[Congressional Record Volume 149, Number 27 (Thursday, February 13, 2003)]
[Senate]
[Pages S2391-S2413]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S2391]]

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                                 Senate

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

                              (Continued)

  Mr. STEVENS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Mr. President, one of the great privileges of being a 
Member of the Senate is to recommend to the President names of people 
who should be members of the Federal judiciary--that is either the 
Federal district court, circuit court of appeals, but certainly not the 
U.S. Supreme Court because that is out of the purview of 
recommendations by a single Senator.
  Since I have been in the Senate, I have been able to recommend to a 
Democratic President at least two. We are not a large State so we have 
the opportunity to only recommend two people to the Federal bench.
  The first one I was able to recommend was a circuit court of appeals 
judge and the second was a district court judge. This decision was so 
important to me that I went out of my way to make sure whoever I 
recommended to President Clinton at the time would be someone the 
President would want to nominate to be confirmed as a member of the 
circuit court of appeals. In this case it was the Ninth Circuit Court 
of Appeals. Montana is included in the Ninth Circuit.
  What did I do? First, I went out of my way to put together a group of 
Montanans--6, 7, 8, 10 Montanans--and I selected the best folks I could 
find in my home State to represent a cross-section, a broad array of 
interests and points of view. Some were lawyers; some were not lawyers.
  I said to each one of them: I want you to suggest to me the very best 
three people in the State of Montana who should serve on the Ninth 
Circuit Court of Appeals. I do not care whether they are Republicans. I 
do not care whether they are Democrats, liberals, conservatives; I just 
want the best, the most solid people, the people who have deep common 
sense, have a tremendous sense of history in our country, the highest 
integrity. I just want the best.
  The committee I appointed came back to me several weeks, maybe a 
month later with three names. I sat down with each of the three for an 
interview, and I spent about 3 hours with each of the three to try to 
determine for myself who was the best person that President Clinton 
could nominate from Montana to sit on the Ninth Circuit Court of 
Appeals.
  It was a very difficult process. It was very difficult because the 
three the group suggested to me were all very good. I made a selection 
finally. It was Mr. Sid Thomas, who President Clinton appointed and who 
now sits on the Ninth Circuit Court of Appeals.
  He has been a tremendous credit to not just the State of Montana and 
the Ninth Circuit, but the Nation. In fact, many members of the 
judiciary, including the U.S. Supreme Court, talked to me specifically 
about Judge Thomas and indicated to me they are very proud of him. He 
is a ``solid person,'' a very solid man, a solid judge.
  The second instance was virtually the same. I put together another 
group. There was an opening in the Federal district court in Montana. I 
put together seven, eight, to nine people I thought would do a terrific 
job in coming up with the very best person to sit on the Federal 
district court in Montana.
  I interviewed each of the three persons the group gave me. I had the 
same criteria for the committee: I want the best. I do not care if they 
have brown eyes or blue eyes. I do not care if there is any acid test. 
That is not relevant to me. I want the very best, most solid, 
thoughtful people with the highest integrity and a deep sense of the 
law and history of our State and our Nation.
  I do not care whether they are Republicans, Democrats, liberals, 
conservatives--that does not mean anything to me. I just want the best.
  They came up with three names. I interviewed the three people. I, 
again, had the excruciating choice to make because they were all very 
good. I made a selection finally, and I recommended to President 
Clinton a person who I think has done great credit to the U.S. Federal 
district court in Montana, Judge Don Malloy.
  I can tell you, the bar in Montana thinks he is terrific. The 
plaintiffs bar, the defense bar--they all have the highest regard for 
him. Why? Because he is smart, he is hard working, and he does not play 
favorites. He is what a Federal district court judge should be.

  Why do I say all that? I say that because we are now faced with 
whether or not the Senate should confirm to the DC Court of Appeals 
Miguel Estrada. Should we or should we not? Let me roll back history a 
bit.
  Several years ago, I was on the Judiciary Committee. In fact, it was 
quite a few years ago. At that time, Justice Sandra Day O'Connor, not 
then a Justice, was nominated by the President to sit on the U.S. 
Supreme Court. With all deference to Justice O'Connor, that was the 
first time, at least in my memory, when a nominee essentially did not 
answer very many questions.
  I asked her questions, other members of the committee asked her 
questions, and she essentially began this tradition of not answering 
the questions. Again, I have the highest regard for Justice O'Connor. I 
think she has been a great Justice of the U.S. Supreme Court. It 
bothered me as a member of the Judiciary Committee that a nominee was 
not answering questions. It just did not seem right.
  We at that time decided, OK, she seems like a very good person. She 
was in the State senate in her home State of New Mexico, so let's vote 
to confirm her.

[[Page S2392]]

  We are now faced with the situation where Mr. Estrada is not 
answering any questions whatsoever, and he is not providing other 
information to the committee. I am not now on the Judiciary Committee 
but I take this responsibility of whether or not the Senate should 
confirm a nominee to the circuit court of appeals, Federal district 
court, or the U.S. Supreme Court very seriously. I know all of us in 
this body do.
  There are not very many decisions we can make that will be more 
important. There are not very many. Why is that? That is because these 
are lifetime appointments.
  Mr. President, you run for reelection, I do, everybody in this body, 
every few years, every 6 years. Everybody in the other body runs for 
reelection every 2 years. Every Governor runs every 4 years, sometimes 
2 years. Every President runs every 4 years, except those who cannot 
run because of the constitutional requirement. We face voters. We are 
held accountable. Voters have a chance to either reelect us or not. But 
boy, once someone is put in the U.S. Federal judiciary, an article III 
position, that is for life.
  I believe that is the way it should be. Why? Because these are the 
people we want to be totally impartial to do what is right and not be 
swayed by temporary whims and vogues of the moment. We try not to as 
elected officers. It is our job to represent people in our State. If 
they want something, we should give that to people, given what we think 
makes sense and is right for our home States and right for the country.
  Federal judges are held to a different standard. State judges are not 
lifetime appointments. I do not know any who are. Federal judges are 
appointed for life. That is a huge responsibility they have.
  We have to make sure we get the right people. It is our 
responsibility. When voters elect us, they basically say: Senator, we 
do not know all the ins and outs of what goes on in Washington, DC, but 
we want you to do the right thing. Just do not do something nutty or 
crazy, but, basically, do the right thing.
  Most people give us a lot of latitude. So long as it sounds right, 
fits right, and smells right, it really is all right.
  It does not sound right, it does not fit right, it does not smell 
right, it does not seem right, for this body to confirm somebody who 
will not answer any questions, who will not give us relevant 
information, and who has no prior history so it is hard for us to know.
  I will bet this: At that Justice Department and perhaps at the White 
House, they sat down with Mr. Estrada and asked him a lot of questions. 
I bet he gave them a lot of answers. I bet there is somebody in this 
operation who is supporting his nomination in the executive branch who 
knows a lot about Mr. Estrada, who had long conversations with him. If 
they did, which is entirely proper--in fact, it is imperative and an 
obligation they have to ask him questions, particularly before the 
President suggests a nominee for the DC Court of Appeals. If they do, 
so should we have the information in the Senate. We have an equal 
responsibility to know how he feels about certain issues.
  I am not saying he should address how he feels about certain cases 
decided by the Supreme Court or cases decided by even the court of 
appeals. I am not asking for that because judges have to be impartial. 
I am saying we have a responsibility to know who this fellow is: What 
makes him tick? What does he really think about? What are his values? 
What does he stand for? Will he be impartial? What does he think about 
our Constitution? What does he think about the court as the third 
branch of Government? There are tons of questions one could come up 
with, and we have that responsibility.
  Why do I say we have that responsibility? I have already said it is a 
lifetime appointment, but in addition the Constitution tells us we have 
that responsibility. The advice and consent provision is in the U.S. 
Constitution.
  When our Founding Fathers wrote the Constitution, they debated the 
advice and consent clause. They did not know what it should provide. 
There are various interpretations, but they knew it was very serious. 
One interpretation, that is one view, that was advanced very seriously 
when our Founding Fathers wrote the Constitution, was this: That the 
Senate should send a selection of three, four, or five names to the 
President and then the President makes the decision. The Senate would 
give the names to the President and then the President would decide. It 
is kind of like what I did a little bit when I was interviewing people 
in Montana. I got a bunch of names of the best people, and I made a 
decision who I thought was the best person.
  Why did our Founding Fathers really wrestle over this question over 
what the proper mechanism would be for the Senate to jointly decide 
with the President who should or should not be on the Federal 
judiciary? It is pretty simple. It is our third branch of Government. 
It is the third of the three branches of Government, and it is not 
right that one branch of Government should dictate who does or who does 
not sit on the U.S. Supreme Court. That is not right. Rather, it is a 
joint decision. It is a decision which, just as the President took very 
seriously, we have an obligation to take equally seriously.

  It reminds me a little bit of a number of years ago when an earlier 
President, President Franklin Roosevelt, decided he did not agree with 
the Supreme Court decisions. What did he do? He came up with an idea to 
add more Justices to the U.S. Supreme Court. It is colloquially 
referred to as court packing by President Roosevelt.
  The Senate stood up. It said: No, that is the wrong thing to do. I am 
very proud to say that the Senator who stood up was from Montana. It 
was Senator Burton Kendall Wheeler. He said: No, it is not the right 
thing to do.
  Just as he stood up, I think we have an obligation in the Senate to 
stand up when it is the wrong thing to do; that is, to pass judgment 
on--to agree with the President's nominee where we have no information, 
where he will not answer questions, he will not tell us what he thinks. 
What is this person really all about? What is the sense of the man? 
Where is he? Where is his soul? Who is he? That is what we have to 
determine in deciding whether he should be placed on the DC Court of 
Appeals. And I say that very respectfully.
  I might add that the DC Court of Appeals is no ordinary, garden 
variety appellate court. It is a special appellate court, and that is 
because so many decisions made by Federal agencies go to the DC Court 
of Appeals as opposed to the Ninth Circuit or the Fourth Circuit. There 
are so many of them. There are environmental laws, for example, and 
labor laws that go primarily to the DC Court of Appeals, for which Mr. 
Estrada has been nominated, much more than to other courts. These 
decisions affect all of us around the country. They do not just affect 
the DC Circuit or people who reside in the DC Circuit. They affect all 
Americans. The DC Court of Appeals jurisdiction extends to the National 
Labor Relations Board, the Occupational Safety and Health 
Administration, the Federal Communications Commission, the Federal 
Elections Commission, the Environmental Protection Agency.
  Obviously, decisions made by those agencies have a great effect on 
all Americans. When they are reviewed by the DC Court of Appeals, the 
decisions the DC Court of Appeals makes certainly have the same effect 
upon all Americans. Those rulings affect our workers, our businesses, 
our national environment, our families, and our homes. They affect 
political elections. They affect directly the present occupant of the 
chair, just as they affect me directly.
  About 50 percent of the DC Court's caseload consists of appeals from 
regulations or decisions made by Federal agencies. Fifty percent of the 
DC Court of Appeals caseload is appeals of Federal agencies. In many 
cases, the DC Court of Appeals is the last word, too, on Federal 
decisions. We all know this.
  The U.S. Supreme Court is taking fewer cases on appeal. The caseload 
of the U.S. Supreme Court has fallen off dramatically in the last 
couple or 3 years, which means that the courts of appeals' rulings are 
that much more important. They are almost like a supreme court in many 
respects because the U.S. Supreme Court is taking fewer cases.
  I will give an example of the power of the DC Court of Appeals in my 
State of Montana. This is Montana. Don't forget we are in the Ninth 
Circuit--not

[[Page S2393]]

the DC Circuit--as is the State of the Presiding Officer. The DC Court 
of Appeals has exclusive jurisdiction over cases brought against the 
Environmental Protection Agency, particularly regarding the Superfund.

  I know in the Presiding Officer's State there are huge Superfund 
issues. They are dramatic. Superfund is tremendously important to my 
home State of Montana as well. In the town of Libby, MT, for example, 
they have suffered from decades of asbestos contamination at the hands 
of W.R. Grace. It is just tragic. It happened to the people of Libby, 
MT. As a result, Superfund cleanup efforts are now taking place in an 
attempt to make the town and its residents whole again. It is a 
gigantic undertaking.
  Libby is not the only Superfund site. As the Presiding Officer knows, 
we have Superfund sites around the country. In Montana, for example, we 
have the largest Superfund site in the Nation. It is called the Clark 
Fork Basin. It starts up in Butte and ends up eventually down in the 
State of the Presiding Officer. It is huge. These sites threaten the 
health and well-being of so many people not only in my State but in 
other States as well.
  When Congress created the Superfund, our goal was to ensure that the 
public health and environment were protected and made whole, 
particularly the cleanup. So decisions made by the DC Court of Appeals 
overseeing the Environmental Protection Agency obviously greatly 
influence whether the intent of the law is actually fulfilled on the 
ground; that is, in Montana or any other State in the Nation, because 
EPA is all over America. It is not only the Ninth Circuit where the 
Presiding Officer and I live. There is no question that in the State of 
Montana we have a terrific interest, a big interest, in who sits on the 
DC Circuit Court, given that court's influence over our Nation's 
health, safety, and welfare laws.
  Different Members may disagree with different decisions made by the 
DC Court of Appeals, but we do agree we want a very thoughtful, fully 
considered, and impartial decision. That is what we want. That is what 
we expect. That is why, in my judgment, this body has to go to 
extraordinary lengths to determine whether nominees to the courts of 
appeals, district courts, and the Supreme Court, are the right people. 
It is our duty.

  We cannot just pass it off and say, oh, the President appointed him. 
We cannot stop there. It would be irresponsible. When we are elected, 
we are elected by people in our States to hold up the Constitution of 
the United States. Certainly the President can appoint, but just as 
certainly the Senate has the right and, indeed, the obligation to 
advise and consent and, given the tradition of the advice and consent 
clause and balance of powers, give it the same weight as the President.
  That is why I think at the bare minimum the Senate has the right to 
ask for more information. Who is this man? Find out more about him. 
Look at his writings. What is he hiding? What is there to hide? We all 
know the more information in the public arena, the more likely it is we 
will make the right decision. We know that. It is only proper the White 
House ask Mr. Estrada to answer some questions and give some 
information. This is not rocket science. This is pretty easy. This is 
simple stuff.
  I do not feel it is proper for the Senate to confirm Mr. Estrada. 
This is very important. I cannot think of many decisions we make that 
are ultimately more important, particularly regarding the DC Court of 
Appeals. We may have different conclusions when he gives us 
information, but at least he should talk to us.
  (The remarks of Mr. Baucus pertaining to the submission of S. 396 are 
located in today's Record under ``Submission of Concurrent and Senate 
Resolutions.'')
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I continue to oppose the Estrada 
nomination. What is at stake in this nomination is a lifetime 
appointment to the second highest court in the land. The D.C. Circuit 
Court of Appeals makes decisions that affect millions of Americans 
every day--whether they will drink clean water and breathe clean air--
whether workers will be safe in the workplace, and can join unions 
without fear of reprisal by their employer--whether minorities and 
women will be able to stop workplace harassment.
  Yet our Republican colleagues want us to rubber stamp the nomination 
of Miguel Estrada to this important court. They say to us, you do not 
need to look at his record. You do not need to ask him what kind of 
judge he would be. You do not have to ask him to explain the serious 
discrepancies in the answers he gave during his hearing in the 
Judiciary Committee. They even make the preposterous and shameless 
claim that Mr. Estrada is being opposed because he is Latino.
  Our Republican colleagues obviously do not appreciate the importance 
of the position that Mr. Estrada seeks. If they did, they would not be 
in such a rush to confirm a divisive nominee about whom we know so 
little.
  Our duty under the Constitution is not to rubber stamp. It is to 
provide informed advice and consent in the nomination process. Our duty 
is to ensure that the Federal judiciary is fair and independent, a 
place where everyone, even the most vulnerable among us, can obtain 
protection of their rights. If we become a Senate that simply rubber 
stamps judicial nominees, the nomination process becomes a charade. 
Whoever happens to have the favor of the White House can become a 
Federal judge simply by refusing to give the Senate the information 
necessary to provide real advice and consent. The Federal courts would 
become a political lackey of the executive and legislative branches, 
and would lose their essential independence.
  We all know the importance of this judicial independence and the 
critical role that the Federal courts have in the lives of millions of 
our fellow citizens, especially those who are minorities.
  The Latino experience is typical of minority groups that seek 
justice. When the executive branch has failed them, when the 
legislative branch has failed them, it is the Federal courts, 
independent of political forces, that have protected their rights. 
Federal courts have protected Latinos' right to fair redistricting 
rules in Lopez v. Monterey County. Federal courts have also protected 
Latinos' right to bilingual education. They have protected Latinos' 
right to sit on a jury free from challenge on the basis of their race. 
They protect Latinos' right to be free from racial profiling.
  When the Senate considers a judicial nominee, it must take this 
history into account. We must consider whether the nominee accepts the 
historic role of the courts in the protection of basic rights. One of 
the most serious concerns raised by the Congressional Hispanic Caucus, 
which met with Mr. Estrada, was that he does not understand and 
appreciate this history. The Hispanic Caucus does not lightly oppose 
the nomination of a Latino to a Federal court. In fact, they have never 
done it before. It would have been far easier for them to decide that a 
Latino judge on the DC Court of Appeals could be called a victory for 
them. But they realized it would be a victory in name only. They saw 
that Mr. Estrada would not uphold the basic rights of the Latino 
community, and they decided--unanimously--to oppose his nomination.

  When the Hispanic Caucus reviews a judicial nominee, they look for a 
person who will have a sense of fairness, who will be sensitive to 
claims of racial bias and discrimination, and who are aware of the 
fundamental role of the Federal courts in ending these injustices. Mr. 
Estrada failed to satisfy them on each of these important points.
  The Hispanic Caucus asked Mr. Estrada about his legal work on two 
cases in which he defended anti-loitering ordinances. Statutes such as 
these have too often been used for racial profiling and to harass 
minorities performing lawful activities. The members of the Hispanic 
Caucus left that meeting convinced that Mr. Estrada did not understand 
the effect of these anti-loitering statutes on minorities, or that he 
did not care about them.
  Mr. Estrada has also demonstrated his lack of sensitivity on issues 
affecting Latinos in his numerous statements about race and affirmative 
action. He has been dismissive of the under-representation of Latinos 
among

[[Page S2394]]

law clerks in the Supreme Court. You do not have to be Latino to 
understand that there are long-standing barriers to full participation 
by Latinos. But Mr. Estrada does not see it that way. Perhaps this is 
why Mr. Estrada has never tried to improve opportunities for Latino 
lawyers or law students.
  But if you cannot see the problem, you cannot be part of the 
solution. I am deeply concerned, given these statements by Mr. Estrada, 
that he would oppose basic programs, that have done so much to open the 
doors of opportunity for minorities throughout our Nation.
  In light of all of these facts, the Hispanic Caucus has decided to 
oppose this nomination. As I said, they did not make this decision 
lightly. They have supported the nomination of conservative judges in 
the past, including judges nominated by the current administration. 
Jose Martinez, for one, was nominated by this administration. The 
Caucus met with him. Not all of the members of the Caucus agreed with 
Mr. Martinez's politics, but they saw that Mr. Martinez was sensitive 
to the needs and experience of the Latino community. He understood the 
historic and important role of the Federal courts in the lives of 
Latinos. So the caucus supported his nomination and Judge Martinez is 
now a United States District Judge for the Southern District of 
Florida.
  When Democrats oppose Mr. Estrada, we are standing with these groups. 
We are standing up for the rights of Latinos and other minorities. In 
fact, it has been Senate Republicans who have unfairly blocked the 
confirmation of Latino nominees. The last Republican-controlled Senate 
unfairly refused to confirm eight--eight--qualified Latino nominees. 
Two who were nominated to the Fifth Circuit Court of Appeals from Texas 
were not even given hearings by the Republicans.
  The Fifth Circuit is one of the areas where the highest percentage of 
minorities in this country live. Where were our Republican colleagues 
when these qualified judges were waiting for confirmation? Where were 
our Republican colleagues when Richard Paez waited for confirmation 
longer than any other nominee in U.S. history? Where were they? They 
were in control of the Senate.
  When Republicans call on us to rubberstamp a judicial nominee, 
telling us that we have no right to look into his record to see what 
kind of judge he may be, they are ignoring their own history, and they 
are ignoring the proper role of the Senate. President Bush, more than 
perhaps any other President, has made it his goal to pack the courts 
with judges who will roll back basic Federal rights, including civil 
rights, workers' rights, and environmental protections. Ideology 
clearly guides the President's decision to nominate judges. It clearly 
guided the decision to nominate Mr. Estrada. It would be wrong to ask 
Senators now to ignore his ideology. Judges should be committed to 
basic principles and ideals. They should respect our judicial system 
and the co-equal relationship between the executive, legislative, and 
judicial branches. It makes no sense for the Senate, in fulfilling its 
constitutional role, to adopt a head-in-the-sand approach and abandon 
all ideological considerations in deciding whether to confirm Mr. 
Estrada.
  Now we have, instead, a Republican stampede to confirm a nominee we 
know very little about. Despite the critical importance of the Federal 
courts, and despite the immense power of the appellate court to which 
he has been appointed, Miguel Estrada has not answered the questions 
put to him. He has not been forthcoming about the views that he would 
bring to the bench. He has failed to resolve the serious discrepancies 
in his answers to the questions put to him during his hearing. The Bush 
administration refuses to turn over important documents to the Senate 
as we consider this nominee, despite clear precedent for doing so.
  At the same time, what we do know about him clearly indicates that he 
fails to appreciate the role of the Federal courts and Federal rights 
in the protection of the most vulnerable members of our society. On 
this inadequate and unsatisfactory record, the Senate should not 
confirm a nominee to such an important position.


                                  iraq

  Mr. President, tomorrow, the United Nations inspectors will report to 
the Security Council about Iraq's weapons of mass destruction. In all 
likelihood we will continue to hear from Mr. Hans Blix that the 
inspections are proceeding, but that Iraqi authorities need to be much 
more cooperative. We know that the administration is lobbying Mr. Blix 
to submit the strongest possible case that Iraq is not cooperating.
  We all agree that Saddam Hussein is a dangerous and deceptive 
dictator. We live in a dangerous world and Saddam must be disarmed. The 
question is how to do it in a way that minimizes the risks to the 
American people at home, to our armed forces, and to our allies.
  I am still hopeful that we can avoid war. War should always be a last 
resort.
  Earlier today, President Bush quoted President Kennedy and referred 
to the Cuban missile crisis. President Bush praised my brother for 
understanding that the dangers to freedom had to be confronted early 
and decisively.
  President Kennedy did understand this. But he also genuinely believed 
that war must always be the last resort. When Soviet missiles were 
discovered in Cuba--missiles far more threatening to us than anything 
Saddam has today--some leaders in the highest councils of our 
government urged an immediate and unilateral strike. Instead, the 
United States took its case to the United Nations, won the endorsement 
of the Organization of American States, and persuaded even our most 
skeptical allies. We imposed a blockade, demanded inspection, and 
insisted on the removal of the missiles--all without resorting to full-
scale war.
  As he said then:

       Action is required . . . and these actions [now] may only 
     be the beginning. We will not prematurely or unnecessarily 
     risk the costs of .  .  . war--but neither will we shrink 
     from that risk at any time it must be faced.

  I continue to be concerned that the Bush administration is persisting 
in its rush to war with Iraq, even as we face grave threats from al-
Qaida terrorism and North Korea's nuclear ambitions. The administration 
has done far too little to tell Congress and the American people about 
what our country and our troops will face in going to war with Iraq, 
especially if we have little genuine support from our allies.
  We are nearing decision time. I urge President Bush to come clean 
with the American people about this war. Before endangering the 
Nation's sons and daughters in the Iraqi desert, our citizens deserve 
full answers to four questions.
  First, the President must explain what he considers victory in Iraq. 
The American people deserve at least this much. Is it disarmament? Is 
it the overthrow of Saddam? Is it the establishment of a stable, 
democratic government? If we get rid of Saddam, but leave his 
bureaucracy in power, will that be a victory? Or, as General Zinni has 
said, will we be doing what we did in Afghanistan--drive the old Soviet 
Union out and let something arguably worse emerge?
  This should be a basic consideration in committing American lives to 
this war. Our country should know what we are fighting for. But the 
administration has failed to define even this most basic question for 
the American people.
  Second, the President must explain whether we are doing all we can to 
see that America will be secure at home. A war in Iraq may well 
strengthen al-Qaida terrorists, not weaken them, especially if the 
Muslim world opposes us. We have not broken Osama bin Ladin's will to 
kill Americans. Our Nation has just gone on new and higher alert 
because of the increased overall threat from al-Qaida. What if al-Qaida 
decides to time its next attack for the day we go to war? The war 
against al-Qaida must remain our top priority.
  In fact, our Nation's intelligence experts have maintained 
consistently since 9/11 that al-Qaida terrorism is the greatest threat 
to our security here at home. They also fear that an American attack on 
Iraq will only make matters worse by inflaming anti-American sentiments 
across the Arab world.
  Third, the President must fully explain how long, even after the war 
ends, we will have to commit our forces and economic resources to deal 
with the consequences of the war. This war will be different than the 
Gulf war. We will not stop short of Baghdad. If we want to change the 
regime, we may well have to fight in Baghdad and engage in hand-to-hand 
combat and

[[Page S2395]]

urban guerilla warfare. When the war is over, our troops will become an 
occupying force, possibly for many years. The tribal, ethnic, and 
religious fault lines that Saddam has held together through repression 
may fall apart--much as they did in the brutal civil wars in the former 
Yugoslavia, in Rwanda, and other countries.
  Will the United States have to manage Iraq for years to come on our 
own? Are we prepared to commit billions of American dollars to Iraq for 
years to come? Will our troops be part of a United Nations force? Will 
they become sitting targets for terrorists?
  Finally, the President must explain whether our Nation is prepared to 
use this war as the new foreign and defense policy for the future. Are 
we prepared to invade any nation that poses a threat?
  Iran, Libya--forget Libya. Pan Am 103; 67 American servicemen who 
were killed; 13 families in the State of Massachusetts; scores of 
families in New Jersey and other States--a country that has used 
chemical warfare against its neighbors and against Chad in the south.
  Libya, Iran, with all of the harboring of terrorists and Hamas--the 
terrorists that are so active in Syria, and these other countries. What 
are we going to do about these nations as they continue to move forward 
in developing weapons of mass destruction? What are our policies going 
to be about them? Which country will be next? Will we attack them, too?
  Are we really prepared, as the administration is considering, to 
radically change our nuclear weapons policy and use nuclear weapons in 
Iraq and other conflicts? Even contemplating the first use of nuclear 
weapons in Iraq under current circumstances and against a non-nuclear 
nation dangerously undermines the crucial and historical distinction 
between conventional and nuclear arms. It undermines our international 
commitment to the Nuclear Non-Proliferation Treaty that we will not 
consider a first strike against a country that is a nonnuclear country. 
If we use the Nation's nuclear arsenal in this unprecedented way in 
Iraq, it will be the most fateful decision since the nuclear attack on 
Hiroshima. All of us are hopeful we will not use the tactical nukes. We 
have abundant testimony that our conventional weapons are quite capable 
and able to handle any of the challenges we are going to face in terms 
of deep bunkers and other activities. But we have to listen to those in 
the administration who are talking in a different way about the 
development of a tactical nuke, and also about perhaps changing what 
they consider to be the STRAPP amendment that limits the research to 5 
kilotons and the administration's consideration of that.

  Obviously, implications of any use of any nuclear war in Iraq would 
inflame the people not only of that nation but certainly of Arabs all 
over the world--and not only the Arabs and the move towards developing 
smaller, more easily usable nuclear weapons and all of the challenges 
we would have of being more attractive to use under certain 
circumstances with the dangers of proliferation and the fact these 
weapons could be proliferated and stolen and used and captured by 
terrorists.
  On each of these questions, the President must reassure the American 
people. They deserve to know that we are not stepping into quicksand 
and that this military operation is well thought out. He must convince 
the Nation that we are putting as much effort into thinking about how 
we get out of Iraq as we are about getting into Iraq.
  We must take both the short-term and the long-term view of this 
enormous problem. Whether war with Iraq will be a sprint or a marathon 
we must always remember the finish line.
  There is no more important decision by Congress or the President 
under the Constitution than the decision to send our men and women in 
uniform to war. The administration must make a compelling case that war 
with Iraq is now the only alternative and explain it to the American 
people
  The administration says we can fight a war in Iraq without 
undermining our most pressing national security priority--the ongoing 
war against the international al-Qaida terrorist network.
  al-Qaida--not Iraq--is the most imminent threat to our national 
security. Our citizens are asked to protect themselves from Osama bin 
Ladin at home with a roll of duct tape, while the administration sends 
the most deadly and sophisticated army in the world to go to war with 
Saddam Hussein. Those are the wrong priorities.
  On Monday, Tom Ridge, the Secretary of Homeland Security said that 
the heightened security warning that has millions of Americans stocking 
up on food, water, duct tape, and plastic sheeting is connected to al-
Qaida and not ``the possibility of military involvement with Iraq.''
  On Tuesday, FBI Director Mueller told the Senate Intelligence 
Committee that ``the Al Qaeda network will remain for the foreseeable 
future the most immediate and serious threat facing this country.''
  On Wednesday, CIA Director Tenet told the Senate Armed Services 
Committee that the heightened alert issued this week is because of the 
threat from al-Qaida--not Iraq.
  For any Member of this body who thinks we have done what we need to 
do in homeland security, call any mayor in your State, call any mayor 
in a major city or a small city in your State, and ask them whether 
they have received the support for the training of first responders. 
Ask them if they have the various vaccines, how that program is going--
and it isn't going, because we have failed to develop a compensation 
fund for that and to match our determination for vaccines with the 
other kinds of supportive efforts in terms of health care.
  Ask any mayor in any sized city what degree of support they are 
getting and whether they believe they are receiving the kind of 
assistance they need--whether it is in the radios, in the 
communications, whether it is in the training, whether it is in the 
wide area of support for public health interests--and you will get the 
answer that all of us heard--that I heard--within the last 10 days when 
the mayors across this country came together and met here. And the 
answer is clearly: No, no, no, it is not there.
  In addition to threatening American lives, Saudi Arabia has indicated 
it will ask American troops to leave its soil. NATO's division over war 
has threatened the alliance. The Chairman of the Federal Reserve, Alan 
Greenspan, has said uncertainty over Iraq is slowing our Nation's 
economy.
  There you have three activities: Osama bin Laden, wherever he is, 
American troops out of Saudi Arabia, division in the alliance, 
stagnation here at home in the economy. And we are all blaming Osama 
bin Laden. We are about to send our troops on into Iraq, not giving 
inspections a chance to finish. The wrong priorities, Mr. President.
  As I mentioned in terms of what we are doing here at home, I am 
concerned about the state of our preparedness. Clearly, there is much 
more we need to do at the Federal, State, and local levels to 
strengthen our defenses against a terrorist attack.
  First responders are not adequately prepared for a chemical or 
biological attack. The radios are not interoperable, and they lack the 
training and gear to protect them in the event of an emergency. Ask any 
of your mayors, as I mentioned, across the country. You will get your 
answer.
  This isn't just a Democrat pointing this out. Last week, our former 
colleague, Senator Rudman, of the State of New Hampshire, said:

       There was no rational answer for the White House failure to 
     seek more funds for the domestic security in the 2004 budget. 
     I'm very concerned. We have to put more money into the Coast 
     Guard, into communications gear, into preparedness for the 
     use of weapons of mass destruction, into police and 
     firefighters. We have to spend a huge additional amount of 
     money on port security. Money isn't the only answer, but it 
     is a pretty clear indication of a nation's priorities in this 
     area, and it has not been there in terms of the support on 
     homeland security.

  Even before the war has begun, we hear of possible threats from a 
wave of suicide bombers. War with Iraq could swell the ranks of 
terrorists and trigger an escalation in terrorist acts. As Gen Wesley 
Clark told the Armed Services Committee last September, war with Iraq 
could ``super-charge recruiting for Al Qaeda.''
  These are real dangers--dangers that the administration has minimized 
in its determination to attack Iraq.
  The administration maintains there are convincing links between al-
Qaida

[[Page S2396]]

and Iraq that justify war. But al-Qaida activists are present in more 
than 60 countries, including Iran, Pakistan, Afghanistan, and also in 
the United States. Even in the administration, there are skeptics about 
the links with Iraq. Intelligence analysts are concerned that 
intelligence is being politicized to justify war, as the New York Times 
pointed out in a recent article which I will ask to be printed in the 
Record.
  Mr. President, I ask unanimous consent that article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Split at C.I.A. and F.B.I. on Iraqi Ties to Al Qaeda

                  (By James Risen and David Johnston)

       Washington, Feb. 1--The Bush administration's efforts to 
     build a case for war against Iraq using intelligence to link 
     it to Al Qaeda and the development of prohibited weapons has 
     created friction within United States intelligence agencies, 
     government officials said.
       Some analysts at the Central Intelligence Agency have 
     complained that senior administration officials have 
     exaggerated the significance of some intelligence reports 
     about Iraq, particularly about its possible links to 
     terrorism, in order to strengthen their political argument 
     for war, government officials said.
       At the Federal Bureau of Investigation, some investigators 
     said they were baffled by the Bush administration's 
     insistence on a solid link between Iraq and Osama bin Laden's 
     network. We've been looking at this hard for more than a year 
     and you know what, we just don't think it's there,'' a 
     government official said.
       The tension within the intelligence agencies comes as 
     Secretary of State Colin L. Powell is poised to go before the 
     United Nations Security Council on Wednesday to present 
     evidence of Iraq's links to terrorism and its continuing 
     efforts to develop chemical, biological and nuclear weapons 
     and long-range missiles.
       Interviews with administration officials revealed divisions 
     between, on one side, the Pentagon and the National Security 
     Council, which has become a clearinghouse for the evidence 
     being prepared for Mr. Powell, and, on the other, the C.I.A. 
     and, to some degree, the State Department and agencies like 
     the F.B.I.
       In the interviews, two officials, Paul D. Wolfowitz, deputy 
     defense secretary, and Stephen J. Hadley, deputy national 
     security adviser, were cited as being most eager to interpret 
     evidence deemed murky by intelligence officials to show a 
     clearer picture of Iraq's involvement in illicit weapons 
     programs and terrorism. Their bosses, Defense Secretary 
     Donald H. Rumsfeld and the national security adviser, 
     Condoleezza Rice, have also pressed a hard line, officials 
     said.
       A senior administration official said discussions in 
     preparation for Mr. Powell's presentation were intense, but 
     not rancorous, and said there was little dissension among 
     President Bush's top advisers about the fundamental nature of 
     President Saddam Hussein's government. ``I haven't detected 
     anyone who thinks this a not compelling case,'' the official 
     said.
       Mr. Bush asserted in his State of the Union address this 
     week that Iraq was protecting and aiding Qaeda operatives, 
     but American intelligence and law enforcement officials said 
     the evidence was fragmentary and inconclusive.
       ``It's more than just skepticism,'' said one official, 
     describing the feelings of some analysts in the intelligence 
     agencies. ``I think there is also a sense of disappointment 
     with the community's leadership that they are not standing up 
     for them at a time when the intelligence is obviously being 
     politicized.''
       Neither George J. Tenet, the director of central 
     intelligence, nor the F.B.I. director, Robert S. Mueller III, 
     have publicly engaged in the debate about the evidence on 
     Iraq in recent weeks, even as the Bush administration has 
     intensified its efforts to build the case for a possible 
     war.
       The last time Mr. Tenet found himself at the center of the 
     public debate over intelligence concerning Iraq was in 
     October, when the Senate declassified a brief letter Mr. 
     Tenet wrote describing some of the C.I.A.'s assessments about 
     Iraq.
       His letter stated that the C.I.A. believed that Iraq had, 
     for the time being, probably decided not to conduct terrorist 
     attacks with conventional or chemical or biological weapons 
     against the United States, but the letter added that Mr. 
     Hussein might resort to terrorism if he believed that an 
     American-led attack was about to begin.
       Alliances within the group of officials involved have 
     strengthened the argument that Mr. Bush should take a firm 
     view of the evidence. ``Wolfowitz and Hadley are very 
     compatible,'' said one administration official. ``They have a 
     very good working relationship.''
       There were some signs that Mr. Powell might not present the 
     administration's most aggressive case against Iraq when he 
     speaks to the United Nations, leaving such a final definitive 
     statement to the president in some future address.
       ``You won't see Powell swing for the fences,'' the official 
     said. ``It will not be the end-all speech. The president will 
     do that. The president has to lay it out in a more detailed 
     way.''
       Deputy Secretary of State Richard L. Armitage told the 
     Senate Foreign Relations Committee last Thursday that Mr. 
     Powell would not assert a direct link between the Iraqi 
     government and the September 11 attacks on New York and 
     Washington.
       In demonstrating that there are links between Iraq and Al 
     Qaeda, Mr. Powell is expected to focus on intelligence about 
     possible connections between Mr. Hussein, an Islamic militant 
     group that may have produced poisons in a remote region of 
     northern Iraq and a Qaeda terrorist leader, Abu Mussab al-
     Zarqawi. Much of the intelligence had been publicly known for 
     months.
       Some of the most recent intelligence related to Mr. Zarqawi 
     centers on charges that he orchestrated the plot on Oct. 28 
     in Amman, Jordan, in which two Qaeda followers--under Mr. 
     Zarqawi's direction--stalked and shot to death Laurence 
     Foley, an American diplomat.
       In December, the Jordanian authorities announced that the 
     two men had confessed to killing Mr. Foley and that they had 
     been directed by Mr. Zarqawi.
       The connection to the Foley killing was important because 
     the United States had evidence that Mr. Zarqawi, a Jordanian 
     of Palestinian descent, has spent time in Baghdad earlier in 
     2002. American officials describe Mr. Zarqawi as a major 
     figure in Al Qaeda's leadership and say that after he was 
     wounded in the fighting in Afghanistan after September 11, he 
     made his way to Iraq in the spring of 2002.
       He was hospitalized in Baghdad for treatment of his wounds, 
     and then disappeared in August, after Jordanian officials 
     told the Iraqi government they knew he was there. There have 
     been recent reports that he is in hiding in northern Iraq, 
     but that has not yet been confirmed.
       But despite Mr. Zarqaqi's earlier presence in Baghdad, 
     American officials have no evidence linking Iraqi officials 
     to Mr. Foley's killing, or direct evidence that Mr. Zarqawi 
     is working with the Iraqi government.
       ``All they know is that he was in the hospital there,'' one 
     official said.
       If he is in northern Iraq, American officials believe that 
     Mr. Zarqawi may be with members of a militant group there 
     called Ansar al-Islam. There is evidence that he has links to 
     the group, and that he may have been working with it to 
     develop poisons for use in terrorist attacks, possibly 
     including a recent plot to poison the food supply of British 
     troops.
       But intelligence officials say there is disagreement among 
     analysts about whether there are significant connections 
     between Ansar al-Islam and the Baghdad government. Some 
     administration officials, particularly at the Pentagon, have 
     argued that Ansar al-Islam has close ties to the Iraqi 
     government, but other intelligence officials say there is 
     only fragmentary evidence of such a link.
       Intelligence professionals have expressed fewer 
     reservations about the administration's statements concerning 
     Iraq's weapons programs. There is broad agreement within 
     intelligence agencies that Iraq has continued its efforts to 
     develop chemical, biological, and probably nuclear weapons, 
     and that it is still trying to hide its weapons programs from 
     United Nations inspectors.
       Officials said the United States had obtained 
     communications intercepts that show Iraqi officials coaching 
     scientists in how to avoid providing valuable information 
     about Iraq's weapons programs to inspectors. At the United 
     Nations, Mr. Powell may also display American satellite 
     photographs showing Iraqi officials moving equipment and 
     materials out of buildings before they can be inspected by 
     the United Nations.
       Still, there have been disagreements over specific pieces 
     of intelligence used publicly by the White House to make its 
     case, including the significance of one report that Iraq had 
     imported special aluminum tubes for use in its nuclear 
     weapons program.
       In testimony before the Senate Foreign Relations Committee 
     on Thursday, Mr. Armitage acknowledged that the 
     administration had at times relied on inconclusive reports 
     that had not served to strengthen Washington's case.
       He agreed with the suggestion of Senator Joseph R. Biden 
     Jr. of Delaware, the committee's ranking Democrat, that the 
     administration should instead stick with the indisputable 
     evidence that Iraq has in the past stockpiled chemical 
     weapons, tried to make biological weapons, and has continued 
     to deceive United Nations inspectors.
       ``As we used to say in the Navy, KISS, `Keep it simple, 
     sailor,' '' Mr Armitage said. ``Go with your strong points.''

  Mr. KENNEDY. Although the U.N. inspectors have found no evidence so 
far of a revived nuclear weapons program in Iraq, there is ample 
evidence in North Korea. North Korea possesses 8,000 spent nuclear fuel 
rods capable of being reprocessed, by May, into enough plutonium to 
make up to 6 nuclear bombs. With inspectors gone and North Korea gone 
from the Non-Proliferation Treaty, we face an urgent crisis, with 
nothing to prevent that nation from quickly producing a significant 
amount of nuclear materials and nuclear weapons for its own use, or for 
terrorists hostile to America and our allies.
  North Korea has already provided missiles to deliver chemical, 
biological, and nuclear weapons to terrorist

[[Page S2397]]

states, including Iran, Syria, and Libya. We understand that. North 
Korea has already provided the missiles to deliver chemical, 
biological, and nuclear weapons to terrorist states. Desperate and 
strapped for cash, North Korea can easily provide nuclear weapons or 
weapons grade plutonium to terrorist groups, which could be used 
against us in the very near future. And we are talking about the 
production of weapons grade plutonium in the next few weeks. There is 
no division of opinion on that, absolutely none. There is no division 
of opinion on that. As some have described it, it would be a cash cow 
for North Korea that is absolutely strapped for cash.
  Despite these alarm bells, the administration refuses to call the 
situation on the Korean peninsula what it is: a genuine crisis. If this 
is not a crisis, I don't know what is.
  The administration refuses to directly engage the North Koreans in 
talks to persuade North Korea to end its nuclear program. By ignoring 
the North Korean crisis in order to keep focus on Iraq, the 
administration has kept its eye on the wrong place.
  The administration says we can handle the war in Iraq, we can handle 
the war against al-Qaida, and we can deal with the problems of the 
nuclear crisis in North Korea. Any administration should seek to avoid 
three simultaneous foreign policy crises. In this case, we can, and we 
should, by not rushing to war with Iraq.
  It is far from clear that we will be safer by attacking Iraq. In an 
October 7, 2000, letter to the Senate Committee on Intelligence, CIA 
Director George Tenet said the probability of Saddam Hussein initiating 
an attack on the United States was low. But his letter said: ``should 
Saddam Hussein conclude that a U.S.-led attack could no longer be 
deterred, he probably would become much less constrained in adopting 
terrorist actions.''
  Yesterday, Admiral Jacoby, the Director of the Defense Intelligence 
Agency, told the Senate Armed Services Committee that Saddam Hussein 
would use weapons of mass destruction ``when he makes the decision that 
[his] regime is in jeopardy.'' CIA Director Tenet agreed with this 
assessment.
  This assessment begs the question: If Saddam will not use weapons of 
mass destruction against the United States until his regime is about to 
fall, why is it in our national security interest to provoke him into 
using them?
  The administration must be more forthcoming about the potential human 
costs of war with Iraq, especially if it pushes Saddam into unleashing 
whatever weapons of mass destruction he possesses. The administration 
has released no casualty estimates, and they could be extremely high. 
Many military experts have predicted urban guerilla warfare--a scenario 
which Retired General Joseph Hoar, who had responsibility for Iraq 
before the gulf war, says could look ``like the last 15 minutes of 
`Saving Private Ryan.' ''
  Nor has the administration fully explained the ramifications of 
large-scale mobilization of the National Guard and Reserve--especially 
its effect on police, firefighters, and others, who will be on duty for 
Iraq but who are needed on the front lines here at home if there is a 
terrorist attack on the homeland. In Massachusetts, 2,000 citizens have 
been called to active duty in the Armed Forces. Many of them are 
police, firefighters, first responders, and other health workers.
  Nor has the administration been candid about the humanitarian crisis 
that could result from war.
  Refugee organizations are desperately trying to prepare for a flood 
of as many as 900,000 refugees. Billions of dollars and years of 
commitment may well be needed to achieve a peaceful post-war Iraq, but 
the American people still do not know how that process will unfold and 
who will pay for it.
  No war can be successfully waged if it lacks the strong support of 
the American people. Before pulling the trigger on war, the 
Administration must tell the American people the full story about Iraq. 
So far, it has not.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent to speak in 
support of the nomination of Miguel Estrada.
  The PRESIDING OFFICER. The Senator has that right.
  Mr. CHAMBLISS. Mr. President, I recognize that we are now in our 
ninth day of debate leading up to an ultimate vote on whether or not 
Miguel Estrada should be confirmed as the nominee of President George 
W. Bush to the Circuit Court of Appeals for the District of Columbia. 
As part of the debate on both sides of the aisle, there has been a 
continual question asked on this side of our friends by the other side 
who are in opposition to the appointment and confirmation of Mr. 
Estrada. That question has been: Give us a reason we should not have a 
vote on whether or not Mr. Estrada should be confirmed.
  I have great respect for the Senator from Massachusetts. He has 
certainly been a part of this institution for a long time. I listened 
very closely to his comments which I respect. And I respect his opinion 
and his right to hold his opinion in opposition to Mr. Estrada. But I 
think what we have just heard for the last 20 minutes is very 
indicative of what we have heard for the last 9 days. And that is, 
there is no reason Mr. Estrada should not be confirmed.
  There have been reasons put forth from the other side, and every time 
one of those reasons has been put forth, the chairman of our committee, 
Senator Hatch, or someone else, has risen to refute that argument. What 
the other side has now done is, instead of concentrating on the 
argument in opposition to Mr. Estrada, they have gotten off extensively 
on to other issues.
  I go back to the same question we have asked: Why do we not vote on 
Mr. Estrada? What is the reason you have that Mr. Estrada should not be 
confirmed as President Bush's nominee to the Circuit Court for the 
District of Columbia?
  There has been a lot of debate about what was said and the opinion 
that came out of the conversation between Mr. Estrada and the Hispanic 
Caucus over on the House side. Let me tell you about some of the folks 
in the Hispanic community who have come out in support of the 
nomination of Mr. Estrada: The League of United Latin American 
Citizens, which is the Nation's oldest and largest Hispanic civil 
rights organization, has come out in support of the nomination and 
confirmation of Mr. Estrada; the U.S. Hispanic Chamber of Commerce; the 
Hispanic National Bar Association; the Hispanic Business Roundtable; 
the Latino Coalition; the National Association of Small Disadvantaged 
Businesses; the Mexican American Grocers Association; the Phoenix 
Construction Services; the Hispanic Chamber of Commerce of Greater 
Kansas City; the Hispanic Engineers Business Corporation; the Hispano 
Chamber of Commerce de Las Cruces; Casa Del Sinaloense; the Republican 
National Hispanic Assembly; Hispanic Contractors of America, Inc., and 
Charo Community Development Corporation--a long and distinguished list 
of Hispanic entities that have come out in strong support of the 
nomination and confirmation of Miguel Estrada.
  Let me go further and quote from statements from some individuals who 
are involved in some of these organizations. The League of United Latin 
American Citizens, the oldest and largest Hispanic civil rights 
organization--the president of that organization is a gentleman named 
Dovalina. Here is what he says about Miguel Estrada:

       On behalf of the League of United Latin American Citizens, 
     the nation's oldest and largest Hispanic civil rights 
     organization, I write to express our strong support for the 
     confirmation of Miguel Estrada. . . .Few Hispanic attorneys 
     have as strong educational credentials as Mr. Estrada, who 
     graduated magna cum laude and Phi Beta Kappa from Columbia 
     and magna cum laude from Harvard Law School, where he was 
     editor of the Harvard Law Review. He also served as a law 
     clerk to the Honorable Anthony M. Kennedy in the United 
     States Supreme Court, making him one of a handful of 
     Hispanic attorneys to have had this opportunity. He is 
     truly one of the rising stars in the Hispanic community 
     and a role model for our youth.

  The Latino Coalition, of which the president is, Mr. Robert 
Deposada--here is what he said about Mr. Estrada:

       To deny Latino's, the nation's largest minority, the 
     opportunity to have one of our own serve on this court in our 
     nation's capital is unforgivable.

  The president of the United States Hispanic Chamber of Commerce, Ms. 
Elizabeth Lisboa-Farrow, stated:


[[Page S2398]]


       We unanimously endorse this nominee and strongly urge you 
     to move on the confirmation of Miguel Estrada. As a judge, he 
     will be a credit to the federal judiciary, the President, 
     Hispanics, and all Americans.

  That emphasizes something I said on the floor a few days ago. There 
has been a lot of debate about Mr. Estrada being a Latino. Mr. Estrada 
is a Latino. I am sure he is very proud of that. But the thing I like 
about Mr. Estrada is that he is qualified to be appointed to the 
Circuit Court for the DC Circuit. He is qualified because he is an 
intellectual. He is bright. His record proves that. He is a world class 
lawyer who happens to be a Latino. This man needs to be appointed and 
confirmed to the DC Circuit Court of Appeals because he is a good 
lawyer. Even more than that, he is an outstanding lawyer.
  The president of the Hispanic National Bar Association, Mr. Rafael 
Santiago, stated as follows:

       The Hispanic National Bar Association, national voice of 
     over 25,000 Hispanic lawyers in the United States, issues its 
     endorsement.  . . .Mr. Estrada's confirmation will break new 
     ground for Hispanics in the judiciary. The time has come to 
     move on Mr. Estrada's nomination. I urge the Senate Committee 
     on the Judiciary to schedule a hearing on Mr. Estrada's 
     nomination and the U.S. Senate to bring this highly qualified 
     nominee to a vote.

  Mr. Henry T. Wilfong, Jr., president of the National Association of 
Small Disadvantaged Businesses, stated as follows, in a letter to 
Senator Leahy on July 12, 2001:

       The [National Association of Small Disadvantaged 
     Businesses] would like to add our support . . . for Miguel 
     Estrada's nomination as United States Court of Appeals Judge 
     for the District of Columbia Circuit.
       Mr. Estrada is a brilliantly talented and accomplished 
     attorney who will make an outstanding addition to the 
     prestigious DC Circuit. . . .While we do not dwell on 
     symbolism, we feel that Mr. Estrada's appointment as the 
     first Hispanic member of the DC Circuit will be of benefit to 
     us in further illustrating the wide range of talent in the 
     minority communities, just wanting to be effectively and 
     fully used.

  Well, I could go on quoting comments from other members of the 
Hispanic organizations around the country. All of the major Hispanic 
organizations have said this man needs to be confirmed to the DC 
Circuit Court of Appeals. He needs to be confirmed, yes, because we are 
proud of him as a Latino, but he needs to be confirmed because he is 
one of America's outstanding lawyers.
  Now, some of the criticism that has been directed at Mr. Estrada has 
been for totally unfounded reasons. I wish to talk about a couple of 
those. I wasn't here back in September of 2002, when the hearing of Mr. 
Estrada was held before the Senate Judiciary Committee. But at that 
point in time, the Judiciary Committee was controlled by the Democrats. 
The chairman of that committee was Senator Leahy, who I have come to 
know. He is a very fair man. He is a very strong advocate for his 
beliefs. But I have seen him operate within the Judiciary Committee, 
and I know him to be a person who is very deliberate in the way he 
presents himself on that committee. So I have no doubt that at the time 
of Mr. Estrada's hearing in September of last year, Mr. Estrada was 
treated very fairly and was given due accord.
  One of the criticisms that has been repeated today is the fact Mr. 
Estrada, during the course of that hearing, in September of last year, 
was that he was nonresponsive to questions that were presented. Under 
the leadership of Senator Leahy, the hearing began at around 10 o'clock 
in the morning. I am told it lasted until 5:30 in the evening; and 
although there were few district court nominees who were also 
testifying at that hearing, the great bulk of the time was given to Mr. 
Estrada. That is the case, as I have seen it, over the last several 
weeks since I was elected and sworn in as a Member of this body and 
appointed to the Judiciary Committee.
  After the hearing, every member of the Judiciary Committee was given 
an opportunity not just to ask every question they wanted to ask, but 
if they weren't satisfied with the answers they received, whether it 
was what they wanted to hear or not, they had the opportunity to ask 
that Mr. Estrada come back for another series of questions. But they 
did not do so. He was not asked to come back and appear before the 
Judiciary Committee again.
  In addition to that, at every hearing we have on judicial nominees--
and I know this to have been the case last year under the direction of 
Senator Leahy--every member of the Judiciary Committee has the 
opportunity to submit written questions to every nominee who has their 
confirmation hearing before the Judiciary Committee. So if there was 
any member of that committee who was not satisfied with the answers 
they received, or wanted a written answer in addition to the verbal 
answer that was given that day, or if they didn't feel as if the 
nominee was being totally forthcoming, they could ask the question 
again and get an answer in writing.
  After the hearing of Mr. Estrada before the Judiciary Committee, only 
two Democratic Senators submitted written questions. Some of those 
folks who are on the other side of the aisle, over the last 9 days who 
have been complaining the loudest about not knowing enough about Mr. 
Estrada, did not submit any written questions at all. Is that fair? Is 
that reasonable? Is that the way this body ought to function with 
respect to the confirmation of our judicial nominees? I don't think so. 
I don't think that is the way our Founding Fathers intended this body 
to operate.

  Let me look at another couple of objections that have been raised by 
the other side with respect to Mr. Estrada. There has been an issue 
regarding the fact that he has no judicial experience and, therefore, 
he should not be confirmed.
  Well, let me say that if that were the case, if experience in an area 
in our line of work, politics, was a requirement to be elected, I never 
would have been elected to the House of Representatives where I gained 
experience before I was elected to the Senate. I had never run for 
political office before. You know what? I brought a lot of assets to 
the House of Representatives because I was not involved in politics 
before. I had about 72 other Republican classmates in my class in 1994. 
Some of them had been involved in politics. The one common thread we 
all had was that we came from a business background. Most of us have 
had to meet a payroll, and we knew and understood about business and 
about balancing budgets. And one of the focuses of the class of 1994 in 
the House of Representatives was to move forward to balance the budget 
of this country, which had not been balanced for decades prior to that 
election. We achieved that. We achieved it because we knew and 
understood that is what was required of families in America who sit 
around their kitchen table every single month, and it was only right to 
ask Congress to do that. That is the kind of lack of political 
experience that my class had when we were elected in 1994.
  For the contention to be made that Mr. Estrada has no judicial 
experience and that is why he ought not to be confirmed, I think is 
just ludicrous. I think because he lacks judicial experience, that may 
be an asset. There have been some pretty significant judges appointed 
to the bench who did not have judicial experience. Byron White, 
nominated by President Kennedy, and William Rehnquist, currently Chief 
Justice of the U.S. Supreme Court, had no judicial experience when they 
were appointed to the court. Of the eight judges who are today serving 
as members of the same court to which we seek to have Mr. Estrada 
nominated, five had no previous judicial experience at the time they 
were nominated and confirmed by this body. I don't know whether the 
same objection was raised then or not, but if it was, it has obviously 
been proven that it was not a valid objection.
  There has been an allegation that the administration has refused to 
produce memoranda that Mr. Estrada wrote as an Assistant to the 
Solicitor General. Mr. Estrada was Assistant to the Solicitor General 
both in the Clinton administration as well as in the Bush 
administration. There is just a wealth of knowledge that he gained by 
virtue of the fact that he worked for the Government in addition to 
serving in the private sector as a lawyer.
  But while he was in the Solicitor General's Office, sure, he did what 
his boss told him to do. If it required research and giving his boss a 
memorandum on a particular issue, he did what he was told to do and, 
obviously, did it in a very efficient manner, because every single 
living Solicitor General has come forward, including those

[[Page S2399]]

for whom Mr. Estrada worked, and has said that it would be improper for 
the Justice Department to produce the memoranda that Mr. Estrada worked 
on and provided to his boss. And also, the Solicitor General for whom 
he worked, both in the Clinton administration as well as in the Bush 
administration, have both talked about how highly qualified and how 
competent this individual is.
  For an objection to be made that he failed to produce memoranda that 
the Justice Department says would not be proper to present, and that 
Republican and Democratic Solicitor Generals say would not be proper 
for the Justice Department to present, I think totally negates any 
argument about the fact that those memoranda have not been produced.
  I could go on and on about the issues relative to Mr. Estrada's 
nomination that had been presented by the other side. I repeat, every 
time one of those issues has been raised, Chairman Hatch or some other 
member on this side has totally refuted that argument.
  I go back to the point of why are we here? Why are we, 100 Members of 
this body, here? We are here to do the people's work. We are here to do 
what is in the best interest, not just of our constituents, but in the 
case of judges, we are required--and I agree with the Senator from 
Massachusetts, we ought not be a rubberstamp. But we have a process we 
go through to nominate and confirm judges. We ought to have full, open, 
and free debate on each and every one of those nominees, and we have 
done that.
  We are here to do the work of the people of the United States of 
America. The people of the United States of America elected us to have 
full, free, and open debate on judges, as well as the many other issues 
with which we have to deal. We have done that. We have had 9 days of 
debate on the nomination of Miguel Estrada. It is time now that we do 
what the people elected us to do, and that is to vote. If a Member 
thinks he ought not be confirmed, vote against him.
  I think he ought to be confirmed because he is well qualified and his 
time to go to the Federal bench has come. I am going to vote to confirm 
him. Because we are here as elected officials and because we have a 
duty to represent not just the people who sent us but the people of 
America when it comes to the confirmation of judges, we owe those 
people who sent us here and the people all across America a response to 
that obligation. We should move this nomination forward to a vote.
  I yield the floor, Mr. President.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I thank the Chair.
  Mr. President, I wish to take an opportunity to discuss the 
appointment of Miguel Estrada to the circuit court and to raise an 
objection I share with other colleagues on this side of the aisle.
  I come out of the business world. I think of how I might react if I 
were interviewing a senior executive candidate, and if that individual 
refused to answer relevant questions about his experience or her views, 
or what kind of a life attitude had developed in that person's mind, I 
sure would not be putting them on my payroll.
  To respond to our colleague from Georgia who raises legitimate 
questions about why there is opposition on our side, the Senator 
challenges the fact that Mr. Estrada's lack of experience--I think if I 
heard him correctly--could even be an asset.
  The Senator also alluded to the fact he came here without experience. 
I certainly did. I came here directly from the business community. I 
came here without experience. He and I and the occupant of the Chair 
have a job that is less than permanent. My colleague from Georgia and 
my colleague in the Chair got here because they terminated someone 
else's tenure in office. If that was the condition, if we were not 
talking about a lifetime appointment, we would not be having this 
debate, in my view. I am sure we would have had a vote and probably 
approved for Mr. Estrada to assume the appeals court bench.
  That is not the case. Nor is it the case that the advise and consent 
relationship of a recommendation that comes from the President means 
automatic consent. We are supposed to take these responsibilities 
seriously. I am not a lawyer, but I feel the full measure of a 
democracy is the way justice is dispensed. We have a separation of 
powers to make sure there are checks and balances. That is why we 
protect the judiciary from being tossed out of office willy-nilly. They 
are able to exercise their will and exercise it to the best of their 
ability. But we have an obligation to confirm what the best of their 
ability is.

  I am not happy about entering this discussion like this because I do 
have respect for colleagues on the other side of the aisle. I think 
they should have every right to add their views of support, to register 
those views as diligently and as forcefully as we have seen.
  This is a two-way street. When a Democratic President sent up 
nominations, the delays were interminable. We heard last night about 
1,500-day delays without being able to get a hearing. That is over 4 
years.
  I register my opposition to the confirmation of Mr. Estrada for the 
Circuit Court of Appeals for the District of Columbia. My opposition 
stems from several reasons, particularly questions about his 
unwillingness to come forward to discuss his views, to say to the 
American people--because they are ultimately the folks who are 
listening--that he is unwilling to participate in the system as it 
exists; that he is challenging the advice and consent aspect of the 
Senate's approval of asserting himself as a viable candidate for the 
United States Court of Appeals; that he is unwilling to open up his 
views to the people who are responsible for making the judgment.
  Last night, I listened eagerly to the debate that took place. I 
listened to the distinguished chairman of the Judiciary Committee--a 
friend, someone I have known for a long time--talk about how unfair we 
are being to the President of the United States in not giving him full 
recognition of the fact he is the President and he is entitled to make 
his recommendation. The Constitution is so clear. The Constitution says 
the nomination has to come to the Senate for advice and consent. That 
is the process. We are not violating any rule by raising these 
questions.
  Last night, it was even insinuated there might be some racial issue 
tied up here, and that borders on the ludicrous. I point out that the 
Puerto Rican Legal Defense and Education Fund, the Mexican American 
Legal Defense and Educational Fund, the National Council of La Raza, 
NAACP, and the Congressional Hispanic Caucus all oppose Mr. Estrada's 
nomination. These organizations obviously are not prejudiced against 
Hispanics.
  Any illusion, any suggestion, any insinuation that there could be a 
racial concern here is an outrageous claim.
  So we are going to leave those comments behind. They are without 
merit and without consideration. I have real substantial concerns about 
this nominee.
  His former supervisor at the Justice Department concluded:

       He lacks the judgment and is too much of an ideolog to be 
     an appeals court judge.

  We have a right to hear what his views are. It is especially 
troubling because we are talking about a nominee to the DC Circuit, the 
most important court outside the Supreme Court in this country. The DC 
Circuit overseas enforcement of critical environmental, consumer, and 
worker protection laws. Three sitting U.S. Supreme Court Justices have 
come from the DC Circuit. It is an enormously important position and it 
is, once again, a lifetime position.
  If we were to do anything except fully exercise our conscience to 
make sure that we understood as clearly as each one of us has not only 
the right but the obligation to do to examine what this individual 
brings to the position, we would be shirking our responsibilities.
  Last night we heard talk about the fact that the Mexican American 
Legal Defense and Educational Fund, and other groups, have raised 
concerns about Mr. Estrada's view on a subject that I am particularly 
concerned about: racial profiling. The concern is that Mr. Estrada's 
support for so-called antiloitering laws were actually a guise for 
racial profiling.
  Racial profiling is a terrible problem. We had a very difficult time 
in the

[[Page S2400]]

State of New Jersey with that issue. I introduced racial profiling 
prohibition legislation in the Senate, and I am pleased to work with my 
colleague from Wisconsin, Senator Feingold, on that issue now.
  Driving while black, walking while Hispanic--we have heard those 
phrases--should not be crimes. I think the courts must do all they can 
to prevent this practice. I am worried that Mr. Estrada's views go in 
another direction.
  Another major problem with this nominee is that he seems to be hiding 
the ball, not playing the game the way it ought to be, refusing to 
discuss his basic legal theories and beliefs. The Constitution does not 
say the President of the United States has a unilateral right to put 
anybody he wants to on the Federal bench. Presidential appointments 
require, as I said before, the advice and consent of the Senate, and 
that certainly does not suggest automatic consent.
  We have a constitutional obligation to evaluate the President's 
choices. As all judicial nominees, Mr. Estrada had his job interview 
before the Judiciary Committee. At his Judiciary Committee hearings, 
Mr. Estrada refused to answer important questions. My colleagues who 
serve on that committee asked the appropriate questions about his 
judicial philosophy, such as his views on key Supreme Court decisions, 
but he failed to respond or was unwilling to respond to fundamental and 
simple questions expected of a nominee before that committee.
  I mentioned that before I came to the Senate I ran a pretty good 
sized company, and when we would interview people for important 
positions in our company we would expect them to be completely 
responsive to our inquiries. If someone was evasive, refused to answer 
reasonable questions, we would not hire them. It would not be fair to 
our shareholders, our customers, and the other employees of the company 
to hire someone who refused to answer basic questions about how they 
would handle the job.
  In the case of Miguel Estrada, we have someone who refused to answer 
questions regarding his nomination for a lifetime position. We, in the 
Senate, have a constitutional responsibility to review the nominees 
fully and have our consciences clear when we decide their fate. This 
nomination should not move forward because Mr. Estrada has left too 
many questions unanswered. He has kept many of his views on important 
legal matters a mystery, and that is not how this process should work. 
That is not how it is going to work.

  This has nothing to do with anyone's ethnic background. That is 
silly. This Democratic caucus is always looking to expand diversity, 
and everybody knows that. This debate is about a nominee who is not 
cooperating. If he thinks Roe v. Wade is unsound law, let him say it. 
If he thinks it is settled law and respects it as a judge, let him say 
that. I do not think this nominee should move forward until serious 
questions about his legal philosophy have been answered.
  Some of my colleagues on the other side act as if this is 
unprecedented for a Presidential nominee to not receive a vote, but 
there were Clinton nominees who could not even receive a hearing, no 
less a vote. I wish to remind the Senate of some of the names we heard 
from our Democratic whip the other day, people such as Judith 
McConnell, John Tait, John Snodgrass, Patrick Toole, Wenona Whitfield, 
Leland Shurin, John Bingler, Bruce Greer, Sue Ellen Myerscough, Cheryl 
Wattley, Michael Schattman, James A. Beaty, Jr.; J. Rich Leonard, 
Anabelle Rodriguez-Rodriguez, Helene White, Jorge Rangel, Jeffrey 
Coleman, James Klein, Robert Freedberg, Lynette Norton, Robert Raymar, 
a fellow from New Jersey whose name came up, could not get a hearing, 
Legrome Davis, Lynne Lasry, Barry Goode, H. Alston Johnson, James 
Duffy, Elana Kagan, James Wynn, Kathleen McCree-Lewis, Enrique Moreno, 
James Lyons, Kent Markus, Robert Cindrich, and the list of those who 
waited for such long periods is rather lengthy. We are talking about 57 
nominees who were never allowed votes by the Republican-controlled 
Senate: 31 circuit and 48 district judges, 57 of those never allowed 
votes; 31 circuit court nominees, 22 blocked from getting a vote or 
being confirmed. There is person after person. One person waited more 
than 1,500 days, Helene White, never to be allowed a hearing or a vote. 
Richard Paez waited more than 1,500 days, finally confirmed. The list 
goes on.
  So when I hear the complaining about how unfair the Democrats have 
been, I just say look back over our shoulder not too long ago and see 
the number of people who waited and waited and could not get any 
attention at all.
  Mr. Estrada is getting attention, a lot of attention, and if he was 
responsive appropriately, I am positive a vote would have taken place 
and we would all have registered our opinion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, Senator Byrd wished to come to the floor and 
speak for about 45 minutes. I spoke to him a few minutes ago. He 
indicated he would be ready to go at quarter after 5. The Senator from 
Washington wishes to speak for 10 or 12 minutes. So I do not think it 
would greatly inconvenience anyone if I ask unanimous consent that the 
Senator from Washington be recognized for up to 12 minutes, and 
following her statement that Senator Byrd be recognized for up to 45 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Washington.
  Mrs. MURRAY. Mr. President, I rise today to discuss the nomination of 
Miguel Estrada to the U.S. Court of Appeals for the District of 
Columbia. Throughout my service in the Senate, we have struggled with 
judicial nominations. I know we can make the process work.
  In Washington State, I worked with a Republican Senator and a 
Democratic President to nominate and confirm Federal judges, and today, 
with a Republican President I am working with my Democratic colleague 
from Washington State on a bipartisan process to recommend judicial 
candidates.
  I have also seen the process work in the Senate. My Democratic Senate 
colleagues agreed to confirm 100 Federal judges during the period of 
the 107th Congress when Democrats were in the majority. That is a great 
accomplishment for a Democratic Senate and a Republican President.
  There were also periods during the Clinton administration where the 
Republican Senate confirmed significant numbers of judges appointed by 
a Democratic President. It is important to put this standoff in the 
proper context. We are considering a nominee to the DC Circuit Court 
which is widely acknowledged as the second highest court in our 
country.
  This court has jurisdiction over a broad array of critical issues 
involving workers rights, civil liberties, disabilities, and 
environmental regulations. Judges at the DC Circuit Court are often 
given serious consideration for service on the United States Supreme 
Court. This is a lifetime appointment. Neither the President nor the 
Senate can revisit this nomination once it has been confirmed.
  All of these factors--the importance of the DC Circuit, the potential 
of consideration for the Supreme Court, and the lifetime appointment--
signal Members to proceed with caution. We are not considering a 
nomination to a commission or an ambassadorship or some other Senate-
confirmable position. This is different. This is a lifetime appointment 
for a Federal judge whose rulings over the next 30 or 40 or more years 
will have ramifications for every single American.
  I respect President Bush's role in nominating Miguel Estrada. I 
respect the majority's right, working with the President, from the same 
party, to promptly move judicial appointments. I come to the floor 
today to ask my colleagues to respect the Senate's constitutional 
advice and consent responsibilities. As Senators, we are elected to 
serve our constituents. We are asked to confirm judges whose decisions 
can change U.S. history and shape the lives of the American people for 
generations to come. That is a tremendous responsibility. I know all 
Senators take it very seriously.
  Let me say a few words about the nominee now before the Senate. 
Miguel Estrada, by all accounts, is an accomplished lawyer with a 
compelling personal history. But I owe it to my constituents to make an 
informed judgment on his nomination. At this time I

[[Page S2401]]

am simply not prepared to move forward with a vote on the nomination of 
Miguel Estrada because there is too little information for me to make 
an informed decision. I encourage the majority leader to take this 
nomination off the floor at this time. We expect Federal judges to 
provide the proper check in our system of checks and balances outlined 
in the Constitution. Without it, our system does not function properly.
  We must ensure each nominee has sufficient experience to sit in 
judgment of our fellow citizens, will be fair to all those who come 
before their court, will be evenhanded in administering justice, and 
will protect the rights and liberties of all Americans. To determine if 
a nominee meets those standards, we need to explore their record, ask 
questions, and weigh their responses. Miguel Estrada and the 
administration have failed to address these basic issues. And without 
addressing these basic issues, I cannot assess the nominee's 
qualifications. From my perspective, the Senate has been asked to 
confirm a candidate about whom we know very little. I cannot at this 
time vote to confirm Miguel Estrada for lifetime service on the DC 
Circuit Court.
  As several of my colleagues have done, I need only to invoke the 
words of the chairman of the Judiciary Committee to describe my 
hesitancy to move forward with the Estrada nomination. Speaking of 
President Clinton's judicial nominees and the Senate, Senator Hatch 
said the Senate will have ``to be more diligent and extensive in its 
questioning of nominees' jurisprudential views.''
  Mr. Estrada and the administration have failed to meet the same 
standard set out by Senator Hatch. Mr. Estrada has failed to provide 
through his writing, his experience, or through answers to questions at 
the Judiciary Committee, any meaningful insight into his likely 
decisionmaking process as a Federal judge. He has very limited 
scholarly or judicial experience. He did work in the Solicitor 
General's Office at the Department of Justice during the 1990s. But, 
unfortunately, the administration has refused to provide the Senate 
with or characterize any opinions he wrote or had while at DOJ.
  Despite repeated requests from Senators, the nominee and the 
administration have refused to provide information that can help all 
Senators determine whether Miguel Estrada is deserving of confirmation 
to a lifetime appointment to the Federal bench. Allowing Senators to 
access the memoranda he wrote while at the Solicitor General's office 
is particularly important.
  Unlike most judicial nominees, he has nothing on paper to give us any 
indication as to how he would rule on the bench. In fact, Mr. Estrada 
has not had any published legal writings since he was in law school.
  Time and again, we are told by the administration that Miguel Estrada 
is a brilliant lawyer and more than qualified to serve on the D.C. 
Circuit Court. Yet, all we have to base a decision on his nomination 
are the endorsements of others. I appreciate these endorsements, but 
each of us as Senators must reach our own conclusions based on the 
facts. I am greatly troubled by the silence we have heard from the 
nominee himself.
  The path to confirmation for a judicial nominee is indeed a difficult 
one. But in the case of Mr. Estrada, the nominee and the administration 
went beyond anything we are accustomed to and brought great difficulty 
upon themselves. At his confirmation hearing before the Judiciary 
Committee, Mr. Estrada refused to give Senators straight answers to 
most of their questions.
  Many of our Judiciary Committee colleagues have discussed this 
nomination at great length here on the floor. I have listened to the 
statements from both Democrats and Republicans on the Judiciary 
Committee.
  The words of Senator Feinstein stands out as I look at this 
nomination. Let me share them again with the Senate.
  Senator Feinstein said:

       I have been reviewing background materials about Miguel 
     Estrada, talking to those who have concerns about him, and I 
     have re-read the transcript from Mr. Estrada's hearing.
       I must say that throughout this process, I have been struck 
     by the truly unique lack of information we have about this 
     nominee, and the lack of answers he has given to the many 
     questions raised by Members of this Committee.
       He, essentially, is a blank slate. And, if confirmed, he 
     could serve for 30, 40, or even 50 years on one of the 
     highest courts in the Nation. We has better be right about 
     this decision.

  Mr. President, I agree with that assessment. The Senate must be right 
about this decision. That is why so many on this side of the aisle have 
asked the majority leader to help us be right about the Miguel Estrada 
nomination.
  At a minimum, Mr. Estrada should be sent back to the Judiciary 
Committee for more questioning. In the Committee, he should be more 
forward in answering the questions of Senators. He should be more 
willing to release information regarding his opinions about important 
judicial matters.
  Mr. Estrada was asked to name any case in the history of the Supreme 
Court with which he disagreed. Surely, Mr. Estrada--who served as the 
editor of the Harvard Law Review--can cite a case that he disagrees 
with. At his original confirmation hearing, Mr. Estrada could not cite 
a single case before the Supreme Court he disagreed with. The Senate 
should give Mr. Estrada another opportunity to answer this question 
before the Judiciary Committee.
  Mr. Estrada was asked to name a Supreme Court judge that he admired. 
When he refused to answer this question, Mr. Estrada was asked to name 
any Federal judge that he admired. Again, Mr. Estrada refused. The 
Senate should give Mr. Estrada another opportunity to answer this 
question before the Judiciary Committee.
  Unless the Senate is able to learn more about Miguel Estrada, I am 
left to conclude that this nominee has no judge he would try to 
emulate, no judicial philosophy he follows, and no opinion on any 
important case that has ever come before the Supreme Court.
  Without so little information to determine how Mr. Estrada will rule 
as a Federal judge on important matters of labor rights, rights of 
privacy, civil rights and environmental regulation, I cannot consent to 
considering his nomination at this time.
  I strongly encourage the majority leader to withdraw this nomination 
and send it back to the Judiciary Committee. I encourage the President 
and the nominee to address the many issues raised by Senators.
  The ultimate fate of the Miguel Estrada nomination--was well as the 
Senate's ability to move forward with bipartisan support for judicial 
nominees--rests with the majority leader and the President of the 
United States.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the distinguished Senator from West 
Virginia, who is to be recognized following the statement of the 
Senator from Washington, has agreed the Senator from Arkansas could 
speak for up to 6 minutes prior to his speech. There is no one here on 
that side, so I don't think it inconveniences anyone.
  I ask unanimous consent that the order now in effect be changed to 
allow her to speak for up to 6 minutes before Senator Byrd speaks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arkansas.
  Mrs. LINCOLN. Mr. President, I certainly thank my colleague from West 
Virginia for his courtesy and kindness in letting me go forward. I 
appreciate it.
  Mr. President, I come to the floor today to express my frustration 
with the nomination of Miguel Estrada to the Court of Appeals for the 
DC Circuit. I have never before opposed a judicial nominee, but after 
much prayer and reflection I cannot support this nominee until he is 
able and willing to cooperate with the Senate in its Constitutional 
responsibility to advise and consent. I believe all executive and 
judicial nominations that come before the U.S. Senate are entitled to 
courtesy and respect. I also believe the U.S. Senate's role of advise 
and consent is an important check and balance that our forefathers 
instituted, and it is an obligation that I do not take lightly. I know 
our forefathers put it there for a good reason. Each nominee is 
entitled to a thorough and fair hearing, and I have fully evaluated 
each of President Bush's nominees as the Constitution

[[Page S2402]]

mandates. In every case before us, I have supported President Bush's 
nominees. Yet I can not in good conscience support this nominee at this 
time based on the lack of information that has been made available and 
the manner in which this nomination has been presented. Is it too much 
to ask of a person who is being offered a lifetime position to simply 
answer a few questions?
  As a nominee seeking Senate confirmation, Mr. Estrada has the burden 
of proof to demonstrate his fitness for the high office he seeks. 
During the confirmation process, a nominee can meet this burden in many 
ways depending in part on the background and experience of an 
individual at the time of appointment. Another consideration is the 
level of scrutiny warranted for a life-time appointment to an important 
judgeship. Finally, one critical element I look for in all nominees is 
a willingness to cooperate with the Senate and show deference and 
respect for the process we engage in here in the Senate.
  As many of my colleagues have already established, Mr. Estrada comes 
to the Senate with a very limited written record upon which to make an 
informed judgment. To make our job even more difficult, the 
administration has refused to release relevant information that would 
shed much needed light on this nominee's judicial philosophy and 
reasoning. Moreover, Mr. Estrada seemed determined to be evasive and 
unresponsive to questions put to him during his confirmation hearing.

  After weighing these factors, reviewing the committee record, meeting 
personally with Mr. Estrada, and considering the views of hundreds of 
constituents and interested organizations, I am not satisfied that Mr. 
Estrada has met the burden required for confirmation to such an 
important position.
  Even though Mr. Estrada is reluctant or unwilling to say so, I assume 
Mr. Estrada has a conservative ideology and that he and I would 
disagree on many issues. But after voting for every judicial nominee to 
come before the Senate since I took office, I can say with credibility 
that Mr. Estrada's ideology doesn't prevent me from supporting his 
nomination. A nominee's particular views or political beliefs don't 
bother me, so long as I am confident that nominee can separate his 
personal beliefs and opinions from his duty as a Federal judge to 
follow established precedent and interpret the law and Constitution 
fairly and without political bias.
  What concerns me a good deal, however, is the unwillingness of the 
administration and Mr. Estrada to respond directly to reasonable 
requests for legitimate information. How hard is it to answer questions 
about Supreme Court cases that have been on the books for years? Why is 
the administration so unwilling to allow U.S. Senators to review 
written material that would help us discharge our duty under the 
Constitution?
  I believe having judges from different backgrounds is important, and 
I salute President Bush for nominating an Hispanic to serve on this 
court. I fully support efforts to diversity the Federal judiciary so 
that it is more representative of our society. But I cannot support Mr. 
Estrada simply because he is Hispanic.
  Charges of racial insensitivity have no place in this debate. This 
Senate has already confirmed unanimously seven of President Bush's 
Hispanic judicial nominees.
  Like all nominees that come before the Senate, Mr. Estrada must 
answer questions put before him. I want to make clear that the 
questions Democrats asked of Mr. Estrada are no different than the 
questions Republicans have asked of nominees. In fact, when the current 
Attorney General served on the Senate Judiciary Committee, he asked a 
judicial nominee the same question that Mr. Estrada refused to answer. 
The question was: ``Which judge has served as a model for the way you 
would conduct yourself as a judge and why?'' Mr. Estrada was asked and 
refused to answer a similar question.
  When I let my boys off at school this morning--they are 6 years old 
and in the first grade--they were having problems with a buddy at 
school, in their class. They were saying: What do we do with this, Mom? 
How do we handle it?
  Do you know what I said to them? I said: Work with him. Figure it 
out. Work with him.
  That is simple, and it is simply what Democrats have told Mr. 
Estrada: Work with us. We are trying to do our job, to satisfy our 
constitutional responsibility, in good conscience, to meet the job we 
are sent here to do by the constituents who believe in us. If that 
means reviewing oral arguments and briefs of a few cases so that Mr. 
Estrada can state an opinion on at least one case decided by the 
Supreme Court in the last 40 years, why not do it? No one disagrees 
that Mr. Estrada has a distinguished academic and professional 
background. He is a very nice man. I met with him. My responsibility is 
not just to put nice people into judgeships.
  He graduated magna cum laude from Columbia and magna cum laude from 
Harvard Law School, served as editor for Harvard Law Review, and 
clerked for a Supreme Court Justice. It should not take him more than 
an afternoon, or less, to do a little research so that he could answer 
the questions that members of the Judiciary Committee have put before 
him.
  I call on the administration to let Mr. Estrada answer the questions 
the Senate has put before him, in good faith, so that the Senate can 
vote on Mr. Estrada. Is it really too much to ask, to simply say we 
need more information to make an important judgment on a very 
important, lifetime nomination? Please, give us the ability to execute 
our responsibilities under the Constitution. Is it too much to ask of 
one man, who is before us, who has the burden of proof, to show us his 
capabilities? Is it too much to ask, to simply say let's spend a couple 
of more hours, answer a few questions, and move forward? Because this 
Nation has a great deal to deal with. We have many issues on our plates 
and many things we need to address immediately. I simply say to my 
colleagues, is it too much to ask, to simply answer a few questions?
  Mr. President, I especially thank my colleague from West Virginia for 
his yielding to me and allowing me to move forward.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, may I say to the distinguished Senator from 
Arkansas, my favorite Supreme Court Justice was John Marshall. It is 
not a very hard question to answer.


                    U.S. RHETORIC GOES OVER THE TOP

  Mr. BYRD. Mr. President, the language of diplomacy is imbued with 
courtesy and discretion. Diplomats the world over can be counted on to 
choose each word of every public statement with precision, for an ill-
received demarche could turn allies into adversaries or cooperation 
into confrontation.
  Like most professions, diplomacy has its own lexicon. As John Kenneth 
Galbraith wrote in 1969, ``There are few ironclad rules of diplomacy 
but to one there is no exception: when an official reports that talks 
were useful, it can safely be concluded that nothing was 
accomplished.'' And when we hear a seasoned envoy refer to a ``frank 
and open discussion,'' we know that he is actually talking about a 
knock-down, drag-out fight behind closed doors. While negotiation can 
steer great powers away from a course that would lead to war, we can 
usually count on public statements about diplomacy to be 
underwhelming--not overwhelming but underwhelming.
  There have been exceptional times when bold statements have energized 
world opinion. When President Reagan stood on the Berlin Wall in 1987 
and proclaimed, ``Mr. Gorbachev, tear down this wall,'' he spoke to 
millions of Germans who longed to be freed from oppression. While I 
would not go so far as to credit a single phrase with hastening the 
fall of the Eastern Bloc, certainly President Reagan's statement 
reflected the resolve of the West to oppose communism.
  There have also been a fair number of bold statements to the world 
that have backfired. For example, Nikita Khrushchev squandered whatever 
credit he might have gained through a goodwill tour of the United 
States in 1959, when he visited the United Nations the next year. The 
Soviet Premier famously exclaimed to the West, ``We will bury

[[Page S2403]]

you,'' while slamming his shoe on the table in front of him. This ill-
advised outburst was a vivid depiction of an irrational and out-of-
control superpower.
  Fortunately, the United States has a tradition in foreign policy of 
being slow to anger. We have nurtured a reputation of being rational 
and deliberate. I doubt that Americans would have much tolerance for a 
president who used the United Nations as a forum for testing the 
construction of his footwear on the nearest table. It would be a great 
departure for the United States to use its foreign policy organs as a 
means to spread divisive rhetoric.
  Unfortunately, the tone of our foreign policy in recent months has 
been in a steady decline. To some of our allies, the United States, 
through its words and its actions on the crisis in Iraq, is beginning 
to look more like a rogue superpower than the leader of the free world. 
Many newspapers in European capitals criticize U.S. policy toward Iraq. 
Moderate Muslim nations, such as Jordan and Turkey, are growing 
progressively suspicious of American motives in the war against 
terrorism. An increasing number of people in Arab countries are 
coalescing around an outright hatred of the United States.
  Let us remember that President Bush came to office promising to 
change the tone in Washington. I wonder if the current tone of American 
foreign policy is what he had in mind? One source of alarm is the tone 
of the National Security Strategy released by the White House in 
September 2002. In broad strokes, the strategy argues that the United 
States should use its overwhelming military power to engage in 
preemptive strikes to prevent others from ever developing the means to 
threaten our country. The strategy notes a preference for working with 
allies to keep the peace, but underscores the willingness of the United 
States to act unilaterally.
  The content and the tone of these important pronouncements in the 
National Security Strategy sparked outcry, in the United States and 
around the world. The report gave critics plenty of ammunition to make 
their case that the United States is a 400 pound gorilla that will stop 
at nothing to get its way. Our strategy leaves much of the world the 
impression that Americans agree with the quotation of the late Chinese 
leader, Zhou Enlai, which turned the axiom uttered by the military 
strategist Carl von Clausewitz on his head: ``All diplomacy is a 
continuation of war by other means.''
  There are many examples of provocative rhetoric that have escalated 
the stakes of our standoff with Iraq. In his 2002 State of the Union 
Address, the President coined an ``Axis of Evil,'' comprised of Iran, 
Iraq, and North Korea. In October 2002, the White House press secretary 
suggested that regime change in Iraq could be accomplished with ``the 
cost of one bullet.'' On December 30, 2002, President Bush said that 
Saddam's ``day of reckoning is coming.'' The next day, he chided a 
reporter who asked about the prospect of war in Iraq by saying, ``I'm 
the person who gets to decide, not you.'' The President's coarse words 
did nothing to ease criticism of American unilateralism.
  Several members of the President's national security team warned Iraq 
in January 2003 that ``time is running out'' for Iraq, and that such 
time was measured in weeks, not months. On Sunday talk show interviews 
on January 29, the White House Chief of Staff refused to rule out the 
use of nuclear weapons in a war against Iraq. On February 6, President 
Bush ominously declared that ``the game is over.'' With each of these 
statements, the chances of war appeared to grow.
  To be fair, the President and his advisors have repeatedly stated a 
preference for the peaceful disarmament of Iraq. But as I speak right 
now, many Americans believe that war is inevitable. Through words and 
through action, the United States appears to be on a collision course 
with war in the Persian Gulf. Stating a preference for a peaceful 
solution is not enough to alter the heading of our great ship of state.
  If our rhetoric toward Iraq is not alarming enough, the last weeks 
have seen an appalling increase in criticism of our allies and the 
United Nations.
  On September 12, 2002, President Bush delivered a strong and 
effective speech that urged the United Nations to take action to disarm 
Iraq. The President said: ``All the world now faces a test, and the 
United Nations [faces] a difficult and defining moment. Are Security 
Council resolutions to be honored and enforced, or cast aside without 
consequence? Will the United Nations serve the purpose of its founding, 
or will it be irrelevant?''
  The President threw down the gauntlet, and the United Nations acted. 
Inspectors have returned to Iraq, and they are doing their job. The 
inspectors have asked for more time, but the President has now 
challenged the U.N. to authorize the use of force, or again face 
irrelevance.
  And so, the world is now wondering, which is the greater threat to 
the relevance of the U.N.: a rogue nation that flaunts the will of the 
international community; or a permanent member of the Security Council 
that views the institution as useless unless the institution submits to 
its will? This hand has been overplayed. More threats of U.N. 
irrelevance will only portray the United States as a bully superpower.
  European allies who do not share our view on the crisis in Iraq have 
recently been in the cross hairs for verbal bombardment. Secretary of 
Defense Rumsfeld has lumped Germany in with Libya and Cuba as the 
principal opponents of war in Iraq. He also characterized Germany and 
France as being ``Old Europe,'' as if their economic and political 
power does not matter as compared to the number of Eastern countries 
that comprise New Europe.
  Richard Perle, a senior advisor to the Department of Defense, has 
also had choice words about our European allies. In October 2002, Mr. 
Perle recommended that German Chancellor Schroeder resign in order to 
improve relations between our two countries. On January 30, Mr. Perle 
followed up this charge by saying: ``Germany has become irrelevant. And 
it is not easy for a German chancellor to lead his country into 
irrelevance.'' Spreading his criticism around, Mr. Perle stated that 
``France is no longer the ally that it once was.'' So far as I can tell 
from press reports, Mr. Perle, who is the Chairman of the Defense 
Policy Board, has not been admonished for his inflammatory statements.
  Such vindictive criticism of our European allies has had 
repercussions. According to a new poll, published in the Financial 
Times Deutchland on February 10, 57 percent of Germans agree with the 
statement, ``The United States is a nation of warmongers.'' And now we 
find ourselves in a pointless stalemate with our NATO partners over 
military assistance to Turkey. If we had been more temperate in our 
rhetoric, perhaps we could have worked through the anti-American tone 
of the recent elections in Germany. Instead, we find ourselves 
escalating a war of words against two great European powers, who were 
powers--and who were great powers--before ours became a republic.
  And so, Mr. President, how we communicate our foreign policy makes a 
difference. We expect North Korea or Iraq to use inflammatory 
propaganda to speak to the world, but we are a more dignified nation. 
There are ways for our country to indicate resolve without resorting to 
bellicosity. The subtext to nearly every new White House statement on 
Iraq is that the United States has run out of patience. The 
administration is signaling its willingness to use an extreme amount of 
military force against Iraq when many still question the need to do so, 
when many in our own country still question the need to do so, when 
some in this Senate still question the need to do so at this time. We 
need to change our tone.

  Impetuous rhetoric has added fuel to the crisis with Iraq and 
strained our alliances. Before committing our Nation to war with Iraq 
and the years of occupation that will surely follow, we should repair 
the damage to our relations with our allies. I urge the President, and 
the administration, to change the tone of our foreign policy--to turn 
away from threatening Iraq with war, to turn away from insulting our 
friends and allies, to turn away from threatening the United Nations 
with irrelevance. Our rhetoric has gone awry, our rhetoric has gone 
over the top, from giving an indication of our strength to giving an 
indication of our recklessness.

[[Page S2404]]

  I have learned from 50 years in Congress that it is unwise to insult 
one's adversaries, for tomorrow you may be in need of an ally. I have 
found in my 56 years in politics that today's opponent may be 
tomorrow's friend. There will come the day when we will seek the 
assistance of those same European allies with which we are now feuding. 
But serious rifts are threatening our close relationship with some of 
the great powers--the truly great powers of history--some of the great 
powers of Western Europe. The Secretary of State said yesterday that 
NATO is at risk of breaking up. Mr. President, it is time that we 
pause. It is time that we take a look at ourselves. It is time to put 
our bluster and swagger away for the time being. I urge the President 
to calm his rhetoric, repair our alliances, and slow down in the charge 
to war.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. CANTWELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. CANTWELL. Mr. President, last night I sat in my office listening 
to my colleagues, most on the other side of the aisle, debating the 
issue of Miguel Estrada's nomination to the second most powerful court 
in the country, the District of Columbia Circuit Court of Appeals. Even 
after all of the debate, some people may not realize that the D.C. 
Circuit Court is the overseer of all Federal agencies. It is the court 
that is most likely to make decisions about whether Federal regulations 
will be upheld or overturned, whether reproductive rights will be 
retained or lost, or whether intrusive Government actions will be 
allowed or curtailed.
  I understand why some of my colleagues last night may have become 
heated with the determination of our side of the aisle to filibuster 
this nomination. Many of my colleagues wanted to know why we believed 
we had no other choice but to filibuster the nomination.
  It is time we quit dancing around the issue. The question that has 
gotten so many of us concerned is whether this body is going to approve 
Bush administration nominees to the court of appeals who are out of 
step with the mainstream views of America.
  Someone said last night: Maybe that side of the aisle doesn't want to 
appoint conservatives.
  That is not the issue. What is at issue is we don't want to appoint 
someone who clearly refuses to answer questions on key issues of the 
constitutional right to privacy, only later to find out they will not 
uphold current law on protecting a woman's right to choose!
  Upholding a woman's right to choose is an important issue of privacy 
and something about which we should all be concerned, It is an issue on 
which we have 30 years of settled law, and women across America count 
on that right.
  But there are other stories and other issues of privacy we should 
also be concerned about. We are at a unique time in our country's 
history, a time when U.S. citizens have been treated as enemy 
combatants and imprisoned without access to counsel or trial by jury. 
We are at the tip of the iceberg of the information age where 
businesses may have access to personal information and exploit that 
information. Where health care industry people might have access to 
your most personal medical information. Where the Government has 
established a process of eavesdropping on and tracking U.S. citizens 
without probable cause. Where the Government has the ability to use and 
develop software that can track one's use of web sites and information 
on their personal computer without their consent or knowledge.
  These are all important privacy questions that deserve to have the 
attention of any nominee to the Circuit Court of Appeals. When Miguel 
Estrada refused to answer the questions my colleagues on the Judiciary 
Committee posed to him about the issue of privacy, and if he in fact 
believed in a constitutional rights to privacy, it was troubling to me 
and to my colleagues who are opposing this nomination. We need to have 
answers to these questions before Miguel Estrada can be confirmed.
  Make no mistake--the public is hearing a lot of bickering in the 
Chamber about numbers. How many nominees on this side have we pushed 
through, how many nominees have they pushed through, when a particular 
party was in charge. I am not sure the public wants to follow that 
debate.
  But one debate I am sure they want to follow is the failure of Miguel 
Estrada to tell us what he believes. A 2001 poll shows that seventy 
four percent of the American public believes the question of judicial 
philosophy should be asked of nominees to the appellate court and that 
answers should be given. Over 50 percent of Americans, in a survey done 
in 2001, believe Members should not vote to confirm otherwise qualified 
nominees if they think their views on important issues are wrong.

  Of course we cannot even make that judgement and we aren't left with 
a lot of options, when Miguel Estrada won't specifically answer the 
questions.
  Some have said that the issue is simply that we don't like his 
answers to the questions. I do believe that it is important to view 
this debate in a larger context. This debate is about what this 
Administration means when it says we should appoint people to the court 
and who have a strict constructionist view of the Constitution. Like 
most Americans, I was not entirely sure what that phrase means. So I 
looked for further clarification. I found some that was very 
interesting. In January 2000, the President appeared on one of the 
Sunday talk shows. And he was asked about strict constructionism. He 
was asked the following:
  With regard to strict construction, we will put up on our screens 
some words from Justice Scalia pertaining to abortion.
  [Justice Scalia] said: ``There is no constitutional right to 
abortion. I reach that conclusion because of two simple facts: One, the 
Constitution says absolutely nothing about it and, two, the 
longstanding traditions of American society have permitted it to be 
legally proscribed.''
  The host then asked the President, ``Would you ask a nominee that 
question? Do you agree with that?''
  The President responded:

       I guess you would have to say that is my idea of a strict 
     constructionist.

  So when people talk about a strict constructionist, very often they 
are talking about someone who doesn't believe in the constitutionality 
of a woman's right to choose.
  An editorial in the Atlanta Journal Constitution makes the point as 
well when they wrote:

       The same spirit of deception is apparent when the topic 
     turns to abortion. Bush is committed to overturning the U.S. 
     Supreme Court decision legalizing early term abortion; but in 
     most settings, he dares not mention the truth because he 
     understands how unpopular it would be. So instead of being 
     frank about his stance, he talks in code of appointing judges 
     who believe in strict construction of the U.S. Constitution.

  Mr. President, I don't think that is what this body should support. 
And in this context I do not think we should approve nominees who will 
not answer questions about their view on whether the right to privacy 
is guaranteed in our Constitution.
  Make no mistake about it. This is not about someone's political 
views, this is about each nominees' judicial philosophy. We had a very 
interesting debate before the Senate Judiciary Committee on a nominee 
to the Tenth Circuit, Michael McConnell. A man who in private practice 
and as a law professor had espoused many views in opposition to 
abortion rights and was very critical of the decision in Roe v. Wade. I 
do not agree with probably any of the political views of Michael 
McConnell. Yet he came before our committee and, for hours, outlined 
his judicial philosophy, his understanding of stare decisis, his view 
on where the right to privacy exists within the Constitution and how it 
evolved. He was very specific in saying he thought the issue had been 
settled. In just one of the many, many answers he gave on privacy he 
said:

       I think most scholars would agree. In Roe, the Court 
     canvassed several different possible textural bases and said 
     it didn't matter which one of the bases. It was only in 
     Planned Parenthood v. Casey that the Court finally came down 
     to a single methodology and identified the privacy right as 
     rooted in the substantive due process of the 14th amendment.


[[Page S2405]]


  Mr. McConnell went on:

       Not only was Roe v. Wade decided by the Supreme Court, but 
     a lot has happened in the 26 to 27 years, or however many it 
     has been, since Roe v. Wade. That decision has now been 
     considered. It has been reconsidered and reaffirmed by 
     justices appointed by Presidents Nixon, Ford, Reagan, Bush, 
     and Clinton after serious re-argument. At the time when Roe 
     v. Wade came down, it was striking down State statutes of 45 
     of the 50 States of the Union. Today it is much more 
     reflective of the consensus of the American people on the 
     subject.

  I offer this as an example of a nominee who was confirmed! Approved 
with bipartisan support. Was it because we agreed with his political 
views on abortion? No. It was because he came before the Senate and 
answered the question about the constitutionality of people's right to 
choose.
  Now, some may say, well, this particular nominee, Miguel Estrada 
doesn't want to be that specific. We have all heard about this 
particular court, the District of Columbia, and how important it is to 
our country--the second highest court in the land--and the particulars 
of why this particular nominee may be so important. But again we also 
have to look at this nominee in context. This is not the first 
troubling nominee this administration has supported. They have put 
before us other individuals who, I believe, have been judicial 
activists in their role on various courts. We have been successful in 
defeating their nomination. Although we may be going to see them 
sometime in the future.
  Several months ago, the President nominated Priscilla Owen to the 
Fifth Circuit. In a series of cases interpreting a new Texas law on 
parental consent, Owen suggested that a minor, even in the case of rape 
and incest, should be required to demonstrate that she had received 
religious counseling before receiving medical care.
  She insisted that her holding followed Supreme Court precedent, yet 
she was unable to demonstrate where in the Supreme Court precedent the 
requirement on religious counseling existed. That is because it 
doesn't. Our law does not require those seeking abortion to have 
religious counseling. Her dissent in a similar case was called an 
``unconscionable act of judicial activism,'' by White House Counsel, 
Alberto Gonzales.
  Another Bush nominee, Charles Pickering, received an unfavorable vote 
from the Senate Judiciary Committee last year after it became clear he 
had intervened on behalf of a convicted cross burner, calling 
prosecutors, including high-level officials in the Department of 
Justice, in an effort to lower the sentence of the convicted cross 
burner. The victim in this case said, after learning for the first time 
about the role that was played by Judge Pickering, that her ``faith in 
the judicial system had been destroyed.''
  This is the context in which we view the nomination of Miguel 
Estrada. It is not clear where Miguel Estrada stands on the issues. He 
doesn't have a record like Priscilla Owen, or like Judge Pickering, 
about which we can ask questions. So the fact that he refuses to answer 
those questions, and the fact that the administration has proclaimed 
that they are very interested in nominating people with ``strict 
constructionist'' views about the Constitution, has left us very 
concerned about this particular nominee.
  Let me be clear. The public doesn't care about our bickering on 
numbers, but they do care about us doing our job and asking questions 
about the nominee's views on important issues.
  Another survey that was done last year asked whether individuals 
thought the views of nominees on specific issues should be taken into 
account, that Senators are expected to have a viewpoint by the people 
who elect them and not simply rubberstamp the nominees the President 
sends to the Senate. And 77 percent found that to be the persuasive 
argument to which they agreed.
  The public was also asked whether the views of nominees on specific 
issues should be taken into account since Federal judges serve for life 
and are not elected by the people, and no one should be put on the 
bench if that person holds a position on an important issue that 
Senators think is simply wrong. Again, 77 percent of the public 
believed that was a persuasive argument and correct.
  The issue is that the public does want us to do our job. They want us 
to find out the positions of these nominees.
  It was not that long ago we had another issue before this body, a 
nomination to the Supreme Court of Justice Clarence Thomas. At that 
time, Judge Thomas refused to answer questions on the right to privacy, 
saying he thought there had been too much controversy on the issue and 
he did not have a personal view on whether Roe v. Wade had been rightly 
decided. But then, only one year later, he dissented in Planned 
Parenthood v. Casey stating that Roe v. Wade should be overturned!

  This debate is very alarming to Americans. It is alarming because 
they want to know that their judiciary represents the views of the 
mainstream public; they want to know that the judiciary will uphold 
current law; that they will follow stare decisis. They want to know 
that the right of privacy, as it has been recognized in the 
Constitution, will be upheld.
  We have to go back and do our homework on this particular nominee. I 
think most people in America understand if you go to take a pass-fail 
test and you do not answer the questions, it is very hard for you to 
pass. We have all heard of oral exams where you have to show and 
understand the material you have been studying for years. If you do not 
show the comprehension of that material, you do not pass. I think 
people here understand that if you come before the Senate Judiciary 
Committee and fail to answer the questions, you do not pass as well.
  Maybe we will not agree on the types of positions this side of the 
aisle would support for a nominee. Maybe that side of the aisle does 
support people of strict constructionist views who do believe that Roe 
v. Wade should be overturned, but let's not put forth and continue to 
pursue a nominee who refuses to answer the questions. These are 
questions that deserve an answer. These are questions about which this 
body should hold its head up high and say, as we continue in an age 
where privacy is going to become more important, we will continue to 
fight for the rights of the American people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I haven't had the opportunity in the last 
couple of days to have my say on Mr. Estrada. I thought I would take 
the time now to talk a little bit about the nomination of Miguel 
Estrada for the D.C. circuit court.
  I have to say that there has been a lot of nonsense bandied about in 
the Chamber on the nomination and the idea of whether we are holding 
something up. Facts are bothersome things, as they say. What some 
people say in the past may come back to haunt them in the future.
  It was Mo Udall, former Congressman, who coined the wonderful phrase. 
He always said: O Lord, let me always utter kind and humble words for 
tomorrow morning I may have to eat them.
  I was looking back through the record. The current chairman of the 
Judiciary Committee in 1997 addressed the Utah chapter of the 
Federalist Society. This is what the current chairman of the Judiciary 
Committee said:

       The Senate can and should do what it can to ascertain the 
     jurisprudential views a nominee will bring to the bench in 
     order to prevent the confirmation of those who are likely to 
     be judicial activists. Determining who will become activist 
     is not easy since many of President Clinton's nominees tend 
     to have limited paper trails. Determining which of President 
     Clinton's nominees would become activist is complicated and 
     would require the Senate to be more diligent and extensive in 
     its questioning of nominees' jurisprudential views.

  That is interesting because when Mr. Estrada refused to answer even 
the most simple, straightforward questions, that sure doesn't help us 
in questioning his jurisprudential views. There is no doubt in anyone's 
mind that Mr. Estrada is a movement person. He will be a movement 
judge, one who will try to move the court in a certain ideological 
direction.
  What also concerned me was something my colleague Senator Hatch from 
Utah said the other day. He said:

       An up or down vote, that is all we ask. If the Democrats 
     have enough votes to defeat Miguel Estrada, I will not 
     complain about it. I might feel badly about it and I might 
     say it was the wrong thing to do, but they have

[[Page S2406]]

     a right to do it. If my colleagues who disagree do not like 
     this, they can speak out. They can give their reason. They 
     can vote no. Politics ought to be left out of it.

  That is what the Senator from Utah said last night. Unfortunately, I 
am sorry that his sentiments didn't exist when President Clinton's 
nominees came up for confirmation. I recall saying just about the same 
thing over and over again on the nomination of Bonnie Campbell to serve 
on the Eighth Circuit. She received her hearing in May of 2000 and then 
her nomination was stopped cold. Despite the fact she had the ABA stamp 
of approval, a long and distinguished history in the field of law, 
including her work as Iowa's attorney general. Members on both sides of 
the aisle supported her nomination. On September 21 and October 3, I 
tried to bring it up. Then during the month of October I brought up 
Bonnie Campbell's nomination seven times and seven times the Republican 
majority objected.
  The Senator from Utah kept talking last night about the Democrats' 
double standard. My first instinct is to call that claim laughable. But 
in reality, it is outrageous and duplicitous to us because so many 
extremely well-qualified nominees never got an up-or-down vote on the 
floor, never got a vote in committee, and many never even got a 
hearing.

  Bonnie Campbell had a hearing, but then they stopped her cold. 
Senator Hatch suggested Bonnie Campbell's nomination came too late in 
the last year of the last administration. I know for a fact that two of 
Senator Kyl's district court judges were nominated after Bonnie 
Campbell was, and they were confirmed on October 3, 2000.
  And now back to Mr. Estrada. We're not holding Mr. Estrada up because 
we feel like spending all of our time through the wee hours of the 
night talking about him. We're holding up because he hasn't told us 
anything. He hasn't answered the soft ball questions that nearly all 
judicial nominees have more than willingly answered. What's he got to 
hide?
  I don't know Mr. Estrada. To the best of my knowledge, I never met 
him. But I do know we have heard from people who do know him, who have 
associated with him, some of whom have termed him ``scary'' in his 
outlook, scary in what he might do as a judge. I don't know if he is or 
not, but I know the people who have associated with him have called him 
that. They think he is some kind of a rightwing kook. I don't know if 
he is or not. How do we know? Well, the stealth candidate hasn't helped 
when he won't even answer the most simple, straightforward questions. 
So we have no way of knowing one way or the other.
  It is our job as Senators to examine nominees, their background, 
their way of thinking to determine what kind of judges they would be 
and whether or not they can fairly and impartially administer the law. 
And as far as this Senator is concerned, I keep coming back to the same 
conclusion: we don't know enough about him to make an informed decision 
on his nomination to a lifelong appointment to the second most 
important and influential court of the land.
  Even after I find out more about him, I may vote against him, but I 
don't think we even have to bring him up for a vote until we know more 
about Mr. Estrada. Is he a rightwing kook? I don't know. Some people 
say he is. Some people say he is scary. We have no way of knowing at 
this point in time. That is why we should not bring his name up. We 
should not move forward on this until we find out more--unlike Bonnie 
Campbell, who answered all the questions and gave all the documents 
they ever asked of her. Yet, they would not even bring her name to the 
floor.
  So to my friend from Utah who says there is a double standard, I say 
look in the mirror.
  Mr. President, with that, I yield the floor and I suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, if my friend will yield.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I thank the Chair. The two managers of the bill--which we 
hope will be on the Senate floor before long--will return before long, 
just so the distinguished Senator from Utah is aware of that.
  Mr. HATCH. On the appropriations bill.
  Mr. REID. Yes.
  Mr. HATCH. I will be happy to yield at any time to them.
  Mr. President, before I came to the floor, I understand the 
distinguished Senator from Iowa criticized me for having a double 
standard. If I recall correctly, he said, I believe, I should look in 
the mirror when I talk about double standards.
  Also, during last night's debate, several of my Democratic colleagues 
attacked my record on moving Clinton nominees. I heard some of these 
attacks repeated this morning by the Senators from California. This 
surprised me and it very much disappointed me since I worked hard to 
get not only Judge Paez but also Marsha Berzon, now Judge Berzon, 
confirmed, despite the opposition to their nominations, and there was 
serious opposition. That is one reason it took so long for Judge Paez, 
and there were some very serious allegations. But I was able to fight 
through those, and I can guarantee this body that neither of those 
judges would have gone through had it not been for my work.
  I might add, neither would have a whole bunch of the 377 Clinton 
judges who did get through--the second highest total of confirmed 
judges in the history of the country--had it not been for what I was 
trying to do to help my colleagues on the other side.
  I understand my dear friend from Iowa is very bitter about what 
happened to one of his judicial nominees. I do not blame him for that. 
He has always been a friend. I am disappointed that he would attack me 
on the floor and accuse me of a double standard because he knows 
better, and if he does not know better, he ought to know better.
  I was unable to get his nominee through for a variety of reasons. I 
do not want to go into them here. I feel badly because of that. I 
personally liked his nominee, but there were things I was able to do as 
chairman and there were things I was unable to do. The one point nobody 
can rebut is that President Clinton was treated very fairly in getting 
the second highest total of Federal judges through in the history of 
the country of any President. President Reagan got 382 judges through, 
5 more than President Clinton. With regard to those 382 judges, 
President Reagan had 6 years of a Republican--his own party--Senate to 
help him.
  President Clinton had 6 years of the Republican Party in charge of 
the Judiciary Committee, and I was chairman during those 6 years.
  I think he would be the first to say that I helped him, or he would 
be a baldfaced liar. I know he is not that. So I would presume that he 
would be willing to admit, as a decent honorable person, that Senator 
Hatch worked closely with him in trying to get those 377 judges 
through.
  Unfortunately, I was not able to get some through some nominees about 
which some of my colleagues on the other side of the aisle feel very 
bitter. I apologize to them. I feel badly about that because there are 
things I could do and things I just could not do. There were a lot of 
things people did not think I could do that I did do. I am not perfect 
any more than anybody else, but I can say this: I do not think any 
other Senator could have gotten done what I got done with regard to 
fairness for the Clinton nominees.

  In contrast, I do not think what is happening to President Bush's 
nominees is fair at all. In fact, here we are in a filibuster for the 
first time in history against a Hispanic judge who has risen to the top 
of his profession, even though he has a disability. That bothers me a 
lot, to be honest with you.
  I did work hard to get Judge Paez and Judge Berzon through and 
confirmed, despite the opposition to their nominations, which 
opposition was not without merit. There were some legitimate concerns 
on the part of some of the Senators on this side of the floor.
  The fact remains that I lobbied for cloture on those two nominees, 
and

[[Page S2407]]

they were afforded an up-or-down vote, something Miguel Estrada is not 
being afforded. They were afforded an up-or-down vote as a result of my 
efforts. They were both confirmed and both sit today on the Ninth 
Circuit Court of Appeals, a very prestigious circuit court.
  Let me say this. I will stay here all day and all night, if I have 
to, to defend my record on Clinton judges because it is very unfair for 
anybody who looks at the record to say I personally did not treat him 
well.
  With regard to my friend from Iowa, I am disappointed he would attack 
me on the floor of the Senate, but I will say to him, I understand his 
feelings, his very deep feelings, and he felt very bitter that his 
nominee did not get through, a personal friend and somebody whom I 
personally liked.
  With my Democratic friends complaining so vociferously about the 
Republican treatment of Clinton nominees, which is totally unjustified, 
in my opinion, it leads me to believe that this shabby treatment of 
Miguel Estrada is driven in large part by a Democratic goal of 
retribution. That is all we heard last night in the questions from the 
Democratic side: Why didn't you do this? Why didn't you do that?
  If that is the way we play the game, my gosh, I can give 100 cases 
where this side ought to have some retribution against them. I, 
frankly, do not believe in that. Call it tit for tat if you want to, 
call it payback, call it what you will, but I, for one, am becoming 
more and more convinced with each Democrat who takes the floor to 
complain about the Republican treatment of Clinton nominees that their 
opposition to Miguel Estrada is more about revenge than it is about Mr. 
Estrada. That bothers me a lot, to be frank.
  Mr. President, I also understand the distinguished Senator from Iowa 
said that people who know Mr. Estrada have called him a right-wing 
kook. I do not know anybody who has called him a right-wing kook, not 
anybody on the face of the Earth. The only persons who would do that 
are those who act irresponsibly, and I have not even heard any 
irresponsible people do that. So there is little or no reason for 
anybody on the floor of this Senate to demean Miguel Estrada, and that 
is what this debate has devolved to, and it bothers me.
  I caution my colleague from Iowa to respect other people. We all make 
mistakes, and we all say things that perhaps we should not say, and I 
will treat it that way this one time. But I do not want ever again to 
hear anybody on this floor call Miguel Estrada a right-wing kook or any 
other nomination by President Bush, any more than we should have called 
some of the far-left judges who were nominated by President Clinton 
left-wing kooks.
  We never did that, or at least I do not ever recall doing that. I 
certainly did not, and I do not recall anybody else doing it on our 
side.
  I just wonder who those mystery people are who called Mr. Estrada a 
right-wing kook. The only person I know of who has gone on record 
saying anything negative about Mr. Estrada, out of all the persons who 
have worked with him, is Mr. Bender, who has been more than, I think, 
rebutted, both in committee and on this floor, by his own performance 
reviews of Miguel Estrada that could not have been more glowing. And 
then when he has a chance to say something nasty because Miguel Estrada 
is now nominated to the circuit court of appeals, he chooses to do so. 
It is beneath the dignity of a law professor to do that, especially 
after giving those glowing performance reviews, even though he says 
everybody got those. Everybody knows that is not true.

  If it is true, then it is a sad commentary for our Government. But 
then again, even though he admits everybody got those glowing 
performance reviews, he claims the reason for that is because these are 
the best lawyers in the country. Reading between the lines of his 
letter, that is what he basically said. That is as much as saying 
Miguel Estrada is one of the best lawyers in the country.
  How can he be so inconsistent? He is the only one I know, and even 
he, as low as his comments are, did not call Miguel Estrada a ``right-
wing kook.''
  He has no credibility. I am just sorry in some ways for the law 
students who have to take his classes. I would prefer law professors--I 
do not care if they are liberal or conservative. Most of them are 
liberal, but I would prefer them to be honest people. I prefer them to 
have some dignity about their comments. I prefer them to be decent 
people teaching our young adults.
  It is a pathetic thing that almost every law school in this country 
has a whole raft of left-wing professors who, if they had to, probably 
could not make a living at the practice of law. Maybe they could make a 
living, but they could not stand the rigors and the difficulties of 
practicing law. It is a lot easier to teach two classes a week and 
pontificate from their high perches as liberal law professors to the 
detriment of some of these law students. It is a pathetic thing. 
Anybody who has gone to law school knows how far left an awful lot of 
those professors are.
  Are they bad people because they are far left? No. Some of them are 
terrific teachers and terrific people. Most of them are honest, which 
is something I cannot say for Mr. Bender with the way he has approached 
this thing.
  I remind my friend from Iowa that we have a standard in the Senate 
against relying on anonymous allegations, even though I have seen 
people on that side bring up anonymous allegations where Mr. Estrada 
could not even confront those making the allegations. That is just 
hitting below the belt. Senator Biden made it clear that should never 
happen, and yet it has happened in this Chamber and it has happened in 
committee. I, for one, am fed up with that kind of inappropriate 
behavior by Senators. It is beneath the dignity of these Senators to do 
something like that. Senator Biden's policy was: if they are not 
willing to face the person they are accusing, then they are not worthy 
of being listened to. I agree with him, and I intend to stick to that 
very same policy.
  I am going to forget these derogatory comments by the distinguished 
Senator from Iowa. I have never held a grudge. It is one of my 
weaknesses as a Senator. I just plain cannot hold a grudge against my 
colleagues. I have had some of my colleagues come up to me and say, 
boy, you ought to have a grudge against that guy. I just cannot do it.
  Personally, I love everybody in this body. And I think everybody 
knows that. It is against everything I believe to hold a grudge. So I 
am not going to do that and I am going to forget what was said today, 
but I do not want it ever said again. Nor do I want to have some stupid 
staffer putting words in the mouth of another Senator. That happens 
every once in a while. We should not allow staffers, no matter how 
bright they are or how stupid they are, to cause us to do things that 
are inappropriate on the floor of the Senate and to make 
accusations that are not justified against somebody who worked his guts 
out to try and help President Clinton get his judges through, because I 
believe the President of the United States has a right to have his 
judges voted on up or down.

  I have made that clear throughout my tenure as chairman, and 
everybody knows it. I have had countless Democrat Senators say they 
know I am not responsible for some of the problems that happened. Then 
again how many are responsible over on my side, because 377 Clinton 
judges went through?
  We were the opposition party putting them through. And they are 
complaining? We are in the second month of a brand new session of 
Congress and we cannot even get the first circuit court of appeals 
nominee, the first Hispanic nominated to the Circuit Court of Appeals 
for the District of Columbia, we cannot even get him a vote up or down 
because for the first time in history a true filibuster is being 
conducted against this Hispanic nominee. Now, that is a real double 
standard, not the one the distinguished Senator from Iowa is talking 
about.
  People get emotional sometimes. I may be a little bit myself right 
now. I think I am somewhat justified under the circumstances, and I 
make allowances for that. I hope my colleagues will make allowances for 
me right now.
  I keep hearing that Miguel Estrada has no record. That is a slander. 
And for those who have written it, it is a libel. The Judiciary 
Committee has confirmed numerous Clinton court nominees who, like 
Miguel Estrada, had no prior judicial experience. What a ridiculous 
argument, that a person

[[Page S2408]]

should not be on the bench because he has no prior judicial experience. 
Where would all those Clinton judges be? They would not be on the bench 
today if we had that as a rule, and neither would many of the top 
Supreme Court Justices in history, including Thurgood Marshall, whom 
nobody in this body would be against today--bless his departed soul. 
He, of course, had no prior judicial experience when he was nominated 
to the federal appellate bench.
  A number of Clinton nominees worked in the Justice Department or 
other branches of the Federal Government, like Miguel Estrada, but 
Senate Democrats made no demands for their internal memoranda or 
privileged work product and, I might add, neither did we Republicans. 
We did not make those demands. We knew that would be a red herring to 
slow down the nominee.
  We know this is a fishing expedition, and nobody in their right mind 
who understands government, who understands the separation of powers, 
who understands privilege, and who understands the right of the 
Solicitor General's Office to keep its own memoranda of recommendations 
on appeals, on certiorari, and on amicus briefs confidential would make 
this demand. It is one of the most ridiculous assertions I have seen, 
and yet that is the basis on which they are hanging this filibuster. 
There is nobody in any administration who would allow the Senate to 
muddle around and make public and politicize legal memoranda and 
recommendations, in those three areas at least--in other areas as well, 
but especially those three areas--appeal, certiorari, and amicus curiae 
recommendations.
  Democrats are saying Miguel Estrada has no judicial experience, and 
therefore he should not be on the bench. What about Merrick Garland? I 
personally pushed Merrick Garland through. There were those who did not 
want to push him through, but before the end they all realized he was 
an exceptional man, a very good person, no more than Miguel Estrada is, 
but pretty darn exceptional, and he still is. He is a good judge. He 
was confirmed as a judge for the DC Circuit in 1997. He had never been 
a judge before. He had held several positions in the Department of 
Justice. Like Mr. Estrada, he was a partner in a prestigious DC law 
firm. But did anyone seek confidential memoranda from his time at the 
Justice Department? Absolutely not. We would not have stooped that low. 
To use it as a red herring so they could justify a filibuster, that is 
even stooping lower.
  William Bryson is another one who was confirmed as a judge on the 
Federal Circuit in 1994. He had never been a judge. He held several 
positions at the Department of Justice and was an associate at a 
prestigious firm in town. Senate Democrats never asked for the 
confidential memoranda he wrote during his time at Justice. The list 
goes on.
  Blane Michael was confirmed as a judge on the Fourth Circuit in 1993, 
his first judgeship, never having been a judge before. Why is it that 
he can be a judge and we should work to get him on the bench but Miguel 
Estrada should not be a judge because he had no prior judicial 
experience? Well, neither did Blane Michael, but he is sitting on the 
Fourth Circuit Court of Appeals, his first judgeship. He had been a 
Federal district court clerk and served as a Federal prosecutor in New 
York and West Virginia before becoming a partner in a law firm. He had 
virtually no published writings, just like Miguel Estrada. Again, 
however, no one tried to gain his confidential privileged memoranda 
from his time as a Federal prosecutor before confirming him, and we 
would not.
  Arthur Gajarsa was confirmed to the Federal Circuit in 1997. He was a 
clerk to a Federal district judge, then worked as an in-house counsel 
at an insurance company and later as a special counsel at the 
Department of Interior before joining a law firm. Did Democrats demand 
his internal memoranda? After all, he, like everyone else mentioned, 
had never been a judge. But, no, he was confirmed like the rest without 
anyone reviewing his confidential work product.

  Then there is Eric Clay, confirmed to the Sixth Circuit in 1997. He 
never had been a judge before. He was a law clerk to a Federal district 
court judge, and worked in a law firm. What did we know about him that 
we do not know about Mr. Estrada? Absolutely nothing. We did not seek 
his confidential memoranda. We confirmed him anyway. We did what was 
right.
  Another was John Kelly, whom we confirmed for the Eighth Circuit in 
1998, yet another Clinton nominee to the circuit court who had never 
been a judge. He had worked in the Office of General Counsel for the 
Secretary of the Air Force before going into private practice. But 
Republicans never sought his internal memoranda, and he had very few 
published writings.
  What about Sid Thomas? He was confirmed to the Ninth Circuit Court of 
Appeals in 1996 and had never been a judge. In fact, he had not even 
had a clerkship. He also had very few published writings. Democrats, 
however, did not cry out about his lack of a record. The entire 
transcript of his hearings takes up less than 2 pages in the Record. 
Why is it that he was treated differently than Miguel Estrada? I 
suspect it is because we gave President Clinton's nominees the benefit 
of the doubt in almost all cases. But this crew on the other side is 
not giving this President the same fair treatment that we gave to 
President Clinton.
  I could go on and on but I think I made the case. Democrats opposing 
Miguel Estrada consistently failed to seek internal memoranda for 
Clinton nominees who had no prior judicial experience and little in the 
way of publications. The Democrats' claim that they have to do so now 
for Miguel Estrada simply does not hold water.
  Now, naturally, I guess they wouldn't want to get internal memoranda 
to use against their own president's nominees. They wouldn't want to go 
on a fishing expedition that might hurt their own nominees, but neither 
did we. Now why are we using this red herring to justify a filibuster 
against one of the finest nominees I have seen in 27 years on the 
Senate Judiciary Committee--Miguel Estrada?
  Let me address, once again, the Democrat demand to hold Mr. Estrada's 
nomination hostage for confidential internal memoranda. The Department 
of Justice historically has not disclosed confidential, deliberative 
documents from career lawyers in the Solicitor General's Office in 
connection with a judicial nomination. The Senate historically has not 
even asked the Department to do so.
  My Democratic colleagues are creating a new double standard that 
applies only to the nomination of Miguel Estrada. A double standard, 
why is that? I ask the people out there who are watching C-SPAN, why is 
it that all of a sudden they are asking for all these things from the 
only Hispanic nominee in the history of the Circuit Court of Appeals 
for the District of Columbia? I think everyone out there must know by 
now. I don't think I even have to spell it out, but maybe I should 
spell it out a little bit.
  Every living former Solicitor General has denounced the Democrats' 
demands. Every one of them, four of whom are eminent Democrat former 
Solicitors General. I have said this before but I think it is worth 
repeating. That letter was signed by Democrats Seth Waxman, Clinton's 
Solicitor General; Walter Dellinger, one of Clinton's top people in the 
White House; Drew Days, and Archibald Cox; and by Republicans Ken 
Starr, Charles Fried, and Robert Bork.
  All seven have said, in essence, that this is ridiculous, that the 
Justice Department should not turn over confidential recommendations on 
appeals, certiorari petitions, and amicus curiae petitions.
  The Solicitors General explained that the frank exchange of ideas on 
which their office depends ``simply cannot take place if attorneys have 
reason to fear their private recommendations are not private at all but 
vulnerable to public disclosure.''
  The letter concludes that:

       [A]ny attempt to intrude into the Office's highly 
     privileged deliberations would come at a cost of the 
     Solicitor General's ability to defend vigorously the United 
     States' litigation interests--a cost that also would be borne 
     by Congress itself.
  Now, longstanding historical practice confirms that deliberative 
memoranda are off limits during confirmation hearings. Since the Carter 
administration, the Senate has confirmed former Justice Department 
employees--even those with no prior judicial experience, as I have 
already explained--without demanding to see their confidential

[[Page S2409]]

memoranda. It should not adopt a new double standard for Mr. Estrada's 
nomination.
  Since 1997, the Senate has approved 67 appellate nominees who 
previously worked at the Justice Department, including 38 with no prior 
judicial experience. The Department did not disclose deliberative 
memoranda for any of those nominations. In fact, the Senate did not 
even request such documents. Seven of the 67 were in the same position 
as Mr. Estrada. They had worked for the Solicitor General and had not 
been judges previously. These seven nominees were nominated by 
Presidents of both parties and were confirmed by Senates controlled by 
both parties. Again, the Justice Department did not disclose 
deliberative memoranda in any of these nominations. The Senate did not 
even request such a disclosure for good reason, because we knew it was 
improper.
  None of the so-called disclosures cited by the Democrats are 
precedent for the sweeping demands they are making regarding Mr. 
Estrada. In fact, only two of their purported ``precedents'' have even 
involved lawyers who worked in the Solicitor General's Office. And the 
Democrats' examples did not involve turning over what the then-chairman 
of the committee, Senator Leahy of Vermont, demanded--amicus, 
certiorari, and appeal recommendations.
  Let me address some of the specific examples my Democratic colleagues 
have represented as pressing for their demand. One is Frank 
Easterbrook, who is a judge on the Seventh Circuit. The Democrats' mere 
possession of a single memoranda, a 2-page amicus recommendation that 
Mr. Easterbrook wrote as an Assistant to the Solicitor General, does 
not suggest that the Justice Department waived any privileges or 
authorized it to be disclosed. The official record of the Easterbrook 
confirmation hearing contains no references to this document.
  After comprehensively reviewing its files, the Justice Department 
concluded that it never authorized the release of the documents. It was 
probably leaked by some Democrat in the Justice Department. That makes 
it wrong. Yet it is being used as an example on the floor.
  Last fall I sent a letter to Senator Schumer, then to Senator Leahy, 
specifically asking for information about how the Democrats obtained 
this memorandum. To this day I have received absolutely no response to 
my question. I think there is good reason for that--because the 
document should never have been leaked to begin with.
  This single document provides no precedent for the Democrats' 
sweeping request for every document Mr. Estrada ever prepared, which is 
what they have asked.
  Mr. President, I ask unanimous consent that the letters I wrote to 
Senator Schumer of New York and Senator Leahy of Vermont, inquiring 
about the source of the Easterbrook memos, be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                  Washington, DC, October 1, 2002.
     Hon. Charles E. Schumer,
     U.S. Senate, Committee on the Judiciary,
     Washington, DC.
       Dear Senator Schumer: Thank you for chairing last 
     Thursday's hearing on the nomination of Miguel Estrada to the 
     United States Court of Appeals for the District of Columbia 
     Circuit. I write to seek your clarification on a matter which 
     you raised at the hearing.
       You reiterated your belief that the Department of Justice 
     should turn over certain appeal, certiorari and amicus 
     recommendations that Mr. Estrada authored when he served as 
     an Assistant to the Solicitor General. As precedent for this 
     request, you noted that during the nomination of Judge Frank 
     Easterbrook to the Seventh Circuit Court of Appeals, similar 
     memos were turned over to the Committee. You produced those 
     documents and placed them into the hearing record. When 
     Republican staff requested copies of the documents, only one 
     of the three documents we received appeared to pertain to 
     Judge Easterbrook. That document consists of a two-page 
     memorandum referencing another memorandum prepared by someone 
     else.
       At the hearing, you did not explain whether the Committee 
     had ever formally requested this document, or the other two 
     documents, from the Department of Justice, or whether the 
     Department of Justice consented to their disclosure. The 
     written record of Judge Easterbrook's hearing contains no 
     such documents, or even a mention of them. So that the record 
     of Mr. Estrada's hearing is as complete as possible, please 
     advise whether you have any information that the Committee 
     requested these documents from the Department of Justice and 
     whether the Department consented to their disclosure to the 
     Committee. If the documents were neither requested of nor 
     produced by the Department of Justice, please indicate the 
     manner in which the Committee came to possess them.
       Thank you for your prompt attention to this matter. I look 
     forward to your response.
           Sincerely,
                                                   Orrin G. Hatch,
     Ranking Republican Member.
                                  ____

                                             United States Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, October 10, 2002.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy: On October 1, I sent a letter to 
     Senator Schumer seeking clarification of questions about 
     certain documents that he submitted for the record at Miguel 
     Estrada's confirmation hearing. These documents consisted of 
     memoranda that Senator Schumer stated were provided to the 
     Committee by the Department of Justice during the nomination 
     of Judge Frank Easterbrook to the Seventh Circuit. Senator 
     Schumer cited these documents as precedent for your request 
     that the Department release to the Committee appeal, 
     certiorari and amicus recommendations that Mr. Estrada 
     authored when he served as an Assistant to the Solicitor 
     General.
       When Republican staff requested copies of these documents, 
     however, only one of the three documents provided appeared to 
     pertain to Judge Easterbrook. That document consists of a 
     two-page memorandum referencing another memorandum prepared 
     by someone else. The written record of Judge Easterbrook's 
     hearing contains none of the three documents, or even a 
     reference to them.
       Enclosed is a copy of my letter to Senator Schumer, which 
     seeks clarification of whether the Committee requested these 
     documents from the Department of Justice in connection with 
     Judge Easterbrook's confirmation and whether the Department 
     consented to their disclosure to the Committee. It also asks 
     for an explanation of the manner in which the Committee came 
     to possess the documents in the event that they were neither 
     requested of nor produced by the Department of Justice.
       Yesterday, Senator Schumer's office advised my staff that 
     the full Committee provided him with the documents at issue 
     and, for this reason, he is deferring to you for a response 
     to my letter. I look forward to hearing from you, 
     particularly in light of the October 8 letter of Assistant 
     Attorney General Dan Bryant, which stated the Department's 
     conclusion that it did not authorize the release of the 
     Easterbrook memorandum.
           Sincerely,
                                                   Orrin G. Hatch,
                                        Ranking Republican Member.

  Mr. HATCH. Let's take a closer look at another one of the Democrats' 
alleged examples. William Rehnquist, the current Chief Justice, during 
his hearings to be Associate Justice, refused to reveal the private 
advice he had given to other Justice Department officials while he was 
Assistant Attorney General for Legal Counsel.
  He stated:

       [I]nsofar as I may have been asked for advice in the 
     process of making administration policy decisions upon which 
     the administration has not taken a public position, there, I 
     think, the lawyer-client privilege very definitely obtains.

  By the way, he was confirmed as a Justice on the Supreme Court.
  Furthermore, on November 5, 1971, the Attorney General specifically 
refused to waive the attorney-client privilege after a Senator asked 
him to do so, stating:

       I can well appreciate your personal, intense interest in 
     probing into all aspects of Mr. Rehnquist's work while at the 
     Department of Justice. I am sure you appreciate, however, 
     that it is essential to the fulfillment of my duties and 
     obligations that I have the candid advice and opinions of all 
     members of the Department. Further, I am sure you realize 
     that if I should consent to your request or other requests to 
     inquire into the basis and background of advice and opinions 
     that I receive from the members of my staff, it would be 
     difficult to obtain the necessary free exchange of ideas and 
     thoughts so essential to the proper and judicious discharge 
     of my duties.
  The Rehnquist example is irrelevant for the additional reason that 
none of the information sought related to amicus, certiorari, and 
appeal recommendations. Indeed, Chief Justice Rehnquist never served in 
the Solicitor General's Office.
  Let's look at a third example that my Democratic friends claim 
justifies the release of confidential Solicitor General Office memos--
Benjamin Civiletti. During his 1979 confirmation hearings to be 
Attorney General--and I

[[Page S2410]]

was there in the Senate Judiciary Committee at the time--the Senate did 
not request materials that he had prepared previously as a Department 
of Justice official. Rather, it simply sought assurances that Civiletti 
would cooperate with the Senate's oversight of the Justice Department 
in the future. Mr. Civiletti never specified which documents he would 
be willing to turn over or which documents would be privileged.
  During his 1978 hearings to be Deputy Attorney General, the Senate 
obtained documents related to allegations that Mr. Civiletti had 
interfered with an investigation of an alleged kickback scheme 
involving Members of Congress. The documents related to specific 
charges of misconduct. Unlike during Mr. Civiletti's confirmation, 
there have been no allegations that Mr. Estrada engaged in any improper 
behavior or otherwise failed to discharge his duties.
  As I recall it, Mr. Civiletti was not found to be wanting in that 
area either. None of the Civiletti materials were amicus, certiorari, 
or appeal recommendations. Indeed, Mr. Civiletti never served in the 
Solicitor General's Office.
  Now let's turn to Brad Reynolds. The Senate sought and received 
materials in the course of pursuing specific allegations that Mr. 
Reynolds, while Assistant Attorney General for Civil Rights, failed to 
enforce the Voting Rights Act and the Civil Rights Act. As with Mr. 
Civiletti, the Department's disclosure was limited to specific cases of 
alleged misconduct. There have been no allegations that Mr. Estrada 
engaged in any improper behavior or failed to discharge his duties 
while working at the Solicitor General's Office. Significantly, 
although Mr. Reynolds had previously served as assistant to the 
Solicitor General, and it was a very-hard fought confirmation, the 
Senate never suggested that his appeal, certiorari, or amicus 
recommendations should be divulged--never. Nobody would have stooped to 
that level at the time.
  Another alleged example that our friends have brought up is Jeffrey 
Holmstead. In 2001, the Senate requested 41 files that Mr. Holmstead 
created during his service as Associate Counsel to the first President 
Bush. The White House declined. After Mr. Holmstead's hearing, the 
Senate, based on its particularized concerns about one specific 
subject, requested documents related only to that matter. Because of 
the specificity of the Senate's concerns, the White House accommodated 
the committee by permitting review of documents related to that one 
subject matter while expressly preserving all privileges. Mr. Holmstead 
is no precedent for the current set of sweeping requests for every 
appeal, certiorari, or amicus recommendation that Estrada prepared 
during his years in the Solicitor General's Office.
  The criticism that Miguel Estrada is refusing to provide the Senate 
with insight into his personal views does create a double standard. My 
Democratic colleagues did not require nominees of President Clinton to 
answer questions of this sort. In fact, many Clinton circuit court 
nominees refused to answer such questions. President Clinton's appeals 
court nominees routinely testified as to their judicial approach 
without discussing specific issues or cases that could come before them 
as a judge. A few examples illustrate the point.
  Each of the nominees I am talking about was confirmed to one of the 
circuit courts of appeals.
  First we have Merrick Garland. 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. Olsen 
     upheld as constitutional, and, of course, I would follow that 
     ruling.

  Another example is Judith Rogers. In the hearings on Judge Rogers' 
nomination to the DC Circuit, she was asked by Senator Cohen about the 
debate over the 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.

  My gosh, where is that any different from Miguel Estrada's answers? 
They are the same. Why the double standard? Why are we now demanding of 
Miguel Estrada something we didn't demand of the Clinton nominees?
  She then was asked how she would rule in the absence of precedent and 
responded this way:

       When I was getting 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 the 
     interpretations of other State courts, and it may be 
     necessary, as well, to look to 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.

  Where is that different from Miguel Estrada's answers? Miguel Estrada 
answered basically the same way.
  Judge Rogers also was asked her view of mandatory minimums and 
stated:

       I am aware, Senator, of some of the debate on the pros and 
     cons, and certainly before I was a judge I was engaged in 
     comment on them. But as a judge, I have been dealing with 
     them strictly from the point of view of legal challenges to 
     them. I have sat on a case where a mandatory minimum sentence 
     was challenged, and we upheld it.

  Finally, she 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.

  Why is there a different standard for Miguel Estrada? Those are the 
same answers, basically, that Miguel Estrada gave to these similar 
types of questions.
  Let's take another example: Kim Wardlaw. In the hearing on Judge 
Wardlaw's nomination to the Ninth Circuit, she 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.

  Why is there a double standard with regard to this Hispanic nominee 
when it was not utilized against these other nominees? These answers 
were perfectly all right and acceptable for these other nominees.
  Now let's turn to Marsha Berzon and Robert Katzmann. In a hearing on 
their nominations to the Ninth and Second Circuits, Senator Smith asked 
each whether legislation to prohibit partial-birth abortion was 
unconstitutional. Judge Katzmann responded as follows:

       I would say that that is an issue that--Senator--that is a 
     very important issue, and that as a judge, I would really 
     have to evaluate that issue in the context of a law that is 
     actually passed, and then in terms of a case or controversy. 
     In terms of adjudication, there are restrictions on judges 
     rendering advisory opinions on particular pieces of 
     legislation in the advance of passage. And then even after 
     passage, I think what a judge has to do is to evaluate the 
     case in the context of a real case or controversy.

  Judge Berzon responded with the following:

       And I essentially agree with that answer. . . . .It would 
     obviously be inappropriate to say anything further on that 
     precisely because the issue might come before a court on 
     which Mr. Katzmann or I could be sitting.

  Why the double standard? Why aren't the answers Mr. Miguel Estrada 
gave given the same credibility as the answers of these two Clinton 
judges? Why is there a double standard? Why is he being treated 
differently?
  I have heard countless colleagues get up over here and complain and 
moan and groan and try to come up with excuses for their vote against 
Miguel Estrada and for their filibustering for the first time in 
history a Hispanic judge, the first ever nominated to the Circuit Court 
of Appeals for the District of Columbia.
  I have heard a lot of complaining. But there has not been one 
statement

[[Page S2411]]

of substance. Why is he being treated differently? Why should a 
Hispanic judicial nominee be treated differently than all these other 
non-Hispanic judges? It seems to me that he ought to be treated 
similarly, afforded respect. This is a man who has fulfilled the 
American dream as an example to countless Hispanic young people that 
you can make it in this society. But can a Hispanic who is deemed to be 
not only a Republican but a conservative--can that type of Hispanic 
make it? Well, I sure hope so.
  Now, back to this Berzon and Katzmann matter, I interrupted Senator 
Smith's questioning on partial-birth abortion and noted to Senator 
Smith:

       Well, Senator, if I could interrupt, you have asked some 
     very appropriate and good questions. . . Both of them have 
     said, in my opinion that they are not sure how they would 
     decide the case, and that they wouldn't want to give the 
     opinion that they have now without hearing all the facts and 
     evidence. . . . But they both say that that could likely come 
     before them and that they are going to have to decide it at 
     that time.

  Now, those two Clinton judicial nominees, Judge Berzon and Judge 
Katzmann. Some might say that they provided nonanswers to important 
questions they were asked. But I think they provided legitimate answers 
for the important reason that those questions might come before them 
someday in the event of their confirmation.
  Why should Miguel Estrada be treated any differently by my colleagues 
on their side when I personally counseled one senator on my side that 
the answers of these Clinton judges were sufficient?
  They were appropriate answers that they gave because they shouldn't 
have been talking about cases that could possibly come before them.
  Let me go to Judge Maryanne Trump Barry.
  I am now talking about circuit judges who made it through the system 
without any of this rig marole that has surrounded trying to defeat 
Miguel Estrada.
  In the hearing on Judge Barry's nomination to the Third Circuit, 
Senator Smith asked whether ``an unborn child at any stage of pregnancy 
is a human being.''
  Senator Smith is not an attorney. But anybody on the committee can 
ask any question they want to ask. He asked whether ``an unborn child 
at any stage of pregnancy is a human being.''
  That was a loaded question--no question about it.
  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.

  My goodness. Why is Miguel Estrada being treated differently than 
Judge Barry, or any of these other circuit court of appeals judges who 
were not Hispanic? Why is he being treated differently? Why isn't he 
accorded the same respect? Why is he expected to do more? Why is it 
that it is tough for him? Why is it that my friends on the other side 
of the aisle who claim to be for civil rights and who claim to be for 
equal rights and who claim to be helpers to minorities are treating 
this man this way?
  I hope everybody in America is asking that question--because I don't 
think they can answer it. I have to say that a lot of political things 
are done for political reasons. We are fighting for a Hispanic nominee 
to the circuit court of appeals. And you saw virtually every Republican 
in the Chamber last night fighting for Miguel Estrada.
  Where were the Democrats? Backbiting, raising false issues, raising 
lousy issues, raising I think sometimes immature issues, raising 
irrelevant issues, raising red-herring issues, treating him totally 
different from the way they wanted their caucasian nominees to be 
treated.
  Why is this different? Is it because Mr. Estrada is Hispanic? I don't 
believe that. I don't believe my colleagues are prejudiced against 
Hispanics. But I believe they don't want a Republican Hispanic to serve 
on the Circuit Court of Appeals for the District of Columbia no matter 
who is President, but especially when there is a Republican President. 
I don't think you can conclude anything else.
  After watching these proceedings and after listening to these 
statements, where is one point of substance against that nominee? In 
all of this debate, where is it? It isn't there.
  Why do they think his answers are insufficient when they are 
virtually identical to their non-Hispanic nominees' answers? Is it 
because they are trying to do a better job for the judiciary than the 
Republicans were trying to do? I don't think so--no better than this 
Republican was trying to do, I will tell you that. I was in a position 
to do a lot.
  How about Raymond Fisher? In the hearing on Judge Raymond Fisher's 
nomination to the Ninth Circuit, Senator Sessions asked about Judge 
Fisher's own personal views on whether the death penalty was 
constitutional.
  He had a right to do that. But Judge Fisher also had a right to 
respond. He responded:

       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 to follow the law. I believe that the 
     precedent of the Supreme Court is binding and that is what my 
     function is.

  That is exactly, in essence, the language that Miguel Estrada used. 
Yet he is being criticized. Why? Is it because, as some of the Hispanic 
Caucus in the House said, he is just not Hispanic enough; or that he 
hasn't done enough for the Hispanic community? What more can a young 
man do than to rise to the top of his profession as a Hispanic and as 
an example to every young Hispanic in this country--man and woman?
  They are telling us what a Hispanic has to do to be accepted by the 
Democratic Hispanic Caucus in the House which is so partisan that they 
are undermining the first Hispanic ever nominated to the Circuit Court 
of Appeals for the District of Columbia. I think they should be 
ashamed.
  As for Congressman Menendez asking me for an apology--is he kidding? 
I think the apology is owed to the whole Hispanic community by the 
Democrat Hispanic Caucus over in the House which is undermining every 
Hispanic judicial nominee in the future, if they are saying--if they 
did, if I recall it correctly--because he has no judicial experience he 
should not have the privilege of sitting on the Circuit Court of 
Appeals for the District of Columbia.
  I have previously gone through more than two dozen Clinton nominees 
who had no prior judicial experience and who are now sitting on the 
circuit court of appeals.
  In the joint hearing on Judge Fisher and Judge Barry, Senator Smith 
asked whether the nominees would have believed that there was a 
constitutional right to abortion without the Roe v. Wade precedent.
  This is very similar to questions that Senator Schumer of New York 
asked certain nominees.
  But I interrupted Senator Smith to say--to my own colleague on my own 
side, one of my close friends in the Senate--as chairman, I said: 
``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.''
  Think about that. I basically told my own colleague that he was out 
of line in asking that question, even though he had a right to do it.
  Everybody knows I am pro-life. Nobody doubts that. I have stood up 
for that, and I will always stand up for it because it is the right 
thing to do. It is the moral, upright thing to do as well. To have 39 
million abortions in this society and millions more around the world 
primarily because of Roe v. Wade is something that every American ought 
to be analyzing and asking, What is going on here?
  When we find that so many on the other side of the aisle support even 
partial-birth abortion where a full-of-life baby capable of being born 
outside of the mother's womb and living is basically killed by a doctor 
by ramming scissors into the back of its skull before that baby is 
pulled out so they can suck the brains out--and then say that is not a 
human being?
  I don't see how anybody can stand up with that kind of barbaric 
practice, but it has been done.
  Every time I think of one of these judges and how well we treated 
them

[[Page S2412]]

and how fairly we treated them, and then I see the contrast of how they 
are treating Miguel Estrada, I want the American people to know this. 
This is pure bunk on their side. Where is the substance? Why would they 
be filibustering for the first time in history and establishing this 
dangerous precedent where both sides can require 60 votes for anybody 
to become a judge in this country? And the Presidents will no longer 
control this process. Presidents will have to succumb to the almighty 
Senate if that becomes the rule.
  That is what they are playing with over there. It is unbelievable. 
Presidents will no longer control the nomination process in any 
respect. They will have to do whatever the Senate says.
  I cannot think of a worse thing that could happen to this country, 
because the judiciary is one-third of the separated federal powers in 
this country.
  My gosh, let me go to Richard Tallman, since we are going through to 
show how they treated their nominees a lot differently than they are 
treating this Hispanic nominee.
  I hope every Hispanic in this country is listening because it affects 
every Hispanic in the country, Democrat, Independent, and Republican.
  Richard Tallman. In followup questions to his hearing on his 
nomination to the Ninth Circuit, Senator Smith asked Judge Tallman 
whether ``there are any questions that you feel are off limits for a 
Senator to ask?''
  Judge Tallman's response:

       A Senator may ask any question he or she wishes. Judicial 
     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 that or that 
     in effect would 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.

  Senator Smith also asked Judge Tallman several questions regarding 
how he would have decided certain Supreme Court cases, including Brown 
v. Board of Education and Roe v. Wade. Judge Tallman's answer to the 
Roe question was as follows. His answer to the other question was the 
same:

       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 the supporting legal authorities that were 
     applicable at that time. I would note that the Supreme Court 
     has since modified Roe v. Wade, in Planned Parenthood v. 
     Casey.

  Look, that is an answer no different than the answers for which they 
are criticizing Miguel Estrada. Why is that? Why is it they are not 
being fair to this Hispanic nominee? Why is it they do not care about 
fairness? Why is it they are not being fair to the nominees of the 
President of the United States? Why is it they are not observing the 
Senate practice of not filibustering nominees to the Federal courts of 
this country? Why is it Miguel Estrada's answers, which were basically 
the same as these answers, are considered nonanswers when these were 
considered substantive answers? Why is there a double standard? I do 
not understand this. Why is there a double standard?
  I got off on this because of the comments of the distinguished 
Senator from Iowa that I have set a double standard. I defy him to show 
where I have, because I have been fair. Again, I will repeat, the all-
time confirmation champion was Ronald Reagan, with 382 confirmed 
Federal judges. That was amazing. Everybody thought that was amazing. 
Democrats have been mad ever since, that we could have confirmed 382 
Reagan nominees to the Federal bench, almost all of whom have served 
with distinction in the best interest of this country, working with 
Democrat judges as well.
  Reagan had 6 years of a Republican Senate to help him get those 382 
through. President Clinton got virtually the same number, and he had 6 
years of an opposition party in control of the Senate. He did not have 
6 years of his own party helping him. He actually had 6 years of an 
opposition party. I was chairman, and he got virtually the same 
number--astounding. He was treated fairly.
  And for anybody to walk on this floor and criticize me because we 
were unable to get through some of the judges at the end of the session 
is disingenuous. There were much fewer left over at the end of 
President Clinton's tenure than there were at the end of Bush 1. We did 
not complain that there were 54 judges left over at the end of Bush 1 
and, in essence, only 42 left over at the end of Clinton.

  But I do bitterly resent anybody coming in here and saying I had a 
double standard, when I worked so hard, and had to overrule a number of 
my colleagues--not a big number, but a small number of colleagues--who 
wanted, yes, some of them wanted to filibuster, and I helped to 
overrule that. And they all realize today why they should have never 
even contemplated that. And this has helped to bring it into even 
greater focus.
  I am calling on my colleagues on the other side to bring it into 
focus and realize this is dangerous stuff they are playing with here. 
It is dangerous. It could cost this country and all future Presidents 
control of the nominations process.
  Now, they do not control it completely. We have an obligation, too. 
Our obligation is to advise and consent. Now, advise and consent does 
not mean advise and filibuster. It does not mean advise and obstruct. 
It does not mean advise and help some people but treat others with a 
different standard, like Miguel Estrada is being treated here. It does 
not mean that. And advise and consent does not mean advise and 
filibuster, to go back to that point.
  If they succeed in this, they will have established, I believe, an 
unconstitutional precedent I am not sure we can get rid of afterwards. 
And I believe you are talking about upwards of 60 votes needed for 
every future judge of any quality and, I have to say, taking away a 
great deal of the President's power to nominate these judges, to select 
these judges, because no President would be able to have the right to 
select judges, not without the absolute blessing of the Senators. It is 
almost that bad now anyway.
  Well, Mr. President, I think I have more than made a case that there 
is a double standard here. I think I have more than made the case that 
a lot of these Democrat judges have been treated differently from the 
way Miguel Estrada is being treated, and that is even not considering 
the filibuster.
  When you consider the filibuster, that is like throwing nuclear waste 
all over the judiciary process, because that really is going to cause 
problems around here like we have never even dreamed of before.
  It is inadvisable, it is wrong, it is constitutionally unsound. And 
it is a travesty. And it is--to use a very important word--unfair, 
unfair to Miguel Estrada, unfair to the President, who has nominated 
him, unfair to this process, unfair to Republicans on this side who 
treated Clinton judges fairly and well. It is unfair to our procedures 
around here.
  With that, I yield the floor.
  Mr. LEAHY. Mr. President, last night, White House Counsel Alberto 
Gonzales responded to the letter that Senator Daschle and I sent to the 
President this week, renewing the request that the Judiciary Committee 
made for the Justice Department work records of Mr. Estrada. This is a 
request that the Judiciary Committee first made nearly a year ago, and 
it is a request that has been made repeatedly since then.
  I regret that, at this point, the White House remains recalcitrant 
and continues to stand in the way of a solution to this impasse.
  For an administration that engages in lawyer-bashing at every turn, 
there is some irony in the fact that the White House has put a bevy of 
lawyers to work to compose a lawyer's brief rather than a 
straightforward response to Senator Daschle's good-faith effort to 
resolve this standoff.
  But the letter from Mr. Gonzales does provide some new information 
that is quite interesting in one respect, at least. Buried within the 
15-page letter is a new admission that the Justice Department and 
Senate Republicans had previously refused to make. The administration 
has finally acknowledged that there is precedent for providing the very 
types of documents the Judiciary Committee requested almost a year ago 
in connection with Mr. Estrada's nomination.
  Interestingly, the administration in this letter makes no claim of 
legal privilege or executive privilege to withhold these documents from 
the

[[Page S2413]]

Senate. Instead, the White House Counsel's Office insists on 
substituting its judgment for the Senate's and tells the Senate that we 
already have sufficient information about this nominee.
  We on this side of the aisle are making the simple request that 
judicial nominees for these lifetime positions fully and forthrightly 
answer legitimate questions so the Senate can make informed decisions. 
Even more important than this or any other nomination itself is the 
straightforward principle that no nominee should be rewarded with a 
lifetime appointment to the second highest court in the land for 
stonewalling the Senate and the American people. Getting a lifetime 
post on the Federal courts is a privilege, not a right.
  I have voted for many, many judges whose judicial philosophy I 
disagreed with, but at least I knew what their judicial philosophies 
were. In fact the Democratic Senate confirmed 100 of President Bush's 
judicial nominees by the end of last year, and I voted for nearly all 
of them. The same can be said for each and every Senator on this side 
of the aisle.
  I hope that after getting this letter off its chest, the 
administration will now begin to work with us. If they did we could end 
the stalemate they have created.
  Those of us who want to resolve this in a way that upholds the 
principle of the Senate being able to make an informed judgment on this 
and on any judicial nominees welcomed the constructive discussion on 
the floor yesterday that Senator Bennett initiated, about the potential 
for reaching agreement on making the Justice Department documents 
available to the Senate. I hope this is a signal that there is at least 
a chance that the administration will yet comply with our request, so 
that this standoff can be resolved.
  With the White House, the House and the Senate now all controlled by 
one party, we are already seeing an erosion of accountability. 
Democratic members of the Senate are standing up for the Senate's 
constitutional role in the installation of judges on the Federal 
courts.
  Beyond the difficulties we have encountered in obtaining 
straightforward answers from Mr. Estrada and in obtaining his work 
documents, in recent weeks the overall process of evaluating judicial 
candidates has begun to resemble a conveyor belt for rubber stamping 
nominees. The conveyor belt has been going faster and faster--so fast 
that the nominations have begun piling up at the end of the belt. We 
should be trying to minimize and not maximize those kinds of ``I Love 
Lucy'' moments. We have had an unprecedented hearing in which not one 
but three controversial circuit court nominees were considered, en 
bloc.
  In the 107th Congress, the Democratic Senate confirmed 100 of 
President Bush's nominees, and we did so in an orderly process and with 
a steady pace of hearings every single month that greatly improved on 
the slow and halting pace set by the previous Republican Senate in the 
handling of President Clinton's judicial nominees. The choice does not 
have to be between the slow pace of the earlier Republican Senate in 
the handling of President Clinton's nominees and the frenetic pace of 
the new Republican Senate in the handling of President Bush's nominees. 
We can and should find a responsible pace somewhere between those 
extremes.
  The court to which Mr. Estrada has been nominated, the Circuit Court 
of Appeals for the District of Columbia, has been called the second 
most powerful court in the land, and for good reason. This court, in 
particular, affects every single American in many ways, in its 
decisions on everything from clean air and water issues to the voting 
rights of Latinos and other minorities to the health and employment 
rights of working men and women.
  No circuit court in the Nation is more important to Hispanic 
Americans than the DC Circuit. I commend the Congressional Hispanic 
Caucus for the time, the effort its members have invested and the 
courage its members have shown in closely examining the record, in 
interviewing Mr. Estrada, and in offering its judgment about the 
importance of this nomination for the interests of Hispanic Americans 
everywhere.
  What kind of cases does this court handle, and what is at stake in 
the decisions it renders? There is a big hint in a front page story 
that ran a few days ago in Roll Call, in which leaders on the other 
side of the aisle are reminding lobbyists for big business groups that 
they have a major stake in who gets on this crucial circuit court.
  This process starts with the President. With a simple directive to 
the Justice Department, he can help the Senate resolve this. I was 
encouraged early in his term when the President said he wanted to be a 
uniter and not a divider. Yet he has sent several judicial nominations, 
selected foremost for their ideology, and not for their fairness, that 
have divided the American people and divided the Senate. And in terms 
of fairness, it also needs to be pointed out that the Republican Senate 
blocked President Clinton's nominees to this very same court.
  What are we asking for? It is a simple request: We ask only for 
sufficient answers and information so that the Senate can make informed 
decisions about candidates for lifetime appointments to the Federal 
judiciary.
  The PRESIDING OFFICER. The Senator from Alaska.

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