
would like to speak about Miguel Estrada. I appreciate the Senator from 
West Virginia and his effort to present his perspective. I find myself 
wanting not to be silent, though, in response. He has a perspective 
that is not one I share with respect to President Bush and the job he 
is doing as our Commander in Chief and as the leader of the free world. 
So before I speak about Miguel Estrada, I would like to remain not 
silent.
  When I was elected to this body in 1996 I was given membership on the 
Senate Budget Committee. Being given membership on that committee, I 
remember President Clinton presented his first budget. We were coming 
through a period of great deficits and President Clinton projected 
deficits for as far as the eye could see. But something happened to our 
economy, something entirely unrelated to Government, something entirely 
unrelated to the Clinton administration. We saw what has happened 
periodically in the great civilizations, and that is a speculative 
bubble, irrational exuberance, and we saw the stock market surge with 
stock values wholly unrelated to their book values.

  We began to witness a great bubble. That is when Alan Greenspan and 
others said there is irrational exuberance. We have a problem. They 
began pulling back on the money supply, and by the time George W. Bush 
took his oath of office, this country was in a full blown recession. He 
inherited this. For a colleague to suggest that this President has run 
this economy into the ground is belied by the facts and it is belied by 
the common sense of the American people who do not blame this President 
for the condition of this economy that he inherited and they, in fact, 
appreciate the fact that he is doing something about it and trying to 
do what the Federal Government can, with the levers available to it, to 
help put people back to work, to grow the economy, to say to the 
country, to say to the Congress: You know, the economy is tough. When 
the economy is tough, families have to tighten their belts, and 
Congress should do the same with the Government budget so we can leave 
more money at home so people can spend it to pursue their dreams, to 
balance their economies because when they do that, we are more likely 
to see employers reemploying people.
  I must tell you, like my friend from Wisconsin, before I came to this 
body I was in the business of meeting a payroll. It was always a source 
of frustration to me to hear politicians from mighty places say that 
they were responsible for creating jobs, that they were somehow 
responsible for the condition of the private sector economy. We are 
citizens of a nation that has a free market economy, not centrally 
planned. I have always been upset, whether from Republican or 
Democratic politicians, when there is the claim that somehow we in the 
public sector create jobs.
  It is false. It is a lie. So when I hear speeches saying that 
President Clinton is to blame for it, or President Bush is to blame for 
it, I say baloney because, as long as I have been in public life, I 
have seen us do various things with the levers available to us to try 
to help the economy, to take credit for it. But you know what. We 
can't. And may we never be able to because if we do, we will have 
adopted the ways of western socialist societies, of Western Europe, and 
these are failing models. These are not models designed to reemploy 
people and to give them opportunity and hope.
  I sit on this side of the aisle for, frankly, one major reason. I 
believe in free enterprise. I do not believe in creeping socialism. I 
believe if you are interested in social justice you will pursue those 
policies that leave more money at home and give people a chance to 
reemploy folks and to produce products, to provide services that other 
people want to buy.
  So when I hear a statement like I have just heard, with all due 
respect to a great man in this Chamber, I think it simply disregards 
the nature of the economic system we are in. I say that as a 
businessman before I was a Senator. So I thank President Clinton for 
doing the best job he could. I thank President Bush for doing the best 
job he could. But in the middle of the administration there was a stock 
market bubble that neither of them created for which we are now trying 
to deal with the consequences of the bursting of that bubble.


                                  Iraq

  Madam President, on the issue of Iraq, I think every American feels 
disquiet about the fact that we are actually contemplating going on the 
offense because we are trying to provide for the defense of the 
American people.
  I don't think President Bush relishes going to war. But I will tell 
you that I am glad he does not check our national security with the 
French or the Chinese or some international body which is, at the core, 
anti-American and anti-Semitic. I am grateful we have a President who 
goes to such bodies and makes America's case and stays engaged but 
never loses sight of the fact that America's interests are best 
determined by Americans.
  I have never believed there was a sharp line of coordination between 
all the Islamic terrorist groups and Islamic states. But I am not so 
naive to believe that this is not a loose confederation of terrorism--a 
loose confederacy that has as its purpose the murder of Jews and 
Americans and other minorities who do not share their religious faith.
  It takes foolish people to look at all the money moving around and 
all of the ammunition being bought and all of the murder being 
committed to say we just have to wait for them to hit us again.
  I thank God for a President who is willing to say: I am going to 
protect the American people, and I am going to go where the facts lead 
us. And even if it says we have to play defense by going on offense we 
are going to do that.
  I don't believe we are going to Iraq out of reasons of oil. I believe 
we are going there for the security of the American people. Who can 
like the situation in the Middle East now? Perhaps there is a prospect 
of a better future. Perhaps there is a prospect of democracy that takes 
root in the middle of Arabia on the border of Persia that may 
ultimately figure out how to find

[[Page S2272]]

peace with their Jewish neighbors. We have no prospect of that in the 
current arrangement.
  When I hear motives described of this President that his response to 
9/11 is somehow failed, I think maybe they are going to different 
briefings than I am. Maybe they are seeing different facts than I see. 
I don't understand the charges that were just made here. The charge was 
made that we are being silenced. I diverted from my Miguel Estrada 
speech because, frankly, I don't want to be silent if that is what 
people actually believe here because it is wrong. I want to make clear 
my opposition to it.

  Madam President, when I came to this body, I promised the people of 
Oregon that while I have values I refuse to check at the door, I would 
not have a single-issue litmus test when it came to judicial nominees.
  I remember very vividly our phones ringing off the hook with calls 
from conservative people in my State who were very upset at all the 
Clinton nominees for whom I voted. But I wanted to keep my word that I 
would not have a single-issue litmus test. I was going to focus on 
whether President Clinton's nominees were qualified and for some reason 
not disqualified by personal conduct or ethics.
  So with that, I can think of only one exception when a nomination was 
defeated on the floor of this body at the request of the two Senators 
of that State.
  I voted time and time again for President Clinton's nominees who 
probably in most cases had different views than I did. I remember 
specifically the nomination of Richard Paez of California which the 
Republicans held up for some time. But some of us pushed on this side 
to get him confirmed.
  I remember the nomination of Marsha Berzon, another Ninth Circuit 
nominee. The conservatives couldn't stand her. Some of us pushed 
through and got her confirmed and voted for her because we didn't want 
to happen in this place what is happening now in the case of Miguel 
Estrada.
  I was trained in the law. As a lawyer, I have to tell you that I am 
envious of the credentials of Miguel Estrada. I will bet in all the 
time I serve here, few nominees will come to this place who are better 
prepared and better credentialed than Miguel Estrada. Yet it has come 
to this? A filibuster? Not for the Supreme Court but for an appeals 
court--an important one for sure but not even the highest court. We are 
in the midst of a filibuster.
  But consider what an Horatio Alger story is Miguel Estrada when it 
comes to American law. This man came to this country, from Honduras, at 
the age of 17, speaking little English. He went to Columbia University. 
He graduated there magna cum laude. Then he went to Harvard Law School 
and he graduated there as the editor in chief of the Harvard Law 
Review, Order of the Coif. Then he went on to clerkship for United 
States Supreme Court Justice Anthony Kennedy.
  You cannot get better credentials than this.
  He then served as Assistant Solicitor General of the United States 
under both the Bush and Clinton administrations, earning high praise 
from colleagues, including President Clinton's Solicitor General, Seth 
Waxman, under whom he served.
  By the way, I also note that he argued the Government's case against 
the abortion clinic demonstrators. He upheld the law.
  He has the unanimous high rating by the American Bar Association as 
``very well-qualified''--its highest rating. That used to be the gold 
standard for the Democratic conference for people coming through the 
Judiciary Committee to this floor.
  He enjoys broad support from Hispanic communities, including the U.S. 
Hispanic Chamber of Commerce, the Hispanic National Bar Association, 
and the Washington Post, of all papers, which editorialized that this 
confirmation should be an ``easy call''. But it is not. It is all 
bollixed up. Charges have been raised against Miguel Estrada that he is 
way out of the mainstream. When you ask for evidence of that, I find 
none forthcoming. They say he has no judicial experience. Well, I have 
told you what his legal training is, as well as his legal practice at 
Gibson, Dunn & Crutcher, a great law firm in California.

  I would note that five of the eight current judges on the District of 
Columbia Circuit had no prior judicial experience before they served on 
it. But, clearly, that doesn't cut it.
  I noted before that he has the highest rating of the American Bar 
Association. Some have said: Well, but he defended antigang laws. These 
are known as antiloitering laws. But I would point out that he did that 
when he was hired by Chicago's Solicitor, at the request of Democratic 
Mayor Richard Daley, to defend their constitutionality. There is no 
partisan conspiracy in this. They wanted a good lawyer to defend it. 
This is a man who has argued 15 cases before the U.S. Supreme Court. No 
judicial experience? That doesn't hold up.
  Some have said he didn't answer all the questions.
  I can tell you I fear that what we are doing in this Chamber by the 
process that began with Robert Bork is setting a standard that if you 
provide the opposition with your views and your records, you give them 
ammunition to shoot you--at least politically speaking--in this place.
  I come back to my belief that what this really is is the victory of 
single-issue politics. I regret that.
  My friend from Nevada holds the same view I do on single issue. He is 
evidence that his party has had a big enough part to include people who 
may--I emphasize ``may''--have a view as to the sanctity of life that 
is out of the mainstream, if you will.
  You see, Miguel Estrada has never told us what his views are. Maybe 
that is what is wrong here. Maybe if he would come and pledge 
allegiance to Roe v. Wade all this opposition would go away. But I want 
to lament that our process has come down to single issue litmus tests. 
I do not think it should.
  See, Miguel Estrada has said what should be said in the case of 
abortion, issues coming before appellate courts. He has said: I will 
follow the law. I understand stare decisis. And I am not going to be 
out there trying to make new law. That is what he should say.
  What he has not said I think is feared on that side; and that is, 
coming from a Latin American part of our hemisphere, that he has a 
Catholic background, that he has a heritage, a tradition that 
sanctifies human life. And they are worried about that.
  Yet I have to say I think a lot of the American people worry about 
that. I, for one, who describes myself as pro-life, understand 
completely that it is unlikely in our lifetime that early rights to 
choose will ever be abridged by this place or by the Court. But I think 
Americans generally are increasingly discomforted by late-term 
abortions.
  You have but to see the General Electric advertisement about seeing 
this couple looking at their unborn child in utero and the 
inexpressible joy they feel at the anticipation of the child's birth. 
And to think: Well, this unborn child is of no consequence--it is of 
enormous consequence.
  I think there is a fear there that Miguel Estrada may have some of 
those beliefs. We do not know that. And, frankly, I think he has said 
what is right and that is: I will enforce the law.
  Madam President, I, for one, say, without reservation, Miguel Estrada 
has my vote. And I think for the good of our institutions, some of our 
colleagues on the other side ought to remember that some of us pushed 
through a lot of President Clinton's nominees with whom we had 
differences because we were fearful of going down the road of single 
issue litmus tests for judicial nominees, because if we go there, we 
are ratcheting up to a different level, and it will be to the lament of 
this country and its judicial processes because we will leave too many 
places and seats vacant on the bench, and that will mean justice 
delayed. And justice delayed means justice denied. I urge his 
confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. DORGAN. Will the Senator from Wisconsin yield for a unanimous 
consent request?
  Mr. KOHL. I will.
  Mr. DORGAN. I ask unanimous consent that I be recognized following 
the presentation by the Senator from Wisconsin.
  The PRESIDING OFFICER. Is there objection?

[[Page S2273]]

  Without objection, it is so ordered.
  Mr. KOHL. Madam President, I rise today to express my concerns about 
the nomination of Miguel Estrada. Once a nominee is confirmed by the 
Senate, these men and women serve lifetime appointments, unanswerable 
to Congress, the President, or the people. They become the guardians of 
our liberties, of our Constitution, and of our civil rights. Our duty 
to advise and consent is the only check we will ever have on the 
qualifications and fitness of those chosen to serve as Federal judges.
  In considering judicial nominees, we can review their credentials, 
their professional record, their writings, and the recommendations of 
their colleagues. But to truly evaluate a nominee's fitness, especially 
one with no judicial record, we are dependent on the nominee to 
candidly share with us their opinions, their judicial philosophy, and 
their approach to interpreting the Constitution during the give and 
take of a confirmation hearing.
  The need for forthright testimony is especially crucial in the case 
of Mr. Estrada, given the minimal public record we have to evaluate 
him. He has never served as a judge and, therefore, unlike many 
appellate court nominees, has no judicial opinions to review. He has 
virtually no professional writings for us to read. And although he has 
argued before the Supreme Court, he has rebutted any attempt we made to 
attach his personal views to the positions he advocated in those cases. 
Therefore, we were dependent on his testimony from his confirmation 
hearing. But this testimony gave us precious little on which to 
evaluate him.
  Instead, we have been told that Mr. Estrada is bright, capable, and 
qualified. His proponents say ``trust us, he will make a good judge.'' 
Trust is not enough; trust leaves too much to doubt. When considering a 
nominee, we do not owe the benefit of the doubt to the nominee but, 
rather, to the courts, the Constitution, and to our civil liberties.
  A judicial confirmation hearing is not an intrusive exercise. We do 
not ask nominees to comment on pending cases or to speculate on 
unlikely facts. Rather, we only ask them to help us reach a level of 
comfort with them as potential judges. Without candid and honest 
testimony by the nominee our advice and consent process is meaningless.
  Unfortunately, at his confirmation hearing, Miguel Estrada refused to 
answer question after question regarding his views and judicial 
philosophy. Mr. Estrada even went so far as to refuse, when asked by 
Senator Schumer, to name a single Supreme Court decision of which he 
was critical in the last 40 years. I myself have asked that very same 
question of many nominees, and every one had an answer--until now. This 
is not an isolated example. Senator Feinstein asked him to state 
whether he believed Roe v. Wade was correctly decided, and Mr. Estrada 
refused to do so.
  He refused to provide responsive information to my own questions on a 
variety of topics, ranging from his views on two recent Federal court 
opinions striking down the Federal death penalty, to the Government's 
role in protecting the environment, and to the use of ``protective 
orders'' mandating court secrecy in products liability cases. This 
pattern of evasiveness and avoidance falls far short of what we need to 
evaluate a candidate's fitness to serve a lifetime appointment on the 
DC Circuit Court of Appeals.
  The importance of the court to which Mr. Estrada has been nominated 
makes his efforts to hide his views from us all the more serious. The 
DC Circuit, a court second in importance only to the Supreme Court, is 
unique among the Federal courts of appeals as the court that reviews 
decisions of the executive branch and the independent agencies. The 
rules and regulations reviewed by this court are felt by all Americans 
every single day. If you work, your safety is protected by rules issued 
by the Occupational Safety and Health Administration. When we drink 
water and breathe the air, we are protected by rules issued by the 
Environmental Protection Agency. When we shop and watch advertisements, 
we are protected from fraud and deceit by the Federal Trade Commission. 
And when we see our cable, phone, and internet bills, we can be sure 
that the Federal Commerce Commission played an important role. The 
decisions of the D.C. Circuit on these and many other subjects have a 
real and immediate impact on the lives of all Americans.
  My decision to oppose this nomination in the Judiciary Committee was 
not taken lightly. I have done so only six times in my more than 14 
years of service in the Senate, and I do so reluctantly in the case of 
Mr. Estrada. We recognize that Mr. Estrada is a talented attorney who 
has compiled an impressive record of achievement, and that he is to be 
commended for devoting a substantial portion of his professional career 
to public service.
  My decision to support the need for a filibuster on this nomination 
is also not taken lightly. We take this step reluctantly, and with the 
full understanding that we are left with no other choice. Our 
constitutional responsibility to advise and consent has been 
compromised by a process that has provided us with no opportunity to 
learn anything about this nominee. If we permit Mr. Estrada's 
nomination to proceed, we have provided future nominees a roadmap to 
evade questions and hide who they are. This would be a disservice to 
the people we were elected to represent.
  We cannot support Mr. Estrada's nomination to the DC Circuit in the 
face of his unwillingness to candidly share his views, his approach and 
his judicial philosophy. If no further information is provided about 
Mr. Estrada, then I will be forced to oppose his nomination.
  I thank the Chair.
  The PRESIDING OFFICER (Mr. Smith). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I listened to my colleague from Wisconsin, 
who serves on the Judiciary Committee, on the nomination of Mr. Estrada 
to the DC Circuit Court. I also listened to my colleague from Oregon 
and others who have spoken today.
  Mr. Estrada has had his name submitted to the Senate by the 
President, acting under article II of the Constitution. And the 
President has the right to send nominations for lifetime appointments 
to the judiciary to the Senate for advice and consent. It is the 
Senate's responsibility to evaluate the President's nominees and 
determine whether to vote to confirm those nominees and provide someone 
a lifetime tenure on one of the Federal courts.
  That advice and consent is not in any way subordinate to the 
President's right of sending a nomination. We both have constitutional 
obligations. One is for the President to select and send nominations to 
the Senate. The other is for the Senate to evaluate and provide its 
advice and consent.
  The DC Circuit Court is the second highest court in the land. It is 
very important that for a lifetime appointment, we decide carefully 
whether we want to confirm a nominee sent to us by the President. Most 
of us would not know the nominees personally. That is certainly the 
case in this circumstance. I don't know Mr. Estrada personally.
  I have been to one hearing where he appeared. I was there for only a 
brief period because a candidate for a Federal judgeship in North 
Dakota was being heard at that time. This was a nomination of President 
Bush's. I was pleased to be there to support President Bush's 
nomination and to support the candidate whose name had been sent to us. 
I went down to the hearing and supported Mr. Hovland's candidacy. I am 
proud to say he is now a Federal judge in the West District of North 
Dakota. He is going to be a credit to the bench. He will be a wonderful 
Federal judge. I was very pleased to support President Bush in sending 
this nomination to the Senate.
  On that day when he was also testifying, Mr. Estrada was there. That 
is the only time I have seen him. I was there for only a couple 
questions, and I don't know a great deal about him but have read a lot 
about him since.
  It is the case with respect to Mr. Estrada's appearance before the 
committee and also the interviews and discussions prior to his 
appearance before the Judiciary Committee, that Mr. Estrada decided he 
would not answer some basic questions put to him by Members of the 
Senate. Members of the committee were asking some pretty basic 
questions. Tell us a bit about your judicial philosophy, because you

[[Page S2274]]

don't have experience as a judge and you have not served as a judge at 
any level in the judiciary system. Tell us about how you see this job. 
Evaluate for us some of the decisions that have been made over time by 
the Supreme Court, and so on. Mr. Estrada essentially said, I don't 
care to do that.
  Contrast that for a moment, for example, with Dan Hovland who is now 
a Federal judge in the West District of North Dakota. He was asked: 
What three U.S. Supreme Court cases can you identify that you disagree 
with? This is Mr. Hovland. He said: Well, Behrens v. Peltier, 1996; a 
2002 case, Thompson v. Western States Medical Center; and then, of 
course, the case I suspect most would cite, Korematsu v. the United 
States. That is, of course, the case in which the Supreme Court 
affirmed the conviction of a person of Japanese ancestry for a 
violation of a curfew order solely because of the individual's 
ancestry.

  I think now most would view that Supreme Court decision as a profound 
mistake. Mr. Hovland did. He was asked a simple question. He gave a 
straightforward answer. He said: Here is my notion of three Supreme 
Court decisions with which I would disagree. It gave Members a bit of 
an insight into who Mr. Hovland was, what he thinks. That was helpful.
  The same question was asked, for example, of Freda Wolfson: What 
three U.S. Supreme Court cases can you identify that you disagree with. 
Plessey v. Ferguson, that would come to mind almost immediately for 
everyone. They held that the State statute requiring passenger 
railroads to provide separate but equal accommodations for African 
Americans and Caucasians did not violate the 13th or 14th amendments. 
It seems to me that is probably an obvious case one would disagree 
with.
  Yet questions of that type were asked repeatedly of Mr. Estrada, and 
he said he just wouldn't offer an opinion, wouldn't answer the 
questions. So then the members of the committee said: Well, you served 
in the Solicitor's Office at the Justice Department. Could we be 
provided with the memoranda written there, the advice you were 
offering, to get some insight into how you feel about these issues, how 
you reason, how you think?
  He said, no, those are confidential. Those should not be released.
  Well, they have been released in the past. On other occasions 
candidates have indicated they wanted those papers released. They were 
released. It gave the committee, when making a lifetime appointment, 
some better judgment about how this person thinks, how this person 
reasons, what approach this person takes to dealing with some of these 
questions. Mr. Estrada said, no, he couldn't do that.
  What has happened with this nomination, a circuit court nomination is 
that, both the President's administration and the candidate himself, 
Mr. Estrada, have said: I don't intend to answer questions, and I don't 
intend to make the information available with respect to what I was 
doing as assistant in the Solicitor's Office.
  If that is the case, Mr. Estrada is then a blank sheet. What are we 
to make of Mr. Estrada? Who is he? How does he think? How does he 
reason? Would he be a good judge? This is, after all, a lifetime 
appointment. This isn't an appointment for 5 years, 10 years, or 20 
years. We are being asked by the President to take Mr. Estrada's 
nomination and say, yes, we will put him on this Circuit court forever, 
for his entire life, and we have no right to get answers to basic 
questions, to understand a bit about the philosophy of Mr. Estrada, a 
bit about his approach, his thinking. We have no right to that?
  I have been astounded to hear some colleagues on the floor say: You 
have a responsibility to approve this nomination. No, we have a 
responsibility under the Constitution to advise and consent. The 
President has a responsibility to send us a nomination. We have a 
responsibility to evaluate it and make a decision. Is this someone who 
should be given a lifetime appointment or not? That is our judgment. 
That judgment doesn't rest with others. It rests with us.
  I would like very much for Mr. Estrada to give us the information 
requested. My colleagues on the Judiciary Committee have repeatedly 
requested this information. I would like very much to see the 
information. It is entirely possible I would see all of this 
information, understand a bit more about Mr. Estrada, and decide to 
support his nomination. I don't know. I would like to see the 
information and make a judgment.
  I believe I have voted for virtually all the nominations the 
President has sent to Congress with respect to judgeships. I would hope 
to be able to support this and others as well. But I don't intend to 
decide that we should force the Senate to vote for a lifetime 
appointment for a candidate on the DC Circuit Court who tells us 
nothing about himself.
  He seems to suggest, I am here for a job interview, but I will not 
tell you anything about me. That would be a job interview that would 
last a very short time. It ought to last a very short time here. When 
Mr. Estrada and the administration provide the information that is 
requested, then, in my judgment, this Congress has a responsibility to 
consider it, and consider it with great seriousness because this is, 
after all, a Federal judgeship, not just a district judgeship, but a 
circuit court judgeship of DC, which is the second highest court in the 
land.
  Judge Scalia once said--and I am not prone to quoting him often:

       Indeed, even if it were possible to select judges who 
     didn't have preconceived views on legal issues, it would 
     hardly be desirable to do so.

  What are the preconceived views on legal issues of Mr. Estrada? Does 
anyone know? Does anyone who has spoken in support of this nomination 
know? Can you answer that question? The answer is no one in this 
Chamber knows; no one in the Chamber can answer the question because 
Mr. Estrada and the administration say you are not entitled to know.
  They are wrong. The Constitution requires us to know. It says we are 
entitled to know. I don't believe we ought to vote on this nomination 
until we have received the information requested. When we do, I think 
we should vote on this nomination. But until then, in my judgment, this 
is not a problem of our making, this is not something someone from the 
other side should shoehorn over here. This is a problem the 
administration and Mr. Estrada created by deciding on a strategy that, 
if we allow to continue, would essentially say to the Senate, you 
consider us for lifetime appointments and we won't give you any 
information about ourselves as we ask for that consideration.
  There are reciprocal obligations here--ours, the President's, and the 
nominee's. We will and should meet ours as soon as others have met 
theirs. The first test of that is to send the names of qualified people 
to the Senate for judgeships. Mr. Estrada may well be very well 
qualified. The ABA says he is well qualified. The second obligation on 
the part of those who send his nomination to us is for the candidate 
himself, or herself, to make themselves available to the Senate, answer 
questions, and allow us to evaluate whether this is the kind of person 
we want to provide a lifetime appointment to on the Federal bench. That 
hasn't been the case at this point.
  With respect to this nominee, we are waiting; but we should not vote, 
and no one in this Chamber ought to pressure others to vote until we 
have the basic information we have requested. What is so secret about 
all of this? What is there we should not know? Is there anyone 
qualified to serve on the second highest court of the land who doesn't 
have some basic views on past Supreme Court decisions--especially some 
of the controversial ones--they might explore with us in order to give 
us some evaluation of how they think and reason, what kind of 
capability they have to sit on the bench? If such a nominee is sent to 
the Senate, that nominee ought not ever be confirmed.
  I don't believe that is the case with Mr. Estrada. I think he has 
views on all of these issues. He certainly could tell us his views 
about Supreme Court decisions with which he would disagree and why, so 
we could develop some notion of his reasoning. He just refuses to do 
that. I don't know why. I assume if this is the case with this 
candidate and the Senate says that is fine, we will see future nominees 
refuse to answer anything; our advice and consent will become a 
rubberstamp; and we will not ask people to give us basic information. 
Then the next candidate will do

[[Page S2275]]

exactly the same thing and we won't have a constitutional 
responsibility at all here in the Senate. We will say, all right, 
whatever it is you decide to give us, we will take, or whatever you 
decide to withhold, we will accept.

  I am not willing to do that. Why not the materials from the 
Solicitor's Office? It has been done in other nominations. Why not now? 
Why won't the candidate answer basic questions? Again, I come here not 
as a member of the committee and as someone who has a preconceived 
notion that Mr. Estrada would not do a good job. I don't know. And no 
one else in the Senate knows. There is nobody in the Senate who can 
stand up and say Mr. Estrada has answered these questions for us, 
because he has refused to answer the questions for all Senators. Some 
in the Senate might be perfectly comfortable deciding the 
constitutional role granted us in this process of lifetime appointments 
on the judiciary is not very important. But I am not among them.


                The State of Foreign and Domestic Policy

  Mr. President, let me speak for a moment, while I have the floor, 
about a couple of other issues that are happening that I think are very 
important. I know others want to come and speak about the nomination. I 
want to talk for a moment about what has been happening in our country 
with respect to foreign policy and domestic policy.
  In recent days, we have had the following occur: We wake up in the 
morning and turn on the television programs. The lead story is, as it 
has always been in recent weeks, days, and months, the war with Iraq. 
When is it going to happen? How is it going to happen? When is it going 
to start? Who is going to support it? Who is going to be involved? 
Every week, day, and month.
  As a result, this economy of ours, which desperately needs certainty, 
predictability about the future--and this economy, in my judgment, is 
in a stall, serious trouble--is not going to come out of its problems 
unless we stop every day the lead news story being about war. I am not 
suggesting Iraq is not a problem; it is. Saddam Hussein is a bad guy. 
North Korea is a problem--a bigger problem than Iraq, I might say. 
Terrorism is a bigger problem than both of them. We have a situation in 
which we have to deal with all three. I understand that. But the other 
day we get an orange alert in the country, the second highest alert for 
terrorist activity in our country, the terrorist threat. Today, I 
understand we have hardware stores that are out of duct tape. Why? 
Because yesterday they said we are on orange alert, under the threat of 
terrorist attack, and we need people to go out and buy gas masks and 
plastic sheeting and duct tape. So the hardware stores in our country 
are being cleared out of duct tape. Why? People are concerned about the 
potential of a terrorist attack in our country.
  North Korea. Apparently, we read in the news--I have not heard it in 
classified briefings because we have not had any--that trucks are 
leaving a facility in North Korea, potentially with spent fuel rods, 
which will, in the not-too-distant future, be turned into weapons-grade 
plutonium, probably sold to a terrorist; and it is not out of the 
question that 18 or 24 months from now a terrorist will have a nuclear 
weapon with which to hold hostage an American city.
  Is that a frightening thought? You bet your life it is. So what 
consumes our attention today? Iraq. Saddam Hussein. Oh, but today is a 
bit different in that Osama bin Laden also shows up. He is out there. 
The other day Osama ``been forgotten'' is what I called him, because 
you don't hear about him anymore from the administration. They cannot 
find him, don't know where he is. I have flown over those mountains; it 
was about a year ago. You can look down and see where the caves are, 
where Osama bin Laden and his band of murderers plotted the murder of 
innocent Americans, thousands of them. And so men and women wearing 
America's uniform went into Afghanistan, kicked the Taliban out, ran 
the al-Qaida up into the hills. But Osama bin Laden was not found. Al-
Qaida still lives. The head of the CIA said a couple of months ago that 
the terrorist threat against this country is as serious now as it has 
ever been since September 11. What of terrorism? What do we make of 
North Korea? What about Bin Laden? And, yes, what about Iraq?

  We have had a single track playing now for month after month about 
the country of Iraq. I want to see regime change in Iraq. I want to see 
Saddam Hussein displaced. My preference, by far, is that the free world 
in unison says to this man: You leave, you disarm, or you are going to 
be disarmed, and you are going to be replaced. I would hope very much 
the entire free world says that to Mr. Saddam Hussein, but I also hope 
that we understand in this country--the President and, yes, his key 
advisers understand--that there are more threats and, in my judgment, 
at this moment, more serious threats with respect to North Korea and 
the development of additional nuclear weapons that could possibly go 
into the hands of terrorists very quickly; more serious threats with 
respect to al-Qaida which still lives, and Osama bin Laden, who is 
still broadcasting to those who follow him, which is also a very 
serious threat to this country and to the free world.
  We need to understand that we face very serious problems, and it is 
not just Iraq. Inattention to some parts of our foreign policy, in my 
judgment, have contributed to this. I understand North Korea has lied 
to us. I understand that. But deciding not to talk to them? It is not 
an option.
  There are only two options dealing with a problem that serious. One 
is military. We are not going to do that. The second is diplomacy, and 
that means we talk. We talk and we talk and we talk, and we try to work 
through these issues.
  With respect to al-Qaida and terrorism, the fact we do not mention 
it, the fact no one will talk about it, the fact it is not something 
the Defense Department, the State Department, or others want to talk 
much about does not mean it has gone away. It is as serious today, 
perhaps more so, than ever, and we have a responsibility to deal with 
it. I worry a great deal about these terrorist issues and the terrorist 
threat against our country.
  My point is not to say somehow the attention to Iraq is misplaced. It 
is to say that the sole attention to Iraq at the expense of, in my 
judgment, a more serious threat from North Korea, the sole attention to 
Iraq at the expense of attention to al-Qaida and the growth and the 
continuation of a very serious threat of terrorist attacks is unwise, 
in my judgment. It makes no sense.
  We have a responsibility to protect the national interests of this 
country, and I will and always have supported our President as we 
proceed to do that, but I think it is important with respect to not 
only advice and consent on judgeships, but providing advice on issues 
as we perceive threats to this country, it is important for some of us 
to speak up to say: Mr. President, you are right, Saddam Hussein is a 
bad guy, but you are wrong to not pay attention to North Korea and the 
war on terrorism with equal vigor and equal strength.
  Frankly, no one can take a look at what has happened in the last 6, 
8, 10 months and judge there has been that kind of balance. My hope is 
that in the coming days we will see greater balance dealing with this 
terrorist threat and also the threat of North Korea producing more 
nuclear weapons and potentially moving those nuclear weapons into the 
hands of terrorists who the next time they threaten us will do so with 
a nuclear weapon.

  God forbid we will face a world in which a nuclear weapon is used as 
an act of terrorism, not killing 3,000 people but 300,000 people or 1 
million people.
  If ever we wonder about these issues, we have a world in which there 
is somewhere, we think, around 30,000 nuclear weapons. We do not know 
exactly. With theater weapons, strategic weapons, somewhere around 
25,000 to 30,000 nuclear weapons, one of which, just one, missing or in 
the hands of terrorists will cause chaos. The explosion of one will be 
devastating, and the genie will be out of the bottle.
  Pakistan and India have nuclear weapons, and the other day they were 
shooting at each other over Kashmir. Dangerous? You bet your life that 
is dangerous.
  We have a responsibility, especially in the shadow of the terrorist 
threat against this country, in the shadow of what is now happening in 
North Korea and the potential of the spread of nuclear weapons, we have 
a responsibility

[[Page S2276]]

to decide that job No. 1 is protecting ourselves against the terrorist 
threat and then trying to find ways to reduce the number of nuclear 
weapons in this world.
  I have kept in my desk for some long while a couple of items I have 
always used to remind us of what this job is about.
  This little piece of metal, if I may show by consent, Mr. President, 
this little piece of metal is from a backfire bomber. This bomber was a 
Soviet bomber. It used to be flown by Soviet aircrews hauling bombs 
that presumably would threaten the United States of America. It was at 
a Soviet airbase in Ukraine when it was destroyed.
  How was this bomber destroyed? Did we shoot it down? No, this bomber 
was destroyed with a saw, a large circular metal saw. We sawed the 
wings off a Soviet bomber, and we paid for it under Senate 
appropriations.
  We destroyed a bomber, not through hostile action but under what is 
called threat reduction. We destroyed missiles. We took off the nuclear 
warheads. In the Ukraine, where there was once a missile with a nuclear 
warhead aimed at the United States of America, there is now no missile, 
no nuclear warhead, and sunflowers are now planted on that ground. Is 
that progress? Boy, I think so.
  This is ground up copper from a Russian submarine that I assume at 
one point or another was lingering off the east coast of the United 
States with missiles in its tubes armed with nuclear warheads. But we 
did not sink that submarine. This is copper wire ground up from a 
submarine that was taken apart under the Threat Reduction Program.
  Senator Lugar, who is a real champion of this issue, and former 
Senator Nunn were the first to start the funding by which we actually 
paid to destroy weapons of our adversaries with whom we had agreements 
on nuclear weapons reductions and the reduction of delivery systems.
  We sawed the wings off a bomber; a submarine, we simply took it apart 
and ground up the copper wire. Is that progress? I think it is. If we 
do not in this country assume world leadership in stopping the spread 
of nuclear weapons and reducing the stockpiles of nuclear weapons, our 
children and grandchildren will almost certainly see a future in which 
nuclear weapons are used.
  It is our job, our responsibility to be a world leader in this area. 
There are some who seem not to understand or care about that 
responsibility. We have some right now in this town talking about 
designing new nuclear weapons. Let's design a nuclear weapon, a 
designer nuclear weapon, that will be a cave buster. Hard to get into 
caves? Let's design a little new nuclear weapon to drop on a cave 
someplace.
  Apparently, after the al-Qaida situation in which they hold up in 
caves, we have some people thinking they can create designer nuclear 
weapons. Once that thinking starts, the thinking that you can use 
nuclear weapons in circumstances such as that, others will say: We can 
use nuclear weapons. Once the thinking starts that you can use 
preemptive strikes against countries because you are worried what they 
might do later, other countries will say: We can do preemptive strikes.
  I worry a lot about where we are headed with the multiple policies 
with respect to weapons programs. I think we ought to be strong. I have 
supported many weapons programs, but I also believe, with respect to 
nuclear weapons, we must lead the world. We must stop the spread of 
nuclear weapons. We must reduce the stockpile of nuclear weapons all 
around the world. It is our job. It is our responsibility. We are the 
world leader. We are the ones.


                           Economic Policies

  These are challenging, difficult, tricky times. Every one of us in 
this Chamber wants this President to succeed. We want our country to 
succeed. I do not want us to have foreign policy failures. I do not 
want us to have an economy that is in trouble. I want this President to 
succeed. I am a Democrat. He is a Republican. It is in my interest and 
our country's interest for him to do well. It is also in our interest, 
where we have differences of opinion, differences on policies, for us 
to bring out those differences and debate them aggressively.
  There is an old saying that when everyone in the room is thinking the 
same thing, no one is thinking very much. I know some do not like that. 
There are some who think if questions are raised these days, shame on 
you. But with the challenges we have in both domestic and foreign 
policy, we ought to have questions flying from every direction in every 
corner and every philosophy of this Chamber and then pick the best of 
those ideas and suggestions.
  There is a tendency for each side to want the other to lose these 
days, and so instead of getting the best of each, we get the worst of 
both, and that does not serve the interests of this country, whether it 
is foreign policy challenges, which I just discussed, or the challenges 
in economic policy which I am going to talk about for a moment. We 
really need to understand that there is not only one way to address 
these. On some occasions, there are wrongheaded ideas, things that will 
make things worse with the economy or with foreign policy. There are 
some good ideas, some brilliant ideas, some in the middle. Our job is 
to select from the range of alternatives and to work with this 
President.
  I will talk for a moment about the challenge with respect to the 
economy. I know there are others who want to speak. I started by 
talking about the Estrada nomination, but I do want to take a moment to 
talk about the foreign policy and the economic policies that I think 
are significant challenges as well.
  Yesterday, Mr. Greenspan came to the Congress and I think he poured a 
5-gallon pail of cold water on President Bush's fiscal policy 
proposals. I am thankful for that because the President is proposing, 
in the face of the largest budget deficits in history by far, more tax 
cuts, the bulk of which will help upper income taxpayers. I do not 
think that is what we need to do for the economy.
  As I said earlier, this economy is not going to grow if every day, in 
every way, the lead story is about war, as it has been every day and 
every week and every month for some long while. This economy does not 
grow when that happens. The price of oil increases. People are 
uncertain about the future, and they manifest that uncertainty by what 
they do. So we need to get through this.
  When we get through it, the question is: How is a jump start provided 
to this ship of state of ours? How is this economy provided a boost? 
The President says what we need to do is more tax cuts. He said what we 
ought to do is exempt dividends from taxation.
  That is interesting. Certainly, if one were discussing tax reform, if 
that were the subject, they would have that as part of their 
discussions, no question about that. Of course, that is not the subject 
at the moment. The subject at the moment is, should we do an economic 
stimulus package? So the President takes the opportunity to say let's 
exempt dividends.
  I am wondering why exempting taxation from dividend checks has a 
priority over exempting taxation from work, such as paychecks. Dividend 
checks should be exempt; paychecks should be taxable? Is that a value 
system that says let's tax work and exempt investment? If so, does that 
make sense? I do not know. I do not know how one chooses that approach.
  I will talk now about where we are and how we have gotten to this 
point. Mitch Daniels, who runs the fiscal policy program at the White 
House--he is at the Office of Management and Budget--has been the 
prognosticator of where we have been and what we have been doing.
  On March 2, 2001, which is not quite 2 years ago, he said:

       It has become clear that this new era of large surpluses is 
     more dangerous to the taxpayer than the preceding era of 
     large deficits.

  So Mr. Daniels was gnawing at his fingernails worried about these 
large surpluses: Woe are we; the surpluses are going to kill us. He 
said these big surpluses are a big problem. That was about 2 years ago.
  Then about a year and a half ago, he said:

       We're going to have an enormous surplus, $160 billion or 
     more.

  So he must have gotten his crystal ball at a Dollar Store, I guess, 
because in November--that is, about 15 months ago--he said:

       It is, regrettably, my conclusion that we are unlikely to 
     return to balance in Federal accounts before, possibly, 
     fiscal year 2005.


[[Page S2277]]


  What happened in that short period of time? Well, we ran into a 
recession. I stood at this desk when they were proposing their $1.7 
trillion tax cut and said: How can you be so certain? Maybe we will not 
have surpluses. Maybe we will run into some problems. Guess what we ran 
smack into. A recession, a September 11 terrorist attack, a war against 
terrorists, the largest corporate scandals in the history of this 
country, the tech bubble burst, the stock market pancake, and all of 
those surpluses that Mr. Daniels was worried about turned to big 
deficits.

  Did that change Mr. Daniels' mind about what we ought to do with the 
economy? Oh, no. He has only one speed in his transmission. In 
January--just a year ago--he said:

       We project effective balance in 2004.

  So he is still using that same crystal ball. A month later he says:

       Despite everything, the outlook is promising for balance in 
     the year after next and for a return to large surpluses 
     thereafter.

  That was 1 year ago. Still predicting, Mr. Daniels says:

       Despite simultaneous war, recession and emergency, we are 
     in a position to fund the requirements of victory, plus a 
     stimulus package, and still be near balance.

  That was 1 year ago.
  March 27--11 months ago: The U.S. budget is in an extremely good 
position, Daniels said, adding that:

       OMB expected the fiscal year 2002 budget deficit to be 
     about $50 billion.

  This is a guy who was excessively worried about having surpluses that 
were too large. I assume he was not sleeping; he was worried about 
large surpluses. A year later, he is saying it is only going to be a 
$50 billion deficit. That will be the smallest recession deficit in 
modern times.
  But then we come to February 2003, the same man, same crystal ball 
apparently, same prognosticator:

       Our projections, which incorporate extraordinarily 
     conservative revenue estimates, see deficits peaking this 
     year, heading back thereafter.

  Now let me show the chart of Mr. Daniels. In 2002, he predicted our 
surplus would be $283 billion. We did not have a surplus. We had a 
deficit of $159 billion. In 2003, he predicted we would have a surplus 
of $334 billion. We did not have a surplus. We had a deficit of $304 
billion. In 2004, he predicts a $387 billion surplus. He missed it by 
well over half a trillion dollars.
  I do not know what to make of this. This is the guy who is driving 
the stage, with apparently 8 or 10 runaway horses, and does not have 
the foggiest idea what is happening in this economy. He says we are 
going to have big surpluses--that is his biggest fear--turns them into 
the largest deficits in this country's history and says: Oh, by the 
way, I can solve that. Let's do more tax cuts, the bulk of which will 
go to upper income people, and let's decide to keep taxing work but we 
will start exempting investment--a value system that is curious to me. 
Why would work be taxed and investment be exempted? Is work less worthy 
than investment?
  Yesterday, we had 10 Nobel laureates in the field of economics, along 
with 400 economists, who put an ad in the New York Times, I believe it 
was--it could have been the Washington Post--saying that this proposed 
fiscal policy is going to lead to bigger deficits and bigger problems; 
it is going to saddle our children and their children with the burdens 
that we create, and it makes no sense at all. It certainly will not 
stimulate or jump start this economy.
  This country is a strong, resilient country. It will overcome bad 
policies from Democrats and Republicans, and it has had plenty in two 
centuries. It has also been benefited by good policies, by visionaries 
who had the strength and the endurance to stick to those good policies 
that they knew would allow this country to grow, that they knew would 
invest in working families, they knew would give investors and 
entrepreneurs an opportunity. This country is a great place, but it 
faces very serious challenges at the moment. Those challenges will not 
be resolved--domestic and foreign policy--by having our heads in the 
sand. Al-Qaida and terrorism is a very serious abiding threat in this 
country right now.

  The fact is, homeland security is not adequately funded and everybody 
knows it. But no one will admit it. North Korea is a bigger problem 
than Iraq and everyone understands and no one will admit it. Yes, Iraq 
is a problem, but it is not the only problem. It does not even lead the 
list with respect to North Korea and the issue of terrorism.
  Having said all that, against that backdrop of foreign policy 
challenges as aggressive and difficult as we have seen in some long 
time in this country, we have an economy that is sputtering and has 
lost strength. It will not gain strength by deciding to borrow more 
money and add to the Federal budget deficit and do it for the purpose 
of reducing the tax burden of those at the upper income levels.
  Upper income people are wonderful people who do a lot for this 
country. But should a proposal, when we are up to our neck in Federal 
debt--should a proposal that gives an $80,000 average tax cut to the 
American who earns $1 million a year be a priority in this country?
  Yesterday, I was at a hearing and I was told by the Secretary of the 
Interior: By the way, we will close, we will zero fund a school called 
the United Tribes Technical College. It is a wonderful school, 32 years 
in existence. Native Americans from across the country, some 40 States, 
go to school there. It gives them a chance in life. These schools are 
very important. Why are we going to defund it? Why doesn't the 
administration want to fund it? It is a matter of choices. I asked, 
What choices? Exempting dividends? Or funding an Indian school that 
does wonderful things for people who want to advance their education?
  These are the choices. Yet there are too many wrong choices being 
made.
  My hope is as we confront these economic challenges and foreign 
policy challenges, this country will succeed. We have survived a lot. 
This country has been through a lot. We have survived a Great 
Depression. We beat back the oppressive forces of fascism and Hitler. 
This country has achieved what no other country in the world has 
achieved. But it is not because it has made bad choices, it is because 
it made good choices.
  The question is, What are those good choices? They do not come from 
one location. They come from all corners of this Chamber, all corners 
of this country. They come from, yes, the executive branch, but they 
come from the legislative branch, as well. It does no service to our 
country to not have an aggressive, vigorous debate about these issues.
  Let me finish where I started. I don't particularly enjoy coming to 
the floor of the Senate saying we ought not vote at this point on Mr. 
Estrada. That is of Mr. Estrada's doing, not ours. That is of the White 
House's doing, not ours. When they ask us to give someone a lifetime 
appointment to the Federal bench, and then say to us we have no right 
to receive answers to basic questions asked--questions asked and 
answered by other candidates--we have no right to those answers, then 
we have a responsibility to say, well, advise and consent does not mean 
that we rubberstamp anything sent down to the Congress. It means it is 
an obligation of ours to evaluate. Is this person worthy of being on 
the Federal bench? How do they reason? How do they think? How do they 
approach this job?
  I mentioned when we asked questions, or my colleagues on the 
Judiciary Committee asked questions of Mr. Estrada, he said he would 
not answer them. Those same questions were asked of Mr. Hovland. He is 
now a district judge. He answered. Questions were asked of Freda 
Wolfson. She answered the questions. Ed Kinkeade answered the 
questions. Linda Rae Reade answered the questions. All are Federal 
judges now because they came to the Congress, not expecting and 
demanding to be approved, just presenting themselves as the President 
has done through nomination, to say, here I am; now, Members of the 
Senate, your job is to give advice and consent and to vote on this 
nomination. I am willing to answer questions. Here I am. Here is who I 
am. Ask me questions. I will answer them.
  Mr. Estrada's approach was different. He said: Here I am. But I will 
only tell you my name and you get a chance to look at me, but I will 
not answer your questions. We cannot allow that to

[[Page S2278]]

happen. If it happens on this nomination, it will happen on the next 
nomination.
  What we have said to Mr. Estrada is, answer the questions. We have 
submitted a list of things he refused to answer that others have 
routinely answered. We said: Release the information from your term 
working in the Solicitor's office. Others have done that. Mr. Estrada 
is not a judge so we do not have much of a record to go on regarding 
how he thinks and how he approaches his responsibilities.
  He should, and I hope he will, decide to meet the basic requirements 
of providing information to the Senate. When he does that, in my 
judgment, I think we ought to proceed. Until he does, in my judgment, 
we ought not proceed under any circumstance.
  Our job is to give advice and consent on a lifetime appointment. 
Anyone who treats that lightly does not understand the responsibility 
under article II of the Constitution.
  Let me finish by saying I take no pleasure in saying that Mr. Estrada 
has additional requirements in front of him. But it is he himself who 
has visited that upon this Senate. Had he answered the questions and 
provided the information, we would not be in this situation. But we are 
in this situation of requiring this nominee, before he is voted upon, 
to provide the basic information that we have requested in 
consideration of whether he ought to receive a lifetime appointment on 
the second highest court in this country. If and when he provides that 
information, I will be happy to vote and make a judgment on Miguel 
Estrada.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. Mr. President, I rise first of all in support of the 
Estrada nomination and to say a word or two about it. Mr. Estrada's 
qualifications are excellent. I reviewed them the other day and it 
struck me that the man is so smart it is almost scary: Harvard Law 
School, Phi Beta Kappa graduate, clerk of the court of appeals, clerked 
on the Supreme Court, argued numerous cases before the Supreme Court.
  I clerked on a court of appeals, and I mean no disrespect to the 
members of the Federal judiciary when I say I wish every Judge had Mr. 
Estrada's qualifications when he or she went on the bench. Mr. Estrada 
is competent, qualified, honest, and he deserves to be on the court of 
appeals.
  I regret the filibuster that is currently underway to prevent his 
confirmation. It is unfair to him. It is bad for the country. Worst of 
all, it introduces a note of discord into the Senate that makes me 
discouraged about our ability to do the other things we need to do for 
this country--to pull together behind a prescription drug plan, behind 
a jobs bill, behind a strong defense that will protect our men and 
women in uniform, protect our country, create jobs in Missouri and 
around the country. It will also inhibit our ability to accomplish what 
we need to do in health care for small business.


                          Heath Care Insurance

  I will take a few minutes and talk now about what could be the most 
significant measure that we could pass to expand the cause of access to 
health insurance for people who work for small businesses in this 
country.
  I chaired the Small Business Committee in the House for two terms, 
and from the time I did that, I made it my point to interact with small 
business people around the country and especially around Missouri. They 
have a number of problems they are confronting: Taxes are too high; in 
many cases they face regulations that do not make any sense, that 
inhibit them and hurt them and burden them and accomplish nothing in 
terms of environmental quality or worker safety or any of the social 
goals we want to achieve. Many small businesses have difficulty getting 
access to the capital they need to grow, to expand, to create jobs.
  Those are all problems. We need to work on all those problems. But 
the No. 1 problem facing small business in this country today is the 
rising cost of health insurance premiums. I have seen it all over the 
State of Missouri. I have been in places in Cape Girardeau, in 
Columbia, in Joplin, where small business owners report to me premium 
increases of 25 percent in 1 year or premiums doubling over 3 years. 
The effects of this are incalculable. Small business people cannot 
compete effectively for employees. They have to buy poor quality health 
insurance, and in some cases have to drop their health insurance 
altogether, or else the high premiums suck up money they want to put in 
wage increases or to expand the business. The high premiums are 
tremendously unfair to them, very bad for the country and, most 
importantly, very bad for the people who work for small businesses. Of 
the 41 million people in the United States who are uninsured today, 
almost two-thirds of them own a small business or work for a small 
business or are dependents of somebody who owns a small business. The 
impact on them is enormous.

  And think of the impact on the rest of the health care system. Just 
because these folks are uninsured doesn't mean they don't get sick. At 
a certain point, when they get sick enough they go to the emergency 
room or they go to the hospital. Since, those costs are currently 
unsponsored, they have to be shifted to the rest of the population or 
hospitals have to eat those costs. What a difference it would make to 
the people of this country and the small business sector and to the 
economy if we could introduce and pass a measure that would help cover 
folks who currently are uninsured. We can do that.
  I have talked about the bad news. The good news is that we have an 
idea that can fix this problem very substantially. It is an idea that 
passed in the House of Representatives two terms in a row. It is time 
tested. It is supported on a bipartisan basis in the House. It has the 
broad support of the small business community. It would not cost the 
taxpayers of this country a dime. I am talking about association health 
plans.
  Let me explain what association health plans are. The best way to 
think of them is that they would simply empower small businesspeople of 
whatever kind to get health insurance on the same terms that big 
companies already can. AHPs would reduce the cost of health insurance 
to small businesses by 10 percent to 20 percent. This is how they would 
work. We need to pass a law empowering or enabling the major trade 
associations, the Farm Bureau, the Chamber of Commerce, the NFIB, the 
medical associations, to sponsor ERISA health care plans, including 
self insured plans, the same way big companies can.
  Then, if you joined the trade association, the association would have 
to offer you coverage under the plans. They would have to offer it to 
you. They would have to carry you. So if you were a small business you 
could join the trade association and it would be as if you were 
becoming a little division of a big company. It would be as if your 
small business had been bought by a bigger company and all of a sudden 
you were part of a large national pool of people without having to pay 
the marketing costs or the profit margins of big insurance companies, 
and with much reduced administrative costs. One of the big reasons 
small businesses have to pay more for health insurance is that the 
administrative cost for small businesses is so much greater.
  As I said, this would not cost the taxpayers a dime. It is not a 
Government program. It just allows small businesses to pool together to 
help themselves and their employees. It is not a revolutionary change, 
but the impact would be revolutionary on people who work for small 
business who would have access to health insurance. The number of 
uninsured would be reduced by millions of people.

  We have gone years without really good news in the health care 
sector, and association health plans have the potential to be that good 
news. As I said, the bill has a history already, at least in the House. 
It was introduced first in the 104th Congress 6 or 7 years ago by my 
good friend, then-Congressman Harris Fawell. We passed it twice 2 years 
running in the House. It had strong bipartisan support. I think the 
bill when we introduced it originally in the House had 85 Republicans 
and 25 Democrats, including the ranking member of the Small Business 
Committee in the House. It has very strong support already in this 
body. I am pleased to say the chair of the Small Business Committee, 
Ms. Snowe, is a strong supporter. Senator Bond is a strong supporter.

[[Page S2279]]

  There is simply no reason why we cannot pass this bill. There is 
nothing in this bill that implicates any of the great philosophical 
divisions that separate the two parties on other kinds of issues. The 
bill is in the mainstream of both political parties. It would make a 
huge difference for America, for small business, and for the people who 
are uninsured, and we simply ought to get it done.
  That is the kind of thing I am looking forward to working on in the 
Senate. Let us have an up or down vote on the Estrada nomination and 
then move forward together.
  We have to be able to create jobs. We have to do something about the 
health care situation in this country. We have to attend to the 
national defense. We should confirm the President's qualified nominees 
such as Mr. Estrada and then move on and pass this necessary measure 
for small business and for the people of the country.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Collins). The senior Senator from 
Missouri.
  Mr. BOND. Madam President, it is a great pleasure today to be able to 
welcome my new colleague from Missouri to this body. I think he will 
find, since we are not limited to 1 minute on this side of the Capitol, 
that remarks are not nearly as concise as they would be in the other 
body. But certainly his experience there will be of great value.
  I have been proud and pleased to know Jim Talent and his wonderful 
family for many years in the State of Missouri. I knew him when he 
served as the Republican leader in the legislature. I worked with him 
closely when he was the chairman of the Small Business Committee in the 
House. There was a time when the State of Missouri had double duty in 
small business and it was a pleasure to work with him then.
  I also know his children and his wonderful wife, Brenda. They are a 
great family. They make a great team. This fall I got to see a lot of 
them. They give him the courage and the support he needs to do an 
excellent job.
  We also were very saddened that his father, who meant so much to him, 
did not live to see him achieve this victory in the end of the 
campaign. He lost his father and, while it was quite a blow to him, he 
persevered. It was a mark of the man that he came through these very 
difficult times.
  I know this body will benefit from Jim Talent's contributions. He has 
been a champion for association health plans, which I think are 
essential for enabling small businesses to participate in the 
competitive marketplace, to secure health insurance for employees and 
their families. Jim has championed this idea on the House side. I know 
it is a top priority of the President and the Secretary of Labor, and 
it is good to have him leading this charge in the Senate now, along 
with Chairman Snowe and the other members of the Small Business 
Committee and people who are supportive of small business in the 
Senate.
  Obviously, as has been said, the benefit of an AHP, or association 
health plan, is by allowing small businesses with similar interests 
across State lines, across the country, to come together in one pool; 
they can gain the efficiencies of purchasing in volume; They can gain 
the advantages of administering overhead, which can be spread across 
many businesses. For the same reason that you pay less for soda in cans 
if you buy it by the case, or multiple cases, than if you buy it one at 
a time, buying health care is much the same. No. 1, you get 
efficiencies of scale. You also have an opportunity to spread the 
risks. Those who have taken time to study health care know that the 
broader the pool, the broader the actuarial component is, the more 
reasonable the limits will be.
  I see my colleague from Massachusetts is ready to take the floor.
  Mr. TALENT. Will the Senator yield for just a moment? I certainly 
will not delay the Senator from Massachusetts. He has been very kind in 
allowing me to speak, but I wanted to thank the Senator for his kind 
remarks about me and many kindnesses to me, and especially coming out 
on the floor. I also want to say, because I see the senior Senator from 
Massachusetts and the Senator from Nevada and the Senator from Utah, 
how impressed I have been and how much I feel welcomed by the many 
senior Members of this body who took a moment to come over on their own 
and say hello to me. I am just grateful for that. It is a real mark of 
the congeniality of the Senate. I appreciate it.

  I thank my friend and colleague from Missouri for yielding.
  Mr. BOND. I thank my colleague. I appreciate the indulgence of the 
Members on the floor.
  I yield the floor.
  Mr. HATCH. Madam President, if I may ask my colleague from 
Massachusetts for a moment of privilege, I want to personally praise my 
colleague from Missouri for his maiden speech today and for the 
excellent job he has been doing ever since he began here. I just wish 
we had him on the Judiciary Committee as well because we know the great 
lawyer he is, and we also know about the terrific experiences he has 
had over in the House and also in private practice.
  I just want him to know how much we appreciate having him in the 
Senate and how proud I am of him every day.
  I thank my colleague from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I join with my colleagues in drawing 
attention to the remarks of our new colleague from Missouri speaking on 
the issue of health insurance, the uninsured and the challenges which 
are out there for the small business community. This is, as he has very 
well stated, an extraordinary problem for the reasons he has outlined.
  It is amazing to me that the small businesses in this country 
continue to try to provide coverage. As we know, in his State as well 
as mine, they are all paying about 30 percent more in terms of the 
premiums than larger companies, and in many instances they have a rapid 
turnover in terms of the companies that are available to them.
  This really is an extremely significant part of the whole crisis in 
terms of the uninsured. There are a number of different proposals to 
which we will have a chance to give focus. But I certainly welcome the 
fact that he selected as his maiden speech the whole issue and question 
about the uninsured and the challenges that businesses, and small 
businesses, face. We may have some difference in just how to deal with 
the issue, but I certainly look forward to working with him and others 
to see how we can make progress.
  I thank him for his statement and for the fact that he is focusing on 
an issue that is of such importance to our fellow citizens; that is, 
the question of the uninsured and how we are going to continue to 
provide insurance for small businesses.
  Madam President, one of our most important responsibilities as 
Senators is the confirmation of federal judges. These are lifetime 
appointments. Long after we have served our Senate terms, the judges 
nominated by the President will continue to interpret the Constitution 
and federal laws. A President's nominees are an enduring legacy that 
will affect the life of our country and the lives of our constituents 
for many years to come.

  The important work we do in Congress to improve health care, reform 
public schools, protect workers rights, and ensure enforcement of civil 
rights means less if we fail to fulfill our responsibility to provide 
the best possible advice and consent on judicial nominations. Tough 
environmental laws mean little to a community that can't enforce them 
in our federal courts. Civil rights laws are undercut if there are no 
remedies for disabled men and women. Fair labor laws are only words on 
paper if we confirm judges who ignore them.
  For all of these reasons, we must carefully review the qualifications 
of federal judges, particularly nominees to the DC Circuit. Because the 
supreme Court hears relatively few cases, the appellate courts are 
frequently the courts of last resort for millions of Americans. And, of 
those appellate courts, the DC Circuit is one of the most important. It 
has a unique and prominent role among the Federal courts, especially in 
interpreting administrative law, and it has exclusive jurisdiction over 
many laws affecting the workplace, the environment, civil rights, and 
consumer protection. For the most vulnerable among us, the DC circuit 
is often the final stop on the road to justice.

[[Page S2280]]

  Given its location and jurisdiction, the D.C. Circuit has often 
decided important cases involving separation of powers, the role of the 
federal government, the responsibilities of Federal officials, and the 
authority of Federal agencies. In the 1960s and 1970s, the DC Circuit 
had a significant role in broadening public access to agency and 
judicial proceedings, expanding civil rights guarantees, overseeing 
administrative agencies, protecting the public interest in 
communications regulation, and strengthening environmental protections.
  In the 1980s, however, the DC Circuit changed dramatically because of 
the appointment of conservative judges. As its composition changed, it 
became a move conservative and activist court--striking down civil 
rights and constitutional protections, encouraging deregulation, 
closing the doors of the courts to many citizens, favoring employers 
over workers, and undermining federal protection of the environment.
  In the 1960s and 1970s, the DC Circuit expanded public access to 
administrative proceedings and protected the interests of the public 
against big business. For example, the court enabled more plaintiffs to 
challenge agency decisions. It held that a religious group--as members 
of the listening public--could oppose the license renewal of a 
televisionstation accused of racial and religious discrimination. It 
held that an organization of welfare recipients was entitled to 
intervene in proceedings before a Federal agency. No longer would these 
agencies be able to ignore the interests of those they were supposed to 
protect.
  But in the 1980s, with the ascent of conservative appointees, the DC 
Circuit began denying access to the courts. It held that a labor union 
could not challenge the denial of benefits to its members--a decision 
later overturned by the Supreme Court. It held that environmental 
groups are not qualified to seek review of EPA Standards under the 
Clean Air Act. These decisions are characteristic of the DC Circuit's 
flip-flop in the 1980s. After decades of landmark decisions allowing 
effective implementation of important laws and principles, the DC 
Circuit is now creating precedents on labor rights, civil rights, and 
the environment that will set back these basic principles for years to 
come.
  In the 1970s and early 1980s, the DC Circuit advanced the cause of 
environmental protection. In this period, the court interpreted the 
Clean Air Act in ways consistent with Congress' intent. In Lead 
Industries Associations v. EPA, the court held that the EPA cannot 
consider economic costs to industry in setting air quality standards, 
because Congress had made health the paramount concern in setting these 
standards.
  Decisions in leaded gasoline cases also significantly advanced the 
effort to reduce air pollution and protect people--particularly 
children in cities, from the harmful effects of automobile exhaust. In 
addition, the court took strict action when it upheld the ban on the 
manufacturer and sale of the pesticides DDT, heptachlor and chlordane.
  But in the mid-1980s, conservative judges on the DC Circuit began 
cutting off access to the courts for environmentalists and injected an 
anti-environmental point of view into decision after decision, 
regardless of even Supreme Court precedents. In American Trucking 
Associations v. EPA in 1999, the DC Circuit issued a harsh decision 
denying the EPA the authority to establish health standards for smog 
and soot. That decision was unanimously reversed by the Supreme Court. 
In another notorious decision, Sweet Home Chapter of Communities for a 
great Oregon v. Babbitt, it struck down habitat protections for 
endangered species. This decision also was reversed by the Supreme 
Court.
  When Congress passed the National Labor Relations Act, it guaranteed 
workers the rights to join a union without discrimination or reprisal 
by employers, and to bargain with employers over the terms and 
conditions of employment. The National Labor Relations Board interprets 
and enforces the act and reviews appeals of decisions by administrative 
law judges. NLRB decisions are appealable to the circuit court, where 
the unfair labor practice is alleged to have occurred, or here the 
employer resides or transacts business, or in the DC Circuit. As a 
result, the DC Circuit is always available as a forum to challenge 
decisions of the board.
  In 1980, the DC Circuit fully enforced the board's decision 83 
percent of the time, and at least partly enforced the board's decision 
in all the other cases. By the year 2000, when the court had a 5-to-4 
Republican majority, including a solid majority of Reagan/Bush 
appointees, the DC Circuit enforced in full only 57 percent of NLRB 
cases and enforced at least part of the board's decisions just 70 
percent of the time. These enforcement statistics put the DC Circuit 
significantly below the national average of an 83.4 percent enforcement 
rate for the board in all the courts of appeals.
  Given these statistics, it is not surprising that the DC Circuit has 
become the circuit of choice for employers trying to overturn NLRB 
decisions. In 1980, the DC Circuit heard only 3 percent of the NLRB 
appeals heard by the circuit courts. The DC Circuit ranked next to last 
of all the circuits. Only the Tenth Circuit heard fewer cases.
  As the Reagan/Bush effect on the DC Circuit took hold, the court 
became increasingly attractive to industries, and the court;'s share of 
NLRB cases steadily rose. By the year 2000, the DC Circuit ranked first 
among all circuit courts in the percentage of NLRB cases herd by those 
courts. Almost one in five cases--18 percent--were filed in the DC 
Circuit, and employers brought by far the largest number of these 
cases.
  The DC Circuit's willingness to overturn National Labor Relations 
Board decision is deeply troubling because of the precedents being 
established. In Freund Baking Co. v. NLRB, it reversed the NLRB and set 
aside a union election because the court felt that a wage and hour 
lawsuit brought on behalf of several workers shortly before the 
election interfered with a fair election.
  In Macmillan Publishing. Co. v. NLRB, the board had overturned a 
union representation election, finding that a company prevented a fair 
election by distributing a leaflet telling employees to vote against 
the union or risk losing a previously announced wage increase. The DC 
Circuit reversed the board's action.
  The DC Circuit's hostility to the NLRB, to the detriment of workers 
and their unions, is also illustrated in other cases dominated by 
Reagan Bush appointees. In International Paper Co. v. NLRB, the court 
overturned the board's decision and held that the company's permanent 
subcontracting of employees' job during a lockout was an unfair labor 
practice. In Detroit Typographical Union v. NLRB, the court overturned 
the NLRB's determination that Detroit News and Free Press had committed 
an unfair labor practice when it unilaterally implemented a merit pay 
proposal immediately prior to the beginning of a 19-month strike by 
newspaper employees. In Pall Corp. v. NLRB, the court overturned the 
board's determination that it was an unfair labor practice for an 
employer to unilaterally revoke a contract provision on ways for the 
union to obtain recognition at other facilities.
  The DC Circuit also vacated a decision by the board to include 
handicapped workers at a Goodwill production facility in the same 
bargaining unit as other employees. The court held that the handicapped 
workers were not employees. And in C.C. Eastern v. NLRB and North 
American Van Lines v. NLRB, the court overturned the board's ruling 
that truck drivers are employees. Instead, the court held that the 
drivers are independent contractors unprotected by the National Labor 
Relations Act.
  Immediately after Congress passed the Occupational Safety and Health 
Act of 1970, the DC Circuit issued major decisions that protected 
workers from job-related hazards. The DC Circuit issued a landmark 
ruling in United Steelworkers of America v. Marshall, which upheld 
OSHA's standard on lead in the workplace. This case continues to be 
important, because it upheld basic principles and protections that the 
agency went on to use in many other workplace safety standards.
  The DC Circuit also held the OSHA Administrator to a high standard in 
implementing the law. In 1983, the court ordered OSHA to expedite 
rulemaking on ethylene oxide, a highly toxic substance used to 
sterilize medical equipment. In a subsequent case,

[[Page S2281]]

the court sent an ethylene oxide standard back to OSHA for failure to 
adopt a short-term exposure limit that would have made the standard 
more protective.
  In 1987, after unacceptable delay by OSHA, the court ordered the 
agency to issue a field sanitation standard requiring toilets and 
drinking water for farmworkers, to protect them from disease.
  Today however, employees no longer see the DC Circuit as a court in 
which to bring worker safety and health actions. Despite the court's 
earlier willingness to hold OSHA to its statutory mandate to protect 
workers, workers are turning elsewhere for relief, and big business is 
counting on the DC Circuit for assistance. It is no accident that the 
National Association of Manufacturers and other trade associations who 
filed a lawsuit to overturn OSHA's ergonomics standard chose the DC 
Circuit to bring their petitions for review.
  In decades past, the DC Circuit was in the forefront of upholding 
Federal protections for minorities and women. One of the most notable 
cases on racial discrimination was a 1969 decision upholding measures 
to end the overcrowding and segregation of schools in the District of 
Columbia. In another important decision, the court held that a written 
examination had a disparate impact on African Americans applying for 
positions in the police department. The court held that unless the test 
had sufficient relationship to job performance, it violated the 
Constitution.
  The DC Circuit also contributed important precedents for women 
seeking justice and equality. In Laffey v. Northwest Airlines, female 
flight attendants were assigned to the all-female ``stewardess'' 
classification, while men who performed essentially the same job were 
paid more and called ``pursers.'' The female flight attendants sued 
Northwest Airlines for sex discrimination. The district court held that 
Northeast Airlines had violated Federal law, and the DC Circuit upheld 
the argument that the Equal Pay Act extended to identical jobs, and 
held that it required equal pay for ``substantially equal'' jobs.
  This principle was emphasized in Thompson v. Sawyer, involving a 
claim of sex discrimination by employees of the Government Printing 
Office. The court held that jobs may be ``substantially equal,'' even 
it they involve work on different machines or equipment, as long as the 
skills, effort, responsibility and working conditions are the same.
  All of these decisions are advancing the cause of equal pay for women 
in the workplace, enormously important decisions. Because of these 
decisions, we see further compliance by other companies, knowing that 
this is the law and it has to be respected.
  In the late 1970s and mid 1980s, in the area of sexual harassment, 
the court held in a series of cases that sexual harassment in the 
workplace violates title VII even when there has been no loss of 
tangible job benefits. The court also held an employer can be held 
liable for sexual harassment by a supervisor, even if the employee is 
unaware of the supervisor's actions.
  These cases were all important steps on civil rights, enormously 
important to the kinds of conditions in the workplace, particularly for 
women on equal pay and also in terms of the issues on sexual 
harassment. This was major progress in decisions made by the DC 
Circuit.
  People say: Why are we so concerned about this particular nominee? I 
have been trying to review for the Senate, this afternoon, these 
various areas. Whether we are talking about the environment, whether we 
are talking about worker safety, whether we are talking about issues on 
women's rights--equal pay, freedom from harassment--all of these 
judgments and decisions that have been made by the DC Circuit have 
advanced the cause of greater protection and greater equality for the 
citizens in the workplace.
  These cases were all important steps on civil rights. But when more 
conservative judges were appointed, the tide began to change. In 1973, 
the DC Circuit had required the Federal Government to take steps to end 
segregation in educational institutions receiving Federal funds. But a 
decade later, by a 6-to-4 vote, the DC Circuit held in Adams v. 
Richardson that the plaintiffs could not obtain judicial review of the 
Federal Government's settlement with higher education institutions, 
despite the Government's abandonment of its own desegregation criteria.
  The workers and the firms affected by such decisions are well aware 
that the DC Court of Appeals is a powerful court. This fact is not lost 
on the current administration. For over two decades, Republican 
administrations have worked diligently to reshape this court and other 
courts. Current judicial nominees are clearly being chosen for their 
ideological beliefs.
  None of us should have any doubt that the Bush administration is 
intensely pursing this goal today.
  The President's nominees to the circuit courts are among the most 
conservative lawyers and judges in the country. This administration is 
doing all it can to reshape the Federal judiciary for a generation or 
more to come in its own conservative image. In doing so, the 
administration is undermining the enforcement of important 
environmental, labor, worker safety, immigration, and civil rights laws 
while advancing harsh new policies.
  If this administration has its way, we will soon be drilling in the 
Arctic National Wildlife Refuge, developing and exploiting wetlands and 
waterways protected by the Clean Water Act, and undermining policies 
that protect our environment.
  If this administration has its way, employees will have fewer labor 
and workplace protections. If this administration has its way, we will 
see the continued erosion of civil rights laws.
  It is obvious that Mr. Estrada has been nominated to a court that is 
overturning important precedents and moving farther and farther to the 
right--a court that disregards congressional intent and the letter and 
spirit of the law it has a duty to respect--courts like the current 
administration, more interested in serving big business than in serving 
justice.
  As I reviewed just briefly why this nominee is so important, we get 
asked why is this particular nominee so important? As I mentioned, it 
is the DC Circuit. It is making and has made these judgments time and 
time again in protecting individuals and the environment and protecting 
workers. We have seen a significant shift in recent times. What we are 
trying to find out is what the nominee's views are in the general areas 
I have mentioned in which this court has such important jurisdiction.
  We could get no answers on the issue of workers rights, no answers on 
the issue of civil rights, no answers on the issue of the environment, 
no answers on the issue of the broad sweep of different questions that 
come in terms of administrative agencies and the importance, what kind 
of precedence, what kind of latitude they give to administrative 
agencies. No, we are not entitled to those answers at all. Absolutely 
none. We just are denied any kind of opportunity to hear any response 
as to a court of this importance. We are entitled to hear the nominee, 
not for his specific outcomes of a particular case but to show an 
understanding and a grasp and an awareness of the importance of the 
laws and a sense of the type of commitment he has in terms of 
fundamental constitutional protections.
  I urge my colleagues to heed the warnings of the many Latino 
organizations and leaders who have raised concerns about Mr. Estrada's 
nomination. As 52 Latino labor leaders have written:

       America's working families look to the federal courts to 
     protect our rights at work, to stop unfair labor practices by 
     employers, and to ensure that employers respect laws 
     regarding fair pay and equal treatment on the job.
       Of all the federal courts, none--other than the U.S. 
     Supreme Court--is more important to working people than the 
     U.S. Court of Appeals for the District of Columbia Circuit. 
     It is in this court that the legal rights of working people 
     are won and lost. After a careful review of Mr. Estrada's 
     record, on behalf of the working families of America, we have 
     decided to oppose the nomination of Miguel Estrada.

  These concerns are shared by the United Steelworkers of America, the 
UAW, Community Rights Counsel, Defenders of Wildlife, Earth Justice, 
the Endangered Species Coalition, the Environmental Defense Fund, the 
Environmental Working Group, Friends of the Earth, the Sierra Club, the 
Wilderness Society, the Mexican American

[[Page S2282]]

Legal Defense Fund, the Puerto Rican Legal Defense Fund, the 
Congressional Hispanic Caucus, the Congressional Black Caucus, and many 
other organizations.
  Earlier today we had meetings with the leaders of the Hispanic 
Caucus. They reviewed with us how they have interviewed various 
nominees over recent years, how they were able to get some kind of a 
sense, and the degree of support they had given to many other nominees 
who they had a particular interest in, who had a Hispanic background, 
and how they interviewed this nominee.
  I will take some time tomorrow to review in some detail with the 
Senate their conclusions and their observations. They are the ones who 
speak for the Hispanic community. They are the ones who understand the 
hopes and dreams of so many of our Hispanic brothers and sisters. They 
are the ones who have, through life experience, a keen awareness and 
understanding about the importance of justice.
  But some of the statements they made this afternoon, which I found so 
compelling, were the fact that when the dust settles on the Presidency, 
whether it is one party or the other, when the final action is taken in 
the appropriations and the legislative branch, the one place the 
Hispanics have historically been able to look to and have a sense of 
confidence has been the American judicial system. They consider it 
sacrosanct in terms of the types of challenges they are facing daily in 
our society. They challenge us to preserve that kind of equality.
  They reviewed in careful detail, not just for us but for Americans, 
in the form of our meeting this afternoon with the press exactly why 
they are so strongly opposed to this nominee.
  I stand with these groups and the millions of Americans they 
represent and urge the Senate to reject the nomination.


                           Education Funding

  Mr. President, I see my friend and colleague from New Mexico. I would 
like to, if I may, proceed for about 3 or 4 more minutes on a different 
subject, but one I know he is very much interested in. I think it is 
important to bring to the attention of the Senate. That is the outcome 
of the omnibus 2003 budget in the area of education.
  We are going to have the final budget conference report in the next 
several hours, but there are a number of parts of it that effectively 
have been closed. It is important, since it affects the families in 
this country who are concerned about education, that we take a moment 
to review the positive outcome that has taken place in the omnibus 2003 
budget that marks a victory for parents and teachers and principals and 
schoolchildren across the Nation.
  When the omnibus 2003 spending bill is reported out of conference 
later tonight, it will include an education budget increase that is 
eight times President Bush's request. For the second time in 4 weeks 
the Congress will reject President Bush's inadequate education budget 
and insist on increased resources to carry out school reform. And for 
the second time in 4 weeks, Republicans and Democrats in Congress will 
reject the administration's ongoing drive to divert scarce public 
school funding to private school vouchers.
  I see the Senator from Maine who, with our friend and colleague from 
Connecticut, during the authorization spoke so eloquently about the 
importance of funding of title I. We made important progress in 
including approximately 500,000 more children who would be eligible for 
title I as the result of the omnibus bill.
  The final year budget which effectively will provide resources that 
will be available to the school systems this spring will provide 3.2 
billion in education over the previous year and 2.8 billion over 
President Bush's budget. Title I, the key school reform program, the No 
Child Left Behind, would be increased by $1.4 billion, helping half a 
million more needy children to be fully served. In my State of 
Massachusetts, 46,000 more children will be served. IDEA will increase 
by $1.4 billion, putting us a step closer toward fully funding the 
program as promised. My own State of Massachusetts will see a $32 
million increase in special education funding.
  Support for improved teaching quality and reducing class size will 
increase by $100 million--not nearly enough, but we are going in the 
right direction. We will improve the quality of 24,000 more teachers 
across the country. Programs that help English language learners master 
English will increase by $25 million and will help 37,000 more children 
learn English.
  We have made strong steps toward meeting the promises of full funding 
outlined in No Child Left Behind and NIDA. But it is not enough. 
Teachers and students need more support. Teacher shortages are getting 
worse, class sizes are increasing, State deficits are skyrocketing. So 
we have a good deal of work to do. But as a result of the decisions 
that have been made recently in the Senate and in the conference 
report, there is some good news on the way.
  I thank my friend and colleague from New Mexico for permitting me to 
finish.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Madam President, let me first thank my colleague from 
Massachusetts for his eloquent statement on the Estrada nomination and 
also his other statement about the level of funding for education 
contained in the omnibus appropriations bill. I know how hard he has 
worked on that issue for many years. I commend him for the progress 
that has been made, and I agree with him that much more progress needs 
to be made.
  I want to say a few words about the Estrada nomination and also talk 
about another aspect of the President's proposed budget to us, with 
which I have found serious concern.
  First, on the Estrada nomination for the DC Court of Appeals, Miguel 
Estrada has been nominated for that position, and, frankly, the concern 
I bring to this issue is that many of my good friends and people whom I 
respect in the House of Representatives, in the Hispanic Caucus, have 
indicated that they oppose his nomination. When I said many, I should 
have said all. They had quite a discussion and quite a period of 
investigation of this nomination, and they concluded unanimously that 
the Hispanic Caucus of the House of Representatives would oppose the 
nomination. I have been contacted by several members of that caucus and 
urged to resist the nomination in the Senate. As I say, I have not 
taken the time to look into it in detail myself, but I have great 
respect for these gentlemen and women who have worked hard on this 
issue, and their strong opposition is of concern to me.
  I am also concerned that not a single Democratic member of the Senate 
Judiciary Committee determined to support the nominee after hearing the 
nominee's answers to questions before the committee. I share my 
colleagues' concerns as expressed by many of those members on the 
Judiciary Committee that we simply do not have enough information about 
this nominee at this time to cast an informed vote. During his 
confirmation hearing, he was not willing to answer many basic questions 
that were propounded to him. He was evasive when asked about his 
judicial philosophy. He refused to provide samples of his work from the 
time he served in the Solicitor General's Office. There have been 
requests for information made that, in my view, have been reasonable.

  As I understand it, the chairman and ranking Democrat on the 
Judiciary Committee and Senator Daschle are continuing to request 
additional information before any vote is cast on that nomination.
  Some have attempted to turn this debate into a debate about the 
nominee's ethnicity. I don't believe that is the issue. I have 
supported many Hispanic candidates. In my State, I had the great honor 
to recommend to President Clinton, our previous President, and he in 
fact appointed a Hispanic nominee to our Federal court in New Mexico. 
But that support was based on having a full record regarding the 
candidate's qualifications in each case. We do not have a full record 
as to this nominee at this point. I hope when we attain it, then we can 
move forward with the vote at sometime in the future.


                    The President's Pension Proposal

  Madam President, I want to talk for a few minutes about a set of 
proposals the administration has made related to pension coverage that 
I think are of serious concern. You might say, where does that fit into 
the other major issues being discussed here? As I see it,

[[Page S2283]]

the President has presented his new budget to the Congress, and part of 
that budget involves reductions in revenue. Now, the portion of those 
reductions in revenue that has been focused on most is the stimulus 
package, the recommended elimination of the tax on dividends from 
stock, the recommendations to accelerate the anticipated changes in the 
income tax rates; all of that has been what people have focused on.
  There are other parts of what the President has proposed to us which 
are also deeply troubling. I think it is time we begin to focus on 
those. The President has made some recommendations that I think carry 
with them some great danger.
  Let me address the first chart called ``Passed and Proposed Tax 
Cuts.'' This chart makes the obvious point that, in 2001, Congress 
passed a major tax cut bill which, over a 10-year period, was estimated 
to reduce revenue to the Government by $1.35 trillion. That is a very 
large tax cut. At the time, there was great fanfare by those who 
supported it that this was the largest tax cut in our Nation's history. 
It reduced individual tax rates; it repealed, essentially, a temporary 
estate tax, increased contribution limits to retirement plans.
  Two weeks ago, Congress received the President's proposed budget for 
this year. That budget says we should add to the $1.35 trillion and the 
2002 stimulus bill a new tax cut, a new series of tax cuts that add up 
to $1.46 trillion. People say that is not the right figure. The figure 
discussed here is 670-some-odd billion dollars; that is what it is 
going to cost, not $1.46 trillion. But I refer you to the budget 
documents that were presented to the Congress. We had a hearing in the 
Finance Committee the other day with our new Secretary of the Treasury. 
I asked him about this. He said: I am not sure that is the right 
number. We read it back to him out of his own budget documents. That is 
the right number. It includes the stimulus package, but it also 
includes the CARE Act, MSA expansion and permanency, and the proposal 
related to pensions.

  Let me talk about the pension-related provisions for a few minutes. 
In my view, these pension-related provisions that the President is now 
urging on the Congress could have a devastating effect on retirements 
and the ability of workers to save for their retirement. These 
proposals mark a dangerous and irresponsible shift away from existing 
policies that are intended to encourage retirement saving by all of our 
workers in employer-provided plans.
  The proposal the President has made is to deemphasize employer-
provided plans and essentially take away the incentives for 
continuation of those plans and, instead, shift to a system where 
everyone is left to fend for himself or herself. In my view, this would 
benefit only those in our society who need help the least. The 
President's proposal is based on the creation of two new super-IRAs: 
There is the RSA, Retirement Savings Account, and the LSA. Each of 
these would allow individuals to set aside $15,000 a year in the two 
together for favorable tax treatments. Those with additional resources 
would be able to set aside an additional $75,000 a year for other 
family members who could set up their own LSA; so if you had two or 
three children, or a spouse, you could certainly do it for them as 
well. While some would benefit from this type of arrangement, the vast 
majority of Americans would be unable to find the resources to save on 
their own.
  The creation of these new accounts negates the tax advantages 
currently available only for employer-provided plans. The likely result 
is that without these current tax advantages, employers will simply 
stop offering their plans. It will no longer be economical, and it will 
no longer be the most efficient way to meet their own retirement needs.
  About 80 years ago, Congress began to offer employers preferential 
tax treatment if they would help their employees to pay into pension 
plans. Then, as now, the Congress appreciated the need to get the 
employer involved in the employee's retirement savings. In doing so, we 
created a series of nondiscrimination rules to guarantee that employers 
provide benefits to all employees, not just those who are the top level 
employees.
  We have seen many examples in recent months, beginning with the Enron 
scandal and then in the case of WorldCom, and many others, where top 
individuals in corporate structures have benefited extremely well, 
while the average worker has been left unassisted.
  We have put in place in the tax law a requirement that there not be 
discrimination in pension coverage. We also created a series of tax 
incentives that encouraged employees to set aside their own funds in 
these same accounts. The combination of incentives for employers and 
incentives for employees have always been premised on the employer 
offering the employees a plan in which that employee could save.
  Over the years, we have made significant changes and adaptations to 
the system. The primary goal has been to encourage employer-provided 
plans and to encourage employers to assist employees in this very 
important financial goal that employees need to have.
  The President's current proposal, in my view, dramatically ends this 
policy, ends this effort to encourage employers to help employees save 
for their retirement. At a time when we are facing huge funding 
deficits in Social Security, it seems to me reckless to be considering 
removing the underpinnings and the stability of our current private 
retirement system.
  Our current private retirement system has many defects, and I would 
be the first to point those out, and I have pointed them out many 
times. But to take away what we currently have in the way of a private 
retirement system and the incentives that underpin that system at this 
time I think would be very wrongheaded.
  There is a rational basis for encouraging employer-provided plans. 
Let me show this chart which gives some statistics. This is a 
Department of Labor chart. It shows that for all workers for 1999, the 
coverage for all private sector workers was 44 percent. That is, 44 
percent of private sector workers in the country had some kind of 
pension plan. In those firms where the employer sponsored a plan, it 
was substantially higher. It was 58 percent. The participation when the 
employer sponsored a plan was 75 percent for all workers.
  The point of this is clearly that employee participation increases 
when employers are sponsoring a plan. We have the very same thing as 
Federal workers. The Federal Government says that if we wish to put 
away funds for retirement, the Federal Government, through the Thrift 
Savings Plan, will match the contribution that Federal workers make up 
to a certain percentage. I think it is 5 percent, in that range.
  This is very similar to the kind of employee plan that many have--a 
matching plan. Some employers say they will match dollar for dollar; 
some say they will match 50 cents for each dollar the employee puts in. 
The main point is, workers will take advantage of employer retirement 
plans when those plans are offered.

  This chart demonstrates one other point, and that is, when you get 
down to minority representation, the percentage of minority workers who 
are covered by pension plans is substantially less than the percentage 
in the population as a whole, and there is only 27 percent in the case 
of Hispanic workers, but it goes up dramatically where the employer is 
sponsoring the plan. It goes from 27 percent to 68 percent. So employer 
sponsoring of plans is a very substantial factor in causing people to 
save for their retirement.
  The administration, in my view, should be focusing on ways to 
encourage more employers, particularly small businesses--in my State, 
most employers are small businesses--to offer their employees plans. We 
should not be giving employers reasons not to offer those plans or to 
discontinue plans they have historically offered.
  Last year, Edward N. Wolf of the Economic Policy Institute presented 
a report entitled ``Retirement Insecurity: The Income Shortfalls 
Awaiting the Soon to Retire.'' That report demonstrated the shift away 
from defined benefit plans to defined contribution plans over the last 
30 years, and we have seen that shift. It demonstrated that shift has 
not, in fact, improved our Nation's coverage rate, as it was advertised 
to do. Instead, it has reduced the overall retirement wealth for

[[Page S2284]]

the bulk of the workers in this country.
  The primary reason the companies have shifted to these defined 
contribution plans--and defined contribution plan, of course, is 
nothing except a plan which specifies how much will be put in rather 
than specifying how much a benefit the retiree will finally receive as 
a result of a plan--but the primary reason companies shifted to these 
defined contribution plans is that under these plans, the employees 
make the majority of the contributions. The employee is the one who 
bears the risk about what happens to the funds invested in that plan. 
This reduces the employer's cost. It makes it far more attractive to 
the employer than a traditional pension plan.
  The President's proposal takes it one step further, and it shifts us 
one step further away from employer participation in retirement 
savings. In many cases, the small business employer would be able to 
save more themselves with the new IRA, so they could put away $7,500, 
they could put away $7,500 for their wife, and they would be able to 
provide certain higher income employees with matches, for the 
employees' savings as well, without running afoul of any current 
discrimination rules.
  Since IRAs are not covered by discrimination rules or by ERISA, the 
employer could pick and choose which employees they want to provide 
matches to; they could provide those matches in the form of bonuses, or 
whatever. That is not allowed under current rules and, in my view, 
should not be allowed. If an employer wanted, they could even 
contribute to family members, to shareholders, or to other nonworkers 
and avoid making contributions to the average worker working for that 
company.
  I think, for good reason, Congress has always opposed the creation of 
this kind of mechanism which would open the possibility for 
discriminatory treatment among workers. The President's proposal, in my 
view, opens the floodgate to a whole range of new abuses of this kind.
  At the same time, coverage rates have remained flat and as employers 
have shifted toward defined contribution plans, the retirement income 
of retirees, and those near retirement, have decreased as compared to 
their current incomes. This is not new information to a great many 
older Americans.
  In 1989, roughly 30 percent of households were projected as living on 
less than half of their preretirement income. If we look a decade 
later, by 1998 this number had increased to 42 \1/2\ percent. For 
African Americans and Hispanics, the numbers are significantly worse. 
In 1989, there was 43 \1/2\ percent who lived on less than half of 
their preretirement income. By 1998, that had grown to over 50 
percent--53 percent.
  The Wolf report demonstrates that only those with retirement wealth 
in excess of a million dollars saw their retirement wealth increase in 
1999. This chart shows every other class of retiree. It starts with 
those with incomes of less than $25,000; $25,000 to $50,000; $50,000 to 
$100,000; $100,000 to $250,000; $250,000 to $500,000; $500,000 to 
$999,999; and then over a million.
  Between the period of 1983 and 1998, the changes in retirement wealth 
have been negative. There has been a reduction in retirement wealth for 
every single group in our society with the exception of those who 
earned over a million dollars a year. That is the unfortunate reality 
we face in this country.
  The President's proposal would speed up this wealth gap immeasurably 
by forcing workers to solely fund their own retirement savings. For 
example, under the President's proposal, a wealthy executive would be 
able to save almost $50,000 a year with tax preferences for a family of 
four, and meanwhile workers living paycheck to paycheck would likely be 
unable to set aside any significant amount for retirement.
  Clearly, what will be good for the top floor will not be good at the 
shop floor level. This is not the first time Congress has looked at 
IRAs. In 1986, as part of the major tax reform we did then, we created 
what we call the active participation rules that are still in place 
today. These rules limit those who can participate in an IRA based on 
income. The reasons for the rules are simple: Data clearly indicated 
the only people taking advantage of IRAs at that time were upper income 
people who also had employer-provided plans.
  Congress realized then, as we still appreciate now, that IRAs are not 
utilized by lower income workers. The President is proposing to 
essentially replace the current retirement system with IRAs, and 
thereby ensuring lower paid workers are not saving for retirement.
  According to the 1999 IRS statistics, that means less than 5 percent 
of income earners who made less than $50,000 a year were, in fact, 
putting funds into an IRA. That means 95 percent of those earning 
$50,000 or less did not put a single dollar into an IRA. The majority 
of working families clearly do not need or benefit from expanding IRAs 
as the President would have us do.
  A shift toward this type of savings away from employer-provided plans 
will not help the majority of our workers.
  This final chart indicates, using Department of Treasury data from 
1999, it is clear we still have a great distance to go. Based on the 
data reflected on this chart, the lowest 40 percent of income earners 
receive roughly 2 percent of the tax benefits currently provided under 
our Tax Code.
  That is the lowest 20 percent, and the second 20 percent, added 
together, get about 2 percent. The lowest 60 percent receive a little 
less than 12 percent of those benefits. At the same time, the top 10 
percent receive 43 percent of the benefits and the top 1 percent get 
approximately 10 percent of those benefits.
  The President's proposal, as I understand it, would significantly 
shift the Government-provided tax benefits to the upper income 
categories, as only those with disposable income would be able to 
participate. Unfortunately, this proposal we have been given makes it 
more cost effective and less administratively burdensome for employees 
to fund their own retirement outside of the qualified plan. So the 
result is most workers will find themselves without an employer-
provided plan that provides salary deferrals and oftentimes significant 
employer contributions. Instead, most workers will have to put aside 
their own funds each paycheck, either without a tax benefit or the 
receipt of a tax benefit that does not come until the end of the tax 
year.
  Sadly, for many American families, there are not enough resources 
available for them to pay all of their expenses and still do what the 
President has in mind.
  I do not know what all of the motivations were behind this proposal. 
Before we move ahead, I very much hope we can look at it in great depth 
during hearings in the Finance Committee. As far as I can tell, it is 
designed to provide tax incentives for additional savings by those who 
need them the least, and it certainly would have the effect of 
undercutting the employer-sponsored retirement system we have long 
tried to strengthen.
  As I indicated earlier, I am one of the first to admit the current 
employer-sponsored retirement system we have is not adequate and needs 
to be strengthened, but eliminating the private retirement system we 
have and undermining the incentives for employers to maintain that 
system is not the solution to the problem.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Utah.
  Mr. HATCH. Mr. President, it seems to me if the Democrats are going 
to filibuster, they ought to give some reasons for their filibuster. 
They have said they are going to filibuster, for the first time in the 
history of this country, a Federal circuit court nominee, and the first 
Hispanic nominated to the Circuit Court of Appeals for the District of 
Columbia.
  Where are they? We have had all kinds of talks on foreign policy, on 
running down the President's financial plans, running down his foreign 
policy. I heard one Senator today talk about the real problem is North 
Korea. Of course, it is a real problem. So is Iraq. So is Osama bin 
Laden.
  These are the people who watched me in the middle of the 1990s be the 
first one to tell President Clinton he better get on Osama bin Laden 
because he is going to kill Americans. I actually was the first to 
bring that forth.
  I have been on the Senate Select Committee on Intelligence twice. 
They

[[Page S2285]]

did nothing, and now they are moaning and groaning because we have 
inherited a problem that has existed for a long time. Because nothing 
was done? Now they are saying, well, we should be concerned about North 
Korea. Yes, we should be. We should be concerned about everything.
  It does not take many brains to realize a lot of the finances that 
come for the terrorist movement throughout the Middle East and 
throughout the world come from Iraq. They have supported virtually 
everybody. The Egyptian Islamic Jihad, that is where Al-Zawahri comes 
from. He is No. 2 to Osama bin Laden. That is where they have gotten a 
lot of their money. They support the Palestinian Islamic Jihad. They 
support virtually every Islamic terrorist group around. Now we are 
supposed to just stand back because some of the Democrats think we 
ought to concentrate our efforts on North Korea. Of course, we are 
concentrating our efforts there. The President is doing everything he 
should do. It is not quite the same. Those people are hemmed in by 
China, who they have to have just for food, and it is not in China's 
best interest to allow North Korea to have this kind of power and be 
able to irresponsibly use it. Nor is it in the interest of anybody in 
the Asian community, and it is certainly not in our interest. We have 
top people working on that and controlling it.
  It is hard to control wild men, and we have to really look hard to 
find one worse than Saddam Hussein. Saddam Hussein has used weapons of 
mass destruction against his own people. Imagine what he would do to us 
if he could.
  My colleagues on the other side know as much as I know about it, or 
at least they should, and that is before the first session of 
inspections, Saddam Hussein came that close to having a nuclear 
device. You think he is not trying to do that now, and in his country, 
the size of California, do you think it is hard for him to secrete his 
weapons of mass destruction? He can hide those in a million different 
ways. This is a joke.

  We have to fight terrorism. We have to fight these types of people on 
all sides. And we are. This administration is doing everything it can, 
and it really needs to have a little less bellyaching and a little less 
criticism, a little less partisanship than what we are getting 
sometimes around here.
  I heard other Senators get on this floor and say this court--to go 
back to Miguel Estrada--the first Hispanic nominated to the circuit 
court of appeals in this country who is being filibustered by people 
who, throughout the years, have said we would never filibuster when 
they had the Presidency, we would never use that type of a tactic. Here 
they are, using it. It is hypocritical. It is wrong. It is unfair. It 
is establishing a precedent that could hurt this country immeasurably. 
We could only have the least common denominator on the Federal courts 
if some on the other side got their way. To do it against the first 
Hispanic nominated to the Circuit Court of Appeals for the District of 
Columbia is particularly reprehensible, especially since he has every 
qualification a person needs to fulfill this responsibility.
  The White House and the general counsel's office have been working 
overtime day and night to answer all the questions these people have 
asked over and over that are ridiculous in nature. They have made 
Miguel Estrada available for any Democrat who wants to talk to him. The 
Democrats conducted the hearing. It was all day, which is extraordinary 
in and of itself. They controlled every aspect of that hearing. They 
asked the questions that they wanted to ask. He did not answer some of 
them the way they would have preferred. Then they could have defeated 
him for sure. That is not his job to try to please the Democrats or me 
or anybody else. His job is to tell the truth, which is what he did. 
And he had an obligation to tell the truth without saying how he would 
vote on any given issue, or otherwise he would have to recuse himself 
after he gets on the bench and be less effective.
  Some of the arguments we have had around here are ridiculous. The 
very people who are griping about getting these confidential privileged 
memoranda down at the Solicitor General's Office ignore the fact that 
of the seven former current living Solicitors General, four of them are 
Democrats in the Solicitor's Office. Three reviewed Miguel Estrada's 
memoranda.
  How far do we go with these ridiculous arguments, these unfair 
arguments, these discriminatory and prejudicial arguments, against a 
person who has every qualification to be on this court? There is only 
one reason they are fighting like this. They think Republicans are 
going to back down. Or that the President will back down. He will not 
back down.
  I don't think most Democrats feel the way some of the radicals over 
there do. There are some people with reasonable minds over there. I 
think most of them. I respect everyone on the other side, but I have to 
tell you, some of them are listening to the most radical people on 
their side in bringing this filibuster and going against one of the 
best nominees in history.
  I have been on the Judiciary Committee almost 30 years, 27 years now. 
There are very few who you would rate at the level with Miguel Estrada. 
Every Hispanic in this country ought to be proud of it. I am calling on 
every Hispanic in the country, whether Democrat, Independent, 
Republican, whether you are liberal, moderate or conservative, you 
better start calling the Democrats and let them know this is not fair, 
this is not right. It is abysmal. Some would say abominable. I think I 
would be one of those.

  I have seen some unfair things here from time to time, and this is a 
tough body, there is no question. Sometimes we do some dumb things, but 
I have never seen anything more unfair than what is happening here. 
With Senators hiding behind this, I think, phony request for documents 
they know they should not have a right to have and then try to 
represent on the floor that the few cases where somebody leaked 
documents to them, that were not recommendations for appeals, 
recommendations for amicus curiae briefs, recommendations for 
certiorari, none of them were, but some were leaked from the Solicitor 
General's Office by partisan Democrats and they have some of these.
  They have not seen fit to let us have copies of them, other than what 
they are putting in the Record. We have asked for them, but they did 
not have time to give them to us. The one case they can show where the 
Department really did give some documentation was in the case of Robert 
Bork. The Department produced some documents concerning Bork's firing 
of Archibald Cox. It was a specialty situation. But they were not 
documents of recommendations of employees in the Solicitor General's 
Office concerning appeals, concerning certiorari appeals, and 
concerning amicus curiae briefs.
  This is one of the phoniest excuses I have ever heard. Keep in mind, 
four of their former Solicitors General, Democrat Solicitors General, 
are on Miguel Estrada's side. And three of them reviewed every one of 
those documents. That is not good enough for them? They know the 
administration cannot give in to these requests because if they did, 
every time anybody is nominated from any part of the Justice Department 
they would have to get confidential memoranda.
  The executive branch does have some rights. I know that some on the 
other side do not believe that, but they do. They have some rights to 
have their confidential documents remain confidential so they can get 
the best advice they possibly can to represent this country, as the 
executive branch should. This is one of the worst arguments I have ever 
heard on the floor of the Senate. And it is all done for political 
purposes because they believe that this Hispanic man, a Republican--
which is very tough for them to take, who they believe to be 
conservative--he is certainly probably moderate to conservative--I just 
know he is qualified. Everything about him says he is qualified. All of 
his experience tells me he is qualified. The fact he led the class at 
Harvard Law School says he is qualified. The fact he was one of the 
leaders of the class at Columbia University says he is qualified. The 
fact that he served Amalya Kearse, a Carter appointee, and she praised 
him says he is qualified. The fact he served for a Justice of the U.S. 
Supreme Court, Anthony Kennedy, says he is qualified.
  But now the administration, in response to these ridiculous claims 
and these ridiculous statements made on the floor of the Senate, has 
now sent a

[[Page S2286]]

15-page, single-spaced letter that basically covers every one of these 
stupid claims that have been raised.
  I guess maybe I should not say that. Anyone can raise any claim, 
whether it is stupid or otherwise, on the floor, and every Senator can 
ask even the dumbest questions of nominees if they want. That does not 
mean nominees have to answer them. It does not mean they have to answer 
them the way they want to--the dumb questioners, that is. We have all 
done that from time to time, and we all fit into that category, maybe, 
from time to time, but not consistently.
  There is nothing more than prejudice going on here; nothing more than 
unfairness going on here; nothing more than a double standard going on 
here; nothing more than trying to trip up the President of the United 
States and make his life even more miserable than it is every day with 
North Korea, with Iraq, with all the other problems we have in this 
world, including France, Germany, and Belgium, which are acting 
disgracefully and deserve the condemnation of the world for their 
continuous disgraceful disruptions of the unity of our NATO allies and 
for their refusal to back Turkey, our ally who has stood up when others 
have not stood up. We don't need them. We will back Turkey, and we 
should back Turkey.

  What gets me is we are in the middle of a filibuster of a Federal 
judge, when the Constitution says we should give advice and consent, 
not advice and obstruction, not advice and a filibuster, not advice and 
unfairness.
  I have to admit there were some on our side who treated President 
Clinton in a shabby fashion. Not very many, but there were a few. I 
remember as a young Senator I criticized President Carter pretty 
strongly one day. Later, I was on a 3-hour television show with him, 
sitting right beside him. We had plenty of time to discuss and talk, 
and I apologized. I said I really feel badly; I felt I didn't treat you 
fairly. He leaned over and smiled and said, Orrin, I never knew you did 
it. He said, you were so fair in so many other ways, I didn't notice 
any unfairness. That is typical of what a fine, gracious man he is.
  Bill Clinton has plenty of faults, we all know that, like all the 
rest of us. Maybe not like all the rest of us, but we all have faults, 
we will put it that way. And sometimes he wasn't treated as fairly as 
he should have been, but I sure tried to do so. I certainly did with 
regard to his judicial nominees. I will tell you one thing, we never, 
ever filibustered a Clinton nominee, not once. There were some cloture 
votes, but it wasn't part of a filibuster; it was more to move the 
Senate along. And nobody can claim anybody on our side actually 
filibustered a Federal judge, which is a disgraceful thing to do.
  I have to say I care a great deal for all of my colleagues in this 
body. These are 100 of the greatest people on Earth. I care for my 
colleagues on the Democratic side. But where are they? Why aren't they 
telling us why? Why don't they give us a reason that is a good reason 
for being against Miguel Estrada, with all of the qualifications he 
has? Why couldn't they treat us the way they wanted us to treat their 
circuit court nominees, which I made sure we treated right. Why can't 
they be decent to this Hispanic nominee, the first ever nominated to 
the Circuit Court of Appeals for the District of Columbia, one of the 
most important courts? Why is it that Senators from the Democrat side 
get on the floor and act as if, because a person is conservative, that 
person is not going to do what is right under the law; that person is 
not going to make sure the law is fulfilled; that person is not going 
to make sure the principle of stare decisis or prior precedent is 
followed? Miguel Estrada says he will, and he's an honest man. He will.
  Why is it they think only liberal ideas are any good? I kind of 
admire people who think only their point of view is correct and 
everybody else is wrong. But I have to tell you, some of the greatest 
judges in our country's history are conservatives. Some of the greatest 
judges are liberals. And some of the worst are liberals--and 
conservatives. Miguel Estrada would make one of the best, and he is the 
American dream personified. He would open the doors for many Hispanic 
people, not just in the Federal judiciary but in so many other ways 
throughout this society because he will set an example that will be 
exemplary for all of us to observe. He should have a chance to sit on 
this court and should not have to go through this type of unfair 
treatment.
  No nominee to the Federal court should have to go through a 
filibuster. But, if the Democrats are going to filibuster, why don't 
they get over here and filibuster? Why don't they tell us the reasons 
why? If you look at their reasons, there is not a bit of substance to 
any of them.
  I ask unanimous consent the most recent letter of the White House, 
this 15-page single-space typewritten letter I think answers every 
Democrat concern, be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              The White House,

                                    Washington, February 12, 2003.
       Dear Senator Daschle and Senator Leahy: On behalf of 
     President Bush, I write in response to your letter to the 
     President dated February 11, 2003. In the letter, you renew 
     your previous request for confidential Department of Justice 
     memoranda in which Mr. Estrada provided appeal, certiorari, 
     and amicus recommendations while he was a career attorney in 
     the Office of Solicitor General for four years in the Clinton 
     Administration and one year in the George H.W. Bush 
     Administration. You also request that Mr. Estrada answer 
     certain questions beyond the extensive questions that he 
     already answered appropriately and forthrightly during his 
     Committee hearing and in follow-up written responses.
       We respect the Senate's constitutional role in the 
     confirmation process, and we agree that the Senate must make 
     an informed judgment consistent with its traditional role and 
     practices. However, your requests have no persuasive support 
     in the history and precedent of judicial appointments. 
     Indeed, the relevant history and precedent convincingly 
     demonstrate that a new and shifting standard is being applied 
     to Miguel Estrada.
       First, as the Department of Justice explained in its 
     letters of June 5, 2002, October 8, 2002, and January 23, 
     2003, all living former Solicitors General (four Democrats 
     and three Republicans) have strongly opposed your request for 
     Solicitor General memoranda and stated that it would 
     sacrifice and compromise the ability of the Justice 
     Department to effectively represent the United States in 
     court. Even more telling, we are informed that the Senate has 
     not requested memos such as these for any of the 67 appeals 
     court nominees since 1977 who had previously worked in the 
     Justice Department (including the seven nominees who had 
     previously worked in the Solicitor General's office). The few 
     isolated examples you have cited--in which targeted requests 
     for particular documents about specific issues were 
     accommodated for nominees to positions other than the U.S. 
     Courts of Appeals--similarly do not support your request 
     here.
       Second, as explained more fully below with respect to your 
     request that Mr. Estrada answer additional questions, the 
     only specific question identified in your letter refers to 
     his judicial role models. You claim that Mr. Estrada refused 
     to answer a question on this topic. In fact, in his written 
     responses to Senator Durbin's question on this precise 
     subject that Mr. Estrada submitted three months ago, he cited 
     Justice Anthony Kennedy, Justice Lewis Powell, and Judge 
     Amalya Kearse as judges he admires (he clerked for Justice 
     Kennedy and Judge Kearse, and he further pointed out, of 
     course, that he would seek to resolve cases as he analyzed 
     them ``without any preconception about how some other judge 
     might approach the question.'' Your letter to the President 
     ignores Mr. Estrada's answer to this question. In any event, 
     beyond this one query, your letter does not pose any 
     additional questions to him. Additionally, neither of you has 
     posed any written questions to Mr. Estrada in the more than 
     three months since his all-day Committee hearing. Since the 
     hearing, Mr. Estrada also has met (and continues to meet) 
     with numerous Democrat Senators interested in learning more 
     about his record. Finally, as I will explain below, Mr. 
     Estrada forthrightly answered numerous questions about his 
     judicial approach and views in a manner that matches or 
     greatly exceeds answers demanded of previous appeals court 
     nominees.
       With respect, it appears that a double standard is being 
     applied to Miguel Estrada. That is highly unfair 
     inappropriate, particularly for this well-qualified and well-
     respected nominee.
       I will turn now in more detail to the various issues raised 
     by your letter. I will address them at some length given the 
     importance of this issue and the nature of your requests.


       I. Miguel Estrada's Qualifications and Bipartisan Support

       Miguel Estrada is an extraordinarily qualified judicial 
     nominee. The American Bar Association, which Senators Leahy 
     and Schumer have referred to as the ``gold standard,'' 
     unanimously rated Estrada ``well qualified'' for the D.C. 
     Circuit, the ABA's highest possible rating. The ABA rating 
     was entirely appropriate in light of Mr. Estrada's superb 
     record as Assistant to the Solicitor General

[[Page S2287]]

     in the Clinton and George H.W. Bush Administrations, as a 
     federal prosecutor in New York, as a law clerk to Justice 
     Kennedy, and in performing significant pro bono work.
       Some who are misinformed have seized on Mr. Estrada's lack 
     of prior judicial experience, but five of the eight judges 
     currently serving on the D.C. Circuit had no prior judicial 
     experience, including two appointees of President Clinton and 
     one appointee of President Carter. Miguel Estrada has tried 
     numerous cases before federal juries, argued many cases in 
     the federal appeals courts, and argued 15 cases before the 
     Supreme Court of the United States. That is a record that few 
     judicial nominees can match. And few lawyers, whatever their 
     ideology or philosophy, have volunteered to represent a death 
     row inmate pro bono before the Supreme Court as did Miguel 
     Estrada.
       Mr. Estrada's excellent legal qualifications are all the 
     more extraordinary given his personal history. Simply put, 
     Miguel Estrada is an American success story. He came to this 
     country at age 17 from Honduras speaking little English. 
     Through hard work and dedicated service to the United States, 
     Miguel Estrada has risen to the very pinnacle of the legal 
     profession. If confirmed, he would be the first Hispanic 
     judge to sit on the U.S. Court of Appeals for the D.C. 
     Circuit. Given his record, his background, and his integrity, 
     it is no surprise that Miguel Estrada is strongly supported 
     by the vast majority of national Hispanic organizations. The 
     League of United Latin American Citizens (LULAC), for 
     example, wrote to Senator Leahy to urge Mr. Estrada's 
     confirmation and explain that he ``is truly one of the rising 
     stars in the Hispanic community and a role model for our 
     youth.'' A group of 19 Hispanic organizations, including 
     LULAC and the Hispanic National Bar Association, recently 
     wrote to the Senate urging ``on behalf of an overwhelming 
     majority of Hispanics in this country'' that ``both parties 
     in the U.S. Senate . . . put partisan politics aside so that 
     Hispanics are no longer denied representation in one of the 
     most prestigious courts in the land.''
       The current effort to filibuster Mr. Estrada's nomination 
     is particularly unjustified given that those who have worked 
     with Miguel--including prominent Democrat lawyers whom 
     you know well--strongly support his confirmation. For 
     example, Ron Klain, who served as a high-ranking adviser 
     to former Vice President Gore and former Chief Counsel to 
     the Senate Judiciary Committee, wrote: ``Miguel is a 
     person of outstanding character, tremendous intellect, and 
     with a deep commitment to the faithful application of 
     precedent. . . . [T]he challenges that he has overcome in 
     his life have made him genuinely compassionate, genuinely 
     concerned for others, and genuinely devoted to helping 
     those in need.''
       President Clinton's Solicitor General, Seth 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 any 
     consideration other than the long-term interests of the 
     United States. I have great respect both for Mr. Estrada's 
     intellect and for his integrity.
       A bipartisan group of 14 former colleagues in the Office of 
     the Solicitor General at the U.S. Department of Justice 
     wrote: ``We hold varying ideological views and affiliations 
     that range across the political spectrum, but we are 
     unanimous in our conviction that Miguel would be a fair and 
     honest judge who would decide cases in accordance with the 
     applicable legal principles and precedents, not on the basis 
     of personal preferences or political viewpoints.'' One former 
     colleague, Richard Seamon, wrote that he is a pro-choice, 
     lifelong Democrat with self-described ``liberal views on most 
     issues'' who said he would ``consider it a disgrace'' if Mr. 
     Estrada is not confirmed.
       Similarly, Leonard Joy, head of the Federal Defender 
     Division of the Legal Aid Society of New York, wrote that 
     ``Miguel would make an excellent Circuit Court Judge. He is 
     as fine a lawyer as I have met and, on top of all his 
     intellectual abilities and judgment he would bring to bear, 
     he would bring a desirable diversity to the Court. I heartily 
     recommend him.''
       Beyond the extensive personal testimony from those who 
     worked side-by-side with him for many years, the performance 
     reviews of Miguel for the years that he worked in the Office 
     of Solicitor General gave him the highest possible rating of 
     ``outstanding'' in every possible category. The reviews 
     stated that Miguel:
       ``states the operative facts and applicable law completely 
     and persuasively, with record citations, and in conformance 
     with court and office rules, and with concern for fairness, 
     clarity, simplicity, and conciseness.''
       ``[i]s extremely knowledgeable of resource materials and 
     uses them expertly; acting independently, goes directly to 
     point of the matter and gives reliable, accurate, responsive 
     information in communicating position to others.''
       ``[a]ll dealings, oral and written, with the courts, 
     clients, and others are conducted in a diplomatic, 
     cooperative, and candid manner.''
       ``[a]ll briefs, motions or memoranda reviewed consistently 
     reflect no policies at variance with Departmental or 
     Governmental policies, or fails to discuss and analyze 
     relevant authorities.''
       ``[i]s constantly sought for advice and counsel. Inspires 
     co-workers by example.''
       In the two years that Miguel Estrada and Paul Bender worked 
     together, Mr. Bender signed those reviews. These employment 
     reviews thus call into serious question some press reports 
     containing a negative comment from Mr. Bender about Mr. 
     Estrada's temperament (which is the only negative comment 
     made by anyone who actually knows Mr. Estrada). Just as 
     important, President Clinton's Solicitor General Seth Waxman 
     expressly refuted Mr. Bender's statement.
       In sum, based on his experience, his intellect, his 
     integrity, and his bipartisan support, Miguel Estrada should 
     be confirmed promptly.


                         II. The Senate's Role

       President Bush nominated Miguel Estrada nearly two years 
     ago on May 9, 2001. As explained above, he is well-qualified 
     and well-respected. By any traditional measure that the 
     Senate has used to evaluate appeals court nominees, Miguel 
     Estrada should have been confirmed long ago. Your letter and 
     public statements indicate, however, that you are applying 
     both a new standard and new tactics to this particular 
     nominee.
       As to the standard, the Senate has a very important role in 
     the process, but the Senate's traditional approach to appeals 
     court nominees, and the approach envisioned by the 
     Constitution's Framers, is far different from the standard 
     that you now seek to apply. Senator Biden stated the 
     traditional approach in 1997: ``Any person who is nominated 
     for the district or circuit court who, in fact, any Senator 
     believes will be a person of their word and follow stare 
     decisis, it does not matter to me what their ideology is, as 
     long as they are in a position where they are in the general 
     mainstream of American political life, and they have not 
     committed crimes of moral turpitude, and have not, in fact, 
     acted in a way that would shed a negative light on the 
     court.'' Congressional Record, March 19, 1997. Alexander 
     Hamilton explained that the purpose of Senate confirmation is 
     to prevent appointment of ``unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity.'' Federalist No. 76. It was 
     anticipated that the Senate's approval would not often be 
     refused unless there were ``special and strong reasons for 
     the refusal.'' No. 76.
       As to tactics, you have indicated that some Senate 
     Democrats intend to filibuster to prevent a vote on this 
     nominee. As you know, there has never been a successful 
     filibuster of a court of appeals nominee. Only a few years 
     ago, Senator Leahy and other Democrat Senators expressly 
     agreed with then-Governor Bush that every judicial nominee 
     was entitled to an up-or-down floor vote within a reasonable 
     time. On October 3, 2000, for example, Senator Leahy stated:
       Governor Bush and I, while we disagree on some issues, have 
     one very significant issue on which we agree. He gave a 
     speech a while back and criticized what has happened in the 
     Senate where confirmations are held up not because somebody 
     votes down a nominee but because they cannot ever get a vote. 
     Governor Bush said: You have the nominee. Hold the hearing. 
     Then, within 60 days, vote them up or vote them down. Don't 
     leave them in limbo. Frankly, that is what we are paid to do 
     in this body. We are paid to vote either yes or no--not vote 
     maybe. When we hold a nominee up by not allowing them a vote 
     and not taking any action one way or the other, we are not 
     only voting `maybe,' but we are doing a terrible 
     disservice to the man or woman to whom we do this.
       Senator Daschle similarly stated on October 5, 1999, that 
     ``[t]he Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down. An up or down vote, 
     that is all we seek for Berzon and Paez. And after years of 
     waiting, they deserve at least that much.''
       In his East Room speech on October 30, 2002, President Bush 
     reiterated that every judicial nominee deserves a timely up-
     or-down floor vote in the Senate, no matter who is President 
     or which party controls the Senate. Contrary to President 
     Bush's attempts at permanent reform to bring order to the 
     process, your current effort to employ a filibuster and block 
     an up-or-down vote on the Estrada nomination may 
     significantly exacerbate the cycle of bitterness and 
     recrimination that President Bush has sought to resolve on a 
     bipartisan basis. We fear that the damage caused by a 
     filibuster could take many years to undo. To continue on this 
     path would also be, in Senator Leahy's words, ``a terrible 
     disservice'' to Mr. Estrada. We urge you to reconsider this 
     extraordinary action, to end the filibuster of Mr. Estrada's 
     nomination, and to allow the full Senate to vote up or down.


         III. Request for Confidential Solicitor General Memos

       You have suggested that Mr. Estrada's background, 
     experience, and support are insufficient to assess his 
     suitability for the D.C. Circuit. You have renewed your 
     request for Solicitor General memos authored by Mr. Estrada. 
     But every living former Solicitor General signed joint letter 
     to the Senate opposing your request. The letter was signed by 
     Democrats Archibald Cox, Walter Dellinger, Drew Days, and 
     Seth Waxman. They stated: ``Any 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

[[Page S2288]]

     would be borne by Congress itself. . . . Although we 
     profoundly respect the Senate's duty to evaluate Mr. 
     Estrada's fitness for the federal judiciary, we do not think 
     that the confidentiality and integrity of internal 
     deliberations should be sacrificed in the process.''
       It bears mention that the interest asserted here is that of 
     the United States, not the personal interest of Mr. Estrada. 
     Indeed, Mr. Estrada himself testified that ``I have not 
     opposed the release of those records. . . . I am 
     exceptionally proud of every piece of legal work that I have 
     done in my life. If it were up to me as a private citizen, I 
     would be more than proud to have you look at everything that 
     I have done for the government or for a private client.''
       The history of Senate confirmations of nominees who had 
     previously worked in the Department of Justice makes clear 
     that an unfair double standard is being applied to Miguel 
     Estrada's nomination. 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. Of those 67 nominees, 38 had no 
     prior judicial experience, like Miguel Estrada. The 
     Department of Justice's review of those nomination records 
     disclosed that in none of those cases did the Department of 
     Justice produce internal deliberative materials created 
     by the Department. In fact, the Department's review 
     disclosed that the Senate did not even request such 
     materials for a single one of these 67 nominees.
       Of this group of 67 nominees, seven were nominees who had 
     worked as a Deputy Solicitor General or Assistant to the 
     Solicitor General. These seven nominees, nominated by 
     Presidents of each party and confirmed by Senates controlled 
     by each party, included Samuel Alito, Danny Boggs, William 
     Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, 
     and Raymond Randolph.
       The five isolated historical examples you have cited do not 
     support your current request. In each of those five cases, 
     the Committee made a targeted request for specific 
     information primarily related to allegations of misconduct or 
     malfeasance identified by the Committee. Even in those 
     isolated cases, the vast majority of deliberative memoranda 
     written by those nominees were neither requested nor 
     produced. With respect to Judge Bork's nomination, for 
     example, the Committee received access to certain particular 
     memoranda (many related to Judge Bork's involvement in 
     Watergate-related issues). The vast majority of memoranda 
     authored by Judge Bork were never received. With respect to 
     Judge Trott, the Committee requested documents unrelated to 
     Judge Trott's service to the Department. So, too, in the 
     three other examples you cite, the Committee requested 
     specific documents primarily related to allegations of 
     misconduct or malfeasance identified by the Committee. Of 
     course, no such allegations have been made in the case of Mr. 
     Estrada.
       In sum, the examples you have cited only highlight the lack 
     of precedent for the current request. As the Justice 
     Department has explained to you previously, the existence of 
     a few isolated examples where the Executive Branch on 
     occasion accommodated a Committee's targeted requests for 
     very specific information primarily related to allegations of 
     misconduct does not in any way alter the fundamental and 
     long-standing principle that memos from the Office of 
     Solicitor General--and deliberative Department of Justice 
     memoranda more broadly--must remain protected in the 
     confirmation context so as to maintain the integrity of the 
     Executive Branch's decisionmaking process. That is a 
     fundamental principle that has been followed irrespective of 
     the party that controls the White House and the Senate.
       Your continued requests for these memoranda have provoked a 
     foreseeable and inevitable conflict that, in turn, has been 
     cited as a basis for obstructing a vote on Mr. Estrada's 
     nomination. Respectfully, the conflict is unnecessary because 
     your desire to assess the nominee can be readily accommodated 
     in many ways other than intruding into and severely damaging 
     the deliberative process of the Office of Solicitor General. 
     For example, you can review Mr. Estrada's written briefs and 
     oral arguments both as an attorney for the United Stats and 
     in private practice. As you know, those documents are 
     publicly available and easily accessible; that said, we would 
     be pleased to facilitate your access to them. (Mr. Estrada's 
     hearing transcript suggests that no Democrat Member of the 
     Committee had read Mr. Estrada's many dozens of Solicitor 
     General merits briefs, certiorari petitions, and opposition 
     briefs or the transcripts of his 14 oral arguments when he 
     represented the United States.) You also may consider the 
     opinions of others who served in the Office at the same time 
     (discussed above) and examine the nominee's written 
     performance reviews (also discussed above). There is more 
     than ample information for you to assess Mr. Estrada's 
     qualifications and suitability for the DC Circuit based on 
     the traditional standards the Senate has employed.
       It also is important to recognize that political appointees 
     of President Clinton have read virtually all of the memoranda 
     in question--namely, the Democrat Solicitors General Drew 
     Days, Walter Dellinger, and Seth Waxman. None of those three 
     highly respected Democrat lawyers has expressed any concern 
     whatever about Mr. Estrada's nomination. Indeed, Mr. Waxman 
     wrote a letter of strong support, and Mr. Days made public 
     statements in support of Mr. Estrada.
       In sum, the historical record and past precedent 
     convincingly demonstrate that this request creates and 
     applies an unfair double standard to Miguel Estrada.


      IV. Request that Miguel Estrada Answer Additional Questions

       Your letter also suggests that Miguel Estrada should answer 
     certain questions that he allegedly did not answer in his 
     hearing. To begin with, we do not know what your specific 
     questions are. In addition, this request frankly comes as a 
     surprise given that (i) Senator Schumer chaired the hearing 
     on Mr. Estrada, (ii) the hearing lasted an entire day, (iii) 
     Senators at the all-day hearing asked numerous far-reaching 
     questions that Mr. Estrada answered forthrightly and 
     appropriately, and (iv) only two of the 10 Democrat Senators 
     then on the Committee even submitted any follow-up written 
     questions, and they submitted only a few questions (in marked 
     contrast to other nominees who received voluminous follow-up 
     questions).
       It also bears mention that Mr. Estrada has personally met 
     with a large number of Democrat Senators, including Senators 
     Landrieu, Lincoln, Bill Nelson, Ben Nelson, Leahy, Feinstein, 
     Kohl, and Breaux; is scheduled to meet with Senator Carper; 
     and would be pleased to meet with additional Senators.
       The only specific question your letter identifies refers to 
     Mr. Estrada's judicial role models, and you claim that he 
     refused to answer a question on this topic. In fact, in Mr. 
     Estrada's written responses to senator Durbin's question on 
     this precise subject, Mr. Estrada cited Justice Anthony 
     Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as 
     judges he admires and he further pointed out, of course, that 
     he would seek to resolve cases as he analyzed them ``without 
     any preconception about how some other judge might approach 
     the question.''
       In our judgment, moreover, Mr. Estrada answered the 
     Committee's questions in a manner that was both entirely 
     appropriate and entirely consistent with the approach that 
     judicial nominees of Presidents of both parties have taken 
     for many years. Your suggestions to the contrary do not 
     square with the hearing record or traditional practice.


              A. Judicial Ethics and Traditional Practice

       In assessing your request that Miguel Estrada did not 
     answer appropriate questions, we begin with rules of judicial 
     ethics that govern prospective nominees. Canon 5A(3)(d) 
     provides that prospective judges ``shall not .  .  . make 
     statements that commit or appear to commit the candidate with 
     respect to cases, controversies or issues that are likely to 
     come before the court'' (emphasis added). Justice Thurgood 
     Marshall made the point well in 1967 when asked about the 
     Fifth Amendment: ``I do not think you want me to be in a 
     position of giving you a statement on the Fifth Amendment 
     and then, if I am confirmed and sit on the Court, when a 
     Fifth Amendment case comes up, I will have to disqualify 
     myself.'' Lloyd Cutler, who served as Counsel to President 
     Carter and President Clinton, has stated that ``candidates 
     should decline to reply when efforts are made to find out 
     how they would decide a particular case.''
       In 1968, in the context of the Justice Abe Fortas' 
     nomination to be Chief Justice, the Senate Judiciary 
     Committee similarly stated: ``Although recognizing the 
     constitutional dilemma which appears to exist when the Senate 
     is asked to advise and consent on a judicial nominee without 
     examining him on legal questions, the Committee is of the 
     view that Justice Fortas wisely and correctly declined to 
     answer questions in this area. To require a Justice to state 
     his views on legal questions or to discuss his past decisions 
     before the Committee would threaten the independence of the 
     judiciary and the integrity of the judicial system itself. It 
     would also impinge on the constitutional doctrine of 
     separation of powers among the three branches of Government 
     as required by the Constitution.'' S. Exec. Rep. No. 8, 90th 
     Cong. 2d Sess. 5 (1968).
       Even in the context of a Supreme Court confirmation 
     hearing, Senator Kennedy defended Sandra Day O'Connor's 
     refusal to discuss her views on abortion: ``It is offensive 
     to suggest that a potential Justice of the Supreme Court must 
     pass some presumed test of judicial philosophy. It is even 
     more offensive to suggest that a potential justice must pass 
     the litmus test of any single-issue interest group.'' 
     Nomination of Sandra O'Connor: Hearings Before the Senate 
     Comm. on the Judiciary on the Nomiantion of Judge Sandra Day 
     O'Connor of Arizona to Serve as an Associate Justice of the 
     Supreme Court of the United States, 97th Cong. 6 (1981) 
     (statement of Sen. Kennedy).
       Justice Ruth Bader Ginsburg likewise declined to answer 
     certain questions: ``Because I am and hope to continue to be 
     a judge, it would be wrong for me to say or to preview in 
     this legislative chamber how I would cast mly vote on 
     questions the Supreme Court may be called upon to decide. 
     Were I to rehearse here what I would say and how I would 
     reason on such questions, I would act injudiciously.'' 
     Similarly, Justice John Paul Stevens stated in his hearing: 
     ``I really don't thinkk I should discuss this subject 
     generally, Senator. I don't mean to be unresponsive but in 
     all candor I must say that there have been many times in my 
     experience in the last five years where I found that my first 
     reaction to a problem was not the same as the reaction I had 
     when I had the responsibility of decisions and I think that 
     if I were to make comments that were not carefully

[[Page S2289]]

     thought through they might be given significance that they 
     really did not merit.''
       Justice Ginsberg described the traditional practice in a 
     case decided last year: ``In the context of the federal 
     system, how a prospective nominee for the bench would resolve 
     particular contentious issues would certainly be `on 
     interest' to the President and the Senate. . . . But in 
     accord with a longstanding norm, every Member of this Court 
     declined to furnish such information to the Senate, and 
     presumably to the President as well.'' Republican Party of 
     Minnesota v. White, 122 S. Ct. 2528, 2552 n.1 (2002) 
     (Ginsburg, J., dissenting) (emphasis added). Justice Ginsburg 
     added that this adherence to this ``longstanding norm'' was 
     ``crucial to the health of the Federal Judiciary.'' Id. In 
     his majority opinion, Justice Scalia did not take issue with 
     that description and added: ``Nor do we assert that 
     candidates for judicial office should be compelled to 
     announce their views on disputed legal issues.'' Id. at 
     2539 n. 11 (emphasis in original).
       In some recent hearings, including Mr. Estrada's, Senator 
     Schumer has asked that nominees identify particular Supreme 
     Court cases of the last few decades with which they disagree. 
     But the problems with such a question and answer were well 
     stated by Justice Stephen Breyer. As Justice Breyer put it, 
     ``Until [an issue] comes up, I don't really think it through 
     with the depth that it would require. . . . So often, when 
     you decide a matter for real, in a court or elsewhere, it 
     turns out to be very different after you've become informed 
     and think it through for real than what you would have said 
     at a cocktail party answering a question.'' 34 U.C. Davis L. 
     Rev. 425, 462.
       Senator Schumer also has asked nominees how they would have 
     ruled in particular Supreme Court cases. Again, a double 
     standard is being applied. The nominees of President Clinton 
     did not answer such questions. For example, Richard Tallman, 
     a nominee with no prior judicial service who would now serve 
     on the Ninth Circuit, not only would not answer how he would 
     have ruled as a judge in Roe v. Wade--but even how he would 
     have ruled in Plessy v. Ferguson, the infamous case that 
     upheld the discredited and shameful ``separate but equal'' 
     doctrine. So, too, in the hearing on President Clinton's 
     nomination of Judges Barry and Fisher, Senator Smith asked 
     whether the nominees would have voted for a constitutional 
     right to abortion before Roe v. Wade. Chairman Hatch 
     interrupted Senator Smith to say ``that is not a fair 
     question to these two nominees because regardless of what 
     happened pre-1973, they have to abide by what has happened 
     post-1973 and the current precedents that the Supreme Court 
     has.''


                      b. answers by miguel estrada

       Miguel Estrada answered the Committee's questions 
     forthrightly and appropriately. Indeed, Miguel Estrada was 
     more expansive than many judicial nominees traditionally have 
     been in Senate hearings, and he was asked a far broader range 
     of questions than many previous appeals court nominees were 
     asked. We will catalogue here a select sample of his answers.
     Unenumerated rights, privacy, and abortion
       When asked by Senator Edwards about the Constitution's 
     protection for rights not enumerated in the Constitution, Mr. 
     Estrada replied: ``I recognize that the Supreme Court has 
     said [on] numerous occasion in the area of privacy and 
     elsewhere that there are unenumerated rights in the 
     Constitution, and I have no view of any sort, whether legal 
     or personal, that would hinder me from applying those rulings 
     by the court. But I think the court has been quite clear that 
     there are a number of unenumerated rights in the 
     Constitution. In the main, the court has recognized them as 
     being inherent in the right of substantive due process and 
     the liberty clause of the Fourteenth Amendment.''
       When asked by Senator Feinstein whether the Constitution 
     encompasses a right to privacy and abortion, Mr. Estrada 
     responded, ``The Supreme Court has so held, and I have not 
     view of any nature whatsoever, whether it be legal, 
     philosophical, moral, or any other type of view that would 
     keep me from applying that case law faithfully.'' When 
     asked whether Roe v. Wade was ``settled law,'' Mr. Estrada 
     replied, ``I believe so.''
     General Approach to Judging
       When asked by Senator Edwards about judicial review, Mr. 
     Estrada explained: ``Courts take the laws that have been 
     passed by you and give you the benefit of understanding that 
     you take the same oath that they do to uphold the 
     Constitution, and therefore they take the laws with the 
     presumption that they are constitutional. It is the 
     affirmative burden of the plaintiff to show that you have 
     gone beyond your oath. If they come into court, then it is 
     appropriate for courts to undertake to listen to the legal 
     arguments--why it is that the legislature went beyond [its] 
     role as a legislat[ure] and invaded the Constitution.''
       Mr. Estrada stated to Senator Edwards that there are 200 
     years of Supreme Court precedent and that it is not the case 
     that ``the appropriate conduct for courts is to be guided 
     solely by the bare text of the Constitution because that is 
     not the legal system that we have.''
       When asked by Senator Edwards whether he was a strict 
     constructionist, Mr. Estrada replied that he was ``a fair 
     constructionist''--meaning that ``I don't think that it 
     should be the goal of courts to be strict or lax. The goal of 
     courts is to get it right. . . . It is not necessarily the 
     case in my mind that, for example, all parts of the 
     Constitution are suitable for the same type of interpretative 
     analysis. . . [T]he Constitution says, for example, that you 
     must be 35 years old to be our chief executive. . . . There 
     are areas of the Constitution that are more open-ended. And 
     you adverted to one, like the substantive component of the 
     due process clause, where there are other methods of 
     interpretation that are not quite so obvious that the court 
     has brought to bear to try to bring forth what the 
     appropriate answer should be.''
       When Senator Kohl asked him about environmental statutes, 
     for example, Mr. Estrada explained that those statutes to 
     court ``with a strong presumption of constitutionality.''
       In response to Senator Leahy, Mr. Estrada described the 
     most important attributes of a judge: ``The most important 
     quality for a judge, in my view Senator Leahy, is to have an 
     appropriate process for decisionmaking. That entails having 
     on open mind. It entails listening to the parties, reading 
     their briefs, going back beyond those briefs and doing all of 
     the legwork needed to ascertain who is right in his or her 
     claims as to what the law says and what the facts [are]. In a 
     court of appeals court, where judges sit in panels of three, 
     it is important to engage in deliberation and give ear to the 
     view so colleagues who may have come to different 
     conclusions. And in sum, to be committed to judging as a 
     process that is intended to give us the right answer, not to 
     a result. And I can give you my level best solemn assurance 
     that I firmly think I do have those qualities or else I would 
     not have accepted the nomination.''
       In response to Senator Durbin, Miguel Estrada stated that 
     ``the Constitution, like other legal texts, should be 
     construed reasonably and fairly, to give effect to all that 
     its text contains.''
       Mr. Estrada indicated to Senator Durbin that he admired the 
     judges for whom he clerked, Justice Kennedy and Judge Kearse, 
     as well as Justice Lewis Powell.
       Mr. Estrada stated to Senator Durbin that ``I can 
     absolutely assure the Committee that I will follow binding 
     Supreme Court precedent until and unless such precedent has 
     been displaced by subsequent decisions of the Supreme Court 
     itself.''
       In response to Senator Grassley, Mr. Estrada stated: ``When 
     facing a problem for which there is not a decisive precedent 
     from a higher court, my cardinal rule would be to seize aid 
     from anyplace where I could get it. Depending on the nature 
     of the problem, that would include related case law in other 
     areas that higher courts had dealt with that had had some 
     insights to teach with respect to the problem at hand. I 
     could include the history of the enactment, including in the 
     case of a statute legislative history. It could include the 
     custom and practice under any predecessor statute or 
     document. It could include the views of academics to the 
     extent that they purport to analyze what the law is instead 
     of--instead of prescribing what it should be. And in sum, as 
     Chief Justice Marshall once said, to attempt not to overlook 
     anything from which aid might be derived.''
       In response to Senator Sessions, Estrada stated: ``I am 
     very firmly of the view that although we all have views on a 
     number of subjects from A to Z, the first duty of a judge is 
     to self-consciously put that aside and look at each case by 
     starting withholding judgment with an open mind and listen to 
     the parties. So I think that the job of a judge is to put all 
     of that aside, and to the best of his human capacity to give 
     a judgment based solely on the arguments and the law.''
       In response to Senator Sessions, Mr. Estrada stated that 
     ``I will follow binding case law in every case . . . I may 
     have a personal, moral, philosophical view on the subject 
     matter. But I undertake to you that I would put all that 
     aside and decide cases in accordance with binding case law 
     and even in accordance with the case law that is not binding 
     but seems constructive on the area, without any influence 
     whatsoever from any personal view I may have about the 
     subject matter.''
     Miranda/Stare Decisis
       Mr. Estrada stated that United States v. Dickerson--a case 
     raising the question whether Miranda should be overruled--
     reflected a ``reasonable application of the doctrine of stare 
     decisis. In my view, it is rarely appropriate for the Supreme 
     Court to overturn one of its own precedents.''
     Affirmative Action
       With respect to affirmative action, Mr. Estrada responded 
     to Senator Kennedy that ``any policy views I might have as a 
     private citizen on the subject of affirmative action would 
     not enter into how I would approach any case that comes 
     before me as a judge. Under controlling Supreme Court 
     authority, particularly Adarand Constructors, Inc. v. Pena, 
     515 U.S. 200 (1995), if a government program creates a racial 
     classification, it will be subject to strict scrutiny. 
     Whether the program survives that sort of scrutiny will often 
     involve a highly contextual and face-specific inquiry into 
     the nature of the justifications asserted by the government 
     and the fit between those justifications and the 
     classification at issue. Adarand and similar cases provide 
     the framework that I would be required to apply, and would 
     apply, in considering these issues as a judge.''
       Asked by Senator Leahy about the strict scrutiny test, Mr. 
     Estrada replied, ``the Supreme Court in the Adarand case 
     stated, as a general rule, that the consideration of race is 
     subject to strict scrutiny. That means

[[Page S2290]]

     that though it may be used in some cases, it has to be 
     justified by a compelling state interest. And with respect to 
     the particular context, there must be a fairly fact-bound 
     individual assessment of the fit between the interest that is 
     being asserted and the category being used. That is just 
     another way of saying that it is a very fact-intensive 
     analysis in the context of a specific program and in the 
     context of the justifications that are being offered in 
     support of the program.''
     Congressional Authority
       With respect to the outer limits of Congress' power to 
     confer authority on other governmental bodies, Miguel 
     responded to Senator Kennedy that the Supreme Court has said 
     that ``particular factual context is significant in analyzing 
     the appropriateness of a particular delegation. . . . Of 
     course, the fact that the Supreme Court only rarely has 
     struck down statutes on this ground suggests that the Court 
     has been quite deferential to congressional judgments about 
     the types of delegations that reasonably might be needed to 
     carry on the business of government.''
       When Senator Kohl asked Mr. Estrada about the 1995 Lopez 
     case concerning the scope of Congress' power to regulate, Mr. 
     Estrada pointed out that he had argued in a companion case 
     ``for a very expansive view of the power to Congress to pass 
     statutes under the Commerce Clause and have them be upheld by 
     the court. . . . Lopez has given us guidance on when it is 
     appropriate for the court to exercise the commerce power. It 
     is binding law and I would follow it.''
     Ethnicity
       With respect to fact that the President had noted Miguel's 
     ethnicity, Miguel responded to Senator Kennedy: ``The 
     President is the leader of a large and diverse country, and 
     it is accordingly appropriate for him, in exercising his 
     constitutional nomination and appointment powers, to select 
     qualified individuals who reflect the breadth and diversity 
     of our Nation.''
       With respect to the Democrat Congressional Hispanic 
     Caucus's criticism of him, Miguel responded to Senator 
     Kennedy that ``I strongly disagree, however, with the 
     Congressional Hispanic Caucus' view that I lack an 
     understanding of the role and importance of courts in 
     protecting the legal rights of minorities, of the values and 
     mores of Latino culture, or the significance of role models 
     for minority communities.''
     Racial Discrimination
       With respect to race discrimination, Mr. Estrada stated in 
     response to Senator Kennedy: ``I take a backseat to no one in 
     my abhorrence of race discrimination in law enforcement or 
     anything else.''
       Senator Feingold asked Mr. Estrada whether he believed that 
     racial profiling and racially motivated law enforcement 
     misconduct are problems in this country today. Mr. Estrada 
     replied, ``I am--I will once again emphasize I'm unalterably 
     opposed to any sort of race discrimination in law 
     enforcement, Senator, whether it's called racial profiling or 
     anything else. . . . I know full well that we have real 
     problems with discrimination in our day and age.''
       Senator Leahy asked Mr. Estrada about whether statistical 
     evidence of discriminatory impact is relevant in establishing 
     discrimination. Mr. Estrada replied: ``I am not a specialist 
     in this area of the law, Senator Leahy, but I am aware that 
     there is a line of cases, beginning with the Supreme Court's 
     decision in Griggs, that suggests that in appropriate cases 
     that [such evidence] may be appropriate. . . . I do 
     understand that there is a major area of law that deals with 
     how you prove and try disparate-impact cases.''
     Congressional Authority to Regulate Firearms
       Senator Feinstein asked whether Congress may legislate in 
     the area of dangerous firearms, and Mr. Estrada responded 
     that the Supreme Court had ruled that ``if the government 
     were to prove that the firearm had at any time in its 
     lifetime been in interstate commerce even if that had nothing 
     to do with the crime at issue, that that would be an adequate 
     basis for the exercise of Congress' power.''
     Right to Counsel
       Senator Edwards asked about Gideon v. Wainwright, the 
     Supreme Court case guaranteeing the right to counsel for poor 
     defendants who could not afford counsel. Although Senator 
     Edwards appeared to question the reasoning in that landmark 
     case, Mr. Estrada responded that ``I frankly have always 
     taken it as a given that that's--the ruling in the case.''


               C. Answers by President Clinton's Nominees

       Your criticism of Miguel Estrada's testimony creates a 
     double standard. You did not require nominees of President 
     Clinton to answer questions of this sort (keeping in mind 
     that you have not identified what your additional questions 
     to Mr. Estrada are). President Clinton's appeals court 
     nominees routinely testified without discussing their views 
     of specific issues or cases. A few select examples, including 
     of several nominees who had no prior judicial experience, 
     illustrate the point. (Please note that these are isolated 
     examples; there are many more we can provide if necessary.)
       Merrick Garland (no prior judicial experience). In the 
     nomination of Merrick Garland to the DC Circuit, Senator 
     Specter asked him: ``Do you favor, as a personal matter, 
     capital punishment?'' Judge Garland replied only that he 
     would follow Supreme Court precedent: ``This is really a 
     matter of settled law now. The Court has held that capital 
     punishment is constitutional and lower courts are to 
     follow that rule.'' Senator Specter also asked him about 
     his views of the independent counsel statute's 
     constitutionality, and Judge Garland responded: ``Well, 
     that, too, the Supreme Court in Morrison v. Olson upheld 
     as constitutional, and, of course, I would follow that 
     ruling.'' Judge Garland did not provide his personal view 
     of either subject.
       Judith Rogers. In the hearing on Judge Judith Rogers' 
     nomination to the D.C. Circuit, Judge Rogers was asked by 
     Senator Cohen about the debate over an evolving Constitution. 
     Judge Rogers responded: ``My obligation as an appellate judge 
     is to apply precedent. Some of the debates which I have heard 
     and to which I think you may be alluding are interesting, but 
     as an appellate judge, my obligation is to apply precedent. 
     And so the interpretations of the Constitution by the U.S. 
     Supreme Court would be binding on me.'' She then was asked 
     how she would rule in the absence of precedent and responded: 
     ``When I was taking my master's in judicial process at the 
     University of Virginia Law School, one of the points 
     emphasized was the growth of our common law system based on 
     the English common law judge system. And my opinions, I think 
     if you look at them, reflect that where I am presented with a 
     question of first impression that I look to the language of 
     whatever provision we are addressing, that I look to whatever 
     debates are available, that I look to the interpretations by 
     other Federal courts, that I look to the interpretations of 
     other State courts, and it may be necessary, as well, to look 
     at the interpretations suggested by commentators. And within 
     that framework, which I consider to be a discipline, that I 
     would reach a view in a case of first impression.'' Finally, 
     Judge Rogers was asked her view of the three-strikes law and 
     stated: ``As an appellate judge, my obligation is to enforce 
     the laws that Congress passes, or, where I am now, that the 
     District of Columbia Council passes.'' Judge Rogers did not 
     provide her personal view of these subjects.
       Marsha Berzon (no prior judicial experience). Senator Smith 
     asked her views on Roe v. Wade and whether ``an unborn child 
     is a human being.'' Judge Berzon stated: ``[M]y role as a 
     judge is not to further anything that I personally believe or 
     don't believe, and I think that is the strength of our system 
     and the strength of our appellate system. The Supreme Court 
     has been quite definitive quite recently about the applicable 
     standard, and I absolutely pledge to you that I will follow 
     that standard as it exists now, and if it is changed, I will 
     follow that standard. And my personal views in this area, as 
     in any other, will have absolutely no effect.'' When Senator 
     Smith probed about their personal views on abortion and Roe 
     v. Wade, Chairman Hatch interrupted: ``I don't know how they 
     can say much more than that at this point in this meeting.''
       Richard Tallman (no prior judicial experience). In response 
     to written questions, Judge Tallman explained that 
     ``[j]udicial nominees are limited by judicial ethical 
     considerations from answering any question in a manner that 
     would call for an `advisory opinion' as the courts have 
     defined it or that in effect ask a nominee to suggest how he 
     or she would rule on an issue that could foreseeably require 
     his or her attention in a future case or controversy after 
     confirmation.'' He was asked how he would have ruled in 
     Plessy v. Ferguson. He stated: ``It is entirely conjectural 
     as to what I would have done without having the opportunity 
     to thoroughly review the record presented on appeal, the 
     briefs and arguments of counsel, and supporting legal 
     authorities that were applicable at that time.'' He gave the 
     same response when asked how he would have ruled on Roe v. 
     Wade. When asked his personal view on abortion, he wrote: ``I 
     hold no personal views that would prevent me from doing my 
     judicial duty to follow the precedent set down by the 
     Supreme Court.'' He gave the same answer about the death 
     penalty.
       Kim Wardlaw. In the hearing on Judge Kim Wardlaw's 
     nomination to the Ninth Circuit, Judge Wardlaw was asked 
     about the constitutionality of affirmative action. She stated 
     (in an answer similar to Miguel Estrada's answer to the same 
     question): ``The Supreme Court has held that racial 
     classifications are unconstitutional unless they are narrowly 
     tailored to meet a compelling governmental interest.''
       Maryanne Trump Barry. In the hearing on Judge Maryanne 
     Trump Barry's nomination too the Third Circuit, Senator Smith 
     asked for her personal opinion on whether ``an unborn child 
     at any stage of the pregnancy is a human being.'' Judge Barry 
     responded: ``Casey is the law that I would look at. If I had 
     a personal opinion--and I am not suggesting that I do--it is 
     irrelevant because I must look to the law which binds me.''
       Raymond Fisher. In the hearing on Judge Raymond Fisher's 
     nomination to the Ninth Circuit, Senator Sessions asked Judge 
     Fisher's own personal views on whether the death penalty was 
     constitutional. Judge Fisher responded that ``My view, 
     Senator, is that, as you indicated, the Supreme Court has 
     ruled that the death penalty is constitutional. As a lower 
     appellate court judge, that is the law that I am governed by. 
     I don't want in my judicial career, should I be fortunate 
     enough to have one, to inject my personal opinions into 
     whether or not I follow the law. I believe that the precedent 
     of the Supreme Court is binding and that is what my function 
     is.''


                             V. Conclusion

       Miguel Estrada is a well-qualified and well-respected 
     judicial nominee who has very

[[Page S2291]]

     strong bipartisan support. Based on our reading of history, 
     we believe that you have ample information about this nominee 
     and have had more than enough time to consider questions 
     about his qualifications and suitability. We urge you to stop 
     the unfair treatment, end the filibuster, allow an up-or-down 
     vote, and vote to confirm Mr. Estrada.
           Sincerely,
                                               Alberto R. Gonzales
                                         Counsel to the President.

  Mr. HATCH. I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mrs. CLINTON. Mr. President, I listened with great interest to my 
friend and colleague from Utah. I have the highest respect for him. I 
must confess, in listening to him, though, it brought to mind that 
wonderful old saw about trial lawyers. You know: If the facts aren't on 
your side, argue the law. If the law isn't on your side, argue the 
facts. If neither the facts nor the law are on your side, pound the 
table and hope nobody notices. From my perspective, that is exactly 
what we have been hearing from our friends on the other side with 
respect to this very important matter that is not just about a 
nomination but about the role and responsibility of the Senate under 
our Constitution.
  I rise today to expand on the points I made yesterday because, after 
further reflection and careful thought about this body's constitutional 
obligations to provide advice and consent on judicial nominations, I 
believe there are even greater reasons for us to focus during this time 
on that responsibility.
  There has been, clearly, a debate going on about the role of the 
Senate in judicial nominations, and many of my friends on the other 
side have made the point that their view is the Senate defers to the 
executive when it comes to judicial nominees. That would certainly be a 
surprise to the 42nd President of the United States, that that is the 
position of my friends on the other side.
  Furthermore, there are those who argue the Senate's role is to give 
advice and consent, but that does not encompass an inquiry into a 
nominee's judicial philosophy.
  I, for one, believe on both of those grounds our colleagues are 
mistaken. I have done some further research and inquiry into what is it 
we mean when we open up our Constitution and we look at article II, 
section 2 and we see these words, ``advice and consent.'' Given the 
extraordinary brilliance and the economic use of words in the 
Constitution, I assume every word means something. Each word was 
battled over. Each word was poured over. A lot of effort went into 
coming up with those words that would help to guide our infant Nation. 
So I take advice and consent very seriously.
  It is particularly important to recognize I am not alone in viewing 
this obligation with seriousness. From the very beginning of our 
country it has been a concern. It was one of those elements in the 
balance of power that was so carefully constructed among our three 
branches of Government. It is something I think we ignore at our peril.
  What is it we are talking about? Again, I sometimes wonder what our 
friends and fellow countrymen who might be watching this debate, as 
they look for something perhaps more interesting or exciting on their 
televisions, stop and think if they see one of us talking about advice 
and consent, or talking about our Constitution. Article II, section 2 
states that:

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

  That is what the Constitution tells us. It is our obligation, as it 
has been ever since this body was formed, to determine what that means 
and how we apply it. The Framers of our Constitution did not envision 
the Senate's power of advice and consent to be a mere formality. In 
fact, at the Constitutional Convention of 1787, the power of judicial 
appointment was a subject of enthusiastic debate.
  The first proposal that came from delegates to the Convention was 
that the choice of Federal judges should be left to the Senate alone--
that it would be this body, acting on its own, that would appoint 
judges to the bench.
  Then a competing proposal was put forth arguing that, no, the 
President should nominate and appoint judges and that the Senate should 
have only the power to reject or approve those candidates.
  But what was it after the debate that our Founders decided was the 
American way? How did they conclude what was the proper balance between 
these competing positions? Clearly, the adopted language was a 
compromise. And, equally clearly, those who agreed to that compromise 
did not view our role--the Senate's role--as insignificant or 
deferential. In fact, Alexander Hamilton in Federalist No. 76 writes 
that the Senate's participation in the judicial nomination process was 
essential in order ``to promote a judicious choice of men''--of course, 
he would say men and women were he writing today--``for filling the 
offices of the Union.'' He further stated that the Senate's advise and 
consent role serves as ``a considerable and salutary restraint upon the 
conduct'' of the President.
  There is plenty of evidence that exists which demonstrates what the 
Framers intended with respect to the advice and consent clause. This 
clause added formation and, in all of the decades since, contemplated a 
strong and decisive Senate role that would serve to advise and consent 
with respect to the President's nominees--or, to put it another way, 
would serve to balance the power of the President's nominating 
authority by Senate legislative power.
  This strong role that the Constitution granted the Senate has only 
grown stronger in the years following the adoption of our Constitution. 
We know very well that members of both parties have historically 
expected judicial nominees to be fully candid and forthright with any 
information that Senators deem relevant. The Republicans are acting as 
though the questions we are asking and the opposition which we are 
presenting to the process that has been adopted and the responses--or, 
I should say nonresponses--of the nominee are unprecedented. But I have 
to just point to recent history. We don't have to go back to the 
Federalist Papers. We don't have to go back to the 19th century. We 
only have to go back a few years to find many instances in which my 
friends on the other side did not rest until they had satisfied 
themselves with the information provided by nominees sent up by a 
Democratic President.
  A June 22, 1998, floor statement by Senator Hatch demonstrates that 
the advise and consent obligation is indeed a strong one. Here is what 
he said:

       While the debate about vacancy rates on our Federal courts 
     is not unimportant, it remains more important that the Senate 
     perform its advice and consent function thoroughly and 
     responsibly. Federal judges serve for life and perform an 
     important constitutional function without direct 
     accountability to the people. Accordingly, the Senate should 
     never move too quickly on nominations before it.

  I couldn't agree more. I think Senator Hatch was right in 1998.
  He also stated that he had ``no problem with those who want to review 
. . . nominees with great specificity.''
  That is all we are asking for. But we can't review this nominee with 
great specificity because he has become kind of an emblem of 
nonspecificity with nonanswers and nonresponses.
  It is really hard to imagine someone being considered for the 
important position that he would hold for life telling Senators who 
inquired that he really didn't have anything to say about any Supreme 
Court decision in the history of the Court.
  Of course, my colleague from Mississippi, Senator Lott, has also 
reminded us that:

       Yes, the President has a right to make nominations to the 
     Federal bench of his choice. However, we--namely, the 
     Senate--have a role in that process. We should, and we do, 
     take it very seriously. We should not give a man or a woman 
     life tenure if there is some problem with his or her 
     background, whether academically or ethically, or if there is 
     a problem with a series of decisions or positions they have 
     taken.

  Of course, we don't know whether there is any problem with respect to 
this nominee's decisions. He has never been a judge, and we have no 
idea what his positions are on anything.
  It is hard to imagine that any Member of this body could, as some of 
my colleagues on the other side have been saying over the last days, 
say that we really do not have to worry too much

[[Page S2292]]

about this advice and consent clause because the Senate plays only a 
minor role in the nomination process. I would be more than happy to 
provide a list of citations and references so that any Senator who has 
been led to believe that would know it is not the case.
  In fact, one of the very best descriptions of what advise and consent 
means in the Constitution that I have able to find comes from a very 
well respected former Republican Senator from Maryland, Mr. Charles 
McC. Mathias. In 1987, Senator Mathias submitted an essay that was 
published in the University of Chicago Law Review, a very prestigious 
publication. The essay is entitled ``Advice and Consent: The Role of 
the United States Senate in the Judicial Selection Process.'' This I 
would commend to all of my colleagues because the debate we are having 
today is not just about one nominee. And it is not just about one 
President or one political party. It is about how we fulfill our 
constitutional obligations. Senator Mathias has it just right.
  Among the important points he makes are the following:

       Among all the responsibilities of a United States Senator, 
     none is more important than the duty to participate in the 
     process of selecting judges and justices to serve on the 
     Federal courts.

  Senator Mathias goes on:

       The Senate's duty in this sphere is extraordinary. Most 
     other senatorial decisions are subject to revision, either by 
     the Congress itself or by the executive branch. Statutes can 
     be amended, budgets rewritten, appropriations deferred or 
     rescinded, but a judicial nomination is different. When the 
     Framers of the Constitution decided that Federal judges shall 
     hold their offices during good behavior, and may be removed 
     only by the rarely utilized process of impeachment, they 
     guarantee respect for the principle of judicial independent.

  Senator Mathias goes on to point out:
  It will no longer provide--Their decision also meant, however, that 
the vote to confirm a judicial nominee must express the Senate's 
confidence in the nominee's ability to decide the burning legal 
controversy not only of the day but of future decades as well. The 
Constitution gives the Senate the consent power, not as a mechanical 
formality but as an integral part of the structure of government . . . 
If the Senate does not take its role seriously, it will lose its 
effectiveness as, in Hamilton's words--

       ``a considerable and salutary restraint upon the conduct'' 
     of the President.

  Senator Mathias points out what should be obvious to us all. A 
nominee should:

       [E]merge from the nomination process knowing that the 
     president and the Senate have confidence that he will preside 
     with only one unalterable loyalty, to the Constitution, and 
     with only purpose, to assure the individual standing before 
     him a judgment based upon the law of the land.

  Senator Mathias makes another very critical point in his University 
of Chicago Law Review article about the advice and consent clause. He 
says:

       The Senate must be convinced that a nominee is impeccably 
     competent. But competence alone is not sufficient. It is not 
     enough that a nominee be skilled in legal argument and 
     knowledgeable about legal doctrine, and that . . . he be able 
     to write clearly and forcefully.
       A candidate for the federal bench must, as Hamilton wrote 
     in Federalist No. 78; ``unite the requisite integrity with 
     the requisite knowledge.'' The nominee also must exhibit a 
     strength of character and a range of vision that will help 
     [him] look beyond the world that exists on the day on which 
     [he] is nominated. . . .
       [T]he full senate should have the opportunity to consider 
     each nomination on a complete record. . . .[Senators] should 
     have the opportunity to review the transcripts of hearings 
     and to solicit other advice on the merits of the issue before 
     voting.
       The goal of these procedures is not to second-guess the 
     judgment of the president in submitting the nomination to the 
     Senate, but to ensure that the factors underlying that 
     judgment are sufficiently disclosed to permit the Senate to 
     make an informed and independent evaluation of the 
     president's choice.

  That is really the nub of what we are concerned about.
  Listen to the words of a former Republican Senator who served with 
great distinction in this body:

       The goal . . . is not to second-guess the judgment of the 
     president . . . but to ensure that the factors underlying 
     that judgment are sufficiently disclosed to permit the Senate 
     to make an informed and independent evaluation of the 
     president's choice.

  Senator Mathias concludes:

       For when the Senate carries out its function of advice and 
     consent, its first loyalty must be not to the political 
     parties, nor to the president, but to the people and the 
     constitution they have established.

  It is not only former Senators who have understood this and would be 
astonished at the amnesia that seems to have descended upon us about 
what the debate among the Framers was, about what the settled law and 
understanding of the Constitution was, about what distinguished 
Senators who served in this body always believed it to be. But this is 
the weight of all of the legal and academic analysis of the clause that 
has been done over so many years.
  One of the most effective and thorough analyses of the advise and 
consent obligation is found in a joint statement by Philip Kurland from 
the University of Chicago and Laurence Tribe from Harvard, dated June 
1, 1986, entitled: ``Joint Statement to the Senate Judiciary Committee 
on the Role of Advice and Consent in Judicial Nominations,'' submitted 
to the Judiciary Committee. 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:

                                                     June 1, 1986.
     To the Senate Judiciary Committee:
       The United States Senate has too often been confused and 
     uncertain about its role in approving Federal judicial 
     nominees. The Constitution entrusts the power to appoint the 
     member of the third branch of the National Government not to 
     the executive branch nor to the legislature, but to both 
     political branches together: the President nominates, but the 
     Senate must confirm. Providing ``advice and consent'' on 
     judicial nominations, therefore, is no mere senatorial 
     courtesy but a constitutional duty of fundamental importance 
     to the maintenance of our tripartite system of government.
       Those who wrote the Constitution certainly did not envision 
     the Senate's power of ``advice and consent'' to be a 
     formality. The allocation of the appointment power was the 
     subject of keen debate at the Constitutional Convention of 
     1787, which initially proposed a draft that left the choice 
     of Federal judges to the Senate alone. The adopted language 
     was a compromise, and it is clear that those who agreed to 
     the compromise did not view the Senate's role as merely 
     ceremonial or ritualistic.
       The reasons that the Framers contemplated a strong Senate 
     role in the process of judicial appointments are plain. It 
     must be remembered that Federal judges are not, like the 
     President's cabinet, to serve the will of the Chief 
     Executive, but officers appointed for life to a separate and 
     independent branch of government. If those appointed to these 
     lifetime judicial posts should ultimately prove unequal to 
     the task or unsuited to the role, they cannot be dismissed. 
     Impeachment by the House and trial by the Senate is the only 
     constitutionally authorized method of removing unfit judges, 
     and the great difficulty of such a process makes it usable 
     only in situations of outrageous misconduct. The only 
     practical opportunity to consider the merits of a judicial 
     candidate, therefore, is before that appointment is made. It 
     thus becomes not only appropriate, but obligatory, that the 
     Senate pass on judicial nominees with greater scrutiny than 
     it reviews the President's choices for his own subordinates.
       Whatever the philosophy of government or theory of law, the 
     demands that the Nation makes on its Federal judges are 
     indisputably great. The Federal courts play an increasingly 
     critical part in American government. The men and women of 
     the Federal bench must possess open minds that are capable of 
     grasping sophisticated legal analysis, and that can grapple 
     intelligently with fundamental constitutional issues. To 
     Federal judges is given the task of policing the boundaries 
     between State and Federal government, of giving principled 
     articulation to the content of the basic human rights 
     protected by the Constitution, of enforcing the myriad and 
     complex Federal statutes and regulations, and of overseeing 
     complicated commercial and criminal litigation. Senators 
     therefore have a duty, both to the Constitution and to the 
     Nation's citizens, businesses, and public and private 
     institutions to ensure that the President's nominees have the 
     experience, the talent, the intellectual acumen, and the 
     fairness of mind to perform their functions and, particularly 
     in the case of appellate judges, to contribute lucidly to a 
     body of legal precedents that can enlighten and guide trial 
     courts, litigants, and those who must try to enlighten and 
     guide trial courts, litigants, and those who must try to 
     anticipate what courts will do.
       Candidates for the Federal bench should meet a higher 
     standard than that required for most government officers. A 
     career marked by integrity, capacity, wisdom, and commitment 
     is the minimal qualification. If it is not readily apparent 
     that a candidate is truly distinguished, the burden should be 
     on the President to demonstrate the merits of the nominee. A 
     nominee's entire record--professional achievements, public 
     service, academic credentials, appellate briefs or other 
     legal writings, scholarly or other publications--should be 
     reviewed carefully to screen out the merely competent, and 
     certainly, the

[[Page S2293]]

     simply mediocre. Respect for the institution of the Federal 
     courts--and for the onerous responsibilities of the Federal 
     bench--requires nothing less.
       The responsibility of appointment to the independent 
     judiciary was divided between the White House and the Senate 
     in part to avoid burdening the Federal courts with candidates 
     selected solely to satisfy criteria unrelated to judicial 
     excellence. The President is certainly entitled to prefer 
     loyal supporters and like-minded thinkers in choosing among 
     the exceptionally qualified; but no President has a right to 
     treat Federal judgeships as mere patronage appointments 
     simply to reward friends or to assure a judiciary packed with 
     ``true believers.'' And the Senate is surely not required to 
     defer to the appointment of men and women whose most salient 
     qualification is their location in a particular partisan 
     line-up or their devotion to a particular cluster of 
     political or philosophical views.
       The Senate has the further obligation to assure itself that 
     a nominee's substantive views of law are within the broad 
     bounds of acceptability in American public life and not on 
     its lunatic fringes--whether left or right. The Republic may 
     demand--and its Senators ought therefore to ensure--that is 
     life-tenured judiciary does not disdain the Bill of Rights or 
     the Fourteenth Amendment's command for equal protection of 
     the laws and due process.
       The absence of evidence of a nominee's lack of adherence to 
     constitutional values should not be deemed a sufficient 
     ground for confirmation. When dealing with a lifetime 
     appointment to the Federal bench, rather than the trial of a 
     criminal defendant, one's doubts as to a candidate's 
     commitment to the Bill of Rights or to constitutionally 
     commanded equality must be resolved in favor of the 
     Constitution rather than the candidate.
       None of this is to say that the Senate, any more than the 
     President, is justified in using litmus tests that seek out a 
     candidate's unswerving commitment to upholding or reversing a 
     particular * * * dealing with * * * vised than the 
     confirmation of ``single-issue'' nominees who appear to have 
     been selected solely on the basis of their aversion to or 
     endorsement of one particular line of legal doctrine.
       Finally, the Senate must realize that, in the appointment 
     process, the power of nomination belongs to the President 
     alone. Senators are not entitled to a ``short list'' of their 
     own. Therefore, it is not a sufficient objection to an 
     otherwise legally distinguished and constitutionally 
     acceptable nominee that a Senator would prefer someone from a 
     different part of the legal profession or a different part of 
     the country, or someone of a different race, gender, or 
     ideology. But neither is a confirmation vote in order 
     whenever the best that can be said of a nominee is that he 
     has spent some time in law or public life and is untainted by 
     any major scandal. Even at levels below that of the Supreme 
     Court, where the need for exceptional distinction should be 
     beyond debate, the Nation has a right to expect more than 
     minimum qualifications and probable fitness from its Federal 
     judges. And it has a right to insist that the Senate, 
     whatever the practice of the past decade or two, recall the 
     Framers' vision of its solemn duty to provide advice and 
     consent, rather than perfunctory obeisance, to the will of 
     the President.
                                                Philip B. Kurland.
                                                 William R. Kenan,
           Distinguished Service Professor, University of Chicago.
                                                Laurence H. Tribe.
                                              Ralph S. Tyler, Jr.,
              Professor of Constitutional Law, Harvard University.

  Mrs. CLINTON. Professors Kurland and Tribe, joined by Professors 
William R. Kenan and Ralph S. Tyler, wrote that:

       [P]roviding ``advice and consent'' on judicial nominations 
     . . . is no mere senatorial courtesy but a constitutional 
     duty of fundamental importance to the maintenance of our 
     tripartite system of government.

  Now, that is a mouthful that really says a lot. This little clause--
just three words--is so important to our tripartite; namely, our three 
branches--executive, legislative, and judicial--of Government. Well, it 
is. That is why we advocate it, not at our peril--we will come and go--
but at the peril of undermining this extraordinary, brilliant 
construction of the United States, a tripartite form of Government, 
kept in equilibrium by a balance of power.
  That is a heavy responsibility, to think of giving up advise and 
consent, giving up the Senate's constitutional duty because, as this 
statement goes on to say:

       The reasons that the Framers contemplated a strong Senate 
     role in the process of judicial appointments are plain. It 
     must be remembered that Federal judges are not, like the 
     president's cabinet, to serve the will of the Chief 
     Executive, but officers appointed for life to a separate and 
     independent branch of government.
       If those appointed to these lifetime judicial posts should 
     ultimately prove unequal to the task or unsuited to the role, 
     they cannot be dismissed.
       Impeachment by the House and trial by the Senate is the 
     only constitutionally authorized method of removing unfit 
     judges, and the great difficulty of such a process makes it 
     usable only in situations of outrageous misconduct. The only 
     practical opportunity to consider the merits of a judicial 
     candidate, therefore, is before that appointment is made. It 
     thus becomes not only appropriate, but obligatory, that the 
     Senate pass on judicial nominees with greater scrutiny than 
     it reviews the president's choices for his own subordinates.
       Whatever the philosophy of government or theory of law, the 
     demands that the Nation makes on its federal judges are 
     indisputably great. The federal courts play an increasingly 
     critical part in American government.
       To federal judges is given the task of policing the 
     boundaries between state and federal government, of giving 
     principled articulation to the content of the basic human 
     rights protected by the constitution, of enforcing the myriad 
     and complex federal statutes and regulations, and of 
     overseeing complicated commercial and criminal litigation.
       Senators therefore have a duty, both to the constitution 
     and to the Nation's citizens [who sent us here] to ensure 
     that the president's nominees have the experience, the 
     talent, the intellectual acumen, and the fairness of mind to 
     perform their functions, and, particularly in the case of 
     appellate judges, to contribute lucidly to a body of legal 
     precedents that guide [our] courts. . . .
       The Senate has the further obligation to assure itself that 
     a nominee's substantive views of law are within the broad 
     bounds of acceptability in American public life and not on 
     its lunatic fringes--whether left or right. The Republic may 
     demand--and its Senators ought therefore to ensure--that its 
     life-tenured judiciary does not disdain the Bill of Rights or 
     the Fourteenth Amendment's command for equal protection of 
     the laws and due process.

  Even in the absence of evidence of a nominee's lack of adherence to 
constitutional values, it is something that we have to take seriously. 
We have to be assured, we have to be reassured, that when we cast our 
votes, we are doing so in the best interests of our Constitution and 
our country.
  It has been clear in the debate so far that the Constitution has 
become something of a political football. There are those who--when the 
shoe was on the other foot and the occupant of the White House was of 
another party--were certainly more than ready to ask any question and 
to raise any objection that they could possibly imagine.
  I listened, with great interest, to my good friend from Utah say, 
with great conviction: We never, ever filibustered a judge.
  That may be technically true, but the reason is because they wouldn't 
give nominees hearings. They wouldn't give nominees votes, and they 
would not bring them to the floor where they possibly could be 
filibustered. It is somewhat surprising to hear that argument being 
made with a straight face.
  In the years between 1995 and 2000, the Judiciary Committee refused 
to hold hearings or to permit votes for more than 50 judicial nominees 
submitted by President Clinton. Some nominees waited years for a 
hearing. Some nominees waited years for a vote. One such nominee, a 
Hispanic judge, Judge Paez, waited more than 1,500 days. Others waited 
more than 1,500 days, never received the courtesy of a hearing, never 
received the courtesy of a vote.
  So here we are, and we are being somehow taken to task because the 
other side never filibustered. But they controlled the committee. They 
didn't have to filibuster. They just let nominees languish, twist in 
the wind, and eventually disappear. I didn't approve of that. I thought 
that was unfair to a lot of very decent Americans of tremendous 
intellectual, academic, and legal experience and qualifications.
  What we are doing now is trying to do the work of the Judiciary 
Committee. The Judiciary Committee would not stand for the prerogatives 
of this body and insist the nominee answer questions, provide 
information, require the administration to come forward forthrightly 
and give the documents and the other background material that was 
requested. The only way we can exercise our constitutional duty to 
advise and consent is to raise these issues here in the Chamber.
  I want to put this into the context of why this would be important to 
anybody outside the Senate. Again, I imagine people trying to make 
sense of all of this, trying to figure out what it is all about. In 
fact, it is about the people themselves. Senators come and go. 
Presidents come and go. The Constitution, we hope, not only stays but 
prevails. The Constitution, which set up this genius form of 
government, unlike anything that any group of human

[[Page S2294]]

beings have ever devised for themselves, is our underpinning. It is our 
bedrock.
  The interpretation of it can change from time to time. That is as it 
should be. That is part of the genius of our Constitution--that it was 
an organic, growing document to take into account a nation that started 
out primarily agrarian and now is in the midst of the information 
revolution. We couldn't even imagine thinking we had to live and work 
and govern ourselves in the same way as our predecessors did 200 plus 
years ago. But the values don't change. The balance of power that is 
fundamental to our tripartite system of government doesn't change. 
Human beings may fly through the air in airplanes rather than traverse 
from place to place on horseback, but fundamental human nature doesn't 
change.
  The reason we have a balance of power is because the Framers were 
absolutely the best psychologists who ever came together in any place 
in the world. They knew, as they revolted against a king and a royal 
system, that they were setting up the potential for self-government. 
They recognized in order for self-government to work, you had to be 
realistic about human beings. You couldn't be too optimistic. You 
couldn't be too pessimistic. You had to get it just right, kind of like 
Goldie Locks. If you were too optimistic about human nature, you would 
certainly be disappointed. If you were too pessimistic about human 
nature, you wouldn't have enough hope to get up and move forward and 
try to solve problems.

  So the Framers had to get it right. And did they ever get it right. 
They understood completely that we had to restrain ourselves, that we 
had to have systems that protect against runaway executive power, 
runaway legislative power, runaway judicial power. They had it 
absolutely right.
  The advice and consent clause is part of how they got it right. I 
don't care if you are Republican or Democrat, if you served in the 
Senate in the 19th or 20th or 21st century, they got it right.
  What we are saying is we don't want to second-guess the Framers. We 
don't want to substitute our judgment for theirs. We want to do what we 
are expected to do by the Constitution.
  We wouldn't even be here having this debate if the constitutional 
responsibility had been fulfilled in the Judiciary Committee. I have 
listened to my colleagues talk about all of the paper that has been 
submitted and all of the time that has been taken to pass this nominee 
through the Judiciary Committee. But they know as well as we that many 
of the critical questions were never answered. Many of the essential 
documents that would give us insight into the attitudes and the beliefs 
and the philosophy of this nominee were never produced and that, in 
effect, we are asked to basically abdicate our advise and consent 
responsibility, to turn our back on the Constitution and to do what we 
are told to do.
  That is not what the decision was when the debate took place among 
our Framers. If you look at the Federalist papers, if you look at all 
of the commentary in the many years since, this was a solemn duty that 
was given to the Senate.
  When people say: Why are you debating this, I think there are a 
number of reasons. First, because it seems to those of us who are 
debating, it is our duty. It is our responsibility. We read the 
Constitution. We read what people said about it at the time it was 
written, what people have said about it recently. We read what our 
colleagues have said about it, when the shoe was on the other foot, and 
we have to conclude we are fulfilling our constitutional 
responsibility.
  I went back and looked at the Congressional Record at some of the 
comments some of my friends on the other side have made in the past 
about what we should do when it comes to advising and consenting. I 
agree with what they said. When the shoe was on the other foot and it 
was a Democratic President sending judicial nominees, the same speeches 
were said on the other side of the floor, which strikes me as 
definitive, conclusive proof of what this is all about.
  For example, Senator Smith, March 9, 2000:

       The Constitution gave the Senate the advise and consent 
     role. We are supposed to advise the President and consent, if 
     we think the judge should be put on the court. We do not get 
     very much opportunity to advise because the President just 
     sends these nominations up here. He does not seek our advice. 
     And then we are asked to consent. It seems as if the Senate 
     should be a rubber stamp, that we should just approve every 
     judge that comes down the line and not do anything about the 
     advise and consent role.

  I agree 100 percent with what Senator Smith then said:

       That is not the way that I read the Constitution. I believe 
     that is wrong. We have an obligation under the Constitution 
     to review these judges very carefully.

  In that same vein, Senator Smith on another day, the same month, 
March 7, 2000, went on to explicate this important responsibility. I 
wish all of us would listen to it. I think this is exactly right. He 
said:

       I think the constitutional process is very clear, that the 
     Senate has the right and the responsibility under the 
     Constitution to advise and consent.
       That is exactly what I intend to do in my role as a Senator 
     as it pertains to the two nominees before us. The issue, 
     though, is whether it is OK to block judicial nominees. We 
     have heard from a couple of my colleagues in the last few 
     moments that it isn't OK to block judicial nominees, as if 
     there was something unconstitutional about it. There is 
     thinking by some that we should not start down this path of 
     blocking a judicial nominee whom we do not think is a good 
     nominee for the Court because it may come back to haunt us at 
     some point when and if a Republican should be elected to the 
     Presidency.

  Senator Smith goes on:

       Let me say, with all due respect to my colleagues, I am not 
     starting down any new path. I am going to be very specific 
     and prove exactly my point that we are not starting down a 
     new path of blocking a judicial nominee. That path is well 
     worn. We are following a path; we are not starting down any 
     new path.

  I could not say it better myself. In fact, I wish I had said it as 
well. But it is not only Senator Smith, it is also Senator Hatch, on 
January 28, 1998:

       Conducting a fair confirmation process, however, does not 
     mean granting the President carte blanche in filling the 
     Federal judiciary. It means assuring that those who are 
     confirmed will uphold the Constitution and abide by the rule 
     of law.

  Senator Hatch, October 3, 2000:

       The President has broad discretion, as we know, to nominate 
     whomever he chooses for Federal judicial vacancies. The 
     Senate, in its role, has a constitutional duty to offer its 
     advice and consent on judicial nominations. Each Senator, of 
     course, has his or her own criteria for offering this advice 
     and this consent on lifetime appointments. The Judiciary 
     Committee, though, is where many of the initial concerns 
     about nominees are raised and arise. All of this information 
     is, of course, available to every member of the Judiciary 
     Committee and must be thoroughly reviewed before the nominee 
     is granted a hearing by the committee. If questions about a 
     nominee's background or qualifications arise, further inquiry 
     may be necessary. Obviously, this is a long process, as it 
     must be. After all, these are lifetime appointments.

  Senator Hatch, May 23, 1997:

       The primary criteria in this process is not how many 
     vacancies need to be filled, but whether President Clinton, 
     or whoever the President is--whether their nominees are 
     qualified to serve on the bench and will not, upon receiving 
     their judicial commission, spend a lifetime, a career, 
     rendering politically motivated activist decisions.

  Then Senator Hatch goes on to say something else I agree with 100 
percent:

       The Senate has an obligation to the American people to 
     thoroughly review the records of all nominees it receives to 
     ensure that they are capable and qualified to serve as 
     Federal judges.

  Listen to that specific point that Senator Hatch made back in 1997: 
There has to be a thorough inquiry and the Senate has to determine 
whether a nominee would, upon receiving their judicial commission, 
spend a lifetime, a career, rendering politically motivated, activist 
decisions. That is really the nub of what we are looking to determine.
  There is more than sufficient concern that the nominee before us 
would do just that. And the reason why the administration will not, and 
maybe perchance cannot provide the information requested, is because to 
do so would make abundantly clear that this is a nominee on a mission, 
that this is a nominee who will do exactly what Senator Hatch warned 
about when the shoe was on the other foot; namely, render politically 
motivated, activist decisions.

  Now, there may be some on the other side who believe they would agree 
with these politically motivated activist decisions, so bring it on. 
But I don't

[[Page S2295]]

think that is our responsibility. Our responsibility is to know ahead 
of time. The American people don't get to interview and vote on these 
nominees. If some nominee overturns, when he or she is on the bench, 
fundamental worker protections for people who work hard and play by the 
rules of what they are supposed to do at work, that affects the lives 
of millions of Americans. If someone decides they don't like the 
Violence Against Women Act, or they don't believe there is a right to 
privacy embedded in the Constitution, that affects millions of 
Americans.
  So I think it is imperative that we listen to what our colleagues on 
the other side of the aisle said during the 1990s. All of this concern 
about advice and consent, all of this caution about rushing to judgment 
and voting--slow it down, do a thorough review, don't move too quickly. 
In fact, don't even give people hearings or a vote in committee. It is 
imperative that now we try to get back to that balance of power that 
the Constitution established.
  Turning down nominations for a judgeship is something that goes back 
to the beginning of our Republic. It is not as though this is the first 
time we have ever had this debate. We have had many nominees rejected, 
starting with one of President Washington's nominees. John Rutledge was 
nominated in 1795 by President Washington. Why was he turned down? He 
was thought to be well qualified. He had quite an experience that could 
certainly be impressive when examined. He was a member of the 
Federalist Party, which should certainly ring a bell with my colleagues 
on the other side. But he was turned down because of his political 
views.
  The idea that somehow the political views and positions of a nominee 
for a lifetime appointment are off limits to the Senate has no basis in 
fact, history, or law. The very first nominee in 1795 by probably the 
most popular President that we have ever had, because he was the 
first--and lucky for him he didn't have to be compared to other people 
and given all of the difficulties that our subsequent Presidents have 
faced--but President Washington's nominee was rejected because of the 
political positions he had taken.
  Of course, that was not the only early nominee to be rejected. 
President Madison nominated Alexander Wolcott in 1811. He was rejected.
  He was rejected. President Jackson nominated Roger Brook Taney in 
1835. He was rejected the first time. He came back a year later and was 
accepted. There are many such situations.
  It is revising history to claim that we cannot inquire into someone's 
opinions. If we are going to put someone on the bench who does not 
believe there is a right to privacy in the Constitution, which would 
perhaps lead to the overturning of many decisions that protect people's 
privacy in the sanctity of their home or with respect to their bodies, 
we should know that. That person might still be nominated and 
confirmed, but the American people have a right to know who these 
people are who are being nominated because they are going to be making 
decisions that affect the daily lives of Americans.
  When you nominate a stealth candidate, when you send him up to the 
Judiciary Committee and tell him to dodge and duck and divert and do 
not answer a straight question with a straight answer, is it any wonder 
that people get a little suspicious and maybe say: Wait a minute; if 
this man will not even come and tell us what Supreme Court decision he 
agrees with, going back to Marbury v. Madison, and he says he cannot 
name one; How about one with which you disagree? Well, I can't name 
that either; that does not pass the smell test, I am sorry. That is a 
witness who has been well coached and told: Don't rock any boats, don't 
answer any questions, don't reveal your true opinions. Just try to get 
through the process.
  That is why we need an advice and consent clause in the Constitution, 
and that is why the Framers put it there. It very well may be if he 
answered the questions forthrightly, if he said: My favorite Supreme 
Court decision is Marbury v. Madison, my least favorite is--pick one 
out of thousands--we would say: We do not agree with you, but OK. But 
he will not do that.
  You have to ask yourself: Why won't he do that? Certainly given the 
kinds of questions that were asked of nominees during the 1990s that 
went into all kinds of areas--their associations, the meetings they 
attended, how they even voted--it is hard to understand why this 
nominee cannot be expected to answer pertinent questions about the law, 
about his opinions concerning Supreme Court decisions.
  The fact he refuses to do so, or has been ordered not to do so, 
fundamentally defies the constitutional duty of this body to advise and 
consent.
  I know there are those who have argued that there is already an 
adequate amount of information in the record that should be taken at 
face value. That is hard to do. That is hard to do because, in the 
absence of a willingness to answer pertinent, relevant questions, many 
of us do not believe the nominee has sufficiently subjected himself to 
the process that this body has established to permit Senators to make 
an informed decision.
  If we go back and look at the reams of material that I reviewed to 
determine what was the basis for the advice and consent clause, I think 
that is obvious to us all it is there for a purpose. We ignore it at 
our peril. We have a duty to abide by it.
  I again urge my friends and colleagues on the other side to read the 
extensive description of the advice and consent clause and the role of 
the Senate in the judicial selection process by former Republican 
Senator Charles McC. Mathias.
  When my friends and colleagues raise the issue that somehow this is 
focused on a particular nominee, for whatever reason, I think that does 
a disservice to the seriousness of our concerns because it was this 
nominee who would not answer the questions. It was this nominee who did 
not provide the materials.

  My very alert counsel has just reminded me that when Justice Taney 
was first rejected after being nominated by President Jackson in 1835 
and then was renominated and confirmed in 1836, he went on to write one 
of the most discredited, racist, despicable opinions in the history of 
our court. Judge Taney was the author of the Dred Scott decision. Maybe 
the country would have been better off and saved a whole lot of misery 
if the Senate had delayed action and had never confirmed him when he 
was renominated. We just never know. We have to do the best we can 
given our own human limitations and idiosyncrasies based on the 
information available.
  There are some, and I respect their opinion, on both sides of the 
aisle who say: If the President sends somebody up, I am voting for it, 
no questions asked. That is how I believe the Constitution is to be 
interpreted, as far as I am concerned.
  With all due respect, I think that is an abdication of 
responsibility.
  For most of us, we try to get behind the nomination. We try to 
understand, not just the academic or legal background which can be 
described by where you worked, who you worked for, what clients you 
had, what cases you tried or argued, but if that is all we did, we 
could put that into a computer. We would not need the Senate. We would 
computerize that decision. That is not what we are supposed to do. We 
are supposed to get behind the statistics, under the resume to satisfy 
ourselves that the person we give this lifetime job to is motivated by 
only one reason: to render justice to the best of his ability no matter 
who the parties are, no matter what the outcome of the matter may be, 
not to serve a political philosophy or ideology, not to serve a 
political party or even a President but to really do the hard work of 
justice.
  It is a hard job, it is a really hard job and especially today. There 
are so many factors at work in our society, so many difficult decisions 
to be made about how we keep this wonderful, precious democracy of ours 
moving forward that judges have a very tough job. It is not for the 
casual or the indolent. It is for people who really care, will work 
hard, and will follow the law, the Constitution, and their conscience.
  We are judging not just a legal resume. We are judging a potential 
judge. We are asking ourselves: Will everyone who appears before this 
court get the benefit of a fair rendering of justice?
  Until we can satisfactorily answer that question about this nominee, 
we cannot move forward. We should not move forward. We should follow 
the words of our colleagues when the shoe was on the other foot and it 
was a

[[Page S2296]]

nominee from a Democratic President that caused questions and concerns 
on the other side.
  I personally think that was overdone, and that many good, decent 
people who would have made fine judges were denied the right to go 
forward, but it was done in the name of the Constitution. It was done 
under the rubric of advise and consent.
  It is a little hard to understand how my friends on the other side 
can, with straight faces, say that is not what it means at all. How 
dare we question this nominee. How can we ask for more information? 
Because that is what we think our duty is, just as at a previous time 
those on the other side thought it their duty.
  It is difficult to explain how the Constitution's interpretation 
could flip so quickly. I do not think that is good for the 
Constitution. I do not think that is good for this body. I do not think 
it is good for the judiciary. Most of all, I do not think it is good 
for our country. I think no matter who is in the White House, no matter 
who is in the Senate, we ought to do our level best to fulfill the 
duties the Constitution places upon us. That is what I am attempting to 
do to the best of my ability. I know that is what all of my colleagues 
attempt to do.
  When we face a moment such as this, which seems fraught with so much 
meaning not only with respect to a nominee and not only with respect to 
the judiciary but to that fundamental balance of power, we have to be 
careful. We will live with the precedents that are set.
  Lord Acton had it right when he said, power corrupts and absolute 
power corrupts absolutely.
  We must have those checks and balances. We must keep that fabulous, 
unbelievable genius of our Framers alive. I hope we can see some 
attention being paid to the legitimate questions and concerns that are 
being raised about this nominee and about this process and about the 
Constitution we revere and serve.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Montana.
  Mr. BURNS. Mr. President, I rise today and join my colleagues in 
supporting the confirmation of Miguel Estrada to the DC Circuit Court 
of Appeals. We have heard more information on this man than anyone I 
can remember in recent times. There is not much about this gentleman or 
this situation that has not been said thus far on the floor of the 
Senate.
  The history of this man I can relate to. I kind of started out on my 
own about that age, but I will never attain the level of society and 
dedication he has. He did it the hard way, by his own bootstraps. He is 
a graduate of Harvard Law School, near the top of his class. We also 
know he is a very successful appellate lawyer who argued 15 cases 
before the United States Supreme Court. We know he has been rated well 
qualified by his own colleagues in the American Bar Association.
  I find it interesting, as the case is trying to be made, that 
somebody is being denied their constitutional rights, the 
constitutional right of advice and consent. I tell the American people, 
no Senator is being denied access to this floor. No Senator is being 
denied the ability to come to this floor and make his or her case 
either in support or opposition to the confirmation of Miguel Estrada. 
Everyone is free to do so and is afforded the opportunity to discuss 
the merits of one side or the other. Nobody is being denied that. It is 
pretty simple, and I think the American people understand that. Come 
down and make your case. If you did not make it the first time, come 
back the second time, come back as many times as you like to respond.
  No one has been denied anything dealing with the merits of this man 
Miguel Estrada. Come down and make your case. Then vote. It is very 
simple. There is nothing hard to understand about that.
  If a good case is made, there may be 51 votes. Folks will vote for 
you and you have won, and we will say congratulations. Nobody is being 
denied that.
  We see quite a lot of dust being kicked up to fuzz up and confuse the 
issue. The issue is Miguel Estrada. That is what it is about. He has 
been nominated to occupy a seat on the DC Court of Appeals.
  I am not an attorney, never been hinged with that title, but I too 
get to vote. I too get to look at information, both positive and 
sometimes negative, about this man. He will be the first Hispanic to 
serve on the DC Court of Appeals, and I applaud President Bush for 
nominating a candidate of this quality and this integrity.
  He is a living example of an American attaining what he terms as his 
American dream. Right now he is being denied a vote. That seems sort of 
strange to me. He deserves an up-or-down vote, and at the end of that 
we will count them up and we will move on.
  Why should I, a Senator from Montana, be interested in a nominee to 
the DC Court of Appeals? Well, so many cases are argued before this 
court that have to do with the management of public lands and the 
management of our national parks. Because I am from a public lands 
State, it matters a great deal that the laws of the land are properly 
judged and adjudicated. Every piece of information that I have been 
able to read or listen to or watch tells me he understands one little 
word in the English language that is very important to each and every 
one of us. The word is ``fair,'' dedicated to the study of both sides 
of any issue and then relating that to the law or the Constitution of 
the United States and making judgments.

  That is pretty simple. We make things a lot more difficult than they 
should be. I have seen the big thick book that the chairman of the 
Judiciary Committee had, all the questions he was asked, the responses. 
What else is there to know about this man that has not been revealed? 
Instead, we hear ``deny,'' when not one person in the United States as 
a Member has been denied access to this floor.
  Cases that have to do with public lands have great ramifications for 
Montana. Therefore, not only will I think he will be fair, judicial, 
and constitutional, but I believe it is also important to fill this 
vacancy. Right now, we see declarations of emergencies in so many of 
our appellate courts that we are seeing justice delayed, justice 
denied.
  So what do we see happening today? It is written in the Constitution 
about our rights not being denied, but we sure see a little bit of 
obstructing and delaying in the confirmation process. We will not even 
be denied a vote. Every Senator will come down and cast his vote.
  He was rated the highest rating of the American Bar Association. Yet 
we have heard it argued that he does not have the right qualifications 
to serve the court and therefore make a decision that we are going to 
talk the nomination to death. The Senate is a better body than that. 
Being around politicians a lot, being talked to death happens to be the 
worst death in the world.
  So, is he qualified? You bet he is. Does he meet the limits on some 
folks? Maybe not. Does he meet their litmus test, maybe a personal 
litmus test? Maybe not. But there were people who disagreed with us 
when we ran for office and no one was denied the vote. If we had to go 
through this process just to get elected to the Senate by our 
constituency, we might not ever get here; we would be talked to death 
at home.
  We are not going to talk about his background. We are going to talk 
about this American. No, he did not start here, but this American has 
applied his talents and his intellect to become an appellate judge. I 
am proud of this man. Nowhere else do we see an example of who we are 
and why we are Americans.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. BURNS. I am happy to yield.
  Mr. SESSIONS. The Senator makes his point about having a right to a 
vote. The argument has been made previously that we need advice and 
consent, but we never vote. The Senator is aware that on a filibuster 
it takes 60 votes, and on an up-or-down vote it takes a majority, 51 
votes; is that correct?
  Mr. BURNS. That is the way I understand it.
  Mr. SESSIONS. The Constitution is right on advice and consent, and we 
can debate forever about that, what that means. Basically, it means 
what any Senators believe it means; is that right? They can vote on any 
basis they want?

[[Page S2297]]

  Mr. BURNS. That is my interpretation.
  Mr. SESSIONS. The Constitution says: The President shall have the 
power, by and with the advice and consent of the Senate, to make 
treaties, provided two-thirds of the Senators present concur; and he 
shall nominate and, with the advice and consent of the Senate, shall 
appoint ambassadors, judges, and other court officers.
  It did not say what the vote was, so since the founding of our 
document, we managed that to be a majority. Where it needed a 
supermajority--more than 51 votes in this case--more than a simple 
majority, it set it out, two-thirds.
  So wouldn't the Senator agree that a fair reading of the Constitution 
would indicate our Founders contemplated that the vote here would be a 
simple majority required for confirmation?
  Mr. BURNS. You are asking a man who is not trained in the legal 
disciplines.
  Mr. SESSIONS. But the Senator is most trained in common sense.
  Mr. BURNS. I say that the majority, 50 plus 1, would be all it takes.
  Mr. SESSIONS. And that is what we have done.
  Is the Senator aware in his tenure in this Senate that we have ever 
had a filibuster maintained on a Federal judge?
  Mr. BURNS. That is something else that sort of confused me the way 
you put your argument, but I am wondering why we are raising the bar 
for this nominee. Is that what we are doing here? Are we saying he has 
to stand a more difficult test than all others in the past or all 
others will be asked in the future?
  I go back to that other old word, I say to my friend from Alabama: 
``Fair.'' I guess that is all we ask, fairness. Everything I have read 
and everything I have heard tells me that this man is qualified to sit 
at any other man's fire. And I would tell you they don't come with a 
higher recommendation than that. But let's not ask this man to be 
subjected to a higher bar than has been asked of every other American--
not this American.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, I rise this evening to discuss the 
nomination of Miguel Estrada to the DC Circuit Court of Appeals, and to 
express grave concerns that we are being asked to vote on a lifetime 
appointment with very little information on this nominee. There are 
many who have raised concerns about that very point. Let me share one 
letter that has been written, from the American Association of 
University Women.

       We believe the information available regarding Mr. 
     Estrada's record raises serious concerns about whether he 
     should be given the enormous honor and responsibility of a 
     lifetime appointment to this Nation's second most powerful 
     Federal court. We strongly urge the members of the Judiciary 
     Committee to conduct a thorough investigation of his record, 
     including the areas of concern we have outlined, and to 
     refrain from passing judgment on his nomination until that 
     inquiry and the record is complete.

  Let me begin by saying the DC Circuit Court of Appeals is, in fact, 
an extremely important court in our Nation. It is very important to the 
people I represent in Michigan and to the people that we all represent. 
It is, in fact, considered the Nation's second most important court, 
second only to the U.S. Supreme Court. This court has exclusive 
jurisdiction over a broad array of important Federal regulations that 
affect people in their lives every single day--environmental 
protection, our civil rights, human rights, consumer protections, 
workplace statutes--items that touch our lives. We have the right to 
know what someone's views are in general, and philosophy in general, as 
that person is being considered for this high court.
  In addition, its judges are often nominated to serve on the U.S. 
Supreme Court, which is another reason why this is a particularly 
important nomination, and a particularly important decision for all of 
us in the Senate. Three of the current members of the Supreme Court, 
Justice Scalia, Justice Thomas, and Justice Ruth Bader Ginsburg, all 
previously served on the DC Circuit. So that is why this is 
particularly important and we should take the time necessary to make 
sure that the right decisions are made.
  Despite the importance of the DC Circuit Court, the administration is 
trying very hard to prevent the Senate from making an informed 
decision--an informed decision on Mr. Estrada. Mr. Estrada has no 
judicial experience, nor is he a distinguished scholar or professor, 
which means he lacks any real public record. That is not disparaging in 
terms of a comment as to his intellect, but it is a question of public 
record which we can review as to his views and philosophies.
  He has spent the bulk of his career in the Solicitor General's Office 
and in private practice. This makes it extraordinarily difficult for us 
to fairly evaluate him, and it makes his legal memos and other work 
product absolutely critical for this evaluation.
  The Senate has a constitutional obligation to advise and consent on a 
Federal judicial nominee. This is a responsibility I take very 
seriously, as do my Senate colleagues, I know, from both sides of the 
aisle. I might just remind us that as we read in our U.S. history 
books, there was a major debate as to how to decide the nominees and 
the members who would sit on the U.S. Supreme Court. At one point, our 
Framers said the President should decide alone. At another point they 
said the Senate should be the one that has the absolute right to decide 
who should be on this all powerful, important court that affects our 
lives so much. In the end they compromised, as they did in much of the 
discussions and the final decisions as to the framing of our 
Government. They said we believe this is so important there needs to be 
a check and balance, so we need to have both the Senate and the 
President involved. The President will nominate but the Senate will 
have the responsibility of reviewing and consenting to the nomination. 
That is the process that we are involved in right now.

  I might also say that we have confirmed over 100 judges since 
President Bush has come into his Presidency, and just on Monday night 
we had three votes. One was a Hispanic judge. We moved forward in this 
process. But when we find someone comes to the Judiciary Committee and 
when he is asked to provide copies of his memos and information, when 
he basically says no, or I'll just think about it, that makes it very 
difficult for an informed decision to be made.
  Unlike other nominations that come before the Senate, such as 
ambassadorships or executive nominees, Federal judicial nominations, 
again, are lifetime appointments. I think it is so important to repeat 
that over and over again. I have, in fact, supported the confirmation 
of individuals, other nominees of the President for his Cabinet who 
certainly would not have been my personal first choice. But the 
President has the right to select his Cabinet--certainly within reason; 
has the right to select his Cabinet, the people who will work with him 
during the 4 years that he is in office.
  That is not what this is about. This is about someone who will, in 
fact, make decisions that will affect us, not for 3 or 4 years, but for 
30 or 40 years, through numerous Presidents, making it even more 
important that we are not a rubberstamp. The U.S. Senate has a very 
important role to play.
  As a part of this important responsibility, my Democratic colleagues 
on the Judiciary Committee have tried to obtain information, legal 
memos Mr. Estrada wrote while serving in the Justice Department. The 
Justice Department has refused to provide these documents which 
presumably would show Mr. Estrada's constitutional analysis of cases. 
This is very important. The constitutional analysis of statutes--
whatever his philosophies and beliefs--would give us insight into his 
judicial reasoning, not on a particular case but his reasoning. 
Unfortunately, as I indicated before, he has not been forthcoming to 
the committee. In fact, he has refused to answer the most basic 
questions before the committee.
  During his nomination hearing, Mr. Estrada refused to answer 
questions regarding his judicial philosophy or his views on important 
Supreme Court cases, including Roe v. Wade. He even refused to name any 
Supreme Court case with which he disagreed. This refusal to provide 
necessary information is absolutely unprecedented. Past administrations 
and the current administration have disclosed legal memos and other 
information in connection with both judicial and executive nominees.
  For example, in previous administrations the Senate has requested and 
the

[[Page S2298]]

Justice Department has provided similar memos, written by Justice 
Department attorneys, including the writings of Supreme Court Justice 
William Rehnquist, the Ninth Circuit Nominee Stephen Trott, Supreme 
Court nominee Robert Bork, Assistant Attorney General nominee William 
Bradford Reynolds, and Attorney General nominee Benjamin Civiletti, 
among others.
  This breaks with a longstanding practice of cooperation between the 
Justice Department and the Senate in providing access to necessary 
materials for nominations.

  The administration also has provided such memos for another nominee. 
The Bush administration has provided the Senate with legal memos 
written by Jeffrey Holmstead, an attorney with the White House 
Counsel's Office, during the consideration of his nomination as 
Assistant Administrator at the EPA. This was for a term appointment, in 
contrast to a lifetime appointment, which is certainly much more 
significant.
  I am also concerned that my colleagues on the other side of the aisle 
are applying a different standard for nominees who are nominated by a 
Republican President than by a Democratic President. During the Clinton 
administration, and under Chairman Hatch, nominees were required to 
produce volumes of information. For example, Judge Richard Paez was 
asked to provide documentation of every instance during his tenure as a 
judge where he deviated downward from a sentencing guideline--every 
instance.
  Marsha Berzon, a Tenth Circuit nominee, was required to provide the 
minutes from every California ACLU meeting that occurred while she was 
a member of that organization, regardless of whether she even attended 
the meeting.
  Why was the bar placed so high for these Clinton nominees but there 
is such a hard push by my colleagues to confirm a nominee from whom we 
have no information? Why is there such a strong resistance by the 
administration to allow the Senate the opportunity to learn more about 
this nominee's writings and opinions? That is what this debate is all 
about.
  I might just say that when I am asked what is the philosophy, what is 
the judicial reasoning of this particular nominee, I would have to say 
this--these are the answers to the questions that Miguel Estrada gave 
to the Judiciary Committee: An absolute blank slate. Not one answer to 
one question. How can that give us the opportunity to determine whether 
or not this is a nominee we wish to support?
  Finally, I am extremely disappointed by how some of my colleagues 
across the aisle have tried to make this an issue of race. I believe 
racial diversity in our judicial system is extremely important. I wish 
my Republican colleagues had made the same impassioned speeches during 
the Clinton administration when 10 of more than 30 Hispanic nominees 
were delayed or blocked from receiving hearings or votes by members of 
their caucus. I wish my colleagues had been outraged when Ronnie 
White's nomination languished for 2\1/2\ years and then was rejected on 
the Senate floor on a party-line vote. I wish my colleagues had stood 
up for racial diversity when the President filed their brief opposing 
the University of Michigan's admissions policy to help create racial 
diversity in our law schools and our other colleges and schools at the 
university.
  The Senate needs to apply the same level of scrutiny and the same 
standards regardless of a nominee's race or the politics of the 
administrations that nominated them.
  Until we are given these memos that are a part of Mr. Estrada's 
record, we are not going to hold judicial nominees to the same 
standards and the same basic principles of fairness. It is time to do 
that--to give us a true opportunity.
  I might also add that 100 percent of the Hispanic Caucus of the House 
of Representatives have joined with us asking that we oppose or 
withhold judgment--that we not proceed with this vote until we have the 
information. These are individuals who have expressed grave concerns. 
They do not support moving forward. One-hundred percent of the Hispanic 
Caucus of the House from all around the country joined with more than 
30 different organizations expressing grave concern.
  I think that says to us we need to take the time that is necessary 
and we need to receive information so that we can make an appropriate 
judgment.
  I will take just a moment to change topics.
  I ask while moving from one important topic to another to take just a 
moment to speak to a bill I have introduced today regarding the growing 
importation of waste problem.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I know the Senator would like to talk 
about another subject. But what is the pending business we are on now?
  The PRESIDING OFFICER. The pending business is the Estrada 
nomination.
  Mr. SESSIONS. I will, regretfully, have to object to proceeding to 
another subject. That is a subject we are here to talk about, and I 
have some remarks I want to make. So I would object.
  Ms. STABENOW. Mr. President, I have been given the floor, as I 
understand it, for 30 minutes. And I appreciate the fact that we have a 
topic in front of us. At this point, it is my understanding that it is 
not the Senator's prerogative to object to my being on the floor and to 
be able to speak for a moment, along with this important topic, to a 
bill I introduced about waste coming into the United States and taking 
a moment to do that. It is my understanding that under the normal 
processes of the Senate, I would have the opportunity to take a moment 
to do that.
  Mr. SESSIONS. If the Senator wouldn't take long, if she wants to ban 
importation of some of that Canadian lumber, I will join with her. I 
yield to the Senator, if she is not going to be too long then.
  Ms. STABENOW. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Ms. STABENOW. I thank the Chair.


                     Importation of Canadian Waste

  Mr. President, I wanted to have an opportunity this evening--
realizing we have an important topic on the floor--to speak on the 
record about an important topic that affects many of our States, and 
Michigan is certainly one of them.
  There is a growing problem of Canadian waste shipments to Michigan 
and other States. In 2001, Michigan imported almost 3.6 million tons of 
municipal solid waste--more than double the amount that was imported in 
1999. This gives Michigan, unfortunately, the undue distinction of 
being the third largest dumping ground of waste in the United States.
  My colleagues may be surprised to know that the biggest source of 
this waste is not another State but, in fact, Canada. And more than 
half the waste that was shipped to Michigan in 2001 was from Ontario, 
Canada, where these imports, unfortunately, are growing rapidly. In 
fact, on January 1, 2003, another Ontario landfill closed its doors, 
and the city of Toronto is shipping two-thirds to all of its trash--1.9 
million tons--to a Michigan landfill. This deal could last up to 20 
years. I think it is important for a statement to be made for the 
record as we move forward with this legislation that it is time to do 
something about it.
  Not only does this waste dramatically decrease our own ability to 
have a landfill capacity, but it also has a negative effect on the 
environment and on public health. Frankly, right now, I am particularly 
concerned about the fact that this is a homeland security issue for us. 
We now have our citizens at high alert. We are telling them to prepare 
themselves with duct tape, with plastics, and with water for their 
homes. There is a high degree of concern about the possibility of a 
terrorist attack.
  Yet on Monday, I was able to go to Port Huron, MI, and look at an 
international bridge where we have trucks coming over bumper to 
bumper--over 130 different semi-trailer trucks--from Ontario, Canada, 
to Michigan every day that have solid waste in them from Canada, waste 
that is not thoroughly inspected. I think this is a serious issue as it 
relates to homeland security. These trucks are going through the 
neighborhoods and on into Michigan. And the same is happening in a 
number of other States.
  I have joined with colleagues--first with Senator Levin and 
Congressman

[[Page S2299]]

Dingell--to introduce legislation to enforce an agreement that was made 
between Canada and the United States back in 1986 that would give 
notice to the EPA--30-day notice--and the ability to reject waste 
coming into this country. That is not being enforced now. I support 
their efforts to enforce this provision with the EPA. But I think we 
have to go a step further now and stop these shipments until we can get 
the agreement enforced and have the EPA step up and receive notice on 
these shipments coming into the States.
  I believe the State of Michigan should be able to tell the EPA that 
they don't want this trash in Michigan and that the EPA should honor 
that and be able to reject those shipments coming in from Canada. We 
need to act now. This is a serious environmental issue and a public 
health and homeland security issue.
  I urge my colleagues and invite my colleagues to join me in 
legislation that will stop the shipments and give us the opportunity to 
enforce this agreement that has been on the books long term so that we 
can send a very strong message that we are not interested in Canadian 
trash coming into Michigan or any other State that does not wish to 
have it.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, it is really frustrating. I know Senator 
Hatch last night expressed his frustration about arguments that are 
made that are just not factual.
  I know the Senator, as she finished her remarks eloquently, as she 
does, was not at the Judiciary Committee hearing which I attended on 
Miguel Estrada. The hearings started at 9 in the morning and went until 
5 in the afternoon. There are hundreds of pages of transcript of that 
testimony that he gave answering every question I think with the proper 
nuance each and every time on question after question after question.
  Remember, the questions they were asking were during the time the 
Democrats controlled the majority in the Senate and Senator Leahy was 
the chairman. He could have kept them there as long as he wanted. There 
is no record that indicates Miguel Estrada said: Stop the hearing; I 
don't want to answer any more questions. He was never asked to come 
back to answer any more questions. The record was kept open, and 
Senators were allowed to submit written questions in addition. Two 
Senators did that--Senator Schumer and Senator Kennedy. Those were 
answered by Mr. Estrada.
  He has answered question after question after question. It is not 
true that he did not answer one question. He answered hundreds of 
questions. He answered them accurately and with skill and with good 
judgment.
  It was said earlier in the debate that he would not answer the 
question of whether or not he was a strict constructionist. I thought 
that was interesting. Somebody said that was an example of a question 
he would not answer.
  I remember the answer that he gave because I thought it was special, 
really indicative of his brilliance and insight into the law.

       Senator Edwards. Are you a strict constructionist?
       Mr. Estrada. I am a fair constructionist, I think.
       Senator Edwards. Do you consider yourself a strict 
     constructionist?
       Mr. Estrada. I consider myself a fair constructionist. I 
     mean, that is to say, I don't think that it should be the 
     goal of courts to be strict or lax. The goal of courts is to 
     get it right. And that may be in some cases to interpret the 
     text as it is written because other consideration of every 
     element of help that there is to give the text meaning tells 
     us that that is what the lawmaker intended. But it may be 
     inappropriate to give it a more general construction. I think 
     we can have laws and constitutional text of both types. It is 
     not necessarily the case in my mind that, for example, all 
     parts of the Constitution are suitable for the same type of 
     interpretive analysis.

  A very insightful, thoughtful answer.

       Senator Edwards. Excuse me. I am sorry. I didn't mean to 
     interrupt you.
       Mr. Estrada. No, no.
       Senator Edwards. Were you finished?
       Mr. Estrada. The example I was going to give is, you know, 
     the Constitution says, for example, that you must be 35 years 
     old in order to be our Chief Executive. There is not a lot of 
     hard study that has to go into figuring out whether somebody 
     is in compliance with the 35-year-old requirement. You can 
     read it and say I am 40 and I can run.
       There are areas of the Constitution that are more open-
     ended, and you averted to one, like the substantive component 
     of the due process clauses, where there are other methods of 
     interpretation that are not quite so obvious that the Court 
     has brought to bear to try to bring forth what the 
     appropriate answer should be.

  I thought that was a very rich, very mature answer to that question 
and was a good example of the way he answered the questions.
  He was asked about his position on Roe v. Wade. He made it absolutely 
clear that he considered it the law of the land and he would follow 
that law. And he cited Casey as being further explication of Roe v. 
Wade, and he would follow that. So I think that is important for us to 
think about.
  People say he refused to allow himself to be questioned about a 
judicial philosophy. I do not understand it that way at all. He refused 
to allow himself to be pressured into considering questions that he 
might have to deal with on the bench or questions he had not fully 
researched. And that is what he should do.
  If you are before a Senate committee, and you are asked what your 
opinion is on the right of privacy or some due process clause, and you 
express that, and then you get on the bench, are you obligated, since 
you were under oath when you were at that committee, to follow it? What 
if, once you get on the bench, and you receive highly sophisticated and 
high-quality legal briefs that convince you you were wrong, what does 
the judge do then? Judges should not opine on matters that are going to 
come before them in the future. So he answered the questions 
consistently, and over and over and over again.

  They say: ``We have a right to advise and consent. The constitution 
allows that.'' And it does say that. This Senate--and every Senator--
can vote for or against a nominee on any basis they choose--a proper or 
improper basis. It is their right. Nobody can control me on how I vote 
on this floor.
  But what ought we do? How ought we handle matters of confirmation?
  Let's be truthful. The reality is that, in the past, there has been a 
preference given, a presumption given to the President's nominees. They 
were able to come before the Senate or submit documents or just have 
their names submitted, and generally they have been confirmed. It is 
part of the cooperation, unwritten courtesies, collegiality and 
tradition of the Senate, that the President's nominees would be 
confirmed, where possible. And if there is a serious objection, that 
should be raised.
  My concern in the matter of Miguel Estrada is, for the first time--
maybe this century maybe ever--a court of appeals nominee is facing a 
confirmation process that would require not a majority of votes in the 
Senate but a supermajority--60 votes--to be confirmed. That is 
something we have not done before. It is not something we should 
proceed with.
  The Constitution, in article II, section 2, says:

       [The President] shall have Power, by and with the Advice 
     and Consent of the Senate, to make Treaties, provided two-
     thirds of the Senators present concur; and he shall nominate, 
     and by and with the Advice and Consent of the Senate, shall 
     appoint Ambassadors . . . Judges of the supreme Court, and 
     all other Officers. . . .
  The Constitution does not say what the vote should be, but it has 
been fully understood it meant a majority because when a supermajority 
of two-thirds was required, the Constitution spelled it out explicitly.
  So the reason many of us on this side, who have been involved and 
have studied the confirmation process, are deeply concerned by what is 
happening here is because we are changing the ground rules in an 
extraordinary way. We are saying now--without any real basis, without 
any statement of wrongdoing by this nominee, any proof whatsoever that 
he is extreme or will not follow the law--they are now asserting this 
young Hispanic, outstanding lawyer has to have 60 votes to be 
confirmed, not 51. That is not right. I urge the Members of this body, 
I plead with the Members of this body: Do not do this. This knife cuts 
both ways.
  Are we setting a precedent we are going to follow as long as this 
Senate exists? If you do not like a nominee, and 40 people get 
together, they can block that nominee? That was not done

[[Page S2300]]

when President Clinton was President. There was not a filibuster of a 
President Clinton nominee. There was not a blocking of any of the 
nominees in committee.
  Last year, when the Democrats had the majority in the Judiciary 
Committee, they blocked two nominees in committee on a straight party-
line vote, both of whom would have been confirmed, it was clear, from 
news reports, had they reached the floor. They killed them in 
committee. I thought they had, but that may not be the case today. That 
was a rachetting up of the process. They said: Well, you held up 
President Clinton's nominees.
  Let me tell you what the facts are there. In the 8 years that 
President Clinton was President, he had confirmed 377 Federal judges. 
One of his nominees was voted down. That nominee was opposed by the 
National Sheriffs Association, law enforcement groups, and both Home 
State Senators. It is the only one that was voted down. Not one was 
killed in committee on a party-line vote. Not one was filibustered.
  So I just say, that it is not true that President Clinton's nominees 
received unfair scrutiny. Yes, they were asked questions, but they were 
asked responsible questions. And they were consistently confirmed in 
large numbers.
  They said: Well, some of them did not get through. The fact is, when 
President Clinton left office, he had nominated 41 judges who had not 
been cleared. He confirmed 377, but 41 had not cleared.
  When former President Bush left office in 1992, there were 54 judges 
which the Democratic majority Senate had not confirmed.
  So it is a total falsehood to suggest the Clinton nominees were 
mistreated when they came through here. They got a higher percentage of 
them confirmed than did former President Bush's nominees. They were not 
filibustered, and they were not blocked in committee. I feel very 
strongly about that.
  It has been said that you Republicans said advise and consent is not 
a rubberstamp and you had a right to raise questions and vote against 
nominees.
  I agree with that. We all have that right. We can vote against them. 
We have a right to debate them. We have a right to ask questions. If we 
are not satisfied with those answers, we have an obligation to vote no. 
We should vote no. But wait a minute. What if we don't allow them to 
have a vote? Is that what we are saying? We are going to vote to not 
allow a vote? I am not at all pleased with that.
  One person suggested we are dealing with judges from the lunatic 
fringes. That was a quote made earlier. This nominee cannot possibly be 
considered a lunatic fringe nominee. This nominee unanimously was rated 
well qualified by the American Bar Association. The ABA goes out and 
investigates these nominees. They ask what cases they have handled. 
They then make a list of the lawyers on the other side of the cases, 
and they go out and interview the lawyers. They interview the judges 
who tried the cases. They don't give out well-qualified ratings that 
often. It is rare to get a unanimously well-qualified rating.
  How can we say Miguel Estrada is somehow out of the mainstream or a 
lunatic fringe nominee when the gold standard, as one of my Democratic 
colleagues said, the ABA, rated him well qualified with their highest 
possible rating? It can't be done.
  He went to Harvard. He was editor of the Law Review and spent 5 years 
in the Department of Justice Office of Solicitor General under the 
Clinton administration. Under the Clinton administration he was 
evaluated repeatedly by his supervisors, and he was given the highest 
possible evaluation you could give an attorney in the Department of 
Justice every year, the top rating.
  Is this some sort of incapable stealth candidate we don't know 
anything about? No, sir. Not so.
  One of our Senators talked about the Constitution as a changing 
document and that from time to time we just change it. I think that is 
dangerous. Our liberties are bound up in that document. If we say we 
have a right to change its meaning from time to time, according to the 
length of the chancellor's foot, according to how a judge may feel on a 
given day, our liberties have been eroded.
  I remember Professor Van Alstyne at Duke, a constitutional scholar, 
said: If you love this Constitution and you really respect the 
Constitution, you will interpret it as it is written. You don't 
interpret it as you wish it were. If you do that, you don't respect the 
document. You undermine the document and the power that it has had for 
generation after generation to protect our liberties and order.
  They say: You are just pounding on the table over there, Republicans. 
You have no argument whatsoever.
  That is not true. Mr. Estrada has one of the highest recommendations, 
with one of the greatest backgrounds of any nominee I have ever seen 
come before this Senate. I was in the committee and I heard his 
testimony. It was absolutely superb, one of the finest testimonies I 
have seen. He was responsive, intelligent, quiet, thoughtful, courteous 
to the questioners, at times when he should not have been. I was very 
impressed with him.
  Some think maybe the opposition to this young conservative Hispanic 
is because, who knows, President Bush might want to put him on the 
Supreme Court. I will just say this: I saw him testify. I read his 
record and background. He would make an outstanding Supreme Court 
Justice, a great Supreme Court Justice. He has integrity and legal 
thought processes that are superb. I am very pleased with him.

  They throw out these charges. I just happen to know some of them 
because I have been involved in the hearings. They said one judge was 
asked to give all his downward departures in criminal cases. What a 
judge sentences in a criminal case is a public document. It is part of 
the public record. A downward departure means the judge has violated 
the sentencing guidelines. But when he does that, he has to write a 
special opinion to justify why he downward-departed and gave the 
criminal defendant less than the statutory minimum and sentencing 
guidelines would require him to get as a sentence. I don't think that 
was an extreme thing to ask.
  What they are asking this nominee to do is reveal internal memoranda 
he wrote while he was a member of the Clinton administration to his 
fellow colleagues as they discussed how to handle complex legal 
matters. Every single living Solicitor General has said that this 
should not be done. There are seven of those, and four of them are 
Democrats. They have said: No, we do not want our attorneys' work 
product, our internal memoranda popped up every time somebody wants to 
do it. If members of our staff think they can't express an honest 
opinion in my law office as Solicitor General, then they are being 
chilled, if they are going to bring it out some day and say, you can't 
be a Federal judge because as a young lawyer you wrote a memorandum 
that didn't make sense.
  Also they want the free and open discussion they get from the members 
of their staff. That would be reduced if these memoranda should be put 
forward.
  I ask my colleagues: Should those documents be produced? Is that 
something we have to do here? Is that a good policy for America to say 
that from henceforth, now and forever, every member of the Department 
of Justice, every member of a law firm who wrote internal memoranda, 
they have to produce all of those before they can be confirmed? That is 
a dangerous precedent we ought not to follow.
  They say: Well, there are some examples in which that happened. The 
Senator from Connecticut had some documents and had a letter from the 
Department of Justice asking for them back. He said: That proves they 
had to exist because they asked for them back.
  I asked him about it. He introduced them into evidence. I read them. 
Well, it was the Bork confirmation. There were allegations about 
Watergate and those kind of things, and they were asking questions 
before they wanted to put him on the court about specific concerns that 
Bork may have acted improperly in a series of positions and events. So 
they asked for those documents, and at some point they turned them 
over.
  That is not the routine thing. There has not been a single suggestion 
Miguel Estrada has done anything to implicate

[[Page S2301]]

himself in a Watergate type matter. He was a lower echelon attorney in 
the Solicitor General's office of President Bill Clinton. They have not 
suggested he would do anything corrupt. They have not suggested any 
particular issue he took some extreme view on that somehow we have to 
have this document.
  They want a fishing expedition. Not so. We ought not do that. I urge 
my colleagues, I plead with my colleagues, do not do this. We ought not 
to do it. It is not right we would do that.
  Well, the junior Senator from New York said that power corrupts, and 
somehow that moving this nominee, who almost sat here for 2 years--
moving forward and having a hearing and all, is somehow corrupt or some 
sort of corrupt thing--to ask for a vote and insist we have a vote, 
that is corrupt.
  Well, I say this: All of us have responsibilities to use our power 
responsibly. We ought not abuse that power. Abuse of power is a form of 
corruption. But, may not the minority be corrupt if they use the rules 
and procedures of this Senate to work a transformation of the 
traditions of this Senate, to block a nominee by requiring that they 
now have to have 60 votes instead of a majority? Could that be a form 
of corruption? I suggest it may be. Why? Because hard left attack 
groups insist and jerk their chain and demand that they vote no, so 
they just fall in line with that kind of thinking. I am not happy with 
that.
  I don't believe this nominee deserves this kind of delay. I believe 
he deserves a vote. I believe there is not one bit of evidence that has 
come into this record that indicates he has any failings that would 
disqualify him from the federal judiciary. I think we ought to give him 
a vote. They asked a nominee how he voted on some issue. I remember 
that. Somebody asked that question. The nominee didn't answer it, and I 
think it was said that he should not answer it. He never answered it, 
and he was confirmed. They are saying if you don't produce 
confidential, internal Department of Justice memoranda, we are not 
going to confirm you.
  Well, what is this all about? I remember quite a number of years ago, 
there was a ``Meet the Press'' program and Hodding Carter, who used to 
be assistant to President Carter, was asked about judges and 
nominations when President Reagan was in office. He made this comment. 
He said: The truth is, we liberals have been asking the Federal courts 
to do for us that which we can no longer win at the ballot box.
  If you cannot win the issue at the ballot box and you can get an 
activist judge on the bench, maybe you can just file a lawsuit and they 
will rule your way. Maybe they will just reinterpret the meaning of the 
Constitution or statute and give it some new meaning and just use the 
law to effect a political agenda.
  That is not right. When judges are given lifetime appointments, you 
need judges who are faithful to the Constitution and the statutes. That 
is what Miguel Estrada's judicial philosophy is. That is what it is. It 
is a hostility to use the law for other matters. He believes in giving 
the law a fair construction, as he said to Senator Edwards. He asked a 
little bit about it, and Senator Edwards pursued the matter a little 
later. He said: Well, President Bush said that he believes in strict 
construction. You say you believe in fair construction, and Mr. Estrada 
replied that he had not talked to President Bush about it. He said: You 
asked me my opinion. My opinion is fair construction. Mr. President, 
that is an independent and wise answer.
  So we have seen courts do things that are really bizarre in America 
today. We have seen the courts be utilized as a tool to further 
agendas. Many decisions that we have seen rendered fly in the face of 
logic. We had judges on the Ninth Circuit Court of Appeals rule that 
``under God'' should be taken out of the Pledge of Allegiance. We have 
had one judge in Vermont--he had a good name, Sessions--whom we 
confirmed. He is Senator Leahy's friend and was his campaign manager. 
It wasn't long after Judge Sessions got on the bench that he declared 
the Federal death penalty unconstitutional. We have heard Senators talk 
about Berzon and Paez having some difficulties. But I would say that 
perhaps they should have had some difficulties. Since they have been 
affirmed just a few years ago, after taking their positions on the 
Federal bench in California, they both have participated in separate 
opinions declaring the California ``three strikes and you are out'' law 
unconstitutional. This law has been the basis of tens of thousands of 
convictions of defendants and has helped drive the crime rate down. Yet 
they said they thought it was cruel and unusual punishment to have a 
mandatory penalty--really an odd and extreme view.

  I felt very strongly that both of those nominees were going to be 
activist judges, were not going to be bound by the law, and I voted 
against them; but they both were confirmed. We didn't filibuster them. 
They got their up-or-down vote, and they were confirmed with a majority 
of the vote in this Senate. So I just make that point.
  As one of our witnesses said in committee, all in all, a judge who 
believes in strict construction of the law, or a fair construction of 
the law, and who is not an activist poses less threat to our liberties 
than one who is an activist judge. That is what Miguel Estrada believes 
in. That is what President Bush believes in. He wants to bring some 
sanity back to our legal system. He wants judges who have the classical 
view of the law. He wants judges who do not feel it is incumbent upon 
them to tell a city they cannot have Christmas decorations. He does not 
believe they should be striking down the Pledge of Allegiance, or 
striking down the Federal death penalty, or striking down the 
California ``three strikes and you are out'' law. Those are activist 
decisions and they threaten our judicial process and deny the people 
the right to control their destiny.
  Federal judges, being lifetime appointed, are not subject to control 
by the democratic process. So when they are given the power to carry on 
political agendas, then they are acting in an antidemocratic way. It is 
an anti-, undemocratic act when a lifetime appointed judge, with no 
accountability to the public, starts issuing opinions that affect 
public policy.
  Well, I will just say that it wasn't long ago when the leadership on 
the other side, without any hesitation, opposed the filibustering of 
Federal judges. Senator Leahy, past chairman of the Judiciary 
Committee, and currently the ranking Democrat on the committee, said 
this:

       If we want to vote against somebody, vote against them. I 
     respect that. State your reasons. I respect that. But don't 
     hold up a qualified judicial nominee. . . . I have stated 
     over and over again on this floor that I would . . . object 
     and fight against any filibuster on a judge, whether it is 
     somebody I opposed or supported, that I felt the Senate 
     should do its duty.

  That is a clear and unequivocal statement in opposition to a 
filibuster. He said that in 1998.
  In 2000, Senator Leahy said:

       I have said on the floor, although we are different 
     parties, I have agreed with Governor George Bush, who has 
     said that in the Senate a nominee ought to get a [floor] 
     vote, up or down, within 60 days.

  Senator Biden, the past Judiciary chairman:

       But I also respectfully suggest that everyone who is 
     nominated ought to have a shot, to have a hearing and to have 
     a shot to be heard on the floor and have a vote on the floor. 
     . . . It is totally appropriate for Republicans to reject 
     every single nominee if they want to. That is within their 
     right. But it is not, I will respectfully request, Madam 
     President, appropriate not to have hearings on them, not to 
     bring them to the floor, and not to allow them to have a 
     vote. . . .

  Senator Feinstein:

       A nominee is entitled to a vote. Vote them up; vote them 
     down.

  On and on that is mentioned. That has been our policy. Sure, some 
nominees have been held, but they usually have been forced up for 
votes, and they have gotten their vote.
  When President Clinton left office, there were only 41 judges who did 
not get a vote. Only 41. There were 54 when President Bush left office, 
and it has been historic in this body at the end of a session when 
nominees come in and people are thinking there might be a new 
President, the process slows down. That has happened for good or ill 
probably for the last century. That is within the realm of 
responsibility. To openly filibuster a qualified nominee (early in a 
term) is contrary to the traditions of this body and would set a 
precedent that would be quite dangerous.
  Once again, I urge my colleagues not to go down this road. I urge my 
colleagues to think seriously before they

[[Page S2302]]

consider a routine filibuster. Maybe if this nominee had ethical 
problems or serious personal problems, that would justify a filibuster, 
but not a nominee who is rated well-qualified by the bar, who has the 
support of virtually everyone with whom he has worked, who demonstrated 
by his testimony extraordinary skill and intelligence. I respect him. I 
believe he should be given a vote. I hope and believe that somehow we 
will avoid this and we will get an up-or-down vote on him.
  That is my request to my friends across the aisle, and it would be a 
mistake if that does not occur.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.


                         University of Michigan

  Mr. LEVIN. Mr. President, George Washington was nearing the end of 
his Presidency. He dreamed of a national university for the United 
States to be located in Washington. This university was going to bring 
together all the different people of this great country into one 
educational setting to learn together, to learn from each other, to get 
to know each other, to overcome prejudices and intolerance.
  President Washington actually planned to include his vision of such a 
university in his now famous and historic Farewell Address. It was not 
included in that Farewell Address. Apparently, one of the people who 
was working with him on that Farewell Address was Alexander Hamilton 
who urged, as he was writing the address, drafting it:

       The idea of the university is one of those which I think 
     will be most properly reserved for your speech at the opening 
     of the session. A general suggestion respecting education 
     will very fitly come into the address.

  In other words, what Hamilton was saying is this vision of yours, Mr. 
President, about a national university, where people can come to shed 
their prejudices from various parts of the country, to live and work 
with each other should be saved for a different address. Leave it out 
of the Farewell Address.
  In fact, President Washington ended up leaving it out of his Farewell 
Address, but he included it in a letter. It is a letter which has come 
down through the generations, and that vision of a national university 
was outwardly reflected in this letter.
  He stated his belief that this country would be stronger if the 
children from different parts of the country could come together in an 
educational setting to learn from each other and about each other.
  I want to read a few parts of this letter of George Washington 
because I think it has an application to the University of Michigan 
case which is currently pending in the Supreme Court.
  I come from the State of Michigan. I am proud of it, and I am proud 
of our university and its effort to promote diversity, and not just 
racial diversity, but geographic diversity, economic diversity, gender 
diversity--diversity in general which has been promoted by not just the 
University of Michigan but by most universities in this country, and it 
seems to me is to be encouraged.
  What George Washington sensed 205 years ago was that a university had 
a special ability to bring together different people to help them learn 
about each other, drop their fears of each other and make us one 
Nation.
  This is what he wrote:

       I have regretted that another subject (which in my 
     estimation is of interesting concern to the well-being of 
     this country) was not touched upon also: I mean Education 
     generally as one of the surest means of enlightening and 
     givg. just ways of thinkg to our Citizens, but particularly 
     the establishment of a University; where the Youth from all 
     parts of the United States might receive the polish of 
     Erudition in the Arts, Sciences and Belle Letters; and where 
     those who were disposed to run a political course, might not 
     only be instructed in the theory and the principles, but 
     (this Seminary--

  Referring to the university--

     being at the Seat of the General Government) where the 
     Legislature wd. be in Session half the year, and the 
     Interests and politics of the Nation of course would be 
     discussed, they would lay the surest foundation for the 
     practical part also.
       But that which would render it of the highest importance, 
     in my opinion, is, that the Juvenal period of life, when 
     friendships are formed, and habits established that will 
     stick by one; the youth . . . from different parts of the 
     United States would be assembled together, and would by 
     degrees discover there was not that cause for those 
     jealousies and prejudices which one part of the Union had 
     imbibed against another part; of course, sentiments of more 
     liberality in the general policy of the Country would result 
     from it. What, but the mixing of people from different parts 
     of the United States during the War rubbed off these 
     impressions? A century in the ordinary discourse, would not 
     have accomplished what the Seven years association in Arms 
     did; but that ceasing, prejudices are beginning to revive 
     again, and never will be eradicated so effectually by any 
     other means as the intimate intercourse of characters in 
     early life, who, in all probability, will be at the head of 
     the councils of this country in a more advanced stage of it.

  He went on:

       To shew that this is no new idea of mine, I may appeal to 
     my early communications to Congress; and to prove how 
     seriously I have reflected on it since, and how well disposed 
     I have been, and still am, to contribute my aid towards 
     carrying the measure into effect, I enclose you the extract 
     of a letter from me to the Governor of Virginia on this 
     Subject, and a copy of the resolves of the Legislature of 
     that State in consequence thereof.
       I have not the smallest doubt that this donation (when the 
     Navigation is in complete operation, which it certainly will 
     be in less than two years), will amount to twelve or 1500 
     pounds Sterlg a year, and become a rapidly increasing fund. 
     The Proprietors of the Federal City have talked of doing 
     something handsome towards it likewise; and if Congress would 
     appropriate some of the Western lands to the same uses, funds 
     sufficient, and of the most permanent and increasing sort 
     might be so established as to envite the ablest Professors . 
     . . to conduct. . . .

  President Washington saw that the two strongest ways to unite a 
country are when people go to war together against the common enemy and 
when they go to school together with a common goal, to learn. While we 
would all like to avoid the need to fight together, we all know we can 
strengthen our ties to democracy and to our country when we learn 
together about the world and each other.
  Learning together allows us to strip away the prejudices that would 
otherwise keep us apart. The hope of George Washington was later joined 
by the dream of Martin Luther King and by the promise and the potential 
of Brown v. Board of Education a half century ago, and they are now 
hanging in the balance because of the issues that are raised in the 
University of Michigan affirmative action cases before the Supreme 
Court.
  In April, the U.S. Supreme Court is going to hear two oral arguments 
in two separate lawsuits challenging the University of Michigan's 
diversity admissions policy. The Court's decision in these cases will 
result in the most far-reaching affirmative action ruling since the 
Bakke decision in 1978. The Court will decide the critical issue of 
whether Bakke still remains the law of the land and whether racial or 
ethnic diversity has a value at a university which can be considered in 
admissions of higher education.
  In the Bakke decision, the Court ruled against rigid quotas or set-
asides based on race but found that higher education could consider 
race or ethnicity as a factor in a properly considered competitive 
admissions process to achieve the educational benefits of diversity.
  If the Court overturns Bakke, it could outlaw any consideration of 
race or ethnicity in admissions to colleges and universities.
  There is a national security factor to this issue as well. There are 
going to be a number of military officers and people connected with 
national security and defense who will be filing an amicus brief in 
support of the University of Michigan because universities run ROTC 
programs. Those programs, where there is diversity at the universities 
that have them, produce officers for the military, who in turn are 
diverse and reflect our population. The failure to have officers who 
reflect our population in terms of race and ethnicity and gender, the 
failure to have diversity in our officer corps, led to huge problems of 
morale in the military for decades, until just about 20 years ago when 
we reached out and made great efforts to have diversity in our officer 
corps. That is going to be a part of the issue in an amicus brief filed 
in the University of Michigan case.
  I am not going to spend a lot of time on that aspect, but I do want 
to at least comment on the fact that a significant number of very 
significant military officers, retired officers, who have been 
connected at the highest levels with our Nation's military and its 
schools, are going to be filing a brief

[[Page S2303]]

with the Supreme Court relative to this issue.
  I want to comment on the more fundamental issue, which is the value 
of diversity in a university and whether it is conceivable in this 
country that we will say to universities that they can give additional 
points for geography, which many universities do, including the 
University of Michigan. In other words, they can reach out to students 
in different parts of their State who have been underrepresented and 
try to get better representation from those underrepresented parts. 
They can give additional points for that. They can give additional 
points for gender. If the law school has not had women students, they 
can give additional points for that in order to overcome the problems 
which were created when women were discriminated against. They can have 
an affirmative action program for that. They can give additional points 
to alumni, kids--and they all do--and athletes--and they all do--and 
the children of public officials--and many of them do.

  Geography alone, which George Washington talked about--I went to a 
college out east which I know for a fact reached out geographically in 
this country to try to have good representation from various parts of 
the country. I come from the Midwest. My SAT scores were not as high as 
some of the kids' in the East, but the college I went to decided it was 
important to those kids from the East that they have kids from the 
Midwest, kids from the Far West, kids from the South, kids from the 
Southwest, kids from Alaska, kids from Hawaii, kids from Africa--it is 
important to the education of our students that they go to school with 
a diverse group of students. So they gave out geographic points. I got 
points. I do not think I would have gotten into my college, my beloved 
college, Swarthmore, but for the fact that I came from the Midwest and 
I was given some additional points. I do not know for sure, but that is 
my belief, and that is the likelihood, I have no doubt. I know they 
have geographical affirmative action. Is it conceivable that points can 
be given for everything but race to achieve diversity, that race is 
singled out as the one area where we cannot reach out to achieve 
diversity in our universities? Is it possible that is what we are going 
to come to in this country, that the equal protection clause will be 
turned right on its head? The 14th amendment, which was designed, at 
least in significant measure, to end the scourge of the remnants of 
slavery, is going to be used to prevent diversity from being achieved 
in one area where it is most important that we have a diverse 
university, and that is the area of race. It is the one area where we 
have had the most difficulty in overcoming the kind of prejudices and 
obstacles President Washington talked about and for which he said a 
university was the most suited, other than going to war together.
  Our military has done a spectacular job in terms of diversity. It has 
been a huge factor in the promotion of democracy in this country. 
Hopefully, we do not have to go to war to promote coming together and 
learning to overcome prejudices and differences. Hopefully, our 
universities can be allowed to reach out, as they are with geography, 
to overcome the fact that some parts of our States are totally 
underrepresented in our educational institutions, to say, yes, we are 
going to reach out to that part of the State and we are going to try to 
get more students from there; they may not have done quite as well on 
their SATs, because of various historic factors or whatever, but they 
are highly qualified students, so we are going to give some additional 
points to those students. But not race? Race would be singled out for 
not being permitted to be given additional consideration to achieve 
diversity which is so valuable in education? That would be an 
unthinkable, unconscionable result, and a distortion of the very 
purpose of the equal protection clause.
  Of all the areas where we have the most hurdles to overcome, most 
barriers to overcome, more attitudes to overcome, more prejudices to 
overcome, with all the progress we have made--and we have made a lot--
we have a long way to go in the area of race. The idea that somehow or 
another all that other diversity, all those other additional points can 
be given--alumni kids, you can get 10 points; athletes, you can be 
given 20 points; gender, you can be given points; economic, you can be 
given points--but not race, that would be, it seems to me, singling out 
race for discriminatory treatment when it comes to promoting diversity 
at a university.

  The law school's current policies have been upheld by the Sixth 
Circuit as being consistent with Bakke. The Sixth Circuit has 
explicitly rejected the plaintiff's contention that the system used by 
the University of Michigan was the functional equivalent of a quota. 
The Sixth Circuit found that the law school's admissions program is 
``virtually indistinguishable'' from the Harvard man, which Justice 
Powell held out in the Bakke decision as the appropriate model.
  In the University of Michigan's undergraduate admissions program, 110 
points out of 150 are given for academic factors, including grades, 
test scores, and curriculum. The greatest weight, up to 80 points, goes 
to high school grade point average. Applicants can earn up to 12 points 
for SAT or ACT scores, up to 10 points for attending a competitive high 
school, 8 points for taking the most challenging curriculum, and 3 
points for SAT quality. Other factors can be considered, including 
geography, athletics, relationship to alumnus, economic disadvantage. 
Points can be added for students from various parts of the State which 
have been underrepresented at the university. Students who have 
athletic scholarships get additional points, children of alumni get 
additional points, students from economically disadvantaged backgrounds 
get additional points. And at the University of Michigan, students from 
an underrepresented racial or ethnic minority or attending a high 
school serving a predominantly minority population can receive 
additional points. And the provost can award additional points to 
applicants at his or her discretion.

  The idea it is all right for colleges and universities to give 
special consideration to all the other groups--children of alumni, 
large donors' children--how is that one? It is OK to give special 
consideration to the children of large donors for whatever university 
purpose that serves--but it is not OK to give additional points to 
underrepresented minorities for the obvious university purpose that 
serves, which is a diverse student population, which our first 
President, the Father of our Country, pointed out in this letter is 
absolutely essential if this country is going to be one, if this 
country is going to be unified.
  Indeed, he saw that 200-plus years ago. I hope the Supreme Court will 
have the wisdom of reading that letter and seeing how important it is 
that President Washington's dream to bring people from different parts 
of the country, that people of different backgrounds, which is the 
University of Michigan program, can, in fact, be realized. That is what 
some of the stakes are in the University of Michigan case.
  Since we are talking judicial matters this evening, I wanted to raise 
that issue, as well.
  Mr. SESSIONS. Is the Senator going to another subject for long?
  Mr. LEVIN. It will be lengthy.
  Mr. SESSIONS. I would like to speak on the Estrada nomination.
  Mr. LEVIN. You can talk for quite some time on that. You have talked 
longer, I believe, than I have on this evening.
  Mr. SESSIONS. Not as long as some of the other Members over there.
  Mr. LEVIN. Let me try to limit this to about 10 minutes.
  The PRESIDING OFFICER. The Senator from Michigan has the floor.


                           National Security

  Mr. LEVIN. I will keep the floor and try to keep this down to 10 
minutes.
  Earlier today we had a hearing in the Armed Services Committee where 
we received testimony from the intelligence community on worldwide 
threats to our national security. I gave an opening statement at that 
hearing, parts of which I want to share with the Senate tonight because 
of the importance of the subject of Iraq. We have a lot of work ahead 
of us. We have threats of all kinds, threats which are more immediate, 
more personal, more imminent, than Iraq, particularly the al-Qaida 
terrorist network, even though that network has been weakened, it has 
been deprived of its safe haven in Afghanistan.

[[Page S2304]]

  It has, just over the last few months, attacked innocent civilians in 
Bali and Tunisia and has attacked United States service members and 
civilians in Kuwait and Jordan.
  Last month, the United States and coalition forces fought the biggest 
battle in Afghanistan since Operation Anaconda last spring. Even though 
our intelligence and our law enforcement agencies are working with 
allied countries to thwart further attacks in the United States and 
abroad, the fact is we remain highly vulnerable to al-Qaida, to other 
terrorist groups. As a matter of fact, the United States is at alert 
orange now--that is the second highest level of alert in our military 
forces--and also at heightened force protection levels worldwide. We 
remain vulnerable. We remain vulnerable not just to conventional 
explosives but now, we believe, more and more vulnerable to weapons of 
mass destruction.
  Earlier this week, Federal officials even suggested the public should 
make preparations for a terrorist attack involving chemical, 
biological, or radiological weapons. While we are placing such a huge 
focus on Iraq, North Korea, a country that possesses weapons of mass 
destruction and has ejected the international nuclear inspectors, has 
declared it is resuming operation of its plutonium-related nuclear 
facility.
  North Korea is not just a country which proclaims it is engaged in a 
nuclear program as it now has with the enriched uranium program. North 
Korea is probably the world's worst proliferator of ballistic missile 
and missile technology. It is on the brink of becoming an undisputed 
nuclear power. The administration has refused to open a direct dialog 
with North Korea. That has serious ramifications. Our ally which lives 
next to North Korea, which surely has got at least as much at stake as 
we do in the whole matter--and, I think, obviously a lot more since 
they are the ones nearest the threat--our ally, South Korea, wants us 
to open a direct dialog with North Korea. They have openly expressed 
the wish that this country have a direct dialog of the highest levels 
with North Korea.
  The administration has decided not to do that, and all of a sudden, 
what is obviously a crisis to most of us and most of the world, is not 
even described as a crisis by the administration. Even though the 
failure to have contact, the linking it to the axis of evil and the 
announcement we will have a preemptive policy using military force, 
could lead to additional provocative and irreversible action on their 
part because it is stoking the paranoia which exists in North Korea.
  On top of that, Iran has admitted now it is mining uranium. That 
surely must underscore our concern that its nuclear energy program is 
intended for nuclear weapons, not just for the promotion of nuclear 
energy. Iraq is the focus and Iraq continues to flout the international 
community. It is not assisting U.S. weapons inspectors to find or 
account for chemical or biological weapons programs. Disagreement on 
how to address the Iraqi threat has divided the U.N. Security Council.
  Surely there can be little doubt Osama bin Laden would like to see 
the United States and Britain attack Iraq without the authority of the 
world community acting through the United Nations. Keeping the world 
community together through the U.N. Security Council is exactly what 
Osama bin Laden does not want to see. He does not want to see a United 
Nations. He wants to be able to say it is the United States, it is 
Britain, and it is a few of their personal, close allies. It is not the 
world that is going after Iraq, it is the United States and Britain 
that are doing it. He does not want, it is obvious, the world community 
to be united against the Iraqi threat. He wants to be able, as does 
Iraq, to characterize the effort as an American/British-led unilateral, 
not having U.N. authority type of effort.
  All of us want Saddam Hussein to be disarmed. The best way to 
accomplish the goal of disarming Saddam Hussein without war is if the 
United Nations speaks with one voice relative to Iraq. I want to repeat 
that, as I think there is so much concern about the possibility of war 
with Iraq that that particular point is frequently lost.
  The best way to accomplish the goal of disarming Saddam Hussein 
without war is if the United Nations speaks with one voice relative to 
Iraq.
  But if military force is going to be used, the best way of reducing 
the short-term risks, including risks to the U.S. coalition forces, and 
the long-term risks, including the risk of terrorist attacks on our 
interests throughout the world, is if the United Nations specifically 
authorizes the use of military force. That is the bottom line. The best 
way of increasing any chance for disarming Hussein without war, and of 
minimizing casualties in future attacks on the United States if war 
does ensue is if the United Nations acts relative to Iraq.
  The next point, though, is essential as well. Supporting U.N. 
inspections is an absolutely essential step if we are going to keep the 
Security Council together. We are not going to have a chance of keeping 
the United Nations Security Council speaking with one voice unless we 
support United Nations inspections, which are and have been such an 
important part of the Security Council's position.
  How do we support those U.N. inspections? First, by sharing the 
balance of the information that we have about suspect sites; No. 2, by 
quickly getting U-2 aircraft in the air over Iraq, with or without 
Saddam Hussein's approval, and by giving the inspectors the time they 
need to do their work as long as the inspections are unimpeded.
  I disagree with those, including high officials in our government, 
who say that U.N. inspections are useless. We heard before the 
inspections began from the highest level of this government that 
inspections were useless. We heard it from Dr. Rice at the White House 
last week. She said specifically that inspections are doomed to 
failure.
  I am also astounded that some of our highest officials have gone so 
far as to refer in a derogatory way to the ``so-called'' U.N. 
inspectors. If these inspectors and inspections are useless without 
Iraqi assistance in pointing out where they have hidden or destroyed 
weapons of mass destruction, why are we sharing any intelligence at all 
with the inspectors; and why are we apparently finally implementing U-2 
flights to support the inspectors?
  It is one thing to be realistic about the limitations of the U.N. 
inspections and not have too high hopes about what they can produce. It 
is another thing to denigrate their value or prejudge their value or to 
be dismissive and disdainful about the beliefs of others on the U.N. 
Security Council about their value, or to be cavalier about the facts 
relative to those inspections.
  Referring to being cavalier about facts brings me to another point 
which has to do with the sharing of intelligence information in our 
possession with the U.N. inspectors. I have followed this issue very 
closely. I have asked the CIA for months to give us the precise 
information as to how many suspect sites there are, how many of those 
suspect sites are of great significance, for how many of the 
significant sites have we shared information that we have with the 
United Nations inspectors. They have given me the information in 
writing but, as it turns out, it is erroneous.
  We just began sharing specific information in early January, 
according to Secretary Powell, who is quoted in the Washington Post on 
January 9. I can't go into those classified details in the open. I 
can't give the precise numbers, how many suspect sites we have 
information on, how many of those suspect sites that we have 
information on are of significance, and how many of those have we 
shared with the United Nations. The numbers themselves are classified.

  I can say in an unclassified setting, in public, that as of a couple 
of weeks ago we had shared information on only a small percentage, a 
fraction of the suspect sites in Iraq, and we had not shared 
information on the majority of the suspect sites. That was confirmed by 
CIA staff.
  Yet when I asked the Director of the CIA yesterday about this 
subject, he told us that we have now shared with the U.N. inspectors 
information about every site where we have credible evidence--all of a 
sudden, going from a fraction of the sites to we have now shared all 
the sites.
  Then last night, in Director Tenet's presence and in the presence of 
Senator Warner, his staff acknowledged that as a matter of fact we 
still have useful information that we have not shared

[[Page S2305]]

with the inspectors--which is the opposite of what Director Tenet told 
the Intelligence Committee yesterday in open session. If we have not 
yet shared all the useful information that we have with the U.N. 
inspectors, that would run counter to the administration's position 
that the time for inspections is over.
  The same type of issue exists relative to the U-2s. The inspectors 
have asked for U-2 surveillance planes. These are planes which have a 
capability of tracking those suspicious vehicles on the ground that 
have been referred to by Secretary Powell in his speech, tracking the 
vehicles that are at a suspicious site and going to another site. They 
have the advantage of being able to loiter. Unlike a satellite, a U-2 
can loiter and actually keep track of a vehicle as it moves from one 
suspicious place to another and can connect that information to 
inspectors in real time. They are intensely valuable to the inspectors. 
They have asked over and over again for the U-2 flights. Why haven't 
they been provided to the inspectors?
  Well, because Saddam Hussein says he can't guarantee the safety of 
the pilots. So instead of going to the U.N. and saying: Resolution 
whatever the number is, the United Nations authorizes these U-2 flights 
and if Saddam Hussein interferes with these flights that will be 
considered an act of war against the United Nations--instead of doing 
that, to give the inspectors this additional capability, at least until 
yesterday or perhaps today, Saddam Hussein has been given a veto by the 
U.N.--including us; we are part of the U.N.--over the use of 
surveillance planes, which would contribute to the likelihood that 
inspectors would catch him with the goods.
  I hope that is over now. I don't know for sure that it is. I hope now 
there is an arrangement made to use the U-2 flights. But if we believe 
it is important, short term and long term, to both avoiding war, and if 
war comes, to reducing its risks, that we have a United Nations that is 
united, speaking with one voice against Iraq, we then must deal with 
the United Nations' key request that we have an inspection process 
which is complete and robust. And we must lead at the United Nations to 
help make it robust. And that includes the use of the U-2 planes.
  We have made the suggestion, Senator Clinton and myself, in a letter 
which we sent to Secretary Powell, that that kind of resolution be 
introduced at the United Nations which would provide that the U-2 
planes be authorized by the United Nations, have the United Nations 
flag, and, if interfered with by Saddam Hussein, that would be 
considered an act of war against the United Nations and every member 
would then be authorized to use military force in response.
  When President Bush addressed the United Nations General Assembly on 
September 12 of last year, he said that:

       We want the United Nations to be effective, and respectful, 
     and successful.

  We have some responsibility to help the United Nations achieve that. 
Saying to other countries, including allies, that if you don't see it 
our way you must have some ulterior motive, doesn't help us in leading 
the United Nations to a united front against Saddam Hussein. While a 
number of heads of State and Governments have called for the United 
Nations Security Council to take appropriate action, necessary action 
in response to the threat, and others have pledged to contribute 
military forces to that effect, others believe we should give 
strengthened inspections the time that they need to finish their 
job. But all of the groups agree on the necessity of disarming Iraq.

  Rather than following a course that divides the United Nations and 
separates us from some of our closest allies, we should fairly consider 
courses of action that unite the world community against Iraq.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent that the 
distinguished Senator from Pennsylvania be allowed 6 minutes without my 
losing the right to the floor and that I immediately be recognized 
thereafter.
  The PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have sought recognition to comment 
about the current procedures with respect to the selection of judges, 
and what is happening in the Senate today is a constitutional 
revolution.
  The Constitution provides that the Senate will give advice and 
consent to the President. And the tradition of this country for 215 
years has been that the President makes selections as he chooses, and 
advice can come from the Senate. Consent has been given without 
challenging the President to a partnership arrangement where the Senate 
has to consent to the nominee before the President can submit the 
nominee to the Senate with any chance for confirmation.
  What the Democrats are doing here today is really seeking a 
constitutional revolution. What they want as the minority party in the 
Senate is a full partnership with the President on selecting Federal 
judges.
  What we are doing with Miguel Estrada, and other nominees who are 
coming up for an executive session tomorrow, is really a prelude to the 
nomination of the next Justice for the Supreme Court. The effort is 
being made by the Democrats to have their acceptable ideology without 
the traditional deference which has been paid to the President.
  The Senate has been maneuvered into a position here, an institution 
with lines being drawn in the sand, and Republicans on one side and 
Democrats on the other being backed into a corner--sort of a macho-
macho game where no one wants to play the chicken game. What we are 
really seeing is gridlocking this institution on a permanent basis, if 
no one yields.
  The Judiciary Committee has three nominees on the Executive Calendar 
tomorrow, and the Democrats have served notice that they are going 
filibuster. If at least one Democrat does not vote to end the 
filibuster, nothing will happen there.
  So we have a long litany of judges--some of whom have been held up 
for 2 years--and nothing is going to happen.
  What we may be seeing here is the foundation laid for a grand 
political argument in the Presidential election of 2004. We are laying 
it right on the line. If the American people want judges confirmed, 
there are going to have to be 60 votes in the President's party.
  Both sides have been at fault in the past, in my opinion. When 
President Clinton was in the White House and the Republicans controlled 
the Senate, we wouldn't confirm people. There were some breakthroughs 
but relatively few. When President Bush submitted nominees for 2 years, 
or a year and 7 months, the Democrats stopped the nomination process.
  It is high time we had a protocol which both sides respected wherein 
so many days after a nomination, there is a hearing, so many days 
later, a vote in committee, and so many days later, a vote on the full 
floor.
  But we are really heading for extraordinary deadly deadlock in this 
body. I think we ought to recognize it for what it is. There is a 
constitutional revolution underway here to change the fundamental way 
judges are selected.
  If the Democrats insist on a full partnership with the President, if 
any party insists on a full partnership with the President of the 
opposite party, then it is going to take 60 votes. And we may be 
setting the stage for 60 votes in the 2004 election.
  But it is my hope that cooler heads can prevail and we can sit down 
and work this out so that when the shoe is on the other foot, we don't 
have this kind of gridlock and this effort to really upset longstanding 
constitutional principles.
  I thank the Chair. I yield the floor.





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