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It reduced individual tax rates; it repealed, essentially, a temporary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