[Congressional Record Volume 149, Number 30 (Tuesday, February 25, 2003)]
[Senate]
[Pages S2646-S2674]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                         Medicare and Medicaid

  Mr. President, a front page article in yesterday's New York Times 
should be essential reading for every Member of the Senate and for 
every American. It describes the Bush administration's stealth attack 
on Medicare and Medicaid--an attack driven by an extreme right-wing 
agenda and by powerful special interests.

  The administration is proposing unacceptable changes in the 
obligations of government to its citizens. Under the Bush plan, the 
Nation's long-standing commitment to guarantee affordable health care 
to senior citizens, the poor, and the disabled would be broken. 
Medicare is a promise to the Nation's senior citizens, but for the 
administration, it is just another profit center for HMOs and other 
private insurance plans. Medicaid is a health care safety net for poor 
children and their parents, the disabled, and low income elderly, but 
the administration would shred that safety net to pay for tax cuts for 
the rich and to push its right-wing agenda.
  The promise of Medicare could not be clearer. It says, play by the 
rules, contribute to the system during your working years, and you will 
be guaranteed affordable health care during your retirement years. For 
almost half a century, Medicare has delivered on that promise. All of 
us want to improve Medicare, but the administration's version of 
improving Medicare is to force senior citizens to give up their doctors 
and join HMOs. That is unacceptable to senior citizens and it should be 
unacceptable to the Congress. There is nothing wrong with

[[Page S2655]]

Medicare that the administration's policy can fix.
  The administration has a variety of rationalizations for its assault 
on Medicare--and each of these rationalizations is wrong. Republicans 
have never liked Medicare. They opposed it from the beginning and have 
never stopped trying to undermine it. The Newt Gingrich Congress tried 
to destroy it a decade ago, but the American people rejected that 
strategy, and President Clinton vetoed it. Now that Republicans control 
both Houses of Congress and the Presidency, they are at it again. Their 
plan would say that no senior can get the Medicare prescription drug 
coverage they need without joining an HMO.
  It is no accident that the administration's scheme hinges on forcing 
senior citizens into HMOs or other private insurance plans. Whether the 
issue is Medicare or the Patients' Bill of Rights, the administration 
stands with powerful special interests that seek higher profits and 
against patients who need medical care. If all senior citizens are 
forced to join an HMO, the revenues of that industry would increase 
more than $2.5 trillion over the next decade. Those are high stakes. 
There will be a big reward for HMOs and the insurance industry if the 
administration succeeds. But there is an even greater loss for senior 
citizens who have worked all their lives to earn their Medicare, and 
that loss should be unacceptable to all of us. Senior citizens should 
not be forced to give up the doctors they trust to get the prescription 
drugs they need.
  The Bush administration cloaks this plan in the language of 
reasonableness. They say that they just want to reduce Medicare's cost, 
so that it will be affordable when the baby boom generation retires. 
But HMOs are a false prescription for saving money under Medicare.
  Administrative costs under Medicare are just 2 percent. Ninety-eight 
cents of every Medicare dollar is spent on medical care for senior 
citizens. By contrast, profit and administrative costs for Medicare 
HMOs average eighteen percent, leaving far less for the medical care 
the plan is supposed to provide.
  This chart is a pretty graphic reflection of this point. ``Private 
insurance, a recipe for reduced benefits or higher premiums.''
  These are the administrative costs and profits: under Medicare, 2 
percent; under private insurance, 18 percent.
  I ask the administration, how is spending more money on 
administration and profit supposed to reduce Medicare costs?
  In fact, Medicare has a better record of holding down costs than HMOs 
and private insurance. Since 1970, the cost per person of private 
insurance has increased 40 percent more than Medicare. Last year, the 
per person cost of Medicare went up 5.2 percent, but private insurance 
premiums went up more than twice as fast 12.7 percent. Across the 
country, families are seeing their health premiums soar and their 
health coverage cut back. If the administration really thinks this is 
the right prescription for Medicare, they should talk to working 
families in any community in America.
  This chart indicates that private insurance will not reduce Medicare 
costs or improve its financial stability. It illustrates the increases 
in Medicare costs versus private insurance premiums: 5.2 percent under 
Medicare; 12.7 percent under private insurance.
  The administration claims that drastic changes are needed because 
Medicare will become unaffordable as the ratio of active workers 
supporting the program to the number of retirees declines. But analyses 
from the Urban Institute, using the projections of the Medicare 
Trustees, show that Medicare will actually be less burdensome for the 
next generation of workers to support than it is for the current 
generation. Economic growth and productivity gains will raise incomes 
of workers by enough to more than offset both the change in the ratio 
of workers and the yearly increase in medical costs. In fact, the real 
product per worker--after Medicare is paid for--will increase from 
$66,000 to $101,000. The issue is priorities. For this administration, 
the priority is making the powerful and wealthy still more powerful and 
wealthy--not assuring affordable health care for senior citizens.
  This administration also claims that the changes it is proposing are 
intended to help senior citizens by giving them more choices. The real 
choice that senior citizens want is the choice of the doctor and 
hospital that will give them the care they need--not the choice of an 
HMO that denies such care.
  This chart, ``Senior citizens choose Medicare, not private insurance, 
shows the proportion of senior citizens choosing Medicare versus 
Medicare HMOs'': In 1999, 83 percent chose Medicare; 17 percent, HMOs; 
and in 2003, 89 percent, Medicare, while 11 percent, HMOs.
  Seniors have a choice today and they choose Medicare. Even so, this 
administration's proposal will say to seniors: if you want to receive 
the prescription drug program, you will have to get it under an HMO.
  Senior citizens who want it already have a choice of HMOs and private 
insurance plans that offer alternatives to Medicare. But by and large, 
senior citizens have rejected that choice. In 1999, 17 percent of 
senior citizens chose an HMO. By 2003, only eleven percent chose one.
  Congress enacted Medicare in 1965, because private insurance could 
not and would not meet the needs of senior citizens. In 2003, private 
insurance still won't meet their needs. Vast areas of the country have 
no private insurance alternative to Medicare. Two hundred thousand 
seniors will be dropped by HMOs this year, because the HMOs are not 
making enough profit. Last year, HMOs dropped half a million seniors. 
In 2001, they dropped 900,000 seniors. Yet that is the system the 
administration wants to force on senior citizens.
  This chart shows the number of senior citizens that have effectively 
been dumped from Medicare HMO coverage. We find that in 2001, 934,000 
seniors were dropped; in 2002, 536,000 dumped; in 2003, 215,000; in the 
year 2000, 327,000; and 407,000 in 1999. HMOs have been dropping 
seniors who wanted voluntarily to be in the HMO system.
  Under the Bush plan, states will have an incentive to cut back 
coverage for those in need and spend the money that should go for 
health care on other projects.
  The Child Health Insurance Program, CHIP, which now gives more than 
five million children the chance for a healthy start in life will be 
abolished.
  Millions of senior citizens will no longer be able to count on 
federal nursing home quality standards to protect them if they are 
unable to remain in their own homes.
  Spouses of senior citizens who need nursing home care will no longer 
be guaranteed even a minimum amount of income and savings on which to 
live.
  We know that state budgets are in trouble because of the faltering 
economy. The demands on Medicaid are greater than ever, as more 
families lose their job and their health care. Instead of the money 
that states need to maintain the Medicaid safety net, the Bush 
administration gives states a license to shred it. Every day, this 
administration makes it clearer that tax cuts to make the rich richer 
is a higher priority than health care for senior citizens, and low 
income children, and the disabled. It's time for Congress and 
administration to stand up for the priorities of the American people--
not the priorities of the wealthy and powerful.
  Medicare and Medicaid are two of the most successful social programs 
ever enacted. It makes no sense for the administration to try to impose 
its harsh right wing agenda on programs that have done so much to bring 
good health care and genuine health security to vast numbers of senior 
citizens, low-income families and the disabled. The American people 
will reject this misguided program and so should the Congress.
  The administration is not in favor of real choices for the elderly. 
They don't favor letting senior citizens choose their own doctor. They 
don't favor a fair and unbiased choice between and HMO and Medicare. 
Senior citizens already have that. What the Bush administration favors 
is a Hobson's choice, where senior citizens are forced to choose 
between the doctor they trust and the prescription drugs they need. And 
that is an unacceptable choice. The administration's plan for Medicare 
will victimize 40 million senior citizens and the disabled on Medicare. 
I want to just draw the attention of the Members to this chart I have 
in the Chamber.

[[Page S2656]]

These are the Medicare HMOs. There are huge gaps for senior citizens, 
areas of the country with no Medicare+Choice plans. There are vast 
areas of the country, outlined in red, where they do not even have this 
program. And still, the administration wants to insist that seniors 
subscribe to it.

  Under the Bush plan, long-term Federal spending for health care for 
the needy will be reduced under their new proposed block grant program 
for Medicaid. That idea was proposed under then-Congressman Gingrich 
almost a decade ago. Under the new program, long-term Federal funding 
for health care for the needy will be reduced so that more money will 
be available for tax cuts for the wealthy. Under the Bush plan, States 
will have an incentive to cut back coverage for those in need and spend 
the money that should go for health care on other projects.
  The Child Health Insurance Program, the CHIP program, which now gives 
more than 5 million children the chance for a healthy start in life, 
will effectively be abolished.
  Millions of senior citizens will no longer be able to count on the 
Federal nursing home quality standards to protect them if they are 
unable to remain in their own homes. I was here not many years ago when 
we took days to debate the kinds of protections that we were going to 
give to our seniors who were in nursing homes. The examples out there 
of the kinds of abuses that were taking place were shocking to all of 
us. So we passed rules and regulations. But under this particular 
proposal, the administration is recommending millions of seniors will 
no longer be able to count on Federal nursing home quality standards to 
protect them if they are unable to remain in their homes. Spouses of 
senior citizens who need nursing home care will no longer be guaranteed 
even a minimum amount of income or savings on which to live.
  We know that State budgets are in trouble because of the faltering 
economy. The demands on Medicaid are greater than ever as more families 
lose their jobs and their health care. Instead of the money that States 
need to maintain the Medicaid safety net, the Bush administration gives 
States a license to shred it.
  Every day, this administration makes it clearer that tax cuts to make 
the rich richer is a higher priority than health care for our senior 
citizens and low-income children and the disabled. That is the bottom 
line: Every day, this administration makes it clearer that tax cuts to 
make the rich richer is a higher priority than health care for our 
senior citizens and low-income children and the disabled.
  It is time for Congress and the administration to stand up for the 
priorities of the American people, not the priorities of the wealthy 
and the powerful.
  Medicare and Medicaid are two of the most successful social programs 
ever enacted. It makes no sense for the administration to try to impose 
its harsh right-wing agenda on programs that have done so much to bring 
good health care and genuine health security to vast numbers of senior 
citizens, low-income families, and the disabled.
  The American people will reject this misguided program, and so should 
the Congress.
  Mr. REID. Will the Senator yield for a question?
  Mr. KENNEDY. I am glad to.
  Mr. REID. I have listened on the floor and off the floor to the 
Senator's statement, and especially about Medicare and Medicaid.

  I ask the Senator, we have heard now for 2 years from this 
administration that the answer to the problems of the country are tax 
cuts, tax cuts, tax cuts. I ask the Senator--and I am confident of the 
answer--if he is aware that the deficit this year will be the largest 
in the history of the world, about $500 billion if you do not mask it 
with the Social Security surpluses?
  Now, I am asking the Senator from Massachusetts, will the proposals 
by this administration in their tax cut proposal do anything to help 
the people in Nevada and Massachusetts and the rest of the country who 
are desperate for help in regard to Medicare and Medicaid?
  Mr. KENNEDY. Absolutely not. And your observation goes right to the 
heart of the central issue that we have in the Senate; that this is a 
question of choices. It is a question of priorities. It is a question 
of choices, whether we are going to allow this emasculation of Medicare 
and Medicaid--especially when Medicaid looks after so many needy 
children. About one-half of the coverage is actually for poor children, 
although more than two-thirds of the expenditures are for the elderly 
and the disabled. But it looks after an enormous number of the poorest 
of children, and also after the frail elderly.
  And the Medicare system, we guaranteed in 1965--I was here at that 
time. I was here in 1964 when it was defeated. It was defeated in 1964, 
and then 8 months later it was proposed here on the floor of the Senate 
and it passed overwhelmingly. And 17 Senators who were against it in 
1964 supported it in 1965. The only intervening act during that period 
of time was an election--an election. Finally, our colleagues had gone 
back home and listened to the needs of our elderly people, the men and 
women who had fought in the World Wars, who brought this country out of 
the Depression, who sacrificed for their children, who worked hard, 
played by the rules, and wanted some basic security during their senior 
years from the dangers of health care costs.
  We made a commitment. The Senator remembers. I have heard him speak 
eloquently on it. And in that 1965 Medicare Act we guaranteed them 
hospitalization and we guaranteed them physician services, but we did 
not guarantee prescription drugs because only 3 percent of even the 
private insurance carriers were carrying it at that time.
  I ask the Senator whether he would agree with me that now 
prescription drugs are as indispensable, are as essential to the 
seniors in Nevada as hospitalization and physician visits? They are in 
Massachusetts.
  Mr. REID. Mr. President, I ask unanimous consent that I be allowed to 
answer the question of the Senator from Massachusetts without the 
Senator from Massachusetts losing the floor.
  The PRESIDING OFFICER (Mr. Chafee). Is there objection?
  Without objection, it is so ordered.
  Mr. REID. I say to my friend from Massachusetts, while the Senator 
was serving in the Senate in those years, in the early 1960s and mid 
1960s, I was serving on the hospital board of Southern Nevada Memorial 
Hospital, the largest hospital district in Nevada at that time. I was 
there when Medicaid came into being.
  Now, does the Senator realize--and I think he has heard me say this 
before; and I ask this in the form of a question, although I don't need 
to; I have the floor to answer the Senator's question--prior to 
Medicaid coming into being, that for that hospital of ours, that public 
hospital, 40 percent of the senior citizens who came into that hospital 
had no health insurance?

  And when we had people come into that hospital with, as I referred to 
them then, an old person--I don't quite look at it the same now--they 
would have to sign to be responsible for their mother, their father, 
their brother, their sister, whatever the case might be, that they 
would pay that hospital bill. And if they did not pay, do you know what 
we would do? We had a collection department. We would go out and sue 
them for the money.
  Now, I say to my friend from Massachusetts, the distinguished 
Senator, for virtually every senior who comes to the hospital--it does 
not matter where they are in America--they have health insurance with 
Medicare.
  Mr. KENNEDY. That is right.
  Mr. REID. Medicare is an imperfect program, but it is a good program.
  And I answer the question about pharmaceuticals, prescription drugs. 
When Medicare came into being, seniors did not need prescription drugs 
because we did not have the lifesaving drugs we have now. We did not 
have the drugs that made people feel better. We did not have the drugs 
that prevent disease. Now we have those.
  I say to my friend from Massachusetts, rather than spending the time 
here, as we are dealing with a man who has a job, Miguel Estrada, 
making hundreds of thousands of dollars a year--rather than dealing 
with him, I would rather be dealing with people in Nevada who have no 
prescription drugs.
  In America, the greatest power in the world, we have a medical 
program for senior citizens that does not have a prescription drug 
benefit. That is embarrassing to us as a country. And

[[Page S2657]]

what are we doing here? We are debating whether a man should have a 
job.
  We understand the rules. If they want to get off this, then let them 
file cloture. If they want to get out of this, let them give us the 
memos from the Solicitor's Office. Let him come and answer questions or 
let them pull the nomination.
  The reason they are not doing that is, they don't want to debate this 
stuff. Look at the chart the Senator has. Tax cuts of $1.8 trillion, 
what does that do to Medicare and Medicaid? I hope I have answered the 
Senator's question. A prescription drug benefit is a priority, and it 
has to be a program more than just in name only.
  Mr. KENNEDY. I thank the Senator for his usual eloquence and passion.
  Just to sum up two items, as we discussed earlier, we passed a 
prescription drug program. Fifty-two Members of the Senate did so last 
year. I don't know why we couldn't debate it. I am sure our leader 
would support that effort.
  Finally, let me point out something the Senator has mentioned. This 
chart summarizes it all. Under the administration's program for the 
States, over a 10-year period, Medicaid will be cut $2.4 billion, while 
there will be $1.8 trillion in tax cuts.
  This is a question of priorities. I went through the various charts 
that reflected how this $2.4 billion Medicaid cut will be achieved 
versus the $1.8 trillion in tax cuts. This is a question of choice. 
This is a question of priorities when it comes to the Medicare and 
Medicaid Programs. The quicker we get the chance to debate these and 
get some votes on them, the better off our seniors will be.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, the Senator from Nevada has asked that we 
vote on Miguel Estrada. I ask unanimous consent that we proceed to a 
vote on Miguel Estrada now.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, I ask that the Senator's request be modified 
in the following fashion: I ask unanimous consent that after the 
Justice Department finds the requested documents relevant to Mr. 
Estrada's government service, which were first requested in May of 
2001, the nominee then appear before the Judiciary Committee to answer 
the questions which he failed to answer in his confirmation hearing and 
any additional questions that may arise from reviewing such documents.
  Mr. CRAIG. Mr. President, I object and restate my unanimous consent 
request.
  Mr. REID. To which I object. I object.
  Mr. CRAIG. Mr. President, I just heard the Democrat leader come to 
the floor to demand a vote on Miguel Estrada so we could move on to 
other important issues. He had the opportunity to have that vote, and 
he objected. He wants to raise the issue of moving judges to a 
supermajority vote, denying this man, Miguel Estrada, a vote on the 
floor of the Senate under the constitutional clause of advice and 
consent to the President.
  Let me talk about that for a few moments. Before I talk about that, 
as the chairman of the Aging Committee who has spent countless hours, 
as has the Senator from Massachusetts, on the issue of Medicare, he and 
I would both agree that when Medicare was passed in 1965, some 33 years 
ago, medicine was practiced much differently than it is now. Yet he is 
saying we want Medicare just like it was, and we want to add a new 
program to it.
  As the Senator from Massachusetts well knows, when he voted for 
Medicare in 1965, it was expected to be about a 10, 20-billion-dollar-
plus program. Today it is verging on a quarter of a trillion dollars, 
at least by the end of the decade, and it will potentially, by 2030, 
consume a quarter of the U.S. Government's budget.
  I know the Senator from Massachusetts knows as well as I that the 
world has changed and health care delivery has changed and that we are 
not going to practice 33-year-old medicine on 2003 seniors. They don't 
expect it. They don't want it. They demand change.
  In that change comes prescription drugs as a reasonable and right 
approach. But as we offer that to America's seniors, let us offer them 
a modernized, contemporary health care delivery system. Let us not lurk 
in the concept of a 33-year-old system that is now close to pushing us 
to deny services simply because it has become so costly and so 
bureaucratic. To deny them anything more than a modern health care 
delivery system with prescription drugs in it is to deny them the 
obvious; that is, quality health care.
  Those are the facts. Those are the statistics. We can certainly 
debate those today. But we ought to be debating Miguel Estrada. The 
Democrats want to debate him. They deny us the vote that he is entitled 
to have. So for a few moments today, I would like to visit about Miguel 
Estrada.
  Before I do that, I found this most intriguing. This is a fascinating 
issue. We suggest that it is partisan, and it appears to be almost at 
times. Yet I noticed in the Record of today a few quotes from a 
Democrat Senator. He said:

       Mr. President, the court provides the foundation upon which 
     the institutions of government and our free society are 
     built. Their strength and legitimacy are derived from a long 
     tradition of Federal judges whose knowledge, integrity, and 
     impartiality are beyond reproach. The Senate is obligated, by 
     the Constitution and the public interest, to protect the 
     legitimacy and to ensure that the public's confidence in the 
     court system is justified and continues for many years to 
     come. As guardians of this trust, we must carefully 
     scrutinize the credentials and qualifications of every man 
     and woman nominated by the President to serve on the Federal 
     bench. The men and women we approve for these lifetime 
     appointments make important decisions each and every day 
     which impact the American people. Once on the bench, they may 
     be called upon to consider the extent of our rights to 
     personal privacy, our rights to free speech, or even a 
     criminal defendant's right to counsel. The importance of 
     these positions and their influence must not be dismissed. We 
     all have benefited from listening to the debate about 
     Miguel Estrada's qualifications to serve on the district 
     court. After reviewing Mr. Estrada's personal and 
     professional credentials, including personally 
     interviewing the nominee, I believe he is qualified to 
     serve on the district court, and I will vote for him.

  That is Senator Nelson of Nebraska. That Senator wants a vote. I want 
a vote. We owe Miguel Estrada a vote--not a supermajority vote, not an 
effort to change the rules of the Senate, not an effort to deny the 
constitutional responsibility of this body that the other side is now 
doing, tragically enough, for the politics of the business instead of 
the substance of the issue. That is a tragedy that ought not be laid 
upon the floor of this Senate nor ought to come before what has been a 
responsible process and very important procedure.
  I have been out in my State for a week, as have many of my 
colleagues. I say oftentimes to Idahoans: We watch the President. We 
see him every night on television. We, Members of the Senate and the 
other body, make headlines and are often talked about in the press. But 
very seldom does the third and equally important branch of Government, 
the judicial branch, get the attention. There are no natural lobbyists 
in general. There is no influence out there urging and pushing that the 
courts be treated responsibly, that these vacant positions be filled so 
that courts can do their duty and responsibility under the Constitution 
and provide for fair judgment of those who might come before them.
  That responsibility lies in the President of the United States and in 
the Senate. We are the ones responsible for assuring that the courts 
are filled when those positions are vacant by appropriate people who 
have great integrity, who have moral and ethical standards, and who 
believe in the Constitution of our country.
  Miguel Estrada fails on none of those qualifications. Here today, for 
the first time, Mr. Estrada is a target for a much larger hit; that is 
to suggest that a minority of the Senate could ultimately control the 
Supreme Court of the United States. I believe that is the battleground, 
while a lot of subterfuge may go on, smoke and mirrors, or diversion of 
attention; and I think most people who are now watching this debate are 
beginning to understand there is something very strange about it.
  There used to be an old advertisement on television asking, ``where's 
the beef.'' Well, where's the issue here? Where is the substance of the 
issue, after the committee of jurisdiction, the Judiciary Committee, on 
which I serve, and on which the Senator from Massachusetts serves, very 
thoroughly went

[[Page S2658]]

through the background of Miguel Estrada? He came out with high 
qualifications, having been reviewed by the ABA. Wherein lies the 
problem--the simple problem of allowing this name and nomination to 
come to the floor for a vote--a vote. I tendered that vote a few 
moments ago by unanimous consent, to see it denied on the other side of 
the aisle because they say you must have a super vote, a 60-plus vote. 
No, we suggest the Constitution doesn't say that. We suggest that 
threshold has never been required. So I think what is important here is 
the reality of the debate and how we have handled it.
  I have the great privilege of serving from the West, from the State 
of Idaho. There are a lot of traditions out there. One of the great 
traditions is sitting around campfires, visiting, telling stories, and 
talking about the past. Probably one of the most popular stories to 
tell in the dark of night in only the glow of the campfire is a good 
ghost story. It scares the kids, and even the adults get a little 
nervous at times because their back side is dark and only their faces 
are illuminated. The imagination of the mind can go beyond what is 
really intended. So great stories get told at the campfire.
  I have listened to this debate only to think that great stories are 
attempting to be told here--or should I suggest that ghost stories are 
being proposed here--about Miguel Estrada. Why would we want to be 
suggesting there is something about this man that is not known, that 
there is not full disclosure on all of the issues? I suggest there is 
full disclosure. The other side is deliberately obstructing a 
nomination that has been before the Senate for 21 months. In that 21 
months, there were no ghost stories; nothing new was found, except the 
reality of the man himself--the reality of a really fascinating and 
valuable record for the American public to know.
  Their argument is that because they cannot find anything wrong with 
him--no ghost stories--then there have to be bad things hidden. 
Somebody could not be quite as good as Miguel Estrada. Why not? There 
are a lot of people out there who achieve and are phenomenally 
successful, morally and ethically sound, and well based, and who 
believe in our Constitution and are willing to interpret it in relation 
to the law and not to the politics of something that might drive them 
personally.
  I don't believe in activist judges on the courts. I don't believe 
they get to go beyond the law or attempt to take us where those of us 
who are lawmakers intend us not to go or where the Constitution itself 
would suggest we do not go. So search as they may, they cannot find. 
And when they cannot find, they will obstruct. They have obstructed. 
Week 1. We are now into week 2. My guess is we will be into week 3 or 
4. Hopefully, the American people are listening and understanding 
something is wrong on the floor of the Senate; something is wrong in 
that there is an effort to change the Constitution of our country 
simply by process and procedure--or shall I say the denying of that. I 
think those are the issues at hand here. That is what is important.

  Mr. President, there was nothing more in telling a ghost story than 
in the imagination that came to the mind. There is nothing wrong with 
Miguel Estrada, except in the imagination in the minds of the other 
side, who would like to find a story to tell. But they cannot find one, 
dig as they might. There have been 21 months of effort, 21 months of 
denial. Why? Are we playing out Presidential politics on the floor of 
the Senate this year? It is possible. I hope we don't have to go there, 
and we should not. These are issues that are much too important.
  This President has done what he should do. It is his responsibility 
to find men and women of high quality and high integrity, who are well 
educated and well trained in the judicial process and system--search 
them out and recommend them, nominate them to fill these judgeships. 
That is what he has done. Now he is being denied that.
  A difference of philosophy? Yes, sure. It is his right to choose 
those he feels can best serve. He has found and has offered to us men 
and women of extremely high quality. Yet, at these higher court levels, 
and here in the district court, they are being denied.
  Miguel Estrada has been under the microscope and nobody has found the 
problem. On the contrary, we have found much to admire. At least let me 
speak for myself. I have found much to admire in Miguel Estrada. By 
now, I don't need to repeat his history. I don't need to repeat the 
story of a young man coming to this country at 17 years of age, hardly 
able to speak English, who changed himself and the world around him, so 
that he is now recognized by many as a phenomenal talent and a scholar. 
Let me just say I think he and his family should be very proud of his 
achievements. They should also be proud of his receiving the 
nomination. Of all the people, they surely do not deserve to have the 
judicial nomination process turned into some kind of gamut, in which 
you run a person through and you throw mud at them, or you allege, or 
you imply, or you search for the ultimate ghost story that doesn't 
exist, to damage their integrity, to damage the image and the value and 
quality of the person.
  Senators are within their rights to oppose any judicial nominee on 
any basis they choose. In the last 8 years, when President Clinton was 
President, I voted for some of his judges; I voted against some of them 
because they didn't fit my criteria of what I thought would be a 
responsible judge for the court. But I never stood on the floor and 
denied a vote, obstructed a vote. I always thought it was important 
that they be brought to the floor for a vote. Then we could debate them 
and they would either be confirmed or denied on a simple vote by a 
majority of those present and voting. That is what our Constitution 
speaks to. That is what our Founding Fathers intended. They didn't 
believe we should allow a minority of the people serving to deny the 
majority the right to evaluate and confirm the nominations of a 
President to the judicial branch of our Government.
  If they want to administer a particular litmus test, as one of our 
colleagues on the Judiciary Committee has been advocating, that is 
their choice. If they simply do not like the way a nominee answered the 
questions that were put to him, then they can vote against the nominee 
for all of the reasons and the responsibilities of a Senator. But to 
say they cannot vote because there is no information about the nominee, 
or because he has not answered their questions, or because critical 
information is being withheld, well, that is clearly a figment of their 
imagination. That is a ghost lurking somewhere in the mind of a 
Senator, because for 21 months, try as they might, that ghost, or that 
allegation, has not been found or fulfilled.
  In the real world, there is an enormous record on this nominee, 
bigger than the records of most of the judiciary nominees who have been 
confirmed by the Senate. In the real world, Mr. Estrada has answered 
question after question, just not always the way his opponents wished 
he would answer them; not just exactly the way his opponents would wish 
he had answered them, but he did answer them. In the real world, there 
is no smoking gun in the privileged documents that the opposition is 
unreasonably and inappropriately requesting.
  There is something very familiar about the tactic being used against 
Miguel Estrada, and I finally realized what it was. This is the same 
obstructionism we have seen again and again from our friends on the 
other side, the same process that denied us the right to a budget, the 
right to appropriations for 12 long months. They could not even produce 
a budget. So we brought it to the floor and in 4 weeks we finalized 
that process.
  For the last year and a half, we have lived with that issue of 
obstructionism, and today we are with it again. Now we are in our 
second week of denying an up-or-down vote. What is wrong with having an 
up-or-down vote? That is our responsibility. That is what we are 
charged to do under the Constitution.
  I believe that is the issue. Instead of fighting on policy grounds, 
they are simply wanting to deny this issue to death. In the last 
Congress, as I mentioned, we had no budget, we saw an Energy Committee 
shut down because they would not allow that Energy Committee to write 
an energy bill, and they would not allow authorizing committees to 
function in a bipartisan way when they controlled the majority. Denial 
and obstruction is not a way to run a system. It is certainly not the 
way to operate the Senate.

[[Page S2659]]

  Now we have a personality. Now it is not an abstract concept. Now it 
is not a piece of a budget or a dollar and a cent, as important as 
those issues are. We are talking about an individual who has served our 
country well, who has achieved at the highest levels, who is a man of 
tremendous integrity, and because he does not fit their philosophic 
test, the litmus test of their philosophy as to those they want on the 
court, but he does achieve all of the recognition of all of those who 
judge those who go to the court on the standards by which we have 
always assessed nominees to the judiciary system, that is not good 
enough anymore. The reason it is not good enough is because it is 
President George Bush who has made that nomination.
  In the current Congress, that is an issue with which we should not 
have to deal. We should be allowed to vote, and I hope that ultimately 
we can, and certainly we will work very hard to allow that to happen. 
That is what we ought to be allowed to offer: to come to the floor, 
have an up-or-down vote on Miguel Estrada, debating for 1 week, 
debating for 2 weeks, debating for 3 weeks, if we must, but ultimately 
a vote by Senators doing what they are charged to do.
  That is the most important step and, of course, that is the issue. Or 
is the issue changing the name of the game, changing or raising the 
bar, in this instance, to a higher level of vote, not for Miguel 
Estrada but for future votes, possibly a Supreme Court Justice? I do 
not know what the strategy is, but there is a strategy.
  It is undeniable because we have seen it day after day, time after 
time. We watched it when they chaired the Judiciary Committee last 
year. I now serve on the Judiciary Committee. I went there this year 
with the purpose of trying to move judges through, trying to get done 
what is our responsibility to do, trying to fill the phenomenal number 
of vacancies. When there are vacancies in the court and caseloads are 
building, that means somebody is being denied justice. We should not 
allow our judiciary system to become so politicized by the process that 
it cannot do what it is charged to do. Therein lies the issue. I 
believe it is an important issue for us, and it is one I hope we will 
deal with if we have to continue to debate it.

  Let me close with this other argument because I found this one most 
interesting. They said: We are just rubberstamping George Bush's 
nominations. Have you ever used a rubberstamp? Have you ever picked up 
a stamp, tapped it to an ink pad, tapped it to a piece of paper? That 
is called rubberstamping. My guess is it takes less than a minute, less 
than a half a minute, less than a second to use a rubberstamp.
  That is a false analogy. Twenty-one months does not a rubberstamp 
make; 21 months of thorough examination, hours of examination by the 
American Bar Association. I am not an attorney, but my colleague from 
Nevada is. It used to be the highest rating possible that the American 
Bar Association would give in rating the qualifications of a nominee. I 
used to say that rating was probably too liberal. Now I say it is a 
respectable rating. Why? Because the bar on the other side has been 
raised well beyond that rating. Now we are litmus testing all kinds of 
philosophical attitudes that the other side demands a nominee have, and 
if they say, We are simply going to enforce or carry out or interpret 
the law against the Constitution, that is no longer good enough. 
Rubberstamping? A 5-second process, a 2-second process, or a 21-month 
process? I suggest there is no rubberstamping here.
  I suggest the Judiciary Committee, under the chairmanship of Pat 
Leahy, now under the chairmanship of Orrin Hatch, has done a thorough 
job of examining Miguel Estrada, who has a personal history that is 
inspiring, work achievement that is phenomenally impressive, a 
competence and a character that has won him testimonials from all of 
his coworkers and friends, Democrats and Republicans, liberal and 
conservative.
  As I mentioned, I am a new member of the Judiciary Committee. It is 
the first time in 40 years that an Idahoan has served on that 
committee, and I am not a lawyer. So I look at these nominees 
differently than my colleagues who serve on that committee who are 
lawyers. But I understand records. I understand achievement. I 
understand integrity. I understand morals, ethics, and standards that 
are as high as Miguel Estrada's.
  I am humbled in his presence that a man could achieve as much as he 
has in as short a time as he has. I am angered--no, I guess one does 
not get angry in this business. I am frustrated, extremely frustrated 
that my colleagues on the other side would decide to play the game with 
a human being of the quality of Miguel Estrada, to use him for a target 
for another purpose, to use him in their game plan for politics in this 
country, to rub themselves up against the Constitution, to have the 
Washington Post say: Time's up. Enough is enough. To have newspaper 
after newspaper across the country say: Democrats, you have gone too 
far this time. Many are now saying that, and that is too bad to allow 
that much partisan politics to enter the debate.
  We all know that partisan politics will often enter debates, but it 
does not deny the process. It does not obstruct the process. It does 
not destroy the process. Ultimately, the responsibility is to vote, and 
it is not a supermajority. The Senator from Nevada knows that, and the 
Senator from Idaho knows that. I could ask unanimous consent again that 
we move to a vote on the nomination of Miguel Estrada, and the Senator 
would stand up and say: I object.
  That is how one gets to the vote on the floor of the Senate. After 
the issue has been thoroughly considered, Senators ultimately move to a 
vote. That is my responsibility as a Senator. That is one that I will 
work for in the coming days. That is one that many of my colleagues are 
working for.
  We will come to the floor, we will continue to debate the fine points 
of Miguel Estrada, but we will not raise the bar. We should not set a 
new standard. In this instance, we should not allow a minority of 
Senators to deny the process because there is now a substantial 
majority who would vote for Miguel Estrada because they, as I, have 
read his record, have listened to the debate, have thoroughly combed 
through all of the files to understand that we have a man of 
phenomenally high integrity who can serve this country well on the 
District Court of Appeals that he has been nominated by President Bush 
to serve on.
  Our responsibility is but one: to listen, to understand, to make a 
judgment, and to vote up or down on Miguel Estrada. So I ask the 
question, Is that what the other side will allow? Or are they going to 
continue to deny that? Are they going to continue to demand that a new 
standard be set? The American people need to hear that. They need to 
understand what is going on on the floor of the Senate, and many are 
now beginning to grasp that.
  As newspapers talk about it, some in the Hispanic community are now 
concerned that somehow this has become a racist issue. I do not think 
so. I hope not. It should not be. It must not be. Tragically, we are 
talking about a fine man who is ready to serve this country and who is 
being caught up in the politics of the day, and that should not happen 
on the floor of the Senate.
  Before I got into politics, I was a rancher in Idaho, and I can vouch 
for the fact that a lot of cowboy traditions are still alive and well 
in the Intermountain West. One of those great traditions is 
storytelling--gathering around a campfire and telling ghost stories. 
Some of those stories can be pretty scary. But nobody really believes 
them--certainly not adults, and not in the light of day.
  I am reminded of that storytelling tradition of the West when I look 
back on the debate surrounding Miguel Estrada to the U.S. Court of 
Appeals for the D.C. District. The reason this debate reminds me of 
those old ghost stories is that the opposition's arguments amount to 
just that: stories about imagined ghosts and monsters, told for the 
purpose of frightening people.
  I have been serving in the Senate for better than a decade, and I 
have seen a lot of filibusters about a lot of things, but this is the 
first time I have seen a filibuster over nothing--that's right: 
nothing. The other side is deliberately obstructing the nomination of 
Miguel Estrada because after 21 months they can find nothing wrong with 
this nominee.
  Their argument is that because they cannot find anything wrong with 
him,

[[Page S2660]]

all the bad things must be hidden, and therefore they need more time 
for their fishing expedition on this nomination. Only now, that fishing 
expedition is going into documents that are privileged, and public 
policy itself would be violated by breaking that privilege. That's not 
just my opinion--as we have heard again and again, it is the opinion of 
the seven living former Solicitors General, both Democrat and 
Republican.
  With nothing to complain about, the opposition is trying to get us 
all to believe that there must be some terrible disqualifying 
information that is being withheld from the Senate. What that terrible 
information is, they leave us to imagine: maybe some writings that will 
reveal a monster who is going to ascend to the bench where he can rip 
the Constitution to shreds and roll back civil liberties. Maybe 
something even worse.
  These are nothing more than ghost stories, deliberately attempting to 
frighten the American people and this Senate. It is time to shine the 
light of day on this debate, time to realize there is no monster under 
the bed.
  And it is high time that the Democrat leadership put a stop to the 
politics of character assassination that go along with all this 
storytelling. It is outrageous to suggest that Miguel Estrada is hiding 
something, or being less than forthcoming with this Senate. The Senate 
Judiciary Committee had plenty of time over the last 21 months to find 
some real problem with this nominee--but no such problem was found. The 
American Bar Association reviewed him, found nothing wrong with him, 
and even gave him its highest rating--``well qualified.'' The Bush 
administration looked into his record before sending up the nomination. 
And let's not forget that he worked for the previous administration, 
too, which not only hired him but gave him good reviews.
  So Miguel Estrada has been under the microscope, and nobody has found 
a problem with him. On the contrary, we have found much to admire--at 
least, let me speak for myself--I have found much to admire about Mr. 
Estrada. By now, his story is pretty well known to anyone who follows 
the daily news, let alone Senators who study the nominees who come 
before them, so I won't repeat it again. Let me just say that I think 
he and his family should be very proud of his achievements. They should 
also be proud of his receiving this nomination. And of all people, they 
surely do not deserve to have the judicial nomination process turned 
into some kind of grueling gauntlet through the mud being generated by 
the opposition.

  Senators are within their rights to oppose any judicial nominee on 
any basis they choose. If they want to administer a particular litmus 
test, as one of our colleagues on the Judiciary Committee has been 
advocating, that is their choice. If they simply do not like the way a 
nominee answered the questions that were put to him, then they can vote 
against that nominee for that reason.
  But to say they cannot vote because there is no information about 
this nominee, or because he has not answered their questions, or 
because critical information is being withheld--well, apparently they 
do not live in the same world the rest of us do. Because in the real 
world, there is an enormous record on this nominee--bigger than the 
records on most of the judicial nominees who have been confirmed by the 
Senate. In the real world, Mr. Estrada has answered question after 
question--just no always the way that his opponents wished he would 
have answered. And in the real world, there is no smoking gun in the 
privileged documents that the opposition is unreasonably and 
inappropriately requesting.
  There is something very familiar about this tactic being used against 
Miguel Estrada, and I finally realized what it was: this is the same 
obstructionism that we have seen again and again from our friends on 
the other side. Instead of fighting on policy grounds, they just 
obstruct and delay the issue to death. In the last Congress, we never 
got a budget, we never got an energy bill--just more obstruction and 
delay. And in this current Congress, instead of having an honest up-or-
down vote on this nominee, they filibuster about the past history of 
judicial nominees under former administrations.
  Another of my colleagues revealed during this debate that 
obstructionism is a tactic out of a playbook for stopping President 
Bush from getting his nominees to the higher courts--maybe not every 
court, but certainly the circuit courts and maybe someday the Supreme 
Court. We have heard on this Senate floor about that playbook advising 
our Democrat colleagues to use the Senate rules to delay and obstruct 
nominees--first in committee and then on the Senate floor.
  This is the first step in raising the bar for all of President Bush's 
nominees. That is the goal--to raise the bar, to impose new tests never 
envisioned in the Constitution, for anyone nominated by President Bush. 
Make no mistake about this: it is partisan politics at its most 
fundamental. Instead of the Senate performing its constitutional role 
of advise and consent, the Democrat leadership intends to put itself in 
a position to dictate to the President who his nominees can be. Instead 
of allowing the normal process to work--the process through which all 
judicial nominees have gone before--they are fashioning a new set of 
tests that will become the standard.
  And while I am talking about raising the bar, let me anticipate the 
argument of the opposition. I have heard a lot from my Democrat 
colleagues about how they are offended at being expected to 
``rubberstamp'' President Bush's nominees. Last I checked, it takes 
about two seconds to ``rubberstamp'' something; you just pound the 
stamp on an inkpad and then on a piece of paper, and you are done.
  This nomination, on the other hand, has been in the works for 21 
months, involved extensive hearings by a then-Democrat-led Judiciary 
Committee, included supplemental questions posed by Committee members, 
a non-unanimous vote of that Committee, and weeks of debate on this 
floor. For any Senator to say this amounts to being pushed into 
``rubberstamping'' this nominee is hogwash.
  Furthermore, anybody who wants to complain about ``rubberstamping'' 
ought to be out here standing side by side with Republicans, demanding 
an up-or-down vote on this nominee. I say to my colleagues, if you are 
not satisfied that this nominee will be a good judge on the Court of 
Appeals, then vote against him. If you are sincere about your 
objections, and not just playing political games, then you have nothing 
to lose by demanding a fair vote.

  I do not see how anybody could read the record on this nominee and 
listen to the debate in this Senate and not conclude that Miguel 
Estrada will serve the United States with distinction on the Federal 
bench. His personal history is inspiring; his work achievements are 
impressive; his competence and character have won him testimonials from 
friends and coworkers of every political stripe.
  I am a new member of the Judiciary Committee--the first Idahoan to 
serve on that committee in more than forty years--and I am proud to say 
that my first recorded vote on that committee was to confirm Mr. 
Estrada. I am now asking my colleagues to allow the full Senate to have 
the opportunity to vote on this nominee. Let us stop the storytelling, 
get back to the real world, and have a fair up-or-down vote on the 
confirmation of Miguel Estrada.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Democratic whip.
  Mr. REID. Mr. President, the Democratic leader was on the floor this 
morning and spoke at some length about the problems facing this 
country. The problems facing this country are significant. It is 
untoward, as the Democratic leader stated, that we are not dealing with 
issues the people we represent, who are in our home States, want to 
talk about. They want us to do something about the health care delivery 
system in this country. That includes prescription drugs. It includes 
the Patients' Bill of Rights. It includes Medicare. It includes 
Medicaid.
  The people at home want us to at least remember that we have 
environmental problems facing this country that we need to deal with. 
The people at home understand education is a significant issue. The 
people at home understand their State--there are only four States that 
do not have a budget deficit. All other States are spending in the red. 
They want some help. We, as a

[[Page S2661]]

Senate, deserve to deal with those and other issues that the people of 
our States believe we should be talking about.
  There have been a number of requests made: Why do we not vote on this 
in 6 hours, 4 hours, 2 hours, 10 hours, 2 days, Friday by 9:30? And we 
have said very simply--this is the ninth day of this debate covering a 
period of approximately 3 weeks--Miguel Estrada needs to be candid and 
forthright. And how is that going to be accomplished? It is going to be 
accomplished by his giving us information, answering questions, and 
giving us the memos he wrote when he was at the Solicitor General's 
Office.
  We should be dealing with the issues I have outlined, and others, 
issues that people really care about at home. But, no, we are not going 
to take up S. 414 that Senator Daschle asked unanimous consent that we 
move to, the economic stimulus package the Democrats prefer. What it 
does is give immediate tax relief to the middle class and has no long-
term impact on the deficit of this country.
  If we brought that up and the majority did not like our bill, we 
could have a debate on what is the best thing to do to deal with the 
financial woes of this country. That is what we should be dealing with.
  As I have said earlier today, and I repeat, the reason we are not 
dealing with those issues of immense importance to this country is the 
majority does not have a plan or a program.
  The President's tax cut proposal, his own Republicans do not like it. 
The chairman of the Ways and Means Committee of the House does not like 
it. Individual Members of the Senate, who are Republicans, who do not 
like his program, have written to him and talked to him. So that is why 
they are not bringing that up.
  Why are we not going to do something dealing with health care? 
Because they do not have their act together. They do not know what they 
want.
  So without running through each issue we should be talking about, let 
me simply say Miguel Estrada needs to be resolved and can be resolved 
in three ways: The nomination be pulled and we can go to more important 
issues; No. 2, he can answer the questions people want to propound to 
him and have propounded to him; and thirdly, he submit the memos he 
wrote when he was in the Solicitor General's Office and answer 
questions.
  There has been a lot said in righteous indignation: We cannot give 
these memos because it would set a precedent that has never been set in 
the history of this country. Senators Daschle and Leahy, the Democratic 
leader and the ranking member of the Judiciary Committee, wrote to the 
White House and said: Give us the memos. Let him answer the questions.

  We get a 15-page letter back from Gonzales, the counsel to the 
President, saying: We are not going to do that.
  My staff just showed me a letter--I guess he did not have time, as 
counsel to the President did, to write a 15-page letter--in two or 
three sentences saying that Gonzales, if he wanted to talk to Senator 
Daschle and I, they would have him come forward and he could sit down 
and talk to us.
  We are not going to do that. The Democrats in the Judiciary Committee 
unanimously voted against Miguel Estrada because he did not answer the 
questions and he did not submit the memos.
  My case to the Senate, my case to the American people, is there is no 
precedent set by his giving this information, and I say that for a 
number of reasons.
  I have a detailed letter from the Department of Justice describing 
their efforts to respond to the Senate's request for Chief Justice 
Rehnquist's Office of Legal Counsel memos during his nomination--he was 
a Supreme Court Justice at the time, but now he is the Chief Justice--
and a legal letter from the Department of Legislative and 
Intergovernmental Affairs, John Bolton, on August 7, 1986, which states 
and I quote:

       We attach an index of those documents--

  Rehnquist legal memorandum from when he was the Assistant Attorney 
General for the Office of Legal Counsel in the Solicitor's Office--

     and will provide the Committee with access in accordance with 
     our existing agreement.

  The letter also indicates that numerous other legal memoranda were 
provided to the committee prior to that date. The letter also contains 
an attachment, ``Index to Supplemental Release to Senate Judiciary 
Committee,'' which lists three additional memos relating to legal 
constraints on possible use of troops to prevent movement of May Day 
demonstrators, possible limitations posed by the Posse Comitatus Act on 
the use of troops, authority of members of the Armed Forces on duty in 
civil disturbances to make arrests.
  These are internal memos, obviously, written by attorneys containing 
legal analyses and deliberations about very sensitive issues. Again, it 
is obvious that legal memos similar to Mr. Estrada's were provided to 
the Senate Judiciary Committee, reviewed and returned to the 
Department. In fact, Senator Biden, still a member of this body, wrote 
to Attorney General Meese to thank him for his cooperation and then 
asked for additional memos that I assume were provided.
  I ask unanimous consent that a letter dated July 23, 1986, written to 
the Honorable Strom Thurmond, chairman of the Senate Judiciary 
Committee, from Joe Biden asking that the Department of Justice supply 
certain information regarding the nomination of William B. Rehnquist to 
be Chief Justice, I ask simply that that matter be forwarded to the 
Senate and be printed in the Record.
  As well, we have a request back--I am sorry. We have a letter written 
to Joe Biden from Senator Edward M. Kennedy, Howard Metzenbaum, and 
Paul Simon, members of that Judiciary Committee, who asked for certain 
information dealing with memoranda that Rehnquist prepared. We have a 
letter written to Attorney General Meese from Joe Biden setting forth 
the materials that were requested, together with Rehnquist documents 
that are wanted. We have a letter dated August 7 to Chairman Thurmond 
from John Bolton that I referred to in more general terms. That lists 
in detail the material that was supplied.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 23, 1986.
     Hon. Strom Thurmond,
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Strom: I have enclosed the request of the Department 
     of Justice for documents concerning the nomination of William 
     H. Rehnquist to be Chief Justice. Please forward the enclosed 
     request for expedited consideration by the Department. I 
     understand it may be necessary to develop mutually satisfying 
     procedures should any of the requested documents be provided 
     to the Committee on a restricted basis.
           Sincerely,
                                             Joseph R. Biden, Jr.,
     Ranking Minority Member.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 23, 1986.
     Hon. Joseph R. Biden, Jr.,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Joe: In preparation for the Senate Judiciary Committee 
     hearings on the nomination of William H. Rehnquist be to 
     Chief Justice of the United States, please ask Chairman 
     Thurmond to provide the following information and materials, 
     as soon as possible:
       1. For the period from 1969-1971, during which Mr. 
     Rehnquist served as Assistant Attorney General for the Office 
     of Legal Counsel, all memoranda, correspondence, and other 
     materials on which Mr. Rehnquist is designated as a 
     recipient, or materials prepared by Mr. Rehnquist or his 
     staff, for his approval, or on which his mane or initials 
     appears, related to the following:
       --executive privilege;
       --national security, including but not limited to domestic 
     surveillance, anti-war demonstrators, wiretapping, reform of 
     the classification system, the May Day demonstration, the 
     Kent State killings, and the investigation of leaks;
       --the nominations of Harry A. Blackmun and G. Harrold 
     Carswell to be Associate Justices of the Supreme Court;
       --civil rights;
       --civil liberties.
       2. The memo prepared by law clerk Donald Cronson for 
     Justice Jackson concerning the school desegregation cases, 
     entitled, ``A Few Expressed Prejudices on the Segregation 
     Cases''.
       3. The original of the Cronson cable to Mr. Rehnquist in 
     1971, which appears in the Congressional Record of December 
     9, 1971.
       4. Financial disclosure statements for Justice Rehnquist 
     for the period from his appointment to the Court until 1982.
       5. Any book contracts to which Justice Rehnquist is a 
     signatory and which were in

[[Page S2662]]

     effect for all or any part of the period from January 1984 to 
     the present, or for which he was engaged in negotiations 
     during the same period.
           Sincerely,
     Edward M. Kennedy.
     Howard M. Metzenbaum.
     Paul Simon.
                                  ____

                                                      U.S. Senate,


                                    Committee on the Judiciary

                                   Washington, DC, August 6, 1986.
     Hon. Edwin Meese III,
     Attorney General, Department of Justice, Washington, DC.
       Dear Mr. Attorney General: First, I wish to express my 
     appreciation for the manner in which we were able to resolve 
     the issue of access to documents which we requested in 
     connection with Justice Rehnquist's confirmation proceedings. 
     I am delighted that we were able to work out a mutually 
     acceptable accommodation of our respective responsibilities.
       We have now had an opportunity to conduct a preliminary 
     examination of the materials which were provided to us last 
     evening, and we have noticed that several of the items refer 
     to other materials, most of which appear to be incoming 
     communications to which the nominee was responding while he 
     headed the Office of Legal Counsel. Attached hereto is a list 
     of those other materials, and I would appreciate your taking 
     appropriate steps to see that those items are made available 
     as soon as possible.
       Finally, once you have provided us with access to these 
     additional materials, I would appreciate your providing us 
     with a written description of the steps which have been 
     taken, and the files which have been searched, in your 
     Department's effort to be responsive to our requests.
       Once again, thanks for your continuing assistance.
           Sincerely,
                                             Joseph R. Biden, Jr.,
                                          Ranking Minority Member.

                          Rehnquist Documents

       A. Letter from Lt. Gen. Exton, dated Dec. 2, 1970. (This 
     item is referenced in the attachments to I.2.)
       B. The ``transmittal of June 5, 1969'' from Herbert E. 
     Hoffman, (This item is referenced in II.1.)
       C. The ``directive . . . sent out by General Haig on June 
     30.'' (This item is referenced on the first page of the first 
     attachment to II.2.)
       D. ``Haig memorandum of June 30.'' (This item is referenced 
     on the first page of the first attachment to II.2.)
       E. ``NSSM-113''. (This item is referenced in II.4.)
       F. The ``request'' of William H. Rehnquist. (This is 
     referenced in the first paragraph of II.5.)
       G. The ``request'' of William H. Rehnquist. (This item is 
     referenced in the first paragraph of II.6.)
       H. John Dean's ``memorandum of Nov. 16, 1970.'' (This item 
     is referenced in II.8.)
       I. Robert Mardian's ``memorandum of January 18, 1971.'' 
     (This item is referenced in II.10.)
       J. The ``similar memorandum to Mr. Pellerzi and his 
     response of January 21 concerning the above-captioned 
     matter.'' (These two  items are referenced in II.10.)
       K. Kenneth E. BeLieu's ``request of October 28, 1969 for 
     rebuttal material.'' (This item is referenced in V.1.)
       L. William D. Ruckelshaus' ``memorandum of December 19, 
     1969.'' (This item is referenced in VI.2, and in VI.4.)
       M. William D. Ruckelshaus' ``memorandum of February 6, 
     1970.'' (This item is referenced in VI.5.)
       N. Mr. Revercomb's request. (This item is referenced in 
     I.1.)
                                  ____

         Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                   Washington, DC, August 7, 1986.
     Hon. Strom Thurmond,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Thurmond: This letter responds to Senator 
     Biden's August 6 request for certain additional materials 
     referred to in the documents from the Office of Legal Counsel 
     (OLC) that were made available for the Committee's review, 
     and for an explanation of the procedures followed by the 
     Office of Legal Counsel in locating and reviewing those 
     materials. Because OLC went to extraordinary lengths in 
     responding to the document requests in a very short time, I 
     think it would be useful to describe those efforts first.
       The files of the Office of Legal Counsel for the years 
     1969-1971 are maintained in two, duplicative sets: one in 
     hard copy (on a chronological basis) and the other on a 
     computerized system (which can be searched by words or 
     phrases). The Office's normal procedure in response to any 
     request for documents--be it from the public, another 
     government agency, or from a member of Congress--is to 
     conduct a search through the computer system to locate the 
     potentially responsive document or documents. The documents 
     thus identified are then reviewed in hard copy to determine 
     whether they are responsive to the request and whether they 
     may be released, consistent with preserving the integrity of 
     the Office's role as confidential legal advisor to the 
     Attorney General and to the President. The computer search 
     and review is supervised directly by senior career personnel 
     of the Office.
       In this case, the Office went far beyond its routine 
     process to ensure the comprehensiveness of its response. In 
     keeping with established procedures, members of the career 
     OLC staff, under the supervision of the senior career lawyer 
     who usually handles such matters, performed extensive subject 
     matter searches of the computer data base to identify all 
     documents in the files that were conceivably responsive to 
     the request. Those documents were then reviewed by a senior 
     career staff lawyer to determine their responsiveness. In 
     addition, OLC career staff performed an overlapping 
     review, from the hard copy files maintained by OLC for 
     1969-1971, of all documents prepared by or under the 
     direction and supervision of Mr. Rehnquist. Finally, a 
     staff lawyer worked with the Records Management Division 
     of the Department of Justice to try to identify and locate 
     any files stored in the federal records center that might 
     possibly contain responsive documents.
       I note that review of the stored files in this manner is 
     extraordinary and to our knowledge unprecedented. The OLC 
     files from the relevant time period were consolidated with 
     other Departmental files by the Records Management Division, 
     and then processed and maintained by that Division based on a 
     complicated and incomplete filing system. It is virtually 
     impossible to determine whether documents from the Office of 
     Legal Counsel may be in a particular stored file, or indeed 
     to determine whether particular files were maintained.
       Nonetheless, in an effort to be as complete as possible in 
     responding to the request, OLC undertook to try to identify 
     any stored files that could conceivably contain responsive 
     documents. Although an initial review of the index maintained 
     by the Records Management Division did not suggest that those 
     files contained responsive material that OLC had not 
     previously located, in an abundance of caution OLC requested 
     access to any possibly relevant files. Those files were 
     received from the records center in Suitland, Maryland, late 
     yesterday afternoon. Based on a review of those files by OLC 
     career staff, OLC located three additional memoranda relating 
     to the May Day arrests, each of which was prepared by OLC 
     staff. We attach an index of those documents, and will 
     provide the Committee with access in accordance with our 
     existing agreement.
       In addition, the files received from the federal records 
     center included a copy of the December 2, 1970, letter from 
     Lt. Gen. Exton, which is requested as item A by Senator Biden 
     in his August 6 letter. We will also furnish this letter to 
     the Committee under the same terms. With the exception of 
     item M on Senator Biden's list, which has already been made 
     available to the Committee, OLC has been unable to locate any 
     of the other requested materials in its files or in the 
     stored files. Many of these documents may, in fact, no longer 
     exist. The various ``requests'' listed as items F, G, and K, 
     for example, were most likely oral requests that were never 
     memorialized in writing.
       In sum, the staff of the Office of Legal Counsel went to 
     extraordinary lengths to ensure that all responsive materials 
     were located, putting literally hundreds of hours into this 
     project.
       Please let me know if we can be of further assistance.
           Sincerely,
                                                   John R. Bolton,
                                       Assistant Attorney General.

      Index to Supplemental Release to Senate Judiciary Committee

       1. 5/71 memo to file from Eric Fygi: ``Prevention by Use of 
     Troops of Departure of Mayday Demonstrators from West Potomac 
     Park for Demonstration Sites''
       This memorandum discusses legal constraints on possible use 
     of troops to prevent movement of May Day demonstrators.
       2. 4/26/71 memo to WHR from Eric Fygi and Mary C. Lawton: 
     ``Legal and Practical Considerations Concerning Protective 
     Actions by the United States to Ameliorate the `Mayday 
     Movement' Traffic Project''
       This memorandum discusses possible limitations posed by the 
     Posse Comitatus Act on the use of troops in connection with 
     the planned May Day demonstrations.
       3. 4/29/71 memo to file from Mary C. Lawton (copy provided 
     to WHR): ``Authority of members of the Armed Forces on duty 
     in civil disturbances to make arrest''
       This memorandum questions arising under federal and D.C. 
     law and the Uniform Code of Military Justice with respect to 
     arrests by members of the armed forces.
       4. 12/3/70 letter from Lt. Gen. H.M. Exton to Attorney 
     General Mitchell (as requested by Senator Biden's letter of 
     August 6, 1986).
  Mr. REID. Madam President, my friend from Idaho, the distinguished 
senior Senator--and he is my friend; I have the greatest respect for 
him; he is a fine man; he represents his State very well--I 
respectfully submit to this body my friend's statements regarding what 
the Senate did not do last year is a statement made through a pair of 
glasses that obviously are very foggy.
  I say that because there is a lot of talk here about things that were 
not done. But the fact is the work that was left undone last year was 
left undone as a result of the President of the United States and the 
Republican-led House of Representatives not allowing us to move the 
appropriations bills. We

[[Page S2663]]

passed 2 bills, leaving 11 undone. The House of Representatives simply 
refused to take votes on those very difficult bills. They knew if they 
took votes on those bills as they wanted them in the House of 
Representatives, it would create chaos among the people in the country 
because the people would know then that the Republicans simply were not 
meeting the demands of the American people.
  As a result of that, even though we passed every bill out of the 
Senate Appropriations Committee--all 13--we were not allowed to take 
them up. So we have to understand that is basically the way it is.
  The senior Senator from Idaho has talked about the need to have a 
vote on Estrada. It is within the total power of the majority to have a 
vote. How do they have a vote? The rules in this body have been the 
same for a long time: File a motion to invoke cloture. Why does the 
Senate have a rule such as this? The Senate of the United States, as 
our Founding Fathers said, is the saucer that cools the coffee. The 
Constitution of the United States is a document that is not to protect 
the majority; this Constitution protects minorities. The majority can 
always protect itself. The Constitution protects the minority. If the 
majority wants to vote, it can invoke cloture--try to. It takes 60 
votes. No question about that. Then they can have the up-or-down vote 
that they want.
  All the crocodile tears are being shed for this man who is fully 
employed downtown here with a big law firm, making hundreds of 
thousands of dollars a year. We are holding up the work of this country 
that deals with problems that people who do not make that kind of money 
have, people who are struggling to make sure they can pay their rent, 
make their house payment, pay their car payment, that they can find 
enough money to get to work on public transportation, people who need a 
minimum wage increase, people who have no health care; they cannot take 
their children to the hospital when they are sick, and if they do, they 
know they are going to be billed large sums. Some places do not have 
indigent hospital care. We know there are many people who are 
underinsured, as Senator Kennedy and I talked about. There are 44 
million who do not have health insurance. Those are the problems with 
which we should be dealing.
  The Clark County School District in Las Vegas is the fifth or sixth 
largest school district in America. A quarter of a million children 
need help. The school district is in dire need of help. The Leave No 
Child Behind is leaving a lot of kids behind because there is no money 
to take care of the problems. We met with Governors today for lunch, 
and they were told when they met with the President yesterday for Leave 
No Child Behind they are supposed to do the testing, and if that does 
not work out, they are supposed to take care of the other problems. 
That is not the deal we made. The States were desperate before that was 
passed. We do not fund the IDEA act, children with disabilities. These 
are the issues we should be dealing with--not spending 3 weeks of our 
time on a man who is fully employed. Let's talk about some of the 
people who have no jobs or are underemployed.

  Having said that, my friend, the distinguished senior Senator from 
Idaho, cannot understand why there is not a vote on Estrada the way he 
believes a vote should occur. My friend, the distinguished senior 
Senator from Idaho, voted against 13 Clinton nominees on the floor, 
including Rosemary Barkett, born in Mexico, who emigrated to the United 
States. She had a great rating from the ABA, before Fred Fielding was 
on the committee, and he does not write her evaluation report.
  By the way, the one thing on which I agree with the Republicans: They 
were right in saying the ABA should be out of the process. I will join 
with anyone in the future to get the ABA out of the process. It is 
corrupt, unethical; there are absolute conflicts of interest. The 
Republicans were right; it has been unfair.
  I cannot imagine that body having thousands of----
  Mr. CRAIG. Will the Senator yield?
  Mr. REID. In one second, I will yield--thousands of lawyers, and they 
cannot get people who would be fair and reasonable and do not appear to 
have conflicts of interest? It is ripe to get rid of it.
  Mr. CRAIG. I would not deny the Senator the right to the floor. I am 
curious, for the 8 years of the Clinton administration, this was the 
gold plate. The American Bar Association quality test was a gold plate. 
I said wait a moment here and voted against some of them.
  Mr. REID. I respond to my friend, I said on the Senate floor today in 
the presence of the chairman of the Judiciary Committee, they were 
right. I acknowledge that.
  Mr. CRAIG. A year makes a lot of difference, in the opinion of the 
Senator?
  Mr. REID. Knowledge makes a difference. I am not a member of the 
Judiciary Committee.
  Mr. CRAIG. And I am a freshman there.
  Mr. REID. I think the ABA should be ashamed of themselves.
  I said this morning, I practiced law quite a few years before coming 
here. I was not a member of the ABA for a number of reasons. Had I 
known this, I would really not have been a member. Lawyers all over 
America--we have, going back to biblical times, had problems with 
lawyers.
  Mr. CRAIG. That is why----
  Mr. REID. The ABA, I cannot think of a better phrase than that they 
should be ashamed of themselves for what they have done.
  This is off the subject, but I will get back on the subject. I 
believe all Presidents, Democrat and Republican, have had trouble 
getting nominees--whether it is Cabinet officers, sub-Cabinet officers, 
members of the military, whether it is judges--trying to get them 
before the Senate because of the length of time the FBI investigations 
take and all the hoops people have to jump through now.
  I say let's eliminate the ABA from the judges. I don't know how many 
of my colleagues here agree, but I agree, and I will join with the 
Republicans anytime to get the ABA out of the process.
  My friend, the distinguished Senator from Idaho, voted against Judge 
Sonia Sotomayor, the first Hispanic female appointed to the circuit, 
and Judge Richard Paez confirmed to the Ninth Circuit after 1,520 days 
following his nomination. In fact, the distinguished senior Senator 
from Idaho not only voted against Judge Paez's confirmation, before 
that vote on March 9, 2000, but also voted on that day to indefinitely 
postpone the nomination of Richard Paez.
  I find it fascinating that someone who voted to indefinitely postpone 
a vote on Paez would now say that Estrada is entitled to an immediate 
vote on his nomination.
  Mr. CRAIG. Will the Senator yield?
  Mr. REID. I am happy to yield, although I do not lose my right to the 
floor.
  Mr. CRAIG. Madam President, the Senator is absolutely right. I did 
vote against those judges, as I said on the floor a few moments ago. I 
voted for some of the Clinton judges and against some of them based on 
philosophy. The question I ask, though, is, Did I ever deny the Senate 
the right to go to a vote? Did I ever filibuster as the Senator's party 
is now doing on this issue?
  Mr. REID. I say to my friend that we had to vote cloture on Paez. 
That is how we got a vote on Paez. That is how that came about. We had 
to invoke cloture, and we had enough people of goodwill on the other 
side of the aisle who joined with us to invoke cloture. So the debate 
stopped.
  Mr. CRAIG. I see.
  Mr. REID. Madam President, as I was saying before, the question was 
asked. Senator Craig voted against the motion to invoke cloture on the 
debate on Paez who was pending for more than 1,500 days.
  I want everyone within the sound of my voice to hear this. As Senator 
Daschle and I said, when the Democrats took over control of the Senate, 
we said it is not payback time no matter how bad President Clinton was 
treated. And we could go into a long harangue about how unfair it was. 
I will not even mention a few of the judges. The record is replete with 
examples of how poorly they were treated and how unfairly they were 
treated. We did not have payback time when we were in the majority, and 
it is not payback time when we are in the minority.
  We approved, during the short time that we had control of the Senate, 
100

[[Page S2664]]

judges--exactly. Three judges have come before this body for a vote. 
They were approved unanimously.
  The situation with Miguel Estrada is a little bit different. It is a 
little bit different. It is a lot different. It is tremendously 
different because this is a man about whom speeches have been given all 
over town. He is so good that he is going to go to the Supreme Court.
  It triggered something in the mind of the members of the Judiciary 
Committee. If that is the case, maybe we should ask him some questions. 
My dear friend from Utah, from our sister State and neighboring State, 
had on his desk books--look at all the answers he has given. There are 
answers, and then there are answers. He didn't answer the questions. 
That was our concern. He responded to questions, but he didn't answer 
them.
  We believe that what has gone on in the past is not something we 
want, so in this situation I am able to say here that 2 days ago 
everything has been said but not everyone has said it. We are in a new 
phase of this debate. Everything has been said and everybody has said 
it. So now it is just repeat time. I am going to do a little repeat 
time.
  I know my friend from New York wishes to speak. I will be as quick as 
I can, but I do want to respond to some of the questions that have been 
raised in the last bit by my colleagues on the other side of the aisle.
  In 1996, Republicans allowed no--zero percent, absolute number zero--
circuit court nominees to be confirmed. In 1997, they allowed 7 of just 
21 of President Clinton's 21 circuit court nominees, one-third. Only 5 
of President Clinton's first 11 circuit nominees that same year were 
confirmed. In 1998, Republicans allowed 13 of the 23 pending circuit 
court nominees to be confirmed. That percentage was pretty good--the 
best year for circuit court nominations and 6.5 years in control of the 
Senate. In 1999, Republicans backed down to 28 percent and allowed 7 of 
the 25 circuit court nominees to be confirmed--about 1 of over 4.
  Four of President Clinton's first 11 circuit court nominations that 
year were not confirmed. In 2000, Republicans allowed only 8 of 26, 31 
percent. All but one of the circuit court candidates were initially 
nominated that year without confirmation.
  Republicans simply have no standing to complain that 100 percent of 
President George W. Bush's circuit court nominees have not be 
confirmed. The recent issue makes it plain. Democrats have been far 
better to this President than they were to President Clinton.
  Under Republicans, as a consequence, the number of vacancies on the 
circuit courts more than doubled--from 16 in January 1995 to 33 by the 
time the Senate was reorganized in the summer of 2001. Republicans 
allowed only 7 circuit court judges to be confirmed per year; on 
average, we confirmed 17 in just 17 months.
  The other thing that I find so interesting is the majority is 
complaining about the District of Columbia Circuit Court being so 
understaffed. What they are saying now is that this DC Circuit is so 
understaffed that we have to do something about this.
  As my friend from Utah said to me, make a difference. As I indicated 
to him about the ABA, I didn't know as much then as I know now about 
the ABA.
  But what I wanted to talk about here is the DC Circuit Court 
problems. They talked about double standards on that side of the aisle 
today. Let me give you a couple of examples.
  DC Circuit Court nominees Elena Kagan, Allan Snyder, and Merrick 
Garland. Senator Cornyn remarked that Judge Garland was confirmed in 
only a few months. Today the Senator repeated that claim using the 
chart that said Garland waited only 71 days from his nomination to 
confirmation.
  If only that were the case, but all you have to do is talk to Judge 
Garland and look at the real record. Judge Garland was first nominated 
in 1995--the year the Republicans took over the Senate--and not allowed 
to be confirmed until 1997, hardly a few months.
  The prior two Republican administrations under President Reagan and 
George W. Bush appointed 11 judges to the 12-member court. When 
President Reagan came to Washington, there was a concerted effort to 
pack this court in particular with activist judges in the hopes of 
limiting opportunity for citizens to challenge regulations and limiting 
constitutional power to enforce hard-fought constitutional and 
statutory rights to protect workers and to protect the environment.
  President Reagan, with the help of the Senate, put activist Robert 
Bork on the DC Circuit. Like Miguel Estrada, Bork was one of the first 
judges nominated by that President. Shortly after winning Bork's 
confirmation to the circuit in 1982, President Reagan pushed through 
the Scalia nomination to the DC Circuit, and Ken Starr the following 
year.
  That is a real lineup. Bork, Starr, Scalia--quite amazing. He named 
another five conservatives after that for a total of eight appointments 
to the court alone in his 8 years as President.
  The first President Bush took a similarly special interest in the DC 
Circuit and chose Clarence Thomas to be one of his first dozen 
nominees. Thomas, who I had the pleasure of voting against when he came 
before the Senate, was one of two other nominees of the first President 
Bush. Four of the 11 judges put on the District of Columbia Circuit 
were later nominated by the Republican Presidents to the Supreme Court.
  During the period when Republicans had nominations to that court--
when Scalia and Thomas served there--the court, clearly any legal 
scholar can tell you, began to limit opportunities for individual 
citizens and judges to represent them. To have standing to challenge 
Government action.

  At the same time, the DC Circuit became less deferential to agency 
regulations intended to protect consumers and workers. These decisions 
were praised by Republican activists.
  With a Democratic Senate, President Clinton was able to name two 
moderate judges to this court in order to moderate this bench. However, 
once Republicans took over, they tried to prevent any more Democratic 
appointees from getting on this court.
  So it is simply incorrect--and I hope not intentionally--to claim 
that Garland waited only 71 days between his nomination and his 
confirmation. It was a matter of years, not days--almost 2 years.
  Why did he have to wait so long? Once Republicans took over the 
Senate, they decided to try to prevent President Clinton from filling 
circuit court vacancies, especially in the DC Circuit. In fact, during 
their time in the majority, vacancies on the appellate courts more than 
doubled, to 33, during their 6\1/2\ years in control of the Senate.
  I believe Republicans decided to prevent President Clinton from 
bringing any balance to the DC Circuit. As you know, the Republicans 
had named 11 judges to this powerful 12-member court.
  First, when Garland was nominated to the 12th seat, Republicans said 
the DC Circuit did not need a 12th judge. For example, the 
distinguished senior Senator from Iowa, Mr. Grassley, said that this 
judgeship cost $1 million a year and did not need to be filled due to 
those costs.
  Then Senator Grassley said he was relying on the view of a Republican 
appointee to this court, Judge Silberman. Judge Silberman--you can read 
about him in a number of different places, including the book ``Blinded 
by the Right,'' written by Mr. David Brock, where this man, who was an 
activist for the far right, would meet with this judge, while he was 
sitting on the bench, walking to his anteroom, and talk about political 
strategy on how to embarrass Democrats, talk about political strategy, 
what to do to embarrass the President of the United States and the 
First Lady of the United States. That is Judge Silberman.
  Judge Silberman recently told the Federalist Society that judicial 
nominees should say nothing in their confirmation hearings--the same 
advice he gave Scalia when Silberman was in the Reagan White House. 
And, as you know with Scalia, a nominee's silence on an issue certainly 
does not guarantee that a nominee does not have deeply held views on an 
issue.
  Yesterday, I went into some detail about my respect for the ability 
of Judge Scalia to reason. This is a logical man, a brilliant man. But 
we, for various reasons, knew quite a lot about Scalia. He had written 
opinions before he went to the Supreme Court. And

[[Page S2665]]

even though some of us may not have agreed with his judicial 
philosophy, no one--no one--can dispute his legal attributes, his legal 
abilities, his ability to reason and think.
  Scalia recently authored a majority opinion for the Supreme Court in 
favor of the Republican Party of Minnesota that ABA-modeled ethics 
rules could not prevent a judicial candidate from sharing his views on 
legal issues. That was Scalia, the person I just bragged about.
  While there might have been some ambiguity about how much a judicial 
candidate could say before that Supreme Court decision last summer, 
after that decision there is none now, and Mr. Estrada has no ethical 
basis for refusing to answer the questions that we say he has not 
answered.

  Let's talk about Silberman a little more.
  He told Senator Grassley that the addition of another judge on that 
court would make it ``more difficult'' ``to maintain a coherent stream 
of decisions.'' Surely he did not mean that the addition of a Democrat 
appointee to that court filled with Republican appointees would make it 
more difficult to have unanimous decisions by mostly Republican panels.
  My friend Senator Grassley and other Republicans also relied on the 
views of another Republican appointee, Judge J. Harvie Wilkinson of the 
Fourth Circuit. I don't know much about Harvie Wilkinson. I don't know 
if he is giving advice about how to embarrass Democrats in his judicial 
capacity, which is unethical and against the canons of judicial ethics. 
But I don't know anything about Harvie Wilkinson, other than what I am 
going to tell you right now. He said:

       [W]hen there are too many judges . . . there are too many 
     opportunities for Federal intervention.

  So this makes me think that the opposition to Garland getting a vote 
was pretty political.
  Well, then look at what happened. Another Republican appointee to the 
DC Circuit retired, and then the Republicans said the DC Circuit did 
not need an 11th judge on that court. Garland would have then been the 
11th judge instead of the 12th.
  So the Republicans came to the floor stating that the declining 
caseload of the DC Circuit did not warrant the appointment of a Clinton 
appointee. They argued that 10 judges could handle the 1,625 appeals 
filed in the then-most-recent year for which statistics were available.
  I can only imagine what the Republicans would be saying now if Gore--
who got more votes in the last election than did the President--if he 
had won the Supreme Court case in that election recount. Now, the 
number of cases filed in the DC Circuit has fallen by another 200 per 
year, down to 1,400 in 2001, the most recent year for which statistics 
are available. So under their analysis--that is, the analysis of 
Silberman and Wilkinson--the DC Circuit would need only 9 judges to 
handle these cases, not 10 or 11 or 12.
  In fact, under their analysis, 8 DC Circuit judges could probably 
handle the 1,400 appeals if each judge took a few more cases on 
average--175 rather than 162. In fact, the First Circuit had 1,463 
appeals that year, more than the DC Circuit, but they only have 6 
judges.
  So let me be as clear as I can. I am not saying that the DC Circuit 
needs only eight judges and that Estrada and Roberts are people for 
whom they should not have submitted their names. I am simply saying 
that these were the Republican arguments against confirming Merrick 
Garland and any other Clinton appointees to that court. Now they are 
strangely silent on the plummeting caseload of the DC Circuit and 
whether it is important we spend $1 million per year for each job.
  These saviors of the budget--the majority--and they are responsible, 
along with the President, for the largest deficit in the history of the 
world, almost $500 billion this year--are not concerned, I guess, about 
$1 million per year. Because you are talking about four judges or so, 
and that is only $4 million. And when we have a deficit approaching 
$500 billion, I guess that is chump change.
  After delaying Garland from 1995 to 1997, 23 Republicans still voted 
against the confirmation of this uncontroversial and well-liked 
nominee. I think it is important note that, despite Garland's 
unassailed reputation for fairness, Republicans forced him to wait on 
the floor all this time--even after he was voted out of committee--11 
months on the floor.

  Clinton's two other nominees to the DC Circuit were not nearly as 
fortunate. Elana Kagan and Allen Snyder were never allowed a committee 
vote or a floor vote. They were held up by anonymous Republicans.
  That is worse than what we are doing--absolutely, totally worse. What 
we are doing is within the rules because you have rules that you can 
follow. If it is not put out of committee, you have no recourse. If 
they had brought it to the floor, we could have at least tried to 
invoke cloture. And that is what the majority can do now.
  They did not even give these two qualified people--both of whom 
graduated first in their class, Harvard--they were never even allowed a 
committee vote, or certainly not a floor vote. They were held up by 
anonymous Republicans.
  Now, we are not doing anything in the dark of the night. We do not 
have anonymous holds on Miguel Estrada. We are out here on the floor 
saying, we want information on him. Until we get it, we are going to 
vote against this man. And I assume these anonymous holds--I don't know 
how many it was--one, or two, or three, or four, or five Republicans in 
the dark of the night preventing a vote.
  Now the Republicans want to say it is wrong and unconstitutional to 
need 60 votes. It is not quite worth a hearty laugh, but it is sure 
kind of funny for them to say it is unconstitutional. Unconstitutional 
that we are following the Constitution--article II, section 2, of the 
Constitution?
  Now Republicans want to say it is wrong and unconstitutional to need 
60 votes--more than a majority--to end a debate under longstanding 
Senate rules, but it is not antidemocratic and unfair for Republicans 
to allow just one member of their own party--maybe two or three--to 
prevent a vote up or down on a judicial nominee, or at least allow us 
to file a motion to invoke cloture; that is, when a Democrat was 
President.
  Madam President, I know the Senator from New York is here to speak. 
Is that true? I will have plenty of opportunity at a subsequent time to 
speak. But there will be a time when I respond to the statement the 
junior Senator from Texas made yesterday regarding the Senate's role on 
confirmations. I look forward to doing that.
  I apologize to my friend from New York. She had duty here at 5 
o'clock, and I have taken far too much time.
  I did want to respond to some statements made when the Senator from 
New York was not on the floor. I felt it was important that the record 
be made clear.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Madam President, I understand that the Senator from New 
York wishes to speak. I don't wish to delay her, but in the spirit of 
going back and forth, I have sought to be recognized. I will not take a 
great deal of time because I want to be sure the Senator from New York 
is given the proper opportunity to speak.
  Mr. REID. Madam President, because of the graciousness of the Senator 
from Utah, I ask unanimous consent that following the statement of the 
Senator from New York, the Senator from Utah be recognized.
  Mr. BENNETT. Madam President, I would object because I have the 
floor.
  Mr. REID. I am sorry. I thought you were going to let her speak.
  Mr. BENNETT. I do intend to let her speak, but I would like to give 
my statement first.
  Mr. REID. I didn't understand that. Then I ask unanimous consent that 
the Senator from New York be recognized following the Senator from 
Utah. I would say to the Senator from Utah, the Senator from New York 
has been waiting a long time, so in the matter of who has been here the 
longest, it has been her.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I thank my friend from Nevada. I sit behind him. He may 
not have noticed how long I was waiting.
  I have been interested in this debate. It goes on. As the Senator 
from Nevada

[[Page S2666]]

has said, just about everything that can be said has been said. But at 
the same time the country is beginning to discover this debate. While 
everything may have been said on the floor, it seems that not 
everything has been said out in the country. It is interesting to me 
that we are getting more and more editorial comment throughout the 
Nation on this issue.
  One that came to my attention just this morning is in this morning's 
Washington Post. Those who get upset about what they believe is the 
liberal bias of the newspapers usually do not include the Washington 
Post among the list of those publications favorable to Republicans. 
There are columnists in the Washington Post that are considered 
favorable to Republicans. Mr. Novak comes to mind. But the Post itself 
is considered to be part of the leftwing media, according to those on 
talk radio.
  So when someone who is part of the establishment of the Washington 
Post editorial page speaks out on this issue and says something 
contrary to that which is normally assumed to be the party line of the 
mainstream media, it is worth noting and commenting on.
  In this morning's Washington Post, Benjamin Wittes, a member of the 
editorial page staff, has an op-ed piece entitled Silence is Honorable.
  I would like to quote from it at some length. This is how Mr. Wittes 
begins:

       Asked whether the Constitution evolves over time, the 
     nominee to the U.S. Court of Appeals for the District of 
     Columbia Circuit told the Senate Judiciary Committee that, 
     while such debates were interesting, ``as an appellate judge, 
     my obligation is to apply precedent.'' Asked whether he 
     favored capital punishment, a nominee said only that the 
     death penalty's constitutionality was ``settled law now'' and 
     that he didn't ``see any way in which [his] views would be 
     inconsistent with the law in this area.''
       Miguel Estrada, one of President Bush's nominees to the 
     D.C. Circuit, is facing a filibuster by Democratic senators 
     who claim that his refusal to address their questions at his 
     hearing--combined with the White House's refusal to release 
     his memos from his days at the solicitor general's office--
     makes him an unreadable sphinx. Yet the careful answers 
     quoted above are not Estrada's. The first was given by Judge 
     Judith Rogers at her hearing in 1994, the second by Judge 
     Merrick Garland the following year. Both were named to the 
     bench by President Clinton. Neither was ever accused of 
     stonewalling the committee. And both were confirmed.
       But the rules they are a-changin', and answers barely 
     distinguishable from these are no longer adequate. Asked 
     whether he thought the Constitution contained a right to 
     privacy, Estrada said that ``the Supreme Court has so held 
     and I have no view of any nature whatsoever . . . that would 
     keep me from apply[ing] that case law faithfully.'' Asked 
     whether he believed Roe v. Wade was correctly decided, he 
     declined to answer. While he has personal views on abortion, 
     he said, he had not done the work a judge would do before 
     pronouncing on the subject. Roe ``is there,'' he said. ``It 
     is the law . . . and I will follow it.''
       The real difference between Estrada's questioning and that 
     of Garland and Rogers is not that Estrada held back. It is 
     that Garland and Rogers faced nothing like the inquest to 
     which Estrada was subjected. Both, along with Judge David 
     Tatel--the other Clinton appointee now on the court--faced 
     only a brief and friendly hearing.

  I would note, outside of the article, that that brief and friendly 
hearing was under Republican auspices because Republicans controlled 
the Senate. Back to the article:

       And none was pushed to give personal views on those matters 
     on which his or her sense of propriety induced reticence. To 
     be sure, there was no controversy surrounding the fitness of 
     any of the Clinton nominees, so the situation is not quite 
     parallel. When Garland, a moderate former prosecutor who had 
     recommended the death penalty, said he could apply the law of 
     capital punishment, there was no reason to suspect he might 
     be shielding views that would make him difficult to confirm. 
     By contrast, many Democrats suspect that Estrada's refusal to 
     discuss Roe is intended to conceal his allegedly extremist 
     views. But that only begs the question of why Estrada is 
     controversial in the first place that Democrats think it 
     appropriate to demand that he bare his judicial soul as a 
     condition of even getting a vote.

  This is the conclusion of this portion of the op-ed piece:

       Nothing about his record warrants abandoning the respect 
     for a nominee's silence that has long governed lower court 
     nominations.
       And silence is the only honorable response to certain 
     questions. It is quite improper for nominees to commit or 
     appear to commit themselves on cases that could come before 
     them.

  That is the end of that quote. This is the standard we followed in 
this body for many years. I will not pretend that members of the 
Judiciary Committee of both parties in Congress, controlled by both 
parties, would use the Judiciary Committee, the blue slip process and 
other patterns of senatorial courtesy to keep people from getting to 
the bench. That is part of our history. That has always been done. But 
once a hearing has been held and the committee has voted out a nominee, 
we have always allowed that nominee to go to a vote. That is the 
standard that has been established in this body. That is the standard 
that has been followed by Democrats and Republicans alike. And that is 
the standard that is being changed in this circumstance.
  The Senator from Nevada talked a good bit about the Constitution and 
questions that have been raised about constitutionality by the 
Republicans. I would simply point out this obvious fact with respect to 
the Constitution on this question: The Founding Fathers gave the power 
to advise and consent in certain executive decisions to the Senate. The 
Founding Fathers recognized that the power to advise and consent was a 
very significant one, an unusual one held solely to the Senate. So they 
outlined those areas where the power to advise and consent would 
require a supermajority.
  The Founding Fathers said: If you are advising and consenting on a 
treaty, which becomes law when it is ratified, equal to the 
Constitution, then you have to have a two-thirds majority. If you are 
amending the Constitution, you have to have a two-thirds majority. 
These are serious enough matters, with long-term impact, that they must 
have a two-thirds majority.
  They could have said: The advise and consent power always requires a 
supermajority, but they did not. The Founding Fathers made it very 
clear those specific areas where a supermajority would be required and 
then left it to an ordinary majority on the advise and consent power 
with respect to Presidential nominations. And throughout the entire 
history of the Republic, we have followed the pattern of a simple 
majority for the advise and consent power to be exercised by the 
Senate.

  Make no mistake, if the Senate sets the precedent in the Estrada case 
that the advise and consent power from this time forward requires a 
supermajority of 60 votes, they are changing forever the pattern of the 
Senate's relationship to the executive branch in this area. I am not 
one who says that is unconstitutional. I think it is within the power 
of the Senate. I disagree with those who are saying it violates the 
Constitution. I think it violates the intent of the Framers of the 
Constitution. I think that is very clear. But it is within the power of 
the Senate to do that if we want.
  As I have said before, we on our side of the aisle discussed this 
when we were faced with those nominees from President Clinton whom we 
considered controversial. There were those in our conference who 
insisted that we must do that--change the pattern and require President 
Clinton's nominees to pass the 60 point bar. To his credit, my senior 
colleague from Utah argued firmly against that. Even though he was 
against the nominees in some cases, he said we must not change the 
historic pattern that says once a nominee is voted out of the 
committee, he or she gets a clear up-or-down vote by a majority. To his 
credit, the Republican leader at the time, the majority leader, Senator 
Lott, said exactly the same thing: We must not go down that road. Those 
in our conference who said let's do it on that particular judge agreed 
and backed down, and no matter how strongly people on this side of the 
aisle felt about a particular judge, there was never an attempt to use 
the filibuster power to change what we considered to be the clear 
intent of the Founding Fathers and change the advise and consent 
situation, where there was an additional supermajority required, an 
additional supermajority added to that which the Founding Fathers 
themselves wrote into the Constitution.
  Now the Democrats have decided they are going to do that. It is their 
right. To me, it signals a determination on their part that they expect 
to be in the minority for a long time. One of the reasons Senator Hatch 
gave for us not to do it was, we will have an opportunity in the future 
to be voting on nominees offered by a President of our

[[Page S2667]]

own party, and if we do this to the other party, they will then feel 
comfortable in doing it to the nominees of our party; let's just not do 
that.
  I think by deciding to do this on this nominee, the Democrats have 
virtually conceded the fact that they do not expect another Democratic 
President for long time. They believe they will be in the minority for 
a long time and, therefore, they must establish this weapon as one of 
the weapons they will use as part of the minority to obstruct the 
activities in the Senate for a long time to come.
  I hope they decide ultimately to bet on the future. I hope they 
decide ultimately they do expect that there will be a Democratic 
President sometime in the future, that they do expect there will be a 
Democratic Senate sometime in the future and they want to save for the 
future the right that every President, Democrat or Republican, and 
every Senate, Democrat or Republican, has maintained since the founding 
of the Republic 2\1/2\ centuries ago.
  Madam President, if I may go back to the article written by Benjamin 
Wittes in this morning's Washington Post that summarizes the 
implications of going in this direction and what it will do long term, 
he says:

       Not knowing what sort of judge someone will be is 
     frustrating, but that is the price of judicial independence. 
     While it would be nice to know how nominees think and what 
     they believe and feel, the price of asking is too high. The 
     question, rather, is whether a nominee will follow the law. 
     Estrada has said that he will. Those who don't believe him 
     are duty bound to vote against him, but they should not 
     oblige nominees to break the silence that independence 
     requires.

  That is what our friends on the Democratic side are doing. They have 
never demanded it before. We did not demand it of their nominees. They 
are changing the rules--``the rules they are a'changing,'' as Mr. 
Wittes points out. I ask my friends on the Democratic side to think 
long and hard about the long-term consequences of changing the rules--
changing the rules, as Mr. Wittes talks about it, in terms of what is 
demanded of nominees; changing the rules as we are talking about it 
here in terms of the supermajority that would be added to the existing 
constitutional requirement of the Senate as it performs its role in 
advising and consenting to executive nominations.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Madam President, I thank the Senator from Utah for his 
kindness and consideration with respect to the order. I was happy to 
have the opportunity to hear him, as I often am.
  With respect to the arguments that have been made in the last hour or 
so, I think it is clear that there is a fundamental difference of 
opinion regarding the Senate's obligation and duty under the advise and 
consent clause of the U.S. Constitution.
  Mr. DORGAN. Will the Senator yield for a unanimous consent request?
  Mrs. CLINTON. Yes.
  Mr. DORGAN. I ask unanimous consent that I may speak following the 
speech of the Senator from New York.
  Mr. BENNETT. I object. There is a Republican speaker coming. I would 
amend the UC request to say that Senator Talent, if he is on the floor, 
be recognized first, and then Senator Dorgan be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. DORGAN. Reserving the right to object, I have not followed the 
order on the floor of the Senate today. I don't know whether the 
Senator from Utah has. I was told I would be recognized at 5:30 and was 
prepared to do that. If there has been a process today in which 
Republicans and Democrats follow each other precisely, then I will 
understand what the Senator from Utah is trying to do. If not, I am 
here. The reason I am here is to present remarks following the Senator 
from New York. If others wish to be involved in the line-up, I will be 
happy to entertain that. I guess I don't understand the circumstance 
under which the Senator from Utah is opposing this.
  Mr. BENNETT. I am not sure what the circumstance was prior to my 
coming to the floor either. I was told we were going back and forth. If 
I might inquire as to how much time the Senator would use, perhaps 
there would be no problem.
  Mr. DORGAN. It was my intention to consume an hour, but I will not do 
that; it will be a half hour. I would certainly be accommodating to 
anybody else. I would like to speak, and others are not here. I don't 
intend to interrupt. If there is an order established, I do not want to 
interrupt that. I don't know that to be the case.
  Mr. BENNETT. I don't know that to be the case all day long. I do know 
that was the case earlier. Reserving the right for my friend who is 
anticipating to be here at 6, and was told in advance he could be here 
at 6, I renew my unanimous consent request that following the Senator 
from New York, the Senator from Missouri, Mr. Talent, would be 
recognized to speak, after which the Senator from North Dakota, Mr. 
Dorgan, would be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. DORGAN. Reserving the right to object--and I will now object--if 
the other side wishes to protect people who are not here in deference 
to those who are here, I expect the Senator from Utah would want us to 
do the same thing on this side of the aisle. If a Republican is waiting 
to speak, and a Democrat is not yet on the floor, but someone here says 
it is really the opportunity for the Democrats to speak even if the 
Republican is here, we will object. So I guess I understand the point 
the Senator from Utah is making. I will not object to his request as 
long as he understands that we will do that, I suppose. I don't think 
it is the most efficient way of handling things. Those who are on the 
floor and prepared to speak, I expect that is the way we ought to 
recognize people.
  Mr. BENNETT. I thank my friend for his consideration. I say to him he 
caught me at somewhat of a disadvantage in that I am the only one on 
the floor and didn't know what was going on. I am trying to accommodate 
people on both sides, which is why I want to make sure the Senator from 
North Dakota is recognized to speak.

  Mr. DORGAN. Madam President, continuing to reserve the right to 
object, if this is the process, I will simply at some appropriate point 
ask for a time certain to speak tomorrow and will be here promptly at 
that time. I am here now and those who the Senator from Utah is 
attempting to protect are not here. I will not object because I do not 
want to interrupt an order apparently they think on that side exists. 
If that, in fact, is the order, we will certainly make sure that is the 
case for people on both sides of the aisle as we proceed.
  Mr. BENNETT. I would expect the Democratic leader to be sure of 
enforcing the same process on behalf of Senators on his side of the 
aisle.
  Mr. DORGAN. Madam President, I do not think that is the most 
efficient use of time in the Senate. It seems to me those who are here 
want to be recognized to proceed. Recognizing it is not the most 
efficient use of time, I will not object to the request by the Senator 
from Utah.
  Mr. BENNETT. I thank my friend.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from New York.
  Mrs. CLINTON. I thank the Chair. Madam President, I have been, as I 
said, listening with great interest to the debate on this issue. It is 
a very significant and important debate. As I often do when I come to 
the Chamber, I imagine, instead of being a Senator with the great honor 
of representing the State of New York and speaking in this Chamber, 
that I am just another citizen, as I have been most of my life, 
watching the debate on C-SPAN or one of the other television networks 
that might cover parts of it, and I would be asking myself: What is 
this all about? Why has so much time been consumed in the Senate over 
this one nominee?
  The bottom line answer is that this side of the aisle has a very deep 
concern about any candidate seeking a lifetime position who refuses to 
answer the most basic questions about his judicial philosophy. And 
that, in fact, to permit such a candidate to be confirmed without being 
required to answer those questions is, in our view, a fundamental 
denial and repudiation of our basic responsibilities under the advice 
and consent clause of article II, section 2, of the U.S. Constitution.
  Earlier this afternoon, as I was waiting for my opportunity to speak, 
I heard the Senator from Idaho admit that he had, based on philosophy, 
voted against certain nominees who had been sent to the Senate by 
President Clinton. I happen to think that is a totally

[[Page S2668]]

legitimate reason to vote for or against a nominee. I happened to agree 
with the Senator from Idaho when he said he voted against nominees by 
President Clinton based on philosophy. That is an integral part of the 
advise and consent obligation.
  The problem that we have on this side of the aisle is we cannot 
exercise the advise and consent obligation because we do not get any 
answers to make a determination for or against this nominee based on 
philosophy. I could not have done a better job than the Senator from 
Idaho did in summing up what the problem is. I thank the Senator from 
Idaho for being candid, for saying he voted against President Clinton's 
nominees based on philosophy.

  We could resolve this very easily if the nominee would actually 
answer some questions, legitimate questions that would permit those of 
us who have to make this important decision and are not just saluting 
and following orders from the other end of Pennsylvania Avenue, by 
being able to look into the philosophy and then deciding: Are we for 
this nominee or are we against this nominee?
  This nomination would also be expedited if the President and his 
legal counsel would respond to the letter of February 11 sent to the 
President by the minority leader and the distinguished ranking member 
of the Judiciary Committee asking for additional information on which 
to make a decision concerning this nominee, and, in fact, both Senators 
Daschle and Leahy are very explicit about what information is required. 
I will reiterate the request. Specifically, they asked the President to 
instruct the Department of Justice to accommodate the request for 
documents immediately so that the hearing process can be completed and 
the Senate can have a more complete record on which to consider this 
nomination and, second, that Mr. Estrada answer the questions he 
refused to answer during the Judiciary Committee hearing to allow for a 
credible review of his judicial philosophy and legal views.
  I would argue, we are not changing the rules. In fact, we are 
following the rules and the Constitution, and we are certainly doing 
what the Senator from Idaho said very candidly he did with respect to 
President Clinton's nominees. We are trying to determine the judicial 
philosophy of this nominee in order to exercise our advise and consent 
obligation.
  I have also been interested in my friends on the other side of the 
aisle talking and reading from newspapers and asserting that we are 
somehow requesting more information from this nominee than from other 
nominees and that, in fact, it is honorable not to answer relevant 
questions from Judiciary Committee members. It may be honorable by 
someone's definition of honor, but it is not constitutional. It is 
fundamentally against the Constitution to refuse to answer the 
questions posed by a Judiciary Committee member.
  If there were any doubt about this standard, all doubt was removed 
last year. How was it removed? It was removed in a Supreme Court 
opinion rendered by Justice Scalia arising out of a case brought by the 
Republican Party concerning the views of judges.
  For the record, I think it is important we understand this because 
perhaps some of my colleagues have not been informed or guided by the 
latest Supreme Court decisions on this issue, but I think they are not 
only relevant, they are controlling, to a certain extent, when we 
consider how we are supposed to judge judges.
  Republicans focus on the ABA model code that judicial candidates 
should not make pledges on how they will rule or make statements that 
appear to commit them on controversies or issues before the court. They 
are, understandably, using this as some kind of new threshold set by 
Mr. Estrada who refused to answer even the most basic questions about 
judicial philosophy or his view of legal decisions.
  Some judicial candidates, it is true, go through with very little 
inquiry. They come before the Judiciary Committee. They are considered 
mainstream, noncontroversial judges. Frankly, the Senators do not have 
much to ask them. They go through the committee. They come to the 
floor. That is as it should be. Were it possible, that is the kind of 
judge that should be nominated--people whose credentials, background, 
experience, temperament, and philosophy is right smack in the center of 
where Americans are and where the Constitution is when it comes to 
important issues. When someone does not answer questions or when they 
are evasive, it takes longer and you keep asking and you ask again and 
again. That was, unfortunately, the case with this particular nominee.
  The Republican Party sued the State of Minnesota to ensure their 
candidates for judicial office could give their views on legal issues 
without violating judicial ethics. Republicans took that case all the 
way to the Supreme Court. In an opinion by Justice Scalia, the Supreme 
Court ruled that the ethics code did not prevent candidates for 
judicial office from expressing their views on cases or legal issues. 
In fact, Justice Scalia said anyone coming to a judgeship is bound to 
have opinions about legal issues and the law, and there is nothing 
improper about expressing them.
  Of course, we do not and should not expect a candidate to pledge that 
he is always going to rule a certain way. We would not expect a 
candidate, even if he agreed that the death penalty was constitutional, 
to say: I will always uphold it, no matter what. That would be an abuse 
of the judicial function and discretion.

  Specifically, in Republican Party of Minnesota v. White, the Supreme 
Court overruled ABA model restrictions against candidates for elective 
judicial office from indicating their views. I think the reasoning is 
applicable to those who are nominated and confirmed by this body for 
important judicial positions within the Federal judiciary.
  Justice Scalia explained in the majority opinion, even if it were 
possible to select judges who do not have preconceived views on legal 
issues it would hardly be desirable to do so.
  I want my friends on the other side to hear the words of one of the 
two favorite Justices of the current President, Justice Scalia: Even if 
it were possible, it would not be desirable.
  Why? Because, clearly, we need to know what the judicial philosophy 
is. Judges owe that to the electorate, if they are elected; to the 
Senate if they are appointed.
  Justice Scalia goes on: Proof that a justice's mind at the time he 
joined the court was a complete tabula rasa in the area of 
constitutional adjudication would be evidence of lack of qualification, 
not lack of bias. And since avoiding judicial preconceptions on legal 
issues is neither possible nor desirable, pretending otherwise by 
attempting to preserve the appearance of that type of impartiality can 
hardly be a compelling State interest, either. In fact, that is Justice 
Scalia quoting Justice Rehnquist.
  Before this decision, some judicial candidates may have thought--and 
some of my colleagues may have thought--that judicial candidates could 
not share their views on legal issues, and I think that might have been 
a fair assessment of the state of the law at that time. But that is no 
longer a fair assessment.
  A judicial candidate cannot be compelled to share his views, but 
Justice Scalia tells us that a judicial candidate who does not share 
his views refuses to do so at his own peril, and that is exactly what 
this nominee has done. At his own peril, he has gotten his marching 
orders from the other end of Pennsylvania Avenue, from all those who 
advise judicial nominees, from the Federalist Society and all the rest 
of those organizations, not to answer any questions, to dodge all of 
the issues, to pretend not to have an opinion about any Supreme Court 
case going back to Marbury v. Madison.
  Well, he does so, in Justice Scalia's words, at his peril. That is 
what has brought this nomination to this floor for all these days, 
because this nominee wants to be a stealth nominee. He wants to be a 
nominee who is not held accountable for his views so that we who are 
charged under the Constitution to make this important judgment cannot 
do so based on his judicial philosophy.
  Justice Scalia has a lot to say to my friends on the other side. If 
it were possible to become a Federal judge, with lifetime tenure, on 
the second highest court of the land, without ever saying

[[Page S2669]]

anything about your judicial philosophy, I think that would be 
astonishing. It would be troubling. It would run counter to the 
Constitution and to this opinion written by one of the most 
conservative members of the current Court.
  Mr. Estrada basically has come before this Senate and claimed he 
cannot give his view of any Supreme Court case without reading the 
briefs, listening to the oral argument, conferring with colleagues, 
doing independent legal research, and on and on. That is just a dressed 
up way of saying: I am not going to tell you my views, under any 
circumstances.

  One has to ask himself--and I do not want to be of a suspicious 
mindset--why will this nominee not share his views? Are they so 
radical, are they so outside the mainstream of American judicial 
thought, that if he were to share his views, even my friends on the 
other side would say wait a minute, that is a bridge too far; we cannot 
confirm someone who believes that?
  How can I go home and tell my constituents that I voted for somebody 
who actually said what he said? I cannot think of any other 
explanation. Why would a person, who clearly is intelligent--we have 
heard that constantly from the other side--who has practiced law, not 
be familiar with the procedures of the Judiciary Committee, of the 
constitutional obligation of advise and consent or even of Justice 
Scalia and Justice Rehnquist's opinions about the importance of 
answering such questions?
  So I have to ask myself: What is it the White House knows about this 
nominee they do not want us to know? And if they do not want us to 
know, they do not want the American people to know. I find that very 
troubling.
  I do not agree with the judicial philosophy of many of the nominees 
sent up by this White House. I voted against a couple of them. I voted 
for the vast majority of them, somewhere up in the 90 percentile. At 
least I felt I could fulfill my obligation so when I went back to New 
York and saw my constituents and they asked why did I vote for X, I 
could say to them it was based on the record. He may not be my cup of 
judicial tea, but he seems like a pretty straightforward person. Here 
is what he said and that is why I voted for him. Or to the contrary, I 
could not vote for this nominee because of the record that was 
presented.
  I cannot do that with this particular nominee. And you know what. The 
other end of Pennsylvania Avenue that is calling the shots on this 
nomination does not want me to have that information.
  I think that is a denial of the basic bargain that exists under the 
Constitution when it comes to nominating and confirming judges to the 
Federal courts.
  It could have been different. The Founders could have said let's put 
all of this into the jurisdiction of the Executive; let him name 
whoever he wants. Or they could have said: No, let's put it in the 
jurisdiction of the legislature; let them name whoever they want. 
Instead, as is the genius of our Founders and of our Constitution, 
there was a tremendous bargain that was struck, rooted in the balance 
of power that has kept this Nation going through all of our trials and 
tribulations, all of our progress, that balance of power which said we 
do not want this power to rest in any one branch of Government; we want 
it shared. We want people to respect each other across the executive 
and legislative lines when it comes to the third branch of Government.
  So, OK, Mr. President, you nominate. OK, Senators, you advise and 
consent. That is what this is about.
  Sometimes I wonder, as my friends on the other side talk about it, 
how they can so cavalierly give up that constitutional obligation. The 
unfortunate aspect of this is we could resolve this very easily. All 
the White House has to do is send up the information. Let Mr. Estrada 
answer the questions. He may still have a majority of Senators who 
would vote to put him on the DC Circuit. I do not know how it would 
turn out because I do not have the information.
  While we are in this stalemate caused by the other end of 
Pennsylvania Avenue, which for reasons that escape me have dug in their 
heels and said, no, they will not tell us anything about this person, 
there is a lot of other business that is not being done, business about 
the economy, the environment, education and health care, business that 
really does affect the lives of a lot of Americans.
  On that list of business that I consider important is what is 
happening in our foster care system. Tomorrow evening, I will have the 
great privilege of hosting the showing of a tremendous movie about the 
foster care system, along with Congressman Tom DeLay. I invite all of 
my colleagues from both Houses of Congress to come and see this movie 
that vividly illustrates what happens in our foster care system.
  I have worked in the past with Congressman DeLay to try to improve 
the foster care system. I look forward to doing that in the future. He 
has a great commitment to the foster care system and the foster 
children who are trapped within it. I use that word with great meaning 
because, indeed, that is often what happens to them. And the stories of 
abuse and neglect that first lead children to go into the foster care 
system are compounded by the stories of abuse and neglect once they are 
in that system.
  Mr. Fisher will be joining Congressman DeLay and me at the Motion 
Picture Association screening room for this important movie. This is a 
screening just for Members of Congress. I think it will illustrate 
better than certainly my words could why it is so important we join 
hands and work on this issue along with many others who affect the 
lives of children as well as men and women across America.
  Occasionally, a movie comes to the screen that brings to life the 
stories that have become routine in the newspapers and that we too 
often ignore--the stories of children living with abuse and neglect, 
shuffled in and out of our foster care system, often with little 
guidance from or connection to any one adult. Too often these stories 
end in the most tragic way possible:
  7-year-old Faheem Williams in Newark, NJ was recently found dead in a 
basement with his two brothers where they were chained for weeks at a 
time.
  6-year-old Alma Manjarrez in Chicago was beaten by her mother's 
boyfriend and left to die outside in the snow and cold of the winter.
  And despite 27 visits by law enforcement to investigate violence, 7-
year-old Ray Ferguson from Los Angeles was recently killed in the 
crossfire of a gun battle in his neighborhood.
  Antwone Fisher's story is different.
  Mr. Fisher overcame tremendous odds: He was born in prison, handed 
over to the State, and lived to tell his story of heartbreaking abuse. 
At the age of 18, he left foster care for the streets. With nowhere to 
turn, he found the support, education, and structure in the U.S. Navy. 
In the Navy, Fisher received a mentor and professional counselor, which 
helped him turn his life around.
  Mr. Fisher survived his childhood and has lived to inspire us all and 
send us a stern reminder that it is our duty to reform the foster care 
system so that no child languishes in the system, left to find his own 
survival or to die. Antwone's success story should be the rule not the 
exception.
  Tomorrow night, House Majority Leader Tom DeLay and I will be 
cohosting a screening of the movie ``Antwone Fisher'' for Members of 
Congress. We decided to host this together because we both feel that it 
is imperative that we raise national awareness about foster care--
through one child's own experience--and encourage our colleagues to 
tackle this tough issue with us.
  Congressman DeLay and I had received an award together in the year 
2000 from the Orphan Foundation of America for the work that we both 
have done in this area. Earlier this year, I asked my staff to reach 
out to his staff to find ways we might work together to focus on this 
issue. This movie was a natural fit for both of us and I look forward 
to continuing to work with Representative DeLay as we take a hard look 
at reforming our foster care system. Congressman DeLay and his wife, 
Christine, are strong advocates for foster children and are foster 
parents themselves.
  I hope that many of my colleagues in the Senate will take us up on 
the invitation and join us for this important movie.

[[Page S2670]]

  But, for those who can't join us, I wanted to share a little bit 
about Antwone's story in his own words from his book, ``Finding 
Fish''--

       The first recorded mention of me and my life was [from the 
     Ohio State child welfare records]: Ward No. 13544.
       Acceptance: Acceptance for the temporary care of Baby boy 
     Fisher was signed by Dr. Nesi of the Ohio Revised Code.
       Cause: Referred by division of Child Welfare on 8-3-59. 
     Child is illegitimate; paternity not established. The mother, 
     a minor is unable to plan for the child. The report when on 
     to detail the otherwise uneventful matter of my birth in a 
     prison hospital facility and my first week of life in a 
     Cleveland orphanage before my placement in the foster care 
     home of Mrs. Nellie Strange.
       According to the careful notes made by the second of what 
     would be a total of thirteen caseworkers to document my 
     childhood, the board rate for my feeding and care cost the 
     state $2.20 per day.

  Antwone went on to document that the child welfare caseworker felt 
that his first foster mother had become ``too attached'' to him and 
insisted that he be given up to another foster home. The caseworker 
documents this change:

       Foster mother's friend brought Antwone in from their car. 
     Also her little adopted son came into the agency lobby with 
     Antwone. . .  . They arrived at the door to the lobby and the 
     friend and the older child quickly slipped back out the door. 
     When Antwone realized that he was alone with the caseworker, 
     he let out a lust yell and attempted to follow them.
       Caseworker picked him up and brought him in. Child cried 
     until completely exhausted and finally leaned back against 
     caseworkers, because he was completely unable to cry anymore.

  Later he describes when the caseworker brought him to his next foster 
home--she too slipped out the door when he was not looking. He says, 
``All through my case files, everybody always seemed to be slipping 
away in one sense or another.''
  When Antwone arrived at the next foster home and as he grew, at first 
he was not told of his troubled entry into the world:

       But for all that I didn't know and wasn't told about who I 
     was, a feeling of being unwanted and not belonging had been 
     planted in me from a time that came before my memory.
       And it wasn't long before I came to the absolute conclusion 
     that I was an uninvited quest. It was my hardest, earliest 
     truth that to be legitimate, you had to be invited to be on 
     this earth by two people--a man and a woman who loved each 
     other. Each had to agree to invite you. A mother and a 
     father.

  Antwone Fisher never knew a permanent home--never knew a loving 
mother and father. Instead, he was left to fend for himself when he was 
expelled from foster care at 18--a time when the state cuts off 
payments to foster parents. Antwone found himself on the streets and 
homeless.
  Thanks to the work of many on both sides of the aisle in Congress we 
have begun important work to make sure that Antwone's story is not 
repeated. No child should have to grow up in foster care from birth and 
never be adopted and no child should ever have to leave the system at 
18, with absolutely no support.
  There are approximately 542,000 children in our Nation's foster care 
system--16,000 of these young people leave the system every year having 
never been adopted. They enter adulthood the way they lived their 
lives, alone.
  In 1999, when I was First Lady, I advocated for and Congress took an 
important step to help these young adults by passing the Chafee Foster 
Care Independence Act. This program provides states with funds to give 
young people assistance with housing, health care, and education. It is 
funded at $410 million annually, and should be increased. But it was an 
important start to addressing the population of children who ``age-
out'' of our foster care system.
  This bill came after the important bipartisan Adoption and Safe 
Families Act of 1997. As First Lady, it was an honor to work on what's 
considered to be one of the most sweeping changes in federal child 
welfare law since 1980.
  It ensured that a child's safety is paramount in all decisions about 
a child's placements. For those children who cannot return home to 
their parents, they may be adopted or placed into another permanent 
home quickly. Since the passage of this law, foster child adoptions 
have increased by 78 percent.
  The next major hurdle that I believe we need to tackle in reforming 
our child welfare system is the financing system.
  Currently, we spend approximately $7 billion annually to protect 
children from abuse and neglect, to place children in foster care, and 
to provide adoption assistance. The bulk of this funding, which was 
approximately $5 billion in fiscal year 2001, flows to States as 
reimbursements for low-income children taken into foster care when 
there is a judicial finding that continuation in their home is not 
safe.
  This funding provides for payments to foster families to care for 
foster children, as well as training and administrative costs.
  This funding provides a critical safety net for children, who through 
difficult and tragic circumstances end up in the care of the state. It 
ensures that children are placed in foster care only when it is 
necessary for their safety, it ensures that efforts are made to reunify 
children with their families as soon as it safe, it works to make sure 
that the foster care placement is close to their own home and school, 
and it requires that a permanency plan is put in place. All of these 
safeguards are critical.
  The financing, however, is focused on the time the child is in foster 
care and it continues to provide funding for States the longer and 
longer a child is in the system. The funding is not flexible enough to 
allow for prevention or to help children as they exit the system--
critical times when children fall through the cracks.
  President Bush has put a proposal on the table to change the way 
foster care is financed in order to provide greater flexibility so that 
states can do more to prevent children form entering foster care, to 
shorten the time spent in care, and to provide more assistance to 
children and their families after leaving.
  While I absolutely do not support block granting our child welfare 
system--I do think that it is important that President Bush has come to 
the table with an alternative financing system and I believe that it 
provides us with an opportunity to carefully consider how to 
restructure our child welfare system.
  We must ask critical questions:
  Will States be required to maintain child safety protection that we 
passed as part of the Adoption and Safe Families Act?
  Will States be required to target funds to prevention and post-foster 
care services?
  What happens if there is a crisis and more foster care children enter 
the system? Will States receive additional funds?
  While I believe all of these questions deserve answers, I applaud 
President Bush and Representative DeLay for being willing to tackle 
this hard problem. I look forward to working with them to find 
solutions so that we do not allow any child to fall through the cracks.
  This is just one of the many issues that are basically left on the 
back burner while we engage in this constitutional debate that could be 
resolved if information were provided.
  As I said, I have to question the reasons why that information is not 
forthcoming. It gives me pause. This administration is compiling quite 
a record on secrecy. That bothers me. It concerns me. I think the 
American people are smart enough and mature enough to take whatever 
information there is about whatever is happening in the world--whether 
it is threats we may face or the judicial philosophy of a nominee. That 
is how a democracy is supposed to work. If we lose our openness, if we 
turn over our rights to have information, we are on a slippery slope to 
lose our democracy. Now, of course, in times of national crisis and 
threat like we face now, there are some things you cannot share with 
everyone. But you certainly can and should share them with the people's 
elected representatives. That is why we are here. I err on the side of 
trying to make sure we share as much information as possible.
  For the life of me, I cannot understand why the White House will not 
share information about this nominee. Until it does, until Mr. Estrada 
is willing to answer these questions, I have to stand with my colleague 
from Idaho--I cannot cast a vote until I know a little bit more about 
the judicial philosophy. This is not a Republican or Democratic 
request. This is a senatorial request.

[[Page S2671]]

This is what the Senate is supposed to be doing.
  I urge our colleagues and friends on the other side of the aisle, do 
whatever you can to persuade the White House and the Justice Department 
to level with the Senate, to level with the American people, to provide 
the information that will enable us to make an informed decision and 
fulfill our constitutional responsibility.
  It seems to me to be the very minimum we can ask. It certainly is 
what has been provided and asked for in the past. I hope it will be 
forthcoming, that the letter sent by Senators Daschle and Leahy will 
get a favorable response, we will be able to get the information the 
Judiciary Committee has requested, that many Members feel we need, and 
we can move on. We can tend to the people's business, including the 
need to reform our foster care system to try to save the lives of so 
many children who would otherwise be left behind and left out of the 
great promise of America.
  The PRESIDING OFFICER (Mr. Alexander.) The Senator from Missouri.
  Mr. TALENT. When I was growing up, there was a tradition in the 
Senate that I observed as an outsider, of course, about how the Senate 
handled its constitutional function of giving advice and consent for 
presidential nominees. The Senate pretty much understood on the basis 
of a bipartisan consensus that its role was secondary, that its power 
was a check rather than a primary power to appoint people, either to 
the executive branch or to the judicial branch. I observed that 
Senators pretty much voted to confirm Presidential nominees if they 
believed those nominees were competent and if they believed those 
nominees were honest, and they did not inquire too greatly of the 
nominees' philosophy for the executive or into the nominees' 
jurisprudence for the legislative. There would be flaps or personal 
problems, but basically that was the role the Senate played and the 
traditional understanding of its constitutional function.
  Unfortunately, I think we will all agree, that consensus has broken 
down over the last few years. We will all agree that both sides have 
some responsibility for that consensus breaking down. What we are 
experiencing now from the Senators who are opposing and filibustering 
the Estrada nomination is so extreme given the past traditions of the 
Senate that it threatens the spirit and, I argue, even the letter of 
the Constitution, and it threatens the ability of the Senate and the 
integrity of the Senate to do the work of the people.
  Let me go into that a little bit. First of all, I take it from my 
understanding of the debate that the Senators who are opposing Mr. 
Estrada are not questioning his abilities as a lawyer or his honesty or 
integrity as an individual. I appreciate that. This is not a personal 
attack on Mr. Estrada. No one is saying he is unqualified as a lawyer. 
No one is saying he is dishonest in terms of his professional dealings 
or dishonest as a man and, indeed, you could not say that based on his 
experience which is clearly well known after the hours of debate we 
have put into this nomination.
  He arrived in this country knowing very little English. He worked his 
way up, if you will. He was a leader in his law school class. He was on 
the Law Review. An achievement he was able to get, as not all of us 
were able to get, he clerked for an outstanding judge, a Democratic 
appointee on the Second Circuit, and then on the Supreme Court, and did 
an outstanding job in the Solicitor General's Office, according to his 
supervisors of both parties.
  No one is questioning his abilities or honesty, as I understand it. 
As I understand, no one is saying they think he is not competent or 
honest in the sense of the standard that traditionally had been 
applied. What they are saying is this. They are saying, first of all, 
they will vote against the nominee, even to an appellate court, because 
they disagree with that nominee's jurisprudence, which is, itself, a 
step beyond what the Senate ever did in the past. But they are going 
beyond that. They are saying they will vote against the nominee, even 
to an appellate court, not just because they disagree with his 
jurisprudence, but because they suspect they might disagree with his 
jurisprudence.
  And if he answered questions no other nominee who worked for the 
Solicitor General's Office has ever been expected to answer, and which 
they should not have to answer, given the need for the integrity of the 
executive branch, but they are going beyond that.
  The opponents on this floor of the Estrada nomination are not just 
saying they will vote against nominees if they disagree with their 
jurisprudence, or vote against them if they suspect they might disagree 
with their jurisprudence; they are saying they are not even going to 
allow a vote on a nominee even to an appellate court if they suspect 
they might disagree with that nominee's jurisprudence.
  I ask my colleagues, I beg my colleagues who are opposing this 
nomination, to consider what this new standard, if it were to be 
adopted by the Senate as a whole, would mean for the Constitution, 
would mean for the Senate, and would mean for Estrada, as well.
  As I said, the Constitution assigned, we can all agree, the primary 
power of appointment to the President. Yet the Constitution shares some 
of that power with the Senate and that is not unusual. Even though we 
have a separation of powers, there are a number of instances where the 
executive is given a little legislative power, or the legislative is 
given a little executive power. For example, when the President is 
given the power to negotiate treaties and conclude them with foreign 
countries but subject to the requirement that two-thirds of the Senate 
ratify those treaties. So the Senate is given, in effect, a little 
executive power.
  The Framers of the Constitution knew how to provide for the Senate to 
exercise the executive power they gave it by a supermajority vote when 
they wanted to provide that.
  When the Framers said, we want to actually take a little bit more 
power away from the President, they said, we are not only going to 
require that the Senate ratify treaties but we are going to require 
that they ratify them by a supermajority vote, a two-thirds vote. The 
Framers knew how do to that when they wanted to do it. The assumption 
is they didn't want to take that extra measure of power away from the 
executive. Yes, they wanted to share the power of appointments with the 
Senate, as several colleagues have said. They are correct in saying 
that. The Senate is a partner in this process. But according to its 
traditions, it has always been a junior partner. According to the 
spirit of the Constitution, it exercises this partnership by a majority 
vote and not a supermajority vote.
  If we adopt the tradition in this body that we will filibuster 
nominees, if we suspect we might disagree with their jurisprudence, we 
are in effect saying it will require 60 votes for this body to confirm 
a judicial nomination. That, I submit to you, is a usurpation of the 
executive authority as granted under the Constitution. It is a shift in 
constitutional authority away from the executive and to the 
legislature--and not even to the Congress as a whole but to the Senate.
  As much as I stand up for the Senator from New York in saying as much 
as we have to stand up for the prerogatives and the authority of the 
Senate under the Constitution, our first responsibility is to the 
Constitution and to the distribution of powers, as the letter of the 
Constitution indicates and as the traditions of this Senate have always 
confirmed.
  I am deeply concerned. If we were to adopt the standards being 
applied here to Miguel Estrada across the board, we would be doing 
something which is unconstitutional and which violates the spirit and I 
believe the letter of the Constitution as well.
  My second concern is that this kind of a filibuster under these 
circumstances will poison the operation of the Senate on other matters. 
The filibuster, whatever you think of it, is a power that should be 
reserved for issues of only the greatest seriousness. I am not saying 
an appellate court nomination isn't important, it is important, but it 
is an appellate court nomination. Mr. Estrada, if he is confirmed to 
this post, whatever my colleagues may suspect his jurisprudence might 
lead him to do, is not going to change settled interpretations of the 
Constitution of the United States that can only occur on the Supreme 
Court level. And to haul out the nuclear

[[Page S2672]]

weapon, if you will, of a filibuster on an issue that, while important, 
is not of the first letter of importance undermines the integrity and 
the ability of this Senate to pull together on issues that are of the 
first importance.
  I agree with the Senator from New York. We need to get on to issues 
of health care. We need to get on to issues of education. We need to 
get on to issues of defense and of tax relief to create jobs. All of 
these things are very important. That is why we should not filibuster 
an appellate court nomination. Allow a vote at least, I ask my 
colleagues.
  Let me say finally that I am concerned about the effect of this on 
the justice that we as a body and as Americans owe to the man whose 
interests and whose career are at stake here. Miguel Estrada is, after 
all, a person. Sometimes the great forces of history, of cultural 
division, and focus on personal disputes involving broader issues come 
to focus on one man or one woman. We have seen that happen sometimes in 
our history. And it may be unavoidable. But we should always keep in 
mind that we are dealing with a human being, a person who has done his 
best by his life to keep his obligations to his colleagues and to his 
country--a person who has excelled by any standard. None is questioning 
that--a person who has conducted himself with integrity and has done so 
in a town where it is sometimes difficult to conduct yourself with 
integrity. And his professional future is hanging, if you will, on a 
thread. We ought to consider what is just to him. He deserves this 
post. He has worked hard for it. His qualifications qualify him for the 
post. We should at least give him a vote.
  That is why the newspapers and the opinion of this country for the 
last week or so have been decidedly in favor, if not of Mr. Estrada and 
I think most of the opinion of the country has indeed be in favor of 
confirming him for the reasons I have indicated--but at least in favor 
of giving him a vote.
  I am not going to read all of the editorials, certainly. I ask 
unanimous consent to have printed in the Record an editorial of 
February 7, 2003, from the St. Louis Post-Dispatch, one my hometown 
newspapers, and also a letter--they may already be in the Record--and 
one in the New York Daily News by Gov. George Pataki.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the New York Daily News, Feb. 17, 2003]

                   The Senate Should Confirm Estrada

                       (By Gov. George E. Pataki)

       Miguel Estrada, President Bush's nominee for the District 
     of Columbia Circuit Court of Appeals, is a New York success 
     story--the embodiment of all that has made our state a beacon 
     of freedom and opportunity around the globe.
       His life is an inspiration to us all, especially to the 
     children of new immigrants. Yet his nomination has gotten 
     caught up in the all-too-familiar Washington game of partisan 
     politics. That's wrong. When the Senate returns from its 
     break, it should act quickly to end this senseless bickering.
       Born in Tegucigalpa, Honduras, Estrada came to the U.S. in 
     1978. Just 17, he could barely speak English. He proved to be 
     a quick study. Just five years later, he graduated with 
     honors from Columbia University.
       After a three-year stint at Harvard Law School, where he 
     served as editor of the prestigious Harvard Law Review, 
     Estrada came home to New York to clerk for a federal 
     appellate judge, Amalya Kearse, who was appointed by 
     Democratic President Jimmy Carter.
       After a clerkship with the Supreme Court--one of the 
     highest honors a young lawyer can receive--Estrada spent 
     three years as a federal prosecutor in New York City. He 
     argued numerous cases before appellate courts and 15 cases 
     before the Supreme Court. No wonder the American Bar 
     Association gave him its highest rating: well-qualified.
       Estrada's compelling life story and superlative 
     qualifications explain why his nomination has elicited such 
     broad support. No fewer than 18 Hispanic organizations and 
     countless individuals have called on the Senate to confirm 
     him. Herman Badillo, a former Democratic congressman from New 
     York, calls him ``a role model, not just for Hispanics, but 
     for all immigrants and their children.''
       The League of United Latin American Citizens calls Estrada 
     ``one of the rising stars in the Hispanic community and a 
     role model for our youth.'' And the U.S. Hispanic Chamber of 
     Commerce calls his nomination a ``historic event.''
       Estrada's nomination is equally popular among Democrats. 
     Former vice President Al Gore's chief of staff testifies that 
     he is ``a person of outstanding character and tremendous 
     intellect'' with an ``incredible record of achievement.'' 
     Former President Bill Clinton's solicitor general describes 
     Estrada as ``a model of professionalism and competence.''
       The support for Estrada is as deep as it is wide. Yet some 
     Democrats in the Senate are filibustering his nomination--
     talking it to death and refusing to let their colleagues 
     vote. That's just wrong. In fact, in the two centuries since 
     our nation was founded, that has never happened to a nominee 
     for the federal appellate courts.
       Simply put, the Senate should do its job, put aside 
     partisan politics and vote on Estrada's nomination. It's just 
     common sense--but unfortunately, common sense all too often 
     gets shoved aside by party politics in Washington.
       Here in New York, we know that now more than ever we must 
     put aside partisan differences and work together for the best 
     interests of all New Yorkers. We also know that the efforts 
     of new immigrants or their children who, through hard work, 
     achieved the American dream--New Yorkers like Badillo, 
     Secretary of State Powell and Estrada--must be rewarded and 
     emulated, not held hostage to party politics.
       Estrada has reached the pinnacle of his profession and is a 
     credit to the people of New York. When the Senate finally 
     confirms him, I have every confidence he likewise will prove 
     a credit to America's judicial system.
                                  ____


               [From the Washington Post, Feb. 18, 2003]

                               Just Vote

       The Senate has recessed without voting on the nomination of 
     Miguel Estrada to the U.S. Court of Appeals for the D.C. 
     Circuit. Because of a Democratic filibuster, it spent much of 
     the week debating Mr. Estrada, and, at least for now, enough 
     Democrats are holding together to prevent the full Senate 
     from acting. The arguments against Mr. Estrada's confirmation 
     range from the unpersuasive to the offensive. He lacks 
     judicial experience, his critics say--though only three 
     current members of the court had been judges before their 
     nominations. He is too young--though he is about the same age 
     as Judge Harry T. Edwards was when he was appointed and 
     several years older than Kenneth W. Starr was when he was 
     nominated. Mr. Estrada stonewalled the Judiciary Committee by 
     refusing to answer questions--though his answers were similar 
     in nature to those of previous nominees, including many 
     nominated by Democratic presidents. The administration 
     refused to turn over his Justice Department memos--though no 
     reasonable Congress ought to be seeking such materials, as a 
     letter from all living former solicitors general attests. He 
     is not a real Hispanic and, by the way, he was nominated only 
     because he is Hispanic--two arguments as repugnant as they 
     are incoherent. Underlying it all is the fact that Democrats 
     don't want to put a conservative on the court.
       Laurence H. Silberman, a senior judge on the court to which 
     Mr. Estrada aspires to serve, recently observed that under 
     the current standards being applied by the Senate, not one of 
     his colleagues could predictably secure confirmation. He's 
     right. To be sure, Republicans missed few opportunities to 
     play politics with President Clinton's nominees. But the 
     Estrada filibuster is a step beyond even those deplorable 
     games. For Democrats demand, as a condition of a vote, 
     answers to questions that no nominee should be forced to 
     address--and that nominees have not previously been forced to 
     address. If Mr. Estrada cannot get a vote, there will be no 
     reason for Republicans to allow the next David S. Tatel--a 
     distinguished liberal member of the court--to get one when a 
     Democrat someday again picks judges. Yet the D.C. Circuit--
     and all courts, for that matter--would be all the poorer were 
     it composed entirely of people whose views challenged nobody.
       Nor is the problem just Mr. Estrada. John G. Roberts Jr., 
     Mr. Bush's other nominee to the D.C. Circuit, has been 
     waiting nearly two years for a Judiciary Committee vote. 
     Nobody has raised to substantial argument against him. 
     Indeed, Mr. Roberts is among the most highly regarded 
     appellate lawyers in the city. Yet on Thursday, Democrats 
     invoked a procedural rule to block a committee vote anyway-
     just for good measure. It's long past time to stop these 
     games and vote.
                                  ____


            [From the St. Louis Post-Dispatch, Feb. 7, 2003]

                       A Filibuster Is Not a Fix

       The process for appointing federal judges is badly broken. 
     A filibuster won't fix it.
       Democrats are trying to decide whether to filibuster the 
     nomination of Miguel Estrada to the powerful federal appeals 
     court for the District of Columbia. They consider Mr. Estrada 
     a stealth conservative who is being groomed for the U.S. 
     Supreme Court as a Hispanic Clarence Thomas.
       The Democrats' fear may turn out to be valid. But the 
     filibuster is the parliamentary equivalent of declaring war. 
     Instead of declaring war, the Democrats should sue for peace 
     and try and to fix the process.
       The Senate's confirmation process is not supposed to be a 
     rubber stamp. Judicial nominees have been defeated for 
     political reasons--often good political reasons. The Supreme 
     Court is a better place without Clement Haynsworth, Harrold 
     Carswell and Robert Bork. But ever since Mr. Bork, the 
     process of advise and consent has become attack and delay.

[[Page S2673]]

       During Bill Clinton's presidency, the GOP-controlled Senate 
     held up highly qualified nominees for ideological reasons. 
     Then, during the two years of Democratic control, the Senate 
     held up highly qualified nominees from President George W. 
     Bush. Now the Republicans are ramming through judges as fast 
     as McDonald's sling burgers.
       The only consistent principle in this recent Senate history 
     is that turnabout is fair play. That's a poor way to choose 
     judges.
       Mr. Bush, like Ronald Reagan, considers conservative 
     ideology a key qualification for judgeship. Unfortunately, 
     Senate Democrats have set upon highly qualified nominees--
     such as Michael McConnell, a brilliant law professor, who was 
     eventually confirmed--as wolfishly as they have upon weaker 
     nominees, such as Charles Pickering.
       In an ideal world, Mr. Bush would realize that the 
     lackluster Mr. Pickering, a friend of Sen. Trent Lott, R-
     Miss., raises divisive racial questions. In an ideal world, 
     the president would nominate the best-qualified legal minds, 
     not ideologies.
       But in the real world, Mr. Pickering is acceptable and Mr. 
     Estrada is well-qualified. Mr. Estrada is an immigrant from 
     Honduras who went to Harvard Law School, clerked on the 
     Supreme Court and worked in the Solicitor General's office. 
     Democrats, frustrated by the absence of a paper trail, and 
     Mr. Estrada's sometimes-evasive answers on issues such as 
     abortion, tried to get legal memos that Mr. Estrada wrote 
     while in the Solicitor General's office. But both Democratic 
     and Republican solicitors general have urged that the memos 
     be kept private so that future solicitors general receive 
     candid views from their staff.
       In short, the Democratic position doesn't justify a 
     filibuster. Instead, Democrats should reach out to 
     Republicans and try to develop a bipartisan truce that gives 
     judges prompt, but thorough, hearings that will speed the 
     important process of filling the many vacancies on the 
     federal bench.
  Mr. TALENT. Mr. President, I want to read an editorial from the 
February 18 issue of the Washington Post. It sums up the case better 
than or as well as I can:

       The Senate has recessed without voting on the nomination of 
     Miguel Estrada to the U.S. Court of Appeals for the D.C. 
     Circuit. Because of a Democratic filibuster, it spent much of 
     the week debating Mr. Estrada, and, at least for now, enough 
     Democrats are holding together to prevent the full senate 
     from acting.

  We all know a filibuster is underway here, an obstruction tactic.
  That is not from the editorial. That was my editorial comment.

       The arguments against Mr. Estrada's confirmation range from 
     the unpersuasive to the offensive. He lacks judicial 
     experience, his critics say--though only three current 
     members of the court had been judges before their 
     nominations. He is too young--though he is about the same age 
     as Judge Harry T. Edwards was when he was appointed and 
     several years older than Kenneth W. Starr was when he was 
     nominated. Mr. Estrada stonewalled the Judiciary Committee by 
     refusing to answer questions--though his answers were similar 
     in nature to those of previous nominees, including many 
     nominated by Democratic presidents. The administration 
     refused to turn over his Justice Department memos--though no 
     reasonable Congress ought to be seeking such material, as a 
     letter from all living former solicitors general attests. He 
     is not a real Hispanic and, by the way, he was nominated only 
     because he is Hispanic--two arguments as repugnant as they 
     are incoherent. Underlying it all is the fact that Democrats 
     don't want to put a conservative on the court.
       Laurence H. Silberman, a senior judge on the court to which 
     Mr. Estrada aspires to serve, recently observed that under 
     the current standards being applied by the Senate . . .

  I ask you to listen carefully to this.

     . . . being applied by the Senate, not one of his colleagues 
     could predictably secure confirmation. He's right. To be 
     sure, Republicans missed few opportunities to play politics 
     with President Clinton's nominees. But the Estrada filibuster 
     is a step beyond even those deplorable games. For Democrats 
     demand, as a condition of a vote, answers to questions that 
     no nominee should be forced to address--and that nominees 
     have not previously been forced to address. If Mr. Estrada 
     cannot get a vote, there will be no reason for Republicans to 
     allow the next David S. Tatel--a distinguished liberal member 
     of the court--to get one when a Democrat someday again picks 
     judges. Yet the D.C. Circuit--and all courts, for that 
     matter--would be all the poorer were it composed entirely of 
     people whose views challenged nobody.
       Nor is the problem just Mr. Estrada. John G. Roberts Jr., 
     Mr. Bush's other nominee to the D.C. Circuit, has been 
     waiting nearly two years for a Judiciary Committee vote. 
     Nobody has raised a substantial argument against him. Indeed, 
     Mr. Roberts is among the most highly regarded appellate 
     lawyers in the city. Yet on Thursday, Democrats invoked a 
     procedural rule to block a committee vote anyway--just for 
     good measure. It's long past time to stop these games and 
     vote.

  I ask my colleagues to consider carefully--and I know there have been 
abuses of this process on both sides of the aisle--but I ask my 
colleagues to consider carefully whether, in the name of the 
Constitution, in the name of the obligation of this Senate to go on to 
other things and resolve them, in the name of comity and the traditions 
of this body, the Washington Post isn't right, and whether it isn't 
long past time to stop these games and vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, first, let me respond to my colleague and 
friend from the State of Missouri which adjoins my home State of 
Illinois.
  I say to him, I do not disagree with many of the things he said. This 
debate over Miguel Estrada should not be about the person. I have met 
him. I sat down in my office with him. He has a very impressive life 
story to tell having come to the United States as an immigrant when he 
was about 17 years old, with a limited command of English. The man had 
some extraordinary achievements. He went on to become the editor of the 
Law Review at Harvard, served as a member of the Department of Justice, 
worked at the Supreme Court as a clerk. He is with a major, prestigious 
law firm. You would really be hard pressed to find anything in his 
background that is anything short of impressive. That is not the issue.
  The fact that he is Hispanic, I say to my friend from Missouri, in my 
mind, is a plus in many respects. It certainly is not a minus. I was 
honored to name a Hispanic to the district court in Chicago when I had 
that opportunity a few years ago. I believe our judiciary should 
reflect the diversity of the United States. And if this is an example 
of affirmative action by the White House to put a Hispanic on the DC 
Circuit court, I say: Three cheers. I think it is the right thing to 
do.
  It has nothing to do with his Hispanic heritage. As I said, that is a 
plus. There is nothing negative about that in any respect. What is at 
issue, and the reason the Senate has been tied up with this nomination, 
is the fact that Mr. Estrada has not been forthright in explaining who 
he is in terms of what he believes. And that is a fair question.
  If we are going to give someone a lifetime appointment to the DC 
Circuit court--which is not just another court for the District of 
Columbia, but a major court in our Federal judicial system--I think it 
is not only reasonable, it is imperative that the Senate ask basic 
questions of Mr. Estrada. And we did. Time and time again, he stopped 
short of answering because that is now the drill at the Department of 
Justice.
  The nominees go through this very rigorous training about how to 
handle a Senate judicial hearing. I am told they have videotapes and 
play them back and they ask them the questions most often asked of 
nominees. They school them in the answers to give to not reveal, at any 
point, what they really think, trying to get away with saying as little 
as possible, trying to get through the hearing with a smile on their 
face and their family behind them, and trying to get through the Senate 
without any controversy.
  There is nothing wrong with that if a person has a history that you 
can turn to and say, well, this man or this woman has been on the bench 
for so many years and has handed down so many opinions. And we have 
read them. We know what they believe. They have expressed themselves 
over and over again. Or if they have published law journal articles, 
for example, that explain their point of view, that is all there for 
the record. You could draw your own conclusions.
  But in the case of Mr. Estrada, none of that is there. He has not 
done that much in terms of publications nor involvement in cases. We 
said to him: Help us understand you. If you will not answer the 
question directly, let us at least look at the legal documents you 
prepared so we can see how you analyzed the law.
  That has been done before. Other nominees have offered that 
information. Mr. Estrada said: I would be happy to share it with you as 
well. But the Department of Justice stepped in and the White House 
stepped in and said: No, we will not let the Senate see what Mr. 
Estrada has written as an attorney.

  Why? Why would they want to conceal this information, unless, in 
fact, there is something very controversial and worrisome.

[[Page S2674]]

  So we come here today not with any personal animus against Miguel 
Estrada. To the contrary, on a personal basis, he is a very 
extraordinary individual personally, academically, and professionally. 
But we have a right to ask these questions. Let me restate that. We 
have a responsibility to ask those questions, to make certain that each 
man and woman headed for this awesome lifetime appointment, this 
awesome position of responsibility, really is the person we want in 
that position.
  Now, make no mistake, with President Bush in the White House, the 
nominees are more than likely to be Republican, more than likely to be 
conservative, more than likely to be members--proud members--of the 
Federalist Society. I know that. That is the nature of this process, 
the nature of politics. Yet it is still our responsibility to make 
certain they are just conservative and not extreme in their positions. 
We cannot draw that conclusion on Miguel Estrada because he has 
carefully concealed what he really believes. And that is why we are 
here.
  So as a result of focusing on this nomination for 3 straight weeks, 
we have ignored so many other issues that should be brought to the 
Senate. We could resolve this issue tomorrow morning easily.
  Senator Bennett, a Republican, of Utah has come to the floor and made 
a suggestion that I think is eminently reasonable. Let Miguel Estrada 
turn over his legal writings so they can be reviewed by Senator Hatch 
and Senator Leahy. And if they find anything in there of moment, of 
consequence, or of controversy, let them follow through with the 
questions or, if necessary, a hearing, and let's be done with it, a 
vote up or down.
  Senator Daschle came to the floor today, the Democratic leader, and 
said that would be perfectly acceptable. We would have the information, 
and then we could reach our conclusion. And in the process we could be 
protecting our responsibility as Members of the Senate.
  It has nothing to do with Miguel Estrada personally, but it does have 
something to do with our constitutional authority and responsibility to 
review each nominee.