[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2298-S2302]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Importation of Canadian Waste

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

[[Page S2299]]

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

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

  A very insightful, thoughtful answer.

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

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

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

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

[[Page S2300]]

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

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

[[Page S2301]]

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

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

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

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

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

  Senator Biden, the past Judiciary chairman:

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

  Senator Feinstein:

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

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

[[Page S2302]]

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