[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2282-S2298]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                    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It reduced individual tax rates; it repealed, essentially, a temporary 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

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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.