[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2271-S2275]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                  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.